Tremor, Hearing Officer with the Division of Administrative Hearings, for a determination of the invalidity of portions of Rule 17-63.030, Florida Administrative Code, specifically subparagraphs (1)(f) and (3)(d), (e) and (f). The parties have agreed there are no genuine issues as to any material fact, and the cause was submitted to the undersigned with jointly stipulated facts and legal argument by memoranda.
For Petitioner: Robert C. Apgar and
Tom R. Moore
and Thomas A. Bustin County Attorney
For Respondent: E. Gary Early
Based upon the joint stipulation of facts, the following relevant facts are found:
In 1983, the Legislature enacted Sections 376.30-376.315, Florida Statutes, pertaining to the storage of certain pollutants, including petroleum fuel, within the state and its inland waters. This legislation expanded upon the environmental protections of Chapter 376 (Pollutant Discharge Prevention and Removal), which, until then, were limited to Florida's coastal waters,
estuaries, tidal flats, beaches and public lands adjoining the seacoast. The regulated pollutants include fuel used in vehicles.
Section 376.301(1), Florida Statutes, enacted by the 1983 Legislature states that
The department has the power and the duty to ... [e]stablish rules to implement the intent of ss. 376.30-376.315 and to regulate underground and above-ground
facilities and their on-site integral piping systems not covered by ss. 376.011-376.21, including, but not limited to, construction standards, permitting of tanks, maintenance and installation standards, and removal or disposal standards.
Under that authority the Department of Environmental Regulation (DER) promulgated its rules set forth in Chapter 17-61, Florida Administrative Code, which became effective May 21, 1984.
During its 1984 session, the Florida Legislature amended Chapter 376, Florida Statutes. Among other things, the amendments created Section 376.317, which preempts local regulation of underground fuel storage tanks. That section specifically states that, except as provided in subsection (3) relating to certain county ordinances, the provisions of Sections 376.30 through 376.317, Florida Statutes, and the rules developed pursuant to those sections, control over any conflicting provisions now in effect under any law of this state or ordinance of a local government, political subdivision or municipality, or any rule or regulation adopted thereunder.
Subsection (3) of Section 376.317, Florida Statutes, provides an exception to state preemption of the regulation of underground fuel storage tanks. That subsection reads as follows:
(3) A county government is authorized
to adopt county-wide ordinances that regulate underground storage tanks, as described herein, which ordinances are more stringent or extensive than any state law or rule regulating such tanks, provided:
The original ordinance was legally adopted and in force before September 1, 1984; or
The ordinance establishing the
local program was approved by the department.
The department is authorized to adopt rules that permit any county government to establish, in accordance with s. 403.182, a program regulating underground storage tanks, which program is more stringent or extensive than that established by any state law or rule regulating underground storage tanks.
When adopting the rules, the department shall consider local conditions that warrant such more stringent or extensive regulation of
underground storage tanks, including, but not limited to, the proximity of the county to a sole or single-source aquifer, the potential threat to the public water supply because of the proximity of underground storage tanks to public wells or ground water, or the detection of petroleum products in public or private water supplies.
On September 1, 1984, only Dade and Broward County had local ordinances in effect.
In response to the 1984 amendments to Chapter 376, the DER adopted Chapter 17-63, Florida Administrative Code, which became effective November 4, 1984. Rule 17-63.030 establishes the procedures and review standards for DER's approval of county ordinances which regulate petroleum storage facilities on a county-wide basis. That Rule reads as follows, with the challenged portions underlined:
17-63.03 Department Approval of Local Tank Ordinances.
A county may petition the Secretary for approval of a local tank ordinance. The petition shall be filed in accordance with Chapter 17-103 Part I and shall contain at a minimum
a copy of the ordinance;
a statement explaining the need for a local tank program;
a statement of the compatibility
and consistency between the local and state programs;
a description as to how the county will implement the program;
an explanation as to how the local program differs from the state program;
an economic analysis of the costs and benefits of the local program; and
proof that copies of the ordinance have been submitted to municipalities within the county.
The Department shall give notice of its receipt of a petition by publication in the Florida Administrative Weekly within twenty-one (21) days after the petition is received.
