98-004540 Cloyd Toney vs. Department Of Environmental Protection
 Status: Closed
Recommended Order on Thursday, December 16, 1999.


View Dockets  

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF ENVIRONMENTAL PROTECTION

12CLOYD TONEY (Facility 0668502540);

16JAMES F. JENNINGS (Facility 128626716);

21JAMES SCELFO (Facility 018500049);

25DARREL HANEY (Facility 128503387); OGC CASE NOS. 98-1208

33LEO COHEN and MARK GROSBY (Facility) 96-2930

40498627087); LEO COHEN and JOHN H 96-3405

47ROTH (Facility 498627088); ROBERT C. 98-1974

53ACKERT (Facility 498627087); CLOYD 98-2544

58TONEY (Facility 538628774); LUELLA R 98-2440

64CEASER (Facility 068501883); JACK A. 96-3404

70HARKNESS (Facility 158506545); and 98-2050

75PETER D. KLEIST (Facility 058500923), 97-0117

8198-1774

82Petitioners, 98-2035

84and DOAH CASE NOS. 98-2021

8998-2030

90ENVIRONMENTAL CORPORATION OF 98-4535

94AMERICA, INC., 98-4536

9798-4537

98Intervenor, 98-4538

10098-4539

101vs. 98-4540

10398-4541

104DEPARTMENT OF ENVIRONMENTAL 98-4542

108PROTECTION, 98-4543

110Respondent.

111_____________________________________/

112FINAL ORDER

114An Administrative Law Judge with the Division of

122Administrative Hearings (" DOAH") submitted his Recommended Order

131to the Department of Environmental Protection ("Department") in

141these consolidated cases. The Recommended Order indicated that

149copies were served upon counsel for Petitioners, Cloyd Toney, et

159al. ("Petitioners"), and upon counsel for Intervenor,

168Environmental Corporation of America (" ECA"). A copy of the

179Recommended Order is attached as Exhibit A. Exceptions to the

189Recommended Order were filed on behalf of Petitioners, ECA and

199the Department. The Department subsequently filed its Responses

207to the Exceptions of Petitioner and ECA. The matter is now

218before the Secretary of the Department for final agency action.

228BACKGROUND

229Petitioners funded efforts to cleanup petroleum and

236petroleum product contamination at various "Joy Food Stores"

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

253cases. Petitioners also filed applications with the Department

261for reimbursement of the cleanup costs under an amnesty program

271created by § 376.3071, Florida Statutes. This statutory amnesty

280program applies to owners or operators who notified the

289Department that their property was contaminated by petroleum or

298petroleum products. Under the statutory reimbursement program,

305the facility owner or operator would usually hire a contractor to

316cleanup petroleum contaminated sites. The contractor would then

324perform certain petroleum contamination cleanup program tasks

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

341subcontractors and suppliers.

344The first program task is an Initial Remedial Action

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

365taking samples of soil at the site, removal of all contaminated

376soil identified by the soil samples, and back-filling the

385excavated area with uncontaminated soil. The next program task

394is the preparation of a Contamination Assessment Report ("CAR").

405The purpose of a CAR is to determine the vertical and horizontal

417extent of groundwater contamination. The determination of

424groundwater contamination requires installation and sampling of

431groundwater wells. The third program task is a Remedial Action

441Plan ("RAP") whereby a system to remediate the. groundwater at a

454site is designed and submitted to the Department for approval.

464The final program task is the Remedial Action (" RA") implementing

476the system designed and approved in the RAP. Upon completion of

487a program task, the facility owner, operator, or their designee

497submits an application to the Department for reimbursement of the

507cleanup costs at the various sites.

513ECA entered into contracts with " funders" to finance the

522petroleum contamination cleanup costs at the sites involved in

531the consolidated cases now on review. ECA, purportedly acting on

541behalf of its "investors," also entered into a series of

551agreements with Gurr/Omega (an environmental consulting firm) for

559cleanup of petroleum contamination at the sites. Under these

568agreements, Gurr/Omega was required to provide all labor,

576equipment, and materials and to perform all work needed to

586complete the remediation of the sites selected and approved by

596ECA. Gurr/Omega was to "complete such performance in strict

605compliance with all applicable statutes rules and regulations and

614to the satisfaction of FDEP". Gurr-Omega would submit its

624invoices for the petroleum cleanup work to ECA, and ECA would pay

636Gurr/Omega with money obtained from its investors. ECA would

645then receive an assignment of Gurr/Omega's right to reimbursement

654of cleanup costs from the Department.

660Each of the Petitioners in these consolidated cases claimed

669a 15% "second-tier" markup on funds paid to ECA. The payments to

681ECA also included a 15% "first-tier" markup on sums which ECA

692indicated were paid to subcontractors for cleanup activities

700conducted at the various sites. In October of 1996 or later, the

712Department denied the portions of numerous reimbursement

719applications filed by Petitioners relating to the 15% "first-

728tier" markups paid to ECA. Petitioners then filed their

737petitions challenging the Department's denials of reimbursement

744for the "first-tier" markups, and the petitions were referred to

754DOAH for formal administrative proceedings.

759The above-captioned cases were consolidated by DOAH, and

767Administrative Law Judge J. Lawrence Johnston (" ALJ") was

777assigned to conduct a formal administrative hearing. A DOAH

786final hearing was held before the ALJ on August 17 20, 1999, in

799Tampa, Florida. Testimony of witnesses and documentary evidence

807was presented on behalf of Petitioners and the Department. The

817ALJ subsequently entered a Recommended Order ("RO") in these

828consolidated cases on December 16, 1999.

