STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ALLIANCE FOR RATIONAL GROUND ) WATER RULES and ADAM SMITH ) ENTERPRISES, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 86-4492RP
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondent, )
and )
)
FLORIDA ELECTRIC POWER ) COORDINATING GROUP, INC. and ) WEST COAST REGIONAL WATER ) SUPPLY AUTHORITY, )
)
Intervenors. )
) ALOHA UTILITIES, INC., et al., )
)
Petitioner, )
)
vs. ) CASE NO. 86-4705RP
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION AND ENVIRONMENTAL ) REGULATION COMMISSION, )
)
Respondent, )
and )
)
FLORIDA ELECTRIC POWER ) COORDINATING GROUP, INC., WEST ) COAST REGIONAL WATER SUPPLY ) AUTHORITY, FLORIDA LAND COUNCIL) and CONCERNED CITIZENS OF ) CITRUS COUNTY, INC., )
)
Intervenors. )
)
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled consolidated cases on April 27-May 1, 1987, and August 10-19, 1987, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Chris H. Bentley, Esquire
Adam Smith ROSE, SUNDSTROM & BENTLEY
Enterprises, Inc. 2544 Blairstone Pines Drive
Tallahassee, Florida 32301
For Petitioner: Seth T. Craine, Esquire Alliance for Rational STEARNS, WEAVER, MILLER,
Groundwater Rules WEISSLER, ALHADEFF & SITTERSON One Tampa City Center, Suite 300 Post Office Box 3299
Tampa, Florida 33601
For Petitioners: Martin S. Friedman, Esquire Aloha Utilities, Inc.; ROSE, SUNDSTROM & BENTLEY Interphase Inc.; Phase 2544 Blairstone Pines Drive
1 Homes, Inc.; A.C. & R., Tallahassee, Florida 32301 Inc.; Tahitian Development,
Inc.; Great Cypress Mobile Village, Inc.; and Barrington, Ltd.
For Respondent: Cynthia K. Christen, Esquire
Department of Assistant General Counsel Environmental Regulation Department of Environmental and Environmental Regulation
Regulation Commission 2600 Blairstone Road
Tallahassee, Florida 32399-2400
For Intervenor: William D. Preston, Esquire Florida Electric Power William H. Green, Esquire Coordinating Group, Inc. Anne Claussen, Esquire
HOPPING, BOYD, GREEN, & SAMS
420 First Florida Bank Building Post Office Box 6526 Tallahassee, Florida 32314
For Intervenor: Charles G. Stephens, Esquire
Florida Land 202 Madison Street
Council, Inc. Tampa, Florida 33602
For Intervenor: Edward B. Halvenston, Esquire
Pasco County Assistant County Attorney Pasco County Government Center 7530 Little Road
New Port Richey, Florida 33553
For Intervenor: Edward M. Chew, Esquire
West Coast Douglas M. Wyckoff, Esquire
Regional Water DeLa PARTE, GILBERT & GRAMOVOT
Supply Authority 705 East Kennedy Boulevard Tampa, Florida 33602
For Intervenor: Concerned Thomas W. Reese, Esquire Citizens of Citrus 123 Eighth Street North County, Inc. St. Petersburg, Florida 33701
PRELIMINARY STATEMENT
This is a rule challenge brought under the provisions of Section 120.54(4), Florida Statutes.
The issues for determination are whether the Department of Environmental Regulation's proposed rules 17-3.021, 17-3.403, 17- 3.404, and 17-4.245, Florida Administrative Code, constitute an invalid exercise of delegated legislative authority.
At hearing Petitioner, Adam Smith Enterprises, Inc. (Adam Smith), presented the testimony of 12 witnesses, and its exhibits 1-9, 11-15, 17-24, 26, 32-53 were received into evidence.
Testifying on behalf of Adam Smith were David Skinner; Elizabeth Field; Donnie R. McClaugherty; Charles C. Aller; John Vecchioli; Howard L. Rhodes; Rodney DeHan; Philip E. LaNoreaux; accepted as an expert in hydrogeology; Basher A. Memon, accepted as an expert in hydrogeology and applied mathematics; Dale H. Twachtmann; Richard Klusza, accepted as an expert in real estate appraisal; and, Kenneth W. Watson. Petitioner, Alliance for Rational Groundwater Rules, called David Skinner as a witness, and its exhibit 1 was received into evidence.
Petitioners, Aloha Utilities, Inc., Interphase, Inc., Phase 1 Homes, Inc., A.C. & R., Inc., Tahitian Development, Inc., Great Cypress Mobile Village, Inc., and Barrington, Ltd., called as witnesses: Fredrick W. Bell, accepted as an expert in resource and environmental economics, and the preparation of economic impact statements; and, Steven G. Watford. No exhibits were offered on behalf of these petitioners.
The Department of Environmental Regulation (Department) presented the testimony of 5 witnesses, and its exhibits 1, 2A, 2B, and 3-11 were received into evidence. Testifying on behalf of
the Department were Elizabeth Field, accepted as an expert in economics; Rodney DeHan, accepted as an expert in microbiology and biochemistry; Charles C. Aller; John Vecchioli; and Mark T. Stewart, accepted as an expert in geology, hydrogeology, water resource management, and applied mathematics in geology and hydrogeology.
Intervenors, Florida Electric Power Coordinating Group, Inc., Florida Land Council, and Pasco County, were aligned with petitioners. Florida Electric Power Coordinating Group, Inc., presented the testimony of Robert Guyer and J. I. Garcia- Bengochea, who was accepted as an expert in groundwater resources, and its exhibits 1-3 were received into evidence. Florida Land Council called Charles B. Littlejohn, and its exhibit 1 was received into evidence. Pasco County presented the testimony of William G. Munz and Ross T. McGillivary, who was accepted as an expert in geotechnical engineering including the measurement and evaluation of the hydrologic properties of soil and rock, and its exhibits 1-3 were received into evidence.
Intervenors, West Coast Regional Water Supply Authority (West Coast) and Concerned Citizens of Citrus County, Inc. (Concerned Citizens), were aligned with the Department. West Coast presented the testimony of 2 witnesses, and its exhibits 1, 1a, 2-8, 10 and
11 were received into evidence. Testifying on behalf of West Coast were Scott H. Emery and Kenneth W. Watson, who was accepted as an expert in groundwater hydrology, modeling of groundwater hydrology, soil physics, and applied mathematics. Concerned Citizens presented the testimony of Miriam Cohen, but offered no exhibits.
The final volumes of the transcript of hearing were filed September 17, 1987. The parties were granted leave until November 23, 1987, to serve proposed findings of fact, and waived the requirement that the final order be filed within thirty days of the date the transcript is filed. The parties' proposed findings of fact have been addressed in the appendix to this final order.
FINDINGS OF FACT
Background
In 1983, Concerned Citizens of Citrus County, Inc. (Concerned Citizens), an intervenor in this case, filed a petition toe initiate rulemaking for single source reclassification of groundwater under the existing provisions of Rule 17-3.403, Florida Administrative Code (F.A.C.). In this manner, Concerned Citizens sought to have existent potable waters in Pinellas,
Hillsborough, Pasco, Hernando, and Citrus Counties classified Class G-I groundwater, and to thereby provide them the most stringent water quality protection accorded groundwaters of the state.
At a public meeting in February 1985, the Environmental Regulation Commission (ERC) deferred action on the petition of Concerned Citizens, and directed the Department of Environmental Regulation (Department) to review the existing G-I rule, prepare proposed revisions, and present its recommendations to the ERC.
Following the ERC directive, the Department held numerous public meetings and workshops to explore different approaches to groundwater protection. As a consequence, it prepared the proposed revisions to Rules 17-3.021, 17-3.403, 17-3.404, and 17- 4.245, F.A.C., at issue in these proceedings.
On October 31, 1986, the Department duly noticed the proposed rules in volume 12, number 44, of the Florida Administrative Weekly. The notice interested parties that a public hearing would be held on December 16, 1986, before the ERC. 1/
On December 16-17, 1986, the ERC held a public hearing at which time it considered the rules recommended by the Department. During the course of this meeting, the ERC approved and adopted the rules with certain changes. These changes were duly noticed in volume 13, number 3, of the Florida Administrative Weekly on January 16, 1987.
Petitioners and Intervenors
Petitioners, Adam Smith Enterprises, Inc., and Alliance for Rational Groundwater Rules (Case No. 86-4492RP), and Petitioners Aloha Utilities, Inc.; Interphase, Inc.; Phase 1 Homes, Inc.; A.C. & R., Inc.; Tahitian Development, Inc.; Great Cypress Mobile Village, Inc.; and Barrington, Ltd. (Case No. 86- 4705R), filed timely petitions to challenge the validity of the proposed rules, which petitions were consolidated for hearing. Petitions for leave to intervene were granted on behalf of Florida Electric Power Coordinating Group, Inc.; Florida Land Council, Inc.; and Pasco County. These Intervenors' interests were aligned with those of petitioners. Petitions for leave to intervene were a1so granted on behalf of West Coast Regional Water Supply Authority and Concerned Citizens of Citrus County, Inc. These Intervenors' interests were aligned with those of the Department and the ERC.
Petitioner, Adam Smith Enterprises, Inc. (Adam Smith), is the owner/developer of a 3,800-acre development of regional impact
(DRI) to be known as Trinity Communities. This development, which has been in the acquisition and planning stages for almost 5 years, is currently undergoing DRI review and Adam Smith anticipates that it will receive its development order by September 1987.
The Trinity Communities development is located predominately in Pasco County, with just over 250 acres of its lands located in Pinellas County. These properties are predominately open pasture land, and are bordered on the north, east and west by roads and on the south by Hillsborough and Pinellas Counties.
As proposed, the Trinity Communities development will include 1100 acres of parks, golf courses, and other open areas. The remaining lands will be developed to accommodate 9500 dwelling units, as well as industrial and commercial uses to service the community, over a 20-year period. At today's market value, the property represents an investment of approximately 28 million dollars.
Abutting the Trinity Communities development is the Eldridge-Wilde Well Field. This well field is covered by consumptive use permits issued by the Southwest Florida Water Management District (SWFWMD), and contains major public community drinking water supply wells as defined by the rules at issue in this proceeding. Of these wells, 5 are located within 9.63 feet and 181.5 feet of the proposed development's property line, and 5 are located with 204.72 fee and 297.5 feet of its property line.
Petitioner, Alliance for Rational Groundwater Rules (Alliance), is an association of landowners who united to educate themselves about the proposed rules. The proof failed, however, to establish whether Alliance had ever elected any officers or directors, or the magnitude of its membership. Consequently, the proof failed to establish that a substantial number of its members, although not necessarily a majority, were substantially affected by the proposed rules, and that the relief requested by it was of a type appropriate for it to receive on behalf of its members.
Petitioner, Aloha Utilities, Inc. (Aloha Utilities), is a utility certified by the Florida Public Service Commission to provide water and sewer service to two separate service areas in southern Pasco County. Currently, Aloha Utilities operates an 850,000 gallon per day (gpd) sewage treatment facility (Aloha Gardens) and a 1.2 million gpd sewage treatment plant (Seven Springs). It also operates 10-11 producing wells, at least 7 of which are permitted by SWFWMD to withdraw at least 100,000 gpd.
One of these wells is located approximately 1/4-1/2 mile from an Aloha Utility sewage treatment plant.
At least 3 of Aloha Utilities' wells which are permitted to withdraw 100,000 gpd or more, will service or are servicing the Riverside projects and Aloha Gardens Unit Number 12 project discussed infra. Consequently, the proof establishes that Aloha Utilities operates a major public community drinking water supply system as defined by the subject rules.
The Aloha Gardens facility is under a Department order to expand its effluent disposal capacity. To satisfy the Department's order and the need for increased disposal capacity, Aloha Utilities commenced condemnation proceedings 8-12 months ago to secure the needed property. While the condemnation proceeding is not yet completed, Aloha Utilities has already expended considerable sums for engineering studies and attorney's fees in its efforts to acquire the property. That property is located approximately 1/2 mile from an existing well that is permitted for an average daily flow of at least 100,000 gpd.
The effluent disposal capacity of the Seven Springs facility is also being expanded to meet existing and future demand. In April 1987, Aloha Utilities acquired a 27-28 acre parcel of land immediately adjacent to its existing facility. Upon these lands, Aloha Utilities proposes to construct percolation ponds, a rapid rate land application effluent disposal process. As sited, these ponds would be located 1/2 to 3/4 of a mile from a well permitted for an average daily flow of
100,000 gallons or more. 2/
Petitioners, Interphase, Inc., Phase 1 Homes, Inc., and Tahitian Development, Inc., are corporations with common management which are developing three separate but geographically proximate projects in Pasco County. These projects will be, or are, serviced by Aloha Utilities.
Interphase, Inc., is the owner/developer of a 100- acre tract known as Riverside Village Unit Number Four. This property is currently being developed to include 57 acres dedicated to single family use and 43 acres dedicated to multifamily use, and will require the installation of stormwater facilities and underground sewage transportation facilities. Two wells of Aloha Utilities that are permitted for an average daily flow of 100,000 gallons or more are located 1/2 mile and 1/3 mile, respectively, from this development.
Interphase, Inc., is also the owner of a 17-acre parcel of vacant land in Pasco County that is zoned commercial. This property is located within 400 feet of Aloha Utilities' Seven
Springs sewer treatment plant, and its development will require the installation of underground sewage transportation facilities.
Phase 1 Homes, Inc., is the owner/developer of a project known as Riverside Village Townhouses. This project is fully developed and is currently serviced by Aloha Utilities. Located within 1/2 mile of the development are two wells of Aloha Utilities that are permitted for an average daily flow of 100,000 gallons or more.
Tahitian Development, Inc., is the owner/developer of a 40-acre tract known as Riverside Villas. Twenty of these acres have been developed and some of the units sold. The remaining 20 acres are currently under development.
In developing its remaining 20 acres, Tahitian Development would be required to install stormwater drainage systems and sewage transportation lines to connect with Aloha Utilities.
Located within 1/2 mile of the development are wells of Aloha Utilities that are permitted for an average daily flow of 100,000 gallons or more.
Tahitian Development also owns a 40-acre parcel in Orange County which it plans to develop for light industrial uses such as an industrial park or an office complex. Such development would result in at least a 40 percent impervious surface, including building tops, within that 40-acre parcel, and require the installation of a sewage transportation system and a stormwater drainage system.
Petitioner, A.C. & R., Inc., is the owner/developer of a project in Pasco County known as Aloha Gardens Unit Number 12.
The project, which currently is represented by 40-50 developed lots, is located just north of the Aloha Gardens sewage treatment facility, and is serviced by Aloha Utilities. Located within 1/2 mile of the development that is permitted for an average daily flow of 100,000 gallons or more.
Petitioner, Great Cypress Mobile Village, Inc., is the owner/developer of a 149 unit mobile home park in Pasco County. Twenty of these units are completed and ready for occupancy. Completion of the project will require the installation of additional sewer lines. Located at the interior of the property is a sewage treatment plant owned by Northern Utilities which services the project, and within 600 feet of the project's boundary there is a well which services that utility. The capacity of that well was not, however, demonstrated in these proceedings, nor was it shown whether such well was part of a community water system.
Petitioner, Barrington, Ltd. is a party of unknown capacity, origin, or interest. No evidence was presented on its behalf to demonstrate that its substantial interests would be affected by the proposed rules.
Intervenor, Florida Electric Power Coordinating Group, Inc. (FCG), a Florida corporation, is an association of Florida's electric utilities, and is composed of 37 members. The FCG has, as part of its internal organization, an environmental committee whose purpose is to participate in regulatory development and provide mutual member assistance with regard to water related matters. This committee was authorized by the FCG executive committee to participate in the development of the rules at issue in these proceedings, as well as Intervene in these proceedings, to represent and protect the interests of FCG members. The FCG participated in the development of the subject rules by the Department, and was granted full party status by the ERC during that rulemaking process.
