A Spectra Energy executive from Houston deigned to come to “the middle of nowhere” to tell us they’d use thinner pipe in low population areas such as Suwannee County. He testified at length about Spectra’s safety history, even specifically referring to records at the U.S. Pipeline & Hazardous Materials and Safety Administration (PHMSA), despite the judge’s repeated orders that safety was not to be discussed. When WWALS counsel asked if the door had been opened to discuss safety, the court answered no, and also declined to strike the Spectra executive’s testimony.
All this and more in the WWALS Proposed Recommended Order (PRO) filed yesterday, in PDF and below in web format. For comparison, see also the PROs from the respondents, Sabal Trail and DEP, which basically repeat their prima facie cases from the hearing, while arguing against standing for WWALS because nobody could recite the WWALS membership list from memory.
You can see the whole hearing for yourself in the videos by WWALS. Follow the same link for the transcripts and the exhibits.
Next: the Administrative Law Judge (ALJ) has until 6 December 2015 to issue his final order, which is an actual decision (not a recommendation to DEP), because this was a summary hearing. Then notice of any appeal must be filed within 30 days. If WWALS wins as our PRO says we should, it’s very likely Sabal Trail will appeal. If the respondents win, WWALS may appeal. For either type of appeal, our counsel are quite professional, which includes they do charge money, so keep those contributions coming in to the IndieGoGo campaign, or become a WWALS member, or you can send a check.
Plus, 6PM today 17 November 2015: a resolution against Sabal Trail is being considered by the Suwannee County Board of Commissioners.
At issue is whether Sabal Trail Transmission, LLC (“Sabal Trail”) provided the necessary reasonable assurances to the Florida Department of Environmental Protection (“DEP”) as required under section 373.414, Florida Statutes, and Chapter 18-21.004, Fla. Admin. Code, that their activity through karst terrain is “clearly in the public interest” and not in violation of the requirement “to afford the highest protection to Florida Outstanding Waters,” Chapter 62-302.700(1) Fla. Admin. Code, and, therefore, may be entitled to an Environmental Resource Permit (“ERP”) and Easement to use sovereign submerged lands (“Easement”) to build a 267 mile long, subterranean pipeline transporting 1.1 billion cubic feet per day of natural gas through Florida and stretching from the Georgia-Florida border in Hamilton County to Osceola County, including ancillary equipment such as the Hildreth compressor station in Suwannee County, through privately and publicly-owned lands and under at least two Florida Outstanding Waters, the Suwanee and Santa Fe Rivers.
The Pipeline is scheduled to pass through 12 counties in Florida. Of specific concern is its route through Hamilton and Suwannee counties and where it crosses under the Suwannee River and over the Falmouth Cathedral Cave system. Within these two counties Sabal Trail’s application demonstrates that the pipeline will pass through and very proximate to numerous sensitive karst features, including springs, underground caverns and direct conduits to the Floridan Aquifer, and Outstanding Florida Waters.
Operation of the Pipeline by Spectra Energy Corp.
Sabal Trail’s first witness, David Shammo, “vice-president of business development, southeast operations, for Spectra Energy Corp.” (I, 22), testified that “Spectra Energy is responsible for the execution of the project, which would include the design, construction, operation, and maintenance.” (I, 23) In cross examination by WWALS counsel, Mr. Shammo further stated that he (an employee of Spectra Energy) was responsible for administration of the Sabal Trail project (I, 43-44), and that Spectra Energy would build and operate the Sabal Trail pipeline (I, 50) using its own employees and contractors from firms including TRC, MVP, and Cardno ENTRIX (I, 53-54), that those employees and contractors of Spectra Energy would be responsible for governmental agency compliance and mitigation (I, 56), and that there are (I, 56) “formation agreements, joint venture agreements that would include service agreements that would cover the operation of the pipeline,” that would cover Spectra operating the Sabal Trail pipeline (I, 57) in “Perpetuity. As long as the pipeline is there.” This acknowledgement of operation of Sabal Trail in perpetuity by Spectra Energy and its contractors is relevant to the question of compliance history. Mr. Shammo also testified that the Hildreth compressor station in Suwannee County near Hildreth is part of the Sabal Trail project, although he was unfamiliar with the nearby town of O’Brien (I, 51).
DEP Project Manager, Lisa Prather, testified that DEP verified the information that was supplied to them by Sabal Trail (III, 306), but that information other than that supplied by Sabal Trail was not specifically sought (IV, 373). When asked by Petitioner’s counsel whether the 24-inch and 36-inch diameters of the pipe were inner or outer diameter, Ms. Prather said she did not know and even with the assistance of Respondents’ counsel Ms. Prather could not find that information in the application among the stacks of Respondents’ exhibits. (III, 307-311) Petitioner is concerned that this demonstrates a lack of basic knowledge on behalf of those reviewing the application of the details, and therefore impacts of the pipeline.
D. DEP’s Disregard for the Heightened Protection Requirements of Florida Outstanding Waters in their application Review Process.
Petitioner’s counsel read to Ms. Prather Rule 62-302.700, “Special Protection, Outstanding Florida Waters, Outstanding National Resource Waters,” paragraph 1, which states: “It shall be the Department policy to afford the highest protection to Outstanding Florida Waters and Outstanding National Resource Waters. No degradation of water quality, other than that allowed in subsections 62-4.242(2) and (3), F.A.C., is to be permitted in Outstanding Florida Waters and Outstanding National Resource Waters, respectively, notwithstanding any other Department rules that allow water quality lowering.” Petitioner’s counsel then asked (III, 348) Ms. Prather whether this application was treated differently from other applications because the pipeline would cross Outstanding Florida Waters. In response Ms. Prather testified that no impacts were considered on the Outstanding Florida Water, the Suwannee River, because the pipeline is to be drilled from upland to upland, under the river (IV 348, 349). Her testimony makes it clear that DEP did not take into consideration that there may be any impacts to the Suwannee River from the HDD drilling or any other aspects of the pipeline.
E. Admission by Sabal Tail of Adverse Impacts of Horizontal Directional Drilling (HDD) on Water Quality and the Failure of DEP to Adequately Consider those Impacts.
This potential drilling fluid loss applies to the specific rivers in question, according to Pages 24-26 of 31, Table 3. “Results of Geophysical and Geotechnical Testing for HDD Crossings”, rows 2-5, which says for each of four rivers in karst terrain, the Withlacoochee River just across the state line in Georgia, the Flint River, and in Florida the Suwannee River and the Santa Fe River: “Installation of pipeline at site feasible but construction difficulties expected with possible loss of drilling fluid returns during HDD operations & localized ground settlement near exit. Large voids not anticipated along HDD path but possible. Drilling fluid loss to smaller voids or zones of loose material such as those encountered in borings expected. Mitigation measures outlined in this document will increase likelihood of successful installation.” This drilling fluid loss is not just theoretical or hypothetical; that table states that it already occurred during test drillings under the Withlacoochee River and the Suwannee River, “Drilling fluid returns lost at 15, 18, 12, & 13 feet in SR-B-1 through SR-B-4, respectively. Voids not noted in the borings but small voids (<12 inches) likely,” and the Santa Fe River, “Drilling fluid returns lost from 8 to 25 feet. Borings encountered weight of hammer materials in overburden soils. Large voids not observed, however; small voids (<12 inches) likely.” Ms. Prather testified that she had read that Karst Mitigation Plan (III, 342), yet she testified that there would be no impacts to the Suwannee River (III, 348-349). Thus it does not appear that DEP did proper due diligence in evaluating the information supplied to it by Sabal Trail.
Ms. Prather also testified that she was not aware that the Sabal Trail pipeline proposes to cross other natural gas pipelines, nor whether boring will be required to pass the pipeline under or over these other pipelines, nor whether service to these other pipelines would be interrupted during the construction of Sabal Trail (III, 331, 332). It is evident from this testimony that complete information was not provided to DEP about Sabal Trail crossing other natural gas pipelines.
FGS Professional Geologist and WWALS expert witness Guy Means testified that he co-authored the memo dated March 27, 2014 (Petitioner’s exhibit 10) which raised many concerns about geologic and hydrogeologic impacts to the environment that Sabal Trail is proposed to traverse. (V, 529) In the memo, it states that (second page, last sentence) ". . .in some settings, the pipeline route could be altered to avoid suspected conduit and spring flow areas." Mr. Means testified that the Falmouth Dye test (Exhibit J of the Re-Amended Petition and Petitioner’s Exhibit 3, page 6) was done in proximity to the proposed pipeline route and the preliminary results revealed locations of water flow that were unknown prior to the test. He testified that this information about the dye test was included in an August 2014 memo that he co-authored and that memo was seen by his superiors who were making decisions about the approval of the permit (V, 540-544). Mr. Means also testified that FGS did not "verify" what Sabal Trail provided to them, but they used that information, as well as information they had "in-house" and other data bases they had access to, in order to form their opinion about the impacts of the pipeline that they then submitted to DEP (V, 546). Mr. Means testified that he did not personally visit the Sabal Trail pipeline site.
Both Ms. Prather and Mr. Means testified that DEP (and FGS) relied on information provided to them by Sabal Trail. Yet Sabal Trail witness David Shammo testified (I, 44) “I didn’t actively provide inputs into the application.” If neither Ms. Prather nor Mr. Means verified what Sabal Trail said in the application, how could DEP know if Sabal Trail provided reasonable assurances of public benefit?
