09-002446RX Friends Of Perdido Bay, Inc. And James Lane vs. Department Of Environmental Protection Status: Closed DOAH Final Order on Tuesday, June 2, 2009.

Summary: The rule challenge is dismissed because Petitioenrs are not substantially affected by the rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRIENDS OF PERDIDO BAY, INC. )

and JAMES LANE, )

)

Petitioners, )

and )

)

JACQUELINE LANE, )

)

Intervenor, )

)

)

vs. ) Case No. 09-2446RX

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent, )

)

and )

)

INTERNATIONAL PAPER COMPANY, )

)

Intervenor. )

)

FINAL ORDER OF DISMISSAL

On May 8, 2009, Petitioners, Friends of Perdido Bay, Inc.,

and James Lane, filed a Motion for Summary Final Order Regarding

the Invalidity of Florida Administrative Code Rule

62-302.800(2). Petitioners claim that Rule 62-302.800(2) is an

invalid exercise of delegated legislative authority based on the

grounds for a determination of invalidity set forth in Section

120.52(8)(b) and (c), Florida Statutes (2008). Intervenor,

International Paper Company (IP), filed a response in opposition

to the motion and a cross motion for a final order determining

that the rule is valid. Respondent, Department of Environmental

Protection, filed a response in opposition to Petitioners’

motion, a motion for summary final order determining that the

rule is valid, and separate motions to dismiss Petitioners for

lack of standing.

Florida Administrative Code Rule 62-302.800(1) establishes

procedures for petitioning the Department to adopt one or more

site specific alternative criteria (SSAC) for a specific water

body, or portion thereof, if the water body is not meeting the

“default” water quality criteria “due to natural background

conditions or man-induced conditions which cannot be controlled

or abated.” Rule 62-302.800(2) establishes similar procedures

for the adoption of alternative criteria “on the basis of site-

specific reasons other than those set forth in subsection 62-

302.800(1).” A SSAC must be adopted as a rule by the

Environmental Regulation Commission.

In order to have standing to challenge a rule, a person

must demonstrate that he is substantially affected by the rule.

§ 120.56(3)(a), Fla. Stat. A party may demonstrate standing by

showing that a rule has a real and immediate effect upon his

case, as well as by proving injury in fact. Prof. Firefighters

of Fla., Inc. v. Dep’t of Health and Rehab. Services , 396 So. 2d

1194 (Fla. 1st DCA 1981).

Petitioners claim to be substantially affected by Rule

62-302.800(2) because it is referred to in the Consent Order

between IP and the Department that authorizes IP to make

modifications to the wastewater treatment system and the

effluent discharge at IP’s paper mill in Escambia County. The

validity of the Consent Order is one of the issues pending in

consolidated DOAH Case Nos. 08-3922 and 08-3933 (“the permit

cases”), involving the same parties. Paragraph 10 of the

Consent Order states:

The New Permit and this Consent Order

require the Respondent [IP] to undertake

long-term comprehensive monitoring of

Elevenmile Creek, Perdido Bay, and the

wetlands to verify the effectiveness of the

corrective actions, demonstrate compliance

with New Permit effluent limits, and to

demonstrate whether Site Specific

Alternative Criteria (“SSAC”) should apply

within the waters of the wetland effluent

zone. This information may enable the

Department to adopt SSAC pursuant to Florida

Administrative Code Rule 62-302.800. If

approved, the site specific alternative

criteria would replace the statewide Class

III default criteria identified in Rule

62-302.530, F.A.C., that would otherwise

apply to the wetland effluent zone.

Paragraph 14(f) of the Consent Order states:

Within 97 months of the effective date of

the Consent Order, the Respondent [IP] may

petition for the establishment of site

specific alternative water quality criteria

pursuant to Rule 302.800, F.A.C. Upon an

affirmative demonstration that such criteria

meet the requirements of the Rule 62-

302.800, F.A.C., the Department shall follow

the procedure described in that rule for the

adoption of site-specific alternative

criteria. Any proposed agency action with

respect to any site specific alternative

criteria will be subject to review under

Chapter 120, F.S.

It is unnecessary to address Petitioners’ claim of rule

invalidity, or the cross claims of rule validity, because

Petitioners are not substantially affected by Rule

62-302.800(2). Petitioners’ factual allegations, found

sufficient to establish Petitioners’ standing in the permit

cases, are not sufficient for standing to challenge the rule

unless the rule affects the validity of the proposed permit and

Consent Order. It is concluded that the challenged rule does

not affect the validity of the proposed permit and Consent

Order.

The Consent Order does not authorize a SSAC pursuant to

Rule 62-302.800(2), and does not require IP to petition for a

SSAC. IP may never petition for a SSAC pursuant to the

challenged rule. The Department is not relying on Rule

62-302.800(2) to authorize IP’s discharge into the wetland

adjacent to the paper mill.

The Consent Order also refers (in Paragraph 14(g)) to IP’s

ability in the future to seek to obtain a variance or waiver,

but the rules authorizing variances and waivers likewise do not

affect the validity of the Consent Order and proposed permit.

These “moderating provisions” would be available to IP even if

they had not been mentioned in the Consent Order. Until a SSAC,

variance, or waiver is sought by IP, the rules which allow

SSACs, variances, and waivers do not affect Petitioners.

Petitioners point out that the Department made a statement

in the permit cases that “reasonable assurance that

International Paper will achieve compliance with all applicable

standards” is provided in part by the “ability of International

Paper to address site-specific conditions within the receiving

wetland under Rule 62-302.800.” However, the Department has

retreated from that statement and moved for dismissal of the

rule challenge for lack of standing on the ground that

Petitioners’ claim of injury is “hypothetical, conjectural, or

speculative, rather than real and immediate.”

Although Petitioners are justifiably frustrated with the

Department’s changes of position, the posture of the permit

cases is now equivalent to the outcome of a successful rule

challenge - - the Department and IP cannot rely on Rule

62-302.800(2) to demonstrate the validity of the Consent Order

and proposed permit.

Rule 62-302.800(2) does not cause or threaten a real and

immediate effect on Case Nos. 08-3922 and 08-3923, or other

injury to Petitioners. Petitioners’ claim of injury is

speculative and remote. Petitioners are not substantially

affected by the rule and, therefore, lack standing to challenge

the rule.

Accordingly, it is

ORDERED that

1. Petitioners’ motion for summary final order is denied.

2. IP’s motion cross motion for final order is denied.

3. The Department’s motion for summary final order

denied.

4. The Department’s motions to dismiss are granted.

DONE AND ORDERED this 2nd day of June, 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 2nd day of June, 2009.

COPIES FURNISHED:

Terry Cole, Esquire

Oertel, Fernandez, Cole & Bryant, P.A.

301 South Bronough Street, Fifth Floor

Post Office Box 1110

Tallahassee, Florida 32302-1110

Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

711 Talladega Street

West Palm Beach, Florida 33405-1443

W. Douglas Beason, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Jacqueline M. Lane

10738 Lillian Highway

Pensacola, Florida 32506

Michael W. Sole, Secretary

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

Lea Crandall, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Scott Boyd, Executive Director

and General Counsel

Administrative Procedures Committee

Holland Building, Room 120

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.