FLORIDA-SPECTRUM ENVIRONMENTAL SERVICES, INC., FLOWERS CHEMICAL LABORATORIES, INC., AND BENCHMARK ENVIROANALYTICAL, INC.,
vs.
Case No. 17-4366RP
Respondent.
Administrative Law Judge D. R. Alexander conducted a final hearing in this case in Tallahassee, Florida, on November 13,
2017.
For Petitioners: Randall E. Denker, Esquire
The issue is whether proposed rule 62-160.300(5)(c) is an invalid exercise of delegated legislative authority, as alleged
October 17, 2017.
On March 14, 2017, the Department of Environmental Protection (Department) published its Notice of Proposed Rule (Notice), which made extensive revisions to Florida Administrative Code Chapter 62-160. The chapter establishes quality assurance standards for the collection and analysis of water quality data. On July 14, 2017, the Department published a Notice of Change, which makes further revisions to the chapter. Only proposed rule 62-160.300(5)(c) is challenged in this proceeding.
On August 2, 2017, Petitioners, Florida-Spectrum Environmental Services, Inc. (Florida-Spectrum), Flowers Chemical Laboratories, Inc. (Flowers), and Benchmark EnviroAnalytical, Inc. (Benchmark), all certified laboratories who perform collection and analysis of water quality data, filed their Petition challenging the validity of proposed rule
62-160.300(5)(c) on the following grounds: 1) the rule is vague, fails to establish adequate standards for agency decisions, and vests unbridled discretion in the agency; 2) the rule is arbitrary and capricious; and 3) the rule contravenes the specific provisions of law being implemented. By Order dated October 17, 2017, Petitioners were authorized to file an
Amended Petition for Rule Challenge. In the parties' Joint Pre- hearing Stipulation, Petitioners added a new statutory ground, section 120.52(8)(b), Florida Statutes, not cited in either pleading, alleging that the agency exceeded its grant of rulemaking authority. However, the pleadings contain general allegations (without a statutory citation) asserting that the Department exceeded its grant of rulemaking authority in two respects. See Amended Petition, ¶¶ 22 and 24. Therefore, those
allegations will be addressed.
At the hearing, Petitioners presented the testimony of four witnesses. Petitioners' Exhibits 1, 7, 9, and 13 through 18 were accepted in evidence. Exhibits 2 and 3 were proffered by Petitioners, while a ruling was reserved on the admissibility of Exhibits 4 and 12. The latter two exhibits have been treated as hearsay, not subject to an exception, and are used only to the extent they supplement other competent evidence. The Department presented the testimony of three witnesses. Department Exhibits 1 through 3 and 5 were accepted in evidence. Joint Exhibits 1 through 6 were accepted in evidence. Finally, the Department's Request for Official Recognition of certain
legislative staff reports, filed almost a month after the record closed, is denied.
A two-volume Transcript of the proceeding was prepared.
Final Order.
The Department is the agency charged with the responsibility of adopting quality assurance rules for the collection and analysis of water quality data submitted to the Department. § 403.0623(1), Fla. Stat. These standards have been codified in chapter 62-160. They are designed to "assure that chemical, physical, biological, microbiological and toxicological data used by the Department are appropriate and reliable, and are collected and analyzed by scientifically sound procedures." Fla. Admin. Code R. 62-160.110(1).
Part III of chapter 62-160 addresses laboratory certification and procedures. The Legislature has mandated that when water quality data are used to determine the quality of drinking water or the effluent of a domestic wastewater facility, all laboratories generating such data for submission to the Department must hold certification from the Department of Health (DOH) under the Department of Health, Environmental Laboratory Certification Program (DOH ELCP). See §§ 403.863(7)
and 403.0625(2), Fla. Stat. Although DOH is the state's environmental laboratory accreditation program body, the Department has rulemaking authority to determine what types of
laboratory data require DOH ELCP certification. § 403.0623, Fla. Stat. Not every laboratory test requires certification for the Department to accept the resulting data.
Certified laboratories must have approved Standard Operating Procedures (SOPs), a formalized, written set of instructions which are followed for sample collection and preservation. The SOPs are reviewed by the Department to ensure they provide sufficient laboratory quality assurance.
