10-003807 Conservation Alliance Of St. Lucie County, Inc., And Treasure Coast Environmental Defense Fund, Inc., A/K/A Indian Riverkeeper, Inc. vs. Allied Universal Corporation, Chem-Tex Supply Corporation And Department Of Environmental Protection Status: Closed Recommended Order on Friday, May 24, 2013.

Summary: Petitioners failed to prove that they had standing under s. 120.569 and, since section 403.412(6) is not applicable to enforcement proceedings, and failed to prove that they had standing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

C ONSERVATION ALLIANCE OF )

ST. LUCIE COUNTY, INC., and )

TREASURE COAST ENVIRONMENTAL )

DEFENSE FUND, INC., a/k/a )

INDIAN RIVERKEEPER, INC. ) Case No. 10 - 3807

)

Petitioners, )

)

vs. )

)

ALLIED UNIVERSAL CORPORATION, )

CHEM - TEX SUPPLY CORPORATION and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION , )

)

Respondents , )

)

)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, a hearing was held in this case on

J anuary 23, 2013 , in Fort Pierce , Florida, before E. Gary Early,

the Administrative Law Judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioners: Robert N. Hartsel l , Esquire

Megan Renea Hodson , Esquire

Robert N. Hartsell, P.A.

Federal Tower Office Building, Suite 921

1600 South Federal Highway

Pompano Beac h , Florida 33 062

For Respondent Allied Universal Corporation:

Daniel K. Bandklayder, Esquire

Daniel K. Bandklayder, P.A.

9350 South Dixie Highway

Miami, Florida 33156

For Respondent Chem - Tex Supply Corporation :

C. Anthony Cleveland , Esquire

Timothy Atkinson, Esquire

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

Post Office Box 1110

Tallahassee, Florida 32302

For Respondent Department of Environmental Protection :

W. Douglas Beason, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue to be determined by this Recommended Order of

Dismissal is whether the Petitioners have standing to challenge

a S ettlement A greement in OGC File No. 07 - 0177 (the Settlement

Agreement) , entered into by the Department of Environmental

Protection (DEP) and Respondents, Allied Universal Corporation

(Allied) and Chem - Tex Supply Corporation (Chem - Tex) , for the

assessment and remediation of cont amination at a bl each -

manufacturing and chlorine - repackaging facility in St. Lucie

County .

PRELIMINARY STATEMENT

This case arose as a result of an enforcement action taken

by the DEP in response to contamination of s oil and groundwater

at a bleach - manufacturing and chlorine - repackaging facility (the

Facility) owned and operated by Respondents. The enforcement

action culminated in the negotiation and entry of the Settlement

Agreement that called for, among other things, the performance

of rem edial measures and payment of a monetary penalty by

Respondents. The Settlement Agreement was executed by the DEP

and Respondents on June 21, 2010. As required by the Settlement

Agreement, n otice was published in the St. Lucie News Tribune on

June 28, 2010.

On August 12, 2010 , Petitioners, Conservation Alliance of

St. Lucie County, Inc. ( C onservation Alliance) and Treasure

Coast Environmental Defense Fund, Inc., a/k/a Indian

Riverkeeper, Inc. (Indian Riverkeeper) , electronically filed

their Petition for Formal Administrative Proc eedings (Petition)

with the DEP. 1/ On August 27, 2010, the Petition was forwarded

to the Division of Administrative Hearings.

The proceeding was held in abeyance for a lengthy period as

issues related to the disqualification of various lawyers and

law firms were resolved. The procedural history leading to the

assignment of th is case to the undersigned and its return to

active status may be determined by reviewing the docket.

On November 19, 2012, a telephonic pre - hearing conference

was held, during which the parties and the undersigned agreed

that a preliminary bifurcated hearing on the standing of the

Petitioners would allow for a more efficient utilization of

effort, with th ere being no need for a hearing on the merits if

it was determined that Petitioners lacked standing. A hearing

to address those issues was scheduled for January 23, 2013, in

Fort Pierce, Florida.

On January 21, 2013, the parties filed their Prehearing

St ipulations. Stipulations of fact have been incorporated

herein.

The preliminary hearing was held on January 23, 2013, as

scheduled . At the preliminary hearing, the parties submitted

Joint Exhibits 6 and 7 , which were received in evidence .