834RECOMMENDED ORDER

836Based on his retrospective application of Ch. 99-379, § 4,

846Laws of Florida (1999), the ALJ concluded that the Department's

8561998 amendments to Rules 62-773.200(9) and 62-773.350(9)-(10),

863F.A.C., were not applicable to Petitioners' applications for

871reimbursement of the petroleum contamination cleanup costs at the

880sites involved in these cases. The ALJ also concluded that

890Petitioners had established that ECA's activities were integral

898and essential to site rehabilitation under the applicable rule

907provisions in effect at the time Petitioners' subject

915applications for reimbursements of petroleum cleanup costs were

923filed with the Department. However, the ALJ did conclude that

"933interest" payments made by ECA to Petitioners, together with

942ECA's 15% markups thereon and Petitioners' 15% markups on ECA's

952markups, were not allowable under Rules 62-773.200(12), 62-

960773.350(4)(e), and 62-773.650(1), F.A.C. (1993).

965The ALJ ultimately recommended that the Department enter a

974final order granting specified claims of Petitioners as set forth

984on page 62 of the RO for reimbursement of ECA's 15% "first tier"

997markups, together with Petitioners' 15% markups thereon. The ALJ

1006also recommended that the final order in these cases direct

1016Petitioners to repay to the Department overpayments made to them

1026of interest paid by ECA, together with ECA's 15% markups on the

1038interest and Petitioners' markups thereon, as specified on page

104763 of the RO.

1051RULINGS ON PETITIONERS' EXCEPTIONS

1055Exception 1

1057Petitioners' first Exception takes issue with Findings of

1065Fact 41 of the RO wherein the ALJ found that the subject

1077reimbursement applications submitted to the Department contained

1084no evidence that Petitioners were seeking reimbursement of

"1092interest" payments being made to Petitioners by ECA. In his

1102related Finding of Fact 42, the ALJ also found that the

1113Department first obtained evidence that the reimbursement

1120applications contained interest payments from ECA to Petitioners

1128during the course of prehearing discovery in these consolidated

1137cases. The ALJ further found that, upon such discovery, the

1147Department sought to recover those interest payments, together

1155with any markups thereon. The challenged factual findings of the

1165ALJ in paragraph 41 of the RO are affirmed in this Final Order.

1178An agency reviewing a DOAH recommended order may not reject

1188or modify the findings of fact of an administrative law judge

1199(formerly "hearing officer") unless the agency first determines

1208from a review of the entire record, and states with particularity

1219in the order, that the findings of fact were not based on

1231competent substantial evidence. See subsection 120.57(1)(1),

1237Florida Statutes. Accord Dunham v. Highlands County School

1245Board, 652 So.2d 894 (Fla. 2d DCA 1995); Dietz v. Florida

1256Unemployment Appeals Commission, 634 So.2d 272 (Fla. 4th DCA

12651994); Florida Dept. of Corrections v. Bradley , 510 So.2d 1122

1275(Fla. 1st DCA 1987). I conclude that the ALJ's Finding of Facts

128741 and 42 are based on competent substantial evidence of record.

1298This competent substantial evidence includes the expert testimony

1306at the DOAH final hearing of Charles Williams, an environmental

1316administrator in the Department's Bureau of Petroleum Storage

1324Systems. (Tr. Vol. IV, pages 112-215)

1330In addition, the case law of Florida holds that it is the

1342ALJ's responsibility to weigh the evidence presented in these

1351DOAH proceedings, resolve conflicts therein, judge the

1358credibility of witnesses, and draw permissible inferences from

1366the evidence. Heifetz v. Dept. of Business Regulation , 475 So.2d

13761277 (Fla. 1st DCA 1985). Thus, a reviewing agency may not

1387reweigh the evidence presented at a DOAH formal hearing, attempt

1397to resolve conflicts therein, or judge the credibility of

1406witnesses. Belleau v Dept. of Environmental Protection , 695

1414So.2d 1305,1307 (Fla. 1st DCA 1997); Mavnard v. Unemployment

1424Appeals Commission , 609 So.2d 143, 145 (Fla. 4th DCA 1992).

1434I decline to substitute my judgment for that of the ALJ on

1446this evidentiary challenge raised by Petitioners. Accordingly,

1453Petitioners' Exception 1 is denied.

1458Exception 2a

1460Petitioner's second Exception does not take exception to

1468any factual findings or legal conclusions in the RO on review.

1479Instead, this exception challenges the ALJ's prehearing ruling

1487denying Petitioners' Motion In Limine requesting that evidence

1495bearing on the Department's claims for recovery of alleged

"1504interest" overpayments to Petitioners be excluded at the DOAH

1513final hearing.

1515Petitioners first argue that the ALJ lacked jurisdiction to

1524hear the Department's claims for recovery of alleged overpayments

1533of interest to Petitioners based on information obtained during

1542the discovery phase of these proceedings. Petitioners

1549essentially conclude that the scope of these proceedings is

1558limited to matters set forth in their reimbursement applications

1567and in the Department's related Orders of Determinations. This

1576argument of Petitioners overlooks a basic tenet of administrative

1585law that a DOAH formal proceeding wherein an agency action is

1596contested is not merely an administrative review of prior

1605preliminary agency action, but is a de novo proceeding intended

1615to formulate final agency action. See , e.g., Hamilton County

1624Commissioners v. State Dept. of Environmental Regulation , 587 So.