Sabal Trail expert witness (I, 100) David Dickson, who identified himself as an employee of Cardno (I, 61), presumably worked under the direction of Mr. Shammo, could not answer a basic question of whether the 36-inch or 24-inch measurements of the proposed pipeline and its Hunters Creek offshoots were inside or outside diameter, nor what material the pipeline would be made out of (I, 103). Mr. Dickson also did not know how many crossings of proposed Sabal Trail pipeline with other existing pipelines there might be (I, 94-95). Mr. Dickson said he relied on subject matter experts, however, they were not the ones who wrote the application, nor who pulled together the subject matter material. Mr. Dickson testified (I, 64): “I was part of the ERP team that wrote the application and coordinated with the subject matter experts to pull together all the various appendices. Q. Did you actually prepare any parts of the application? A. Yes, sir.” If Mr. Dickson did not know the material or diameter of the pipe, or the number of crossings of existing pipe, how could Ms. Prather or Mr. Means know?
Additionally, when asked HDD borings under the Suwannee and Santa Fe Rivers, Sabal Trail witness Mr. Lambeth said “Yeah, I reviewed them myself and looked those over. There are no voids.” That contradicts Sabal Trail’s own Karst Mitigation Plan (Petitioner’s Exhibit 6), which shows in Table 3 that drilling fluid was lost at several depths under each of those rivers. This demonstrates a persistent pattern of misinformation within Sabal Trail.
What Mr. Jones didn’t mention, and what Tom Edwards tried to point out by moving the “close-up view” circle south, along the pipeline route after it crosses into Suwannee County (Sabal Trail Exhibit-tab 19, Karst notebook) is that the pipeline route runs within a mile of Lime Run Spring, a first magnitude spring. (Petitioner’s Exhibit 3, page 4) Lime Run Spring is the spring associated with the Falmouth Cathedral Cave system. (Petitioner’s Exhibit 9 and Sabal Trail Ex. 19) Mr. Jones testified that the closest Magnitude 1 spring to the proposed route was Madison Blue Spring at 1.7 miles (VI, 677). However, Lime Run Spring is nearly twice as close as Madison Blue Spring to the Pipeline.
He also testified that spring conduits get “thinned out” the farther away you get from the spring vent (VI, 658). However, as can be seen by Petitioner’s Exhibit 9 and Sabal Trail’s Exhibit-Tab 19, Karst notebook, the Falmouth Cathedral Cave system is many miles long and has been mapped by divers, so it is at least large enough to allow divers with scuba gear to swim along those many miles. Mr. Jones testified that he is aware that the proposed route crosses the Falmouth Cathedral System (VI, 659). He also testified to being aware of the Falmouth Dye test (VI, 668) which showed evidence of previously unmapped flow systems, as testified by Guy Means. (V, 541). Mr. Jones testified that sinkhole formation collapse along the pipeline route during the construction phase could block some flow in the groundwater flow system (VI, 674). At first he stated there is no water flow below the river (VI, 649), then later stated there is water in the aquifer below the river (VI, 686). Mr. Jones testified that he was the editor of the Karst Mitigation plan (Petitioner’s Exhibit 6) (VI, 667) which states there may be interception with spring conduits during HDD construction. He stated that the two main aspects addressed by the Karst Mitigation plan are sinkhole formation during construction along the pipeline and the HDD drilling under the rivers because these are the areas where it was thought there would be the most impacts (VI, 666). However, DEP doesn’t consider there to be any impacts to Outstanding Florida Waters, such as the Suwannee River, from the HDD drilling under the river.(VI, 348, 349).
WWALS expert witness Mr. Dennis Price, a Florida licensed professional geologist, testified that there is no way for DEP or Sabal Trail or anyone to be positive that there won’t be negative impacts on the karst geology from the pipeline. (IV, 390) Mr. Price testified that he visited the site of the proposed Suwannee River crossing as part of his evaluation. (IV, 391) He testified to fracture traces at the river edge which may be 300 feet to miles deep (IV, 442), and to numerous active sinkholes and depressions along the pipeline path on Suwannee River State Park property (Hamilton County) where the pipeline HDD drilling will occur. (IV, 436) (Petitioner’s Exhibits 7,8) He testified that his 40 years of experience as a geologist and well-driller in the area, in addition to his geological evaluation of the Suwannee River crossing site, led to his conclusion that the Suwannee River crossing is not a stable area geologically for the pipeline to be drilled. (IV, 447) The years of flooding with acidic, tannic river water has led to removal of much of the overlying clay and sands as well as the dissolution of the soft limestone, including under the river (IV, 399), which leaves this area vulnerable to multiple sinkholes and expected extreme difficulty with installation of a large diameter pipeline by HDD drilling. (IV, 406) He testified that there may be areas along the Suwannee River that are better than others for this type of pipeline installation, but the karst geology in the vicinity of the Suwannee River is persistent throughout this part of the state, therefore making it unsuitable (IV, 446).
Mr. Price also testified as a rebuttal witness (VI, 746-749) regarding the Falmouth Cathedral Cave system that would be crossed by the Sabal Trail Pipeline. He testified that from his experience visiting the Falmouth Spring many times and noting the depth of the limestone at the spring, the estimated depth of the cave system in the area that will be crossed by the pipeline is shallower than estimated by Sabal Trail geologist, Greg Jones. Mr. Price testified that removing 5-7 feet of soil has caused sinkhole formation in the past and may cause collapse of part of the Falmouth Cathedral Cave. He testified that the only way to stop continued collapse would be to apply significant grouting that would essentially block the cave, which is a spring conduit. In turn, significantly lower or stop the flow to that spring.
WWALS expert witness, Willard Randall, natural gas pipe welder, testified that corrosion of the pipe would be a tremendous obstacle for both the successful operation and maintenance of the pipeline. (V, 484) Leaks would be especially difficult to prevent, to detect and to repair given the subterranean nature of the pipe, its carbon-steel composition, and its transport of natural gas, which can stay undetected under the ground for extensive periods of time. (V, 480) Efforts to reduce corrosion only deter and delay corrosion. They do not completely prevent corrosion. For example, even during the installation of the pipe, the anticorrosive coating is often scratched, kick starting the corrosion process. (V, 497) Corrosion ultimately leads to temporary or permanent failure of a pipeline. He also testified that the actual areas of the inside of the pipe, where the welds are located, are not covered by any protective coating (V, 494).
K. Sabal Trail’s Failure to Use LiDAR Along the Entire Pipeline Route, Arbitrary Assignation of Risk Levels and Failure of the Karst Mitigation Plan to Sufficiently Address Impacts on Drinking Water.
WWALS expert witness in geomorphology Dr. Donald M. Thieme testified that the Sabal Trail Karst Mitigation Plan lacked specific information about how pollution from the pipeline into waterways will be detected and monitored (IV, 461). He testified that LiDAR data is essential in evaluating the geology along the pipeline route due to its detail in showing elevations. (IV, 455, 456) He testified that the relative risk of low, medium and high assigned to the areas by Sabal Trail was based on a small sample size as seen in the Karst Mitigation Plan, Petitioner’s Exhibit 6. (IV, 457) He testified that water in Florida is a treasure and a great source of potable water for future generations (IV, 459). He testified that there should have been more concern by Sabal Trail about groundwater and shallow aquifers than appeared in the Karst Mitigation Plan (IV, 460).
Thirteen WWALS members residing in Florida (eleven of whom reside in Hamilton or Suwannee County, two in Columbia County) testified that they would be substantially affected by the pipeline. A member on the membership committee, Deanna Mericle, testified that the 26 individuals named in Petitioner’s Exhibit 11, WWALS Members in Florida, are indeed current WWALS members. She also corroborated that 5 of the members who testified as affected members, but who were not on Petitioner’s Exhibit 11, are indeed current members of WWALS. She further testified that there are at least 8 other current members who live in Hamilton or Suwannee County who are not on Petitioner’s Exhibit 11. (VI, 621-625) In total, WWALS Watershed Coalition, Inc. has 85 memberships, with just over 100 individuals when family memberships are taken into consideration. Of those 100 individual members, 40 reside or own property in Hamilton or Suwannee County, and use the public lands and waterways in those counties through which the pipeline passes.
The president of WWALS, John S. Quarterman, testified (VI, 627-637) to the mission of WWALS, which is: “WWALS Watershed Coalition advocates for conservation and stewardship of the Withlacoochee, Willacoochee, Alapaha, Little, and Upper Suwannee River watersheds in south Georgia and north Florida through awareness, environmental monitoring, and citizen activities”. He testified to the numerous advocacy efforts of WWALS in Florida, to its frequent outings on local rivers including the Suwanee, to the effects of the pipeline on its members, to its status as a Waterkeeper® Alliance Affiliate which gives it the same duty throughout its territory of thentire watershed of the upper Suwannee River as a Riverkeeper, and its relevance to the NAACP precedent case regarding associational standing cited in the Re-Amended Petition and reiterated in the subsection below on WWALS Associational Standing.
On September 28, 2015, upon Sabal Trail’s motion for summary hearing, despite Petitioner’s objection, this Court ordered a Summary Hearing take place along with the application of expedited procedures. Upon Sabal Trail’s Motion in Limine and Motion to Strike, the Court ordered that the issues of safety and federal law, be struck from the pleadings and not be heard at the summary hearing. On September 29, 2015, this Court ordered discovery to be limited to those described in section 120.574(2)(b), unless otherwise authorized pursuant to section 120.574(2)(a)(2).
