01-004019 The Florida Electric Power Coordinating Group, Inc. vs. Department Of Environmental Protection
 Status: Closed
DOAH Final Order on Monday, April 22, 2002.


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Summary: Closing of files and dismissal of petitions appropriate where agency initiates rulemaking and adopts rule after agency statement challenged under Section 120.56(4), Florida Statutes.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8THE FLORIDA ELECTRIC POWER )

13COORDINATING GROUP, INC., )

17)

18Petitioner, )

20)

21vs. ) Case Nos. 01 - 4018

28) 01 - 4019

32DEPARTMENT OF ENVIRONMENTAL ) 01 - 4020

39PROTECTION, ) 01 - 4021

44) 01 - 4257RU

48Respondent. )

50____________________ ____________)

52FINAL ORDER

54These matters came before the undersigned after Respondent

62filed a Status Report on March 28, 2002, requesting that an

73order be entered dismissing the five petitions and closing these

83files. A Response in opposition to the req uest was filed by

95Petitioner on March 29, 2002. Further argument was filed by

105Respondent and Petitioner on April 5 and 15, 2002, respectively.

115The procedural history of these cases is as follows.

124Respondent has issued a wastewater facility permit under

132C hapter 62 - 620, Florida Administrative Code, to Petitioner’s

142members. Rule 62 - 620.610, Florida Administrative Code, sets

151forth 23 general conditions which apply to all wastewater

160facility permits. Those conditions are found in paragraphs (1) -

170(23) of the R ule and are repeated verbatim as general conditions

182in each member’s permit. Paragraph (20) prescribes the

190reporting requirements for each permittee for “any noncompliance

198which may endanger health or the environment.”

205In November 2000, the Department i ssued a Notice of Minor

216Permit Revision (Notice) to all wastewater facility permittees

224in Florida, including Petitioner’s members. Among other things,

232the Notice advised the permittees that the Department was

241“revising [their] wastewater permit[s] to incl ude instructions

249for reporting certain spills or unauthorized discharges”; that

257the “clarifying instructions are contained in paragraph b. of

266the enclosed permit revision”; and that “[t]he enclosed revision

275shall be attached to your existing Wastewater Per mit.” Page 3

286of the Notice contained a revised permit condition entitled

295“Minor Permit Revision for Reporting Noncompliance,” which

303tracked verbatim the existing language in paragraph (20) of the

313Rule. However, the Notice modified that general condition in

322each permit by renumbering subparagraph b. as subparagraph c.

331and adding a new subparagraph b. To this extent, the language

342in the Notice differed from the language found in paragraph (20)

353of the Rule.

356In May 2001, Petitioner filed Petitions under Sect ion

365120.569, Florida Statutes, seeking rescission of the new

373language in the Notice. These cases were later referred to the

384Division of Administrative Hearings (DOAH) on October 17, 2001,

393and were assigned Case Nos. 01 - 4018 through 01 - 4021. In

406addition, on October 30, 2001, Petitioner filed with DOAH a

416Petition under Section 120.56(4), Florida Statutes, contending

423that the language modifying the general condition in each permit

433constituted an unpromulgated rule in violation of Section

441120.54(1)(a), Florid a Statutes. That matter has been assigned

450Case No. 01 - 4257RU. All cases were consolidated by Order dated

462November 6, 2001. By agreement of the parties, the requirement

472that a final hearing in the rule challenge be held within 30

484days was waived, and a c onsolidated final hearing in all cases

496was scheduled on December 14, 2001.

502On November 29, 2001, Petitioner filed its Motion for

511Summary Final Order in Case No. 01 - 4257RU. On December 7, 2001,

524Respondent filed its Response to the Motion and a Motion for

535F inal Order of Dismissal. On the same date, Respondent

545published its Notice of Proposed Rule Development to address the

555challenged agency statement, and a Notice of Proposed Rulemaking

564was filed with the Department of State on December 14, 2001.

575Publicati on of the latter Notice was made on December 21, 2001.

