STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF BARTOW, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1139RX

)

DEPARTMENT OF ENVIROMENTAL )

REGULATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on July 26 and 27, 1978, in the City Hall Commission Chambers in Bartow, Florida. This cause, a Section 120.56, Florida Statutes, proceeding, was consolidated for hearing purposes with Case No. 77-1062, a Section 120.57(1), Florida Statutes, proceeding. A separate recommended order will be entered in Case No. 77-1062.

APPEARANCES

For Petitioner: William S. Blakeman

Campbell, Dunlap, Coward and Blakeman Post Office Box 916

Lakeland, Florida 33802

For Respondent: Louis F. Hubener

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

ISSUE

The issue presented for determination in this proceeding is whether the wasteload allocations set forth in respondent's interoffice memorandum dated September 8, 1977, constitute a rule subject to the procedural requirements of the Administrative Procedure Act, Chapter 120, Florida Statutes.

FINDINGS OF FACT

1. Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:

   
   

2. The petitioner, a municipal corporation, applied to the respondent for renewal of its permit to operate a sewage treatment plant. The respondent gave notice of its intent to deny said application on the ground that petitioner had not met the wasteload allocations established for the upper part of the Peace River Basin. A petition for a hearing on this denial was filed by petitioner pursuant to the provisions of Florida Statutes, 120.57(1), and a hearing was

   originally scheduled for May 11, 1978. At the commencement of this hearing, it became apparent that petitioner was also alleging that the wasteload allocations set forth in an interoffice memorandum dated September 8, 1977, constituted a rule within the meaning of Chapter 120, Florida Statutes, and therefore must be adopted pursuant to the provisions of said chapter. The respondent not being prepared to meet this allegation and the petitioner not having filed a petition pursuant to the provisions of Section 120.56, the scheduled hearing was continued and petitioner was granted leave to file a petition pursuant to Section 120.56 challenging the validity of the wasteload allocations as an invalid rule. Petitioner properly filed its petition for an administrative determination of the validity of a rule and the two petitions were consolidated for hearing purposes.

   
   

3. The "rule" being challenged herein contains revised wasteload allocations for four municipalities in Polk and Hardee Counties. These four include Bartow, Ft. Meade, Bowling Green and Wauchula, each of which discharges effluent into the Upper Peace River Basin. As noted above, these allocations are set forth in an interoffice memorandum dated September 8, 1977, and were not adopted pursuant to the rulemaking provisions of Chapter 120, Florida Statutes.

   
   

4. Wasteload allocations are derived from mathematical calculations fed into a scientific model. They are based upon information pertaining to the treatment plant, the type of effluent, the physical, chemical and biological characteristics of the receiving waters and the number and nature of other discharges to the receiving waters. In developing said allocations, the respondent relies upon information received from the applicant, as well as existing water quality data from the Environmental Protection Agency, United States Geological data, local programs and university studies. The purpose of developing wasteload allocations is to determine the chemical effect of the discharge upon the receiving body of water and to determine whether a certain volume of effluent treated to a specified degree will depress water quality below the standard established for a particular class of water.

   
   

5. Wasteload allocations are calculated by the respondent for each individual discharger to determine whether a reduction in water quality will occur. When an application for a discharge permit is made to respondent, allocations for several dischargers in close proximity affecting the same portion of a body of water may be calculated at the same time, as was done in the September 8th memorandum. However, the other individual allocations become effective and applicable only when those dischargers seek a permit from the respondent. At that time, the allocation is revisited and recalculated based upon the most recent, available information and data. The wasteload allocations have applicability only when a facility seeks a permit to discharge effluents into surfaced waters.

   
   

6. In the State of Florida, there are approximately 1,300 domestic and municipal sewage treatment plants and 230 industrial dischargers. A uniform wasteload allocation for 1,530 dischargers would be impossible and meaningless because each has its own unique characteristics based upon the type and method of discharge and the nature of the receiving body of water. Accordingly, the wasteload allocations are established by respondent on a case by case basis in the permitting process.

   
   

7. Approximately 1.6 million dollars in capital expenditures will be necessitated in order for petitioner to comply with the wasteload allocations established by the respondent. There would also be increases in operating and

   management costs for new capital improvements. Alternative methods of sewage treatment may be undertaken by the petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

8. The petitioner has standing to bring this action under Section 120.56, Florida Statutes, because it is substantially affected by the wasteload allocations which it challenges as a rule. The only issue in this proceeding is whether said allocations constitute a "rule" within the meaning of Section 120.52(14), Florida Statutes, or whether they are otherwise subject to the rulemaking procedures required under the Administrative Procedure Act.