Petitioners are among the more than 100 laboratories in the state that fall within the class of laboratories that must meet DOH ELCP certification standards. They provide testing services primarily for local governments, consultants, and commercial accounts. Petitioners take pride in the fact that they meet all federal and state standards for testing, their laboratories are owned and managed by professionals, and they have been successfully performing these services for decades.
The dispute here centers on proposed rule 62- 160.300(5)(c), which allows non-certified "statutorily created volunteer monitoring organizations" to submit water quality data to the Department for certain purposes. Petitioners, who are in the business of generating environmental data to the Department, allege that if they are required to compete with a non-certified laboratory, it will "directly affect their ability to earn a living and will interfere with their contractual relationships."
Currently, the only statutorily created volunteer monitoring organization in the state is the Florida LAKEWATCH Program (Lakewatch), an organization created in 2002 within the Department of Fisheries and Aquaculture of the Institute of Food and Agricultural Sciences (IFAS) at the University of Florida. See § 1004.49, Fla. Stat.
Petitioners' Operations
Florida-Spectrum, located in south Florida, spends around $100,000 annually to keep its five laboratories properly certified. Around a third of its business is testing for municipalities, a third for industries (such as investor-owned utilities), and a third for consultants. It performs lake water sampling for three cities for the purpose of compliance monitoring, but the proposed rule does not allow a non-certified laboratory to submit data to the Department for this purpose.
Flowers, located in the greater Orlando area, estimated its annual direct cost to remain certified is around $52,000.00. It provides testing services primarily for domestic waste water effluent and drinking water. Only five percent of its testing is in lakes.
Although Benchmark did not provide its annual cost to be certified, more than likely it incurs a similar expense, as it performs water testing primarily for engineering firms and municipalities located along the west coast from Tampa to
Naples. A very small percentage of work involves testing in lakes to determine compliance with drinking water standards.
The Proposed Rule
Existing rule 62-160.300(5)(e), in effect since 2002, allows the Department to waive the certification requirement for an entity that uses "[m]ethods approved for site-specific, limited-use purpose if such certification is specifically waived by the Department program for which the method will be used." The provision has rarely been used, and then "usually only [for] research projects directly funded by DEP." Pet'r Ex. 14, p. 2.
The Department proposes to substantially revise existing rule 62-160.300, entitled Laboratory Certification, by adding new text, deleting language, and renumbering the revised provisions. Although the Notice proposed only a minor change to existing rule 62-160.300(5)(e), the Notice of Change deletes that provision in its entirety and proposes to
adopt new rule 62-160.300(5)(c), which allows the Department to consider and use data generated by non-certified "statutorily created volunteer monitoring organizations."
New paragraph (5)(c) provides that certification is not required for the following tests or analyses:
(c) Methods used by statutorily created volunteer monitoring organizations, when the Department has reviewed and concluded that the organization's Standard Operating Procedures provide sufficient quality
assurance requirements for Department purposes.
The rule is designed to apply to an organization with a very small laboratory and a single purpose. Lakewatch's only purpose is to sample water quality in lakes, with an emphasis on total nitrogen, phosphorus, chlorophyll a, and water clarity. The IFAS laboratory has only "a couple of career staff." Lakewatch performs no sampling for municipalities, commercial accounts, or other entities typically served by certified laboratories.
Section 1004.49 authorizes Lakewatch to "[t]rain, supervise, and coordinate volunteers to collect water quality data from Florida's lakes" and to "[c]ompile the data collected by volunteers." The organization consists of citizen volunteers (almost 1,500 as of May 2014), mainly lake residents, who take and hold water samples and then send them to be analyzed by the IFAS laboratory. The results are collected and maintained in a Lakewatch database coordinated by the IFAS. The testing results are forwarded to the Department for inclusion in various databanks.
In somewhat unclear terms, a Department witness explained that the purpose of the rule is "to do routine housekeeping for aspects of the rule that [the Department] thought needed revising based on stakeholder input from all
sectors." However, the Notice further explains that the new rule "provide[s] increased flexibility for approval of alternative methods," and it "clarif[ies] when [DOH] laboratory certification is not required, because substitute quality assurance requirements will apply."
