STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUND TRANSPORTATION PLANNING ) COALITION & THE FLORIDA LUNG ) ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1612RX

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

FINAL ORDER

This cause came on for final hearing on the Petition For Administrative Determination of a Rule filed by Petitioners, The Sound Transportation Planning Coalition and The Florida Lung Association. Petitioners challenge the repeal by Respondent, Department of Environmental Regulation, of Rule 17-2.04(8), Florida Administrative Code.

APPEARANCES

For Petitioner Stephen Lindsey Gorman, Esquire Sound Transportation Post Office Box 10064

Planning Commission: Tallahassee, Florida 32302

For Petitioner David Gluckman, Esquire The Florida Lung 3348 Mahan Drive Association: Tallahassee, Florida 32303

For Respondent DER: Terry Cole, Esquire

Department of Enviromental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

Having considered those matters of record and argument of counsel the Hearing Officer finds the following:

FINDINGS OF FACT

1. The Sound Transportation Planning Coalition, Inc., and The Florida Lung Association have standing to bring this action.

   
   

2. This action is brought pursuant to Section 120.56, Florida Statutes, and challenges the validity of the repeal of Rule 17-2.04(8), Florida Administrative Code.

3. On or about July 8, 1977, the Department of Environmental Regulation published a notice of rule making for adoption of proposed amendments to Rule 17-2.04(8), Florida Administrative Code, in the Florida Administrative Weekly. This Publication included notice of a hearing to be held by the Environmental Regulation Commission for the consideration of the adoption of proposed amendments to the subject rule. At least thirty (30) days notice prior to the foregoing hearing by the Environmental Regulation Commission was also given in newspapers of general circulation around the state.

   
   

4. For the purposes of this proceeding the parties have stipulated that the Department of Environmental Regulation complied with the provisions of Section 120.54(1), Florida Statutes, regarding notice of hearing on the proposed rule which was an amendment to an existing rule.

   
   

5. The Environmental Regulation Commission took action on August 11, 1977, with regard to the matters pertinent to this Proceeding and no notice other than that referred to above in paragraph 3 pertinent to the action taken by the Environmental Regulation Commission was given by the Department of Environmental Regulation.

   
   

6. The rule making action proposed by the Department of Environmental Regulation was the amendment of Rule 17-2.04(8), Florida Administrative Code, which amendment, according to the Department's notice, was designed to make the indirect source permit system workable and yet maintain ambient air quality standards for carbon monoxide. The amendment was expected to reduce the number of permit reviews required and to limit the evaluation for each indirect source to one pollutant, carbon monoxide.

   
   

7. The action taken by the Environmental Regulation Commission on behalf of the Department of Environmental Regulation was the complete repeal of Rule 17-2.04(8), Florida Administrative Code. After having considered the proposed amendments to the subject rule it was apparently the decision of the

   Environmental Regulation Commission that the better action would be the complete repeal of the rule and that is the action they took.

   
   

8. The Department of Environmental Regulation prepared an Economic Impact Statement directed to the impact of the proposed amendments to the subject rule. The parties have stipulated that for the purpose of this proceeding only, the Department of Environmental Regulation complied with the provisions of Section 120.54(2)(a), Florida Statutes, with regard to the proposed amendments to the subject rule and the said Economic Impact Statement would have been satisfactory for the adoption of the proposed amendments had they been adopted.

   
   

9. No Economic Impact Statement directed to the repeal of the subject rule was prepared.

   
   

10. No individual in the Department of Environmental Regulation was instructed to prepare an Economic Impact Statement for the repeal of Rule 17- 2.04(8), Florida Administrative Code.

    
    

11. The Department at no time prior to the hearing held by the Environmental Regulation Commission on the proposed amendments to the subject rule, gave specific notice to any individuals that it intended to repeal Rule 17-2.04(8), Florida Administrative Code.

    CONCLUSIONS OF LAW

    
    

12. Subsection 120.52(14), Florida Statutes, states that the term rule" ".

    . . includes the amendment or repeal of a rule." Rule 17-2.04(8), Florida Administrative Code, is a rule as defined by Subsection 120.52(14), Florida Statutes.

    
    

13. Subsection 120.54(1), Florida Statutes, states that "Prior to the adoption, amendment, or repeal of any rule . . . an agency shall give notice of its intended action . . . ." The subsection then goes on to detail that notice which must be given. This notice requirement addresses itself to three separate actions concerning a rule. These actions are the adoption, amendment, or repeal of a rule. The clear connotation of the statute is that these three actions are different in nature and that an agency shall give notice of its intended action in regard to each. Subsection 120.54(1), Florida Statutes, requires that this notice contain an explanation of the purpose and effect of the proposed rule, a summary of the proposed rule, the specific legal authority under which its adoption is authorized and a summary of the estimate of the economic impact of the proposed rule on all persons affected by it. The language "proposed rule" must be read to include, where appropriate, the amendment or repeal of an existing rule. This can readily be seen from the definition of "rule" contained in Section 120.52(14), Florida Statutes.

