STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BROWNING-FERRIS INDUSTRIES )
OF FLORIDA, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 89-5663RP
)
STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
FINAL ORDER
Pursuant to written notice, a formal hearing was held in this case before James E. Bradwell, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 14, 1990, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Lawrence E. Sellers, Jr., Esquire
HOLLAND AND KNIGHT
Post Office Drawer 810 Tallahassee, Florida 32303
For Respondent: Chris McGuire, Esquire
Assistant General Counsel
Department of Environmental Regulation Twin Towers Office Building
2600 Blairstone Road
Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES
Whether the Department of Environmental Regulation's proposed amendment of Rule 17-704.420(1)(c), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.
PRELIMINARY STATEMENT
On September 22, 1989, Respondent, Department of Environmental Regulation (hereinafter referred to as the "Department") caused to be published in the Florida Administrative Weekly a Notice of Rulemaking for Rule 17-704, Florida Administrative Code, entitled "Certification of Resource Recovery and Recycling Equipment." Among other things, the Department proposed to amend Rule 17-704.420(1) to read:
(1) Resource recovery equipment ... does not include:
* * *
(c) Equipment used to transport materials or energy resources recovered from solid waste to or from the site where the recovery process takes place... .
On October 13, 1989, Petitioner Browning-Ferris Industries of Florida, Inc. (hereinafter referred to as "BFI") timely filed with the Division of Administrative Hearings a Petition for Administrative Determination of Invalidity of Proposed Rule. A Prehearing Stipulation was filed by both parties immediately prior to the hearing on March 14, 1990.
At the formal hearing BFI presented the testimony of Janie Gafford, an expert in solid waste management. BFI also offered one exhibit which was received in evidence. The Department presented the testimony of Jan Rae Clark, an expert in resource recovery and management programs. The parties offered five joint exhibits.
Pursuant to leave, on April 25, 1990, the parties submitted proposed findings of fact and conclusions of law. Proposed findings of fact not incorporated in this Final Order are the subject of specific findings in an Appendix.
Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the stipulations of fact contained in the Prehearing Stipulation, the following relevant facts are found:
FINDINGS OF FACT
The Department is an agency of the State of Florida designated, pursuant to Chapter 403, Florida Statutes, to regulate solid waste management in Florida.
BFI is a corporation which is engaged in the business of solid waste collection and disposal in Florida, and operates at least one curbside recyclable materials collection program in Florida.
In 1988, the Florida Legislature enacted Section 403.706(2), Florida Statutes (1989), as part of the comprehensive Solid Waste Management Act. This section requires counties to institute recyclable materials programs. Counties and cities are urged to form cooperative arrangements for implementing recycling programs.
The Solid Waste Management Act requires that, at a minimum, "a majority of the newspaper, aluminum cans, glass and plastic bottles must be separated from the solid waste stream prior to final disposal at a solid waste disposal facility and must be offered for recycling" by the end of 1994. Section 403.706(2)(b), Florida Statutes (1989).
To implement the requirements of the Solid Waste Management Act, both Alachua County and the City of Gainesville have instituted curbside recycling programs.
BFI has entered into contracts with both of these local governments to implement their curbside recycling programs. These programs include a number of elements, such as: the separation of specified recyclable materials by the homeowner and the placement of these materials in bins; the collection of these recyclable materials from bins at curbside; the further separation of these materials and placement in separate compartments in specially-designed recycling vehicles; the transportation of the materials to a central recycling facility; the further separation and processing of these materials at the central facility; and the transportation of these processed materials to other facilities where they are returned to use in the form of raw materials.
Each home in the area served by the curbside recycling programs is provided with a blue recycling bin. The bin comes with a set of instructions that provides information concerning the types of recyclable materials that may be placed in the bin, as well as the day of the week on which the recycling bin is to be placed at the curbside for collection. Recyclable materials to be separated from other solid waste and placed in the recycling bin include plastics, newsprint, three colors of glass, and metals including aluminum and bi-metal cans.