16332d 1378,1387 (Fla. 1st DCA 1991); Florida Dept. of Transportation

1644v. J.W.C. Company. Inc. , 396 So 2d 778, 785 (Fla. 1st DCA 1981);

1657and McDonald v. Dept. of Banking and Finance, 346 So. 2d 569, 584

1670(Fla. 1st DCA 1977).

1674In such de novo formal hearings, neither the Department nor

1684the parties challenging the agency actions are restricted to the

1694matters set forth in the application documents or in the

1704Department's written notices of intent to issue or deny the

1714requested permits or reimbursements. See , e.g. , Hamilton County

1722Commissioners , supra, at 1387-1388; DeCarion v. Dept. of

1730Environmental Regulation, 445 So. 2d 619, 621 (Fla. 1st DCA

17401984). Therefore, it was not beyond the ALJ's jurisdiction to

1750have considered evidence in these proceedings of alleged

1758overpayments of interest by the Department to Petitioners, even

1767though the interest overpayment issue was not apparent in the

"1777four corners" of the reimbursement applications or the

1785Department's related Orders of Determinations. Hamilton County

1792Commissioners, supra , at 1387 1388; McDonald , supra , at 584.

1801Petitioners further contend that the ALJ erred, as a matter

1811of law, by ruling that the Department's interest overpayment

1820claims were "analogous to compulsory counterclaims which should

1828be determined in these proceedings". Petitioners suggest that

1837the Department should be required to commence separate audit

1846proceedings to recover the alleged interest overpayments. I

1854conclude, however, that the challenged prehearing ruling of the

1863ALJ refusing to limit the scope of the DOAH final hearing as

1875requested by Petitioners does not appear to be a matter over

1886which the Department has "substantive jurisdiction" under §

1894120.57(1)(1), Florida Statutes (1999).

1898The Florida courts have indicated that, subsequent to the

19071996 amendments to the Administrative Procedure Act, an agency

1916reviewing a DOAH recommended order is precluded from overruling

1925procedural or evidentiary rulings by an administrative law judge,

1934except "in the most extreme cases" where the proceedings "did not

1945comply with the essential requirements of law". See Florida

1955Power & Light Company v. State of Florida Siting Board , 693 So.2d

19671025,1028 (Fla. 1st DCA 1997) (Benson, J., concurring). Based on

1978my review of the record, l am unable to conclude that the cases

1991now on review are among those "extreme cases" where procedural or

2002evidentiary rulings of administrative law judges are so egregious

2011as to violate the essential requirements of law.

2019Consequently, Petitioners' Exception 2a is denied.

2025Exception 2b

2027This Exception takes issue with Conclusion of Law 94 of the

2038RO wherein the ALJ rejects Petitioners' attempt to distinguish

2047the seemingly adverse rulings of the Court in Environmental Trust

2057v. Dept. of Environmental Protection , 714 So.2d 493 (Fla. 1st DCA

20681998). In Environmental Trust , the court upheld the Department's

2077final order denying reimbursements of sums representing

"2084factoring discounts" for providing funding for the cleanup costs

2093of petroleum contamination at various sites.

2099The Environmental Trust court upheld the Department's

2106position that the cost of the factoring discounts amounted-to

2115interest on the face amount of the invoices and observed that

"2126[ i] nterest is not transformed into a reimbursable item merely

2137because the claimant elects to characterize it as a discount."

2147Id. at 497-498. At page 497 of the Environmental Trust opinion,

2158the court ruled that the "cost represented by the series of

2169discounts for providing capital is not an actual cost of the site

2181rehabilitation work" under § 376.3071 (12)(d), Florida Statutes.

2189At page 500 of the Environmental Trust opinion, the court also

2200ruled that the existing provisions of Rule 62-773 prohibited

2209reimbursement for "interest or carrying charges of any kind",

2218except for certain interest payments designated in the

2226Department's rules which were not applicable to the reimbursement

2235applications in that case. See Rule 62-773.350(4)(e), F.A.C.

2243In the challenged Conclusion of Law 94, the ALJ concluded

2253in these proceedings that Petitioners' attempt "to distinguish

2261interest payments made nearly simultaneously with receipt of

2269invoice payments from discounts is to elevate form over

2278substance. The two [payments] are equivalent." I concur with

2287these conclusions of the ALJ and conclude that the interest

2297payments at issue here are not distinguishable in substance to

2307the "factoring discounts" ruled to be nonreimbursable in the

2316Environmental Trust decision. I also concur with the ALJ's

2325related conclusions in paragraph 96 of the RO that the subject

2336interest payments made by ECA to Petitioners (and the markups

2346thereon) are not included within those permissible interest

2354payments designated in Rule 62-773.650(1), F.A.C., and are thus

2363not "interest costs incurred" under Rule 62 773.200(12), F.A.C.

2372In view of the above, Petitioners' Exception 2b is denied.

2382Request for Oral Presentation

2386Petitioners' Exception ends with a Request for Oral

2394Presentation to the Secretary. This request of Petitioners has

2403been previously denied in a separate "Order Denying Request for

2413Oral Argument" entered on January 10, 2000. This Order Denying

2423Request for Oral Argument is affirmed and incorporated by

2432reference herein. Accordingly, the portion of Petitioners'

2439Exceptions requesting permission to make an oral presentation to

2448the Secretary in these proceedings is denied for the reasons set

2459forth in the prior Order Denying Request for Oral Argument.

