STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA AUDUBON SOCIETY, )

)

Petitioner, )

and )

)

BAL HARBOUR VILLAGE, )

)

Intervenor, )

)

vs. ) CASE NO. 95-2654

)

DEPARTMENT OF ENVIRONMENTAL ) PROTECTION and CITY OF NORTH MIAMI, )

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

On April 25, 1995, the Department of Environmental Protection and the City of North Miami entered into a Consent Agreement relative to the Munisport Landfill, an approximately 170-acre site owned by the City. The Agreement acknowledges the City's intention to close the landfill in a manner not authorized by the Department's rules, to modify the 30-acre Superfund site description identified in a Consent Decree entered into between the City and the United States Environmental Protection Agency and approved by the United States District Court for the Southern District of Florida in 1992, and to construct a public performing arts amphitheater and a 2,000-space paved motor vehicle parking area on the site over parts of the closed landfill. The Agreement further acknowledges the City's need to obtain from the Department a closure permit, to comply with applicable management and storage of surface waters (MSSW) requirements, and, due to the City's intent to use a permeable final cover as part of its landfill closure design, to obtain the Department's approval of an alternate closure procedure.

After setting forth the context generally described above, the Agreement then sets forth definitions which the Department will use to evaluate the City's landfill closure design, alternative procedure application, and MSSW system design. It specifies what information the Department will require in processing the City's applications, including the computer models to be utilized. It sets forth deadlines for the submittal of information by the City and for the Department's issuance of its agency action.

The Agreement specifically provides that if the Department approves the City's proposed closure design and MSSW design, the Department need not issue a notice of intent or permits. Rather, the Department can simply amend the Consent Agreement to include any authorization as well as any applicable specific conditions.

The Agreement authorizes the Department to collect a fine if the City fails to timely comply with the Agreement and authorizes the Department to file suit

to enforce the Agreement. The City specifically waives its right to appeal the Consent Agreement. The Agreement preserves the City's right to request a formal or informal proceeding pursuant to Chapter 120, Florida Statutes, regarding any agency action taken by the Department concerning the City's submittals, but it places the burden of proof in such proceeding on the City and would require the City to establish the inappropriateness of the Department's agency action. It also permits the Department to file a civil action against the City if the City requests an administrative proceeding. Any final order issued by the Department must be incorporated into the Consent Agreement.

Finally, the Agreement requires the City to publish once in Dade County a notice that the City and the Department have entered into a Consent Agreement which addresses the information the City will provide to the Department to evaluate the City's proposed landfill closure and stormwater management designs for the Munisport Landfill and that the Consent Agreement can be inspected during normal business hours at the Department's office in West Palm Beach.

Most importantly, the notice (and the Consent Agreement) advises that persons whose substantial interests are affected by the Consent Agreement have a right to petition for an administrative hearing on the Consent Agreement within 21 days and that failure to timely file a petition will constitute a waiver of the right to a hearing pursuant to Section 120.57, Florida Statutes. The Consent Agreement represents that it is the Department's final agency action as of April 25, 1995, unless a petition for administrative hearing is filed.

The Agreement contains other provisions not material to the disposition of this proceeding. They relate to additional rights and responsibilities between the parties to the Consent Agreement.

On May 22, 1995, Petitioner Florida Audubon Society filed with the Department its Verified Petition for Formal Administrative Hearing. That Petition challenges the Department's authority to enter into a consent agreement in lieu of requiring the City to obtain permits and alternative procedures in the manner established by statute and validly promulgated Department rules.

That Petition alleges that the Consent Agreement will authorize the closure of the Munisport Landfill pursuant to procedural and substantive requirements which are less stringent than applicable permit standards and criteria and which will be less protective of human health and the environment.

