STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FRIENDS OF PERDIDO BAY, INC., | ) | |||
AND JAMES LANE, | ) ) | |||
Petitioners, | ) | |||
) | ||||
and | ) | |||
) | ||||
JACQUELINE LANE, | ) | |||
) | ||||
Intervenor, | ) | |||
) | ||||
vs. | ) | Case | No. | 08-6033RX |
) | ||||
DEPARTMENT OF ENVIRONMENTAL | ) | |||
PROTECTION, | ) | |||
) | ||||
Respondent, | ) | |||
) | ||||
and | ) | |||
) | ||||
INTERNATIONAL PAPER COMPANY, | ) ) | |||
Intervenor. | ) | |||
| ) |
FINAL ORDER
The final hearing in this case was held on June 22 through 24, 30, and July 1, 21, and 22, 2009, in Pensacola, Florida, before Bram D. E. Canter, Administrative Law Judge of the Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioners Friends of Perdido Bay, Inc., and James Lane:
Marcy I. LaHart, Esquire 711 Talladega Street
West Palm Beach, Florida 33405-1143 For Intervenor Jacqueline M. Lane:
Jacqueline M. Lane, pro se 10738 Lillian Highway
Pensacola, Florida 32506 For Intervenor International Paper Company:
Terry Cole, Esquire Jeffrey Brown, Esquire Oertel, Fernandez, Cole,
& Bryant, P.A. Post Office Box 1110
Tallahassee, Florida 32302-1110
For Respondent Florida Department of Environmental Protection:
W. Douglas Beason Assistant General Counsel
The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE
The issue for determination in this case is whether Florida Administrative Code Rule 62-302.300(6) is an invalid exercise of delegated legislative authority because the rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency.
PRELIMINARY STATEMENT
On December 5, 2008, Friends of Perdido Bay, Inc. (FOPB), and James Lane filed a Petition to Determine the Invalidity of Administrative Rules. The petition contends that Florida Administrative Code Rules 62-660.300(1), 62-4.242(1)(d) and 62- 302.300(6) are invalid exercises of delegated legislative authority in violation of Sections 120.56(1) and 120.52(8), Florida Statutes (2008).1
Jacqueline Lane was granted leave to intervene in support of the rule challenge. FOPB, James Lane, and Jacqueline Lane are referred to hereinafter as “Petitioners.” International Paper Company (IP) was granted leave to intervene in opposition to the rule challenge.
The rule challenge was consolidated with DOAH Cases 08-3922 and 08-3923, which have identical parties and involve proposed Department authorizations for industrial wastewater discharge activities at IP’s paper mill in Cantonment, Florida.
By Order dated May 14, 2009, the Administrative Law Judge dismissed the challenge to Florida Administrative Code Rule 62- 660.300(1) as moot. At the commencement of the final hearing, FOPB and James Lane announced that they withdrew their rule challenges, except with regard to Florida Administrative Code Rule 62-302.300(6).
The 12-volume transcript of the final hearing was filed with DOAH. All parties except Jacqueline Lane filed proposed final orders. The proposed orders were carefully considered in the preparation of this Final Order.
FINDINGS OF FACT
The Parties
The Department is the state agency authorized under Chapter 403, Florida Statutes, to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency, the Department administers the National Pollution Discharge Elimination (NPDES) permitting program in Florida. The Department promulgated the rules in Florida Administrative Code Title 62 that are applicable to the permitting of wastewater discharges.
FOPB is a non-profit Alabama corporation established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the president of FOPB.
Jacqueline Lane and James Lane live on property adjacent to Perdido Bay.
IP owns and operates a paper mill in Cantonment, Escambia County, Florida. IP is the applicant for the Department authorizations that are the subject of DOAH Case Nos. 08-3922 and 08-3923.
Background
When this rule challenge was filed, DOAH Cases Nos.
08-3922 and 08-3923 (the permit cases) involved challenges by these same Petitioners to four Department authorizations for IP: an NPDES permit, a Consent Order, an approved exemption for the experimental use of wetlands pursuant to Florida Administrative Code Rule 62-660.300, and a waiver related to the experimental use of wetlands. IP later withdrew its request for the experimental use of wetlands exemption and the related waiver.
Petitioners were ordered to show cause why their claim regarding the invalidity of Florida Administrative Code Rule 62-
660.300 was not rendered moot by IP’s withdrawal of its request for the exemption. Subsequently, the challenge to the validity of Florida Administrative Code Rule 62-660.300 was dismissed as moot.