On the specified weekday, BFI personnel collect recyclable materials from the bins that have been placed at the curbside. The driver of the recycling vehicle picks up the bin, places it on a specially-designed hook on the side of the vehicle, and transfers each type of recyclable material into one of six compartments on the side of the vehicle. For example, newspapers are taken from the recycling bin and placed in the side compartment for newspapers, and the same process is repeated for plastics, metal, and each of the three colors of glass. When the bin has been emptied, the driver returns the bin to the curbside for future use.
When these side compartments are filled, they are dumped over the side and into the body of the truck. The side compartments and the interior walls of the truck are designed so that the materials remain segregated. The side compartment and walls also are designed so that they may be adjusted to accommodate the relative quantity of recyclable materials that will be collected on a particular route. This design thus provides for the efficient collection and transportation of recyclable materials.
The side compartments and interior walls are designed to insure that the recyclable materials remain segregated so that mixing of the recyclable materials is prevented. This is important since recyclable materials that are contaminated with other materials may not be suitable for recycling. For example, newspaper mixed with glass or aluminum will be rejected by a paper mill. Similarly, colors of glass cannot be mixed, since there is no market for mixed glass.
The dumping of the side compartments over the side and into the interior of the truck results in the breakage of the glass and effects a volume reduction.
When the driver and recycling truck have serviced all of the recycling bins on a route, they return to BFI's central recycling facility in Gainesville. The truck is weighed, and then the first (or rear) interior compartment is opened, the truck is hoisted (or tilted) and the contents are emptied into a separate concrete bunker. For example, the compartment containing newspapers is emptied into the bunker containing newspapers. This weighing and emptying process is repeated for each of the six interior compartments, with each compartment being emptied into a separate concrete bunker.
The emptying of the three compartments containing glass results in the further breakage of the glass.
A front-end loader is used to transfer the materials from each of the concrete bunkers.
The newspaper is transferred from its bunker and placed into a roll-off container. Periodically, the roll-off container is transported to Southeast Paper, where the newspaper is returned to use as a raw material for the manufacture of newsprint.
The plastics are transferred from a concrete bunker to a piece of equipment that compacts the plastics into bales of approximately 1,000 pounds each. Periodically, these bales of plastic are transported to Wellman Plastics, where the plastic is returned to use as a raw material for the manufacture of new plastics.
The three types (or colors) of glass are transferred from their respective concrete bunkers to heavy-duty cardboard containers that hold approximately 3,000 pounds of glass. Periodically, these containers are transported to Owens- Illinois, where the glass is returned to use as a raw material for making new glass. The dropping of the glass into and from the recycling vehicle breaks the glass into small pieces. For this reason, BFI has not had to purchase and install glass crushing equipment.
The bi-metal cans and the aluminum cans are transferred from a concrete bunker to equipment that is used to separate the bi-metal cans from the aluminum cans.
The aluminum cans are crushed and blown (or separated) into a trailer. Periodically, these aluminum cans are transported to Anheuser-Busch, where they are returned to use as a raw material for making new aluminum cans.
After the bi-metal cans are separated from the aluminum cans, they are crushed and transported to a metal can company, F. Joseph and Company, where they are returned to use as a raw material for metal cans or other types of metal products.
BFI's curbside recycling programs constitute a process by which solid waste, or materials which would otherwise become solid waste -- i.e., newspaper, plastics, three types of glass
and metals -- are collected, separated, processed and returned to use in the form of raw materials. The curbside recycling programs also constitute a process by which these same materials are recovered from solid waste.
The recycling vehicles are specially-designed in accordance with the contracts with the City of Gainesville and Alachua County. The vehicles are used exclusively in the curbside recycling programs.
The recycling vehicles are integral to the curbside recycling programs because the programs require the use of vehicles to transport recyclable materials from the "curbside" to a central recycling facility.