587Prior to the final hearing, the parties agreed that a hearing

598was unnecessary, and that Case No. 01 - 4257RU could be resolved

610on the basis of the papers filed by the parties.

620Given Respondent’s publi cation of a proposed rule which

629addressed the challenged statement, on December 28, 2001, the

638undersigned entered an Order abating the cases pending the

647outcome of the rulemaking process, and concluding that a ruling

657on the pending Motions was unnecessary. The Order also denied

667Petitioner’s request for attorney’s fees and costs on the ground

677that the request was premature, but "without prejudice to

686Petitioner renewing its request in the event the requirements of

696Section 120.56(4)(e) [were] not met." Final ly, to ensure

705compliance with the requirements of the statute, the Order

714required that Respondent file a status report within 90 days

724advising the status of the rulemaking process.

731On March 28, 2002, Respondent filed a Status Report

740advising that on the sa me date, new Rule 62 - 620.610(20), Florida

753Administrative Code, which addressed the agency statement, had

761been adopted. The new Rule became effective on April 17, 2002,

772or 20 days after filing with the Department of State. Because a

784rule addressing the ag ency statement has now been adopted,

794Respondent has asked that the pending cases be dismissed and an

805order entered closing the files.

810In its Response to that filing, Petitioner generally

818contends that even though Respondent has proceeded expeditiously

826and in good faith to adopt a rule to address the challenged

838statement, the undersigned is still required to keep the cases

848open, conduct such further proceedings in Case No. 01 - 4257RU as

860are necessary to determine if the agency statement is a rule,

871and to then award Petitioner reasonable attorney’s fees and

880costs, if appropriate. It also contends that the doctrine of

890collateral legal consequences applies under the circumstances

897presented here, and that under relevant case law construing that

907doctrine, a mandat ory award of attorney’s fees under Section

917120.595(4) is a collateral legal consequence that precludes

925dismissal of the underlying action for mootness. Underpinning

933both of these arguments is Petitioner’s primary concern that "an

943agency can avoid attorney ’s fees after all of the legal work on

956an unpromulgated rule challenge case has been completed, merely

965by publishing a proposed rule." To this end, Petitioner has

975also filed a Motion for Reconsideration of Denial of Attorney’s

985Fees.

986Petitioner’s challenge in Case No. 01 - 4257RU was filed

996under Section 120.56(4), which allows any person substantially

1004affected by an agency’s statement to seek an administrative

1013determination that the statement violates Section 120.54(1)(a).

1020In Section 120.54(1)(a), the Legis lature has expressed an

1029intent that "[r]ulemaking is not a matter of agency discretion.

1039Each agency statement defined as a rule by s. 120.52 shall be

1051adopted by the rulemaking procedure provided by this section as

1061soon as feasible and practicable." This legislative preference

1069is reinforced because an administrative law judge is required,

1078subject to the single exception cited in Section 120.595(4)(a),

1087to award reasonable attorney’s fees to the challenger upon the

1097entry of a final order concluding that all or part of an

1109agency’s statement violates Section 120.54(1)(a).

1114Former Section 120.535, Florida Statutes (1995), permitted

1121persons to challenge agency statements as unpromulgated rules.

1129That statute provided in part that "subsequent to a

1138determination t hat an agency statement violates subsection (1),"

1147an agency could still avoid costs and attorney’s fees if the

"1158agency publishe[d] proposed rules and proceed[ed] expeditiously

1165and in good faith to adopt such rules under subsection (5)."

1176In 1996, the Legi slature repealed Section 120.535, but

1185incorporated into Section 120.54(1), Florida Statutes (Supp.

11921996), those provisions requiring that each agency statement

1200defined as a rule be adopted as a rule as soon as feasible and

1214practicable. Also, the rule chal lenge provisions of Section

1223120.535 were transferred to Section 120.56(4), Florida Statutes

1231(Supp. 1996), and provided in part that "prior to entry of a

1243final order that all or part of an agency statement violates s.

1255120.54(1)(a), if an agency publishes, p ursuant to s.