2469RULINGS ON DEPARTMENT'S EXCEPTIONS

2473Exception 1

2475The Department's first Exception takes issue with paragraph

248389 of the RO containing the ALJ's legal conclusion that Chapter

249499-379, § 4, Laws of Florida (1999), should be given

2504retrospective application to the Department's 1998 amendments to

2512Chapter 62-773, F.A.C. I conclude that this Exception of the

2522Department is well taken for the following reasons:

25301. Section 4 of Chapter 99-379 amended § 120.54(1)(f),

2539Florida Statutes ( Supp. 1998), by adding a sentence thereto that:

2550An agency may not adopt retroactive rules,

2557including retroactive rules intended to

2562clarify existing law, unless that power is

2569expressly authorized by statute.

2573This 1999 amendment to § 120.54(1)(f) was enacted by the

2583Legislature effective June 18,1999. It is undisputed that there

2593is no language in Chapter 99-379 expressing the intent of the

2604Legislature that the provisions of section 4 thereof should be

2614given retrospective application to agency rules adopted prior to

2623the effective date of this act.

26292. Absent a clear legislative intent to the contrary, a

2639substantive statute is presumed to act prospectively and to apply

2649only to conduct occurring after the effective date of the

2659statute. See State v. Lavazzoli , 434 So. 2d 321, 323 (Fla.

26701983); Fleeman v. Case , 342 So.2d 815 (Fla. 1976); Life Care

2681Centers v. Sawqrass Care Center 683 So.2d 609, 613 (Fla. 1st DCA

26931996). A "substantive" statute is one which "creates or imposes

2703a new obligation or duty". See , e.g . L, Gupton v. Villane Key

2717and Saw Shop. Inc. , 656 So.2d 475, 477 (Fla. 1995); Young v.

2729Altenhaus , 472 So.2d 1152, 1154 (Fla. 1985). The subject

2738provisions of Section 4 of Ch. 99-379 impose a new obligation or

2750duty on state agencies to not adopt retroactive rules.

2759Therefore, the 1999 amendment to § 120.54(1)(f), F.S., is a

2769substantive statutory provisions which should be applied

2776prospectively only to agency rules adopted after June 18,1999.

2786It is undisputed that the amendments to the petroleum cleanup

2796reimbursement provisions of Rule 62-773, F.A.C., at issue in

2805these proceedings were adopted on August 11, 1998.

28133. In addition, section 8 of Chapter 99-379 expresses the

2823clear intent of the Legislature that "[t]his act shall take

2833effect upon becoming a law." It is also undisputed that all

2844sections of Chapter 99-379 became law effective June 18,1999,

2854when the act was approved by the Governor. The Florida Supreme

2865Court has ruled that the Legislature's inclusion of an effective

2875date of a law " effectively rebuts any argument that retroactive

2885application of the law was intended ". Dept. of Revenue v.

2896Zuckerman Vernon Corp. , 354 So. 2d 353, 358 (Fla. 1977 (emphasis

2907supplied). Accord Foreman v. Russo , 624 So.2d 333, 336 (Fla. 4th

2918DCA 1993); Middlebrooks v. Dept. of State, 565 So.2d 727, 728

2929(Fla. 1st DCA 1990).

29334. Finally, l would note that the ALJ's legal conclusions

2943in paragraph 89 of the RO are inconsistent. The ALJ first cited

2955cases approving the general rule of law that administrative rules

2965are presumed to operate prospectively, in the absence of express

2975language to the contrary. However, the ALJ then concluded in the

2986last sentence of his Conclusion of Law 89 that: "[u] nder these

2998circumstances, Section 4 of Chapter 99-379 is not considered to

3008have truly retroactive effect and may be applied retroactively to

3018control these cases." If Section 4 of Chapter 99-379 "is not

3029considered to have truly retroactive effect" as the ALJ correctly

3039concluded, then it is inconsistent for the ALJ to also conclude

3050in the same sentence that these provisions "may be applied

3060retroactively to control these cases" dealing with Department

3068rule amendments adopted in 1998.

3073Based on the above rulings, the Department's Exception 1 is

3083granted. Accordingly, the ALJ's legal conclusions in paragraphs

309189 and 90 of the RO that the provisions of Section 4 of Chapter

310599-379 should be given retroactive application to the

3113Department's 1998 amendments to Rule 62-773 are rejected.

3121Exception 2

3123The Department's second and final Exception takes exception

3131to the ALJ's Conclusion of Law 92. In paragraph 92 of the RO,

3144the ALJ concludes that ECA acted in the role of a project

3156coordinator similar to a general contractor in connection with

3165the remediation of the petroleum contamination at the various

3174sites designated in these proceedings. The ALJ further concludes

3183that ECA's contributions were "integral to" and "essential to

3192completion of" site rehabilitation under the pertinent Department

3200rules. The ALJ ultimately concludes in this paragraph that ECA's

3210contributions "were enough to justify ECA's markups under these

3219rules and under Section 376.3071 (4)(c), Florida Statutes".