At the commencement of the final hearing on June 22, 2009, FOPB and James Lane announced that they were withdrawing their rule challenges except with respect to Florida Administrative Code Rule 62-302.300(6), and that the only legal
ground being asserted for the invalidity of the rule is that it is vague and vests unbridled authority in the Department.
Petitioners’Standing
Jacqueline Lane, James Lane and a substantial number of the members of FOPB swim, boat, and make other uses of Perdido Bay. Perdido Bay would be affected by IP's wastewater effluent.
The challenged rule was applied by the Department to determine that IP's proposed industrial wastewater discharge was in the public interest.
The Challenged Rule
Florida Administrative Code Rule 62-302.300, is entitled "Findings, Intent, and Antidegradation Policy for Surface Water Quality." Subsection (6) of the rule states:
Public interest shall not be construed to mean only those activities conducted solely to provide facilities or benefits to the general public. Private activities conducted for private purposes may also be in the public interest.
Most of the permits that are issued by the Department are issued to private entities whose primary purposes are personal uses or the production of private incomes and profits, rather than solely to provide facilities or benefits to the general public.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.56, Florida Statutes. Standing
Section 120.56(3), Florida Statutes, provides that any person substantially affected by an existing agency rule may seek an administrative determination of the invalidity of the rule.
Petitioners can demonstrate standing by alleging that they have sustained actual injury in fact or are immediately in danger of sustaining some direct injury as a result of the challenged rule. Village Park Mobile Home Ass'n, Inc. v. Dep't of Business Regulation, 506 So. 2d 426, 433 (Fla. 1st DCA 1987).
Petitioners’ interests in swimming, fishing, and other activities in Perdido Bay give them standing in the permit cases to attempt to prove that the proposed industrial wastewater discharge does not meet water quality and other applicable Department standards, including the requirement that the discharge be in the public interest. Florida Administrative Rule 62-302.300(6) was applied by the Department to determine that IP's proposed discharge is in the public interest.
Petitioners have standing in this rule challenge case because the challenged rule was applied by the Department to authorize the industrial wastewater discharge which Petitioners contend will injure their substantial interests.
Burden and Standard of Proof
Petitioners have the burden to prove by a preponderance of the evidence that Rule 62-302.300(6) is an invalid exercise of delegated legislative authority. See
§ 120.56(3)(a), Fla. Stat. Facial Validity
There are several grounds identified in Section 120.52(8), Florida Statutes, that would cause an agency rule to be an invalid exercise of delegated legislative authority. The only ground asserted by Petitioners is set forth in Section 120.52(8)(d), Florida Statutes:
The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency.
Petitioners’ challenge is limited to the facial validity of Rule 62-302.300(6). See Fairfield Communities v. Fla. Land & Water Adj. Comm'n, 522 So. 2d 1012, 1014 (Fla. 1st DCA 1988).
The first sentence of Rule 62-302.300(6) controls the meaning of the second sentence. The rule is repeated here:
Public interest shall not be construed to mean only those activities conducted solely to provide facilities or benefits to the general public. Private activities conducted for private purposes may also be in the public interest.
The rule distinguishes between activities conducted solely to provide facilities or benefits to the general public and activities that are not conducted solely to provide facilities or benefits to the general public.
The meaning of Rule 62-302.300(6) is clear: In determining whether an activity is in the public interest, private activities conducted for private purposes are not to be excluded. The rule is not vague.
Among the statutes that are cited at the end of Rule 62-302.300, as “Specific Authority” for the rule, and also as the “Law Implemented” by the rule, is Section 403.088, Florida Statutes. Section 403.088 is entitled “Water pollution operation permits; conditions” and provides in relevant part:
(b) If the department finds that the proposed discharge will not reduce the quality of the receiving waters below the classification established for them, it may issue an operation permit if it finds that such degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest.
* * *
(e) However, if the discharge will not meet permit conditions or applicable statutes and
rules, the department may issue, renew, revise, or reissue the operation permit if:
The applicant is constructing, installing, or placing into operation, or has submitted plans and a reasonable schedule for constructing, installing, or placing into operation, an approved pollution abatement facility or alternative waste disposal system;
The applicant needs permission to pollute the waters within the state for a period of time necessary to complete research, planning, construction, installation, or operation of an approved and acceptable pollution abatement facility or alternative waste disposal system;
There is no present, reasonable, alternative means of disposing of the waste other than by discharging it into the waters of the state;
The granting of an operation permit will be in the public interest;
The discharge will not be unreasonably destructive to the quality of the receiving waters; or
A water quality credit trade that meets the requirements of s. 403.067.