The members of FCG are owners and operators of electric power generating facilities. These facilities“ include the power plant and ancillary facilities such as substations. Incident to the operation of these facilities are wastewater discharges associated with the production of electricity and stormwater discharges. One of these facilities, Gainesville Regional Utilities' Deer Haven generating station is located across Highway
441 from a major community drinking water supply well.
Intervenor, Florida Land Council, Inc., a Florid corporation, is composed of 12 primary members who own large tracts of land in interior Florida, and who are engaged primarily in agribusiness. The Land Council's purpose is to protect the asset value of its members property and, because of that purpose, it is concerned with environmental regulations, growth management regulations, land use regulations, and comprehensive planning. To protect its interests, the Land Council sought leave to intervene in these proceedings. There was, however, no proof that any lands owned by any member of the Land Council were proximate to any major public community drinking water well.
Intervenor, Pasco County, is the owner/operator of 25 wastewater treatment plants with capacities In excess of 100,000 gallons per day, and has under construction, or in the design stage, additional facilities with capacities in excess of 100,000 gallons per day. The construction of these new facilities will require the installation of new lines for the collection of wastewater. Pasco County's current, as well as its planned, wastewater treatment facilities will utilities a rapid rate land application effluent disposal process. Within a mile of any wastewater treatment plan operated by Pasco County can be found a
major public community drinking water well as defined by the rules at issue in these proceedings.
Pasco County also owns and operates wells within the county with permitted withdrawal rates exceeding 100,000 gpd, and participates in the ownership and management of their wells with permitted withdrawal rates exceeding 100,000 gpd through West Coast Regional Water Supply Authority. Pasco County currently has plans to add new production wells in the county with an average daily pumpage in excess of 100,000 gallons per day.
Intervenor, West Coast Regional Water Supply Authority (West Coast), is an interlocal government body created in 1974 to develop, store, and supply water to its member governments so that all citizens within the areas served by the authority may be assured an adequate supply of water. Member governments served by WCRWSA are Hillsborough County, Pasco County, and the cities of St. Petersburg and Tampa.
Wellfields operated by West Coast are the Starkey Wellfield located in west central Pasco County, which serves the citizens of New Port Richey and Pasco County; the South-Central Hillsborough Regional Wellfield located in south-central Hillsborough County, which serves the citizens of Hillsborough, County; the crossbar Ranch Wellfield located in north-central Pasco County, which principally serves the citizens of Pinellas, County; the Cypress Creek Wellfild located in south-central Pasco County, which serves the citizens of Hillsborough, Pinellas, and western Pasco Counties and the City of St. Petersburg; the Northwest Hillsborough Wellfield located in northwest Hillsborough County, which serves the citizens of Hillsborough County; the Section 21 Wellfield located in northwest Hillsborough County, which serves the citizens of the City of St. Petersburg; and, the Come-Odessa Wellfield located in northwest Hillsborough County, which serves the citizens of the City of St. Petersburg. 3/
Each of the wellfields operated by West Coast are public community water systems, and contain wells permitted to withdraw in excess of 100,000 gallons per day. Collectively, these wellfields serve a total population of 800,000 persons.
Intervenor, Concerned Citizens of Citrus County, Inc. (Concerned Citizens), is a not-for-profit corporation, was chartered in 1981, and has 350 members who obtain their drinking water from operational community water supply wells permitted for over 100,000 gallons per day in Inverness, Crystal River, Floral City, Sugar Mill Woods, Beverly Hills, and Rolling Oaks, Citrus County, Florida. The purpose of Concerned Citizens is to protect the natural resources of Citrus County through planning and zoning
regulations, and local and state legislation and regulations. It was granted party status by the ERC.
General aspects of the proposed rules
The proposed rules establish new eligibility criteria for designation of an aquifer segment as Class G-I groundwater. Under the existing rule, the ERC could reclassify an aquifer or portion of an aquifer as G-I within specified boundaries upon a finding that:
The aquifer or portion of the aquifer is the only reasonably available source of potable water to a significant segment of the population; and
The designated use is attainable, upon consideration of environmental, techological, water quality, institutional, and social and economic factors.
Under the proposed revisions, an aquifer segment could be classified by the ERC as G-I provided it was:
...within the zones of protection of a major public community drinking water supply well(s) or wellfield(s) withdrawing water from unconfined aquifers or from leaky confined aquifer...
and, upon consideration of:
...environmental, technologial, water quality, institutional (including local land use comprehensive plans), public health, public interest, social and economic factors.
As with thee existing rule, the proposed rules require that rulemaking procedures be followed to actually designate a G-I aquifer or aquifer segment at any particular location.
The scheme envisioned by the proposed rules is to provide protection to "major community drinking water supply wells", community water systems that are permitted by consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater, by preventing contaminants from entering the groundwater within a circumscribed radius of the wells. To accomplish this purpose, the proposed rules establish a methodology whereby two zones of protection would be established
around such wells if they were withdrawing waters from unconfined aquifers (an aquifer exposed to the atmosphere) or leaky confined aquifers (an aquifer in which groundwater moves vertically from the water table to the top of the aquifer in five years or less). The first zone (the inner zone) would be based on a fixed radius of 200 feet. The second zone (the outer zone) would be based on a radius, calculated under the rule's methodology, of 5 years groundwater travel time. Within the inner zone, discharges would be prohibited. Within the outer zone, certain developments which discharge to groundwater would be prohibited or restricted.
A major emphasis of the proposed rules is to restrict discharges to groundwater within the zones of protection. For example, the rules eliminate the zone of discharge within the zones of protection, and require that new discharges to groundwater of treated domestic effluent meet the groundwater criteria specified in rule 17-3.404, F.A.C., prior to discharge. 4/ Additionally, such wastewater treatment facilities would be required to pre-treat industrial wastewater, provide daily monitoring to insure proper treatment plant process control, and provide 24 hour a day attendance of a wastewater operator under the general supervision of a Class A certified wastewater operator. New underground lines for the transport of domestic raw wastewater would be required to be constructed so that no more than 50 gallons per inch of pipe diameter per mile per day could leak into the ground.
Within the 5 year zone of protection, there are no restrictions on stormwater discharges for residential developments. However, discharges from new stormwater facilities serving an area forty acres or larger with a forty percent impervious surface, excluding building tops, are required to monitor the discharge. Construction and operation of new sanitary landfills would be prohibited.
As previously noted, to be eligible for reclassification as a G-I aquifer, the aquifer or aquifer segment under consideration must be leaky confined or unconfined. Whether the aquifer is leaky confined or not will be determined through application of the "Vv" and "Tv" formulae contained in the proposed rules, and the zones of protection will be established by reference to the "r" formula contained in the proposed rule.
To date, neither the Department nor any party has applied the "Vv" and "Tv" formulae to identify wells hat are withdrawing from unconfined or leaky confined aquifers, nor has anyone delineated any zones of protection by application of the "r" formula. The Department has, however, identified those areas of the state at which it is likely that major community drinking water supply wells are withdrawing from such aquifers. Based on
this identification, the Department has contracted with the U.S. Geological Survey (USGS) to "map" the Middle-Gulf region (Pinellas, Hillsborough, Pasco, Hernando, and Citrus Counties) by applying the "Vv" and "Tv" formulas to each well permitted to withdraw 100,000 gpd or more to determine if it is withdrawing from such aquifers and, if so, to delineate proposed zones of protection around such wells or wellfields through application of the "r" formula. The USGS is currently mapping the Middle-Gulf region.
Pertinent to this case, the Department has identified all of Pasco and Pinellas Counties, the northern half of Hillsborough County, and most of Orange County including Orlando, as areas within which wells are most probably withdrawing from unconfined or leaky confined aquifers, and for which aquifers the Department will seek G-I reclassification. Under the circumstances, the parties have established, except as heretofore noted, that there is a reasonable likelihood that the proposed rules will substantially affect their interests.
The rule challenge
The gravamen of the protestant's challenge is that certain definitions and formulae continued within the proposed rule are vague, ambiguous, or not supported by fact or logic. The Protestants' also challenge the adequacy of the economic impact statement. The Protestants concerns are addressed below.
Definitions
Rule 17-3.021, as amended, would define "Confined Aquifer", "Leaky Confined Aquifer", and "Unconfined Aquifer", as follows:
(7) "Confined Aquifer" shall mean an aquifer bounded above and below by impermeable beds or by beds of distinctly lower permeability than that of the aquifer itself. For the purpose of G-I, it shall mean an aquifer confined from above by a formation(s) which restricts the movement of groundwater vertically from the water table to the top of the confined aquifer for a period of more than five years
* * *
(16) "Leaky Confined Aquifer" shall mean, for the purposes of G-I, an aquifer confined from above by a formation(s) which allows groundwater to move vertically from the water table to the top of the leaky
confined aquifer in five years or less.
* * *
(34) "Unconfined Aquifer" shall mean an aquifer other than a confined aquifer. For the purpose of G-I it shall mean an aquifer other than a confined or leaky confined aquifer. 5/
Protestants contend that the definition of "confined aquifer" and "leaky confined aquifer" are vague and meaningless because they are "defined by use of the phrase being defined". Accordingly, they conclude that proposed rule 17-3.021(7) and (16) must fall because they are without thought and reason, irrational and vague. Protestants further contend that since the definitions of "confined aquifer" and "leaky confined aquifer" are flawed, proposed rule 17-3.021(34), which defines unconfined aquifer, must also fall. The Protestants' contentions are not persuasive.
If one were restricted to the definition of "confined", "leaky confined" and "unconfined" aquifer to glean their meaning, the rules might be considered vague. However, these definitions are, as they specifically provide, "for the purpose of G-I" and they must be read in context with the balance of the rule. When so read, it is apparent that "top of the confined aquifer" or "top of the leaky confined aquifer" is the top of the aquifer that has been calculated as confined or leaky through manipulation of the "Vv" and "Tv" formulae. Under the circumstances, the subject definitions are not vague, arbitrary or capricious.
Proposed rule 17-3.021(20) provides:
"New Discharge" shall mean, for the purpose of G-I, a discharge from a new installation; or a discharge from an existing permitted installation that has been altered, after the effective date of
G-I reclassification, either chemically, biologically, or physically or that has a
211 22 different point of discharge, and which causes a significantly different impact on groundwater.
Protestants contend that the definition of "new discharge" is vague, arbitrary and capricious because existing installations would be classified as new dischargers, and subject to the more stringent requirements of the proposed rules, whether the alteration of their discharge significantly improved or adversely affected groundwater. As proposed, the rule would so define new discharge, and it is not vague or ambiguous. The proof demonstrated, however, that the Department only proposed to
define, as new dischargers, those existing installations whose altered discharge caused a significantly different negative impact on groundwater. The Department conceded this point, and offered no proof to demonstrate the reasonableness of classifying existing installations that improve their discharge as new discharges.
Under the circumstances, proposed rule 17-3.021(20) is arbitrary and capricious.
Proposed rule 17-3.021(35) defines "underground storage facility or underground transportation facility as follows:
"Underground storage facility" or "underground transportation facility" shall
mean that 10 percent or more of the facility is buried below the ground surface.
This proposed rule is, however, only pertinent to proposed rule 17-4.245, which addresses the permitting and monitoring requirements for installations discharging to groundwater.
Pertinent to this case, proposed rules 17-4.245(3)(c) and (d) establish construction requirements for the following facilities within the five year zone of protection:
Underground storage facilities. An underground storage facility includes any enclosed structure, container, tank or other enclosed stationary devices used for storage or containment of pollutants as defined in Section 376.301(12), F.S. or any contaminant as defined in Sect ion 403.031(1), F.S. Nothing in this paragraph is intended to include septic tanks, enclosed transformers or other similarly enclosed underground facilities....
Underground facilities for transportation of wastewater or pollutants as defined in Section 376.301(12), F.S. or any contaminant as defined in Section 403.031(1), F.S. excluding natural and liquified petroleum gas. Underground facilities for transportation of waste effluent or pollutants or contaminants include piping, sewer lines, and ducts or other conveyances to transport pollutants as defined in Section 376.301(12), F.S., and contaminants as defined in Section 403.031(1), F.S....
Protestants contend that the proposed rules are contained in two separate chapters of the Florida Administrative Code with no bridge between them. Under such circumstances, they contend the rules fail to adequately define either facility in either chapter, and that the rules are therefore vague, arbitrary and capricious. Protestants' contention is not persuasive.
Proposed rule 17-3.021(35) defines "underground storage facility" or "underground transportation facility" as meaning that
10 percent or more of the facility is buried below the ground surface. Proposed rules 17-4.245(3)(c) and (d) address what type of facility is included within the terms "underground storage facility" and "underground transportation facility." Notably, Rule 17-4.021, F.A.C., provides:
Definitions contained in other chapters of the Department's rules may be utilized to clarify the meaning of terms used herein unless such terms are defined in Section 17-4.020, F.A.C., or transfer of such definition would defeat the purpose or alter the intended effect of the provisions of this chapter.
Under the circumstances of this case, the rules are appropriately read together. So read, the construction requirements for "underground storage facilities" and "underground transportation facilities", as required by proposed rule 17-4.245(3)(c) and (d), are applicable if 10 percent or more of the containment device used for the storage or transport of pollutants is buried below the ground surface, and the proposed rules are not vague, arbitrary or capricious.
Proposed rule 17-3.021(39) defines "Zones of Protection" as follows:
"Zones of Protection" shall mean two concentric areas around a major public community drinking water supply well(s) or wellfield(s) drawing from a G-I aquifer whose boundaries are determined based on radii from the well or wellfields of 200 feet and five years groundwater travel time respectively.
Protestants contend that the definition of "Zones of Protection" is vague, arbitrary and capricious because nowhere within the proposed rules is "G-I aquifer" defined. protestants' contention is not persuasive. Proposed rules 17-3.403(1) and (7) adequately explain what is meant by "G-I aquifer", and proposed
rule 17-3.403(8) sets forth the metodology for calculating the zones of protection. The definition of "Zones of Protection", set forth in proposed rule 17-3.02(39) is not vague, arbitrary or capricious, because of any failure to define "G-I aquifer."
Mapping Priorities
When considering whether to reclassify an aquifer or aquifer segment as G-I, proposed rule 17-3.403(5)(e)2 requires that the aquifer or aquifer segment:
Be specifically mapped and delineated by the Department on a detailed map of a scale which would clearly depict the applicable zones of protection. Maps will be grouped and submitted for reclassification generally on a regional basis.
Mapping priorities shall follow the Commission directive of February 27, 1985.
The remaining areas of the state will be mapped by the Department as time and resources allow.
The mapping priority directive referred to in purposed Rule 17-3.403(5)(e)2a, was an oral directive of the ERC that Pinellas, Hillsborough, Pasco, Hernando, and Citrus Counties, referred to as the Middle-Gulf region, be mapped first. That directive has not been reduced to writing and, consequently, a copy thereof has never been available for inspection.
Categories of G-I Aquifers and determination of zones and protection
Proposed rules 17-3.403(7) and (8), respectively, set forth the eligibility criteria for reclassification as G-I aquifers and the methodology whereby the boundaries of the zones of protection are established. To this end, proposed rule 17-
3.403 (7) provides:
Categories of G-I aquifers. For aquifers or aquifer segments to be eligible for potential reclassification as G-I aquifers one of the following criteria must be met:
That the aquifer or aquifer segment under consideration be within the zones of protection of a major public community drinking water supply well(s) or
wellfield(s) withdrawing water from unconfined aquifers or from leaky confined aquifers....
(b)(. reserved.)
Proposed rule 17-3.403(8) provides:
Determination of the boundaries of the zones of protection.
(a) The boundaries of the zones of protection shall be based on radii from the wellhead or wellfield (if closely clustered, so that the five year zones of protection are overlapping) measured in 200 feet for the inner zone and five years for the outer zone. The radius of the outer zone shall be determined using the following formula:
percent.x4n
where Q = permitted average daily flow from the well (measured in cubic feet per day); T = five years (1825 days); 3.14 = mathematical constant pi; r = radius (feet); h distance from the top of the producing aquifer to the bottom of the hole (feet); n effective porosity.