The recycling vehicles also are integral to the actual process of recovering materials from solid waste because, as a result of the convenience they provide the homeowner, they effect a substantial increase in the recovery of materials from solid waste. Each month, the curbside recycling programs in Alachua County and the City of Gainesville collect and process approximately 500 tons of recyclable materials that otherwise would (and previously did) go into a local landfill. Now these materials are returned to use in the form of raw materials.
BFI has purchased and paid sales or use tax on the recycling vehicles and bins that are used in the curbside recycling programs described above.
"Resource recovery equipment" that is "owned and operated by or on behalf of any county or municipality, and certified by the Department of Environmental Regulation under the provision of Section 403.715," is exempt from the sales and use tax. Section 212.08(7)(p), Florida Statutes.
Pursuant to Section 403.715, Florida Statutes, and Chapter 17-704, Florida Administrative Code, DER certifies to the Department of Revenue (DOR) that certain equipment is "resource recovery equipment." DOR then determines whether that equipment is "owned and operated by or on behalf of any county or municipality." DOR's determination is not at issue in this case.
Rule 17-704.420 set out the criteria for the examination and certification of resource recovery equipment. Presently, paragraph (1)(c) of Rule 17-704.420, provides in pertinent part, as follows:
equipment
(1) Resource recovery equipment includes all
or machinery exclusively and integrally used in the actual process of recovering material or energy resources from solid waste, [and which is purchased after July 1, 1989.] Resource recovery equipment does not include:
* * *
(c) Equipment used to transport materials or energy resources from solid waste <<to or>> from the site where the recovery process takes place.
(Emphasis added.)
The existing rule prohibits only the certification of equipment used to transport materials or energy resources that already have been recovered from solid waste from the site where the recovery process takes place. For example, DER previously has refused to certify equipment used to take ash residue from a resource recovery facility off site for disposal since the recovery process already had been completed.
The proposed amendment would amend paragraph (1)(c) of Rule 17-704.420 as follows:
equipment
Resource recovery equipment includes all
or machinery exclusively and integrally used in the actual process of recovering material or energy resources from solid waste, and which is purchased after July 1, 1989. Resource recovery equipment does not include:
* * *
Equipment used to transport materials or energy resources recovered from solid waste to or from the site where the recovery process takes place. [Additions are underscored and deletions are
stricken.]
On its face, the proposed rule amendment prohibits the certification of equipment used to transport materials or energy resources recovered from solid waste to the site where the recovery process takes place. Expert witness, Jan Clark, agreed that this language "doesn't make sense," and she testified that she interprets this provision to prohibit the certification of equipment used to transport recovered materials or energy
resources to a place where further resource recovery takes place.
In summary, paragraph (1)(c) of Rule 17-704.420 presently does not expressly prohibit certification of equipment that is used to transport recovered materials to the site where further resource recovery takes place. According to DER, the proposed amendment to paragraph (1)(c) would change this by expressly prohibiting the certification of such equipment.
DER's position is that the proposed amendment is intended to codify existing policy that equipment used for transportation of recovered materials does not qualify for certification as resource recovery equipment unless the equipment is used solely "on site" or at a "fixed location." This policy is unwritten and is not explained in other documents. In addition, this policy has never been applied to a curbside recycling program.
DER's witness was unaware of any statute that expressly authorizes this "on site" or "fixed location" requirement. DER relies on the requirement that resource recovery equipment be "integrally used" in the actual process of recovering material from solid waste. DER in turn interprets the "integrally used" equipment to require that the equipment be located "on site" or at a "fixed location" based on its understanding of the "integrated plant theory" espoused by the Department of Revenue in the so-called JEA case. 1/ DER's witness Clark had little familiarity with the "integrated plant theory" and the rationale for the holding of the JEA case.