    
    

14. These notice requirements set forth in Section 120.54, Florida Statutes are mandatory. A rule cannot be adopted, amended or repealed unless these statutory requirements are first met. In the cause at issue here it appears that these notice requirements were met for the proposed amendments to the subject rule. However, the action actually taken by the Environmental Regulation Commission was not the amendment of the subject rule, but rather its repeal and complete deletion. The Department of Environmental Regulation argues that an agency does not have to give notice pursuant to Section 120.54, Florida Statutes, of every variation that might result from a rule change. That argument is persuasive to a degree. It would seem reasonable that within the three broad categories of action set forth in the statute, adoption, amendment and repeal, variations of the intended action would be permissible. For example, if an agency proposed certain amendments to an existing rule and, after notice and hearing determined that the amendment should be more or less extensive than that proposed it can be persuasively argued that the agency may then adopt the amendments without the necessity of renoticing its intention to do so in accordance with Section 120.54, Florida Statutes. However, when the variation of the agency's action from that which was noticed is so drastic, as in this case, it would appear that the requirements of section 120.54, Florida Statutes, have not been met. In this cause the agency clearly and properly noticed its proposed intention to amend the subject rule. The action it actually took however was entirely different in nature than the amendment of the rule. Its action was the repeal and total deletion of the rule. It nowhere appears from the evidence in this cause that the agency intended any subterfuge by noticing its intention to amend and subsequently repealing the rule. To the contrary, it appears the Environmental Regulation Commission, upon taking testimony and hearing argument on the proposed amendments determined, in good conscience, that the best course of action was to repeal their rule rather than simply amend it. Nevertheless, in order to accomplish this action it is necessary to comply with the requirements of Section 120.54, Florida Statutes, which is entitled "Rule making; adoption procedures". In order to so comply the agency must give notice of its intent to repeal, rather than amend the subject rule.

15. It is further noted that Subsection 120.54(2), Florida Statutes, requires that "Every agency, prior to the adoption, amendment, or repeal of any rule, shall prepare information on its proposed action by preparing an economic impact statement as with the notice requirements of Subsection 120.54(1), Florida Statutes, the agency in this cause prepared an Economic Impact Statement sufficient for the proposed amendment of the subject rule. However, as a matter of fact, no Economic Impact Statement was prepared on the consequences of the repeal of the subject rule. Again, just as with the notice requirements, this requirement of an Economic Impact Statement on the proposed action of the agency is a necessary ingredient for the valid adoption, amendment, or repeal of a rule. The preparation of an Economic Impact Statement on a proposed amendment to a rule is, at least potentially, much different from the preparation of an Economic Impact Statement on the repeal and complete deletion of a rule.

16. Subsection 120.56(1), Florida Statutes, states that: "Any person substantially affected by a rule

may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority."

The Department of Environmental Regulation has not contested and in fact has stipulated that, for the purposes of this proceeding, the Petitioners are persons substantially affected by the subject rule. There remains the question of whether the repeal of the subject rule by the Department of Environmental Regulation is an invalid exercise of delegated legislative authority. The legislature has delegated to the Department of Environmental Regulation the authority to repeal its rules. However, in Section 120.54, Florida Statutes, the legislature has set out specifically the mandatory procedure to which an agency must adhere in the repeal of any rule. In this case, the Department of Environmental Regulation, through the Environmental Regulation Commission, albeit unintentionally, have failed to meet the requirements of Subsections 120.54(1) and (2), Florida Statutes, for the proper repeal of a rule. Therefore the action taken by the Department of Environmental Regulation, through the Environmental Regulation Commission, is an invalid exercise of delegated legislative authority.

Therefore, it is ORDERED that

Based upon the foregoing the Hearing Officer finds that the repeal of Rule 17-2.04(B), Florida Administrative Code, by the action of the Environmental Regulation Commission on August 11, 1977, is an invalid exercise of delegated legislative authority and that Rule 17-2.04(8), Florida Administrative Code, as it existed at the time of the attempted repeal by the Environmental Regulation Commission, is hereby reinstated.

DONE and ORDERED this 30th day of November, 1977, in Tallahassee, Florida.

CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Stephen Lindsey Gorman, Esquire

P.O Box 10064

Tallahassee, Florida 32302

David Gluckman, Esquire 3348 Mahan Drive

Tallahassee, Florida 32303

Terry Cole, Esquire

Department of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building

Tallahassee, Florida 32301

Docket for Case No: 77-001612RX

Orders for Case No: 77-001612RX