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.


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

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

223“default” 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. Dep’t 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 IP’s 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 IP’s discharge into the wetland

756adjacent to the paper mill.

761The Consent Order also refers (in Paragraph 14(g)) to IP’s

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

936Department’s 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. IP’s motion cross motion for final order is denied.

10503. The Department’s motion for summary final order

1058denied.

10594. The Department’s 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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 06/02/2009
Proceedings: DOAH Final Order
PDF:
Date: 06/02/2009
Proceedings: Final Order of Dismissal. CASE CLOSED.
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: Order (leave to file the reply is granted).
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 (granting Motion to Intervene filed by Jacqueline Lane).
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: Notice of Appearance (filed by S. Cowley).
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: 05/21/2009
Proceedings: Order Granting Petition to Intervene (International Paper).
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: 05/15/2009
Proceedings: International Paper Company`s Petition to Intervene filed.
PDF:
Date: 05/14/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 05/14/2009
Proceedings: Notice of Hearing (hearing set for June 9, 2009; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 05/13/2009
Proceedings: Motion to Intervene (of Jacqueline Lane) filed.
PDF:
Date: 05/11/2009
Proceedings: Order of Assignment.
PDF:
Date: 05/11/2009
Proceedings: Rule Challenge transmittal letter to Liz Cloud from Claudia Llado copying Scott Boyd and the Agency General Counsel.
PDF:
Date: 05/08/2009
Proceedings: Affidavit of James Lane filed.
PDF:
Date: 05/08/2009
Proceedings: Motion for Summary Final Order Regarding Invalidity of Rule 62-302.800(2), F.A.C. filed.
PDF:
Date: 05/08/2009
Proceedings: Petition to Determine Invalidity of Administrative Rule filed.

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

Related DOAH Cases(s) (1):

Related Florida Statute(s) (3):

Related Florida Rule(s) (2):