In addition, the Department points out that it has the responsibility of assessing all waters in the State, but lacks the resources to perform this task. At any one time, the Department estimates that Lakewatch is sampling the water in over 100 lakes, many of which are in remote areas that are not accessed by other laboratories. The acceptance of Lakewatch data will fill a gap in the Department's assessment role. Even when data are of lesser quality, they can be valid for some purposes. As a general rule, it is helpful for the Department to maximize the data available for review.
Does the Rule Exceed the Grant of Rulemaking Authority?
The Notice cites as rulemaking authority four statutes, including sections 403.0623 and 403.0625.
Section 403.0623(2) authorizes the Department to "establish standards for the collection and analysis of water quantity, water quality, and related data to ensure quality, reliability, and validity of the data and testing results" and "to adopt rules to implement this subsection." Section 403.0625(1) authorizes the Department and DOH to "jointly establish criteria
for certification of laboratories that perform analyses of environmental samples that are not covered by the provisions in s. 403.863."
Petitioners allege the new rule exceeds the grant of rulemaking authority in section 403.0625(1) because the DOH did not participate in the drafting of the regulation.
Because the rule does not create any standards for laboratory certification, DOH input is not required. The Department's routine practice is to informally collaborate with DOH only for issues that are specific to test methodology or topics related to DOH's scope of certification for environmental test methods.
Petitioners also contend the rule exceeds the grant of authority in section 403.0625(2), which provides that only certified laboratories may submit water quality data to determine "the quality of the effluent of a domestic wastewater facility." However, this contention has been treated as an argument that the rule contravenes the statute and is addressed in the following section of this Recommended Order.
Does the Rule Contravene the Law Being Implemented?
The Notice states that the revisions to chapter 62-160 implement more than 20 statutes, including sections 403.0623
and 403.0625.
At hearing, Petitioners asserted that Lakewatch volunteers have sampled water in the St. Johns River, which has package plants that impact both the river and the Green Swamp. They did not disclose the extent of such sampling in the river, and, its purpose.
Petitioners incorrectly assume the purpose of the rule is to allow Lakewatch to continue to submit data from areas affected by domestic wastewater effluent, in violation of section 403.0625(2). Assuming that river samples were submitted to the Department, the proposed rule does not legitimize the submission of data for that purpose.
Petitioners contend the proposed rule will contravene other Department rules which set general requirements for collection and laboratory methods, including minimum holding times. However, the proposed rule authorizes the Department to approve an alternate method or procedure for some methods used by the organization. Therefore, Lakewatch does not follow generally approved requirements for sample preservation. Rather, it follows approved alternate methods evaluated and approved by the Department. Likewise, Lakewatch relies on an approved limited-use method for chlorophyll extraction, rather than following the typical methods used by certified laboratories.
Vagueness, Lack of Standards, and Unbridled Discretion
The proposed rule requires an organization's data to be of "sufficient quality assurance" to meet Department purposes. Petitioners argue that by simply using the word "sufficient," rather than mandating that the data be "accurate and reliable," the rule gives the Department unbridled discretion in determining what level of assurance is required. However, this is a distinction without a difference.
The Department's determination will be based on whether the laboratory procedures conform to the use of approved methods, sample preservation procedures, and recordkeeping and reporting procedures. See Pet'r Ex. 18. The Department will
also consider whether the organization has the ability to produce valid data that can withstand scrutiny under the criteria in rule 62-160.670. Id. Depending on the purpose of the data, criteria in other rules will be applied to the approval of methods and acceptance of data. See, e.g., Fla.
Admin. Code R. 62-160.330 and 62-160.670.
In those instances when certification is not required, new rule 62-160.300(9) requires that the organization's laboratory "follow the relevant Department-approved methods as provided in Rule 62-160.320, F.A.C., and shall meet all other requirements for laboratories as provided in this Chapter." Coupled with the challenged rule, this change sets a floor for
quality assurance in uncertified laboratories with approved SOPs. Therefore, a non-certified laboratory must have minimum requirements for method detection limits, reporting and documentation, preservation of samples, data validation, and procedures for coding data that do not meet quality control criteria.