Petitioners called as witnesses Anthony Brady, president of

the C onservation Alliance; Kevin Stin n ette, 2 / a member of the

Board of Directors of the Conservation Alliance and an officer

and member of the Board of Directors of Indian Riverkeeper ;

George Jone s, a member of Indian Riverkeeper ; and Elaine Tronick

Souza, formerly known as Elaine Romano , a member of the

Conservation Alliance . PetitionersÓ Exhibits 1 - 4, 18, 23 - 26,

and 37 were r eceived in evidence.

Allied and Chem - Tex called as their witness , Dr. Robert

Maliva , who was accepted as an expert in hydrogeology,

sedimentary geology, and underground injection control (UIC)

operations . Respondent s did not move any exhibits into

evidence.

The D EP did not call any witnesses or move any exhibits

into evidence.

Official recognition was taken of the Petition for Formal

Administrative Proceedings.

The three - volume Transcript was filed on February 20, 2013.

After two unopposed extensions of time for filing post - hearing

submittals were requested and granted, t he parties filed their

p roposed o rders, which have been considered in the preparation

of this Recommended Order of Dismissal .

FINDINGS OF FACT

The Parties

1. The Conservation Alliance is a Florida , not - for - profit

corporation in good standing, incorporated in 1985, with its

corporate offices currently located at 5608 Eagle Drive, Fort

Pierce, Florida . It has approximately 200 members , at least 100

of which reside in St. Lucie County. The Conservation Alliance

was formed to Ðprotect the water, soil, air, native flora and

fauna, upon which all the earthÓs creatures depend for

survival.Ñ

2. Indian Riverkeeper is a Florida , not - for - pr ofit

corporation in good standing, incorporated in 1999, with its

corporate office s currently located at 1182 S outheast Mendavia

Avenue, Port St. Lucie, Florida. It has approximately 150

members. The parties agreed, by stipulation, that Indian

Riverkeeper has 25 or more members that live in St. Lucie

County. Indian Riverkeeper was formed Ðto enforce local, state

and federal environmental laws through citizen suits, [and]

scientific and educational programs to increase awareness of

citizensÓ standing to compel government to enforce laws to

protect the environment.Ñ

3 . The D EP i s an agency of the State of Florida having

jurisdiction to control and prohibit pollution of air and water ,

pursuant to c hapter s 376 and 403, Florida Statutes , and the

rules promulgated thereunder . Pursuant to that authority, the

DEP took the enforcement action that culminated in the entry of

the Settlement Agreement that is the subject of this proceeding.

4 . Allied owns and operates the Facility, and is

responsible for the remediation of contamination resulting from

activities at the Facility.

5 . Ch em - Tex owns the real property on which the Facility

is located.

Entry of the Settlement Agreement

6 . On June 21, 2010 , the DEP , Allied, and Chem - Tex entered

into the Settlement Agreement that is the subject of this

proceeding. The Settlement Agreement required Allied and Chem -

Tex to pay a monetary penalty to the DEP , and to identify,

prevent, and remediate contamination on the Facility.

7 . The Settlement Agreement required publication of a

notice of the Settlement Agreement , which provided that pers ons

whose substantial interests are or will be a ffected could,

within 45 days of the date of publication, petition for a

hearing to challenge the proposed Settlement Agreement. The

notice was published on June 28, 2010. Thus, the last date for

filing a t imely petition was August 12, 2010.

8 . On August 12, 2010, Petitioners electronically filed

their Petition with the DEP.

Allegations of Standing

9 . Petitioners alleged standing to challenge the

Settlement Agreement based on the following, as set forth in the

Petition:

a. The Conservation Alliance is a conservation group

based in F ort Pierce, Florida, organized for the purpose of

protection of the StateÓs natural resources, including drinking

water, and the rivers and other waters in St. Lucie C ounty.

b. Indian Riverkeeper is a citizenÓs group, organized

for the purpose of protecting and restoring the StateÓs natural

resources within St. Lucie County.

c. Members of both the Conservation Alliance and

Indian Riverkeeper own real property with in St. Lucie County.

d . Substantial amounts of hazardous waste have

contaminated the Facility , which has caused significant

environmental harm to the groundwater underlying the site and

resulted in off - site surface water discharges.