3228These legal conclusions of the ALJ, based on his

3237interpretations of statutory and rules provisions which the

3245Department has the duty to implement and enforce, are rejected on

3256the following grounds

32591. These statutory and rule interpretations in Conclusion

3267of Law 92 are expressly based on the ALJ's erroneous conclusion

3278that ECA's contributions or actions were "not limited by [the

32881998 amendments to] Rule 62-773.350(9)-(11)". In the preceding

3297ruling, I rejected the ALJ's retrospective application of the

3306provisions of Section 4 of Chapter 99-379 to preclude the

3316Department from applying the 1998 amendments to Rule 62-773 to

3326Petitioners' pending reimbursement applications. I thus conclude

3333that the decision in Environmental Trust , supra , is controlling

3342precedent as to these proceedings.

33472. In the Environmental Trust opinion, the court observed

3356that reviewing courts "must give great weight to the intent

3366expressed by the agency in determining whether a revised rule

3376imposes new requirements or merely clarifies existing

3383requirements". Id. at 714 So.2d 501. The court then upheld the

3395Department's position that the "revised version" of Rule 62-773

3404did not establish any new requirements, but only clarified the

3414existing rules relied upon by the Department in reviewing

3423reimbursement applications for petroleum contamination cleanup 1

3430costs. The court held in Environmental Trust that "the revised

3440version of Rule 62-773 can be applied retroactively because it

3450merely restates the Department's settled interpretation of the

3458existing rule." Id. at 501.

34633. The court ruled in Environmental Trust that "[n] othing

3473in section 376.3071, Florida Statutes (1995), creates an

3481entitlement to recover these expenses." Id. at 501. The court

3491also approved the rule of statutory construction that statutes

3500establishing economic grants or entitlements are strictly

3507construed in favor of the government and against the grantee.

3517Id. at 501. Accord 3 Sutherland Statutory Construction , § 63.02

3527(5th Ed. 1992). Therefore, any doubts as to whether a particular

3538claim for reimbursement in these proceedings represents an

3546activity integral or essential to the rehabilitation of the

3555subject contaminated sites should be resolved against

3562Petitioners.

35634. It is an established rule of administrative law in this

3574state that considerable deference should be accorded to an

3583agency's interpretation of its own rules which it is required to

3594enforce, and that such rule interpretations should not be

3603overturned unless clearly erroneous. See , e.g., Falk v. Beard ,

3612614 So.2d 1086, 1089 (Fla. 1993); State Contracting v. Dept. of

3623Transportation , 709 So 2d 607, 610 (Fla. 1st DCA 1998).

3633Furthermore, an agency's interpretation of its own administrative

3641rules does not have to be the only reasonable interpretation; it

3652is enough if the agency interpretation is a permissible one.

3662Suddath Van Lines, inc. v. Dept. of Environmental Protection, 668

3672So.2d 209,212 (Fla. 1st DCA 1996); Golfcrest Nursing Home v.

3683State, Aqencv for Health Care Administration, 662 So.2d 1330,1333

3693(Fla. 1st DCA 1995).

36975. Charles Williams, an Environmental Administrator in the

3705Department's Bureau of Petroleum Storage Systems, interpreted the

3713provisions of Rule 62-773, as amended in 1998, at the DOAH final

3725hearing. Mr. Williams testified that ECA must act in the

3735capacity of a general contractor responsible for the project

3744planning and the supervision of subcontractors and vendors while

3753the cleanup activities were being performed in order to be

3763entitled to the markups claimed in these proceedings. (Tr. Vol.

3773IV, pages 123-127) This rule interpretation is supported by the

3783plain language of current Rule 62 2 773.350(9)(e), as amended in

37941998. Mr. Williams was of the opinion that, under the

3804Department's rules, ECA was essentially acting in the role of a

" 3815funder arranger" rather than a "general contractor". (Tr. Vol.

3825IV, page 125) Mr. Williams also testified that it was Gurr/Omega,

3836not ECA, who acted in the role of general contractor in the 3

3849cleanup of the subject contaminated sites. (Tr. Vol. IV, page

3859127) The fact that Gurr/Omega, not ECA, was the "full service

3870contractor" ultimately responsible for employing and supervising

3877the subcontractors and vendors at the subject contaminated sites

3886is clearly evidenced in the ALJ's unchallenged Findings of Fact

389643-48.

3897Based on the above, the Department's Exception 2 is granted.

3907CONCLUSION

3908An agency has the principal responsibility of interpreting

3916statutes and rules within its regulatory jurisdiction and

3924expertise. Public Employees Relations Commission v. Dade County

3932Police Benevolent Association , 467 So.2d 987, 989 (Fla. 1985);

3941Florida Public Employee Council, 79 v. Daniels , 646 So.2d 813,

3951816 (Fla. 1st DCA 1994). The Department is the state agency

3962charged by the Legislature with the duty of enforcing the

3972provisions of § 376.3071, Florida Statutes, and of adopting rules

3982implementing this statutory section. Consequently, the

3988interpretation of the provisions of § 376.3071 and Rule 62-773

3998are the primary responsibility of the Department.

4005I conclude that the Department's statutory and rule

4013interpretations challenged in these cases are not "clearly

4021erroneous". To the contrary, these statutory and rule

4030interpretations viewed in light of the Environmental Trust

4038decision and the "strict construction" requirement are

4045permissible interpretations which should not be overturned. It

4053is therefore ORDERED:

4056A. The portion of the last sentence of Conclusion of Law

406789 concluding that Section 4 of Chapter 99-379 "may be applied

4078retroactively to control these cases" is rejected, and all of 4

4089Conclusions of Law 90, 92, and 93 of the RO are rejected.

4101B. As modified above, the RO is adopted and incorporated

4111herein by reference.