Given the different purposes for which data are submitted, and the variability of data quality objectives that must be achieved, the Department must necessarily have some level of flexibility and discretion. It would be impractical to include in the rule every potential circumstance that might arise during this assessment.
In sum, the record supports a finding that there are adequate and definitive standards in place to ensure that the operating procedures of a non-certified laboratory are sufficiently reliable for the Department to accept the data.
Use of Lakewatch Data
Section 1004.49 provides that "[d]ata collected and compiled [by Lakewatch] shall be used to establish trends and provide general background information and shall in no instance be used in a regulatory proceeding." However, the term "regulatory proceeding" is not defined. Even though the law is almost 16 years old, the Department has not yet taken a formal position on how the term should be interpreted and generally
decides this issue on a case-by-case basis. While the Department admits that the undefined term is a source of confusion, its practice is to never use Lakewatch data for enforcement action or permit compliance. On the other hand, the Department says the statute is "unclear" on whether Lakewatch data can be used for ambient water quality assessments and restoration plans, such as water listings and Total Maximum Daily Loads. Therefore, Lakewatch data have been used for trend analysis, background information, agency resource allocation, and the compilation of the planning list under the Impaired Waters Rule. The Department does not consider these uses to violate the statutory proscription.
From 2013 until August 2017, the Department used Lakewatch data for some purposes that may have been inconsistent with section 1004.49. However, that practice has ceased, and the Department now uses Lakewatch data in a manner that it believes is consistent with the statutory directive.
Petitioners argue that the improper use of data during the five- year period, by itself, is a sufficient basis to invalidate the rule. This contention is rejected.
After a comparability study of Lakewatch and Department data was conducted by the Department in 2011-2012, the Department initiated a review of the Lakewatch SOPs. The SOPs have been periodically revised, the last time in 2016, to
incorporate certain quality control measures recommended by the Department. Although Petitioners contend otherwise, the SOPs provide sufficient laboratory quality assurance for accepting data for trend analysis, setting priorities on monitoring plans, and general information.
Petitioners' Substantial Interests
Petitioners are concerned the Legislature will create other volunteer organizations and this will result in multiple organizations taking advantage of the new rule. They also fear the Department will amend the new rule to allow other non- certified organizations to submit data. These concerns are speculative in nature and without evidentiary support.
Because Lakewatch services are free, Petitioners contend their customers will use Lakewatch volunteers rather than paying a certified laboratory for testing services. However, Petitioners did not identify any "contractual relationship" that will be interfered with by virtue of the rule, any existing customer that will move its business to Lakewatch, or more importantly, the percentage of their work, if any, that coincides with work being performed by the volunteer organization. In sum, the evidence does not support a finding that Lakewatch volunteers will compete for the services now provided by Petitioners, who pay substantial fees each year to remain certified.
Petitioners posit that if the proposed rule is adopted, the term "regulatory proceeding" will be applied in such a way as to allow Lakewatch data to be accepted and used for a wide range of testing purposes, including regulatory proceedings. But this assumption is based on speculation, and current law prohibits the rule being applied in this manner. If Petitioners disagree with how the rule is applied, there are other remedies in chapter 120, including a requirement that a point of entry be given to third parties when an agency order is involved. The fact that Petitioners may not be notified every time the Department uses data from a volunteer monitoring organization is not a ground for invalidating the rule.
Most of Petitioners' evidence at hearing questioned the reliability and accuracy of testing services by Lakewatch. Among other things, Petitioners contend Lakewatch uses volunteers with limited training and experience, its collection and preservation methods do not conform to acceptable professional standards, the Department has never audited the Lakewatch laboratory, and a 2011-2012 comparability study of Lakewatch data with Department data is flawed in many respects. To determine the validity of the rule, however, more on that story need not be told at this time.
CONCLUSIONS OF LAW
Section 120.56(1)(a) provides that any person substantially affected by a proposed rule may seek an administrative determination of the invalidity of the rule on the ground the rule is an invalid exercise of delegated legislative authority. Pursuant to section 120.56(2)(a), Petitioners have the burden to prove their standing, and if they meet their burden, then the Department has the burden to prove that the challenged proposed rule is not an invalid exercise of delegated legislative authority. The standard of proof is by a preponderance of the evidence. § 120.56(2)(a), Fla. Stat. Proposed rules are not presumed to be valid or invalid.