On October 7, 2015, this Court entered another order further limiting the proceedings to Florida law, Florida agencies and only to Florida members of WWALS. Petitioner believes this left a significant gap of members who may live in Georgia yet use the public lands and waterways of Florida. Finally, on October 15, 2015, this court precluded WWALS from presenting evidence of negative impacts to riparian rights, water quality and water flow and safety.
Numerous WWALS witnesses, including at least Joe Britt McClung, Chris Mericle, Dennis Price, and Guy Means (V, 556,566,571), testified either about conditions under the Suwannee River or about HDD drilling under that or other Florida rivers, or both, in many cases referring to exhibits about the same sovereign submerged lands that are the subject of the Easement, as did Sabal Trail witnesses Greg Jones, Alan Lambeth, and David Dickson. (I, 66,71,73-74) The Lisa Prather of DEP also so testified to same. (III, 344, etc.) Because of these statements by the Court, Sabal Trail’s counsel, and testimony and evidence regarding lands under the river and drilling through those lands, it is clear that the Easement was litigated in the hearing.
Sabal Trail rebuttal witness Alan Lambeth testified at length (VI, 714-746) about Spectra Energy’s compliance and safety history, stating “My direct role is to administer our procedures, make sure everything is being done the way we do things.” (VI, 715-716) Petitioner’s contend that Spectra and Sabal Trail’s procedures and compliance history thus seem directly relevant to those Outstanding Florida Waters, and whether the easement and ERP are in the public interest. Mr. Lambeth specifically used the word “safety” and referred to the Pipeline and Hazardous Materials Safety Administration (PHMSA) (VI, 731), to which Sabal Trail’s witness Marty Bass also referred (VI, 706). Mr. Lambeth referred (VI, 725) to a map of pipelines throughout the United States (Sabal Trail Exhibit 32), some of which are not even those of Spectra Energy. Petitioner’s Counsel asked for that testimony to be stricken (VI, 734-735) and asked: “I’m also concerned that the testimony we heard predominantly goes to safety, and it’s unclear to me the Court’s order on safety, whether or not this opens the door for us to discuss safety.” Yet the court declined to say the door was opened, and also declined to strike Mr. Lambeth’s testimony. (VI, 735-736) This discussion on safety also contradicts the court’s previous Order on October 2, 2015 restricting such discussion of safety matters.
Petitioner presented the expert testimony of Dennis Price (professional geologist and also a WWALS member who operates an eco-tourism business guiding canoe and camping trips on the Suwannee River), Dr. Donald M. Thieme (Geology Professor and WWALS member), and Willard Randall (30-year pipe welder on oil and gas pipelines and WWALS member who resides near the Suwannee River and uses the groundwater). Petitioners presented the lay testimony of WWALS members who will be substantially affected by the pipeline. Joe “Britt” McClung, Suwannee River scuba diver and WWALS member whose property is approximately 1200 feet from the proposed pipeline route; Tom Edwards, WWALS member whose Suwannee riverfront property will be the location where HDD drilling under the river will emerge and will have further pipeline installed; David Shields, WWALS member with a wife and 6 children whose home is near the proposed compressor station, and who owns an organic livestock farm; Dana Stevens, WWALS member whose property would have the pipeline installed on it as well as through a family memorial area where his wife’s grandmother’s ashes are spread (VI, 610); Merrillee Malwitz-Jipson, WWALS member who lives in Columbia County and who owns a canoe and kayak rental business near the Santa Fe River, also Policy Director of Our Santa Fe River and president of Save Our Suwannee; Chris Mericle, WWALS member and outdoorsman who frequently uses the Suwannee River for recreation; Debra Johnson, WWALS member who frequently uses the Suwannee River for outdoor recreation; Lori McCraney, WWALS member who lives on the Suwannee River and uses it frequently for outdoor recreation as has her family for generations; Deanna Mericle, WWALS member who frequently uses the Suwannee River for outdoor recreation; Donna Ellison, WWALS member on whose property the pipeline would be installed and who had a cow fall into a sinkhole (III, 379-380); Wayne Ellison, WWALS member on whose property the pipeline would be installed.
The hearing was in a total of VI volumes. The transcript was filed on November 6, 2015.
WWALS is a non-profit 501(c)(3) organization registered in Georgia and registered as a foreign corporation in Florida. WWALS has a mission of “WWALS Watershed Coalition advocates for conservation and stewardship of the Withlacoochee, Willacoochee, Alapaha, Little, and Upper Suwannee River watersheds in south Georgia and north Florida through awareness, environmental monitoring, and citizen activities.” (III, 260 and VI, 635) WWALS has more than 80 memberships; when family memberships are taken into account, WWALS has more than 100 members, of whom fifteen testified. Of these, 38 memberships and 50 members are in Florida, of whom thirteen testified. Of these, 40 members are in Hamilton or Suwannee Counties, of whom eleven testified, plus two from Columbia County. Forty Florida WWALS members are substantially affected, either by their use of the rivers, public lands or their ownership of land under which the pipeline would traverse. Not all Florida members were able to testify due to jobs or other obligations. Of those Florida WWALS members who did testify, 4 are landowners through whose land the pipeline would run, and 8 use the rivers, springs, or other natural features of north Florida, for boating, swimming, fishing, scuba diving, deadhead logging, or in other ways. The final Florida member testified that he and his family would be affected by the proposed compressor station near his home. See also the section infra on WWALS Standing.
DEP is the Florida state agency charged by statute with the responsibility of administration of lands held in trust by the Board of Trustees of the Internal Improvement Trust Fund (“the Trustees”), including all environmental resource permitting under Chapter 373, Florida Statutes, for activities uses of state-owned submerged sovereignty lands and protection of Florida’s Outstanding Waters. § 253.002(1), Fla. Stat.; Rule 18-21.002, Fla. Admin. Code; Rule 62-302.700, Fla. Admin. Code.
Sabal Trail Transmission, LLC is the applicant to the DEP for the Environmental Resource Permit and the Easement to place the Sabal Trail Pipeline through 12 counties in Florida and under at least two Outstanding Florida Waters.
WWALS has met the test of standing outlined by the Court: a substantial number of members substantially affected. WWALS qualifies for associational standing.
Four Florida WWALS members testified that the pipeline would run through their land: Tom Edwards (II, 119-172), Donna Ellison (IV, 378-382), Wayne Ellison (IV, 383-385), and Dana Stevens (VI, 607-613). Two more Florida WWALS members testified the pipeline or its equipment would run near their land: Joe Britt McClung (II, 175-184) residing within about 1200 feet of the proposed pipeline path, and Dave Kenneth Shields (III, 277-292) residing about 2,000 feet from the Hildreth compressor station, with his property line about 1200 feet from the property line of the compressor station site.
DEP’s counsel on cross-examination elicited testimony from Mr. Mericle that he believes that the proposed pipeline will substantially affect future boating trips on the Suwannee River (III, 271, lines 13-22). There was no objection to Mr. Mericle’s testimony that he believes future boating trips with WWALS members on the Suwannee River, as well as other activities, will be substantially affected if the proposed pipeline is implemented.
WWALS witness Joe Britt McClung testified he is a WWALS member (II, 180, lines 14-16), that he lives about 1,200 feet from the proposed pipeline path (II, 175, lines 12-15), that he is a professional scuba diver certified by DEP (II, 176, lines 3-25, II, 177, lines 1-6) and that he has dived downstream and upstream from Suwannee River State Park while deadhead logging, but was not permitted in the state park area due to antiquities and sturgeon from the Gulf of Mexico among other reasons (II, 183, lines 6-14). He testified to springs in the riverbed and thermoclines coming from them (II, 183, lines 15-25; II, 184, lines 1-12). He testified on redirect that the proposed pipeline crossing of the Suwannee River would be in the area in which he was prohibited from deadhead logging (II, 184, lines 18-25; II, 185, lines 1-2), and that there are caves in that whole area about every eighth of a mile (II, 185, lines 16-25; II, 186, lines 1-6). Mr. McClung’s scuba diving and deadhead logging would be affected by any contaminants or turbidity caused by the pipeline coming up out of any of those vents and drifting downstream.
Eight Florida WWALS members testified that they use the rivers, springs, or other natural features of north Florida, for boating, swimming, fishing, scuba diving, deadhead logging, or in other ways: Joe Britt McClung (II, 175-284), Merrillee Malwitz-Jipson (III, 240-252), Christopher Mericle (III, 254-274), Dennis James Price (III, 387-446), Dana Stevens (VI, 607-613), Lorelei A. McCraney (VI, 615), Debra Johnson (VI, 617-618), and Deanna Mericle (VI, 619-625). WWALS president John S. Quarterman (VI, 627-637) also mentioned invasive species monitoring and water quality testing conducted by WWALS members. WWALS Membership Committee member Deanna Mericle testified that more WWALS members who could not be present to testify are also so affected.
