01-002326RU Save Our Bays, Air And Canals, Inc. vs. Department Of Environmental Protection Status: Closed DOAH Final Order on Wednesday, September 19, 2001.

Summary: Statement in notice of intent to issue that mediation was not available was not a statement of general applicability and, therefore, not defined as a rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAVE OUR BAYS, AIR AND CANALS, )

INC., )

)

Petitioner, )

)

vs. ) Case No. 01-2326RU

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

)

FINAL ORDER

On August 13, 2001, a final administrative hearing was held

in this case in Tallahassee, Florida, before J. Lawrence

Johnston, Administrative Law Judge (ALJ), Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Ralf G . Brookes, Esquire

1217 East Cape Coral Parkway

Cape Coral, Florida 33904

For Respondent: W. Douglas Beason, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether the Department of Environmental Protection (DEP)

has issued an agency statement defined as a rule which has not

been adopted by rulemaking as required by Section 120.54(1)(a),

Florida Statutes. (All statutory citations are to the 2000

codification of the Florida Statutes. All rule citations are to

the current Florida Administrative Code.)

PRELIMINARY STATEMENT

On June 7, 2001, Petitioner, Save Our Bays, Air and Canals,

Inc. (SOBAC), filed a Petition to Invalidate Agency Statement

under Section 120.56(4). SOBAC alleged that a statement reading

"Mediation under section 120.573 of the Florida Statutes is not

available for this proceeding": (a) has not been adopted as a

rule; (b) is not in compliance with the requirements of Section

120.573; and (c) is an invalid statement of general

applicability issued without the rulemaking required under

Section 120.54(1)(a). The alleged agency statement was included

in DEP's Intent to Issue an Industrial Waste Water Permit for a

proposed desalination plant to Tampa Bay Desal. SOBAC

subsequently challenged DEP's Intent to Issue under Sections

120.569 and 120.57 in DOAH Case No. 01-1949.

On June 12, 2001, DOAH issued an Order of Assignment which

advised the parties that this case was assigned to

Administrative Law Judge J. Lawrence Johnston. On June 19,

2001, the ALJ issued a Notice of Hearing scheduling final

hearing for July 9, 2001. However, on July 2, 2001, DEP filed

an agreed motion for a continuance which was granted. On

July 10, 2001, a Second Notice of Hearing was issued scheduling

final hearing for August 9, 2001.

On July 3, 2001, SOBAC filed a Mot ion for Partial Summary

Final Order on Limited Legal Grounds. On July 9, 2001, SOBAC

filed a Supplemental Motion for Partial Summary Final Order -

Additional Legal Grounds. On July 16, 2001, DEP filed a

response in opposition. An Order Denying Summary Final Order

was entered on July 25, 2001, because of fact issues as to

SOBAC's standing and as to whether DEP made a statement, as

provided in Section 120.573, that mediation is not available

"for the type of agency action announced."

On August 2, 2001, DEP filed a Motion for Summary Final

Order which asserted that there were no disputed issues of

material fact and that DEP was entitled, as a matter of law, to

entry of a final order dismissing the Petition to Invalidate

Agency Statement for lack of standing. On August 7, 2001, SOBAC

filed its Response. No ruling was issued prior to final

hearing. While the Motion for Summary Final Order is now moot,

the standing issues are addressed as part of this Final Order.

At the final hearing, SOBAC presented the testimony of two

witnesses and had SOBAC's Exhibits 1 through 11 admitted into

evidence. DEP's Exhibit 1 also was admitted into evidence. DEP

called no witnesses.

After presentation of evidence, the parties were given ten

days to file proposed final orders. Timely proposed final

orders were filed and have been considered.

On August 22, 2001, SOBAC filed "Supplemental Authority -

Proposed Final Order," consisting of an Administrative Law

Section Newsletter article. On August 24, 2001, DEP filed a

Motion to Strike, which is granted.

FINDINGS OF FACT

1. On April 20, 2001, DEP's Southwest District office

issued an Intent to Issue with respect to Tampa Bay Desal's

application for a NPDES permit for the construction and

operation of a proposed desalination facility (DEP File No.

FL0186813-001-IW1S).

2. DEP's Intent to Issue for the Tampa Bay Desal NPDES

permit provided in part:

A person whose substantial interests are

affected by the Department's proposed

permitting decision may petition for an

administrative proceeding (hearing) under

sections 120.569 and 120.57 of the Florida

Statutes.

The Intent to Issue for the NPDES permit also specified the type

of information that must be included in a petition filed under

Sections 120.569 and 120.57. SOBAC timely challenged DEP's

proposed agency action concerning the Tampa Bay Desal permit

application. The challenge is currently pending as DOAH Case

No. 01-1949.