That Petition asserts that the Department's entry into such a consent agreement is not authorized by Chapter 120 or Chapter 403, Florida Statutes, or by Rule 62-103.110, Florida Administrative Code. It asserts that if the Department intends for the document to constitute a consent order as that term is used in Section 120.57(3), Florida Statutes, and Rule 62-103.110(3), Florida Administrative Code, the procedures and substance contained in the document are not authorized. The Petition further alleges that Rule 62-103.110(3), Florida Administrative Code, authorizes the Department to enter into a consent order to resolve alleged violations of law and achieve full compliance with Chapter 403, Florida Statutes, and the Department's rules thereunder, but the Department has alleged no violation of law in this case. The Petition further asserts that the Consent Agreement waives the requirements that the City obtain the necessary permit for the closure of the Munisport Landfill, that the City obtain the necessary MSSW permit for the handling of stormwater at the site, and that the City obtain the necessary approval for an equally protective alternative procedure. The Petition asserts that the Consent Agreement also fails to comply with the Department's previous final orders describing the nature of consent orders since consent orders are not utilized for resolving pending permit applications, such as exist in the case at bar.

The Petition specifies how the Consent Agreement is alleged to waive the permitting requirements contained in the Department's rules and regulatory statutes by establishing an undefined authorization and approval process, without benefit of permit and without requiring the City to comply with required procedures for obtaining the required permits. Further, the Petition alleges that the Consent Agreement would allow a method of closure currently prohibited by rule. The Petition asserts that the Society's failure to object to the Department's establishment of non-statutory and non-rule standards would constitute a waiver of its right to object.

The Petition contains an extensive list of disputed issues of material fact, which Petitioner contends mandates reversal of the Department's decision to approve closure of the Munisport Landfill by Consent Agreement and amendments thereto. The Petition also cites extensively the statutes and rules purportedly violated by the Department entering into the subject Consent Agreement.

On May 24, 1995, Bal Harbour Village filed with the Department its Verified Petition for Intervention into Formal Administrative Proceedings, challenging the Consent Agreement at issue herein. The Village's Petition contains allegations similar to the allegations in the Petition filed by the Florida Audubon Society, i.e., that the Consent Agreement is not authorized by the governing statutes and rules and that the procedure authorized in the Consent Agreement allows an improper submittal and review of information. The Village's Petition specifies additional disputed issues of material fact. It further alleges that the Consent Agreement is contrary to statutory and rule provisions requiring that a permit be obtained to close a landfill, that the alternative procedure authorization provided by the subject Consent Agreement is contrary to law, and that the provision authorizing the Department to issue an MSSW "authority" instead of a permit is inconsistent with the Memorandum of Agreement between the Department and the South Florida Water Management District, Chapter

373 of the Florida Statutes, and Chapter 40E-4 of the Florida Administrative Code.

As with Florida Audubon Society's Petition, Bal Harbour Village's Petition alleges that the City has already applied to the Department for the required landfill closure alternative procedure, that this proceeding does not affect the City's ability or duty to pursue those pending requests or the Department's responsibility to process them, that the City has not filed an application for the required MSSW permit, and that this proceeding does not affect the City's ability to apply for such a permit or the Department's responsibility to process such an application, when filed.

This cause was transferred by the Department to the Division of Administrative Hearings on May 25, 1995. On June 12, 1995, the City filed motions to dismiss both petitions and an accompanying memorandum of law.

The thrust of the City's motions to dismiss is that the verified petitions filed by Florida Audubon Society and Bal Harbour Village are premature. The motions allege that the Consent Agreement only sets forth the information the City will submit to the Department in connection with the City's applications for a landfill closure permit and MSSW permit, that the Agreement grants no permits and authorizes no activity, that the Agreement sets forth a schedule for action on the permit applications, and that the City can engage in no activity to alter the landfill site until further decision by the Department either granting permits or issuing a consent order instead of permits. The motions argue, therefore, that the petitions fail to allege an injury in fact of

sufficient immediacy to entitle the Society or the Village to a formal administrative proceeding. Finally, the motions allege that the Society and the Village will have a clear point of entry once the Department issues a permit or otherwise authorizes closure and that all disputed issues of material fact can be litigated and adjudicated at that time.

The responses filed by Florida Audubon Society and Bal Harbour Village to the City's motions to dismiss dispute the City's interpretation of statutory, rule, and case law and dispute the City's characterization of the effect of the Consent Agreement. The responses assert that the Consent Agreement is final agency action because the Agreement so states and that a point of entry exists to contest the Consent Agreement because the Agreement so states and further requires publication of notice of that point of entry. The responses raise a concern that the City and the Department will rely on that language in the Consent Agreement to argue later that the Florida Audubon Society and Bal Harbour Village are precluded from challenging the propriety of the standards for review contained in the Consent Agreement, if that challenge does not occur now. The responses assert that the City and the Department have created, by their use of a Consent Agreement in this context, a procedure which allows a permit applicant to circumvent the requirements of Chapter 120, Florida Statutes.

