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.
DOAH Final Order on Tuesday, June 2, 2009.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8FRIENDS OF PERDIDO BAY, INC. )
14and JAMES LANE, )
18)
19Petitioners, )
21and )
23)
24JACQUELINE LANE, )
27)
28Intervenor, )
30)
31)
32vs. ) Case No. 09-2446RX
37)
38DEPARTMENT OF ENVIRONMENTAL )
42PROTECTION, )
44)
45Respondent, )
47)
48and )
50)
51INTERNATIONAL PAPER COMPANY, )
55)
56Intervenor. )
58)
59FINAL ORDER OF DISMISSAL
63On May 8, 2009, Petitioners, Friends of Perdido Bay, Inc.,
73and James Lane, filed a Motion for Summary Final Order Regarding
84the Invalidity of Florida Administrative Code Rule
9162-302.800(2). Petitioners claim that Rule 62-302.800(2) is an
99invalid exercise of delegated legislative authority based on the
108grounds for a determination of invalidity set forth in Section
118120.52(8)(b) and (c), Florida Statutes (2008). Intervenor,
125International Paper Company (IP), filed a response in opposition
134to the motion and a cross motion for a final order determining
146that the rule is valid. Respondent, Department of Environmental
155Protection, filed a response in opposition to Petitioners
163motion, a motion for summary final order determining that the
173rule is valid, and separate motions to dismiss Petitioners for
183lack of standing.
186Florida Administrative Code Rule 62-302.800(1) establishes
192procedures for petitioning the Department to adopt one or more
202site specific alternative criteria (SSAC) for a specific water
211body, or portion thereof, if the water body is not meeting the
223default water quality criteria due to natural background
231conditions or man-induced conditions which cannot be controlled
239or abated. Rule 62-302.800(2) establishes similar procedures
246for the adoption of alternative criteria on the basis of site-
257specific reasons other than those set forth in subsection 62-
267302.800(1). A SSAC must be adopted as a rule by the
278Environmental Regulation Commission.
281In order to have standing to challenge a rule, a person
292must demonstrate that he is substantially affected by the rule.
302§ 120.56(3)(a), Fla. Stat. A party may demonstrate standing by
312showing that a rule has a real and immediate effect upon his
324case, as well as by proving injury in fact. Prof. Firefighters
335of Fla., Inc. v. Dept of Health and Rehab. Services , 396 So. 2d
3481194 (Fla. 1st DCA 1981).
353Petitioners claim to be substantially affected by Rule
36162-302.800(2) because it is referred to in the Consent Order
371between IP and the Department that authorizes IP to make
381modifications to the wastewater treatment system and the
389effluent discharge at IPs paper mill in Escambia County. The
399validity of the Consent Order is one of the issues pending in
411consolidated DOAH Case Nos. 08-3922 and 08-3933 (the permit
420cases), involving the same parties. Paragraph 10 of the
429Consent Order states:
432The New Permit and this Consent Order
439require the Respondent [IP] to undertake
445long-term comprehensive monitoring of
449Elevenmile Creek, Perdido Bay, and the
455wetlands to verify the effectiveness of the
462corrective actions, demonstrate compliance
466with New Permit effluent limits, and to
473demonstrate whether Site Specific
477Alternative Criteria (SSAC) should apply
482within the waters of the wetland effluent
489zone. This information may enable the
495Department to adopt SSAC pursuant to Florida
502Administrative Code Rule 62-302.800. If
507approved, the site specific alternative
512criteria would replace the statewide Class
518III default criteria identified in Rule
52462-302.530, F.A.C., that would otherwise
529apply to the wetland effluent zone.
535Paragraph 14(f) of the Consent Order states:
542Within 97 months of the effective date of
550the Consent Order, the Respondent [IP] may
557petition for the establishment of site
563specific alternative water quality criteria
568pursuant to Rule 302.800, F.A.C. Upon an
575affirmative demonstration that such criteria
580meet the requirements of the Rule 62-
587302.800, F.A.C., the Department shall follow
593the procedure described in that rule for the
601adoption of site-specific alternative
605criteria. Any proposed agency action with
611respect to any site specific alternative
617criteria will be subject to review under
624Chapter 120, F.S.
627It is unnecessary to address Petitioners claim of rule
636invalidity, or the cross claims of rule validity, because
645Petitioners are not substantially affected by Rule
65262-302.800(2). Petitioners factual allegations, found
657sufficient to establish Petitioners standing in the permit
665cases, are not sufficient for standing to challenge the rule
675unless the rule affects the validity of the proposed permit and
686Consent Order. It is concluded that the challenged rule does
696not affect the validity of the proposed permit and Consent
706Order.