e . Contamination is spreading to adjacent properties

which pump groundwater for potable water supply and agricultural

irrigation purposes.

f . St. Lucie County has proposed a major drinking

water wellfield within one - quarter mile of the Facility, which

use is endangered by the existing groundwater contamination.

g . Petitioners have a substantial interest in

ensuring that Allied and Chem - Tex comply with requirements

established by the Resource Conservation and Recovery Act.

h . The DEP has executed a Settlement Agreem ent that

will become valid and destroy the DEPÓs right to seek additional

penalties and enforcement relating to AlliedÓs violations.

i . AlliedÓs past violations have created substantial

plumes of contaminants in the groundwater system underlying its

pro perty , which if not remediated may migrate off - site and

contaminate deeper zones of the surficial aquifer system.

Standing -- Effects of Contamination

10 . Petitioners alleged that deficiencies in the

Settlement Agreement may affect their substantial interests due

to the effects of the contamination on the interests of their

members , who use the potable water and other resources affected

by the contamination .

11 . The only testimony offered at the hearing as to the

use of the lands in th e vicinity of the Facility was offered by

Anthony Brady, the current president of the Conservation

Alliance, who knew of no members of the Conservation Alliance

that used any lands within five miles of the Facility. There

was no testimony or other evidenc e offered regarding the use of

lands in the vicinity of the Facility by any member of Indian

Riverkeeper.

12 . As to the allegations that deficiencies in the

Settlement Agreement would affect Ð potable water and irrigation

wells located in the immediate v icinity of the facility,Ñ there

was no evidence that any member of the Conservation Alliance or

Indian Riverkeeper received service from those wells.

13 . Mr. Brady and Elaine Souza receive water service from

unidentified public water supply sources in St. Lucie County .

Ke vin Stinnette receive s water from a source other than the Fort

Pierce Utilities Authority . There was no allegation or evidence

that the sources of their water were threatened by the

contamin ation -- regardless of whether any such threat could be

proven on the merits.

14 . T here was no competent, substantial, non - hearsay

evidence as to a particular source of pot able water for any

member of either the C onservation Alliance or Indian Riverkee per

that would Ðconnect the dotsÑ between the general allegations of

groundwater contamination at the Facility, and the potable water

supply of any member . For example, Petitioners alleged that

their members own property in St. Lucie County, and that

c ontamination is spreading from the Facility to adjacent

properties which pump groundwater for potable water supply and

agricultural irrigation purposes and, that if not remediated,

such contamination may impact deeper zones of the surficial

aquifer system and affect potable water and irrigation wells in

the vicinity of the Facility. However, Petitioners utterly

failed to prove that any of their members use, own, or have any

interest in the adjacent properties that are in jeopardy of

being contaminated, or that they are served by any of the

potable water or irrigation wells alleged to be threatened by

the contamination.

15 . The undersigned -- having accepted the allegations in

the Petition of adverse effects of the contamination at the

Facility and the de ficiencies of the Settlement Agreement,

having accepted and applied the testimony and evidence taken at

the hearing, and without going to the merits of the Settlement

Agreement -- is unable to find , based on the record of this

proceeding , that PetitionersÓ substantial rights could be

affected by the Settlement Agreement. Thus, Petitioners failed

to produce the quantum of admissible, non - hearsay evidence

necessary to demonstrate that they or their members will suffer

an injury in fact which is of sufficient immediacy to entitle

them to a hearing to challenge the Settlement Agreement.

Standing -- Effects on Recreational Use

16 . In addition to the foregoing, Petitione rs assert in

their Proposed Recommended Order that Ð[a] substantial number of

[their] members use, recreate , and protect the waters of

St. Lucie County , Ñ and that those members could be adversely

affected by exposure to contamination due to the proximity o f

the Facility Ðto nearby navigable water bodies, fisheries,

rivers and streams from which Conservation Alliance and Indian

Riverkeeper members are provided with potable water and

recreation.Ñ

17 . The Conservation Alliance holds an Annual ÐParty in

the ParkÑ at the Fort Pierce Inlet State Park, and has monthly

meetings at the Savannas State Preserve Education Center. There

was no allegation or evidence as to how either of those

locations were or could be affected by contamination from the

Facility or by the Settlement Agreement.