Protestants contend that the foregoing provisions of the proposed rules are vague, arbitrary and capricious because the wells that would be subject to and around which a zone of protection would be established cannot be identified or, if identifiable, do not comport with the Department's intent or interpretation. Protestant's concerns are not without merit.
To be eligible for consideration as a G-I aquifer, proposed rule 17-3.403(7) requires that the aquifer segment be within the zones of protection of a "major public community drinking water supply well(s) or wellfield(s). Proposed rule 17- 3.021(17) provides that "major public community drinking water supply" shall mean:
those community water systems as
defined in Section 17-22.103(5), F.A.C., that are permitted by consumptive use permit to withdraw an average daily amount
of 100,000 gallons or greater of groundwater.
Community water system" is defined by Section 17-22.103(5) as: a public water system which serves at
least IS service connections used by year- round residents or regularly serves at least 25 year-round residents.
Facially then, the proposed G-I rules are applicable to "community water system" that hold a consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater", and which are withdrawing from unconfined or leaky confined aquifers. Notably, the rule does not ascribe the 100,000 gpd permitted rate of withdrawal to each well, but to a permit held by a community water system. Accordingly, under the literal reading of the proposed rules, each well covered by the consumptive use permit would be subject to a zone of protection regardless of its individually permitted rate, so long as it was withdrawing from an unconfined or leaky confined aquifer.
While there may be legitimate reasons to designate zones of protection around wells, regardless of their individual permitted rate when the community water system holds a consumptive use permit to withdraw groundwater at a 100,000 gpd average, the Department advanced none. To the contrary, the Department contended that zones of protection were only to be established around a well that was permitted to withdraw an average daily amount of 100,000 gallons or greater. Under the circumstances, the provisions of proposed rules 17-3.403(7) and (8) are arbitrary and capricious. 6/ The "Vv" and "Tv" formulae
Proposed rule 17-3.403(7)(a) prescribes the methodology where by vertical travel time will be calculated, and therefore whether a particular aquifer will be classified as confined or leaky confined. To this end, the proposed rule provides:
... Determination of vertical travel time for leaky confinement will be by application of the following formulae:
Vv= Kv h/nl where:
Vv= vertical velocity (feet/day). Kv= vertical hydraulic conductivities of the surficial aquifer and underlying confining bed materials (feet/day).
h= head difference between water
table in the surficial aquifer and the potentiometric surface of the producing aquifer (feet).
n = effective porosities of the surficial aquifer and underlying confining bed materials.
1 = distance from the water table to the top of the producing aquifer (feet).
Tv= 1/Vv 365 where:
Tv= vertical travel time (years).
1 = same as above. Vv= same as above.
The "Vv" formula and the "Tv" formula are valid formulae, and are commonly used by hydrogeologists to calculate the vertical velocity and vertical travel time of groundwater. As proposed, the formulae present a reasonable methodology for computing the vertical velocity and vertical travel time of groundwater if the well is producing from one aquifer. The formulae cannot, however, as hereafter discussed, be reasonably applied if tee well is producing from multiple aquifers or if another aquifer intervenes between the surf aquifer and the producing aquifer. While not the most prevalent occurrence in the state wells in the Middle-Gulf regions often do penetrate more than one aquifer and do produce water from more than one aquifer. The rule defines the "Kv" element of the "Vv" formula as the "vertical hydraulic conductivities of the surficial aquifer and underlying confining bed materials (feet/day)." This is a reasonable definition and will produce a scientifically valid result provided the well does not penetrate multiple aquifers. Should the well penetrate multiple aquifers, the values derived for vertical velocity ("Vv") and vertical travel time ("Tv") will not be accurate since the hydraulic conductivities of the intervening aquifers are not, by the rule definition, factored into the calculation of "Kv". Under such circumstances, whether an aquifer was classified as confined or leaky confined would not be determined by a valid "Kv" but, rather, by chance.
Protestants also contend that the rule is vague, arbitrary and capricious because it does not specify the methodology by which "Kv" is to be calculated. There are, however, methodologies commonly accepted by hydrogeologists to derive a scientifically valid "Kv", whether the well penetrates one or more than one aquifer. The infirmity of the rule is not its failure to specify a methodology, but its to include data necessary to produce a meaningful result.
The rule defines the "n" element of the Vv formula as "effective porosities of the surficial aquifer and underlying
confining bed materials." This is a reasonable definition and will, though the application of commonly accepted methodologies, produce a scientifically valid result. 7/
The rule defines the element "Delta h" in the Vv formula as the "head difference between the water table in the surficial aquifer and the potentiometric surface of the producing aquifer (feet)", and defines the element "1" as the "distance from the water table to the top of the producing aquifer (feet)." These elements are utilized in the formula to calculate a gradient, and must be measured using the same points of reference to yield a meaningful result. To this end, the proof demonstrates that the definitions are reasonable since they utilize the same points of reference, and that when applied in accordance with accepted hydrogeologic practice will produce a scientifically valid gradient. (See Department exhibit 7).
Protestants contend, however, that the definitions of "Delta h" and "1" are vague, arbitrary and capricious because they do not specify when the measurements should be made, do not define "producing aquifer", and do not define "top" of the producing aquifer. For the reasons that follow, Protestants' contentions are found to be without merit.
While a water table is a dynamic surface subject to frequent, if not daily fluctuation, resulting from variations in rainfall and the demands of man, and while a potentiometric surface is likewise a dynamic elevation that changes with time and season, protestants failed to demonstrate that there was any particular date or dates that would be most appropriate to make such calculations. Rather, protestants contended that unless such measurements were taken contemporaneously, any derivation of "Delta h" and "1" would not be reliable. While such might be the case, the rule does not mandate a divergence from the accepted hydrogeologic practice of taking such measurements contemporaneously.
While the rule does not define "producing aquifer," it is an accepted hydrogeologic term and not subject to confusion. The only confusion in this case was the introduction of the issue of multiple producing aquifers and protestants' contentions that this rendered the Vv formula vague, arbitrary and capricious since it did not factor in such a consideration. Protestants' contention does not, however render the term "producing aquifer" vague.
The sole purpose of the Vv and Tv formulas are to determine whether the aquifer from which water is being produced is leaky confined. To establish this, the formulae are applied to calculate whether the vertical travel time is five years or less.
If a well is withdrawing water from more than one aquifer it may be necessary to calculate Vv and Tv for each aquifer to discern which of those aquifers are within the 5 year vertical travel time threshold, and therefore subject to G-I reclassification. To this end the rule is not vague, and would adequately address the multiple producing aquifer scenario.
While the rule doe not define "top" of the producing aquifer, this term is an accepted hydrogeologic term and is not subject to confusion. In application there may, however, be disagreements among hydrogeologists as to where this line should be established because geologic boundaries are fine gradations, and not sharp lines which would lend themselves to the designation of precise points of reference. This is not, however, a failure of the rule, but a peculiarity of nature, and is subject to scientific proof. Notably, protestants did not demonstrate that "top" of the producing aquifer could be defined with reference to a fixed point. Under the circumstances, "top" of the producing aquifer is a reasonable reference point.
Zones of Protection
Proposed rule 17-3.408 provides:
Determination of the boundaries of the zones of protection shall be based on radii from the wellhead or wellfield (if closely clustered, so that the five year zones of protection are overlapping), measured in
200 feet for the inner zone and five years for the outer zone. The radius of the outer zone shall be determined using the following formula:
QT 2
3.14 hn
where Q = permitted average daily flow from the well (measured in cubic feet per day); T = five years (1825 days); 3.14 = mathematical constant pi; r = radius (feet); h distance from the top of the producing aquifer to the bottom of the hole (feet); n effective porosity. For the purpose of this calculation the following effective porosities for representative Florida aquifers will be used:
Floridan .05 Sand and Gravel .2
Biscayne .15 Surficial .2
The Department shall use more site-specific
values for "Q", "n", or "h" when available for designation of the zones of protection by the Commission.
Proposed rule 17-3.403(8)(a) provides that the inner zone of protection shall be based on a radius from the wellhead or wellfilled, as appropriate, of 200 feet. While denoted as an arbitrary radius, the 200 foot radius was not derived without fact or reason. Rather, it was a result reached at the workshops after consideration of existing regulations that establish buffer zones of 200-500 feet between a public water supply and a pollution source. Conceptually, the 200 foot zone was adopted because it is so small and so close to the well that it essentially constituted a zone of protection of the well head by preventing contaminants from moving into the well opening directly or the annular space around the well casing. Accordingly, the 200 foot zone has a reasonable basis. Its actual delineation is, however, as flawed as that of the five year zone discussed infra.
The "r" formula defines the outer zone of protection, and calculates it as a radius equal to the distance groundwater would flow in five years toward the well. The basis for the "r" formula is the formula used to calculate the volume of a cylinder. That formula, V = pi r2 h, yields a simple volumetric measurement without any consideration of velocity. By the introduction of the element "n" (effective porosity), the "r" formula introduces a velocity component which would, properly applied, produce a radius equal to the distance groundwater would flow in 5 years. 8/ As proposed, however, the rule would establish a meaningless line around a well.
Under the proposed rule, the Department would calculate "r" based on specified effective porosities ("n") for the Floridan, Biscayne, sand and gravel, and surficial aquifers absent site specific data. The Department is, however, under no requirement to generate site specific data, and currently is mapping the Middle-Gulf region based on the values established by the rule. Absent chance, the areas mapped will bear no relationship to groundwater travel time.
The lithology of an aquifer and the surrounding layers is varied and diverse, and directly affects the direction and velocity of groundwater flow. By assuming "n", the "r" formula ignores the varied lithology, and produces a radius that would seldom, if ever, represent the actual rate at which groundwater moved toward any well. 9/ The zone thus circumscribed is an illusion since the groundwaters and contaminants within it may move at a rate significantly greater than or less than 5 years travel time. Notably, the Department has conducted no study or test to validate its proposed methodology.
The element "Q" in the "r" formula is defined as the "permitted average daily flow from the well (measured in cubic feet per day)." Protestants contend that such definition is vague, arbitrary and capricious because the Department proposes to rely on consumptive use permits issued by the various water management districts to derive "Q", and such permits would not necessarily provide the requisite data.
While the proof demonstrates that "Q" cannot always be derived by reference to a consumptive use permit, this does not render the definition of "Q" vague, arbitrary, or capricious. Rather, "Q" is a factual matter, and subject to a factual derivation through reference to consumptive use permits and other site specific data.
The element "T" in the "r" formula is defined as "five years (1825) days." By its inclusion, the Department proposes to circumscribe the outer zone of protection at five years groundwater travel time.
The concept of a zone of protection is premised on the theory that restrictions should be placed on discharges to groundwater within an area proximate to a public water supply for public health and safety concerns. The five year standard, which is found throughout the rules, was based on the theory that if a contaminant was introduced to groundwater a period of time should be allowed to discover the contamination and remove it or make provision for an alternate water supply before the contaminant reached the public water supply. The five years proposed by the rule was not, however, founded on fact or reason.
During the workshops that under scored the proposed rule, the time factor was the subject of considerable discussion and ranged from less than two years to greater than ten years. Based on its own in-house search, the Department initially proposed a 10-year standard. That search revealed that it took 10 to 15 years between the time a contaminant was discovered and cleanup could commence, and between seven and eight years between the time a contaminant was introduced into groundwater and it discovery.
Notwithstanding the results of its own in-house search, the Department, in the face of debate, elected to "compromise" and propose a five-year standard. Such standard was not the result of any study to assess its validity, and no data, reports or other research were utilized to derive it. In sum, the five- year standard was simply a "compromise", and was not supported by fact or reason.
As previously noted, the lithology of an aquifer and the surrounding layers is varied and diverse, and directly affects the direction and velocity of groundwater flow. The effective porosity of those materials in the Floridan aquifer canvary from
to .4 at various places. The rule proposes, however, to use an effective porosity for the Floridan aquifer of .05 to establish "r."
The value ascribed to "n" is a critical value, as previously discussed in paragraph 65. It also has a profound impact on the aeral extent of the zone of protection. For example, assuming "Q" equals 3 million gallons and "h" equals 600 feet, an "n" of .02 would result in a radius of 4,406 feet or 1,400 acres, an "n" of .03 would result in a radius of 3,578 fee or 934 acres, an "n" of .05 would result in a radius of 2,787 feet or 560 acres, and an "n" of .2 would result in a radius of 1,393 feet or 140 acres.
While an effective porosity of 05 for the Floridan aquifer may be a reasonable value at a particular site, it is not a value that can be reasonably ascribed to the Floridan in general. For this reason, and the reasons heretofore set forth, the rule's specification of an effective porosity of .05 for the Floridan aquifer is unreasonable.
Proposed rule 17-3.403(8)(a), sets forth the manner in which the zones of protection will be drawn around a well or wellfield. That proposed rule provides:
For well fields whose individual zones of protection overlap due to clustering, a single zone of protection will be calculated in the following manner:
Using the permitted average daily withdrawal rate of the wells with overlapping zones of protection, the area on the surface overlying the aquifer equal to the sum of the areas of the five year zones of protection of the individual wells, shall be used to define the area which encircles the perimeter of the wellfield. In cases where a zone of protection of a single well protrudues beyond the calculated perimeter or when the configuration of the wellfield is irregular, the perimeter will be shaped to
accommodate the configuration. The surface
are encircling the perimeter of the wellfield shall not exceed the total surface area of
the overlapping zones of protection for individual wells.
In the case of unclustered wells within a wellfield, individual zones of protection around each well will be calculated.
As previously discussed, the proposed G-I rules are facially applicable to "community water systems" that hold a " consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater," and which are withdrawing from unconfined or leaky confined aquifers. Under proposed rule 1773.403(8)(a), the five-year zone of protection would be drawn around each of these wells. If the wells are located so close to each other that the five year zones of protection are overlapping (clustered), those wells would be deemed a wellfield by rule definition and a five year zone of protection would be established around it.
The proposed rule's description at how to determine and configure a zone of protection around a wellfield is however, vague and ambiguous. While the rule provides that when the configuration of the wellfield is "irregular", the perimeter will be shaped to accommodate the configuration", it sets forth no standard by which the perimeter will be established. Effectively, the rule vests unbridled discretion in the Department to establish the configuration of a wellfield.
The Economic Impact Statements
Pursuant to the mandate of Section 120.54(2), Florida Statutes, the Department prepared economic impact statements for the proposed revisions to Chapters 17-3 and 17-4, Florida Administrative Code. The economic impact statements were prepared by Dr. Elizabeth Field, the Department's chief economist, an expert in economics.
Dr. Field developed the economic impact statements by examining the proposed rules and discussing their potential impact with Department staff. Additionally, Dr. Field attended the public workshops that were held concerning the proposed rules, and solicited input from those participants. The Florida Home Builders Association and the Florida Petroleum Council submitted data for her consideration, but none of the petitioners, although some were represented at such workshops, responded to her requests for information.
The economic impact statements prepared by Dr. Field to address the proposed rules conclude that, apart from the cost to the Department for mapping, there are no direct costs or economic
benefits occasioned by the rules. Dr. Field's conclusion was premised on the fact that the proposed rules only establish the eligibility criteria for reclassification of an aquifer to G-I and the standards for discharge to that aquifer. Under the proposed rules, further rulemaking would be required to actually designate a specific aquifer as G-I, and delineate a zone of protection.
10/
Pertinent to this case, proposed rule 17-3.403, provides:
The intent of establishing G-I eligibility criteria is to determine which aquifer or aquifer segments qualify for potential reclassification to G-I aquifers. Adoption of these criteria does not imply nor does it designate aquifer or aquifer segments as G-I. Such designation can only be achieved through reclassification by the Commission after eligible segments have been mapped by the Department.
