Florida Dept. of Transp. v. J.W.C. Co., Inc., OO-501

• Decision Date: 27 March 1981
• Docket Number: No. OO-501,OO-501
• Parties: FLORIDA DEPARTMENT OF TRANSPORTATION, Appellant, v. J. W. C. COMPANY, INC., and Department of Environmental Regulation, Appellees.
• Court: Florida District Court of Appeals

Page 778

396 So.2d 778

FLORIDA DEPARTMENT OF TRANSPORTATION, Appellant, v. J. W. C. COMPANY, INC., and Department of Environmental Regulation, Appellees.

No. OO-501.

District Court of Appeal of Florida, First District.

March 27, 1981.

James W. Anderson, Tallahassee, for appellant.

Kenneth Oertel of Oertel & Laramore, Alfred W. Clark, Tallahassee, Adrian Bacon, St. Petersburg, for appellees.

Edward de la Parte, Jr. of de la Parte & Butler, Tampa, John T. Allen, Jr., St. Petersburg, for amicus curiae, Agrico Chemical Co.

William L. Earl and Paul H. Amundsen of Peoples, Earl, Smith, Moore & Blank, P. A., Miami, for amicus curiae, Freeport Sulphur Co.

LARRY G. SMITH, Judge.

The Department of Transportation (DOT) appeals an order entered by the State Department of Environmental Regulation (DER) denying DOT's application for a permit under the environmental laws, Chapter 403, Florida Statutes. DOT relies for reversal upon its claims: First, that DER erred in accepting the order of the hearing officer ¹ recommending denial of the permit after a formal Section 120.57(1) hearing, ² without either granting DOT's request to present additional evidence in support of its application directly to the Secretary of DER, or in the alternative remanding the case to the hearing officer for the purpose of receiving additional evidence; and secondly, that the proceedings before the hearing officer were not conducted in accordance with the essential requirements of law, because the hearing officer improperly placed the burden of proof upon DOT, rather than upon its opponents, appellees J.W.C. Company, Inc., and the other property owners who were objecting to the issuance of the permit sought by DOT.

Our consideration of the briefs of the parties and briefs of amici curiae ³, and our examination of the record lead us to conclude that reversible error has not been demonstrated in this appeal. We affirm.

As an incident to the proposed widening of Gulf Boulevard, Treasure Island, Pinellas County, DOT applied to DER for a permit to construct a complex source of air pollution, asserting in its application that pollutants in the form of automobile exhaust fumes along the proposed roadway would not exceed permissible standards adopted by DER ⁴. DER's district office determined that "reasonable assurances" had been provided that the road widening project would not cause pollution in contravention of DER's standards ⁵, and it then issued its "letter of intent" ⁶, to issue the permit. Appellee J.W.C. Company, Inc. and other property owners filed a petition complaining, among other things, that the proposed widening would cause air pollution to a degree prohibited by Florida's law and regulations, and requested a "public" hearing ⁷. The hearing officer to whom the proceeding was referred by DER held a hearing, received evidence from DOT and the objecting property owners, and entered his order recommending that issuance of the permit be denied.

In its application and in its presentation before the hearing officer, DOT sought to establish that the proposed highway improvements would not cause air pollution exceeding acceptable limits. To do this DOT used what is technically known as "computer modeling techniques," utilizing a computer model known as "Caline II." Traffic data was gathered by DOT to determine the future increase in traffic, and this data was processed through a computer program known as "Mobile I," to obtain predicted emissions of automobile pollutants. The data obtained from the Mobile I program was then fed into the Caline II model, along with data with respect to the "worst case conditions" at the point along the roadway where the greatest concentrations of pollutants would be likely to occur. Based on the data utilized by DOT, including its assumptions concerning the "worst case conditions," the computer program produced results indicating highest concentrations of carbon monoxide ⁸ well within DER's standards. No evidence other than the computer model was presented by DOT.