18 . Indian Riverkeeper holds an annual ÐMullet Run

Festival Ñ in Fort Pierce, and Ðother quarterly events that are

sort of like our meetingsÑ at locations in Fort Pierce and

Jensen Beach, Florida. The venues for the Indian Riverkeeper

events, beyond the cities in which they were held, were not

identified. There wa s no allegation or evidence as to how those

particular locations were or could be affected by contamination

from the Facility or by the Settlement Agreement.

19 . Mr. Brady understood that one of PetitionersÓ member s,

George Jones, fishe s in the C - 24 cana l . Mr. Brady h a s not

personally fished in the C - 2 4 canal for 25 years. Mr. Brady

otherwise provided no evidence of the extent to which he or any

members of the Conservation Alliance used or enjoyed the waters

in or around St. Lucie County.

20 . Mr. Sti n nette has recreated in various water bodies

that are tributaries of the Indian River Lagoon system. He

indicated that he had engaged in recreational activities in and

on the waters of St. Lucie County with ÐdozensÑ of people over

the past 16 years, some o f wh om were members of the Conservation

Alliance or Indian Riverkeeper . There was no evidence offered

as to how many of those persons were members of either of the

Petitioners , as opposed to friends that have visited his house

to fish off of the dock, or whether they were current members

during the period relevant to this proceeding .

21 . Mr. Stinnette testified that the previously mentioned

Mr. Jones told him that he kayaked in the waters of St. Lucie

County . However, as to the recreational activities of other

Conservation Alliance members , Mr. Stinnette testified that ÐI

don't know, I don't keep up with their day - to - day activities to

that extent.Ñ

22 . Although Mr. Jones testified at the hearing, he

provided no information as to the nature or extent of his

recreational uses of the waters of St. Lucie County. The only

evidence of Mr. JonesÓ recreational use of the waters of

St. Lucie County is the hearsay testimony of Mr. Brady and

Mr. Stinnette, which is not sufficient to support a finding of

fact as to Mr. JonesÓ use .

23 . T he only finding that can be made as to the

recreational use of the waters of St. Lucie County by current

members of the Conservation Alliance and Indian Riverkeeper is

limited to a single member, Mr. Stinnette , who is a member of

both organizations . Based thereon, Petitioners failed to prove

that a substantial number of their members make any recreational

or other use of the waters of St. Lucie County. Thus,

Petitioners failed to produce the quantum of admissible, non -

hearsay evidence necessary to demonstrate that they or their

members will suffer an injury in fact to their substantial

rights of use, recreation, and protection of the waters of

St. Lucie County which is of sufficient immediacy to enti tle

them to a hearing to challenge the Settlement Agreement.

Standing -- Other Issues

24 . Petitioners, and primarily Indian Riverkeeper, allege

that their substantial interests are affected by the inadequacy

of the penalty assessed in the Settlement Agreement, and by

the purported preclusion of their right to Ðbring[] a citizen

suit against Allied and Chem - Tex for their chemical spills . . .

for violation of the Clean Water Act if it were not for the

settlement negotiations taking place between Alli ed and the

FDEP.Ñ

25 . As to the issue of the inadequacy of the monetary

penalty, the undersigned finds that the penalt y to be assessed

and paid by Respondents to the DEP has no effect on the

substantial interests of Petitioners or their members. In that

regard, the economic component of the Settlement Agreement does

not result in any of PetitionerÓs members being exposed to

contaminants, or in any restriction on their recreational or

other uses of the lands or waters of St. Lucie County.

Therefore, the penalty amount does not result in an injury in

fact which is of sufficient immediacy to entitle Petitioners to

a section 120.57 hearing. Cf. Dillard & Assocs. Consulting

Eng'rs v. Fla. Dep't of Envtl. Prot. , 893 So. 2d 702 (Fla. 1st

DCA 2005) (finding no standing on the part of a DOT contractor

to challenge an administrative penalty levied by the DEP against

DOT, even when the penalty may, at some time in the future, be

assessed against the contractor).

26 . As to the injury resulting from the alleged

restriction on PetitionersÓ rights to bring a federal lawsuit

under the Clean Water Act, there was no evidence of any current

intent on the part of Petitioners to bring such a lawsuit, nor

was there any evidence, beyond the bare assertion, of any such

rest riction or preclusion on bringing a suit. Thus, Petitioners

failed to prove any injury in fact which is of sufficient

immediacy to entitle Petitioners to a section 120.57 hearing.

