STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SIERRA CLUB and BOOKER CREEK ) PRESERVATION, INC., )

)

Petitioners, )

vs. ) CASE No. 88-4582RP

)

STATE OF FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondent, )

and )

) FLORIDA ELECTRIC POWER COORDINATING ) GROUP, INC., FLORIDA HOME BUILDERS ) ASSOCIATION, FLORIDA PHOSPHATE )

COUNCIL, INC., E.I. du PONT de )

NEMOURS AND COMPANY, INC., ) ASSOCIATED MINERALS (USA) INC., ) and GENERAL DEVELOPMENT )

CORPORATION, )

)

Intervenors. )

)

FINAL ORDER

Notions to dismiss, which the respondent and certain intervenors filed and in which the remaining intervenors joined, raised the question whether the Division of Administrative Hearings had jurisdiction to entertain the petition for administrative determination of the invalidity of a proposed rule with which petitioners initiated this rule challenge proceeding on September 16, 1988. On November 7, 1988, the motions came on to be heard.

The parties appeared through counsel: For Petitioners: Peter B. Belmont

511 31st Avenue North

St. Petersburg, Florida 33704

For Respondent: David A. Crowley

2600 Blair Stone Road Tallahassee, Florida 32399-2400

For Intervenors: James S. Alves

Thomas T.M. DeRose

Hopping, Boyd, Green & Sams Post Office Box 6526 Tallahassee, Florida 32314

For Intervenors E. I. du Pont de Nemours, and Co., Inc., Associated Minerals (USA), and Florida Electric Power Coordinating Group, Inc.

Janet E. Bowman

Messer, Vickers, Caparello, French & Madsden

Post Office Box 1876 Tallahassee, Florida 32302

For Intervenor Florida Home Builder Association, Inc.

Lawrence E. Sellers, Jr. Holland & Knight

Post Office Drawer 810 Tallahassee, Florida 32302

For Intervenor Florida phosphate Council, Inc.

Cindy L. Bartin Landers and Parsons Post Office Box 271

Tallahassee, Florida 32302

For Intervenor General Development Corporation

Petitioners contend that the Environmental Regulation Commission failed to follow statutorily prescribed rulemaking procedures when it approved a second version of a dredge and fill mitigation rule over a year after it originally gave notice of its intention to promulgate a rule on the subject, and long after it had already approved one version for adoption. The thrust of the argument is that the ERC has circumvented rulemaking procedures in adopting, in effect, what is an amendment to an existing rule. Petitioners also contend that the proposed mitigation rule provisions do not comport with the statutes they purport to implement. But the respondent and intervenor raise the preliminary question whether the petition is timely.

STATEMENT OF THE ISSUE

Whether the petition for administrative determination of the invalidity of a proposed rule was filed within the time Section 120.54(4)(b), Florida Statutes (1987) prescribes for instituting challenges to proposed administrative rules?

FINDINGS AND CONCLUSIONS

1. The time limit Section 120.54(4)(b), Florida Statutes (1987) sets for filing petitions which seek determinations of invalidity under Section 120.54, Florida Statutes (1987), before proposed rules ever take effect, is jurisdictional Department of Health and Rehabilitative Services vs. Alice P.,

   367 So.2d 1045 (Fla. 1st DCA 1979); Organized Fishermen of Florida vs. Marine Fisheries Com'n, No. 88-3821R (DOAH; Sept. 14, 1988); City of Gainesville vs.

   Florida Public Service Com'n., 3 FALR 2448-A (DOAH 1981). Contra, Florida Medical Center vs. Department of Health and Rehabilitative Services, No. 88- 3970R and consolidated cases, Nos. 88-4018R and 88-4019R (DOAH; Nov. 1, 1988). If a petition challenging a proposed rule is not filed within 21 days of the notice initiating rulemaking which Section 120.54(13)(b), Florida Statutes (1987) requires agencies to publish, those seeking invalidation are relegated to rule challenge proceedings under Section 120.56, Florida Statutes (1987), unless they are parties to the rulemaking, and take timely stems to secure judicial review of the agency action adopting the rule. See City of Key West vs. Askew,

   324 So.2d 655 (Fla. 1st DCA).

   
   

2. Substantially affected parties who fail to file a Section 120.54 challenge in time are not without an administrative forum in which to litigate both whether the substance of a rule is authorized by statute and whether the manner of its adoption was lawful. Since the petition alleges no constitutional infirmity in the rule, nothing petitioners have pleaded here would be foreclosed from consideration in a Section 120.56 proceeding. See Department of Environmental Regulation vs. Leon County, 344 So.2d 297 (Fla. 1st DCA 1977).