Notwithstanding DOT's evidence based on the computer model, the hearing officer found that DOT had failed to provide reasonable assurances that the proposed modifications of Gulf Boulevard would not result in pollution in violation of DER's standards. The hearing officer pointed out in his order certain factors indicating that DOT had used "erroneous or insufficient data" in conjunction with the computer modeling. He emphasized particularly DOT's erroneous assumption of an "average speed" of 30 miles per hour for vehicles traveling through the busiest intersection Gulf Boulevard and Treasure Island Causeway. He found that this assumed speed was not based on evidence from which any firm conclusion could be reached. He observed that the speed limit was 35 miles per hour at that intersection, but that there was also a stop light which would drastically reduce the average speed of vehicles traveling through the intersection. He also found that DOT's assumption of a 2 mile per hour wind speed for its "worst case conditions" could result in distorted data, and that a wind direction of 22 degrees from parallel was chosen for no apparently logical reason. Parallel winds, the hearing officer found, are generally thought to be the worst wind conditions for producing high carbon monoxide concentrations; but computer model results generally become distorted if parallel winds are assumed. Further, the "Caline II" program assumes the roadway is located on a grassy plain, a description which did not fit this particular locale; and there was a sharp conflict in the testimony on the extent to which developments on Gulf Boulevard would affect the result of the Caline II data. The hearing officer also questioned as "not necessarily valid" the assumption by DER personnel who considered the application that the modifications at the busy intersection would cause traffic to move at a faster rate than it does presently, thereby decreasing pollution in that area. Neither DER nor DOT presented evidence on whether the proposed modifications themselves would cause increased usage of the roadway, thus increasing emissions and pollution concentrations.

Based on his findings briefly summarized above, the hearing officer concluded that the data placed into the computer program was "not sufficient to assure any reasonable prediction" concerning pollutant concentrations. There was, he found, a "substantial possibility" that projected concentrations would exceed acceptable limits if proper data were utilized. Furthermore, because of the erroneous or insufficient data used by DOT in connection with carbon monoxide, predictions respecting concentrations of other automobile related pollutants could not be made.

Upon receipt of the hearing officer's recommended order DOT filed exceptions to the order and also filed a "Motion To Consider New Information," in which it requested permission to submit directly to the secretary of DER "new information" consisting of a graph and the affidavit of Dr. Gordon Morgan, one of the expert witnesses used in the administrative hearing. The graph and the affidavit purported to show that, based on recalculations using lower "average speeds," even as low as 15 miles per hour (half of the average speed previously assumed by DOT), the resulting pollutant predictions were well within acceptable standards. The motion for permission to introduce the graph and the additional expert evidence was denied.

DER entered its Final Order, adopting the hearing officer's recommended order, denying the permit, denying DOT's request to consider new information, and (by implication) denying DOT's alternative request that the proceeding be remanded to the hearing officer for the purpose of considering the "new information" tendered by DOT.

Appellant DOT's first point, as indicated at the beginning of our opinion, is that DER's rejection of the "new information" tendered by it was error, in that such information had significant bearing on the issues dealt with by the hearing officer. DOT argues that rejection of this additional evidence constituted a violation of the Administrative Procedures Act, and a denial of fundamental fairness. Under DOT's theory of the case, the hearing officer simply made a "preliminary determination" that DOT had failed to provide "reasonable assurances" that DER's air quality standards would not be violated. DOT further reasons that because the administrative process is an "on-going inquiry," the secretary of DER, after receipt of the hearing officer's recommended order, is compelled to consider all information relevant to the issues even evidence not presented at the hearing before entering a final order.

DOT's argument relies to a great extent upon what we believe is a misreading of this court's opinion in Couch Construction Company v. Department of Transportation, 361 So.2d 172 (Fla. 1st DCA 1978). DOT urges that this court's remand to the agency in Couch "implicitly required the secretary either to discuss in his final order new information not previously addressed by the hearing, or himself to remand the case to DOAH for its entry of a new recommended order discussing the abolition of the pre-bid conference." We do not read in the Couch opinion anything to support the rule or principle DOT draws from it. What the majority opinion in Couch did hold is that both the order of the hearing officer and the order of the agency were deficient in that they failed to address the earlier decision by the agency to abolish mandatory attendance by bidders at a pre-bid conference. This was a factor that could have had significant bearing on the validity of the agency's decision to reject Couch's bid because he had failed to attend just such a conference.

The fact that the agency in Couch had abolished mandatory attendance was not in any respect "new information," as DOT assumes. This is evident from a reading of the hearing officer's order in...