Furthermore, the effect of agency action on the ability of a

person to brin g an independent action in another forum is not an

injury of the type or nature that this proceeding is designed to

protect.

CONCLUSIONS OF LAW

Jurisdiction

27 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat.

Burden of Proof

28 . As the persons asserting party status, Petitioners

have the burden of demonstrating the requisite standing to

initiate and maintain this proceeding. Palm Beach Cnt y. Envtl.

Coal. v. Fla. Dep't of Envtl. Prot. , 14 So. 3d 1076, 1078 (Fla.

4th DCA 2009); Agrico Chem. Co. v. Dep't of Envtl. Reg. , 406 So.

2d 478, 482 (Fla. 2nd DCA 1981).

Standard

29 . Section 120.569(1), provides, in pertinent part, that

Ð[t]he provisio ns of this section apply in all proceedings in

which the substantial interests of a party are determined by an

agency.Ñ

30 . Standing to challenge agency action is generally

determined by application of the two - pronged test for standing

in formal administ rative proceedings established in the seminal

case of Agrico Chemical Corporation v. Department of

Environmental Reg ulation , 406 So. 2d 478 (Fla. 2d DCA 1981). In

that case, the Court held that:

We believe that before one can be considered

to have a subst antial interest in the

outcome of the proceeding, he must show

1) that he will suffer an injury in fact

which is of sufficient immediacy to entitle

him to a section 120.57 hearing and 2) that

his substantial injury is of a type or

nature which the proceedi ng is designed to

protect. The first aspect of the test deals

with the degree of injury. The second deals

with the nature of the injury.

Id. at 482.

31 . Agrico was not intended as a barrier to the

participation in proceedings under chapter 120 by persons who

are affected by the potential and foreseeable results of agency

action. Rather, Ð[t]he intent of Agrico was to preclude parties

from intervening in a proce eding where those parties'

substantial interests are totally unrelated to the issues that

are to be resolved in the administrative proceedings. Ñ Mid -

Chattahoochee River Users v. Fla. Dep't of Envtl. Prot. , 948 So.

2d 794, 797 (Fla. 1st DCA 2006)(citing Gr egory v. Indian River

Cnty. , 610 So. 2d 547, 554 (Fla. 1st DCA 1992)).

32 . The standing requirement established by Agrico has

been refined, and now stands for the proposition that standing

to initiate an administrative proceeding is not dependent on

prov ing that the proposed agency action would violate applicable

law. Instead, standing requires proof that the petitioner has a

substantial interest and that the interest reasonably could be

affected by the proposed agency action. Whether the effect

would c onstitute a violation of applicable law is a separate

question. Thus, as presently applied:

Standing is Ða forward - looking conceptÑ and

Ðcannot ÒdisappearÓ based on the ultimate

outcome of the proceeding.Ñ . . . When

standing is challenged during an

adm inistrative hearing, the petitioner must

offer proof of the elements of standing, and

it is sufficient that the petitioner

demonstrate by such proof that his

substantial interests Ð could reasonably be

affected by . . . [the] proposed

activities.Ñ

Palm Be ach Cnty. Envtl. Coal. v. Fla. Dep't of Envtl. Prot. ,

14 So. 3d at 1078(citing Peace River/Manasota Reg'l Water Supply

Auth. v. IMC Phosphates Co . , 18 So. 3d 1079, 1083 (Fla. 2nd DCA

2009) and Hamilton County Bd. of Cnty. Comm'rs v. State, Dep't

of Envtl. Regulation , 587 So. 2d 1378 (Fla. 1st DCA 1991)); see

also St. Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt.

Dist. , 54 So. 3d 1051, 1055 (Fla. 5th DCA 2011) (ÐUltimately,

the ALJ's conclusion adopted by the Governing Board that there

was no proof of harm or that the harm would be offset went to

the merits of the challenge, not to standing.Ñ).