4114C. Petitioners' claims for reimbursements of ECA's 15%

4122markups, together with Petitioners' 15% markups thereon, as

4130specified on page 62 of the RO are DENIED.

4139D. The Department's claims for recovery from Petitioners

4147of interest overpayments made as specified on pages 62-63 of the

4158RO are GRANTED.

4161Any party to this proceeding has the right to seek judicial

4172review of the Final Order pursuant to Section 120.68, Florida

4182Statutes, by the filing of a Notice of Appeal pursuant to Rule

41949.110, Florida Rules of Appellate Procedure, with the clerk of

4204the Department in the Office of General Counsel, 3900

4213Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000;

4220and by filing a copy of the Notice of Appeal accompanied by the

4233applicable filing fees with the appropriate District Court of

4242Appeal. The Notice of Appeal must be filed within 30 days from

4254the date this Final Order is filed with the clerk of the

4266Department.

4267DONE AND ORDERED this 13th day of March, 2000, in

4277Tallahassee, Florida.

4279STATE OF FLORIDA DEPARTMENT

4283OF ENVIRONMENTAL PROTECTION

4286_________________________________

4287DAVID B. STRUMS, Secretary

4291Marjory Stoneman Douglas Building

42953900 Commonwealth Boulevard

4298Tallahassee, Florida 32399-3000

4301ENDNOTES

43021/ The "revised version" of Rule 62-773 construed by the court

4313in the Environmental Trust decision is the same version now found

4324in Rule 62-773, F.A.C., as amended effective August 11, 1998.

4334Thus, the revised version of Rule 62-773 at issue in the

4345Environmental Trust case is the same version of Rule 62 773 at

4357issue in these proceedings.

43612/ Rule 62-773.350(9)(e), as amended in 1998, reads as follows:

4371(e) No markup shall be applied by any entity, other than

4382an unrelated third party designated as the person responsible for

4392conducting site rehabilitation, that did not provide a necessary

4401and documented service that is integral to site rehabilitation by

4411actively managing and overseeing the activities of the

4419subcontractors and vendors while the site rehabilitation work was

4428being performed. Necessary services integral to site

4435rehabilitation include: negotiation of contracts with

4441subcontrators and vendors; development of specifications and

4448solicitation of quotes for equipment and supplies; scheduling and

4457coordination of subcontrator activities; and on-site supervision

4464of activities performed by subcontrators.

44693/ Mr. Williams further testified that the Department's review

4478of the reimbursement documentation provided by Petitioners

4485revealed that ECA did virtually nothing related to the site

4495cleanups, "other than a cover letter or invoice". (Tr. Vol. IV,

4507page 172)

45094/ These legal conclusions of the ALJ are rejected for the

4520reasons set forth in detail in the above rulings granting the

4531Department's Exceptions. I find that my substituted legal

4539conclusions are as reasonable or more reasonable than those legal

4549conclusions of the ALJ that were rejected in this Final Order.

4560CERTIFICATE OF SERVICE

4563I HEREBY CERTIFY that a copy of the foregoing Final Order

4574has been sent by United States Postal Service to:

4583Bradford C. Vassey, Esquire

4587Environmental Corporation of America

4591205 South Hoover Street, Suite 101

4597Tampa, FL 33609

4600Carter B. McCain, Esquire

4604MacFarlane, Ferguson & McMullen

4608400 North Tampa Street, Suite 2300

4614Tampa, FL 33601

4617Ann Cole, Clerk and

4621J. Lawrence Johnston, Administrative Law Judge

4627Division of Administrative Hearings

4631The DeSoto Building

46341230 Apalachee Parkway

4637Tallahassee, FL 32399-1550

4640and by hand delivery to:

4645J. A. Spejenkowski, Esquire

4649Department of Environmental Protection

46533900 Commonwealth Blvd., M.S. 35

4658Tallahassee, FL 32399-3000

4661this 14th day of March, 2000.