DER's position is that the requirement that resource recovery equipment be "integrally used" in the actual "process" of "recovering" materials from solid waste authorizes DER to refuse to certify equipment that simply transports materials to a place where further resource recovery takes place. Expert Clark, in reference to the definition of "processing" in Section 403.703(36), suggested that transportation equipment is not used in the actual "process" because it does not result in any physical change in the materials being transported. However, DER has previously certified equipment, the sole function of which is the transportation of materials to a place where further resource recovery takes place. For example, DER previously has certified front-end loaders, conveyor belts, refuse cranes and similar equipment that performs solely a transportation function. In addition, DER has proposed to amend Rule 17-704.600(3) to create a presumption that similar
materials handling equipment will be routinely certified. DER's witness Clark admits that this equipment would not result in any physical change in the material and therefore would not meet the definition of "processing" in Section 403.703(36).
Moreover, BFI's recycling vehicles do change the physical characteristics of the materials being processed. For example, the vehicles do break, and thereby change the physical character of the recovered glass so as to reduce its volume and render it amenable to recycling.
BFI has submitted applications to DER for the final examination and certification of the recycling vehicles and bins purchased and used in these curbside recycling programs. DER has not yet taken final action on these applications.
(Composite Exhibit No. 1.)
DER interprets the proposed amendment to require the denial of BFI's applications for certification of the recycling vehicles because they are "equipment used to transfer materials recovered from solid waste to ... the site where" further resource recovery takes place. If the certification is denied, BFI will not be eligible for a refund of the sales or use tax paid on these vehicles. BFI therefore will be substantially affected by the adoption of the proposed amendment to Rule 17- 704.420(1)(c).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this action. Section 120.54(4), Florida Statutes.
An "invalid exercise of delegated legislative authority" means "action which goes beyond the powers, functions, and duties delegated [to an agency] by the Legislature." Section 120.52(8), Florida Statutes. A proposed rule is an "invalid exercise of legislative authority" if any one or more of the following apply:
The agency has exceeded its grant of rulemaking authority, citation to which is required by Section 120.54(7);
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by Section 120.54(7);
The rule is vague, fails to establish adequate
standards for agency decisions, or vests unbridled discretion in the agency; or
The rule is arbitrary or capricious.
For the reasons set forth below, it is concluded that BFI has established that the proposed amendment is invalid.
The Proposed Amendment Exceeds DER's Rulemaking Authority
The proposed amendment is an invalid exercise of legislative authority because it exceeds DER's grant of rulemaking authority.
The Specific Rulemaking Authority
Each rule must be accompanied by a reference to the specific rulemaking authority pursuant to which the rule was adopted and a reference to the section or subsection of the Florida Statutes or the Laws of Florida being implemented, interpreted, or made specific. Section 120.54(7), Florida Statutes.
The note following the proposed amendment to paragraph (1)(c) of Rule 17-704.420 indicates that the specific authority for the rule is Section 403.704, Florida Statutes. The note further indicates that the laws being implemented are Sections 212.08(5)(e), 212.08(7)(p) and 403.715, Florida Statutes. None of these provisions authorize DER to adopt the proposed amendment.
Section 403.704 authorizes DER to implement and enforce the provisions of the Solid Waste Management Act, but nothing in this section expressly authorizes DER to adopt the proposed amendment that limits the availability of the statutory tax exemption for resource recovery equipment. Instead, this section provides that DER has the power and duty to, among other things:
Encourage recycling and resource recovery as a source of energy and materials.
Assist in and encourage, as much as possible, the development within the state of industries and commercial enterprises which are based upon resource recovery, recycling, and reuse of solid waste.
Section 403.704(6)-(7), Florida Statutes (1989). Because the proposed amendment impermissibly limits the availability of the
tax exemption for resource recovery equipment, it discourages rather than assist and/or encourage recycling and resource recovery. It therefore is at odds with the duties expressly imposed on DER by these quoted subsections.
DER's witness conceded that the rule does not implement Section 212.08(5)(e). The referenced section establishes an exemption for industrial recycling equipment, and the criteria for certifying this type of equipment are set out in a different rule.