33 . Petitioners have alleged standing o n behalf of the

interests of their members. It is well established that:

for an association to establish standing

under section 120.57(1) when acting solely

as a representative of its members, it must

demonstrate that Ða substantial number of

its members, although not necessarily a

majority, are substantially affected by the

challenged rule,Ñ that Ðthe subject matter

of the challenged rule is within the

association's general scope of interest and

activity,Ñ and that Ðthe relief requested is

of a type appropriate for a trade

association to receive on behalf of its

members.Ñ

St. JohnÓs Riverkeeper, Inc. v. St. Johns Ri ver Water Mgmt.

Dist. , 54 So. 3d at 1054, (citing Farmworker Rights Org., Inc.

v. Dep't of HRS , 417 So.2d 753 (Fla. 1st DCA 1982)); see also

Florida Home Builders Ass'n v. Dept. of Labor & Emp. Sec. ,

412 So. 2d 351 (Fla. 1982).

34 . Although St. JohnÓs Ri verkeeper, Inc. involved a rule -

challenge proceeding, its identification of the factors

necessary for an association to demonstrate standing apply with

equal force in a licensing proceeding. See Friends of the

Everglades, Inc. v. Bd. of Trs. of the Int. Impust Fund ,

595 So. 2d 186, 188 (Fla. 1st DCA 1992)(Ð To meet the

requirements of standing under the APA, an association must

demonstrate that a substantial number of its members would have

standing.Ñ).

35 . It is generally recognized that when a peti tion is

dismissed on the grounds that a petitioner lacks standing, the

allegations in the petition are to be accepted as true. Mid -

Chattahoochee River Users v. Fla. Dep't of Envtl. Prot. , 948 So.

2d at 796. Cases standing for that proposition are typical ly

those in which a petition has been dismissed on the pleadings.

See , e.g. , Id. at 79 5 (Ð Final Order of Dismissal with Prejudice

[] that was entered by appellee, the Florida Department of

Environmental Protection [] , in response to appellant's Amended

Petition for Administrative Hearing .Ñ); Hospice of Palm Beach

C nty . , Inc. v. Ag. f or Health Care Admin. , 876 So. 2d 4 (Fla.

1st DCA 2004) (ÐAHCA denied the petition finding that HPBC had

Òno standing to challenge the issuance of the license at

issue.ÓÑ); M averick Media Group v. DepÓt of Transp. , 791 So. 2d

491 (Fla. 1st DCA 2001) ( Ð DOT, in a final order, dismissed

Maverick's petition and denied its application for a state sign

permit, ruling that Maverick does not have standing for a formal

administrative h earing . Ñ ) .

36 . In this case, an evidentiary hearing was held for the

specific purpose of determining standing. While the hearing was

not convened to address the merits of the Settlement Agreement,

it was incumbent on the Petitioners to produce evidence, in

addition to the bare factual allegations of the Petition, to

demonstrate that the terms and conditions of the Settlement

Agreement c ould affect its substantial interests and those of

its members.

37 . A n example of the type of Ðnon - meritsÑ evidence found

sufficient to prove standing in the course of an evidentiary

hearing is found in St. JohnÓs Riverkeeper, Inc . v. St. Johns

River Water Management Dist rict , 54 So. 3d at 1054 - 1055 . In

that case, St. Johns Riverkeeper established that its purpose

and mission was the protection of the St. Johns River as a

natural resource, and that its principal activities included the

use and enjoyment of the river. In support of its standing to

challenge an activity alleged to degrade the water quality of

the river, St. Johns Riverkeeper produced evidence of its

sponsorship of 20 three - day boat tours of the St. Johns River,

involving 1,1 00 member participants . Those trips relied upon

the health of the river, and would be adversely affected by

increased nutrient concentrations and poor water quality caused

by the activity that was the subject of the proposed agency

action . That evidence, which did not go to the merits of

whether the proposed activity would actually cause the alleged

impacts, was sufficient to dem onstrate that St. Johns

Riverkeeper, on behalf of its members, was substantially

affected by the proposed agency action, and had standing to

challenge the action. E vidence of a comparable scope was not

produced in this case.

Standing under Chapter 120 - - Substantial Interests

38 . The PetitionersÓ respective Articles of Incorporation

establish that they were formed, generally, to protect the

environment of St. Lucie County by means of education and legal

action.

39 . The challenge to the Settlement Agreement is within

each PetitionerÓs general scope of interest and activity.

Furthermore, the relief requested , i.e., modification of the

Settlement Agreement to address the issues raised, or rejection

of the Settlement Agreement in its present form, is of a type

appropriate for organization s of th eir nature to receive on

behalf of their members.