In approving or disapproving a petition the Secretary shall consider the following criteria:
the proximity of the county to a sole source aquifer or Class G-1 waters;
the potential threat to the public water supply because of the proximity of underground storage tanks to public wells or groundwater;
the detection of petroleum products in public or private water supplies;
the burden imposed on facility owners and operators by different or more stringent regulation;
the consistency of the local
program with Department rules, statutes and tank program; and
the capability of the county to administer the local program.
The fourth subparagraph of Rule 17-63.030 pertains to notice of proposed agency action, and is not challenged in this proceeding.
Alachua County is a charter county. By the summer of 1985, county government officials had been informed of several instances of contaminated drinking water supplies in Alachua County. After determining that such contamination resulted from leaking underground fuel storage tanks, Alachua County officials concluded that state laws and regulations were inadequate to protect the drinking water supplies of Alachua County citizens.
On October 29, 1985, Alachua County, by and through its duly elected County Commission, enacted a county-wide ordinance regulating underground storage tanks. This ordinance is more restrictive and more extensive than state regulations pertaining to such tanks. The County Commission acted on its finding that local conditions in Alachua County warrant more stringent and extensive regulations than those established by state law and state regulations and that its action is necessary to protect the drinking water supplies of Alachua County's citizens. On October 30, 1985, the county submitted its duly adopted Alachua County Underground Storage Facilities Code (ordinances 85-7 and 85-13) to the DER for approval pursuant to Section 376.317, Florida Statutes (1985).
The DER required that certain supporting data and material be submitted with the said Code (including the economic data required by the challenged paragraph (1)(f), which was submitted by the county). The DER reviewed the county Code, determined that changes were required to satisfy the criteria of paragraph (3) of Rule 17-63.030 and so notified the county. The county petitioned for a formal hearing to contest the decision, pursuant to Section 120.57(1), Florida Statutes. That petition was referred to the Division of Administrative Hearings and assigned as Case Number 86-1856. By Final Order filed on September 8, 1987, the DER dismissed that proceeding with the notation that the dismissal "does not affect Alachua County, Florida's second underground storage tank ordinance which is currently in litigation under OGC Case No. 87- 0637."
CONCLUSIONS OF LAW
The parties have stipulated and the facts demonstrate that Alachua County is directly and substantially affected by the rules challenged in this proceeding. As a county government desirous of adopting an ordinance regulating underground storage tanks in a more strict and/or extensive manner than the DER's rules provide, Alachua County has standing to challenge a rule which prescribes the procedure and standards governing DER approval of its proposed ordinance.
In general, it is the County's position that the challenged subsections of Rule 17-63.030 constitute an invalid exercise of delegated legislative authority because they exceed and expand upon the authority
delegated. It is contended that the challenged provisions relate to the substance and administration of county-wide programs, whereas the enabling legislation, Section 376.317, must be construed to establish separate roles for state and county regulation of underground fuel storage tanks. Alachua County urges that DER is a "gatekeeper," not a supervisor of county programs, and has only the authority to make certain threshold determinations prior to approval of local programs. The County asserts that the Rule's requirement that an economic analysis of the local program be submitted, as well as the substantive criteria relating to burdens imposed upon facility owners or operators, consistency with state regulations and administrative capability, far exceed DER's authority and are not reasonably related to the enabling legislation.
In contrast, the DER asserts that its statutory authority to approve or disapprove a local tank ordinance extends into a general review of the effectiveness of the ordinance, its implementability and its burdens. The DER relies upon some of the provisions of Section 403.182, Florida Statutes, which section is referenced in the enabling legislation, as providing a rational basis for giving consideration to the economic costs and benefits, burdens upon facility owners and operators and a county's capability of administering the local program.
When challenging an agency's rules, the burden is upon the petitioner to demonstrate by a preponderance of the evidence that the rule or its requirements are arbitrary or capricious. Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984). The validity of an agency's interpretation of a statute, which interpretation has been promulgated in rule form, will be upheld if it is reasonably related to the purposes of the legislation interpreted and it is not arbitrary or capricious. Grove Isle, Ltd. v. State, Department of Environmental Regulation, 454 So.2d 571 (Fla. App. 1st, 1984). Action taken without thought or reason, or irrationally, is capricious. A decision not supported by facts or logic, or despotic, is arbitrary. Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. App. 1st 1978).