WWALS witness Tom Edwards (II, 119-172) testified that he is a WWALS member (II, 126, lines 12-13), that he owns between 900 and 1,000 acres in Suwannee County abutting Suwannee River State Park with between two and two and a half miles of frontage on the Suwannee River (II, 119, lines 13-18), and that the proposed pipeline would cross his land (II, 119-120; II, 126). The Court specifically recognized “He has established his substantial interest, which is the ownership of property affected by the pipeline.” (II, 130, lines 8-9). Mr. Edwards testified that he had tried to get DEP to take notice of substantial issues on his land where the pipeline would pass, without ever seeing the main evidence he had submitted appear in the public record (II, 121-122). Mr. Edwards testified that he offered to show Sabal Trail gopher tortoises on his property, that Sabal Trail never came to look, and that he eventually got admission in writing from Sabal Trail that the gopher tortoises were there (II, 124). Mr. Edwards testified that he had written the e-comment to FERC in Petitioner’s Exhibit 3 (II,126-127), saying: “My intent was to let the authorities, both the DEP and FERC, know that there were items that had been omitted by Sabal Trail in submitting their requests for permits that were omitting crucial information based upon their own words and their own documentation.” (II, 139, lines 2-7). Mr. Edwards testified at length about specific substantial effects on his property, about which ALJ said: “All right. That’s not opinion testimony. That’s eyewitness testimony, I mean, observations of a landowner of features on his own property.” (II, 148, lines 5-8). Clearly, WWALS member Tom Edwards is substantially affected both by the proposed pipeline path being on his property and by the failure of DEP to consider the information he as a landowner directly observed and conveyed to DEP.
In addition to Mr. Edwards, all the above-mentioned WWALS members through whose land the pipeline would run or go near, or who use the rivers or the natural environment for boating, fishing, swimming, scuba diving, or other activities, are substantially affected.
The purpose of WWALS is to protect the territory of the upper Suwannee River watershed as designated by the Waterkeeper® Alliance. The Mission of WWALS is (III, 260 and VI, 635) “WWALS Watershed Coalition advocates for conservation and stewardship of the Withlacoochee, Withlacoochee, Alapaha, Little, and upper Suwannee River watersheds in south Georgia and north Florida through awareness, environmental monitoring, and citizen activities.” The activities of its members were established in testimony at the hearing.
As the Court remarked (III, 275-276), “What the law is trying to protect is a person’s use of the resource, because if that resource is harmed, those uses will be diminished or eliminated.” That is what WWALS is trying to protect, and as the Waterkeeper® Affiliate for the upper Suwannee River watershed, WWALS is the designated nonprofit for such protection. If anyone has the ability to challenge DEP’s interpretation of the statutes and rules underlying its proposed ERP and Easement, it would be WWALS.
Petitioner’s Exhibit 10, memorandum by Frank Rupert and Guy Means, DEP, dated March 27, 2014, “Portions of the route may pass through shallow karst with extensively developed cavernous porosity. Shallow caves may be of sufficient size to preclude installing effective support for the pipe.” The Floridan Aquifer Vulnerability Assessment map on the last page of Petitioner’s Exhibit 10 (page 14) clearly shows that the proposed pipeline route traverses the area in Florida where the aquifer is the most vulnerable. Even though these memoranda are dated in 2014, the geology has not changed.
According to Sabal Trail’s Karst Mitigation plan, Petitioner’s Exhibit 6, Section 2.3.2, Fracture and Conduit size limitations for HDD, it states, “Open conduits can present risks of stuck and or lost tooling in the borehole during HDD operations. In karst sensitive areas, conduits in the limestone formations feed groundwater to springs in the region. Near the mouth of these springs, the conduits can be large enough to be explored by divers. Essentially, the springs are fed by irregular networks of smaller conduits that become increasingly smaller with distance from the spring. Because of the distance the HDD sites are from the nearest documented springs, as discussed in Resource Report 2, it is anticipated that any conduits encountered will be less than a few feet in size. Additionally, evidence of large open voids or conduits was not observed during site characterization activities.” However, Sabal Trail Geologist, Greg Jones testified that the Karst Characterization (Sabal Trail Exhibit 17) was done before any geotechnical testing was performed (VI, 651).
It has been shown, using Petitioner’s Exhibit 9 (and Sabal Trail’s route map, Exhibit tab 19-Karst notebook), depicting the Falmouth Cathedral Cave system as an example, that cave systems can be many miles long and large enough along their length to accommodate divers with scuba equipment. The Falmouth Cave system is over 6 miles long and has been mapped this distance by cave divers. Guy Means testified that the Falmouth Dye test showed flow systems between springs that were previously unknown (V, 542-543). Sabal Trail’s Exhibit-Tab-19, Karst notebook, shows a partially mapped cave system at Stevenson Spring and several other springs in the close up view that don’t have any mapped system. The same Sabal Trail Exhibit shows the Suwanacoochee Cave system that is many miles long and crosses under the Withlacoochee River at least twice. This whole area is fraught with springs and cave systems. Greg Jones testified that the river is the bottom of the flow system. It is common knowledge that the Suwannee River is not 100 feet deep. Yet, Mr. Jones testified that he believed that the Falmouth Cathedral Cave is 100 feet deep where it would be crossed by the pipeline. Therefore, there is flowing water below the level of the river.
Respondents did not contest Petitioner’s counsel Mr. Wohlsifer’s statement that “The Southern Natural Gas Company, Your Honor, has a pipeline that runs parallel largely to the proposed pipeline by Sabal Trail, and it’s — the proposal, it’s my understanding that those two pipelines cross each other at an uncommon rate, at a rate that, certainly, Southern Natural Gas is concerned about.” (I, 88). Yet DEP’s one witness Lisa Prather testified that she was not aware that the Sabal Trail pipeline proposes to cross other natural gas pipelines, nor whether boring will be required to pass the pipeline under or over these other pipelines, nor whether service to these other pipelines would be interrupted during the construction of Sabal Trail (III, 331, 332). Sabal Trail expert witness and Carno employee David Dickson said he did not know how many times Sabal Trail would cross existing pipelines (I, 94-95).
According to the Sabal Trail’s Best Drilling Practices, (Exhibit-tab 23, Karst notebook), Section 2.4 HDD contingency plans, it states that in the event the HDD crossing cannot be completed on the first attempt, there is room within the work space for multiple attempts to install the HDD. The contingency plans allows for three attempts with multiple tries on each attempt by redirecting up or down, or moving the drilling rig left or right. Therefore, as many as 9 or more holes could be drilled or partially drilled in the already sinkhole prone area. According to Dennis Price’s testimony, drilling difficulties are likely at the Suwannee crossing. Multiple attempts drilling through the already unstable geology will exacerbate the instability, and be more likely to lead to adverse impacts to the area, such as sinkhole formation near the proposed route and under the river.
If drilling fluid loss downhole affects nearby springs or rivers and complete drilling fluid loss to the formation cannot be prevented, all or a portion of pilot hole would be abandoned and a new pilot hole started at an alternate depth. Drilling will continue and the affected waterbody will be monitored in accordance with the Best Drilling Practices Plan for the Sabal Trail Project.
Drilling fluid losses are not just hypothetical, they have already happened, according to Karst Mitigation plan, Table 3, the geotechnical testing of the HDD crossing of the Suwannee River, drilling fluid returns were lost at 15, 18, 12, and 13 feet respectively in all four borings, indicating that voids were encountered. The borings are just a small sampling of what may be encountered over the whole HDD route. Table 3 even states that construction difficulties are expected. This provides further evidence of the instability of the area and the possibility of intersecting a spring conduit or large void during the 36 inch diameter pipeline installation.
Depending on subsurface conditions encountered, certain additives may also be introduced in the drilling fluid mixture. These additives include lost circulation materials (LCMs) and special polymers. Lost circulation materials may be used during inadvertent return events and/or in certain cases when drilling fluid circulation seems to be diminishing. Lost circulation materials may be used to attempt to seal conduits or to aid in reestablishment of drilling fluid returns to the entry and/or exit pits. Many types of LCMs are available for use during HDD operations that are inert and environmentally benign. . .The type of products used is typically left to the discretion of the HDD Superintendent and the Environmental Inspector.
Therefore, drilling fluid additives could contaminate soil or water, as could installation vehicle fuel or oil.
Sabal Trail’s emphasis is on installing the pipeline, according to Karst Mitigation Plan Table 3, which says “Mitigation measures outlined in this document will increase likelihood of successful installation.” It does not say that such measures will prevent damage to the geophysical substrate.
Mitigation does not mean prevention or fixing, according to Karst Mitigation Plan, Glossary, page 32 of 31 says “Mitigation – the action of reducing severity or seriousness of something. In the context of this plan, karst mitigation is a set of actions intended to reduce a probability and/or impacts associated with karst terrain.” Sabal Trail’s test drillings have already caused damage to the karst terrain, as noted in Karst Mitigation Plan Table 3, so more damage can be expected during construction.
It is WWALS’ contention that unmapped, large conduits that may be over 15 feet in diameter, could be present along the HDD path of the pipeline and could be intersected, possibly even under the river. Mr. McClung’s eyewitness testimony affirmed numerous spring vents along the floor of the Suwannee River. Sabal Trail’s Karst Mitigation plan, Section 2.3.3, sinkhole development from HDD operations states, “HDD operations could trigger or reactivate sinkhole activity…” Petitioner’s Exhibits 7 and 8 show numerous sinkholes and fracture traces along the proposed pipeline route at the Suwannee River HDD crossing site. Dennis Price, Professional Geologist, evaluated the crossing site in person and used LiDAR and information in Sabal Trail’s application to DEP to conclude that the geology at this crossing site is very unstable and that HDD operations could cause further instability, resulting in reactivation of existing sinkholes and formation of new sinkholes. He testified that the expected difficulty of drilling in this unstable area makes the proposed route unsuitable.
