STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOOKER CREEK PRESERVATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-1435RP

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

FINAL ORDER

Petitioner, Booker Creek Preservation, Inc., filed a "petition to determine the invalidity of a proposed rule" of the Respondent, Department of Environmental Regulation. Petitioner is seeking an order declaring that the Respondent's proposed rule by which Respondent is seeking to repeal its present Rule 17-2.05(8), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority. By order entered May 29, 1981, the Director of the Division of Administrative Hearings assigned the matter to the undersigned Hearing Officer. The final hearing was scheduled by notice dated June 3, to be conducted on June 25, 1981.

Prior to the final hearing, Petitioner filed motions for continuance and for change of venue. These motions were denied. The motions were raised again at the final hearing and were denied on the record.

The issues in this matter are whether the Petitioner has standing to challenge the validity of the Respondent's proposed repeal of its rule; and if so, whether the repeal constitutes an invalid exercise of delegated legislative authority.

Proposed findings of fact and conclusions of law have been submitted. To the extent that proposed findings and conclusions have not been expressly adopted herein, they have been rejected as not supported by the evidence or as irrelevant to the issues.

FINDINGS OF FACT

1. Petitioner is a corporation which has as its purpose the preservation of air quality in Pinellas County and in the State of Florida. Petitioner has approximately twenty members.

   
   

2. The Department of Environmental Regulation has published notice that it is proposing to repeal its Rule 17-2.05(8), Florida Administrative Code. This rule is known as the "Complex Source Rule". It requires that permits be obtained from the Department before a facility which can reasonably be expected to cause an increase in concentrations of air pollutants is constructed.

3. Petitioner is a party in a proceeding in which another party has submitted an application for a complex source permit. Administrative appeals of final agency action adverse to the Petitioner are being pursued. If the "Complex Source Rule" is repealed, the proceeding would be subject to dismissal.

   
   

4. The primary focus of the "Complex Source Rule" is to regulate concentrations of pollutants that are generated by automobiles that would use a facility for which a permit is sought. There are other methods for controlling this sort of pollution. These include the Federal Motor Vehicle Control Program, which is designed to decrease the pollutants in automobile emissions; non-attainment plans designed to bring an area where pollutants exist at levels in excess of Respondent's rules into compliance; various federal monitoring programs; and mechanical alteration of motor vehicles, including installation of catalytic converters and greater fuel efficiency. Arguably, the "Complex Source Rule" would augment the desirable impacts of these other means of dealing with automobile related pollution. Petitioner has failed to establish, however, that these other methods and programs are not adequate to deal with the problems.

   
   

   CONCLUSIONS OF LAW

   
   

5. Petitioner lacks standing to maintain this challenge to the Respondent's proposed withdrawal of its "Complex Source Rule". Section 120.54(4)(a), Florida Statutes, provides:

   
   

   Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority.

   
   

   Associations such as the Petitioner lack standing to maintain rule challenge proceedings on the basis that their members are individually substantially affected by the rules or proposed rules. Department of Labor and Employment Security v. Florida Homebuilders Association, 392 So.2d 21 (1 DCA Fla. 1980); Florida Department of Education v. Florida Education Association, 378 So.2d 893 (1 DCA Fla. 1979). The fact that the Petitioner is a party to a "Complex Source Rule" proceeding does not clothe it with standing. The Department has not taken action to apply its "Complex Source Rule" to the Petitioner, nor is the Petitioner seeking a permit. Rather, the Petitioner is opposing the issuance of a permit to a third party. The Petitioner's standing to maintain that proceeding is suspect in view of the Florida Homebuilders and Florida Education Association decisions.

   
   

6. Petitioner's evidence, at most, establishes that the "Complex Source Rule" is one means of controlling automobile related air pollution. This evidence falls far short of the degree of proof that would be required to establish that the repeal of the "Complex Source Rule" is arbitrary and capricious. See: Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759 (1 DCA Fla. 1979). Petitioner contends that the proposed repeal is invalid because it offends the constitutional mandate set out at Article II, Section 7 of the Florida Constitution, which provides:

It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provisions shall be made by law for the abatement of air and water

pollution and of excess of and unnecessary noise.

The legislature has sought to implement this provision in part by the adoption of Chapter 403, Florida Statutes. Chapter 403 is the legislative authority for the "Complex Source Rule". Nothing in the constitutional provision nor in Chapter 403 specifically require such a rule. The constitutional mandate has vested the legislature with broad discretion in determining how to implement the policy. Similarly, the legislature has vested the Department of Environmental Regulation with broad discretion in implementing the policies set out in Chapter

403. Requiring a "Complex Source Rule" or any other specific means of pollution abatement through a rule challenge proceeding would infringe upon the Respondent's administrative discretion and upon the discretion of the legislature.

7. In its petition, the Petitioner contended that the proposed repeal of the "Complex Source Rule" is invalid because it has not been accompanied by an adequate economic impact statement. Petitioner has offered no proof in support of this contention.

FINAL ORDER

Based upon the foregoing findings of fact and conclusions of law, it is, hereby

ORDERED:

Petitioner has failed to establish that the Department's proposed repeal of its Rule 17-2.05(8) constitutes an invalid exercise of delegated legislative authority, and the "Petition to Determine the Invalidity of a Proposed Rule" is accordingly dismissed.

DONE and ORDERED this 23rd day of July, 1981, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1981.

COPIES FURNISHED:

Louis F. Hubener, Esquire Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Peter Belmont

Booker Creek Preservation, Inc.

230 Driftwood Road, S.E.

St. Petersburg, Florida 33705

Liz Cloud, Chief

Bureau of Administrative Code 1802 Capitol

Tallahassee, Florida 32301

Carroll Webb

Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

David S. Dee, Esquire

Carlton, Fields, Ward, Emmanuel, Smith & Cutler

Post Office Drawer 190 Tallahassee, Florida 32302

Docket for Case No: 81-001435RP

Orders for Case No: 81-001435RP