Turning now to the specific provisions of Rule 17-63.030 challenged in this proceeding, a determination of their validity requires an analysis of the specific enabling statute, Section 376.317, as well as other statutory provisions referenced therein. The referenced statutes include Sections 376.30 through 376.317 and Section 403.182, Florida Statutes.
The Legislature has declared in Section 376.317 that the regulation of underground fuel storage tanks shall, with specific enumerated exceptions, be controlled by the statutes contained in Sections 376.30 through 376.317 and the rules developed by the DER pursuant to those statutes. This declaration is in accordance with the express statement of legislative intent to exercise the police power of the State by conferring upon the DER the power to deal with the hazards and threats of dangers posed by the storage of pollutants and related activities. Section 376.30(3)(a). To effectuate this intent, the DER has been delegated authority to adopt rules governing all aspects of underground storage facilities, to inspect and monitor facilities, to pursue and recover costs and expenses incurred for the removal of prohibited discharges and to bring actions on behalf of the State to enforce the State's statutes and regulations by utilizing the provisions of Chapter 403, relating to environmental control. Section 376.303, Florida Statutes. The sole exception to the State's preemption of the regulation of underground storage tanks is contained in Section 376.317(3). That statutory exception allows county governments to adopt county- wide ordinances which are more stringent or extensive than any State law or rule
regulating storage tanks in two instances. The first is when such an ordinance was legally adopted and in force prior to September 1, 1984. The second is when the ordinance establishing a local program is approved by the DER. The DER is given explicit authority to adopt rules that permit county governments to establish, "in accordance with Section 403.182," more stringent or extensive programs regulating underground storage tanks. The legislative mandate to the DER with respect to the adoption of such rules is to consider local conditions that warrant more stringent or extensive regulation "including, but not limited to" the county's proximity to a certain aquifer, threats to public water supplies due to the proximity of the storage tanks, and the detection of petroleum products in public or private water supplies.
The remaining statutory provision referenced in the legislation being implemented by Rule 17-63.030 is Section 403.182. That section deals with local pollution control programs and requires such programs to be approved by DER as adequate. It further requires local programs to provide for enforcement by appropriate administrative and judicial process and to provide for the administrative and financial resources necessary to effectively and efficiently carry out the program. Section 403.182(1). That statute bestows upon the DER the authority to take certain actions when the local program is deemed inadequate, and DER is given concurrent authority to enforce the local pollution control program. Section 403.182(4) and (6), Florida Statutes.
A reading of the above statutory provisions quickly reveals that the DER's role in the approval of county ordinances regulating underground storage tanks is more than that of a "gatekeeper." While the DER must first determine whether more stringent or extensive regulatory provisions are warranted due to local conditions, it is not unreasonable or beyond DER's statutory authority in this realm to also consider the economic and administrative feasibility of such a program.
The requirements that a county submit "an economic analysis of the costs and benefits of the local program" (Rule 17-63.030(1)(f) and that the DER consider "the burden imposed on facility owners and operators by different or more stringent regulation," (Rule 17-63.030(3)(d)) are neither arbitrary, capricious or unrelated to the enabling legislation. While the adoption of a county ordinance is not subject to the rulemaking provisions of Chapter 120, Florida Statutes, it is not unreasonable to require a county to analyze the impacts its program will have upon the county and on persons or entities subject to the regulations. Obviously, a regulation which contains unnecessary or extremely expensive requirements can be ineffectual. Since the DER may, in some instances, enforce the County's regulations (Section 403.182(6), Florida Statutes), a consideration of the economic impacts of and the burdens imposed by the regulations is reasonable and is rationally related to the DER's delegated authority to approve such regulations. Clearly, the DER has the authority, if not the absolute duty, to make a determination as to whether an ordinance is capable of being implemented.
Alachua County relies upon the language in Section 376.30(2)(d), Florida Statutes, for its assertion that the DER has no authority to require information regarding, or base its determinations of approval upon considerations of, economics or burdens imposed on facility owners or operators. A declaration of legislative intent is made in Section 376.30(2)(d) that the State interest in controlling and preventing spills, escapes and discharges of pollutants outweighs economic burdens imposed upon those engaged in storing pollutants and related activities. The challenged rule's requirements of an economic analysis and a consideration of burdens does not offend this statement
of legislative intent. As discussed above, the implementability of the local program is a legitimate concern of the DER. The economic impact of regulations upon both the regulator and those regulated, as well as the burden in terms of feasibility of compliance, are proper considerations in determining whether a regulatory program is capable of effective implementation. If, indeed, the DER disapproved county ordinances solely because the requirements imposed an economic burden upon those regulated, such action would be contrary to legislative intent, and could be challenged in an appropriate proceeding. It should not be presumed, however, in a rule challenge proceeding, that an agency will apply its rule in a manner which violates statutory provisions. This is particularly true here where the DER itself is charged with the responsibility of promulgating its own statewide rules regulating underground storage tanks in accordance with the enabling legislation.