40 . The remaining issue for a determination is whether a

substantial number of PetitionersÓ members are substantially

affected by the Settlement Agreement . Both the Conservation

All iance and Indian Riverkeeper failed to prove th at element of

standing.

41 . Despite having the issue of their standing to maintain

this proceeding placed squarely at issue, and as described in

the findings of fact herein, Petitio ners failed to produce any

admissible, non - hearsay evidence that to establish that their

members could be affected by any contamination on or under the

Facility, or by any contamination that may be drawn into a

water - supply well.

42 . Similarly, Petitioners offered no competent,

substantial, and non - hearsay evidence of any member, other than

Mr. Stinnette, who engaged in recreation or otherwise used the

waters of St. Lucie County. A single member is not a

Ðsubstantial numberÑ of members in the co ntext of PetitionersÓ

total membership -- the Conservation Alliance having a total

membership of approximately 200 persons, and Indian Riverkeeper

having a total membership of approximately 150 persons -- and is

insufficient to support a determination that Petitioners have

standing in this proceeding .

43 . For the reasons set forth herein, Petitioners failed

to demonstrate that their substantial interests would be

affected by the Settlement Agreement , and therefore failed to

establish standing under chapter 120 to initiate and maintain

this proceeding.

Standing under Section 403.412

44 . Subs ection 403.412(6), provides that:

Any Florida corporation not for profit which

has at least 25 current members residing

within the county where the a ctivity is

proposed, and which was formed for the

purpose of the protection of the

environment, fish and wildlife resources,

and protection of air and water quality, may

initiate a hearing pursuant to s. 120.569 or

s. 120.57, provided that the Florida

corp oration not for profit was formed at

least 1 year prior to the date of the filing

of the application for a permit, license, or

authorization that is the subject of the

notice of proposed agency action . (emphasis

added)

45 . This case does not involve li censing, nor d oes the

challenged settlement agreement involve any action for which an

application for a permit, license, or authorization was

required. Rather, this case involves an enforcement action

designed to remediate existing contamination, and impo se

monetary penalties against Respondents Allied and Chem - Tex.

46 . The parties stipulated to the elements that would be

necessary to demonstrate standing under sub section 403.412(6) as

to both the Conservation Alliance and Indian Riverkeeper, i.e.,

that they are b oth not - for - profit corporations; that they both

have at least 25 current membe rs residing in St. Lucie County;

and that both were formed for the purpose of the protection of

the environ ment, fish and wildlife resources, and protection of

air and water quality. Thus, the issue for determination is

whether subsection 403.412(6) provides a basis for the

initiation of a hearing to challenge proposed agency action of

the type presented here .

47 . In Morgan v. Department of Env ironmental Prot ection ,

98 So. 3d 651 (Fla. 3rd DCA 2012), the court was asked to

determine whether citizen intervention rights established in

sub section 403.412(5) applied to enforcement proceedings as well

as license and pe rmit proceedings. S ubs ection 403.412(5)

provides , in pertinent part, that:

I n any administrative, licensing, or other

proceedings authorized by law for the

protection of the air, water, or other

natural resources of the state from

pollution, impairment, o r destruction . . .

a citizen of the state shall have standing

to intervene as a party on the filing of a

verified pleading asserting that the

activity, conduct, or product to be licensed

or permitted has or will have the effect of

impairing, polluting, or otherwise injuring

the air, water, or other natural resources

of the state. (emphasis added) .

48 . In Morgan , the appellant argued that Ðother

proceedingsÑ should be interpreted to include enforcement

proceedings in addition to the listed administrative and

licensing proceedings. In its opinion , the court relied on the

plain language of sub section 403.412(5) to determine that

intervention is limited to Ðproceedings in which the challenged

activities, conduct, or products are sought to be Ò permitted or

licensed,ÓÑ and therefore was not intended to allow for a

challenge to an enforcement proceeding. Id. at 653.

49 . Consistent with subsection 403.412(5) as construed in

Morgan , subsection 403.412(6) requires that the Ðpermit,

license, or au thorizationÑ being challenged be one requiring an

Ð application . Ñ By requiring that the activity be subject to an

application, the legislature has expressed, in language that is

clear and unambiguous, that standing to initiate a hearing is

limited to licen sing proceedings .