1264120.54(3)(a), proposed rules which address the statement and

1272proceeds expeditiously and in good faith to adopt rules," then

1282the agency may rely upon the statement as a basis for agency

1294action and avoid the consequences of an adverse ruling. Thus,

1304after 1996, an agency was required to publish the statement

1314prior to any final disposition of the rule challenge in order to

1326avoid the consequences of an adverse ruling.

1333In 1996, the Legislature also consolidated most attorney’s

1341fees provisions into a new Section 120.595, Florida Statutes

1350(Supp. 1996). Among them was a new provision in Section

1360120.595(4) for the award of attorney’s fees and costs in

1370challenges to agency statements under Section 120.56(4). This

1378provision enhanced the prior fees and costs provision in former

1388Section 120.535(6), and apparently was "a direct result of the

1398criticism of the former Section 120.535, which allowed an agency

1408to avoid payment of attorney’s fees and costs simply by

1418initiating the rulemaking proceeding." Hoppin g and Wetherall,

1426The Legislature Tweaks McDonald (Again): The New Restrictions on

1435the Use of "Unadopted Rules" and "Incipient Policies" by

1444Agencies in Florida’s Administrative Procedure Act , 48 Fla. L.

1453Rev. 135, 150 (Jan. 1996).

1458Here, Petitioner has rece ived the result it requested in

1468its Petition filed on October 30, 2001 - - that Respondent

1479proceed to adopt a rule addressing the statements made in the

1490Notice. Indeed, a rule was adopted on March 28, 2002, and it

1502became effective on April 17, 2002.

1508In re ading Sections 120.54 and 120.56(4) in pari materia ,

1518it is apparent that the Legislature’s preference for rulemaking

1527is satisfied if the agency publishes a proposed rule pursuant to

1538Section 120.56(4)(e) and proceeds to expeditiously and in good

1547faith adopt the rule.

1551While Petitioner seeks to have Case No. 01 - 4257RU remain

1562open and a "label" placed on Respondent’s statement (so that it

1573can be awarded attorney’s fees), the label is of no legal

1584consequence in light of Respondent’s compliance with Section

1592120.5 6(4)(e). That is to say, Respondent has now published a

1603proposed rule and proceeded expeditiously and in good faith to

1613adopt the rule. As a matter of law, then, Petitioner is

1624entitled to no further relief. Therefore, dismissal of the

1633Petitions and closu re of the files is the appropriate course of

1645action. Savona v. Agency for Health Care Admin. , 717 So. 2d

16561120 (Fla. 1st DCA 1998); Osceola Fish Farmers Assoc., Inc. v.

1667S. Fla. Water Mgmt. Dist. , Case No. 00 - 3615RU (DOAH Final Order

1680Denying Amended Petitio n December 10, 2001); Johnson v. Agency

1690for Health Care Admin. , Case No. 98 - 3419RU, 1999 WL 1483785

1702(DOAH Final Order of Dismissal May 18, 1999). This same

1712conclusion has been reached by several legal commentators who

1721analyzed the 1996 revisions to the Ad ministrative Procedure Act.

1731See Hopping and Wetherall, 48 Fla. L. Rev. at 150 ("The agency

1744can still avoid payment of attorneys’ fees and costs by

1754initiating the rulemaking process after a challenge to its

1763policy has been filed pursuant to the new section 120.56(4), but

1774before the Administrative Law Judge issues a final order on the

1785challenge. Once rulemaking is initiated, the challenge is

1793essentially moot."); Hopping, Sellers, and Wetherall, Rulemaking

1801Reforms and Nonrule Policies: A "Catch - 22" for State Agencies ,

181271 Fla. B. J. 20, 25 (Mar. 1997)("The agencies can still avoid

1825payment of fees and costs by initiating the rulemaking process

1835after a challenge to its policy has been filed pursuant to new

1847s. 120.56(4), but before the administrative law judge is sues a

1858final order on the challenge.") 1

1865Petitioner also cites the doctrine of collateral legal

1873consequences as a basis for denying the relief requested by

1883Respondent. Under that doctrine, an otherwise moot case will

1892not be dismissed if collateral legal c onsequences that affect

1902the rights of a party flow from the issue to be determined.