Section 212.08(7)(p) provides that "resource recovery equipment" which is owned and operated by or on behalf of any county or municipality and certified by DER under Section 403.715 is exempt from the Florida sales and use tax.
Section 403.715 requires DER to establish a system for the examination and certification of "resource recovery equipment" in order to implement the tax exemption for this equipment.
The term "resource recovery equipment" is defined by statute to mean "equipment or machinery exclusively and integrally used in the actual process of recovering material or energy resources from solid waste." Section 403.701(12), Florida Statutes (1989).
BFI's Recycling Vehicles Constitute "Resource Recovery Equipment."
Based on the foregoing findings of fact, it is clear that BFI's recycling vehicles constitute "resource recovery equipment" as that term is defined in the statute.
BFI's recycling vehicles are "equipment or machinery exclusively and integrally used" in the curbside recycling programs implemented on behalf of Alachua County and the City of Gainesville. These curbside recycling programs constitute an "actual process by which recyclable materials are recovered from solid waste." The recycling vehicles therefore constitute "resource recovery equipment" as that term is defined in the statute. 2/
The proposed amendment conflicts with the statutory definition of "resource recovery equipment" because it prohibits the certification of BFI's recycling vehicles (and similar equipment). As such, the proposed amendment exceeds DER's grant
of rulemaking authority and therefore constitutes an invalid exercise of legislative authority.
DER Has No Authority to Adopt the Proposed Amendment
DER's position is that the proposed amendment is intended to codify DER's existing policy that equipment used for transportation of recovered materials does not qualify for certification as resource recovery equipment unless the equipment is used solely "on site" or at a "fixed location."
1. The Proposed Amendment is Not Authorized by the Requirement that the Equipment be "Integrally Used" in the Process or by the So-Called "Integrated Plant Theory."
DER's witness did not identify any statute that expressly authorizes this "on site" or "fixed location" requirement. Instead, DER relies on the requirement that resource recovery equipment must be "integrally used" in the actual process of recovering material from solid waste. DER interprets the "integrally used" requirement to require that the equipment be located "on site" or at a "fixed location" based on the "integrated plant theory" espoused by the Department of Revenue in the JEA case.
DER's expert witness was only "somewhat" familiar with the "integrated plant theory" and admitted to having no "true knowledge" of the JEA case. The JEA case, however, did not concern the exemption for "resource recovery equipment" in Section 212.08(7)(p). Rather, it dealt with an exemption available for equipment used to generate steam or electrical energy, and is codified in Section 212.08(5)(c). This exemption, unlike the exemption for resource recovery equipment, is expressly limited to equipment used at a "fixed location."
No such limitation is contained in the exemption for resource recovery equipment. For this reason, and because JEA in no way addressed the exemption of equipment used to transport materials to the site of recovery, neither the JEA case nor the "integrated plant theory" announced in that case provides any authority for the application of an "on site" or "fixed location" requirement to the exemption for resource recovery equipment.
DER presented no testimony or other evidence to show that equipment must be confined to the boundaries of a facility for it to be "integrally used" in the actual process of
recovering materials from solid waste. Indeed, the testimony and other evidence shows that transportation equipment used "off site" -- e.g., BFI's recycling vehicles -- certainly may be and are "integrally used" in that process.
2. The Proposed Amendment is Not Authorized by the Requirement that the Equipment be Used in the Actual "Process" of "Recovering" Materials
DER's interpretation that resource recovery equipment must be integrally used in the actual "process" of "recovering" materials from solid waste authorizes DER to refuse to certify equipment that simply collects or transports materials to a place where further resource recovery takes place.
Collection or Transportation Equipment May be Used in the "Process"
DER first suggests that collection or transportation equipment is not used in the actual "process" because it does not result in any physical change in the materials being transported. In interpreting the term "process", DER relies on the definition of "processing" in Section 403.703(36). However, a careful analysis of this interpretation shows that it is inconsistent with accepted definitions of the term "process" and contrary to prior DER practice.