Intersection of the pipeline with underground large conduits is possible and could not only cause damage to a spring and endangered species that live in those conduits, such as the pallid cave crayfish (Sabal Trail Exhibit-Tab 53, Godley notebook), it could also compromise the integrity of the pipe or sinkhole formation under the river. Pipe welder Willard Randall testified that pipes leak (V, 480, etc.). If the gas leaked into a spring conduit housing the endangered pallid cave crayfish, it could further endanger this species. Mr. Randall also testified that it can take a long time to detect a leak and repair it (V, 480-499). By that time who knows how many cubic feet of gas will have leaked into the ground and water flow systems? Not Greg Jones, not DEP, no one. Dennis Price testified that there is no way to be sure that there won’t be negative impacts from the pipeline. WWALS contends that it is not worth the risk to find out.
Fracture traces were located by identifying large-scale parallel lines of sinkholes and river segments on aerial photographs. Fracture traces of significant scale that intersected the proposed pipeline alignment were identified in Florida (Hamilton, Madison, Suwannee, Gilchrist, Alachua and Levy Counties) and in the counties in Georgia where the Floridan aquifer was mostly unconfined (Terrell, Dougherty, Brooks, and Lowndes Counties).
What Sabal Trail considers “insignificant” for installation of the pipeline may be quite significant for residents or property owners or river users, such as the members of WWALS.
The pipeline right of way would change the surface hydrology through clearcutting, access roads, the pipeline cut, and HDD boreholes, all likely to contribute to erosion, especially at sloping areas such as river banks, or shoaling in streams including the Suwannee River (IV, 365-366). Such erosion and shoaling has already occurred near the proposed pipeline path, according to Petitioner’s expert witness in geology Dennis Price (IV, 398-399) as depicted on Petitioner’s Exhibit 7, page 4.
E. Erosion Could expose the Pipeline, Making it More Vulnerable to Damage.
The drilling fluid returns already lost in test drillings at the Suwannee and Santa Fe Rivers (see Karst Mitigation Plan Table 3 on pages 24-26) indicate cracks in the karst limestone or other substrate leading away from those test holes which have not been “remediated”. Rainwater, river water, contaminants from construction, or other materials could leak down those holes and through those cracks at any time, causing soil and water contamination.
As required by Code 49 of Federal Regulations, Part 192.613, route surveillance will be conducted during construction and operation of the facilities, along with training of surveillance personnel, to monitor the pipeline alignment for evidence of subsidence, surface cracks, or depressions which could indicate sinkhole formation.
Sabal Trail’s Best Drilling Practices only mentions concern about water wells within 2,000 feet of any HDD boring, but the existence of the Falmouth Cathedral Cave System demonstrates that underground connections could extend for many miles, which means that wells could be affected miles away from a source or initial conduit of contamination (see Petitioner’s Exhibit 9 and Sabal Trail’s route map, Exhibit tab 19-Karst notebook). Despite the contention of Sabal Trail’s witnesses that water only flows underground by their definition of down gradient that cavern system and the Falmouth Dye Test indicate that underground flows are not so predictable, and indeed can travel for miles.
WWALS witness Joe Britt McClung testified that there are underwater caves about every eighth of a mile in the area of the Suwannee River that Sabal Trail proposes to cross (II, 185, lines 16-25; II, 186, lines 1-6): “Oh, they’re everywhere. I mean, every eighth of a mile there’s something out there, there’s some kind of vent, some kind of crack, a little gusher coming out of the side of the bank or a big spring.” Obviously Mr. McClung’s scuba diving and deadhead logging would be affected by grouting or other contaminants from Sabal Trail drilling or pipeline breaks coming up out of any of those vents and drifting downstream.
In summation, river water, swamp water, rain water, or other liquids down such conduits could cause them to enlarge, connect with others, or collapse. River water or other tannic acid water leaking down cracks or the pipeline borehole to the pipe itself could cause corrosion of the pipe, potentially causing the pipe to leak. Leaks from the pipeline itself of highly pressurized natural gas could cause or exacerbate cracks in the karst limestone or other substrate, contributing to the risk of further cracks, connections, or sinkholes.
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding under Sections 120.569 and 120.57(1), Florida Statutes.
A DOAH hearing held pursuant to Sections 120.569 and 120.57(1), Florida Statutes, is a de novo proceeding. Florida Dep’t of Transp. v. J.W.C. Co., Inc., 396 So.2d 778, 786-87 (Fla. 1st DCA 1981).
As the permit applicant, SABAL TRAIL has the initial burden to prove by a preponderance of the evidence that it is entitled to the ERP, Id. at 787. Similarly for the Easement. To satisfy that burden, the SABAL TRAIL must provide “reasonable assurance” that: (1) state water quality standards will not be violated, and (2) “if such an activity significantly degrades or is within an Outstanding Florida Water that the proposed activity is clearly in the public interest.” § 373.414(1), Fla. Stat.
In determining whether an activity is clearly in the public interest, the DEP shall consider and balance the factors in § 373.414(1)(a), Fla. Stat.
Once the applicant has made a preliminary showing of entitlement, the petitioner challenging a permit under Chapter 373 bears the ultimate burden of persuasion of proving the facts alleged in the petition. J.W.C., 396 So.2d at 789. The applicable standard of proof is preponderance of the evidence. § 120.57(1)(j), Fla. Stat.
In evaluating the public interest, DEP must consider “[w]hether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling,” § 373.414(1)(a)(3), Fla. Stat., and “[w]hether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity.” § 373.414(1)(a)(4), Fla. Stat.
SABAL TRAIL’s pipeline would bore a three-foot wide or larger hole under the Suwannee River and would be perilously close to caverns such as the Falmouth Cathedral Cave system. (Lisa Prather testified that the mainline route is 36 inches in diameter throughout and Sabal Trail’s Exhibit 19 depicts the route over the Falmouth cave system.) Petitioners presented extensive evidence that due to the fragile geologic structure of the areas through which the pipeline passes, that it is highly likely to cause geologic collapse, resulting in a shift in water flow. Dennis Price, PG, testified that collapse of the roof of the Falmouth Cathedral cave system could occur due to removal of overlying clays and sands during the installation of the pipeline over the cave. He testified that if that were to occur, in order to stop continued collapse, the void would need to be plugged with concrete, which would block the conduit through which water passes through the cave system. Dale Jenkins, PG, testified that the Falmouth cave system connects to Lime Run Spring (VI, 601-602), and the two are shown as connecting in the Falmouth Dye Test press release (Petitioner’s Exhibit 3, page 6). Lime Run Spring is a magnitude 1 spring, according to Table 1, “First Magnitude Springs in the Suwannee River Basin” from “Springs of the Suwannee River Basin in Florida,” a publication of the Suwannee River Water Management District. (Petitioner’s Exhibit 3, page 18) Sabal Trail’s Karst Mitigation plan (Petitioner’s Exhibit 6) does not address a situation such as this, where a spring conduit would be plugged with concrete and would adversely affect the flow of water to such springs or to an Outstanding Florida Water, such as the Suwannee River.
The public interest test further requires consideration of “[w]hether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats,” § 373.414(1)(a)(2), Fla. Stat., and “[t]he current condition and relative value of functions being performed by areas affected by the proposed activity.” § 373.414(1)(a)(7), Fla. Stat.
SABAL TRAIL’s own exhibit 52 shows there are sensitive species present such as the gopher tortoise, Sherman’s fox squirrel, gopher frog, Florida pine snake, Southeastern American kestrel among others, that the pipeline is “likely to adversely affect.” According to Sabal Trail’s Exhibit 53, the pallid cave crayfish, also a designated species, has habitat that abuts the HDD crossing site of the Suwannee River. Nothing in Sabal Trail’s application to DEP explains the plan for protecting the pallid cave crayfish. WWALS witness Tom Edwards testified that he had identified gopher tortoises on his property and offered to show them to Sabal Trail, yet Sabal Trail never sent anyone to see them (II, 124).
DEP’s application coordinator, Lisa Prather, testified that attachments to an email Tom Edwards sent her were kept on a disk on her personal office computer and not made part of the publicly visible record until after the Notice of Intent to Issue (Tab 4 of Volume 12 of Joint Exhibit for Identification 10) was published (II, 225). Those attachments were not returned in response to an open records request by WWALS, even though Tom Edwards’ letters to Ms. Prather listing them as attachments were returned by DEP to WWALS. (see Petitioner’s Exhibit 4) Ms. Prather testified (II, 224, lines 24-25) “Well, the entire file, as far as our record in-house, is all public record.” If a file is not visible to the public, even through an open public records request, how is it a public record? Given that DEP did not hold any public hearings or other public meetings about the application (IV, 362, lines 21-23), how could the public know of Mr. Edwards’ concerns as submitted to DEP in that application process?
Petitioner presented expert testimony, by Willard Randall, that due to corrosion and the extensive width and length of the pipe that leaks will occur. Therefore, leaks will occur within feet of habitat essential for these species. A leak would be substantially likely to adversely affect said habitat, and therefore, the sensitive species that rely on the pristine condition of that habitat.
Additionally, the public interest test requires consideration of “[w]hether the activity will be of a temporary or permanent nature.” § 373.414(1)(a)(5), Fla. Stat.