707The Consent Order does not authorize a SSAC pursuant to
717Rule 62-302.800(2), and does not require IP to petition for a
728SSAC. IP may never petition for a SSAC pursuant to the
739challenged rule. The Department is not relying on Rule
74862-302.800(2) to authorize IPs discharge into the wetland
756adjacent to the paper mill.
761The Consent Order also refers (in Paragraph 14(g)) to IPs
771ability in the future to seek to obtain a variance or waiver,
783but the rules authorizing variances and waivers likewise do not
793affect the validity of the Consent Order and proposed permit.
803These moderating provisions would be available to IP even if
813they had not been mentioned in the Consent Order. Until a SSAC,
825variance, or waiver is sought by IP, the rules which allow
836SSACs, variances, and waivers do not affect Petitioners.
844Petitioners point out that the Department made a statement
853in the permit cases that reasonable assurance that
861International Paper will achieve compliance with all applicable
869standards is provided in part by the ability of International
879Paper to address site-specific conditions within the receiving
887wetland under Rule 62-302.800. However, the Department has
895retreated from that statement and moved for dismissal of the
905rule challenge for lack of standing on the ground that
915Petitioners claim of injury is hypothetical, conjectural, or
923speculative, rather than real and immediate.
929Although Petitioners are justifiably frustrated with the
936Departments changes of position, the posture of the permit
945cases is now equivalent to the outcome of a successful rule
956challenge - - the Department and IP cannot rely on Rule
96762-302.800(2) to demonstrate the validity of the Consent Order
976and proposed permit.
979Rule 62-302.800(2) does not cause or threaten a real and
989immediate effect on Case Nos. 08-3922 and 08-3923, or other
999injury to Petitioners. Petitioners claim of injury is
1007speculative and remote. Petitioners are not substantially
1014affected by the rule and, therefore, lack standing to challenge
1024the rule.
1026Accordingly, it is
1029ORDERED that
10311. Petitioners motion for summary final order is denied.
10402. IPs motion cross motion for final order is denied.
10503. The Departments motion for summary final order
1058denied.
10594. The Departments motions to dismiss are granted.
1067DONE AND ORDERED this 2nd day of June, 2009, in
1077Tallahassee, Leon County, Florida.
1081BRAM D. E. CANTER
1085Administrative Law Judge
1088Division of Administrative Hearings
1092The DeSoto Building
10951230 Apalachee Parkway
1098Tallahassee, Florida 32399-3060
1101(850) 488-9675
1103Fax Filing (850) 921-6847
1107www.doah.state.fl.us
1108Filed with the Clerk of the
1114Division of Administrative Hearings
1118this 2nd day of June, 2009.
1124COPIES FURNISHED:
1126Terry Cole, Esquire
1129Oertel, Fernandez, Cole & Bryant, P.A.
1135301 South Bronough Street, Fifth Floor
1141Post Office Box 1110
1145Tallahassee, Florida 32302-1110
1148Marcy I. LaHart, Esquire
1152Marcy I. LaHart, P.A.
1156711 Talladega Street
1159West Palm Beach, Florida 33405-1443
1164W. Douglas Beason, Esquire
1168Department of Environmental Protection
1172The Douglas Building, Mail Station 35
11783900 Commonwealth Boulevard
1181Tallahassee, Florida 32399-3000
1184Jacqueline M. Lane
118710738 Lillian Highway
1190Pensacola, Florida 32506
1193Michael W. Sole, Secretary
1197Department of Environmental Protection
1201The Douglas Building, Mail Station 35
12073900 Commonwealth Boulevard
1210Tallahassee, Florida 32399-3000
1213Tom Beason, General Counsel
1217Department of Environmental Protection
1221The Douglas Building, Mail Station 35
12273900 Commonwealth Boulevard
1230Tallahassee, Florida 32399-3000
1233Lea Crandall, Agency Clerk
1237Department of Environmental Protection
1241The Douglas Building, Mail Station 35
12473900 Commonwealth Boulevard
1250Tallahassee, Florida 32399-3000
1253Scott Boyd, Executive Director
1257and General Counsel
1260Administrative Procedures Committee
1263Holland Building, Room 120
1267Tallahassee, Florida 32399-1300
1270NOTICE OF RIGHT TO JUDICIAL REVIEW
1276A party who is adversely affected by this Final Order is entitled
1288to judicial review pursuant to Section 120.68, Florida Statutes.
1297Review proceedings are governed by the Florida Rules of Appellate
1307Procedure. Such proceedings are commenced by filing the original
1316Notice of Appeal with the agency clerk of the Division of
1327Administrative Hearings and a copy, accompanied by filing fees
1336prescribed by law, with the District Court of Appeal, First
1346District, or with the District Court of Appeal in the Appellate
1357District where the party resides. The notice of appeal must be
1368filed within 30 days of rendition of the order to be reviewed.