The Department filed a response to the City's motions to dismiss which agreed that the motions to dismiss should be granted because Florida Audubon Society and Bal Harbour Village's petitions are premature. The Department's response asserts that the Consent Agreement is merely a consent order which compels the City to timely submit information the Department needs to evaluate the City's permit applications and to require the landfill to be closed within three years from the effective date of the Consent Agreement. The Department does not suggest what the effective date might be. The Department's response also asserts that the Agreement establishes a procedural framework. The response does not address the allegations in the pleadings of Florida Audubon Society and of Bal Harbour Village that the Agreement also modifies substantive law.

The Department's response distinguishes between consent orders which function as a permit substitute by authorizing a particular activity that would have been entitled to a permit had one been sought and consent orders which function to resolve alleged violations or require corrective measures to bring an entity into compliance. The Department's response then asserts that the Consent Agreement herein is the second type. Yet, the Department admits in its response that it may simply amend the Consent Agreement by incorporating its approval of the City's permit applications into the Consent Agreement-thereby making the Agreement a consent order of the first category, not the second.

The Department's response is silent as to the arguments raised by the Society and the Village that they are entitled to challenge the Consent Agreement because the Agreement specifically states that it is final agency action and specifically provides a clear point of entry to so challenge it.

The City's motions to dismiss were heard on July 17, 1995, and all parties were represented. Even after extensive argument, it remained unclear whether the signed Consent Agreement was final agency action or proposed agency action; whether the Department is still engaged in free-form proceedings as part of its permitting process in view of the language in the Consent Agreement which establishes review criteria and which advises all persons that failure to file a challenging petition will waive the right to later do so; whether the

Department's stated intent to amend permit conditions into the Consent Agreement rather than issuing a notice of intent containing the required point of entry language will restrict third-party challengers to only the amendment rather than the entire Consent Agreement, and whether the Department's oral statements as to the legal effect of the Consent Agreement would prevail over the Department's contrary written statements contained in the Agreement. The motions to dismiss, therefore, were denied orally at the motion hearing, and those rulings were memorialized by Order entered July 18, 1995.

During the motion hearing, the City moved to abate this proceeding. Ruling was reserved, and the parties were given until July 24 to consider and advise the undersigned in writing as to their positions regarding that request. This cause is now before me on the joint Motion to Abate filed by the City and the Department on July 24, 1995; on Florida Audubon Society and Bal Harbour Village's joint Response to Ore Tenus Motion to Abate filed July 24, 1995; on Florida Audubon Society's Response to [written] Motion to Abate filed August 4, 1995; on Bal Harbour Village's Request for Oral Argument filed August 4, 1995; and on Bal Harbour Village's Response to [written] Motion to Abate filed August 7, 1995.

Essentially, the City and the Department desire that this proceeding be abated until the Department determines whether to grant or deny the City's pending applications for permits. The City and the Department continue to assert that the closure permit, the alternative procedure authorization, and the MSSW permit may or may not be granted. They reason, therefore, that abatement will make possible the conduct of only one final hearing once the Department takes action on the City's permit applications. The City and the Department assert they are voluntarily following the timetable for submittal and review of information set forth in the Consent Agreement although that Agreement has not become final.

Florida Audubon Society and Bal Harbour Village oppose abatement for many of the same reasons they have requested a formal hearing. They believe a delay in this proceeding will preclude them from effectively challenging those portions of the proposed Consent Agreement which provide substantive criteria by which the Department will review the City's applications. They further argue that an abeyance would preclude them from conducting discovery; yet, since a formal proceeding is pending, they would also be precluded from directly contacting agency personnel in the manner they would if this matter were still in the stage of free-form agency action "where it properly belongs."

Consideration of the pending motions has convinced the undersigned that the earlier motions to dismiss should not have been denied. The confusion regarding the posture of this case is caused by the Department's use of a Consent Agreement to set forth a schedule for processing permit applications and to establish criteria for review of those applications. That use of such a document is not envisioned by Chapter 120, Florida Statutes, which envisions instead that a permit application will be processed according to certain statutory deadlines and the reviewing agency will then issue its agency action either granting or denying the application. Section 120.60, Florida Statutes.