1914Godwin v. State , 593 So. 2d 211, 212 (Fla. 1992). Relying upon

1926that doctrine, Petitioner contends that the "mandatory"

1933attorney’s fees provision in Section 120.595(4) is a collateral

1942legal consequence that precludes dismissal of these matters on

1951grounds of mootness.

1954For the doctrine to apply, Section 120.595(4) would have to

1964provide for a mandatory award of attorney’s fees whenever an

1974action under Section 120.56(4) is fi led, and the agency then

1985resorts to rulemaking to address that challenge. Under the

1994statutory scheme in place, however, the Legislature has

2002specifically provided that there is no mandatory right to

2011attorney’s fees under Section 120.595(4) unless there is an

"2020entry of a final order that all or part of an agency statement

2033violates s. 120.54(1)(a)." See Section 120.595(4)(a), Florida

2040Statutes. Otherwise, as a matter of law, an award of fees and

2052costs is not warranted. Because there has been no entry of a

2064f inal order making such an adjudication, nor is one required in

2076light of Respondent’s adoption of a rule addressing the

2085challenged statement, the attorney’s fees provision does not

2093come into play. Under these circumstances, there is no

2102collateral legal con sequence, and thus the doctrine does not

2112apply. It is, therefore,

2116ORDERED that the Petitions filed in these cases are

2125dismissed, and Case Nos. 01 - 4018, 01 - 4019, 01 - 4020, 01 - 4021, and

214201 - 4257RU are hereby closed.

2148DONE AND ORDERED this 22nd day of April, 20 02, in

2159Tallahassee, Leon County, Florida.

2163___________________________________

2164DONALD R. ALEXANDER

2167Administrative Law Judge

2170Division of Administrative Hearings

2174The DeSoto Building

21771230 Apalachee Parkway

2180Tallahassee, Florida 32399 - 3060

2185(850) 488 - 9675 SUNC OM 278 - 9675

2194Fax Filing (850) 921 - 6847

2200www.doah.state.fl.us

2201Filed with the Clerk of the

2207Division of Administrative Hearings

2211this 22nd day of April, 2002.

2217ENDNOTE

22181/ In reaching this conclusion, the undersigned has again

2227considered the case of Central Stat es Health and Life Co. of

2239Omaha v. Dep’t of Insur. and Treas. , 21 F.A.L.R. 2460 (DOAH

22501998), in which the agency apparently failed to proceed

2259expeditiously and in good faith to adopt a rule within 180 days

2271after initiating rulemaking. Even if it had done so, the Final

2282Order supports the view that the agency would still be liable

2293for attorney's fees and costs. Nothwithstanding this contrary

2301administrative ruling, the undersigned finds the cases and

2309analysis cited in the main text of this Order to be more

2321p ersuasive. Petitioner has also cited the case of Chancy v.

2332Dep't of Highway Safety and Motor Vehicles , Case No. 97 - 1627RU

2344(DOAH Final Order July 16, 1997). While the case does not

2355address the issue of whether attorney's fees are mandatory under

2365the circu mstances presented here, to the extent it may arguably

2376contain language favorable to Petitioner’s position, the case is

2385not deemed to be persuasive.

2390COPIES FURNISHED:

2392Richard S. Brightman, Esquire

2396Hopping, Green & Sams, P.A.