(6)... the following procedure shall be used to designate Class G-I aquifers:
Rulemaking procedures pursuant to Chapter 17-102, F.A.C., shall be followed;
Fact-finding workshops shall be held in the affected area;
All local, county, or municipal governments, water management districts, state legislators, regional water supply authorities, and regional planning councils whose districts or jurisdictions include all or part of a proposed G-I aquifer shall be notified in writing by the Department at least 60 days prior to the workshop;
A prominent public notice shall be placed in an appropriate newspaper(s) of general circulation in the area of the proposed G-I aquifer at least 60 days prior to the workshop. The notice shall contain a geographic location map indicating the area of the zones of protection and a general description of the impact of reclassification on present and future discharges to groundwater. A notice of a
G-I workshop shall be published in the Florida Administrative Weekly prior to the workshop(s). At least 180 days prior to the Commission meeting during which a
particular zone of protection will be considered for reclassification, the Department will provide notice in the Florida Administrative Weekly and appropriate newspaper(s) of the intended date of the Commission meeting.
The Commission may reclassify an aquifer or aquifer segment as a G-I aquifer within specified boundaries upon consideration of environmental, technological, water quality, institutional (including local land use comprehensive plans), public health, public interest, social and economic factors. When considering a reclassification an aquifer or aquifer segment shall:
....(Be within the zones of protection of a major public community drinking water supply well(s) or wellfield(s) withdrawing water from unconfined or from leaky confined aquifers.)....
Be specifically mapped and
delineated by the Department on a detailed map of a scale which would clearly depict the applicable zones or protection. Maps will be grouped and submitted for reclassification generally on a regional basis.
Mapping priorities shall follow
the Commission directive of February 27, 1985.
The remaining areas of the
state will be mapped by the Department as time and resources allow. (Emphasis added).
While, if and when applied, the proposed rules would certainly have a direct economic impact as a consequence of a reclassification of an aquifer to G-I and the designation of a zone of protection, as well as the standards for discharge to that aquifer, such costs at this stage are not direct or are not quantifiable. When mapped and the zones of protection identified, a reasonable assessment of the economic cost or benefit of the proposal can be addressed. This is specifically reserved by the Commission whereby its decision to reclassify an aquifer as G-I will, pursuant to proposed rule 17-3.403(6) follow rule making procedures and be based on consideration of economic factors.
This result obtains whether the affected party is a small business or some other entity.
In reaching the conclusion that the economic costs or benefits of the proposed rules, apart from the cost of mapping, do not at this stage have a direct or quantifiable impact, I have not overlooked the "announcement effect" that is occasioned by the announcement of a governmental agency to regulate an activity. Such announcement certainly has a chilling effect on the community that may reasonably be impacted. The economic impact is, however, speculative or not quantifiable in the instant case. Further, the proof does not demonstrate any incorrectness or unfairness in the proposed adoption of the rules occasioned by the EIS prepared in this case.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.54(4), Florida Statutes.
Standing
2. 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.
To demonstrate that it is substantially affected by a proposed rule, a party must establish that, as a consequence of the proposed rule, it will suffer injury in fact, and that the injury is one that is subject to protection in the proceeding by virtue of a rule, statute or constitutional provision. Florida Medical Association, Inc. v. Department of Professional Regulation, 426 So.2d 1112 (Fla. 1st DCA 1983). Further, the injury must not be speculative, nonspecific and hypothetical, and lacking in immediacy and reality. Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978). Finally, where the party is an association, it must show that (a) a substantial number of its members, although not necessarily a majority, are substantially affected by the rule, (b) the subject matter of the rule is within the association's general scope of interest and activity, and (c) the relief requested is of a type appropriate for the association to receive on behalf of its members. Florida Home Builders Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982).
Applying the foregoing standards to the facts of this case demonstrates that the following petitioners or intervenors
have demonstrated the requisite standing to challenge, at least in part, or to support, at least in part, the proposed rules: Adam Smith, Aloha Utilities, Interphase, Inc., Tahitian Development, Inc., Great Cypress Mobile Village, Inc., FCG, Pasco County, West Coast, and Concerned Citizens.
Adam Smith has demonstrated standing because it has established that a zone of protection established around wells in the Eldridge-Wilde Wellfield could reasonably be expected to include part of Adam Smith's landholdings, and that such well field is withdrawing from aquifers that the Department has identified gas most probably subject to reclassification. Notably, the Department has identified this area for "mapping" by the USGS, and proposes to present the areas mapped to the ERC for reclassification. Under the circumstances, Adam Smith has shown sufficient immediacy and reality of the rules' impact to its property which, when juxtaposed with the restrictions that would be placed on the use of that property, demonstrate standing.
Aloha Utilities has demonstrated standing in the same manner as Adam Smith. Additionally, Aloha Utilities operates sewage treatment facilities which would, as a consequence of the proposed rules, be subject to "new discharge" classification were their discharges improved, and is currently acquiring lands for new sewage treatment facilities that would be prohibited or restricted under the proposed rules. Finally, Aloha Utilities operates a major public community drinking water supply system as defined by the proposed rules, and is withdrawing water from aquifers identified by the Department as most probably subject to G-I reclassification.
Interphase, Inc., Tahitian Development, Inc., and Great Cypress Mobile Village, Inc., have demonstrated standing in the same manner as Adam Smith. Pasco County has demonstrated standing in the same manner as Aloha Utilities.
FCG has demonstrated standing since its member utilities are dischargers to groundwater, and some of those discharges are proximate to aquifers subject to G-I reclassification. Under such circumstances, it members would be subject to "new discharge" reclassification in the same manner as Aloha Utilities.
West Coast operates major public community drinking water supply systems as defined by the proposed rules, and is withdrawing water from aquifers identified by the Department as most probably subject to G-I reclassification. Concerned Citizen's members are users of water supplied by major public community drinking water supply systems that are most likely
withdrawing from aquifers subject to reclassification. Under the circumstances, West Coast and Concerned Citizens have demonstrated standing.
Alliance, Barrington, Ltd., and Florida Land Council, Inc., have failed to demonstrate standing for the reasons set forth in the findings of fact. Phase 1 Homes, Inc., has failed to demonstrate standing since it failed to establish how the proposed rules could reasonably be expected to impact its property.
The rule adoption process
Protestants have raised a fundamental question regarding the Department's compliance with the provisions of Section 120.54, Florida Status in adopting the proposed rules. Pertinent to this issue, the proof demonstrated that on October 31, 1986, the Department published notice in the Florida Administrative Weekly of its intent to adopt proposed rules 17 3.021, 17-3.403, 17-3.404, and 17-4.245, and advising that a hearing would be held before the ERC, which is the environmental standard-setting body of the Department on December 1986. At the time of publication, the ERC had not approved the proposed rules.
On November 14, 1986, and November 21, 1986, respectively, Adam Smith (Case No. 86-4492RP) and Aloha Utilities (Case No. 86-4705) filed their petitions for a determination of the invalidity of the proposed rules with the Division of Administrative Hearings, pursuant to F.S. 120.54(4). Notwithstanding the pendency of these petitions, which were duly assigned to this hearing officer, the ERC held its scheduled public hearing on December 16 and 17, 1986, and adopted" the proposed rules with certain changes.
Under the foregoing factual scenario, Protestants contend that the Department failed to comply with the provisions of F.S. 120.54 relating to rule adoption, and that the proposed rules are therefore invalid. Protestants' contention is not persuasive.
The Department is an executive agency of the State of Florida, within which is created as part of the Department... an Environmental Regulation Commission." Section 20.261, Florida Statute. The Secretary of the Department has all the powers and duties of heads of departments set forth in Chapter 20, Florida Statutes, including the power to adopt rules under Chapter 403,
Florida Statutes. However, the ERC "exercises" the Department's standard-setting authority. Sections 403.804 and 403.805, Florida Statutes. Pertinent to this case, "standard" is defined as:
...any rule of the Department of Environmental Regulation relating to... water quality... The term "standard" does not include rules of the department which
relate exclusively to the internal management of the department, the procedural processing of applications, the administration of rulemaking or adjudicatory proceedings, the publication of notices, the conduct of hearings, or other procedural matters. (Emphases added)
Section 403.803(13), Florida Statutes.
From the foregoing statutory authority it is clear that regardless of whether the rule establishes a standard or is procedural in nature it is a rule of the Department. To the extent the rule proposes a standard it must, however, be approved by the ERC.
A reading of Section 120.54, Florida Statutes, reveals that rules adoption is a process. Agrico Chemical Co. v. State Department of Environmental Regulation, 365 So.2d 760 (Fla. 1st DCA 1979).
The process of adoption outlined in the Florida Administrative Procedure Act (APA) includes the publication and delivery of requisite notice (F.S. 120.54(1)), the development of an economic impact statement (F.S. 120.54(2)), the consideration, (under certain circumstances) of evidence and arguments presented at a public hearing (F.S. 120.54(3)), the filing of the proposed rule with the legislative Administrative Procedures Committee (F.S.
120.54(11)(a)) and the filing of the proposed rule with the Department of State (F.S. 120.54(11)(b)).
Id., at page 764. Finally, F.S. 120.54(13)(a), provides:
The proposed rule shall be adopted on being filed with the Department of State and become effective 20 days after being filed, on a later date specified in the
rule, or on a date required by statute....
(Emphasis added).
From the foregoing, it is apparent that the rule adoption process is a continuum of events that culminates in the adoption of a rule when it is filed with the Secretary of State. Pertinent to this case, Section 120.54(11)(b), Florida Statutes, addresses when a proposed rule must be filed with the Secretary of State, and provides:
... Filings shall be made no less than
28 days or more than 90 days after the notice required by subsection (1). If a public hearing is held, the 90-day limit is extended to 21 days after adjournment of the final hearing...or 21 days after receipt of the transcript, if one is made, whichever is latest. For purposes of this paragraph, the term "public hearing" includes any public meeting held by any agency at which the rule is considered.
The filing of a petition for an administrative determination under subsection (4) will toll the 90-day period during which a rule must be filed for adoption until the hearing officer has filed his order with the clerk....
(Emphasis added).
Further, Section 120.54(4)(c), Florida Statutes, provides:
...No rule shall be filed for adoption until 28 days after the notice required by subsection (1) or until the hearing officer has rendered his decision, as the case may be. However, the agency may proceed with all stems in the rulemaking process, including the holding of a factfinding hearing pursuant to subsection (3). (Emphases added).
The procedure adopted by the Department in the instant case comports with the essential requirements of law. The subject rules are rules of the Department, which to the extent they contain standards must be approved by the ERC. The public hearing at which the ERC considered and approved the rules was but one step in the rule adoption process, and was consistent with Section 120.54(4)(c), Florida Statutes, which permits that process to continue short of filing the rule for adoption even though a formal protest is filed. Under the circumstances, the Department
complied with the rulemaking provisions of 120.54, Florida Statutes, and the proposed rules, together with the changes proposed by the ERC, are a proper matter for consideration in this case.
The rule challenge
To demonstrate that a proposed rule is an invalid exercise of delegated legislative authority, the burden is upon those who attack the proposed rule to show that:
...the agency, if it adopts the rule, would exceed its authority; that the requirements of the rule are not appropriate to the ends specified in the legislative act; that the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation or that the proposed rule or the requirements thereof are arbitrary or capricious.
Agrico Chemical Co. v. State, Department of Environmental Regulation, 365 So.2d 760, 763 (Fla. 1st DCA 1979). 11/ Additionally, rules have also been subject to challenge on such basis because they were vague, failed to establish adequate standards for agency decisions, and vested unbridled discretion in the agency. See, e.g.: Barrow v. Holland, 125 So.2d 749 (Fla.
1960), State v. Cumming, 365 So.2d 153 (Fla. 1978), City of Miami
v. Save Brickell Ave., Inc., 426 So.2d 1100 (Fla. 3d DCA 1983), and Grove Isle Ltd. v. Department of Environmental Regulation,
454 So.2d 571 (Fla. 1st DCA 1984). Recently, the definition of invalid exercise of delegated legislative authority was codified by amending Section 120.52(8), Florida Statutes, to read as follows:
"Invalid exercise of delegated legislative authority" means action which 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 or more of the following apply:
The agency has materially failed to follow the applicable rulemaking procedures set forth in s.124.54;
The agency has exceeded its grant of rulemaking authority, citation to which is required by s.120.54(7);
The rule enlarges, modifies, or
contravenes the specific provisions of law implemented, citation to which is required by s.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.
In this case, apart from the adequacy of the economic impact statement, the protestants contend that the proposed rules are vague, fail to establish adequate standards for agency decisions, or vest unbridled discretion in the agency, or that they are arbitrary or capricious. A rule is vague or fails to establish adequate standards for agency decisions when its terms are so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. State v. Cumming, supra. A rule vests unbridled discretion in an agency when it fails to establish adequate standards and reserves to the agency the arbitrary power to determine private rights. Barrow v. Holland, supra. Arbitrary and capricious action are defined in Agrico Chemical Co. v. State, Department of Environmental Regulation, supra at 763, as follows:
A capricious action is one which is taken without thought or reason or
irrationally. An arbitrary decision is one not supported by facts or logic, or despotic.
Applying the foregoing standards to the facts of this case demonstrates that proposed rules 17-3.021(20), 17-3.403(7), and 17-3.403(8)(a), are an invalid exercise of delegated legislative authority. The proof further demonstrates that proposed rule 17-3.403(5)(e)2 is an invalid exercise of delegated legislative authority because the ERC directive regarding mapping priorities was not reduced to writing, and is not therefore reasonably accessible for inspection. In all other respects, the proposed rules comport with the essential requirements of law, or protestants have not demonstrated the requisite standing to contest the rule's provisions, as noted in the attached appendix. See: Brewster Phosphates v. State, Department of Environmental Regulation, 444 So.2d 483 (Fla. 1st DCA 1984).
The economic impact statement
The economic impact statement (EIS) complies with Section 120.54(2), Florida Statutes. The EIS adequately addresses all the areas required by statute to be addressed and adequately fulfills its purpose even though the conclusions therein may be
subject to debate. Notably, the costs associated with the proposed rules are currently speculative or incapable of estimation in view of the fact that no zone of protection has yet to be proposed. Under the circumstances, the Department can hardly be faulted for failing to make estimates on the basis of unknown variables. State, Department of Insurance v. Insurance Service Office, 434 So.2d 908 (Fla. 1st DCA 1983) , and Brewster Phosphates v. State, Department of Environmental Regulation, supra. Moreover, even if protestants' argument that the EIS was inadequate had merit, they have failed to prove that the fairness of the proceeding or the correctness of the action was impaired by any of the alleged deficiencies. Florida Waterworks Association
v. Florida Public Service Commission, 473 So.2d 237 (Fla. 1st DCA 1985), and Polk v. School Board of Polk County, 373 So.2d 960 (Fla. 2d DCA 1979).
CONCLUSION
Based on the foregoing findings of fact and conclusions of law, it is
ORDERED that proposed rules 17-3.021(20), 17-3.403(5)(e)2, 17-3.403(7), and 17-3.403(8)(a) are invalid. With regard to any challenge regarding the validity of the remaining portions of the proposed rules, the petitions are denied.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of April, 1988.
WILLIAM J. KENDRICK
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1988.
ENDNOTES
1/ Prior to the meeting of December 16, 1986, the ERC had not considered the proposed rules as a collegial body. The Department, consistent with the practice which existed between it and the ERC, noticed the proposed rules and developed the ERC's
agenda without prior approval of the ERC. The agenda was, however, cleared with the chairman of the ERC prior to its meeting, and the rules were considered and approved by the ERC at a duly noticed and regularly called meeting.
2/ Aloha Utilities has in the past filed a timely renewal an operating permit, had the Department request additional information, and had its new operating permit issued after the former one expired.
3/ West Coast owns and operates the Starkey Wellfield, the South- Central Hillsborough Regional Wellfield, the Crossbar Ranch Wellfield, the Cypress Creek Wellfield, and the Northwest Hillsborough Wellfield. The remaining wellfields are operated by West Coast under an operations and management agreement with the respective member governments.