   
   

3. On appeal from an order invalidating an existing rule which had been challenged pursuant to Section 120.56, Florida Statutes (1987), the court in Department of Administration vs. Herring, 530 So.2d 962 (Fla. 1st DCA 1988), while rejecting the hearing officer's conclusions, considered the propriety of the procedures employed in rulemaking. Challenges to existing rules on grounds of inadequacy of economic impact statements are other instances in which rulemaking procedures have been tested in Section 120.56 proceedings. See Department of Health and Rehabilitative Services vs. Delray Hospital Corp., 373 So.2d 75 (Fla. 1st DCA 1979). Even where an agency makes no claim that it has followed any of the procedures required for rulemaking, challengers must ordinarily file under Section 120.56, Florida Statutes (1987). See State, Department of Administration vs. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977).

   
   

4. The petition in the present case may be read as alleging that DER published notice of proposing a mitigation rule in June of 1987, although the Florida administrative Weekly reflects publication on May 1, 1987. But it is clear from the petition that more than a year elapsed, after publication, before the present petition (or the earlier petition dismissed July 21, 1988) was filed. This makes the petition untimely under Section 120.54, Florida Statutes (1987)

It is, accordingly, ORDERED:

The petition for administrative determination of the invalidity of a proposed rule is dismissed, without prejudice to the filing of a petition pursuant to Section 120.56, Florida Statutes (1987).

DONE and ENTERED this 15th November, 1988, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2900 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1988.

COPIES FURNISHED:

Peter B. Belmont, Esquire

511 31st Avenue North St. Petersburg, FL 33704

David A. Crowley, Esquire Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, FL 32399

Janet E. Bowman, Esquire

P.O. Box 1876 Tallahassee, FL 32302

James S. Alves, Esquire Thomas T. M. DeRose, Esquire

P.O. Box 6526

420 First Florida Bank Building Tallahassee, FL 32314

Lawrence E. Sellers, Jr., Esquire

P.O. Drawer 810 Tallahassee, FL 32302

Cindy L. Bartin, Esquire

P. O. Box 271 Tallahassee, FL 32302

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY

RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SIERRA CLUB and BOOKER CREEK ) PRESERVATION, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 88-4582RP

) STATE OF FLORIDA DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent, )

and )

) FLORIDA ELECTRIC POWER COORDINATING ) GROUP, INC., FLORIDA HOME BUILDERS ) ASSOCIATION, FLORIDA PHOSPHATE ) COUNCIL, INC., E.I. du PONT de ) NEMOURS AND COMPANY, INC., ) ASSOCIATED MINERALS (USA) INC., ) and GENERAL DEVELOPMENT )

CORPORATION, )

)

Intervenors. )

)

CORRECTED FINAL ORDER

Motions to dismiss, which the respondent and certain intervenors filed and in which the remaining intervenors joined, raised the question whether the Division of Administrative Hearings had jurisdiction to entertain the petition for administrative determination of the invalidity of a proposed rule with which petitioners initiated this rule challenge proceeding on September 16, 1988. On November 7, 1988, the motions came on to be heard.

The parties appeared through counsel: For Petitioners: Peter B. Belmont

511 31st Avenue North

St. Petersburg, Florida 33704

For Respondent: David A. Crowley

2600 Blair Stone Road Tallahassee, Florida 32399-2400

For Intervenors, James S. Alves

E.I. du Ponte de Thomas T. M. DeRose

Nemours & Co., Hopping, Boyd, Green & Sams Inc., Associated Post Office Box 6526 Minerals (USA) Tallahassee, Florida 32314 & Florida Electric

Power Coordinating Group, Inc.:

For Intervenor, Janet E. Bowman

Florida Home Messer, Vickers, Caparello, French Builder Asso, & Madsden

Inc.: Post Office Box 1876 Tallahassee, Florida 32302

For Intervenor, Lawrence E. Sellers, Jr. Florida Holland & Knight

Phosphate Post Office Box 810 Council, Inc.: Tallahassee, Florida 32302

For Intervenor, Cindy L. Bartin General Landers and Parsons Development Post Office Box 271

Corporation: Tallahassee, Florida 32302

Petitioners contend that the Environmental Regulation Commission failed to follow statutorily prescribed rulemaking procedures when it approved a second version of a dredge and fill mitigation rule over a year after it originally gave notice of its intention to promulgate a rule on the subject, and long after it had already approved one version for adoption. The thrust of the argument is that the ERC has circumvented rulemaking procedures in adopting, in effect, what is an amendment to an existing rule. Petitioners also contend that the proposed mitigation rule provisions do not comport with the statutes they purport to implement. But the respondent and intervenor raise the preliminary question whether the petition is timely.