3. The Intent to Issue the Tampa Bay Desal permit also

included the statement: "Mediation under section 120.573 of the

Florida Statutes is not available for this proceeding." On

June 7, 2001, SOBAC filed a Petition to Invalidate Agency

Statement under Section 120.56(4). SOBAC alleged that the

statement regarding mediation met the definitions of a rule but

was not adopted by rulemaking as required by Section

120.54(1)(a).

4. By correspondence dated June 13, 2001, DEP notified

counsel for SOBAC of DEP's willingness to participate in

mediation in an effort to resolve the issues underlying the

administrative challenge. However, DEP's offer to participate

in mediation was predicated, at least in part, on the following

conditions:

(a) the parties would agree on the

selection of the mediator;

(b) any discussions and documents

introduced in the mediation would remain

confidential; and

(c) notwithstanding the mediation,

discovery in the administrative proceeding

would continue, and the parties would be

prepared to proceed to the final hearing as

scheduled.

On or about June 14, 2001, Tampa Bay Desal agreed, at least in

principle, to participate in mediation with SOBAC under those

conditions. There was no evidence that either DEP or Tampa Bay

Desal ever agreed to toll the administrative proceeding (DOAH

Case No. 01-1949) pending mediation.

5. On or about June 15, 2001, counsel for SOBAC contacted

DEP and accepted DEP's offer to participate in a mediation

conference.

6. On or about July 23, 2001, the Department, SOBAC and

Tampa Bay Desal participated in a mediation conference in an

effort to resolve the issues underlying SOBAC's challenge to

Tampa Bay Desal's permit application. Mediation efforts failed.

7. According to the evidence, SOBAC is an organization

with an interest in various environmental permitting activities

in and around Tampa Bay. SOBAC monitors local newspapers for

DEP notices of intent to issue permits. Besides the Tampa Bay

Desal permit, SOBAC has become aware of three other DEP notices

of intent of interest to SOBAC.

8. One was a notice of intent to issue a permit to Tampa

Electric Company (TECO) for NPDES permit modifications relating

to and for purposes of accommodating the Tampa Bay Desal

project. This notice of intent also contained the statement:

"Mediation under Section 120.573, Florida Statutes, is not

available for this proceeding." SOBAC nonetheless requested

mediation under Section 120.573. When the time to challenge the

notice of intent was about to expire, SOBAC also filed an

administrative challenge under Sections 120.569 and 120.57. The

TECO challenge also was referred to DOAH, where it was given

Case No. 01-2720 and consolidated with Case No. 01-1949. TECO

never agreed to mediation, and DEP never responded to SOBAC's

request for mediation.

9. Another case involved a TECO air pollution permit

unrelated to the desalination project. The notice of intent to

issue stated: "Mediation is not available for this proceeding."

The evidence did not indicate that SOBAC took any action with

respect to this notice of intent to issue.

10. The third case involved IMC Phosphates Company and a

permit to operate a barge loading facility handling phosphate

materials. The notice of intent to issue stated: "Mediation

under Section 120.573, F.S. is not available in this

proceeding." SOBAC filed an administrative challenge to this

permit under Sections 120.569 and 120.57. IMC never agreed to

mediation. The evidence was not clear whether SOBAC received a

response to its request for mediation.

11. After initiating the instant proceeding, SOBAC

researched the Florida Administrative Weekly (FAW) from

September 1999 through the date of final hearing and found 30

notices of intent, all of which stated essentially that

mediation was not available for (or in) the proceeding, and one

notice of intent. No further explanation was given. Of the 30,

24 were electric power plant siting cases, 4 were water quality

exemptions, one involved a state revolving loan fund, and one

was a joint coastal permit case with consent to use sovereign

lands and requested variances.

12. SOBAC presented no evidence as to DEP intents to issue

not published in FAW. However, DEP entered into the record

evidence of one other DEP notice, apparently not published in

FAW, of intent to issue a coastal construction control line

permit stating that mediation under Section 120.573 was

available and describing procedures to be followed for

mediation.

13. SOBAC presented no other evidence to explain why

mediation was not offered in the examples given or why it was

offered on the one occasion. There also was no evidence as to

whether any of the statements regarding availability of

mediation reflected by the evidence were intended to mean that

mediation was available in one type of case but not in another.

Such an intent would have to be inferred. But the evidence was

not sufficient to infer such an intent.

14. SOBAC complains that the statements in DEP's notices

of intent as to availability of mediation under Section 120.573

force SOBAC to either waive rights or timely initiate

administrative challenges under Sections 120.569 and 120.57 and

incur litigation costs which might be unnecessary if mediation

were initiated. But there was no evidence of any case in which

the parties agreed to mediation under Section 120.573. (The

failed attempt at mediation in DOAH Case No. 01-1949 was not

conducted under Section 120.573.) Second, even if the parties

agreed to mediation under Section 120.573, the evidence did not

prove the likelihood that mediation would be successful; if not,

and if administrative litigation resumed, mediation would have

added to the cost of litigation.