SABAL TRAIL’s pipeline is intended to be permanent, according to the testimony of David Shammo, an employee of Sabal Trail’s operator, Spectra Energy (I, 57). Even if parts of the pipeline were to be removed, the impact of the geology and environment would be permanent (VI, 746-749). Therefore, it requires the highest scrutiny when considering the other six factors of the public interest test.
Finally, the public interest test requires consideration of “[t]he current condition and relative value of functions being performed by areas affected by the proposed activity.” § 373.414(1)(a)(7), Fla. Stat.
When taken together, the adverse effect on water flow, erosion, recreation, sensitive species, the Floridan Aquifer systems and the permanent nature of the pipeline demonstrate that the proposed pipeline is not clearly in the public interest as required by Florida Law.
SABAL TRAIL has failed to give reasonable assurance that there is a substantial likelihood that the proposed project will not result in water quality violations contrary to the requirements of section 373.414(1), Florida Statutes. To the contrary, petitioners presented evidence that that the proposed pipeline has a substantial likelihood of causing permanent and irreparable harm to the water quality of both subterranean and surface waterways.
SABAL TRAIL has additionally failed to provide reasonable assurance that it is substantially likely that the proposed pipeline will not permanently damage Florida’s geology, aquifer, waterways, lands, sensitive species and enjoyment of public lands and waterways. To the contrary, Petitioner presented evidence that the proposed pipeline is substantially likely to cause permanent and irreparable harm to water flow through erosion and water contamination and adverse effects on recreation, sensitive species and the use of both subterranean and surface waterways.
“Public interest” means demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action. In determining the public interest in a request for use, sale, lease, or transfer of interest in sovereignty lands or severance of materials from sovereignty lands, the board shall consider the ultimate project and purpose to be served by said use, sale, lease, or transfer of lands or materials.
As demostrated in supra, SABAL TRAIL has failed to provided resonable assurances that their Easement is not contary to the publicy interest.
Based on the foregoing Findings of Fact and Conclusions of Law Petitioner recommends that the Department issue a Final Order: (1) determining that Petitioner has standing to challenge the issuance of the Environmental Resource Permit to SABAL TRAIL, (2) determining that Petitioner has standing to challenge the issuance of the Easement to SABAL TRAIL, (3) denying SABAL TRAIL’s Environmental Resource Permit for failure to provide the reasonable assurances as required by Florida law demonstrating that the issuance of an environmental resource permit for their pipeline is clearly in the public interest, (4) denying SABAL TRAIL’s Easement to use sovereign submerged lands for failure to provide the reasonable assurances required by Florida law demonstrating that the issuance of an environmental resource permit for their pipeline is not contrary to the public interest.
Respectfully submitted November 16, 2015.
I HEREBY CERTIFY that a true and correct copy of the foregoing was served on all parties receiving electronic notification via eALJ Electronic Filing system as of November 16, 2015.


73 N.J. 562, 376 A.2d 888, reversed.
New Jersey statute (ch. 363) that prohibits the importation of most "solid or liquid waste which originated or was collected outside the territorial limits of the State . . ." held to violate the Commerce Clause of the United States Constitution. Pp. 621-629.
(a) All objects of interstate trade merit Commerce Clause protection, and none is excluded from the definition of "commerce" at the outset; hence, contrary to the suggestion of the court below, there can be no doubt that the banning of "valueless" out-of-state wastes by ch. 363 implicates constitutional protection. Bowman v. Chicago & Northwestern R. Co., 125 U.S. 465, distinguished. Pp. 621-623.
(b) The crucial inquiry here must be directed to determining whether ch. 363 is basically an economic protectionist measure, and thus virtually per se invalid, or a law directed at legitimate local concerns that has only incidental effects on interstate commerce. Pike v. Bruce Church, Inc., 397 U.S. 137, 142. Pp. 623-624.
(c) Since the evil of protectionism can reside in legislative means as well as legislative ends, it is immaterial whether the legislative purpose of ch. 363 is to protect New Jersey's environment or its economy, for, whatever the purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently. Both on its face and in its plain effect, ch. 363 violates this principle of nondiscrimination. A State may not attempt to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade, as ch. 363 seeks to do by imposing on out-of-state commercial interests the full burden of conserving New Jersey's remaining landfill space. Pp. 625-628.
(d) The New Jersey statute cannot be likened to a quarantine law which bans importation of articles of commerce because of their innate harmfulness, and not because of their origin. Though New Jersey concedes that out-of-state waste is no different from domestic waste, it has banned the former while leaving its landfill sites open to the latter, thus trying to saddle those outside the State with the entire burden of slowing the flow of wastes into New Jersey's remaining landfill sites. Pp. 628-629.
STEWART, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 629.
A New Jersey law prohibits the importation of most "solid or liquid waste which originated or was collected outside the territorial limits of the State. . . ." In this case, we are require to decide whether this statutory prohibition violates the Commerce Clause of the United States Constitution.
No person shall bring into this State any solid or liquid waste which originated or was collected outside the territorial limits of the State, except garbage to be fed to swine in the State of New Jersey, until the commissioner [of the State Department of Environmental Protection] shall determine that such action can be permitted without endangering the public health, safety and [p619] welfare and has promulgated regulations permitting and regulating the treatment and disposal of such waste in this State.
N.J.Stat.Ann. § 13I-10 (West Supp. 1978). [n1] As authorized by ch. 363, the Commissioner promulgated regulations permitting four categories of waste to enter the State. [n2] Apart from these narrow exceptions, however, New Jersey closed its borders to all waste from other States.
Immediately affected by these developments were the operators of private landfills in New Jersey and several cities in other States that had agreements with these operators for waste disposal. They brought suit against New Jersey and its Department of Environmental Protection in state court, attacking the statute and regulations on a number of state and federal grounds. In an oral opinion granting the plaintiffs' motion for summary judgment, the trial court declared the law unconstitutional because it discriminated against interstate commerce. The New Jersey Supreme Court consolidated this case with another reaching the same conclusion, [p620] Hackensack Meadowlands Development Comm'n v. Municipal Sanitary Landfill Auth., 127 N.J.Super. 160, 316 A.2d 711, and reversed, 68 N.J. 451, 348 A.2d 505. It found that ch. 363 advanced vital health and environmental objectives with no economic discrimination against, and with little burden upon, interstate commerce, and that the law was therefore permissible under the Commerce Clause of the Constitution. The court also found no congressional intent to preempt ch. 363 by enacting in 1965 the Solid Waste Disposal Act, 79 Stat. 997, 42 U.S.C. § 3251 et seq., as amended by the Resource Recovery Act of 1970, 84 Stat. 1227.
Before it addressed the merits of the appellants' claim, the New Jersey Supreme Court questioned whether the interstate movement of those wastes banned by ch. 363 is "commerce" at all within the meaning of the Commerce Clause. Any doubts on that score should be laid to rest at the outset.
The state court expressed the view that there may be two definitions of "commerce" for constitutional purposes. When relied on "to support some exertion of federal control or regulation," the Commerce Clause permits "a very sweeping concept" of commerce. 68 N.J. at 469, 348 A.2d at 514. But when relied on "to strike down or restrict state legislation," that Clause and the term "commerce" have a "much more confined . . . reach." Ibid.
which, on account of their existing condition, would bring in and spread disease, pestilence, and death, such as rags or other substances infected with the germs of yellow fever or the virus of small-pox, or cattle or meat or other provisions that are diseased or decayed, or otherwise, from their condition and quality, unfit for human use or consumption.
the mere transportation and disposal of valueless waste between states constitutes interstate commerce within the meaning of the constitutional provision.
68 N.J. at 468, 348 A.2d at 514.
We think the state court misread our cases, and thus erred in assuming that they require a two-tiered definition of commerce. In saying that innately harmful articles "are not legitimate subjects of trade and commerce," the Bowman Court was stating its conclusion, not the starting point of its reasoning. All objects of interstate trade merit Commerce Clause protection; none is excluded by definition at the outset. In Bowman and similar cases, the Court held simply that, because the articles' worth in interstate commerce was far outweighed by the dangers inhering in their very movement, States could prohibit their transportation across state lines. Hence, we reject the state court's suggestion that the banning of "valueless" out-of-state wastes by ch. 363 implicates no constitutional protection. Just as Congress has power to regulate the interstate movement of these wastes, States are [p623] not free from constitutional scrutiny when they restrict that movement. Cf. Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 802-814; Meat Drivers v. United States, 371 U.S. 94.
This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy, including the vital power of erecting customs barriers against foreign competition, has as its corollary that the states are not separable economic units. As the Court said in Baldwin v. Seelig, 294 U.S. , 527, "what is ultimate is the principle that one state, in its dealings with another, may not place itself in a position of economic isolation."
Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will, of course, depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.
See also Raymond Motor Transportation, Inc. v. Rice, supra at 441-442; Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 352-354; Great A&P Tea Co. v. Cottrell, 424 U.S. 366, 371-372.
The Legislature finds and determines that . . . the volume of solid and liquid waste continues to rapidly increase, that the treatment and disposal of these wastes continues to pose an even greater threat to the quality of the environment of New Jersey, that the available and appropriate land fill sites within the State are being diminished, that the environment continues to be threatened by the treatment and disposal of waste which originated or was collected outside the State, and that the public health, safety and welfare require that the treatment and disposal within this State of all wastes generated outside of the State be prohibited.
the extension of the lifespan of existing landfills, resulting from the exclusion of out-of-state waste, may be of crucial importance in preventing further virgin wetlands or other undeveloped lands from being devoted to landfill purposes.
