STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COUNTY OF VOLUSIA, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3380RX

)

DEPARTMENT OF ENVIROMENTAL )

REGULATION, )

)

Respondent. )

)

FINAL ORDER

By a "Rule Challenge Proceeding" filed with the Division of Administrative Hearings on December 6, 1982, the County of Volusia contends that a portion of Rule 17-17.54(4)(c), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority. This cause was originally assigned to Chris H. Bentley as the designated Hearing Officer. Upon his resignation, the case was reassigned to the undersigned Hearing Officer by Order dated March 9, 1984. The parties declined the opportunity to present further oral argument to the undersigned.

APPEARANCES

For Petitioner: Daniel R. Vaughn

Assistant County Attorney Post Office Box 429 Deland, Florida 32720

For Respondent: John C. Bottcher

Deputy General Counsel 2600 Blair Stone Road

Tallahassee, Florida 32301 FINDINGS OF FACT

Based upon the "Rule Challenge Petition" and memoranda filed by the parties concerning the validity of the challenged rule, the following relevant facts are found:

1. Rule 17-17.54, Florida Administrative Code, became effective on November 20, 1980. The petition challenging a portion of this Rule was filed with the Division of Administrative Hearings on December 6, 1982.

   
   

2. During the adoption process, the Department of Environmental Regulation (DER) did not mail a notice of the proposed rule to Volusia County.

   
   

3. Volusia County was a local government party in the Florida Power and Light, Duval-to-Pointsett transmission line certification proceeding in Division of Administrative Hearings Case No. 81-1938. As such, and pursuant to Section

   403.523, Florida Statutes (1981), it sought to recover its costs and expenses incurred in connection with that proceeding. The amount sought was an amount in excess of the application fee. The challenged rule sets forth the procedures and limitations for reimbursement of costs and expenses.

   
   

   CONCLUSIONS OF LAW

   
   

4. Section 403.523(7), Florida Statutes (1981), authorizes the DER to require a fee from an applicant for a transmission line or corridor certification. The 1981 statute sets a minimum fee of $1,000, relates the amount of the fee to the length of the proposed transmission line corridor and sets the maximum amount of the fee at $15,000. The statute further provides, in pertinent part, that

   
   

   "All reasonable expenses and costs of the proceeding incurred by. . .any local government through the jurisdiction of which the corridor passes which becomes a party. . . shall be paid from the application fee."

   
   

   Any sums remaining are to be refunded to the applicant, and the applicant is to be provided with an itemized accounting of the expenditures.

   
   

5. Citing Section 403.523, Florida Statutes, as its authority and the law being implemented, the DER promulgated Rule 17-17.54, Florida Administrative Code, concerning corridor certification applications, fees and disbursement of funds. The Rule sets an initial fee of $6,000 for lines or corridors shorter than 25 miles, a fee of $2,500 plus $200 per mile for 25 miles or greater and a maximum fee of $15,000. Rule 17-17.54(4)(a). Subsection (4)(b) of the Rule provides that all fees required of an applicant are to be paid into a DER trust fund,

   
   

   "and thereafter drawn upon by the Department and other authorized agencies upon submittal of an invoice for costs incurred in processing the application."

   
   

   Subsection (4)(c) of the challenged rule provides that the Department "and other authorized agencies" may seek reimbursement from the fee and that

   
   

   ". . .Salary monies billed against the fee shall not be reimbursed until all other expenses have been paid from the fund. In the event that the application fee is insufficient to cover all salary expenses charged against the fee, monies shall be disbursed on a proportionate basis until the fee is exhausted. It shall be the responsibility of the Department to notify agencies in a timely manner of the total fee charged for the application, amounts committed, and amounts remaining available to meet expenses.

   Expenses in excess of the remaining fee shall be the responsibility of the agency incurring them."

   It is this latter quoted portion of Rule 17-17.54(4)(c), Florida Administrative Code, which is being challenged by Volusia County in this proceeding.

   Substantively, the County is challenging the DER's interpretation of the Statute in a manner which limits the recovery of costs and expenses to a prorata share of the application fee.

   
   

6. As an authorized party participant entitled to recover reasonable expenses and costs involved in transmission corridor certification proceedings, the County of Volusia has a substantial interest in Rule 17-17.54(4)(c) which sets forth the manner of distribution for such reimbursement. As such, Petitioner has standing to challenge this Rule pursuant to Section 120.56, Florida Statutes.

   
   

7. Though not specifically articulated in its "Rule Challenge Petition," it is apparent from the memoranda filed by the parties that the County of Volusia raises three grounds in support of its contention of the invalidity of Rule 17-17.54(4)(c). First, it is contended that the challenged rule does not contain an adequate economic impact statement. Second, it is contended that the DER's failure to mail a notice to Volusia County concerning the adoption of this Rule violated the rule adoption procedural requirements of Section 120.54(1)(a), Florida Statutes. And finally, the County contends that the Rule's limitation on reimbursement to a proportionate share of the application fee and its requirement that authorized agencies be solely responsible for all costs incurred in excess of that prorata share is violative of the statute, which allows the payment of "all" reasonable expenses and costs.