§ 120.56(2)(c), Fla. Stat.
To establish standing, the challenger must be "substantially affected" by the proposed rule. § 120.56(2)(a), Fla. Stat. A person is substantially affected if the proposed rule is or will be applied to that person as a basis for the agency action. Standing is not predicated on showing that the challenger would prevail on the merits of the proceeding. It is sufficient to show that the challenger was subjected to the rule as a basis for the agency's action. A less demanding standard applies in a rule proceeding than in a section 120.57 proceeding, and the standard differs from the "substantial interest" standard of a licensure proceeding. See, e.g.,
Abbott Labs. v. Mylan Pharms., Inc., 15 So. 3d 642, 651 n.2
(Fla. 1st DCA 2009); Cole Vision Corp. v. Dep't of Bus. & Prof'l Reg., 688 So. 2d 404, 407 (Fla. 1st DCA 1997).
Therefore, Petitioners must demonstrate that the rule will result in a real and immediate injury in fact and that the alleged interest is within the zone of interest to be protected or regulated. Jacoby v. Fla. Bd. of Med., 917 So. 2d 358, 360
(Fla. 1st DCA 2005). To satisfy the real and immediate injury in fact element, there must be a specific injury that could reasonably result from the proposed administrative action. It cannot be the product of pure conjecture or speculation. Ward v. Bd. of Trs. of the Internal Improvement Tr. Fund, 651 So. 2d
1236, 1237 (Fla. 4th DCA 1995). However, "the proper inquiry is on the likelihood of injury, not that it be certain." SCF, Inc.
v. Fla. Thoroughbred Breeders' Ass'n, Inc., 227 So. 3d 770, 776 (Fla. 1st DCA 2017).
Petitioners claim the adoption of the rule will "directly affect their ability to earn a living and will interfere with their contractual relationships." In support of this contention, Petitioners assert the rule will place them in direct competition with Lakewatch and result in a loss of customers who will choose to use the free testing services of Lakewatch, rather than paying Petitioners for the same service, and that it will interfere with existing contractual
relationships. They also assert the Legislature may create more volunteer organizations, and the Department may further amend the rule to allow other types of non-certified organizations to submit data. Finally, they contend the data submitted by Lakewatch is unreliable and will create questionable databases, and this will undermine their "missions" as certified laboratories and cause confusion in the minds of the public and their clients.
As previously found, the record shows otherwise.
Petitioners did not identify any customer that has ever used the services of Lakewatch, or has indicated it will switch business to that type of organization. Petitioners did not identify any contractual relationship that might be impaired. Most of Petitioners' testing services are for domestic wastewater effluent and drinking water programs, which services cannot be provided by a non-certified laboratory under current law or the proposed rule. Lakewatch does not provide testing services for cities, commercial accounts, or consultants, which make up most, if not all, of Petitioners' business. The assumption that the Legislature may create more volunteer organizations, and that the rule may be further amended to allow other organizations to submit data without certification, is speculation without evidentiary support. Finally, the assertion that the rule will result in unreliable and untrustworthy Department databases and
lead to confusion on the part of the public and Petitioners' clients is deemed to be speculative and contrary to the accepted evidence. In short, the alleged injury is the product of speculation and conjecture, is unlikely to occur, and is therefore not sufficiently real and immediate.
Accordingly, Petitioners have failed to identify a specific injury that will reasonably result from the adoption of the rule. Because Petitioners will not be directly and immediately harmed by the proposed rule, Petitioners lack standing to challenge the rule. Notwithstanding this determination, the merits of their claims will be addressed below.
The term "invalid exercise of delegated legislative authority" is defined by section 120.52(8). Petitioners challenge the proposed rule as an invalid exercise of delegated legislative authority on the basis of paragraphs (8)(b), (c), (d), and (e). Those provisions provide that a proposed rule is invalid if the following apply:
(8) "Invalid exercise of delegated legislative authority" means action that goes beyond the powers, functions, and duties delegated by the Legislature.