68 N.J. at 460-465, 348 A.2d at 509-512. Based on these findings, the court concluded that ch. 363 was designed to protect not the State's economy, but its environment, and that its substantial benefits outweigh its "slight" burden on interstate commerce. Id. at 471-478, 348 A.2d at 515-519.
while outwardly cloaked "in the currently fashionable garb of environmental [p626] protection," . . . is actually no more than a legislative effort to suppress competition and stabilize the cost of solid waste disposal for New Jersey residents. . . .
They cite passages of legislative history suggesting that the problem addressed by ch. 363 is primarily financial: stemming the flow of out-of-state waste into certain landfill sites will extend their lives, thus delaying the day when New Jersey cities must transport their waste to more distant and expensive sites.
[n]o New Jersey commercial interests stand to gain advantage over competitors from outside the state as a result of the ban on dumping out-of-state waste.
[t]he complaint is not that New Jersey has forged an economic preference for its own commercial interests, but rather that it has denied a small group of its entrepreneurs an economic opportunity to traffic in waste in order to protect the health, safety and welfare of the citizenry at large.
This dispute about ultimate legislative purpose need not be resolved, because its resolution would not be relevant to the constitutional issue to be decided in this case. Contrary to the evident assumption of the state court and the parties, the evil of protectionism can reside in legislative means, as well as legislative ends. Thus, it does not matter whether the ultimate aim of ch. 363 is to reduce the waste disposal costs of New Jersey residents or to save remaining open lands from pollution, for we assume New Jersey has every right to protect its residents' pocketbooks, as well as their environment. And it may be assumed as well that New Jersey may pursue those ends by slowing the flow of all waste into the State's remaining landfills, even though interstate commerce may incidentally be affected. But whatever New Jersey's ultimate purpose, it may not be accomplished by discriminating against [p627] articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently. Both on its face and in its plain effect, ch. 363 violates this principle of nondiscrimination.
The Court has consistently found parochial legislation of this kind to be constitutionally invalid, whether the ultimate aim of the legislation was to assure a steady supply of milk by erecting barriers to allegedly ruinous outside competition, Baldwin v. G.A.F. Seelig, Inc., 294 U.S. at 522-524; or to create jobs by keeping industry within the State, Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1, 10; Johnson v. Haydel, 278 U.S. 16; Toomer v. Witsell, 334 U.S. at 403-404; or to preserve the State's financial resources from depletion by fencing out indigent immigrants, Edwards v. California, 314 U.S. 160, 173-174. In each of these cases, a presumably legitimate goal was sought to be achieved by the illegitimate means of isolating the State from the national economy.
The New Jersey law at issue in this case falls squarely within the area that the Commerce Clause puts off limits to state regulation. On its face, it imposes on out-of-state commercial interests the full burden of conserving the State's remaining landfill space. It is true that, in our previous cases, the scarce natural resource was itself the article of commerce, whereas here the scarce resource and the article of commerce are distinct. But that difference is without consequence. In both instances, the State has overtly moved to slow or freeze the flow of commerce for protectionist reasons. It does not matter that the State has shut the article of commerce inside the State in one case, and outside the State in the other. What is crucial is the attempt by one State to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade.
The appellees argue that not all laws which facially discriminate against out-of-state commerce are forbidden protectionist regulations. In particular, they point to quarantine laws, which this Court has repeatedly upheld even though they appear to single out interstate commerce for special treatment. See Baldwin v. G.A.F. Seelig, Inc., supra at 525; Bowman v. Chicago & Northwestern R. Co., 125 U.S. at 489. In the appellees' view, ch. 363 is analogous to such health-protective measures, since it reduces the exposure of New Jersey residents to the allegedly harmful effects of landfill sites.
It is true that certain quarantine laws have not been considered forbidden protectionist measures, even though they were directed against out-of-state commerce. See Asbell v. Kansas, 209 U.S. 251; Reid v. Colorado, 187 U.S. 137; Bowman v. Chicago & Northwestern R. Co., supra at 489. But those quarantine laws banned the importation of articles such as diseased livestock that required destruction as soon [p629] as possible because their very movement risked contagion and other evils. Those laws thus did not discriminate against interstate commerce as such, but simply prevented traffic in noxious articles, whatever their origin.
The New Jersey statute is not such a quarantine law. There has been no claim here that the very movement of waste into or through New Jersey endangers health, or that waste must be disposed of as soon and as close to its point of generation as possible. The harms caused by waste are said to arise after its disposal in landfill sites, and, at that point, as New Jersey concedes, there is no basis to distinguish out-of-state waste from domestic waste. If one is inherently harmful, so is the other. Yet New Jersey has banned the former, while leaving its landfill sites open to the latter. The New Jersey law blocks the importation of waste in an obvious effort to saddle those outside the State with the entire burden of slowing the flow of refuse into New Jersey's remaining landfill sites. That legislative effort is clearly impermissible under the Commerce Clause of the Constitution.
New Jersey enacted a Waste Control Act, N.J.Stat.Ann. § 13 et seq. (West Supp. 1978), in early 1973. This Act empowered the State Commissioner of Environmental Protection to promulgate rules banning the movement of solid waste into the State. Within a year, the state legislature enacted ch. 363, which reversed the presumption and blocked the importation of all categories of waste unless excepted by rules of the Commissioner.
4. Pesticides, hazardous waste, chemical waste, bulk liquid, bulk semiliquid, which is to be treated, processed or recovered in a solid waste disposal facility which is registered with the Department for such treatment, processing or recovery, other than by disposal on or in the lands of this State.
The decision of the New Jersey Supreme Court disposed of the appellants' preemption and Commerce Clause claims, but remanded the case to the trial court for further proceedings on the other claims. The appellants then dismissed with prejudice the other counts in their complaint so that there would be a final judgment from which they could appeal to this Court.
The surviving provisions of the 1965 Solid Waste Disposal Act, 79 Stat. 997, the Resource Discovery Act of 1970, 84 Stat. 1227, and the Resource Conservation and Recovery Act of 1976, 90 Stat. 2795, are now codified as the Solid Waste Disposal Act, found at 42 U.S.C. § 6901 et seq. (1976 ed.).
From our review of this federal legislation, we find no "clear and manifest purpose of Congress," Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, to preempt the entire field of interstate waste management or transportation, either by express statutory command, see Jones v. Rath Packing Co., 430 U.S. 519, 530-531, or by implicit legislative design, see City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 633. To the contrary, Congress expressly has provided that "the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies. . . ." 42 U.S.C. § 6901(a)(4) (1976 ed.). Similarly, ch. 363 is not preempted because of a square conflict with particular provisions of federal law or because of general incompatibility with basic federal objectives. See Ray v. Atlantic Richfield Co., 435 U.S. 151, 158; Jones v. Rath Packing Co., supra at 540-541. In short, we agree with the New Jersey Supreme Court that ch. 363 can be enforced consistently with the program goals and the respective federal-state roles intended by Congress when it enacted the federal legislation.
U.S.Const., Art. I, § 8, cl. 3.
We express no opinion about New Jersey's power, consistent with the Commerce Clause, to restrict to state residents access to state-owned resources, compare Douglas v. Seacoast Products, Inc., 431 U.S. 265, 283-287, with id. at 287-290 (REHNQUIST, J., concurring and dissenting); Toomer v. Witsell, 334 U.S. 385, 404; or New Jersey's power to spend state funds solely on behalf of state residents and businesses, compare Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 805-810; id. at 815 (STEVENS, J., concurring), with id. at 817 (BRENNAN, J., dissenting). Also compare South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U.S. 177, 187, with Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 783.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
virtually all sanitary landfills can be expected to produce leachate, a noxious and highly polluted liquid which is seldom visible and frequently pollutes . . . ground and surface waters.
The question presented in this case is whether New Jersey must also continue to receive and dispose of solid waste from neighboring States, even though these will inexorably increase the health problems discussed above. [n2] The Court answers this question in the affirmative. New Jersey must either prohibit all landfill operations, leaving itself to cast about for a presently nonexistent solution to the serious problem of disposing of the waste generated within its own borders, or it must accept waste from every portion of the United States, thereby multiplying the health and safety problems which would result if it dealt only with such wastes generated within the State. Because past precedents establish that the Commerce Clause does not present appellees with such a Hobson's choice, I dissent.
"which, on account of their existing condition, would bring in and spread disease, pestilence, and death, such as rags or other substances infected with the germs of yellow fever or the virus of small-pox, or cattle or meat or other provisions that are diseased or decayed, or otherwise, from their condition and quality, unfit for human use or consumption."
In my opinion, these cases are dispositive of the present one. Under them, New Jersey may require germ-infected rags or diseased meat to be disposed of as best as possible within the State, but at the same time prohibit the importation of such items for disposal at the facilities that are set up within New Jersey for disposal of such material generated within the State. The physical fact of life that New Jersey must somehow dispose of its own noxious items does not mean that it must serve as a depository for those of every other State. Similarly, New Jersey should be free under our past precedents to prohibit the importation of solid waste because of the health and safety problems that such waste poses to its citizens. The fact that New Jersey continues to, and indeed must continue to, dispose of its own solid waste does not mean that New Jersey may not prohibit the importation of even more solid waste into the State. I simply see no way to distinguish solid waste, on the record of this case, from germ-infected rags, diseased meat, and other noxious items.
banned the importation of articles such as diseased livestock that required destruction as soon as possible because their very movement risked contagion and other evils.