Resource recovery equipment is defined as equipment used in the actual "process" of recovering materials from solid waste. As used in this definition, the term "process" is a noun and it is defined as follows:
A system of operations in the production of something. 2. A series of actions, changes, or functions that bring about an end or
result. 3. Course or passage of time. 4. Ongoing movement; progression.
The American Heritage Dictionary of the English Language at 1043.
Read in context, the term "process" clearly is intended to have the meaning indicated in the second definition; i.e., "a series of actions, changes or functions to bring about an end or result." In this case, the "end or result" is the recovery of materials from solid waste, and the "series of
actions, changes or functions" to bring about that result clearly may include collection or transportation.
This accepted definition of the term "process" also is entirely consistent with DER's prior practice, whereas the definition borrowed from the statutory term "processing" is contrary to that prior practice. Specifically, DER has consistently certified equipment that has as its sole function the transportation of materials to a place where further resource recovery takes place. As previously noted, DER has certified front-end loaders, conveyor belts, refuse cranes and similar equipment that simply performs the transportation function. In addition, DER has proposed to amend Rule 17- 704.600(3) to create a presumption that similar materials handling equipment will be routinely certified. This prior practice and proposed rule amendment would not be consistent with the definition of "processing" in Section 403.703(36) because this equipment does not result in any physical change in the material.
Moreover, the evidence shows that BFI's recycling vehicles actually do result in a change in the physical character of the recyclable materials. For example, the vehicles break, and thereby change the physical character of, the glass so as to reduce its volume and render it amenable to recycling.
Collection or Transportation Equipment May Be Used in "Recovering" Materials
DER maintains that collection or transportation equipment is not used in the process of "recovering" materials from solid waste, since "recovering" materials means actually "extracting or removing" those materials from the solid waste stream. Again, this interpretation is inconsistent with the statutory definition and contrary to DER's prior practice.
This interpretation is inconsistent with the statutory definition of the term "recovered materials," which is defined to include "those materials which have no recycling potential, can be feasibly recycled, and have been diverted or removed from the solid waste stream for sale, use, or reuse, by separation, collection or processing." Section 403.703(7), Florida Statutes 1989). (Emphasis added.) As can be seen, this statutory definition makes clear that the "recovering" of materials includes the collection or transportation of these materials.
Similarly, this latter interpretation is entirely consistent with DER's prior practice of certifying equipment that is used solely for transportation or collection of materials, whereas the interpretation here urged by DER is contrary to that practice. As noted above, DER has certified equipment that has as its sole function the collection and transportation of materials to a place where further resource recovery takes place. DER also has proposed to amend Rule 17- 704.600(3) to create a presumption that similar materials handling equipment will be routinely certified.
In summary, DER's interpretations of "process" and "recovery" are not consistent with accepted definitions of those terms and are contrary to DER's prior practice. As such, they do not authorize the adoption of the proposed amendment.
3. The Proposed Amendment is Not Authorized by the New Exemption for Industrial Recycling Equipment
DER next contends that the proposed amendment is authorized by the enactment in 1988 of a new sales tax exemption for industrial recycling equipment that expressly requires that the equipment be located at a "fixed location." This "fixed location" requirement is contained in at least five other exemptions: Section 212.08(5)(b)1. (machinery and equipment used to increase productive output in new business); Section 212.08(5)(b)2. (machinery and equipment used to increase productive output in expanding manufacturing facilities); Section 212.08(5)(c) (machinery and equipment used in production of electric or steam energy); Section 212.08(5)(d)1. (machinery and equipment under federal procurement contract); and Section 212.08(7)(b) (boiler fuels).