A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:
* * *
The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;
The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency;
The rule is arbitrary or capricious. A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational;
* * *
A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling statute. No agency shall have the authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency's class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the enabling statute.
Whether the Rule Exceeds its Grant of Rulemaking Authority
The Notice cites sections 403.0623 and 403.0625 as rulemaking authority for the challenged rule. Petitioners contend the Department exceeded its grant of rulemaking authority under section 403.0625(1) by failing to "jointly" work with DOH in drafting the rule. The statute does not apply here, as the proposed rule does not create new criteria for laboratory certification.
Because section 403.0623(2) contains the necessary "specific grant of legislative authority" for the Department to adopt the rule, the Department did not exceed its grant of rulemaking authority pursuant to section 120.52(8)(b).
Whether the Rule Contravenes the Law Implemented
The Notice cites sections 403.0623 and 403.0625 as the law being implemented. Petitioners contend the proposed rule is invalid because it contravenes section 403.0625(2), which requires that only certified laboratories may conduct testing to determine the quality of the effluent of a domestic wastewater facility. However, as stated before, the rule does not permit a volunteer organization to submit data for this purpose.
Petitioners contend the new rule contravenes a federal regulation (40 CFR § 136). However, federal standards are not the law being implemented.
Petitioners contend the new rule contravenes
section 1004.49, which created the Lakewatch program. However, the new rule does not authorize a volunteer organization to submit data for an unauthorized purpose.
In sum, the rule does not contravene the specific provisions of the law implemented in violation of section 120.52(8)(b).
Vagueness, Inadequate Standards, or Vesting Unbridled Discretion in the Department
Section 120.52(8)(d) provides that a rule is an invalid exercise of delegated legislative authority where the rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency. A rule is considered vague if it requires performance of an act in terms that are so vague that people of common intelligence must guess as to its meaning. State v. Peter R. Brown Const., Inc.,
108 So. 3d 723, 728 (Fla. 1st DCA 2013). The rule does not violate this proscription.
Petitioners further contend the rule fails to establish adequate standards and vests unbridled discretion in the Department by failing to contain any standards governing how the methods are approved. The sufficiency of a rule's standards and guidelines "may depend on the subject matter dealt with and the degree of difficulty involved in articulating finite
standards." Askew v. Cross Key Waterways, 372 So. 2d 913, 918
(Fla. 1978). An agency need not adopt rules in such "excruciating detail" that they address every potential circumstance that may arise during their implementation.
Cole Vision Corp., 688 So. 2d at 410. As previously found, the
proposed rule provides sufficient standards and details for guiding the approval process. The preponderance of the evidence demonstrates that the proposed rule establishes adequate standards for agency decisions and does not vest unbridled discretion in the Department. The rule is not invalid under section 120.52(8)(d).
Arbitrary and Capricious
Section 120.52(8)(e) declares that a rule is an invalid exercise of delegated legislative authority when it is arbitrary and capricious. The statute states that a rule is arbitrary if it "is not supported by logic or the necessary facts." A rule is capricious "if it is adopted without thought or reason or is irrational." A determination is not arbitrary or capricious if it is justifiable "under any analysis that a reasonable person would use to reach a decision of similar importance." See Dravo Basic Materials Co. v. Dep't of Transp.,
602 So. 2d 632, 634 (Fla. 1st DCA 1992).
In light of these principles, there is no credible evidence that the proposed rule is not supported by logic
and the necessary facts or that it was taken without thought or reason or irrationally. The rule is not invalid under section 120.52(8)(e).
In summary, the Department has proven by a preponderance of the evidence that the rule is a valid exercise of delegated legislative authority. § 120.56(2)(a), Fla. Stat.
ORDERED that proposed rule 62-160.300(5)(c) is not an invalid exercise of delegated legislative authority. The Amended Petition for Rule Challenge is denied.
DONE AND ORDERED this 30th day of January, 2018, in Tallahassee, Leon County, Florida.
D. R. ALEXANDER Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 2018.
Randall E. Denker, Esquire Denker Law Office
R. A. Gray Building
Robert A. Williams, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35
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 the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within
30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