The requirement of challenged Rule 17-63.030(3)(e), that the DER consider "the consistency of the local program with the Department rules, statutes and tank program" is not only reasonably related to the enabling legislation, but is required. Section 376.317(3) allows only one exception to state preemption over underground storage tank regulations. That exception is for county-wide ordinances which are more stringent or extensive than any state law or rule. In order to make such a determination, each regulatory requirement imposed by the county ordinance must be compared with the state law or rule to determine whether it is consistent, more stringent or extensive or less stringent or extensive. Alachua County has not challenged those provisions of Rule 17-63.030(1)(c) and (e) which require a county to submit, along with its petition for approval, "a statement of the compatibility and consistency between the local and state programs" and "an explanation as to how the local program differs from the state program." If DER were not to consider the "consistency" between the two programs, it is difficult to imagine how it could fulfill its statutory duty to approve or disapprove a "more stringent or extensive" county- wide ordinance. The challenged rule does not require "consistency." It merely directs DER to compare the local and state regulations and informs the public that the criteria of consistency is to be evaluated. While the words "a comparison" may have been a better choice of words than "the consistency," the use of the latter words does not render subsection (3)(e) invalid.
The last provision of Rule 17-63.030 challenged by the County is the language contained in subsection (3)(f) which requires DER to consider "the capability of the county to administer the local program." It is argued that the DER has no general oversight or supervisory powers over local government and that the Legislature did not intend for DER to evaluate the County's administrative capabilities. As discussed previously, in order for DER to exercise its authority and statutory duty to approve or disapprove more stringent or extensive county-wide ordinances, it must necessarily evaluate the factor of whether the ordinance is capable of implementation. Without administrative capability, a regulatory program on paper is ineffectual. The enabling legislation expressly provides that county-wide ordinances are to be established "in accordance with s. 403.182." That section requires that local pollution control programs be approved by the DER as adequate and that they "provide for administrative organization, staff, financial and other resources necessary to effectively and efficiently carry out its program." Section 403.182(1)(d), Florida Statutes.
Alachua County contends that Section 403.182 is not applicable to local ordinances permitted under Chapter 376.317 because Section 403.182 applies only to local programs that comply with Chapter 403 and makes no reference to either Chapter 376 or underground storage tank regulation. That argument
ignores the explicit reference to Section 403.182 within Section 376.317(3). Statutes which incorporate another statute by reference are to be construed in light of the referenced statute. By providing in Section 376.317(3) that county governments may establish programs "in accordance with s. 403.182," it is clear that such section is applicable to underground storage tank ordinances adopted by a county and subject to approval by the DER. As such, the factors set forth in Section 403.182, including administrative capability, are appropriate standards for consideration by the DER.
In conclusion, petitioner has failed to demonstrate that challenged Rules 17-63.030(1)(f), 3(d), 3(e) and/or 3(f) are not reasonably related to the enabling legislation, exceed DER's authority, are arbitrary or capricious or otherwise constitute an invalid exercise of delegated legislative authority.
FINAL ORDER
Based upon the findings of fact and conclusions of law recited herein, it is ORDERED that the petition of Alachua County seeking a determination that subparagraphs (1)(f), 3(d), 3(e) and 3(f) of Rule 17-63.030, Florida Administrative Code constitute invalid exercises of delegated legislative authority is DISMISSED.
Ordered and entered this 2nd day of October, 1987, in Tallahassee, Florida.
DIANE D. TREMOR, 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 2nd day of October, 1987.
COPIES FURNISHED:
Robert C. Apgar and Tom R. Moore
East Park Avenue Tallahassee, Florida 32301
Thomas A. Bustin County Attorney
Post Office Drawer CC Gainesville, Florida 32602