DER's contention, however, ignores well-established principles of statutory construction.. Applying the statutory construction rules of expressio unius and reading related statutes in pari materia, the compelling conclusion is that no "fixed location" requirement was intended for purposes of the resource recovery exemption; if the Legislature desired such a limitation, it certainly had the opportunity and knowledge required to say so. The Legislature's use of different terms in different portions of the same statute -- here, Section 212.08 -
- is strong evidence that different meanings were intended. Department of Professional Regulation v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984); Ocasio v. Bureau of Crimes Compensation,
408 So.2d 751 (Fla. 3d DCA 1982). The Legislature's express inclusion of the "fixed location" requirement in the new
recycling exemption (and five other exemptions), but not in the existing resource recovery exemption, must be taken to mean that no such limitation is to be read into the resource recovery exemption.
4. The Proposed Amendment is Not Authorized by Concerns About Opening Pandora's Box
Finally, DER expressed concern that the certification of collection and transportation equipment would "open the door to certifying, as potential resource recovery equipment, such things as garbage trucks, pickup trucks, and so on." However, it is settled that even well-intended concerns cannot provide the necessary authority for a rule. See e.g., Department of Health and Rehabilitative Services v. Florida Psychiatric Association, 382 So.2d 1280, 1285 (Fla. 1st DCA 1980); Context Development Company v. Dade County, 374 So.2d 1143, 1149-50 (Fla. 3d DCA 1979). Moreover, a careful analysis of these concerns shows that they are not well-founded.
DER first expressed concern "that anybody with a pickup truck that wanted to pick up aluminum cans in the back of that pickup truck would be as eligible for a sales tax exemption as anyone else." However, DER later acknowledged that a pickup truck that an individual uses only from time to time to take recyclable materials to a facility would not qualify for a tax exemption for resource recovery equipment.
Conclusion
In a recent final order, DER acknowledged that any reasonable doubt about the lawful existence of a particular power being expressed by an agency is to be resolved against its exercise. Legal Environmental Foundation, Inc. v. Department of Environmental Regulation, 11 FALR 5227, 5229 (DER 1989). See also Fraternal Order of Police, Miami Lodge 20 v. City of Miami, 492 So.2d 1122 (Fla. 3d DCA 1986).
In this case, DER has identified no statutory provision that authorizes the adoption of the proposed amendment. Accordingly, the proposed amendment is an invalid exercise of legislative authority.
The Proposed Amendment Modifies and Contravenes Specific Provisions of Law
By providing that no equipment whatsoever can be certified which is used to transport materials to the recovery site, DER is adding an "on site" or "fixed location" requirement for the exemption not set forth in any relevant statute. Although an agency may interpret and administer statutory provisions, it cannot enlarge, modify or contravene the provisions of a statute. Department of Business Regulation v. Salvation Ltd., 452 So.2d 65 (Fla. 1st DCA 1984); Department of Insurance v. Insurance Services Offices, 434 So.2d 908 (Fla. 1st DCA 1983), pet. denied, 444 So.2d 416 (Fla. 1984); Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980); 4245 Corp. v. Division of Beverage, 371 So.2d 1032 (Fla. 1st DCA 1978).
To sustain DER's proposed amendment would require a literal rewriting of the statutes to include an express "on site" or "fixed location" requirement. However, in construing statutes, courts may not invoke a limitation or add words to the statute not placed there by the Legislature. Chaffee v. Miami Transfer Co., 288 So.2d 209 (Fla. 1974); In re Estate of Horner,
188 So.2d 386 (Fla. 3d DCA 1966). Administrative agencies entrusted with authority to carry out statutory provisions are similarly prohibited from giving the statute an amendatory construction. Florida Growers Coop. Transport v. Department of Revenue, 273 So.2d 142 (Fla. 1st DCA), cert. denied, 279 So.2d 33 (Fla. 1973).
Because the proposed amendment purports to modify and contravene the provisions of pertinent statutes, it constitutes an invalid exercise of legislative authority. Section 120.52(8)(c), Florida Statutes (1989).
The Proposed amendment is Vague, Fails to Establish Adequate Standards
And Vests Unbridled Discretion in the Agency
A proposed rule is an invalid exercise of authority if it is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency. Section 120.52(8)(d), Florida Statutes.