4/ Under the existing rule, zones of discharge may be permitted. Essentially this permitted a discharger to utilize groundwaters within a certain area to mix with its discharge and thereby meet the Department's water quality criteria. Under the proposed rules, such zones will not be permitted.
5/ The underlined portion of rules 17 3.021(7), (16), and (34) represents the amendment or proposed rule at issue. The part not underlined represents the existing rule.
6/ Protestants also contended that proposed rule 17-3.403 (7) was vague, arbitrary, and capricious because of the requirement in the criteria that the subject wells be "withdrawing water" from the aquifers Protestants phrase their quandary as "how often and for how long must a well be withdrawing water" to satisfy the rule criteria. The criteria is not, however vague, and the proof demonstrates a reasonable basis for its indeterminate terminology. The frequency of withdrawal or actual quantity of withdrawal at any give time is not germane since the permitted rate may be achieved at anytime.
7/ Protestants contended that the proposed rule was vague, arbitrary and capricious for the Department's failure to specify value for "n" or a methodology. The rule is reasonable in not specifying a value for "n" since the effective porosity of materials vary, vary with mix; and vary from place to place. While hydrogeology may be an inexact science, and while hydrogeologist may reach different conclusions as to the porosity of various materials, there are accepted methodologies to derive "n". The result derived may only be as good as the data used and the hydogeologist who performed the analysis, but the validity of the result is a question of fact, and subject to scientific proof.
8/ Porosity is the percent of open or void space within a material. This porosity is generally referred to as bulk porosity, and may include primary porosity (the intergranular spaces) and secondary porosity (factures or cavities that have developed through movement of the earth's crest or through dissolution). When calculating volume, the bulk porosity is the factor of impart. When calculating transport time, one is concerned with the effective porosity (the ease with which a solute is transported) and the porosity of foremost concern is secondary porosity.
9/ The formula also ignores recharge. Therefore, "r" is artifically increased.
10/ The economic impact statement for the proposed revision of Chapter 17-3 and the economic impact statement for the proposed revision of Chapter 17-4 are substantially similar since each is dependent upon the other for implementation of the proposed G-I concept. Adam Smith's exhibits 5 and 6 are the original economic impact statements, and were prepared for the hearing on the rules noticed in the October 31, 1986, Florida Administrative Weekly.
After October 31, 1986, but prior to the ERC meeting in December 1986, the Department prepared an amendment to the economic impact statement for the proposed revision of Chapter 17-3. (Adam Smith exhibit 7). This amendment was prepared to address certain amendments to the noticed rules the Department proposed to submit at the ERC meeting. Following the ERC meeting, the Department prepared a second amendment to the economic impact statement for the proposed revisions of Chapter 17-3 and an amendment of the economic impact statement for the proposed revisions to Chapter 17-4. (Adam Smith exhibits 8 and 9). These amendments arose because of various amendments to the proposed rules approved by the ERC at its December meeting.
11/ Agrico Chemical Co. v. State Department of Environmental Regulation, supra, was a case with a similar factual patter to the instant case. Its holding must, however, be read in context with the statutory authority existant at that time. Subsequently, the provisions of Sections 120.54(4)(c) and 120.54(11)(b), Florida Statutes, were amended, and the holding in Agrico would no longer prevail. It is, however, a case instructive on the rulemaking process.
APPENDIX TO FINAL ORDER, CASE NO. 86-4492RP, 86-4705R
The proposed findings of fact of Adam Smith are addressed as follows:
1-7. Addressed in paragraphs 7-10, and 32-38.
8-12. To the extent pertinent, addressed in paragraphs 2-5. 13-82. Addressed in paragraphs 37, 38, and 88-94. Otherwise
rejected as contrary to the proof, argumentative, subordinate or not material. Further, Adam Smith has failed to demonstrate standing to challenge the small business aspects of the EIS or the costs for sanitary landfills.
83-85. Rejected as subordinate.
86-91. Addressed in paragraphs 40-42.
92. Addressed in paragraphs 43 and 44.
93-97. To the extent pertinent, addressed in paragraphs 45-
47.
98-99. Addressed in paragraphs 48 and 49.
100. Rejected as argument.
101-102. Addressed in paragraphs 50 and 51.
103. Rejected as not supported by fact or logic. 104-105. Addressed in paragraphs 52-56.
106-108. Addressed in paragraphs 57-67.
109-110. Addressed in paragraphs 68-85.
Rejected as contrary to the proof. The terms have an
accepted meaning among hydrogeologists, and can be applied site specific.
Rejected since Adam Smith did not demonstrate standing to raise.
113-116. Addressed in paragraphs 85-87.
117-118 Rejected as not supported by the proof or logic.
The terminology has an accepted meaning among hydrogeologists, and reasonable standards and criteria are established.
Rejected as not relevant. See: Conclusions of law.
Rejected since Adam Smith did not demonstrate standing to raise.
The proposed findings of fact filed on behalf of Aloha Utilities, Inc.; Interphase, Inc.; Phase 1 Homes, Inc.; Great Cypress Mobile Village, Inc.; and Barrington, Ltd., are addressed as follows:
1-24. Addressed in paragraphs 12-22, and 32-38.
25-169. Addressed in paragraphs 88-94. Otherwise rejected as contrary to the proof, argumentative, subordinate or not material.
170-176. Addressed in paragraphs 48, 49, and 72. 77-181. Rejected as subordinate or not material.
181-194. Addressed in paragraphs 58 and 72. Otherwise rejected as subordinate.
195-203. Addressed in paragraph 72. Otherwise rejected as subordinate.
204-208. Rejected since the parties did not demonstrate standing to raise.
209-233. Addressed in paragraphs 29, 30, and 74. Otherwise rejected as subordinate or argumentative.
234-237. Addressed in paragraphs 40-42, and 63-67.
238-246. Addressed in paragraphs 50-51. Otherwise rejected as subordinate or argumentative.
247-254. Addressed in paragraphs 40-49.
255-257. Rejected as argument or subordinate.
258-287. Addressed in paragraphs 68-84. Otherwise rejected as subordinate.
288-343. Addressed in paragraphs 57-67. Otherwise rejected as subordinate.
344-391. Addressed in paragraphs 68-84. Otherwise rejected as subordinate.
392-395. | Rejected as not relevant or cumulative. |
396-397. | Addressed in paragraphs 54-56. |
398-400. | Rejected as not relevant. |
401-406. | Rejected as not relevant. |
407-447. | To the extent pertinent, addressed in paragraphs |
68-87. Otherwise rejected as subordinate.
448-450. Addressed in paragraph 4 and footnote 1.
The Department's purposed findings of fact are addressed as follows:
1-5. Addressed in paragraphs 1-6.
6-28. Addressed in paragraphs 7-31.
29-40. Addressed in paragraphs 32-38.
41-42. Addressed in paragraph 72. Otherwise rejected as subordinate.
Addressed in paragraphs 40-42.
Addressed in footnote 6.
Addressed in paragraph 69.
Rejected as subordinate or not material. 47-59. Addressed in paragraphs 68-84.
60-66. Addressed in paragraphs 57-67.
Addressed in paragraphs 85-87.
Addressed in paragraphs 37 and 38. 69-74. Addressed in paragraphs 88-94.
The proposed findings of fact of Florida Electric Power Coordinating Group, Inc., are addressed as follows:
1-4. Addressed in paragraphs 23, 24, 37, and 38.
5-13. Addressed in paragraphs 70-84.
Pasco County submitted proposed findings of fact which consisted of two unnumbered paragraphs. These paragraphs are addressed in findings of fact numbered 26, 27, 37, and 38.
The proposed findings of fact filed on behalf of West Coast are addressed as follows:
1-2. Addressed in paragraphs 4 and 5. Otherwise rejected as a conclusion of law.
3-17. Addressed in paragraphs 6-31, 37, and 38.
18-21. Addressed in paragraphs 88-94.
22-23. Addressed in paragraphs 32.36.
24-31. Addressed in paragraphs 68-84.
32-38. Addressed in paragraphs 57-67.
The proposed findings of fact filed on behalf of Concerned Citizens are addressed as follows:
1-14. To the extent pertinent addressed in paragraphs 6-31, 37, and 38. Otherwise rejected as argument or legal conclusions.
15-34. Addressed in paragraphs 88-94. Otherwise rejected as argument or legal conclusions.
35. Rejected as a legal conclusion.
36-37. Rejected since no party demonstrated standing to raise. Further, this is a rule challenge. If the parties desired rule making, they may petition pursuant to Section 120.54(5), Florida Statutes.
38-49. Rejected as argument or legal conclusions. 50-51. Addressed in paragraphs 57-67.
52-56. Addressed in paragraphs 68-87.
57-58. To the extent pertinent, addressed in paragraphs 50 and 51.
59. Addressed in paragraph 69.
60-61. Addressed in paragraphs 85-87.
62-65. Addressed in paragraphs 85-87.
COPIES FURNISHED:
Chris H. Bentley, Esquire Seth T. Craine, Esquire Martin S. Friedman, Esquire STEANS, WEAVER, MILLER
ROSE, SUNSTROM & BENTLEY WEISSLER, ALHADEFF & SITTERSON
2544 Blairstone Pines Drive Post Office Box 3299 Tallahassee, Florida 32301 Tampa, Florida 33601
Cynthia K. Christen, Esquire William D. Preston, Esquire Assistant General Counsel William H. Green, Esquire Department of Environmental Anne Claussen, Esquire
Regulation HOPPING, BOYD, GREEN, & SAMS
2600 Blairstone Stone Road Post Office Box 6526 Tallahassee, Florida 32399-2400 Tallahassee, Florida 32314 Charles G. Stephens, Esquire Thomas W. Reese, Esquire
202 Madison Street 123 Eighth Street North
Tampa, Florida 33602 St. Petersburg, Florida 33701
Edward B. Halvenston, Esquire Edward M. Chew, Esquire Assistant County Attorney Douglas M. Wyckoff, Esquire Pasco County Governmental Center de la Parte, Gilbert & 7530 Little Road Gramovot, P.A.
New Port Richey, Florida 33553 705 E. Kennedy Boulevard
Tampa, Florida 33602
Liz Cloud, Chief Carroll Webb Bureau of Administrative Code Executive Director
1802 The Capitol Administrative Procedures Tallahassee, Florida 32301 Committee
120 Holland Building Tallahassee, Florida 32301
Dale Twachtmann, Secretary Daniel H. Thompson Department of Environmental General Counsel
Regulation Department of Environmental 2600 Blairstone Road Regulation
Tallahassee, Florida 32399-2400 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.
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ALLIANCE FOR RATIONAL GROUND ) WATER RULES and ADAM SMITH ) ENTERPRISES, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 86-4492RP
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondent, )
and )
)
FLORIDA ELECTRIC POWER ) COORDINATING GROUP, INC. and ) WEST COAST REGIONAL WATER ) SUPPLY AUTHORITY, )
)
Intervenors. )
) ALOHA UTILITIES, INC., et al., )
)
Petitioner, )
)
vs. ) CASE NO. 86-4705R
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION AND ENVIRONMENTAL ) REGULATION COMMISSION, )
)
Respondent, )
and )
)
FLORIDA ELECTRIC POWER ) COORDINATING GROUP, INC., WEST ) COAST REGIONAL WATER SUPPLY ) AUTHORITY, FLORIDA LAND COUNCIL) and CONCERNED-CITIZENS OF ) CITRUS COUNTY, INC., )
)
Intervenors. )
)
ORDER CORRECTING FINAL ORDER
On April 18, 1988, the final order was rendered in the above- styled matter. Paragraphs 50 and 51, Findings of Fact; the second sentence of paragraph 21, Conclusions of Law; and the "Conclusion", contain a scrivener's error in that proposed rule
17-3.403(5)(e)2 is referenced when proposed rule 17-3.403(6)(e)2 should have been referenced. Accordingly, pursuant to rule 22I- 6.32, Florida Administrative Code, it is
ORDERED that:
The reference to proposed rule 17-3.403(5)(e)2 contained in paragraphs 50 and 51, Findings of Fact, and in the second sentence of paragraph 21, Conclusions of Law, is hereby corrected to read proposed rule 17-3.403(6)(e)2.
The Conclusion is hereby corrected to read: ORDERED that proposed rules 17-
3.021(20), 17-3.403(6)(e)2, 17-3.403(7),
and 17-3.403(8)(a) are invalid. With regard to any challenge regarding the validity of the remaining portions of the proposed rules, the petitions are denied.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of April, 1988.
WILLIAM J. KENDRICK
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1988.
COPIES FURNISHED:
Chris H. Bentley, Esquire Seth T. Craine, Esquire Martin S. Friedman, Esquire STEANS, WEAVER, MILLER
ROSE, SUNSTROM & BENTLEY WEISSLER, ALHADEFF & SITTERS0N
2544 Blairstone Pines Drive Post Office Box 3299 Tallahassee, Florida 32301 Tampa, Florida 33601
Cynthia K. Christen, Esquire William D. Preston, Esquire Assistant General Counsel William H. Green, Esquire Department of Environmental Anne Claussen, Esquire
Regulation HOPPING, BOYD, GREEN, & SAMS
2600 Blairstone Road Post Office Box 6526 Tallahassee, Florida 32399-2400 Tallahassee, Florida 32314
Charles G. Stephens, Esquire Thomas W. Reese, Esquire
202 Madison Street 123 Eighth Street North
Tampa, Florida 33602 St. Petersburg, Florida 33701
Edward B. Halvenston, Esquire Edward M. Chew, Esquire Assistant County Attorney Douglas M. Wyckoff, Esquire Pasco County Governmental de 1a Parte, Gilbert &
Center Gramovot, P.A.
7530 Little Road 705 E. Kennedy Boulevard New Port Richey, Florida 33553 Tampa, Florida 33602
Liz Cloud, Chief Carroll Webb Bureau of Administrative Code Executive Director
1802 The Capitol Administrative Procedures Tallahassee, Florida 32301 Committee
120 Holland Building Tallahassee, Florida 32301
Dale Twachtmann, Secretary Daniel H. Thompson Department of Environmental General Counsel
Regulation Department of Environmental 2600 Blairstone Road Regulation
Tallahassee, Florida 32399-2400 2600 Blairstone Road
Tallahassee, Florida 2400
DISTRICT COURT OPINION
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
ADAM SMITH ENTERPRISES, INC., NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED.
vs. CASE NO. 88-1223
DOAH CASE NO. 86-4492RP
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Appellee,
and
FLORIDA ELECTRIC POWER COORDINATING GROUP, INC., WEST COAST REGIONAL WATER SUPPLY AUTHORITY, FLORIDA LAND COUNCIL, PASCO COUNTY, and CONCERNED CITIZENS OF CITRUS COUNTY, INC.
Appellees/ Intervenors Below.
/ ALOHA UTILITIES, INC., INTERPHASE INC., PHASE 1, HOMES, INC., A.C. & R., INC., TAHITIAN DEVELOPMENT, INC., GREAT CYPRESS MOBILE HOME VILLAGE, INC., and
BARRINGTON, LTD.
Appellants,
vs. CASE NO. 88-1224RP
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION AND ENVIRONMENTAL REGULATION COMMISSION,
Appellees,
and
FLORIDA ELECTRIC POWER COORDINATING GROUP, INC., WEST COAST REGIONAL WATER SUPPLY AUTHORITY, PASCO COUNTY and CONCERNED CITIZENS OF CITRUS COUNTY, INC.,
Appellees/ Intervenors Below.
/
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Appellant,
vs. CASE NO. 88-1242 CONSOLIDATED ALLIANCE FOR RATIONAL GROUND
WATER RULES, INC., ADAM SMITH ENTERPRISES, INC., ALOHA UTILITIES, INC., INTERPHASE, INC., PHASE 1 HOMES, INC.,
A.C. & R. INC., TAHITIAN DEVELOPMENT, INC., GREAT CYPRESS MOBILE HOME VILLAGE, INC., and BARRINGTON, LTD.,
Appellees.