ISSUE

Whether the petition for administrative determination of the invalidity of a proposed rule was filed within the time Section 120.54(4)(b), Florida Statutes (1987), prescribes for instituting challenges to proposed administrative rules?

FINDINGS AND CONCLUSIONS

The time limit Section 120.54(4)(b), Florida Statutes (1987), sets for filing petitions which seek determinations of invalidity under Section 120.54, Florida Statutes (1987), before proposed rules ever take effect, is jurisdictional. Department of Health and Rehabilitative Services vs. Alice P.,

367 So.2d 1045 (Fla. 1st DCA 1979); Organized Fishermen of Florida vs. Marine Fisheries Com'n, No. 88-382IR (DOAH; Sept. 14, 1988); City of Gainesville vs. Florida Public Service Com'n., 3 FALR 2448-A (DOAH 1981). Contra, Florida Medical Center vs. Department of Health and Rehabilitative Services, No. 88- 3970R and consolidated cases, Nos. 88-4018R and 88-4019R (DOAH; Nov. 1, 1988). If a petition challenging a proposed rule is not filed within 21 days of the notice initiating rulemaking which Section 120.54(1), Florida Statutes (1987), requires agencies to publish, those seeking invalidation are relegated to rule challenge proceedings under Section 120.56, Florida Statutes (1987), unless they

are parties to the rulemaking, and take timely steps to secure judicial review of the agency action adopting the rule. See City of Key West vs. Askew, 324 So.2d 655 (Fla. 1st DCA 1976).

Substantially affected parties who fail to file a Section 120.54 challenge in time are not without an administrative forum in which to litigate both whether the substance of a rule is authorized by statute and whether the manner of its adoption was lawful. Since the petition alleges no constitutional infirmity in the rule, nothing petitioners have pleaded here would be foreclosed from consideration in a Section 120.56 proceeding. See Department of Environmental Regulation vs. Leon County, 344 So.2d 297 (Fla. 1st DCA 1977).

On appeal from an order invalidating an existing rule which had been challenged pursuant to Section 120.56, Florida Statutes (1987), the court in Department of Administration vs. Herring, 530 So.2d 962 (Fla. 1st DCA 1988) while rejecting the hearing officer's conclusions, considered the propriety of the procedures employed in rulemaking. Challenges to existing rules on grounds of inadequacy of economic impact statements are other instances in which rulemaking procedures have been tested in Section 120.56 proceedings. See Department of Health and Rehabilitative Services vs. Delray Hospital Corp., 373 So.2d 75 (Fla. 1st DCA 1979). Even where an agency makes no claim that it has followed any of the procedures required for rulemaking, challengers must ordinarily file under Section 120.56, Florida Statutes (1987). See State, Department of Administration vs. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977).

The petition in the present case may be read as alleging that DER published notice of proposing a mitigation rule in June of 1987, although the Florida Administrative Weekly reflects publication on May 1, 1987. But it is clear from the petition that more than a year elapsed, after publication, before the present petition (or the earlier petition dismissed July 21, 1988) was filed.

This makes the petition untimely under Section 120.54, Florida Statutes (1987).

It is, accordingly, ORDERED:

The petition for administrative determination of the invalidity of a proposed rule is dismissed, without prejudice to the filing of a petition pursuant to Section 120.56, Florida Statutes (1987).

DONE and ENTERED this 25th day of September, 1989, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

FILED with the Clerk of the Division of Administrative Hearings 25th day of September 1989.

COPIES FURNISHED:

Peter B. Belmont, Esquire

511 31st Avenue North St. Petersburg, FL 33704

David A. Crowley, Esquire Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, FL 32399

Janet E. Bowman, Esquire

P. O. Box 1876 Tallahassee, FL 32302

James S. Alves, Esquire Thomas T. M. DeRose, Esquire

P. O. Box 6526

420 First Florida Bank Building Tallahassee, FL 32314

Lawrence E. Sellers, Jr., Esquire

P. O. Drawer 810 Tallahassee, FL 32302

Cindy L. Bartin, Esquire

P. O. Box 271 Tallahassee, FL 32302

Liz Cloud, Chief

Bureau of Administrative Code The Capitol - 1802 Tallahassee, FL 39999-0250

Carroll Webb, Executive Director Administrative Procedure Committee

120 Holland Building Tallahassee, FL 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 88-004582RP

Orders for Case No: 88-004582RP