(Emphasis added)
Petitioners do not challenge Rule 62-302.300(6) on the ground that the rule enlarges, modifies, or contravenes the specific provisions of law implemented. In other words, Petitioners do not assert that Rule 62-302.300(6) gives a meaning to the term “public interest” that is different from the
intended meaning of the term in Section 403.088, Florida Statutes.
Another Department rule that is applicable to IP’s proposed discharge, and that also cites Section 403.088, Florida Statutes, as “Specific Authority” and as “Law Implemented,” is Florida Administrative Code Rule 62-4.242(1), entitled, “Antidegradation Permitting Requirements.”
Petitioners argue that, in determining whether Rule 62-302.300(6) is facially valid, the rule must be considered in isolation from Rule 62-4.242 because Rule 62-302.300(6) does not contain an express reference to Rule 62-4.242. However, both rules are identified as components of the Department’s antidegradation policy. Furthermore, Rule 62-4.242(1) contains two references to Rule 62-302.300. Rule 62-4.242 states in relevant part:
Permits shall be issued when consistent with the antidegradation policy set forth in Rule 62-302.300, F.A.C., and, if applicable, Rule 62-302.700, F.A.C.
In determining whether a proposed discharge which results in water quality degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest, the department shall consider and balance the following factors:
Whether the proposed project is important to and is beneficial to the public health, safety, or welfare (taking into account the policies set forth in Rule 62-
302.300, F.A.C., and, if applicable, Rule 62-302.700, F.A.C.); and
Whether the proposed discharge will adversely affect conservation of fish and wildlife, including endangered or threatened species, or their habitats; and
Whether the proposed discharge will adversely affect the fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge; and
Whether the proposed discharge is consistent with any applicable Surface Water Improvement and Management Plan that has been adopted by a Water Management District and approved by the Department.
(Emphasis added)
Rule 62-302.300(6) must be read in pari materia with Rule 62-4.242.
Petitioners did not challenge the validity of the public interest criteria in Rule 62-4.242(1) as lacking adequate standards. Therefore, it must be assumed for the purpose of this rule challenge that the criteria are adequate to determine whether an activity is in the public interest.
Section 403.088, Florida Statutes, grants broad discretion to the Department to determine whether an activity is in the public interest. Rule 62-302.300(6) does not broaden the discretion conferred by Section 403.088, Florida Statutes.
An agency rule is not invalid merely because it reflects the broad discretion conferred on the agency by the law
implemented. Cortes v. Board of Regents, 655 So. 2d 132, 137 (Fla. 1st DCA 1995).
Petitioners failed to prove that Rule 62-302.300(6) is an invalid exercise of delegated legislative authority on the grounds set forth in Section 120.52(8)(d), Florida Statutes.
ORDER
For the reasons set forth above, it is
ORDERED that Florida Administrative Code Rule 62-302.300(6) is not an invalid exercise of delegated legislative authority.
DONE AND ORDERED this 1st day of October, 2009, in Tallahassee, Leon County, Florida.
BRAM D. E. CANTER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 2009.
ENDNOTE
1/ All references to the Florida Statutes are to the 2008 codification.
COPIES FURNISHED:
Marcy I. LaHart, Esquire Marcy I. LaHart, P.A. Post Office Box 0368
Crawfordville, Florida 32326-0368
Terry Cole, Esquire
Oertel, Fernandez, Cole & Bryant, P.A. Post Office Box 1110
Tallahassee, Florida 32302-1110
Jacqueline M. Lane 10738 Lillian Highway
Pensacola, Florida 32506
W. Douglas Beason, Esquire
Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Lea Crandall, Agency Clerk
Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Tom Beason, General Counsel
Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Michael W. Sole, Secretary
Department of Environmental Protection The Douglas Building
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Liz Cloud, Program Administrator Administrative Code
Department of State
R.A. Gray Building, Suite 101 Tallahassee, Florida 32399
F. Scott Boyd, Executive Director and General Counsel
Joint Administrative Procedure Committee
120 Holland Building Tallahassee, Florida 32399-1300
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 the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a 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.
Issue Date | Document | Summary |
---|---|---|
Oct. 01, 2009 | DOAH Final Order | Petitioners failed to prove that Florida Administrative Code Rule 62-302.300(6) is an invalid exercise of delegated legislative authority. |
FERNCREST UTILITIES, INC. vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 08-006033RX (2008)
FREDDIE PRESSLEY vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 08-006033RX (2008)
LAKE COUNTY UTILITIES, INC. vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 08-006033RX (2008)
DEPARTMENT OF ENVIRONMENTAL REGULATION vs. CAST-CRETE CORPORATION OF FLORIDA, 08-006033RX (2008)