Ante at 628-629. According to the Court, the New Jersey law is distinguishable from these other laws, and invalid, because the concern of New Jersey is not with the movement of solid waste, but with the present inability to safely dispose of it once it reaches its destination. But I think it far from clear that the State's law has as limited a focus as the Court imputes to it: solid waste which is a health hazard when it reaches its destination may, in all likelihood, be an equally great health hazard in transit.
Even if the Court is correct in its characterization of New Jersey's concerns, I do not see why a State may ban the importation of items whose movement risks contagion, but [p633] cannot ban the importation of items which, although they may be transported into the State without undue hazard, will then simply pile up in an ever increasing danger to the public's health and safety. The Commerce Clause was not dawn with a view to having the validity of state laws turn on such pointless distinctions.
Second, the Court implies that the challenged laws must be invalidated because New Jersey has left its landfills open to domestic waste. But, as the Court notes, ante at 628, this Court has repeatedly upheld quarantine laws "even though they appear to single out interstate commerce for special treatment." The fact that New Jersey has left its landfill sites open for domestic waste does not, of course, mean that solid waste is not innately harmful. Nor does it mean that New Jersey prohibits importation of solid waste for reasons other than the health and safety of its population. New Jersey must, out of sheer necessity, treat and dispose of its solid waste in some fashion, just as it must treat New Jersey cattle suffering from hoof-and-mouth disease. It does not follow that New Jersey must, under the Commerce Clause, accept solid waste or diseased cattle from outside its borders, and thereby exacerbate its problems.
The Supreme Court of New Jersey expressly found that ch. 363 was passed "to preserve the health of New Jersey residents by keeping their exposure to solid waste and landfill areas to a minimum." 68 N.J. 451, 473, 348 A.2d 505, 516. The Court points to absolutely no evidence that would contradict this finding by the New Jersey Supreme Court. Because I find no basis for distinguishing the laws under challenge here from our past cases upholding state laws that prohibit the importation of items that could endanger the population of the State, I dissent.
1. Congress specifically recognized the substantial dangers to the environment and public health that are posed by current methods of disposing of solid waste in the Resource Conservation and Recovery Act of 1976, 90 Stat. 2795. As the Court recognizes, ante at 621 n. 4, the laws under challenge here "can be enforced consistently with the program goals and the respective federal-state roles intended by Congress when it enacted" this and other legislation, and are thus not preempted by any federal statutes.
2. Regulations of the New Jersey Department of Environmental Protection "except from the ban on out-of-state refuse those types of solid waste which may have a value for recycling or for use as fuel." App. 47. Thus, the ban under challenge would appear to be strictly limited to that waste which will be disposed of in sanitary landfills, and thereby pose health and safety dangers to the citizens of New Jersey.


This booklet bargains a finished advent to cooperative online game idea and a practice-oriented reference consultant to new versions and instruments for learning bilateral fuzzy family between numerous brokers or gamers. It introduces the reader to a number of fuzzy types, every one of that's first analyzed within the context of classical video games (crisp video games) and hence within the context of fuzzy video games.
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This Sim Dad is clicking on all cylinders with his wife, but he needs to spend more time with the kids. 30 Good Old Conversation The easiest way to cultivate a new friendship is to talk. ). Adults and kids have favorite topics within their peer groups. These topics are randomly assigned by the game during the Sim creation process. Additionally, kids and adults have special cross-generational topics that are only used with each other. Active topics are displayed in thought balloons during the game, as shown in figure 3-2.
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A bankruptcy problem and an information trading problem: Applications to k-convex games by Driessen T.


HON. PAUL L. MALONEY JUDGE.
This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff's claim for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act.
Section 405(g) limits the Court to a review of the administrative record, and provides that if the Commissioner's decision is supported by substantial evidence, it shall be conclusive. Pursuant to 28 U.S.C. § 636(b)(1)(B), authorizing United States Magistrate Judges to submit proposed findings of fact and recommendations for disposition of social security appeals, the undersigned recommends that the Commissioner's decision be affirmed.
The Court's jurisdiction is confined to a review of the Commissioner's decision and of the record made in the administrative hearing process. See Willbanks v. Sec'y of Health and Human Services, 847 F.2d 301, 303 (6th Cir. 1988). The scope of judicial review in a social security case is limited to determining whether the Commissioner applied the proper legal standards in making her decision and whether there exists in the record substantial evidence supporting that decision. See Brainard v. Sec'y of Health and Human Services, 889 F.2d 679, 681 (6th Cir. 1989).
The Court may not conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who is charged with finding the facts relevant to an application for disability benefits, and her findings are conclusive provided they are supported by substantial evidence. See42 U.S.C. § 405(g). Substantial evidence is more than a scintilla, but less than a preponderance. See Cohen v. Sec'y of Dep't of Health and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993). In determining the substantiality of the evidence, the Court must consider the evidence on the record as a whole and take into account whatever in the record fairly detracts from its weight. See Richardson v. Sec'y of Health and Human Services, 735 F.2d 962, 963 (6th Cir. 1984).
As has been widely recognized, the substantial evidence standard presupposes the existence of a zone within which the decision maker can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker considerable latitude, and indicates that a decision supported by substantial evidence will not be reversed simply because the evidence would have supported a contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at 545.
Plaintiff was 47 years of age on her alleged disability date. (PageID.69). She successfully completed high school and worked previously as a housekeeper and security officer. (PageID.55). Plaintiff applied for benefits on June 17, 2013, alleging that she had been disabled since May 5, 2013, due to cervical dystonia, degenerative disc disease, arthritis, nerve damage, fibromyalgia, agoraphobia, and depression. (PageID.69-84, 364).
Plaintiff's applications were denied, after which time she requested a hearing before an Administrative Law Judge (ALJ). (PageID.104-21, 226-69). On September 2, 2015, Plaintiff appeared before ALJ Bryce Baird with testimony being offered by Plaintiff and a vocational expert. (PageID.172-225). In a written decision dated December 14, 2015, the ALJ denied Plaintiff's claim. (PageID.45-57). The Appeals Council declined to review the ALJ's determination, rendering it the Commissioner's final decision in the matter. (PageID.35-39). Plaintiff subsequently initiated this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the ALJ's decision.
The social security regulations articulate a five-step sequential process for evaluating disability. See 20 C.F.R. '' 404.1520(a-f), 416.920(a-f). If the Commissioner can make a dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. '' 404.1520(a), 416.920(a). The regulations also provide that if a claimant suffers from a nonexertional impairment as well as an exertional impairment, both are considered in determining her residual functional capacity. See 20 C.F.R. '' 404.1545, 416.945.
The burden of establishing the right to benefits rests squarely on Plaintiff's shoulders, and she can satisfy her burden by demonstrating that her impairments are so severe that she is unable to perform her previous work, and cannot, considering her age, education, and work experience, perform any other substantial gainful employment existing in significant numbers in the national economy. See 42 U.S.C. § 423(d)(2)(A); Cohen, 964 F.2d at 528. While the burden of proof shifts to the Commissioner at step five of the sequential evaluation process, Plaintiff bears the burden of proof through step four of the procedure, the point at which her residual functioning capacity (RFC) is determined. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997) (ALJ determines RFC at step four, at which point claimant bears the burden of proof).
The ALJ determined that Plaintiff suffered from: (1) fibromyalgia; (2) cervical dystonia; (3) degenerative disc disease; (4) anxiety disorder; and (5) personality and posttraumatic stress disorder, severe impairments that whether considered alone or in combination with other impairments, failed to satisfy the requirements of any impairment identified in the Listing of Impairments detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1. (PageID.47-50).
With respect to Plaintiffs residual functional capacity, the ALJ determined that Plaintiff retained the capacity to perform light work subject to the following limitations: (1) she can occasionally lift/carry 20 pounds and frequently lift/carry 10 pounds; (2) during an 8-hour workday, she can sit for six hours and stand/walk for two hours; (3) she requires the option to alternate to standing from sitting for five minutes after every 30 minutes of sitting; (4) she can never climb ladders, ropes, or scaffolds and can only occasionally climb ramps and stairs; (5) she can occasionally balance and stoop, but can never kneel, crouch, or crawl; (6) she is limited to simple, routine tasks; and (7) she can have occasional interaction with the public and co-workers. (PageID.50).
The ALJ found that Plaintiff was unable to perform her past relevant work at which point the burden of proof shifted to the Commissioner to establish by substantial evidence that a significant number of jobs exist in the national economy which Plaintiff could perform, her limitations notwithstanding. See Richardson, 735 F.2d at 964. While the ALJ is not required to question a vocational expert on this issue, Aa finding supported by substantial evidence that a claimant has the vocational qualifications to perform specific jobs" is needed to meet the burden. O Banner v. Secy of Health and Human Services, 587 F.2d 321, 323 (6th Cir. 1978) (emphasis added). This standard requires more than mere intuition or conjecture by the ALJ that the claimant can perform specific jobs in the national economy. See Richardson, 735 F.2d at 964. Accordingly, ALJs routinely question vocational experts in an attempt to determine whether there exist a significant number of jobs which a particular claimant can perform, her limitations notwithstanding. Such was the case here, as the ALJ questioned a vocational expert.