08-006033RX Friends Of Perdido Bay, Inc., And James Lane vs. Department Of Environmental Protection Status: Closed DOAH Final Order on Thursday, October 1, 2009.

Summary: Petitioners failed to prove that Florida Administrative Code Rule 62-302.300(6) is an invalid exercise of delegated legislative authority.

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

1. 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.

2. 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.

3. Jacqueline Lane and James Lane live on property

adjacent to Perdido Bay.

4. 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

5. 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.

6. 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.

7. 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

8. 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.

9. 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

10. 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.

11. 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

12. 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

13. 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.

14. 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).

15. 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.

16. 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

17. 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

18. 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.

19. 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).

20. 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.

21. 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.

22. 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:

1. 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;

2. 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;

3. There is no present, reasonable,

alternative means of disposing of the waste

other than by discharging it into the waters

of the state;

4. The granting of an operation permit will

be in the public interest ;

5. The discharge will not be unreasonably

destructive to the quality of the receiving

waters; or

6. A water quality credit trade that meets

the requirements of s. 403.067.

(Emphasis added)

23. 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.

24. Another Department rule that is applicable to IP’s

proposed discharge, and that also cites Section 403.088, Florida

Florida Administrative Code Rule 62-4.242(1), entitled,

“Antidegradation Permitting Requirements.”

25. 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:

(a) 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.

(b) 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:

1. 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

2. Whether the proposed discharge will

adversely affect conservation of fish and

wildlife, including endangered or threatened

species, or their habitats; and

3. 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

4. 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)

26. Rule 62-302.300(6) must be read in pari materia with

Rule 62-4.242.

27. 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.

28. 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.

29. 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).

30. 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

[phone]

Fax Filing [phone]

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.