2401Post Office Box 6526

2405Tallaha ssee, Florida 32314 - 6526

2411Francine M. Ffolkes, Esquire

2415Department of Environmental Protection

24193900 Commonwealth Boulevard

2422Mail Station 35

2425Tallahassee, Florida 32399 - 3000

2430Carrol Webb, Executive Director

2434Joint Administrative Procedures Committee

2438120 Holla nd Building

2442Tallahassee, Florida 32399 - 1300

2447Liz Cloud

2449Bureau of Administrative Code

2453The Elliott Building, Room 201

2458Tallahassee, Florida 32399 - 0250

2463NOTICE OF RIGHT TO JUDICIAL REVIEW

2469A party who is adversely affected by this Final Order is

2480entitled t o judicial review pursuant to Section 120.68, Florida

2490Statutes. Review proceedings are governed by the Florida Rules

2499of Appellate Procedure. Such proceedings are commenced by

2507filing the original notice of appeal with the Clerk of the

2518Division of Administ rative Hearings and a copy, accompanied by

2528filing fees prescribed by law, with the District Court of Appeal

2539in the appellate district where the party resides. The notice

2549of appeal must be filed within 30 days of rendition of the order

2562to be reviewed.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/02/2002
Proceedings: Index, Record, Certificate of Record sent out.
Date: 06/26/2002
Proceedings: Received payment for record on appeal filed.
Date: 06/19/2002
Proceedings: Statement of Service Preparation of Record sent out.
Date: 06/18/2002
Proceedings: Index sent out.
PDF:
Date: 05/30/2002
Proceedings: Appellants` Notice of Dismissal of Appeal (filed via facsimile).
PDF:
Date: 05/10/2002
Proceedings: Letter to DOAH from the District Court of Appeal filed. DCA Case No. 2D02-1788
Date: 05/01/2002
Proceedings: Certified Notice of Appeal sent out.
PDF:
Date: 05/01/2002
Proceedings: Notice of Appeal filed by R. Brightman
PDF:
Date: 04/22/2002
Proceedings: DOAH Final Order
PDF:
Date: 04/22/2002
Proceedings: Final Order issued. CASE CLOSED.
PDF:
Date: 04/15/2002
Proceedings: Florida Electric Power Coordinating Group, Inc.`s Response to DEP`s Response to FCG`s Motion for Reconsideration filed.
PDF:
Date: 04/05/2002
Proceedings: Respondent DEP`s Response to FCG`s Motion for Reconsideration of Denial of Attorney`s Fees and Respondent`s Motion for Final Order of Dismissal (filed via facsimile).
PDF:
Date: 03/29/2002
Proceedings: Florida Electric Power Coordinating Group, Inc.`s Response in Opposition of Respondent`s Motion for Dismissal and Motion for Reconsideration of Denial of Attorney`s Fees filed.
PDF:
Date: 03/28/2002
Proceedings: DEP`s Status Report filed.
PDF:
Date: 12/28/2001
Proceedings: Order issued (these cases are abate pending the outcome of the rulemaking process). )
PDF:
Date: 12/27/2001
Proceedings: Notice of Filing, Notice of Proposd Rulemaking published in the Florida Administrative Weekly on December 21, 2001 (filed by Respondent via facsimile).
PDF:
Date: 12/21/2001
Proceedings: Florida Electric Power Coordinating Group, Inc.`s Clarification of Supplemental Authority (filed via facsimile).
PDF:
Date: 12/21/2001
Proceedings: Respondent DEP`s Proposed Final Order (filed via facsimile).
PDF:
Date: 12/19/2001
Proceedings: Order issued (Respondent`s Motion for Leave to File Proposed Final Order is granted).
PDF:
Date: 12/18/2001
Proceedings: Motion for Leave to File Proposed Final Order (filed by Respondent via facsimile).
PDF:
Date: 12/18/2001
Proceedings: DEP`s Response to Petitioner`s Notice of Filing Supplemental Authorities Regarding Award of Attorney`s Fees (filed via facsimile).
PDF:
Date: 12/14/2001
Proceedings: Order issued (Respondent`s unopposed Motion for Leave to File a Response to Petitioner`s supplemental filing is granted).
PDF:
Date: 12/13/2001
Proceedings: Florida Electric Power Coordinating Group, Inc.`s Proposed Summary Final Order filed.
PDF:
Date: 12/13/2001