   
   

8. The inadequacy of an economic impact statement is not a ground for declaring a rule invalid unless that issue is raised within one year of the effective date of the rule to which the statement applies. Section 120.54(2)(c), Florida Statutes. The petition in this rule challenge proceeding having been filed more than two years subsequent to the adoption of Rule 17- 17.54, Florida Administrative Code, the adequacy of the statement of economic impact filed with that Rule is not a proper issue or ground for invalidity in this proceeding.

   
   

9. Section 120.54(1)(a), Florida Statutes, requires that notice of intended rule adoption be mailed to, among others, ". . .all persons named in the proposed rule. . ." and that notice as prescribed by rule be given. . .to those particular classes of persons to whom the intended action is directed." The DER's Rule 17-1.15, Florida Administrative Code, requires the Department, when a proposed rule is directed toward a particular class of persons, to mail notice "to each person whose name and address is listed with the Department as a member of such class. . ." The DER did not mail notice of Rule 17-17.54 to the County of Volusia prior to the Rule's adoption, and petitioner urges this as a ground for the Rule's invalidity. This contention fails for several reasons. First, the County of Volusia is not specifically named in the Rule. While it is an authorized agency which may seek reimbursement from the application fee, it only becomes such when it becomes a party to a certification proceeding. Just as the Department was not required to mail notice to every conceivable, potential applicant, it was not required to mail notice to every conceivable local government which may at some time become a party to a certification proceeding. It can also fairly be said that the "intended action" of the challenged Rule is not "directed" to counties or other agencies authorized to participate in transmission line certification proceedings. Rather, the Rule is "directed" to applicants, in terms of the fees that must accompany their application, and the DER, in terms of the distribution and refund of such fees. Finally, the County of Volusia has failed to demonstrate that its name and

   address was listed with the Department as a particular class of persons to whom the proposed rule was directed, within the meaning of Rule 17-1.15, Florida Administrative Code.

   
   

10. Just as its procedural challenge to the validity of the challenged rule must fail, so must its substantive challenge. The County of Volusia urges that Section 403.523(7), Florida Statutes (1981), permits the recovery of all reasonable expenses and costs incurred by a local government and that this statute should be interpreted to mean that the application fee is merely a deposit against the applicant's liability for such expenses and costs. This contention ignores the clear and plain language chosen by the Legislature in its enactment of Section 403.523(7), Florida Statutes (1981). That statutes provides that the DER may require an application fee not to exceed $15,000, and that "all reasonable expenses and costs of the proceedings incurred" by certain named agencies "shall be paid from the application fee." Inasmuch as the statute does not allow DER to set an application fee in excess of the statutory amount, it does not confer upon DER the authority to reimburse for costs and expenses beyond the amount of the application fee. Were DER to attempt to enact a rule for the reimbursement of costs and expenses beyond the limits of the application fee, it would indeed be exceeding its statutory authority. The challenged portion of Rule 17-17.54(4)(c) is a valid mechanism designed to fairly distribute the application fee to the appropriate parties when the fee is less than the actual reasonable expenses and costs of the proceeding incurred by those parties. The limitation of reimbursement to a proportionate amount of the application fee is a reasonable and valid exercise of delegated legislative authority.

    
    

11. The undersigned is not unmindful of the fact that Section 403.523(7), Florida Statutes, was amended by the Legislature in 1983 to provide an entirely different application fee structure, a minimum fee of $20,000, use of the fee for the payment of certain enumerated expenses and then a prorata application of any remaining fees to reimburse reasonable expenses incurred by agencies. The application fee which forms the basis for the County's interest in this case was obviously assessed under the prior law. Because Volusia County's rights to a proportionate share of that fee or an amount in excess of that fee were established prior to the adoption of the amendments to Section 403.523(7), Florida Statutes (1983), this Order has considered the validity of the challenged Rule in accordance with the law as it existed prior to the 1983 amendments. The undersigned has not considered, nor have the parties raised, the issue of the validity of Rule 17-17.54 as that may be affected by the amendments to Section 403.523(7), Florida Statutes (1983).

FINAL ORDER

Based upon the findings of fact and conclusions of law recited herein, it is ORDERED that the County of Volusia's rule challenge petition to a portion of Rule 17-17.54(4)(c), Florida Administrative Code, is DISMISSED.

ORDERED and ENTERED this 4th day of May, 1984, in Tallahassee, Florida.

DIANE D. TREMOR,

Hearing Officer

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 4th day of May 1984.

COPIES FURNISHED:

Daniel R. Vaughn Assistant County Attorney Post Office Box 429 Deland, Florida 32720

John C. Bottcher, Esquire Deputy General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel Secretary

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Carroll Webb Executive Director

Joint Administrative Procedures Committee Room 120, Holland Building

Tallahassee, Florida 32301

Liz Cloud Bureau Chief

Administrative Code Section Department of State

1802 Capitol

Tallahassee, Fl. 32301

Docket for Case No: 82-003380RX

Orders for Case No: 82-003380RX