/ Opinion filed November 22, 1989.
An appeal from a final order of the Division of Administrative Hearings.
Honorable William J. Kendrick, Hearing Officer.
Chris H. Bentley of Rose, Sundstrom & Bentley, Tallahassee, for Appellant/Appellee Adam Smith Enterprises, Inc.; Martin S. Friedman of Rose, Sundstrom & Bentley, Tallahassee, for Appellants/Appellees Aloha Utilities, Inc., Interphase Inc., Phase
1 Homes, Inc., A.C. & R., Inc., Tahitian Development, Inc., Great Cypress Mobile Village, Inc., and Barrington, Ltd.; Cynthia K.
Christen, Assistant General Counsel, Department of Environmental Regulation, Tallahassee, for Appellants/Appellees Department of Environmental Regulation and Environmental Regulation Commission; William D. Preston of Hopping, Boyd, Green & Sams for Appellees/Intervenor below Florida Electric Power Coordinating Group, Inc.; Douglas M. Wyckoff of de la Parte, Gilbert & Gramovot, P.A., Tampa, for Appellee/Intervenor below West Coast Regional Water Supply; Thomas W. Reese, St. Petersburg, for Appellee/Intervenor below Concerned Citizens of Citrus County, Inc.
NIMMONS, J.
This case involves consolidated appeals and cross appeals from a final order of the Division of Administrative Hearings (DOAH), invalidating certain provisions of the G-1 Rule proposed by the Florida Department of Environmental Regulation (DER) while upholding the validity of other provisions. We affirm.
In 1983, Concerned Citizens of Citrus County, Inc. (Concerned Citizens) filed a petition to initiate rulemaking for a single source reclassification of groundwater under the existing provisions of Florida Administrative Code Rule 17-3.403. In this manner, Concerned Citizens sought to have existent potable waters in Pinellas, Hillsborough, Pasco, Hernando and Citrus counties classified Class G-I groundwater, and to thereby impose the most stringent water quality protection accorded groundwaters of the state.
At a public meeting in February 1985, the Environmental Regulation Commission (ERC) deferred action on the petition of Concerned Citizens, and directed DER to review the existing G-I rule, prepare proposed revisions, and present its recommendation to the ERC.
Following the ERC directive, DER held numerous public meetings and workshops to explore different approaches to groundwater protection. As a consequence, it prepared proposed revisions to Rules 17-3.021, 17-3.403, 17-3.404, and 17-4.245, Florida Administrative Code.
In October 1986, DER published notice in the Florida Administrative Weekly of its intent to adopt these proposed rules.
The notice also advised all interested parties that a
public hearing would be held in December 1986 before the ERC.
In December 1986, the ERC held the public hearing at which time it considered the rules recommended by DER. During the
course of this meeting, the ERC approved and adopted the rules with certain changes. These changes were duly noticed in the Florida Administrative Weekly.
In November 1986, timely petitions were filed against DER and ERC, pursuant to Section 120.54(4), Florida Statutes, challenging the validity of the proposed rules. These petitions were consolidated for hearing. 1/ The issue for determination below was whether certain provisions of DER's proposed rules 17-3.021, 17-3.403, 17-3.404, and 17-4.245, constituted an invalid exercise of delegated legislative authority. 2/
DER is authorized under Section 403.061(10), Florida Statutes, to group the waters of the state into classes in accordance with their present and future most beneficial uses. This section also specifically allows DER to alter or modify its classifications after public hearing. The term waters includes groundwater.
In 1983, DER promulgated Florida Administrative Code Rule 17- 2.403(1), which grouped groundwater into four classes, G-I through G-IV. Classes G-I and G-II are designated for potable water use, and Classes G-III and G-IV are designated for nonpotable water use.
The 1983 rule on Class G-I groundwater, approved by the ERC, limited that classification to groundwater in single source aquifers. Rule 17-3.403(1). Under the existing rule, the ERC could reclassify an aquifer or portions of an aquifer as G-I within specified boundaries upon a finding that:
The aquifer or portion of the aquifer is the only reasonably available source of potable water to a significant segment of the population; and
The designated use is attainable, upon consideration of environmental, technological, water quality, institutional, and social and economic factors.
The proposed modification greatly changes what a G-I classification entails. The changes would eliminate the single source requirement for Class G-I groundwater and replace it with new eligibility criteria for designation of an aquifer segment as Class G-I groundwater. Under the proposed revisions, an aquifer segment could be classified by the ERC as G-I provided it was:
within the zones of protection of a major public community drinking water supply well(s)
or well field(s) withdrawing water from unconfined or from leaky confined aquifers...
Proposed rule 17-3.403(7).
As with the existing rule, the proposed rules require that rulemaking procedures be followed to actually designate the G-I aquifer or aquifer segment at any particular location.
The scheme envisioned by the proposed rules is to provide protection to "major community drinking water supply wells" by preventing contaminants from entering the groundwater within a circumscribed radius of the wells. To accomplish this purpose, the proposed rules establish a methodology whereby two zones of protection would be established around such wells if they were withdrawing waters from unconfined aquifers (an aquifer exposed to the atmosphere) or leaky confined aquifers (an aquifer in which groundwater moves vertically from the water table to the top of the aquifer in five years or less). The first zone (the inner zone) would be based on a fixed radius of 200 feet. The second zone (the outer zone) would be based on a radius, calculated under the rule's methodology ("r" formula), of five years groundwater travel time. Within the inner zone, discharges would be prohibited. Within the outer zone, certain developments which discharged to groundwater would be prohibited or restricted.
Proposed rules 17-3.403(7) and (8), respectively, set forth the eligibility criteria for reclassification as G-I aquifers and the methodology whereby the boundaries of the zones of protection are established. To this end, proposed Rule 17-3.403(7) provides:
Categories of G-I aquifers. For aquifers or aquifer segments to be eligible for potential reclassification as G-I aquifers one of the following criteria must be met:
That the aquifer or aquifer segment under consideration be within the zones of protection of a major public community drinking water supply well(s) or wellfield(s) withdrawing water from unconfined aquifers or leaky confined aquifers ...
Proposed rule 17-3.403(8) provides:
Determination of the boundaries of the zones of protection.
(a) The boundaries of the zones of protection shall be based on radii from the
wellhead or wellfield (if closely clustered, so that the five year zones of protection are overlapping) measured in 200 feet for the inner zone and five years for the outer zone. The radius of the outer zone shall be determined using the following formula:
( QT ) 1/2 r = ( )
(3.14 hn)
where Q | = | permitted flow from (measured per day) | average daily the well in cubic feet |
T | = | five years (1825 days); | |
3.14 | = | mathematical constant pi; | |
r | = | radius (feet); | |
h n | = = | distance from the top of the producing aquifer to the bottom of the hole; effective porosity. | |
For the purpose of this calculation the following effective porosities for representative Florida aquifers will be used:
Floridan .05 Sand and Gravel .2
Biscayne .15 Surficial .2
The Department shall use more site-specific values for "Q," "n," or "h" when available for designation of the zones of protection by the Commission.
The "r" formula defines the outer zone of protection, and calculates it as a radius equal to the distance groundwater would flow in five years toward the well. The element "T" in the "r" formula is defined as "five years (1825 days)." By its inclusion, DER proposed to circumscribe the outer zone of protection at five years groundwater travel time.
The concept of a zone of protection is premised on the theory that restrictions should be placed on discharges to groundwater within the area proximate to a public water supply for public health and safety concerns. The five-year standard, which is found throughout the rules, was based on the theory that if a contaminant was introduced to the groundwater, a period of time
should be allowed to discover the contamination and remove it or make provision for an alternate water supply before the contaminant reached the public water supply.
In his final order, the hearing officer found that the Five years proposed by the rule was arbitrary and capricious. As stated by the hearing officer:
During the workshop that underscored the proposed rule, the time factor was the subject of considerable discussion and ranged from less than two years to greater than ten years. Based on its own in-house search, the Department initially proposed a 10-year standard. That search revealed that it took
10 to 15 years between the time a contaminant was discovered and cleanup could commence, and between seven and eight years between the time a contaminant was introduced into groundwater and its discovery.
Notwithstanding the results of its own in-house search, the Department, in the face of debate, elected to "compromise" and propose a five year standard. Such standard was not the result of any study to access its validity, and no data, reports or other research were utilized to derive it. In sum, the five-years standard was simply a "compromise" and was not supported by fact or reason.
The element "n" in the "r" formula is defined as "effective porosity." The term "effective porosity" refers to the ease with which a solute is transported through a material. The value ascribed to "n" is a critical value. It has a profound impact on the extent of the zone of protection. For example, assuming "Q" equals three million gallons and "h" equals 600 feet, an "n" of
would result in a radius of 1,400 acres, an "n" of .03 would result in a radius of 934 acres and an "n" of .05 would result in a radius of 560 acres. In other words, keeping all factors constant, the smaller the value of "n," the larger the perimeter of the zone of protection becomes.
The hearing officer concluded that the rule specification of an effective porosity of .05 for the Floridan aquifer was also arbitrary and capricious. As stated by the hearing officer:
72. The lithology [character of the rock formation] of an aquifer and the surrounding layers is varied and diverse, and directly affects the direction and velocity of ground- water flow. [The effective porosity of those materials in the Floridan aquifer can vary from .01 to .4 at various places.] By assuming a constant "n," the "r" formula ignores the varied lithology, and produces a radius that would seldom, if ever, represent the actual rate at which groundwater moved toward any well. The zone thus circumscribed is an illusion since the groundwaters and contaminants within it may move at a rate significantly greater than or less than 5 years travel time. Notably, the Department has conducted no study or test to validate its proposed methodology.
The hearing officer concluded that proposed rules 17- 3.021(20), 17-3.403(5)(e)(2), 17-403(7) and 17-403(8)(a) did in
fact constitute an invalid exercise of delegated legislative authority in that they were either vague, failed to establish adequate standards for agency decisions, vested unbridled discretion in the agency, or were arbitrary or capricious. The remaining challenged portions of DER's proposed G-I rule were found to comport with the essential requirements of law.
Several issues have been raised in the numerous appeals and cross appeals filed in the instant case. 3/ However, we believe that only the issue raised in DER's direct appeal merits discussion. That issue is whether the hearing officer erred in finding that two factors of the radius "r" formula of the proposed G-I rule, namely, the five-year value for the perimeter of the outer zone of protection and the .05 value for the effective porosity of the Floridan Aquifer, are arbitrary and capricious.
Critical to our determination of this issue is our determination of the more significant issue concerning the appropriate standard of review to be applied by an appellate court to the findings of a hearing officer arising out of a Section 120.54(4) rule challenge proceeding. DER and intervenor Concerned Citizens maintain that in reviewing a hearing officer's findings regarding the validity of an agency's proposed rule pursuant to a Section 120.54(4) rule challenge, the appropriate standard of review to be applied by the appellate court is whether there was competent substantial evidence before the agency to support its rule.
DER's and Concerned Citizens' argument illustrates the state of confusion which has surrounded the broader issue concerning the appropriate standard of review to be applied by this court to administrative appeals arising out of the rulemaking process.
Resolution of the issue raised in the present appeal is dependent upon our resolution of this broader issue. We believe it will be helpful for us to examine in this opinion how the rulemaking process operates under Florida's Administrative Procedure Act (APA), the different avenues of judicial review which arise out of the rulemaking process, and the nature of the proceedings which occur during the rulemaking process from which judicial review is available.
I.
Rule adoption under Florida's APA is a complex process. It is a continuum of events culminating in the adoption of a rule when it is filed with the Secretary of State. In the first step of the process, the agency must draft the entire text of the proposed rule 4/ and a supporting economic impact statement, initiated by either the agency itself or petition for rulemaking. 5/ Next, the agency is required to give public notice of proposed rulemaking, both by distribution and publication. Section 120.54(1)(a) and (b), Fla. Stat. (1987). This notice of the agency's intended action must set forth a short and plain explanation of the purpose and effect of the proposed rule, the specific legal authority under which its adoption is authorized, and a summary of the estimate of the economic impact of the proposed rule on all persons affected by it. Section 120.54(1), Fla. Stat. (1987).
The agency is further required, as to rulemaking unrelated to organization, practice, and procedure, to give affected persons an opportunity to present evidence and argument on all issues under consideration appropriate to inform the agency of their intentions on any affected person's request which is received within 21 days after publication of the Section 120.54(1) notice. Section 120.54(3)(a), Fla. Stat. 6/ If affected persons submit evidence and argument without requesting a public hearing, the agency may choose whether to conduct such a hearing or to consider the submitted materials without holding a public hearing. However, if requested by any affected person, the agency must hold a public hearing on the rule. 7/
If a person participating in the rulemaking proceedings under Section 120.54(3) has substantial interests that will be affected by those proceedings, that person is entitled to a proceeding conducted in a manner which adequately protects his substantial interests. Section 120.54(17), Fla. Stat. 8/ If the rulemaking
proceeding does not provide the necessary procedural protection and if the agency agrees with the asserting person that the procedures are not adequate to protect his substantial interests, the person may be permitted to "draw out" of the rulemaking proceeding and to have commenced a separate proceeding conducted in accordance with Section 120.57. If a separate proceeding is commenced, upon its conclusion the rulemaking proceeding is required to be resumed. Section 120.54(17), Fla. Stat.
Furthermore, a party is entitled to have the agency rule on his assertion that the procedures are inadequate. The failure of the agency to exercise its discretion in this regard is subject to immediate judicial review . See Bert Rogers Schools of Real Estate v. Florida Real Estate Commission, 339 So.2d 226 (Fla. 4th DCA 1976). However, the denial by an agency of a request to suspend a Section 120.54(3) rulemaking hearing and convene a
proceeding, as provided in Section 120.54(17), is not final agency action. Neither is it intermediate action cognizable under Section 120.68(1). Corn v. Department of Legal Affairs, 368 So.2d 591 (Fla. 1979).
Florida's APA also provides for challenges to proposed rules under Section 120.54(4). 9/ Section 120.54(4) entitles "any substantially affected person" to 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." The phrase "invalid exercise of delegated legislative authority," as used in Chapter 120, is now statutorily defined. Chapter 87-385, Section 2, amended Section 120.52 by adding the following subsection defining "invalid exercise of delegated legislative authority" as follows:
"Invalid exercise of delegated legislative authority" means action which 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 or more of the following apply:
The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;
The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 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.
Procedurally, the request seeking the determination must be in writing and filed with DOAH within 21 days after the Section 120.54(1) notice of hearing is filed. The writing must state with particularity the provisions challenged with sufficient facts and explanation in support of the request and facts sufficient to show that the person challenging would be substantially affected.
Section 120.54(4)(b), Fla. Stat.
Within ten days of receipt, if the division director determines that the petition has complied with the above requirements, a hearing officer must be assigned to conduct a hearing within 30 days thereafter and shall render a decision with reasons in writing 30 days after the hearing. Section 120.54(4)(c), Fla. Stat. Other substantially affected persons can join or intervene unless there would be substantial delay.
Section 120.54(4)(d), Fla. Stat.
All or part of the rule may be declared invalid by the hearing officer. The proposed rule or part of the proposed rule declared invalid must be withdrawn by the agency and cannot be adopted. In the event part of a proposed rule is declared invalid, the agency may, in its discretion, withdraw the proposed rule in its entirety. Section 120.54(4)(c), Fla. Stat. While the Section 120.54(4) proceeding is pending, the agency may continue with its rulemaking procedures but cannot adopt the rule. No rule shall be filed until 28 days after the Section 120.54(1) notice is published or until the hearing officer has rendered his decision. Notice of a decision declaring a proposed rule invalid must be published in the first available issue of the Florida Administrative Weekly. Section 120.54(4)(c), Fla. Stat.