Proceedings: Florida Electric Power Coordinating Group, Inc.`s Response to the Department`s Motion to Strike (filed via facsimile).
PDF:
Date: 12/13/2001
Proceedings: Notice of Filing (filed by Respondent via facsimile).
PDF:
Date: 12/13/2001
Proceedings: Motion to Strike ECG`s "Notice of Filing of Supplemental Authorities Regarding Award of Attorney`s Fees", or in the Alternative Motion for Leave to File a Response (filed by Respondent via facsimile).
PDF:
Date: 12/12/2001
Proceedings: Notice fo Filing of Florida Electric Power Coordinating Group, Inc.`s Supplemental Authorities Regarding Award of Attorney`s Fees (filed via facsimile).
PDF:
Date: 12/11/2001
Proceedings: Florida Electric Power Corordinating Group, Inc.`s Response to Respondent`s Motion for Final Order of Dismissal (filed via facsimile).
PDF:
Date: 12/10/2001
Proceedings: Notice of Filing (filed by Respondent via facsimile).
PDF:
Date: 12/07/2001
Proceedings: Response to Petitioner`s Motion for Summary Final Order and Respondent`s Motion for Final Order of Dismissal (filed via facsimile).
PDF:
Date: 12/04/2001
Proceedings: Notice of Service of Florida Electric Power Coordinating Group, Inc.`s Responses to Respondent Department of Environmental Protection`s First Set of Interrogatories (filed via facsimile).
PDF:
Date: 11/30/2001
Proceedings: DEP`s Response to Petitioner`s Request for Admissions filed.
PDF:
Date: 11/30/2001
Proceedings: Notice of Service of Florida Electric Power Coordinating Group, Inc.`s Response to Petitioner Department of Environmental Protection`s Request for Production of Documents (filed via facsimile).
PDF:
Date: 11/29/2001
Proceedings: Florida Electric Power Coordinating Group, Inc.`s Motion for Summary Final Order filed.
PDF:
Date: 11/27/2001
Proceedings: Order issued (the parties shall file their responses to outstanding discovery requests by November 30, 2001).
PDF:
Date: 11/21/2001
Proceedings: Unopposed Motion to Shorten Time for Discovery Responses (filed by Respondent via facsimile).
PDF:
Date: 11/16/2001
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 11/16/2001
Proceedings: Notice of Hearing issued (hearing set for December 14, 2001; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 11/14/2001
Proceedings: Department of Environmental Protection`s Request for Production to Petitioner (filed via facsimile).
PDF:
Date: 11/14/2001
Proceedings: Notice and Certificate of Service of DEP`s First Set of Interrogatories to Petitioner (filed via facsimile).
PDF:
Date: 11/14/2001
Proceedings: Stipulation as to Hearing Date (filed by Petitioner via facsimile).
PDF:
Date: 11/09/2001
Proceedings: Florida Electric Power Coordinating Group, Inc.`s Notice of Taking Deposition Duces Tecum, J. Coates, E. Potts filed.
PDF:
Date: 11/07/2001
Proceedings: Florida Electric Power Coordinating Group, Inc.`s Notice fo Substitution of Counsel filed.
PDF:
Date: 11/06/2001
Proceedings: Order (Case: 01-004257RU was added to the consolidated batch).
PDF:
Date: 11/02/2001
Proceedings: Florida Electric Power coordinating Group, Inc.`s Motion to Consolidate (of case nos. 01-4018, 01-4019, 01-4020, 01-4021, 01-4257RU) filed.
PDF:
Date: 11/02/2001
Proceedings: Notice of Service of Florida Electric Power Coordinating Group, Inc.`s Requests for Admission 2 filed.
PDF:
Date: 10/26/2001
Proceedings: Order issued. (consolidated cases are: 01-004018, 01-004019, 01-004020, 01-004021)
PDF:
Date: 10/19/2001
Proceedings: Initial Order issued.
PDF:
Date: 10/17/2001
Proceedings: Notice of Minor Permit Revision filed.
PDF:
Date: 10/17/2001
Proceedings: Petition for Formal Administrative Hearing filed.
PDF:
Date: 10/17/2001
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Judge:
D. R. ALEXANDER
Date Filed:
10/17/2001
Date Assignment:
10/19/2001
Last Docket Entry:
07/02/2002
Location:
Tallahassee, Florida
District:
Northern
Agency:
Department of Environmental Protection
 

Counsels

Related Florida Statute(s) (6):