   
   

9. In summary form, the positions of the parties are as follows. Petitioner contends that the wasteload allocations are agency statements of general applicability that implement, interpret or prescribe law or policy within the APA's definition of a rule, and thus must be adopted in accordance with the rule- making procedures set forth in Section 120.54. In the alternative, petitioner asserts that even if the allocations are determined to be not of general applicability, they are required to be promulgated pursuant to Chapter 120 because of the specific requirements of Section 403.051(6)(a). Petitioner also relies upon Section 403.061(7), Florida Statutes. Respondent urges that the wasteload allocations are not statements of general applicability. Rather, they are informal or incipient orders applicable only to a specific entity with temporal and geographic limitations. Respondent argues that the method for challenging said allocations is through a Section 120.57 adjudicatory proceeding. Further, respondent argues that Section 403.051(6)(a) must be read in pari materia with Chapter 120, and does not impose more stringent requirements than those imposed under the APA. Finally, respondent asserts that since the wasteload allocations are not rules or regulations, the provisions of Section 403.061(7) are irrelevant to this proceeding.

   
   

10. The procedural requirements of rulemaking set forth in Section 120.54 apply to agency statements of general applicability which implement, interpret or prescribe law or policy. A wasteload allocation which applies to a particular entity which introduces a particular effluent into a particular body of water at a particular point in time is not a statement of general applicability. The allocations are only implemented during the respondent's permitting process and are thus subject to challenge pursuant to Section 120.57, Florida Statutes. In this respect, the wasteload allocations are akin to the prevailing wage determinations discussed by the District Court of Appeal in Dept. of Commerce, Division of Labor v. Matthews Corp. etc., 358 So.2d 256 (Fla. App. 1st 1978). There, the Court noted that the wage determinations were

    
    

    "Applicable only to the construction of the particular public building or

    other work specified in the determination. The determination thus has temporal as well as geographical limitations."

    
    

    Also see the recent case of Vernon J. Neff, et al v. Biltmore Construction Company, Inc. et al, Op. filed Sept. 7, 1978, Aase GG-43 (Fla. App. 1st). As noted by the Court in Matthews the APA affords a remedy to a party substantially affected by non- rule agency policy, and that is the adjudicatory process via Section 120.57. At such a proceeding the agency may then be required "by a disappointed applicant to defend its policy, to present evidence and expose its reasons for discretionary action." This has occurred in the instant case and the

    recommended order entered in the companion case, Case No. 77-1062, will deal with the factual basis for the denial of the application.

    
    

11. Section 403.051(6)(a), Florida Statutes, offers no relief to the petitioner. That section states:

    
    

    "Any department planning, design, con- struction, modification, or operating standards, criteria, and requirements

    for treatment works, disposal systems and sewerage systems for wastes from any source shall be promulgated as a rule or regulation pursuant to the requirements and procedures of Chapter 120."

    
    

    This section pertains to standards, criteria and requirements for treatment works and systems. It is written in the plural and means those standards which are broadly and generally applicable to all dischargers. Such an interpretation is consistent with Chapter 120. Inasmuch as the section cited above refers to the requirements, as well as to the procedures, of Chapter 120, these two statutory provisions must be read in pari materia. If an agency action or statement is not required to be promulgated as a rule under Chapter 120, Section 403.051(6) does not impose a more stringent requirement. This interpretation is also consistent with the facts recited herein as to the purpose and applicability of wasteload allocations developed by the respondent for over 1,500 dischargers at various points in time.

    
    

12. Section 403.061(7) requires that adopted rules and regulations of the respondent be consistent with federal law. Since the individual wasteload allocations are not rules or regulations, this statutory provision has no applicability or relevancy to the issue presented for determination herein.

FINAL ORDER

Based upon the findings of fact and conclusions of law recited herein, it is ORDERED that the wasteload allocations set forth in the respondent's memorandum dated September 8, 1977, do not constitute a rule and thus are not subject to an attack of invalidity on the ground that they were not adopted pursuant to Section 120.54, Florida Statutes.

Done and ordered this 14th day of September, 1978, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

William S. Blakeman Campbell, Dunlap, Coward

and Balkeman

Post Office Box 916 Lakeland, Florida 33802

Louis Hubener

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 Capitol Building

Tallahassee, Florida 32304

Carroll Webb, Executive Director Administrative Procedures Committee Room 120 Holland Building Tallahassee, Florida 32304

Docket for Case No: 78-001139RX

Orders for Case No: 78-001139RX