4667STATE OF FLORIDA DEPARTMENT

4671OF ENVIRONMENTAL PROTECTION

4674________________________________

4675TERRELL WILLIAMS

4677Assistant General Counsel

46803900 Commonwealth Blvd., M.S. 35

4685Tallahassee, FL 32399-3000

4688Telephone 850/488-9314

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PDF
Date
Proceedings
PDF:
Date: 03/15/2000
Proceedings: Agency Final Order
Date: 03/15/2000
Proceedings: Final Order filed.
Date: 12/27/1999
Proceedings: Petitioners and Environmental Corporation of America, Inc. Exceptions to Recommended Order filed.
Date: 12/16/1999
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held August 17-20, 1999.
Date: 10/05/1999
Proceedings: Order Denying Enlargement of Proposed Recommended Order sent out.
Date: 10/04/1999
Proceedings: (Respondent) Proposed Recommended Final Order filed.
Date: 09/30/1999
Proceedings: (B. Vassey) Amended Response to Motion to Exceed Limitations of Rule 28-106.215, Florida Administrative Code (filed via facsimile).
Date: 09/29/1999
Proceedings: Petitioner`s Response to Motion to Exceed Limitations of Rule 28-106.215, Florida Administrative Code (filed via facsimile).
Date: 09/27/1999
Proceedings: (Respondent) Motion to Exceed Limitations of Rule 28-106.215, Florida Administrative Code filed.
Date: 09/27/1999
Proceedings: Petitioner`s Recommended Final Order filed.
Date: 09/15/1999
Proceedings: August 17, 1999 (Day 1) Transcript ; August 18, 1999 (Day 2) ; August 19, 1999 (Day 3) ; filed.
Date: 09/07/1999
Proceedings: Petitioners` Response to Respondent`s Analysis of Chapter 99-379, C.S.H.B. No. 107 (filed via facsimile).
Date: 09/01/1999
Proceedings: 2 Boxes filed.
Date: 08/30/1999
Proceedings: Respondent`s Response to Petitioner`s Request for Official Recognition filed.
Date: 08/17/1999
Proceedings: CASE STATUS: Hearing Held.
Date: 08/12/1999
Proceedings: (Petitioner) Request for Official Recognition (filed via facsimile).
Date: 08/10/1999
Proceedings: (Petitioner) Amended Pre-Hearing Stipulation (filed via facsimile).
Date: 08/06/1999
Proceedings: (Petitioner) Response to Respondent`s Motion in Limine: Petitioner`s Proposed Hearing Exhibits and Testimony filed.
Date: 08/06/1999
Proceedings: Petitioner`s Response to Respondent`s Response to Petitioner`s Motion to Intervene and Add Environmental Corporation of America as a Party and in the Alternative Motion to Strike and Request for a Formal Hearing filed.
Date: 08/05/1999
Proceedings: Order on Motion to Intervene and Amend Petitions sent out. (Environmental Corporation of America is granted party status to the extent that leave is granted to ECA to Intervene and participate as a party to these proceedings)
Date: 08/02/1999
Proceedings: Respondent`s Pre-Trial Stipulation; Motion in Limine: Petitioners Proposed Hearing Exhibits and Testimony filed.
Date: 08/02/1999
Proceedings: Letter to J. Spejenkowski from B. Vassey Re: Prehearing Stipulation filed.
Date: 07/27/1999
Proceedings: Respondent`s Response to Petitioner`s "Motion to Intervene and Add Environmental Corporation of America as a Party" and in the Alternative Motion to Strike and Request for Formal Hearing filed.
Date: 07/26/1999
Proceedings: (Respondent) Notice of Intent to Pursue Attorney Fees and Costs filed.
Date: 07/22/1999
Proceedings: (B. Vassey) Response to Respondents Request for Admissions (Set 1) filed.
Date: 07/21/1999
Proceedings: (ECA) Motion to Intervene and to Amend Petitions to Add Environmental Corporation of America as a Party filed.
Date: 06/22/1999
Proceedings: (Respondent) Request for Admissions (Set 1); Clarification of Change in Agency Position Based on Actual Data filed.
Date: 06/07/1999
Proceedings: Respondent`s Withdrawal of Motion to Compel Production of Documents and Motion for Sanctions and Attorney Fees (filed via facsimile).
Date: 06/02/1999
Proceedings: (B. Vassey) Response to Motion to Compel Production of Documents and Motion for Sanctions and Attorney`s Fees filed.
Date: 06/01/1999
Proceedings: (B. Vassey) Response to Motion to Compel Production of Documents and Motion for Sanctions and Attorney`s Fees (filed via facsimile).
Date: 05/28/1999
Proceedings: (Respondent) Notice of Hearing (6/8/99; 10:00 a.m.) filed.
Date: 05/28/1999
Proceedings: Respondent`s Motion to Compel Production of Documents and Motion for Sanctions and Attorney Fees filed.
Date: 05/24/1999
Proceedings: Department of Environmental Protection`s Notice of Service of Answers to Petitioner`s Second Set of Interrogatories filed.
Date: 05/24/1999
Proceedings: Order Continuing Final Hearing sent out. (hearing set for August 17 through 20, 1999; 9:00am; Tampa) 8/17/99)
Date: 05/21/1999
Proceedings: (Petitioner) Amended Motion for Continuance (filed via facsimile).
Date: 05/20/1999
Proceedings: (Petitioner) Motion to Continue (filed via facsimile).
Date: 05/20/1999
Proceedings: Joint Stipulation of the Parties filed.
Date: 05/20/1999
Proceedings: (B. Vassey) Notice of Intent to Request Official Recognition of the Certain Statutes, Rule and Official Documents filed.
Date: 05/20/1999
Proceedings: (B. Vassey) List of Exhibits; List of Witnesses (filed via facsimile).
Date: 05/19/1999
Proceedings: (B. Vassey) List of Exhibits; List of Witnesses (filed via facsimile).
Date: 05/18/1999
Proceedings: Respondent`s Request for Official Recognition filed.
Date: 05/18/1999
Proceedings: Reconsideration of Order on Motion in Limine and Motion to Compel sent out.
Date: 05/18/1999