At that point, the agency must give notice to substantially affected persons of their right to request an administrative hearing regarding the agency action.

Advising affected parties of their right to challenge agency action, including the basis for that action, cannot be abrogated, and agency action that purports to be final, taken without extending the opportunity to request a hearing, will be invalid and void. Templeton v. Dept. of Highway Safety & Motor Vehicles, 390 So.2d 825 (Fla. 1st DCA 1980); United States Service Industries-Florida v. Dept.

of Health & Rehabilitative Services, 385 So.2d 1147 (Fla. 1st DCA 1980); Capeletti Brothers, Inc. v. Dept. of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978), cert. den. 368 So.2d 1374.

Since the Department is processing permit applications filed by the City, it is engaging in free-form proceedings. Capeletti Brothers, supra. Whatever the legal effect of the Consent Agreement relative to how the Department will process the permit applications, the Consent Agreement cannot abrogate the rights of third parties to challenge the intended agency action once the Department determines if it will grant or deny the applications filed by the City. If the Department determines to grant the applications and Florida Audubon Society and Bal Harbour Village believe they are substantially affected by that decision, Chapter 120, Florida Statutes, gives them the right to challenge that decision at that time, and the challenge can involve all statutory and rule criteria applicable to such permit applications. Whether the Department acts through the issuance of permits, through the issuance of a notice of intent to grant or deny the permit applications, or by an amendment to an existing document, i.e., whether the Department takes action in the usual manner or in an unusual manner, is not material to whether a substantially affected person has a right to contest the action itself.

Conducting a formal hearing now on the contents of the Consent Agreement would involve litigating issues at one stage of the Department's free-form activity and would result in the adjudication of facts which will be changing. Conducting a formal hearing now on the contents of the Consent Agreement would involve adjudicating issues which can be adjudicated as part of any proceeding initiated when the Department takes agency action on the pending permit applications. Conducting a formal hearing now on the contents of the Consent Agreement assumes that the City and the Department have a similar interest although it could be that the Department will deny the City's permit applications, thereby placing the Department and the City in opposing positions. Conducting a formal hearing now on the contents of the Consent Agreement impliedly assumes that the Department will grant the City's permit applications, and there is no basis for such an assumption. If the Department denies the pending applications, this proceeding may well become moot.

Accordingly, the Department and the City correctly argued that this proceeding is premature, and the Consent Agreement cannot affect the rights of Florida Audubon Society and Bal Harbour Village to litigate all issues related to the City's applications once the Department takes action on those pending applications. The pending motions having been rendered moot, it is, therefore,

Recommended that a final order be entered dismissing the Verified Petition for Formal Administrative Hearing filed by Petitioner Florida Audubon Society and the Verified Petition for Intervention into Formal Administrative Proceedings filed by Intervenor Bal Harbour Village, without prejudice to their rights to challenge any further decisions of the Department on the subject project.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of August, 1995.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1995.

COPIES FURNISHED:

Martha Edenfield, Esquire

E. Gary Early, Esquire

Akerman, Senterfitt & Eidson, P.A.

216 South Monroe Street Suite 200

Tallahassee, Florida 32302-2555

Joseph Z. Fleming, Esquire 620 Ingraham Building

25 Southeast Second Avenue Miami, Florida 33131

C. Anthony Cleveland, Esquire

Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507

Tallahassee, Florida 32314-6507

Janet E. Bowman, Esquire

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road, MS 35

Tallahassee, Florida 32399-9730

David M. Wolpin, Esquire City of North Miami

17011 Northeast 19th Avenue North Miami, Florida 33162-3194

Terry E. Lewis, Esquire John W. Forehand, Esquire

Lewis, Longman & Walker, P.A.

215 South Monroe Street Suite 702

Tallahassee, Florida 32301

Michael Madsen, Esquire

Messer, Vickers, Caparello, et al.

215 South Monroe Street Suite 701

Tallahassee, Florida 32301

Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kenneth Plante, Esquire

Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-002654

Orders for Case No: 95-002654