DER's admission that the proposed amendment "doesn't make sense" because, on its face, it prohibits certification of equipment used to transport materials or energy resources recovered from solid waste to the site where the recovery process takes place. DER therefore interprets this provision to prohibit the certification of equipment used to transport
recovered materials or energy resources to a place where further resource recovery takes place. DER thus "reinterpreted" the proposed amendment to "make sense."
To the extent that the rule permits this type of "reinterpretation," it is vague, fails to establish adequate standards, and vests unbridled discretion in the agency. It therefore is an invalid exercise of legislative authority.
The Proposed Amendment is Arbitrary and Capricious
A proposed rule is invalid if it is arbitrary or capricious. Section 120.52(8)(e). An arbitrary decision is one not supported by facts or logic. A capricious action is one that is taken without thought or reason. Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978); cert. denied, 376 So.2d 74 (Fla. 1979).
As previously discussed, the proposed amendment authorizes the certification of transportation equipment used "on site" or at a "fixed location," but prohibits the certification of identical equipment simply because that equipment is used "off site." Specifically, DER's position is that the proposed amendment prohibits the certification of BFI's recycling vehicles simply because they are used "off site," although the same equipment could be certified if it were used solely for transportation of materials "on site" or at a "fixed location."
DER has offered no credible rationale or factual basis for the different results created by the application of the proposed amendment to identical equipment that performs an identical function. As such, the proposed amendment is arbitrary and capricious, and it therefore is an invalid exercise of delegated authority.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:
The proposed amendment to Rule 17-704.420(1)(c) is declared to be an invalid exercise of delegated legislative authority.
DONE and ORDERED this 19th day of June, 1990, in Tallahassee, Leon County, Florida.
JAMES E. BRADWELL
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the
Division of Administrative Hearings this 19th day of June, 1990.
ENDNOTES
1/ Jacksonville Electric Authority v. Department of Revenue,
486 So.2d 1350 (Fla. 1st DCA) rev. denied 492 So.2d 1331 (Fla. 1986).
2/ BFI's recycling vehicles also constitute "resource recovery equipment" as that term is defined in the proposed rule. That definition mirrors the definition set out in the statute, but specifically includes "recycling equipment." Proposed Rule 17- 704.200(12).
In turn, DER has proposed to define the term "recycling equipment" to mean "machinery or equipment exclusively or intergrally used in the actual process by which solid waste or materials which would otherwise become solid waste are separated or processed and reused or returned to use in the form of raw materials or products." Proposed Rule 17-701.200(9)
BFI's recycling vehicles are "equipment or machinery exclusively and integrally used" in the curbside recycling programs implemented on behalf of Alachua County and the City of Gainesville. These curbside recycles programs constitute an "actual process by which solid waste or materials which would otherwise become solid waste are separated or processed and reused or returned to use in the form of raw materials or products." The recycling vehicles therefore constitute
:recycling equipment" as the term is defined in Proposed Rule 17-704.200(9). As such, the recycling vehicles also constitute "resource recovery equipment" as that term is defined in proposed Rule 17-704.200(12).
COPIES FURNISHED:
Lawrence E. Sellers, Jr., Esquire HOLLAND AND KNIGHT
Post Office Drawer 810 Tallahassee, Florida 32303
Chris McGuire, Esquire Assistant General Counsel Department of Environmental
Regulation
2600 Blairstone Road
Tallahassee, Florida 32399-2400
Daniel H. Thompson, Esquire General Counsel
Department of Environmental Regulation
2600 Blairstone Road
Tallahassee, Florida 32399-2400
Dale H. Twachtmann, Secretary Department of Environmental
Regulation
2600 Blairstone Road
Tallahassee, Florida 32399-2400
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.
| Issue Date | Proceedings |
|---|---|
| Jun. 19, 1990 | Final Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 19, 1990 | DOAH Final Order | Whether the proposed rule which denies certification for equipment that collects and trasport waste is invalid. |