CONCLUSIONS OF LAW

15. Section 120.56.(4) provides in pertinent part:

CHALLENGING AGENCY STATEMENTS DEFINED AS

RULES; SPECIAL PROVISIONS.--

(a) Any person substantially affected by an

agency statement may seek an administrative

determination that the statement violates s.

120.54(1)(a). The petition shall . . . show

that the statement constitutes a rule under

s. 120.52 and that the agency has not

adopted the statement by the rulemaking

procedure provided by s. 120.54.

In this case, it is clear that the agency statement has not been

adopted as a rule. It also is clear that DEP has made no

attempt to prove that rulemaking is not "feasible and

practicable." See Section 120.54(1)(b). The issues are whether

SOBAC is substantially affected by the statement and whether

SOBAC proved that the statement is defined as a rule. See

Section 120.54(1).

16. Section 120.52 .(15) provides in pertinent part:

"Rule" means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

The term also includes the amendment or

repeal of a rule.

(The exclusions that follow in the statute do not apply in this

case.)

17. On its face, the statement SOBAC contends is a rule

does nothing more than give notice that mediation under Section

120.573 was "not available for this proceeding." It did not

purport to make a statement of general applicability as to

whether mediation under Section 120.573 was available "for the

type of agency action announced." See Section 120.573. As

found, there was no direct evidence, or any indirect evidence

from which it could be inferred, that DEP intended the statement

to have general applicability as to the type of agency action

for which mediation under Section 120.573 is available.

18. Section 120.573 provides in pertinent part:

Each announcement of an agency action that

affects substantial interests shall advise

whether mediation of the administrative

dispute for the type of agency action

announced is available . . ..

DEP maintains that the language of Section 120.573 only requires

an agency to give notice as to the availability of mediation

under Section 120.573; SOBAC argues that Section 120.573

requires more-- i.e. , that the agency make a statement of general

applicability as to the availability of mediation under Section

120.573 in the type of agency action announced.

19. DEP's interpretation of Section 120.573 not only is

reasonable, it also is consistent with the interpretation given

to the statute by the Administration Commission in Uniform Rule

28-106.111(1), which states in pertinent part that: "The notice

shall also advise whether mediation under Section 120.573, F.S.,

is available as an alternative remedy." See Section

120.54(5)(b)4 (the Administration Commission is statutorily

responsible for adoption of uniform rules of procedure,

including rules for the filing of petitions for administrative

hearings under Sections 120.69 and 120.57). In addition, in

accordance with Section 120.54(5)(a)3, DEP has promulgated rules

of procedure as approved exceptions to the Administration

Commission's Uniform Rules of Procedure which nonetheless are

consistent with the Administration Commission's interpretation

of Section 120.573 in that DEP's Rule 62-110.106(12) provides

for a "Notice of Rights to Hearing and to Mediation" which in

part either describes procedures for mediation, if available, or

states simply: "Mediation is not available in this proceeding."

20. Even if Section 120.573 were given the interpretation

urged by SOBAC, it still could not be found, on the record of

this case, that the alleged statement does anything more than

impart information as to the availability of mediation under

Section 120.573 in a particular case. As such, it cannot be

found to be a "statement of general applicability that

implements, interprets, or prescribes law or policy or describes

the procedure or practice requirements of an agency."

21. In reaching this conclusion, consideration also was

given to Section 120.54(1)(d), which provides:

When an administrative law judge enters a

final order that all or part of an agency

statement violates s. 120.54(1)(a), the

agency shall immediately discontinue all

reliance upon the statement or any

substantially similar statement as a basis

for agency action.

It is telling that, unlike in the case of a statement of general

applicability, DEP does not "rely" on the statement alleged in

this case as the "basis for agency action." To the contrary, it

was not proven that the alleged statement does anything more

than impart information (as required by the applicable rules of

procedure cited supra ).

22. Since SOBAC did not prove that the alleged statement

was anything more than an informational notice as to the

availability of mediation under Section 120.573, SOBAC also

could not prove that it was "substantially affected" by the

statement. In addition, as found, any effect on SOBAC would be

remote and highly speculative. See Ameristeel Corp. v. Clark ,

691 So. 2d 473, 477-478 (Fla. 1997). There was no evidence of

any instance in which parties agreed to mediation under Section

120.573--including the provisions for tolling of the time

limitations imposed by Sections 120.569 and 120.57. It also is

not clear whether mediation under Section 120.573 would reduce

or increase the cost of administrative litigation.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, SOBAC's Petition to Invalidate Agency Statement is denied.

DONE AND ORDERED this 19th day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of September, 2001.

COPIES FURNISHED:

W. Douglas Beason, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399-3000

Ralf G. Brookes, Esquire

Morgan & Hendrick

1217 East Cape Coral Parkway

Suite 107

Cape Coral, Florida 33904

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

David B. Struhs, Secretary

Department of Environmental Protection

The Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Carroll Webb, Executive Director

Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code

The Elliott Building

Tallahassee Florida 32399-0250

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 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.