Proceedings: (B. Vassey) Motion to Withdraw Petition for Administrative Hearing (for case no. 98-4536) filed.
Date: 05/17/1999
Proceedings: (Respondent) Memorandum; Clarification of Agency`s Change of Position filed.
Date: 05/17/1999
Proceedings: (Respondent) Notice of Filing Transcript; Hearing on Pending Motions (Judge has original and copy of Transcript) filed.
Date: 05/17/1999
Proceedings: (B. Vassey) (3) Motion to Withdraw Petition for Administrative Hearing (for DOAH case nos. 98-2030, 98-4539, 98-4542) filed.
Date: 05/17/1999
Proceedings: (B. Vassey) Memorandum of Law motion to Clarify Hearing filed.
Date: 05/13/1999
Proceedings: Memorandum of Law Motion to Clarify Hearing (filed via facsimile).
Date: 05/11/1999
Proceedings: (Respondent) Notice of Change of Agency Position filed.
Date: 05/10/1999
Proceedings: Order on Motion in Limine and Motion to Compel sent out.
Date: 05/06/1999
Proceedings: (Respondent) Notice of Hearing (5/7/99; 10:00 a.m.) (filed via facsimile).
Date: 05/06/1999
Proceedings: Respondent`s Response to Petitioners` Motion in Limine filed.
Date: 05/05/1999
Proceedings: Respondent`s Response to Petitioners` Motion in Limine filed.
Date: 05/05/1999
Proceedings: (Petitioner) Motion in Limine (filed via facsimile).
Date: 04/29/1999
Proceedings: Department of Environmental Protection`s Notice of Filing Depositions Duces Tecum; Deposition of: Jack Ceccarelli ; Continued Deposition of Jack Ceccarelli (Judge has original and copy of Deposition) filed.
Date: 04/29/1999
Proceedings: Respondent`s Notice of Authority w/exhibits filed.
Date: 04/27/1999
Proceedings: Respondent`s Motion to Compel Production of Documents filed.
Date: 04/22/1999
Proceedings: (Petitioner) Notice and Certificate of Service of Interrogatories; Plaintiff`s Second Set of Interrogatories filed.
Date: 03/31/1999
Proceedings: (2) Department of Environmental Protection`s Amended Notice of Taking Depositions filed.
Date: 03/25/1999
Proceedings: Notice of Final Hearing (Dates and Location) sent out. (hearing set for May 25-28, 1999, starting at 9:00am on 5/25/99; Tampa)
Date: 03/23/1999
Proceedings: (2) Department of Environmental Protection`s Notice of Taking Depositions; Subpoena Duces Tecum (J. Spejenkowski) filed.
Date: 03/19/1999
Proceedings: (Respondent) Notice of Provisions Pursuant to Rule 1.351(b) Florida Rules of Civil Procedure filed.
Date: 02/26/1999
Proceedings: Order Continuing Final Hearing sent out. (3/9/99 hearing cancelled)
Date: 02/25/1999
Proceedings: Department of Environmental Protection`s Notice of Taking Depositions filed.
Date: 02/25/1999
Proceedings: (Petitioner) Response to Respondent`s Motion for Continuance of Final Hearing (filed via facsimile).
Date: 02/22/1999
Proceedings: (C. McCain) Notice of Appearance filed.
Date: 02/19/1999
Proceedings: Respondent`s Motion for Continuance of Final Hearing filed.
Date: 02/18/1999
Proceedings: (B. Vassey) Motion to Withdraw; Order (for Judge Signature) rec`d
Date: 02/10/1999
Proceedings: (B. Vassey) Motion for Protective Order rec`d
Date: 01/11/1999
Proceedings: (4) Subpoena ad Testificandum (J. Spejenkowski); (2) Subpoena Duces Tecum; (6) Return of Service filed.
Date: 01/11/1999
Proceedings: Response of Respondent, Department of Environmental Protection, to Petitioner`s Request for Production of Documents (Set 1) filed.
Date: 01/08/1999
Proceedings: Response of Respondent, Department of Environmental Protection, to Petitioner`s Request for Production of Documents (Set I) filed.
Date: 01/08/1999
Proceedings: Response of Respondent, Department of Environmental Protection, to Petitioner`s Request for Production of Documents (Set 1) filed.
Date: 01/08/1999
Proceedings: (6) Receipt of Service filed.
Date: 12/31/1998
Proceedings: Department of Environmental Protection`s Notice of Taking Depositions filed.
Date: 12/23/1998
Proceedings: Notice of Final Hearing sent out. (hearing set for March 9-12, 1999; 9:00am; Tampa)
Date: 12/23/1998
Proceedings: Prehearing Order sent out.
Date: 12/23/1998
Proceedings: Order Consolidating Cases sent out. (Consolidated cases are: 98-2021, 98-2030, 98-4535, 98-4536, 98-4537, 98-4538, 98-4539, 98-4540, 98-4541, 98-4542 & 98-4543)
Date: 12/04/1998
Proceedings: Department of Environmental Protection`s Notice of Service of Answers to Petitioner`s First Set of Interrogatories filed.
Date: 11/18/1998
Proceedings: (Respondent) Request for Production of Documents filed.
Date: 11/09/1998
Proceedings: Answers to Interrogatories to Petitioner (Set 1) filed.
Date: 10/29/1998
Proceedings: Plaintiff`s First Set of Interrogatories filed.
Date: 10/29/1998
Proceedings: (Petitioner) Notice and Certificate of Service of Interrogatories filed.
Date: 10/28/1998
Proceedings: (Petitioner) Motion for Venue in Tampa Florida filed.
Date: 10/20/1998
Proceedings: (Respondent) Notice and Certificate of Service of Interrogatories filed.
Date: 10/19/1998
Proceedings: Initial Order issued.
Date: 10/16/1998
Proceedings: Agency Action Letter filed.
Date: 10/13/1998
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record; First Amended Petition for Administrative Hearing Pursuant to Section 120.57, Florida Statutes filed.

Case Information

Judge:
J. LAWRENCE JOHNSTON
Date Filed:
10/13/1998
Date Assignment:
12/11/1998
Last Docket Entry:
03/15/2000
Location:
Tampa, Florida
District:
Middle
Agency:
ADOPTED IN PART OR MODIFIED
 

Related Florida Statute(s) (4):

Related Florida Rule(s) (3):