Furthermore, as a legislative check on legislatively created authority, 10/ an agency is required to file proposed rules with the Administrative Procedures Committee 11/ at least 21 days prior to the proposed adoption, subject to certain exceptions. To facilitate committee review, Section 120.54(11) requires agencies to file a copy of the proposed rule, a justification statement, a federal standards statement, an economic impact statement, and a copy of the Section 120.54(1) notice. Section 120.54(11)(a), Florida Statutes, provides in relevant part as follows:
(11)(a) The adopting agency shall file with the committee, at least 21 days prior to the proposed adoption date, a copy of each rule it proposes to adopt; a detailed written statement of the facts and circumstances
justifying the proposed rule; a copy of
the estimate of economic impact required by subsection (2); a statement of the extent to which the proposed rule establishes standards more restrictive than federal standards or a statement that the proposed rule is no more restrictive than federal standards or that a federal rule on the same subject does not exist; and the notice required by section (1).
Pursuant to Section 120.545, the Administrative Procedures Committee is required to examine each proposed rule, with some exceptions, and may examine any existing rule, for the purpose of determining whether:
The rule is an invalid exercise of delegated legislative authority;
The statutory authority for the rule has been repealed;
The rule reiterates or paraphrases statutory material;
The rule is in proper form;
The notice given prior to its adoption was sufficient to give adequate notice of the purpose and effect of the rule; and
The economic impact statement accompanying the rule is adequate to accurately inform the public of the economic effect of the rule.
The committee has no power to nullify a proposed rule or an existing rule, but the committee can issue objections, which can affect the subsequent conduct of the rulemaking proceeding.
Section 120.545(2), Fla. Stat. An objection to the proposed rule, if not responded to by the agency, effectuates a withdrawal of the proposed rule. Section 120.545(6), Fla. Stat.
After these procedures have run their course, the agency once more enjoys procedural freedom, as far as the APA is concerned, when making the final decision to adopt a rule. Section 120.54(11)(b) requires the rule and supporting materials to be filed, as the culmination of the rulemaking process. 12/ A proposed rule is adopted upon being filed with the Department of State and is effective 20 days thereafter or as specified in the rule or by the statute. Section 120.54(13), Fla. Stat. While the agency enjoys only a limited right to adopt a rule that differs from the proposed rule, the agency is completely free to withdraw the proposed rule and embark on completely new rulemaking proceedings with a different proposed rule. Section 120.54(13)(b), Fla. Stat.
II.
For agency action arising out of the rulemaking process, there are essentially two primary avenues of judicial review permitted under the APA: (1) direct appeal from an agency's adopted rule; and (2) appeal from a hearing officer's final determination arising out of a rule challenge proceeding pursuant to either Section 120.54(4) or 120.56.
Section 120.68, the governing statute on judicial review under the APA, provides in relevant part:
A party who is adversely affected by final agency action is entitled to judicial review...
Except in matters for which judicial review by the Supreme Court is provided by law, all proceedings for review shall be instituted by filing a petition in the district court of appeal...
The APA, of course, defines reviewable final agency action in several instances. Rules are adopted and considered "final agency action" when they are filed with the Department of State, although they are not effective until 20 days after being filed, and as such are subject to judicial review under Section 120.68. See Section 120.54(13)(a), Fla. Stat.; Section 120.52(2), Fla. Stat. ("agency action" includes both orders and rules entered or adopted by the agency); Section 120.68(5)(b), Fla. Stat. (record for judicial review shall include "materials considered by the agency under Section 120.54, if review is sought of proceedings under that Section"); Florida Administrative Commission v. District Court of Appeal, First District, 351 So.2d 712 (Fla. 1977)(the filing of rules with the Department of State is "final agency action" for purposes of computing the time for seeking judicial review); City of Key West v. Askew, 324 So.2d 655 (Fla. 1st DCA 1975)(court expressly stated that adoption of a rule constitutes final agency action subject to judicial review); 4245 Corporation, Mother's Lounge, Inc. v. Division of Beverage, 348 So.2d 934, 936 (Fla. 1st DCA 1977)(court held that rulemaking itself constitutes final agency action which an adversely affected party may judicially challenge by a timely petition for review, Sections 120.52(2)(14), 120.54, 120.68(1), and, upon the Division's adoption of the proposed rule, petitioners as parties to the rulemaking proceedings would be entitled to judicial remedies under the APA); Postal Colony Co., Inc. v. Askew, 348 So.2d 338 (Fla. 1st DCA 1977), aff'd sub nom. Askew v. Cross Key Waterways,
So.2d 913 (Fla. 1978); Polk v. School Board of Polk County,
So.2d 960 (Fla. 2d DCA 1979); Brewster Phosphates v. State, Department of Environmental Regulation, 444 So.2d 483 (Fla. 1st DCA 1984); Booker Creek Preservation, Inc. v. Southwest Florida Water Management District, 534 So.2d 419 (Fla. 5th DCA 1988)(issue of authority for direct appeal addressed in f.n. 1, wherein the court held: "This is a direct appeal from an agency's final action consisting of rulemaking. See Section 120.54 (the Administrative Procedure Act), Fla. Stat. (1987). We have jurisdiction, Fla. R. App. P. 9.030(b)(1)(c) .").
Further, the hearing officer's determination on a challenge to a proposed or adopted rule is final agency action under Sections 120.54(4)(d) and 120.56(5), and as such is subject to judicial review by either the agency or the challenging party under Section 120.68(1). See 4245 Corporation, Mother's Lounge, Inc. v. Division of Beverage, 348 So.2d 934 (Fla. 1st DCA 1977).
Moreover, the failure to elect to challenge a proposed rule as provided for in Section 120.54(4), or an adopted rule under 120.56, does not constitute a failure to exhaust administrative remedies so as to frustrate the institution of a direct appeal from an agency's adopted rule. Section 120.54(4)(d), Fla. Stat. 13/; Section 120.56(5), Fla. Stat.; Postal Colony Co., Inc. v.
Askew, 348 So.2d 338 (Fla. 1st DCA 1977)(failure to pursue administrative proceedings under Sections 120.54(4)(d) and 120.56(5) to challenge rules as invalid exercise of delegated legislative authority did not constitute a failure to exhaust administrative remedies); see also General Telephone Co. of Florida v. Florida Public Service Commission, 446 So.2d 1063 (Fla. 1984); Booker Creek Preservation, Inc. v. Southwest Florida Water Management District, 534 So.2d 419 (Fla. 5th DCA 1988); and Brewster Phosphates v. State, Department of Environmental Regulation, 444 So.2d 483 (Fla. 1st DCA 1984). In these latter two cases, the Florida Supreme Court and this court entertained direct appeals from an agency's final action of adopting a rule without requiring the rule challengers to have pursued administrative remedies via Sections 120.54(4) or 120.56(1).
The right to seek a determination of the validity of a proposed or adopted rule before a hearing officer is nothing more than an optional administrative alternative provided by the APA. See Sections 120.54(4)(a) and 120.56(1), Fla. Stat. (both of these statutes indicate that substantially affected persons "may seek an administrative determination of the invalidity" (e.s.) of a rule or proposed rule); see also State ex rel. Dept. of General Services v. Willis, 344 So.2d 580, 590 (Fla. 1st DCA 1977)(the APA provides an "impressive arsenal of varied and abundant remedies for administrative error").
III.
The standard of review to be applied by this court to administrative appeals arising out of the rulemaking process is dependent upon the route by which the administrative appeal reaches us. The standard of review to be applied on a direct appeal from an adopted agency rule, arising out of the rulemaking proceedings under Section 120.54(3), is different from the standard to be applied on an appeal from a hearing officer's determination arising out of a Section 120.54(4) or 120.56 rule challenge proceeding. Essential to a determination of the appropriate standard of review to be applied by this court to administrative appeals arising out of the rulemaking process is an understanding of the nature of the administrative proceedings that occur below.
Agency rulemaking pursuant to statutory authorization is a quasi-legislative function, and the scope of appellate review thereof is more limited than that with respect to quasi-judicial action. Brewster Phosphates v. State, Department of Environmental Regulation, 444 So.2d 483, 486 (Fla. 1st DCA 1984); Booker Creek Preservation, Inc. v. Southwest Florida Water Management District,
534 So.2d 419 (Fla. 5th DCA 1988); Broward County v. Administration Commission, 321 So.2d 605 (Fla. 1st DCA 1975); Polk
v. School Board of Polk County, 373 So.2d 960, 962 (Fla. 2nd DCA 1979); General Telephone Co. of Florida v. Florida Public Service Commission, 446 So.2d 1063 (Fla. 1984). The proceedings which culminate in the adoption of an agency's rule are generally legislative in nature, and are not adversarial. These proceedings consist of the agency's informal rulemaking proceedings conducted pursuant to Section 120.54(3)(a). 14/
Proceedings conducted pursuant to Section 120.54(3)(a) are not the same type of proceedings as are provided under Section
120.57 when an agency determines the substantial interests of a party. The rights of a particular individual are not adjudicated in this type of proceeding. Rather, Section 120.54(3) rulemaking proceedings are information gathering proceedings, much like legislative committee proceedings where testimony is heard, which proceedings are relatively informal. The purpose of the rulemaking proceedings authorized by Section 120.54(3) is twofold:
to allow the agency to inform itself about the positions and problems of those who seek to present evidence and argument; and
to allow the public and others with particular interest in or information about the proposed rule to participate in the formulation of agency policy. See Balino v. Department of Health and Rehabilitative Services, 362 So.2d 21 (Fla. 1st DCA 1978).
The intention of the Section 120.54(3) proceeding is to facilitate the exchange of information and not to be restrictive through the technical use of evidentiary rules. Such proceedings are designed
to inform an agency to its fullest, and are not intended to adjudicate any issues or to be conducted in an adversarial manner. General Telephone Co. of Florida v. Florida Public Service Commission, 446 So.2d 1063 (Fla. 1984).
What emerges from the agency's informal rulemaking proceedings is an informal "administrative record" which is in fact capable of judicial review. The administrative record that comes before the appellate court on a direct appeal from an adopted rule will generally consist of the following: (1) the agency's initial proposal, its tentative empirical findings, important advice received from experts, and the description of the critical experimental and methodological techniques on which the agency intends to rely; (2) the written or oral replies of interested parties to the agency's proposals and to all the materials considered by the agency; and (3) the final rule accompanied by a statement both justifying the rule and explaining its normative and empirical predicates. See Sections 120.54(3)(a), (6) and (11)(a), Fla. Stat.; Section 120.68(5)(b),
Fla. Stat.
The standard of judicial review to be applied by the appellate court when there is this kind of informal administrative record arising from an agency's informal rulemaking proceeding has never been clearly articulated in the case law and has been the source of much confusion. DER and Concerned Citizens suggest that an agency's rulemaking proceedings are to be reviewed under a competent substantial evidence standard, 15/ i.e., as long as an agency's rule is supported by competent substantial evidence, the rule must be upheld.
However, DER and Concerned Citizens fail to recognize that the record produced during informal agency rulemaking does not lend itself to such an evidence weighing process. An informal rulemaking record often contains soft information which is difficult for the court to weigh and which is less reliable than that which is found in formal proceedings wherein evidentiary safeguards are applicable.
The record in informal rulemaking often contains generalized rather than specific information, evidence that is untested by cross-examination, and conclusory information based upon data submitted by interested parties. In addition, rulemaking decisions frequently turn on policy considerations which do not easily lend themselves to the test of substantial evidence.
Moreover, because an informal record includes the written submissions of any interested party, it may be voluminous and technically complex and disorganized. Naturally, an informal record of this sort cannot be reviewed in quite the same way as a formal adjudicatory record in which the issues are refined and the
positions of the parties clearly delineated. See General Telephone Co. of Florida v. Florida Public Service Commission, 446 So.2d 1063 (Fla. 1984)(Supreme Court recognized that the "standard of review for a quasi-legislative proceeding must differ from that for a quasi-judicial proceeding, as a qualitative, quantitative standard such as competent and substantial evidence is conceptually inapplicable to a proceeding where the record was not compiled in an adjudicatory setting and no factual issues were determined"); Booker Creek Preservation, Inc. v. Southwest Florida Water Management District, 534 So.2d 419 (Fla. 5th DCA 1988)(court found that in a case involving direct appeal from a newly adopted agency rule, "there really is no competent and substantial evidence presented below for us to review, nor findings of fact determined by a board or hearing officer"); see also Brewster Phosphates v. State, Department of Environmental Regulation, 444 So.2d 483 (Fla. 1st DCA 1984).
Accordingly, the standard of review applicable to a direct appeal from an agency's quasi-legislative rulemaking function is, as articulated by the Florida Supreme Court in General Telephone Co. of Florida v. Florida Public Service Commission, 446 So.2d 1063, 1067 (Fla. 1984), as follows:
"Where the empowering provision of a statute states simply that an agency may 'make such rules and regulations as may be necessary to carry out the provisions of this act,' the validity of the regulations promulgated thereunder will be sustained as long as they are reasonably related to the purposes of the enabling legislation, and are not arbitrary or capricious." (e.s.) Agrico Chemical Co. v.
State, Department of Environmental Regulation,
365 So.2d 759 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla. 1979); Florida Beverage Corp. v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975).
The arbitrary and capricious standard of review as applied to informal rulemaking proceedings is a less stringent standard for rulemakers than the competent substantial evidence standard which is applied to formal adjudicatory quasi-judicial proceedings. See General Telephone Co. of Florida, supra, at 1063 (judicial review of rulemaking, a quasi-legislative proceeding, is more limited than that of a quasi-judicial proceeding); Booker Creek Preservation, Inc., supra; Broward County v. Administration Commission, 321 So.2d 605 (Fla. 1st DCA 1975); Polk v. School Board of Polk County, 373 So.2d 960 (Fla. 2d DCA 1979); see also Abbott Laboratories v. Gardner, 387 U.S. 136, 143, 87 S.Ct. 1507,
18 L.Ed.2d 681 (1967)(stating that the substantial evidence test
affords a considerably more generous judicial review than the arbitrary and capricious test). Defining a standard of review less stringent than a competent substantial evidence standard is no easy task. 16/ However, an examination of federal law is instructive in defining this arbitrary and capricious standard. Section 706(2)(A) of the Federal APA prescribes the "arbitrary and capricious" test as the basic standard for judicial review of informal rulemaking and the more rigorous "substantial evidence" standard as the one applicable for review of formal, adjudicatory rulemaking. 17/ In its landmark decision in Citizens to Preserve Overton Park. Inc. v. Volpe, 401 U.S. 402, 911 S.Ct. 814, 28 L.Ed.2d 136 (1971), the Supreme Court sought to define an acceptable standard of review of informal agency action. In Overton Park, the Supreme Court held that the arbitrary and capricious standard applied to judicial review of an informal decision by the Secretary of Transportation to expend federal funds to finance the construction of a highway through a public park. The Court rejected the petitioner's argument that the substantial evidence standard applied. The Court recognized that the hearing provided for under the statute was not adjudicatory, was quasi-legislative in nature, and was not intended to produce an evidentiary record -- the basic requirement for substantial evidence review. Accordingly, because of the procedures involved, the Court applied the narrow arbitrary and capricious test to the Secretary of Transportation's decision.
The Court stated that when reviewing agency action under the arbitrary and capricious standard:
[T]he court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one.
The court is not empowered to substitute its judgment for that of the agency.
401 U.S. at 416. 18/
We believe that under this arbitrary and capricious standard, then, an agency is to be subjected only to the most rudimentary command of rationality. The reviewing court is not authorized to examine whether a rulemaker's empirical conclusions have support in substantial evidence. Rather, the arbitrary and capricious standard requires an inquiry into the basic orderliness of the rulemaking process, and authorizes the courts to scrutinize the actual making of a rule for signs of blind prejudice or inattention to crucial facts.
Accordingly, in applying the arbitrary and capricious standard to an agency's informal rulemaking proceedings, the reviewing court must consider whether the agency: (1) has considered all relevant factors; (2) has given actual, good faith consideration to those factors; and (3) has used reason rather than whim to progress from consideration of these factors to its final decision.