- Date
- Proceedings
- PDF:
- Date: 06/01/2009
- Proceedings: Department of Environmental Protection's Corrected Request for Official Recognition filed.
- PDF:
- Date: 06/01/2009
- Proceedings: Friends of Perdido Bay, Inc. and James Lane`s Response to International Paper's Motion to Dismiss Amended Petitions and in the Alternative to Exclude Evidence filed.
- PDF:
- Date: 05/29/2009
- Proceedings: Department of Environmental Protection's Request for Official Recognition filed.
- PDF:
- Date: 05/29/2009
- Proceedings: Department of Environmental Protection's Request for Official Recognition filed.
- Date: 05/28/2009
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 05/28/2009
- Proceedings: Petitioner James Lane's Response to DEP's Motyion [sic] to Dismis [sic] for Lack of Standing filed.
- PDF:
- Date: 05/28/2009
- Proceedings: Petitioner Freinds [sic] of Perdido Bay's Response to DEP's Motion to Dismiss for Lack of Standing filed.
- PDF:
- Date: 05/27/2009
- Proceedings: Department of Environmental Protection's Response to Petitioners' Motion for Leave to File a Reply to Department of Environmental Protection's Response in Opposition to Petitioners' Motion for Summary Final Order regarding Invalidity of Rule 62-302.800(2), F.A.C. filed.
- PDF:
- Date: 05/27/2009
- Proceedings: Petitioner's Response to Department of Environmental Protection's Motion for Summary Final Order Regarding Invalidity of Rule 62-302.800(2), F.A.C., filed.
- PDF:
- Date: 05/26/2009
- Proceedings: Notice of Service of Department of Environmental Protection's Answers to Petitioners' First Set of Interrogatories filed.
- PDF:
- Date: 05/26/2009
- Proceedings: Order (parties to confer and inform undersigned's assistant, Melissa Young, no later than May 28, 2009, of several dates and times when parties are available for a telephone conference to hear oral argument on motions to dismiss).
- PDF:
- Date: 05/22/2009
- Proceedings: Department of Environmental Protection's Motion to Dismiss Petitioner Friends of Perdido Bay for Lack of Standing filed.
- PDF:
- Date: 05/22/2009
- Proceedings: Department of Environmental Protection's Motion to Dismiss Petitioner James Lane for Lack of Standing filed.
- PDF:
- Date: 05/22/2009
- Proceedings: Florida Department of Environmental Protection's Motion for Summary Final Order (with Affidavit) filed.
- PDF:
- Date: 05/22/2009
- Proceedings: Petitioners' Motion for Leave to File a Reply to Department of Environmental Protection's Response in Opposition to Petitioners' Motion for Summary Final Order regarding Invalidity of Rule 62-302.800(2), F.A.C. filed.
- PDF:
- Date: 05/22/2009
- Proceedings: Petitioner's Reply to Department of Environmental Protection's Response in Opposition to Petitioner's Motion for Summary Final Order regarding Invalidity of Rule 62-302.800(2). F.A.C. filed.
- PDF:
- Date: 05/19/2009
- Proceedings: International Paper Company's Response in Opposition to Motion for Final Order and Cross-motion for Final Order filed.
- PDF:
- Date: 05/19/2009
- Proceedings: Department of Environmental Protection's Response in Opposition to Petitioners' Motion for Summary Final Order regarding Invalidity of Rule 62-302.800(2), F.A.C. filed.
- PDF:
- Date: 05/18/2009
- Proceedings: Petitioners Friends of Perdido Bay and James Lane`s Notice of Serving of Interrogatories upon Respondent Florida Department of Environmental Protection filed.
- PDF:
- Date: 05/18/2009
- Proceedings: Petitioners Firends of Perdido Bay and James Lane`s Notice of Serving of Interrogatories Upon Respondent Florida Department of Environmental Protection filed.
- PDF:
- Date: 05/14/2009
- Proceedings: Notice of Hearing (hearing set for June 9, 2009; 9:00 a.m.; Tallahassee, FL).
- PDF:
- Date: 05/11/2009
- Proceedings: Rule Challenge transmittal letter to Liz Cloud from Claudia Llado copying Scott Boyd and the Agency General Counsel.
Case Information
- Judge:
- BRAM D. E. CANTER
- Date Filed:
- 05/11/2009
- Date Assignment:
- 05/11/2009
- Last Docket Entry:
- 06/02/2009
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- Department of Environmental Protection
- Suffix:
- RX
Counsels
-
W. Douglas Beason, Esquire
Address of Record -
Terry Cole, Esquire
Address of Record -
Stacey D. Cowley, Esquire
Address of Record -
Marcy I. LaHart, Esquire
Address of Record -
Jacqueline M. Lane
Address of Record -
Stacey D Cowley, Esquire
Address of Record -
Marcy LaHart, Esquire
Address of Record