This arbitrary and capricious standard of review is nothing more than an inquiry into the realities of the rulemaking process. Such review is possible on the informal administrative record that comes before this court. A proper record will reflect all of the relevant views and facts considered by the rulemaker, from whatever source, and will reveal if and how the rulemaker considered each factor throughout the process of policy formation. 19/
Should the reviewing court determine that the agency has failed to satisfy this standard, the remedy is of course to remand the rule. But such remand is only to allow the agency, through fuller explanation, to show that the rulemaking process was actually motivated by reason rather than blind instinct. We do not suggest that the agency need take more submissions from outsiders, or that adjudicatory procedures are required, In applying this standard of review, the focal point should be on administrative record already in existence. See Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973).
Whereas a rulemaking proceeding pursuant to Section 120.54(3)(a) is quasi-legislative in nature and as such is subject to an arbitrary and capricious standard of review, a rule challenge proceeding pursuant to either Section 120.54(4) or
is quasi-judicial in nature and as such is subject to a competent substantial evidence standard of review. Hearings under Sections 120.54(4) and 120.56 are conducted in the same manner as adjudicatory hearings under Section 120.57. 20/ Sections 120.54(4)(d) 21/ and 120.56(5), Fla. Stat. Because they are adjudicatory, the rule challenge proceedings are controlled by the standard set forth in Section 120.68(10), Florida Statutes:
(10) If the agency's action depends on any fact found by the agency in a proceeding meeting the requirements of s. 120.57, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside agency
action or remand the case to the agency if it finds that the agency's action depends on any finding of fact that is not supported by competent substantial evidence in the record.
Moreover, contrary to DER's assertions, it is the hearing officer's findings which are being reviewed by this court under the above standard -- not the agency's rules. The hearing officer's determination regarding a challenge to a proposed rule constitutes final agency action under Section 120.54(4)(d), and as such is subject to judicial review under Section 120.68(1). 22/ See 4245 Corporation, Mother's Lounge Inc. v. Division of Beverage, 348 So.2d 934 (Fla. 1st DCA 1977).
In summary, when reviewing a hearing officer's determination arising out of either a Section 120.54(4) or 120.56 quasi-judicial rule challenge proceeding, the appellate court's standard of review is whether the hearing officer's findings are supported by competent substantial evidence. Section 120.68(10), Fla. Stat.
23/ On the other hand, when reviewing on direct appeal an agency's adopted rule arising from a quasi-legislative rule enactment proceeding conducted pursuant to Section 120.54(3)(a), the appellate court's standard of review is that the rule should be sustained as long as it is reasonably related to the purposes of the enabling legislation and is not arbitrary and capricious. General Telephone Co. of Florida v. Florida Public Service Commission, 446 So.2d 1063 (Fla. 1984). 24/
The record in this case fully supports the view that there is competent substantial evidence to support the hearing officer's findings that two of the factors used by DER in its radius formula, namely, the five-year value for the perimeter of the outer zone of protection and the .05 value for the effective porosity of the Floridan Aquifer, are arbitrary and capricious.
We have examined the remaining issues raised in the various appeals and cross appeals filed in this case and find them to be without merit.
Accordingly, the hearing officer's order validating some and invalidating other portions of DER's proposed G-I rule is AFFIRMED.
BARFIELD and MINER, JJ., CONCUR.
ENDNOTES
1/ These petitions were filed by Adam Smith Enterprises, Inc. and Alliance For Rational Groundwater Rules, and Aloha Utilities, Inc.; Interface, Inc.; Phase 1 Homes, Inc.; A.C. & R., Inc.; and Barrington, Ltd. Petitions for leave to intervene were granted on behalf of Florida Electric Power Coordinating Group, Inc.; Florida Land Counsel, Inc., and Pasco County. These intervenors interests were aligned with those of petitioners. Petitions for leave to intervene were also granted on behalf of West Coast Regional Water Supply Authority and Concerned Citizens. These intervenors' interests were aligned with those of DEH and ERC.
2/ The portions of the proposed rules actually challenged were subsections 17-3.021(7), (10), (16), (17), (34), (35) and (39);
17-3.403(1), (2), (5)(e), (6), (7) and (8); 17-3.404(3); and 17-
4.245(2)(a)(1), (2)(b)(1) and (3).
3/ DER, whose rule was successfully challenged, filed its appeal on May 16, 1986. Adam Smith Enterprises, Inc. (Adam Smith) and Aloha Utilities, Inc., et al. (Aloha), filed their appeals on May 17, 1988. Both subsequently filed cross appeals in DER's case on May 26, 1988. DER, on May 31, 1988, filed a cross appeal in both the Adam Smith and Aloha appeals. Concerned Citizens also filed a cross appeal on June 1, 1988 in the appeals filed by Adam Smith and Aloha.
4/ The APA establishes no particular procedure to be followed by an agency during the original drafting of the proposed rule. The drafting sessions of a collegial agency head or committee appear to be "workshops" or "meetings" subject to the requirements of Section 120.53(1)(d). These workshops or meetings provide a significant opportunity for comment prior to the formal proposal of rules.
5/ Section 120.54(5) allows any person regulated by an agency or substantially interested in an agency rule to petition an agency to adopt, amend or repeal a rule. Within 30 days, the agency must initiate rulemaking proceedings or deny the petition in writing.
6/ Section 120.54(3)(a), Florida Statutes, provides: (3)(a) If the intended action concerns any rule other than one relating exclusively to organization, procedure, or practice, the agency shall, on the request of any affected person received within 21 days after the date of publication of the notice, give affected persons an opportunity to present evidence and argument on all issues under consideration
appropriate to inform it of their intentions...
The agency may schedule a public hearing on the rule and, if requested by any affected person, shall schedule a public hearing on the rule. Any material pertinent to the issues under consideration submitted to the agency within 21 days after the date of publication of the notice or submitted at a public hearing shall be considered by the agency and made a part of the record of the rulemaking proceeding.
7/ While these provisions offer ample opportunity for public comment as to the merits of a proposed rule, they all occur after the proposed rule has been drafted. Modification of proposed rules as a result of any comment received pursuant to these provisions is governed by Section 120.54(13)(b), Florida Statutes.
8/ Section 120.54(17), Florida Statutes, provides:
Rulemaking proceedings shall be governed solely by the provisions of this section unless a person timely asserts that his substantial interests will be affected in the proceeding and affirmatively demonstrates to the agency that the proceeding does not provide adequate opportunity to protect those interests. If the agency determines that the rulemaking proceeding is not adequate to protect his interest, it shall suspend the rulemaking proceeding and convene a separate proceeding under the provisions of s. 120.57. Similarly situated persons may be requested to join and participate in the separate proceeding. Upon conclusion of the separate proceeding, the rulemaking proceeding shall be resumed.
9/ Section 120.56 provides for a similar challenge against an existing rule.
10/ See Section 120.545, Florida Statutes.
11/ This committee, along with its membership, powers, and duties, is described in Section 11.60, Florida Statutes.
12/ Section 120.54(11)(b), Florida Statutes, provides in relevant part:
(b) If the adopting agency is required to publish its rules in the Florida Administrative Code, it shall file with the Department of State three certified copies of
the rule it proposes to adopt, a summary of the rule, a summary of any hearings held on the rule, and a detailed written statement of the facts and circumstances justifying the rule.
13/ Section 120.54(4)(d), Florida Statutes, provides:
(d) Hearings held under this provision shall be conducted in the same manner as provided
in s. 120.57 except that the hearing officer's order shall be final agency action... Failure to proceed under this subsection shall not constitute failure to exhaust administrative remedies.
This language is identical to the language used in Section 120.56(5).
14/ Section 120.54(3)(a) provides as follows:
(3)(a) If the intended action concerns any rule other than one relating exclusively to organization, procedure, or practice, the agency shall, on the request of any affected person received within 21 days after the date of publication of the notice, give affected persons an opportunity to present evidence and argument on all issues under consideration appropriate to inform it of their contentions
... The agency may schedule a public hearing on the rule and, if requested by any affected person, shall schedule a public hearing on the rule. Any material pertinent to the issues under consideration submitted to the agency within 21 days after the date of publication of the notice or submitted at a public hearing shall be considered by the agency and made a part of the record of the rulemaking proceeding.
15/ In DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957), the Supreme Court, per Justice Thornal, described the meaning of the term "competent substantial evidence" as follows:
We have used the term "competent substantial evidence" advisedly. Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. Becker v. Merrill, 155 Fla. 379, 20 So.2d
912; Laney v. Board of Public Instruction,
153 Fla. 728, 15 So.2d 748. In employing the adjective "competent" to modify the word "substantial," we are aware of the familiar rule that in administrative proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed. Jenkins v. Curry, 154 Fla. 617, 18 So.2d 521. We are of the view, however, that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the "substantial" evidence should also be competent.
See also Gould v. Division of Florida Land Sales and Condominiums,
477 So.2d 612, 616 (Fla. 1st DCA 1985); 1 Fla. Jur. 2d
Administrative Law, 86.
16/ It is important to maintain the distinction between a competent substantial evidence standard of review and an arbitrary and capricious standard of review for agency rulemaking. To impose a competent Substantial evidence standard of review on agency rulemaking would force rulemakers to adopt more formal, rigid, trial-like procedures in an attempt to make an adequate record capable of judicial review. A general paralysis of administration would result, and rulemaking would lose most of its peculiar advantages as a tool of administrative policy making.
Trial-like adjudication would be extremely costly in time, staff, and money. Orderly innovation would be difficult. To discern basic agency policy, the public would often have to wade through volumes of scarcely relevant testimony and findings. Especially in the rapidly expanding realms of economic, environmental, and energy regulation, the policy disputes are too sharp, the technological considerations too complex, and the interests affected too numerous to require agencies to rely on the ponderous workings of adjudication.
17/ 5 U.S.C. Section 706(2). Section 706 states in pertinent part:
The reviewing court shall--
* * *
hold unlawful and set aside agency action, findings and conclusions found to be--
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
* * *
(E) unsupported by substantial evidence in
a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute...
Sections 556 and 557 of the federal APA provide for trial-type adjudications and formal rulemaking. Formal procedures provide for a hearing, use of the rules of evidence, and cross examination of witnesses. Informal (or notice-and-comment) rulemaking involves minimal procedures. The agency publishes a notice of the proposed rulemaking in the Federal Registry containing the time, place and nature of the proceedings, the legal authority for the proposed rule, and either the substance of the proposed rule or some of the issues involved. 5 U.S.C. Section 553(b). Interested parties then have the opportunity to submit written comments and data. In some cases, oral presentations may be allowed. Id.
Section 553(c).
18/ This language is equally applicable to informal rulemaking proceedings.
19/ Formalized adjudicatory methods are clearly nonessential for purposes of rational rulemaking. There are procedures set forth in Section 120.54 expressly designed to provide the administrator access to all data, criticisms, suggestions, alternatives, and contingencies relevant to his decisions. Adjudicatory methods are in fact insufficient to this task. A rulemaker must typically make and coordinate many empirical conclusions dependent on raw material outside the conventional evidentiary categories of "testimony" and "exhibits." For example, the rulemaker must often draw upon prior experience, expert advice, the developing technical literature, ongoing experiments, or seasoned predictions.
As for the consideration given to these factors, a rulemaker can demonstrate his seriousness and good faith without allowing interested parties to cross examine him or quarrel or ally before him. He can, for instance, through his "justification" statement, detail for the court the actual attention he gave to the factors, and explain his final disposition with respect to each of them.
20/ Since the proceeding is conducted in the manner of a Section
adjudicatory proceeding,
[a]ll parties shall have an opportunity to respond, to present evidence and argument on all issues involved, to conduct cross- examination and submit rebuttal evidence, to submit proposed findings of facts and orders, to file exceptions to any order or hearing officer's recommended order, and to be represented by counsel. When appropriate, the general public may be given an opportunity to present oral or written communications. If
the agency proposes to consider such material, then all parties shall be given an opportunity to cross-examine or challenge or rebut it.
Section 120.57(1)(b)(4), Fla. Stat. (1987). Moreover, as provided in Section 120.58(1)(a):
In agency proceedings for a rule or order:
(a) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida. Any part of the evidence may be received in written form, and all testimony of parties and witnesses shall be made under oath. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. This paragraph applies only to proceedings under s. 120.57.
21/ Section 120.54(4)(d) provides in pertinent part: Hearings held under this provision shall be conducted in the same manner as provided in
s. 120.57 except that the hearing officer's order shall be final agency action. The agency proposing the rule and the person requesting the hearing shall be adversary parties...
22/ Section 120.68(1) provides in pertinent part:
(1) A party who is adversely affected by final agency action is entitled to judicial review...
23/ DER and Concerned Citizens maintain that the hearing officer's standard of review, in determining the validity of an agency's rule pursuant to a Section 120.54(4) rule challenge, is to determine if the agency had competent substantial evidence upon which to base its rule. However, just as an agency's Section 120.54(3)(a) quasi-legislative rulemaking proceeding is not susceptible to a competent substantial evidence standard of review upon a direct appeal from an agency's adopted rule, it is not susceptible to such a standard upon a Section 120.54(4) administrative rule challenge before a hearing officer. Rather, in determining the validity of an agency's rule, the hearing officer's standard of review is whether the .rule constitutes an
invalid exercise of delegated legislative authority, as that phrase is defined in Section 120.52(8), Florida Statutes. See Section 120.52(8) which is reproduced in Part I of this opinion, supra.
One of the criteria that a hearing officer may consider in determining the validity of an agency's proposed rule is whether the rule is arbitrary and capricious. Section 120.52(8), Fla.
Stat. However, contrary to DER's suggestion, whether a rule is arbitrary and capricious is not dependent on whether the rule is supported by competent substantial evidence. As previously established, the arbitrary and capricious and competent substantial evidence standards of review are two distinct standards, and their applicability in a given case is dependent' on the nature of the proceeding under review.
24/ As support for its position that both the hearing officer, in a Section 120.54(4) proceeding, and this court, when reviewing the hearing officer's determination in a Section 120.54(4) proceeding, are to determine whether the agency had competent substantial evidence upon which to base its rule, DER cites Agrico Chemical Co. v. State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978). Such reliance is misplaced. In Agrico, the issue before the court was whether the hearing officer had applied the proper burden of proof upon a claim that a proposed rule was arbitrary or capricious. In upholding the validity of the proposed rule, the hearing officer had concluded that the burden was on the petitioners to demonstrate that the rule was "so totally unfounded as to be completely beyond reason." This court held that the hearing officer had applied a more onerous burden on the petitioners than that required by law. The court held that the degree of proof required by a challenger in demonstrating that agency action is arbitrary or capricious is by a preponderance of the evidence, a less stringent standard than that imposed by the hearing officer.
DER has relied on the following language in Agrico to support
its position on this appeal:
Both the hearing officer (acting in a quasi- judicial capacity) and this Court should determine from the evidence presented whether or not there is competent, substantial evidence to support the validity of the
rule.
365 So.2d at 763. Such statement was not essential to the holding in Agrico and is therefore merely dictum. More importantly, we believe this language is illustrative of the confusion which has permeated this issue concerning the appropriate standard of review that is to be applied to an agency's rulemaking process. Subsequent to the Agrico decision, the Florida Supreme Court and various district courts in this state have attempted to resolve much of this confusion and have established that the rulemaking
proceedings relied upon by an agency in making its rules are not susceptible to a competent substantial evidence standard of review. See General Telephone Co. of Florida v. Florida Public Service Commission, 446 So.2d 1063 (Fla. 1984); Booker Creek Preservation, Inc. v. Southwest Florida Water Management District,
534 So.2d 419 (Fla. 5th DCA 1988); Brewster Phosphates v. State, Department of Environmental Regulation, 444 So.2d 483 (Fla. 1st DCA 1984).
| Issue Date | Proceedings |
|---|---|
| Apr. 07, 1988 | Final Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 07, 1988 | DOAH Final Order | Portions of proposed rules held to be arbitrary and capricious because they were not founded on fact or logic. |