50 . Th e proposed agency action in th is case, which is an

enforcement proceeding, involved no application for a permit,

license, or authorization that was filed or acted upon by the

DEP. Therefore, subsection 403.412(6) does not apply to this

proceeding.

51 . S ection 403.412(2) does establish a means by which a

citizen can participate in an enforcement proceeding, and

provides, in pertinent part, that:

. . . a citizen of the state m ay maintain an

action for injunctive relief against:

1. Any governmental agency or authority

charged by law with the duty of enforcing

laws, rules, and regulations for the

protection of the air, water, and other

natural resources of the state to compel

such governmental authority to enforce such

laws, rules, and regulations;

2. Any person, natural or corporate, or

governmental agency or authority to enjoin

such persons, agencies, or authorities from

violating any laws, rules, or regulations

for the pro tection of the air, water, and

other natural resources of the state.

Thus, Petitioners are not foreclosed from asserting their

interests in proceeding s in which the DEP has taken enforcement

action. They are , however, foreclosed from asserting their

inte rests in this proceeding under sub section 403.412(6).

52 . Based on the findings of fact and conclusions of law

set forth herein, the Conservation Alliance and Indian

Riverkeeper failed to prove that they have standing under

sub section 403.412(6) to initiate a hearing to challenge the

enforcement Settlement Agreement that is the subject of the

notice of proposed agency action .

C onclusions

53 . The undersigned concludes that Petitioners,

Conservation Alliance of St. Lucie County, Inc. and Treasure

Coast Environmental Defense Fund, Inc., a/k/a Indian

Riverkeeper, Inc., failed to prove that they are substantially

affected by the entry of the Settlement Agreement in OGC File

No. 07 - 0177.

54 . The undersigned concludes that Petitioners,

Conservation Alliance of St. Lucie County, Inc. and Treasure

Coast Environmental Defense Fund, Inc., a/k/a Indian

Riverkeeper, Inc., failed to prove that they have standing to

challenge the entry of the Settlement Agreement in OGC File No.

07 - 0177 pursuant to sub section 403.412(6) , Florida Statutes .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law set forth herein, it is

RECOMMENDED that Respondent, Department of Envi ronmental

Protection, enter a final order dismissing the Petition for

Formal Administrative P roceeding s .

DONE AND ENT ERED this 24th day of May , 201 3 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of May , 201 3 .

ENDNOTES

1/ Although the Petition was electronically filed with the DEP

on August 12, 2010, a Ðhard copyÑ was filed with the DEP Office

of General Counsel on August 16, 2012, and date - stamped with

that date. August 16, 2010 was beyond the 45 - day period f or

challenging the Settlement Agreement. The parties did not

dispute the date of the electronic filing. Respondents,

believing that electronic filing was not allowed by the DEP,

moved to dismiss the Petition as being untimely. The motion was

denied by s eparate Order on May 20, 2013. Thus, the timeliness

of the Petition is no longer at issue.

2/ Mr. Stin n ette was recalled to the stand several times to

address issues as they arose in the course of the hearing. He

was initially called as PetitionersÓ witness, and will therefore

be identified as such.

COPIES FURNISHED :

Daniel K. Bandklayder, Esquire

Daniel K. Bandklayder, PA

Suite 1560

9350 South Dixie Highway

Miami, Florida 33156

C. Anthony Cleveland, Esquire

Oertel, Fernandez, Cole and

Bryant, P.A.

Post Office Box 1110

Tallahassee, Florida 32302 - 1110

Treasure Coast Environmental Defense Fund, Inc.

A/K/A Indian Riverkeeper, Inc.

Post Office Box 7758

Port St. Lucie, Florida 34985 - 7758

Conservation Alliance of St. Lucie County, In c.

Post Office Box 12515

Fort Pierce, Florida 34979 - 2515

Robert N. Hartsell, Esquire

Robert N. Hartsell, P.A.

Suite 921

1600 South Federal Highway

Pompano Beach, Florida 33062

Megan Renea Hodson, Esquire

Robert N. Hartsell, P.A.

Suite 921

1600 South Fe deral Highway

Pompano Beach, Florida 33062

Matthew Smith - Kennedy, Esquire

Department Of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

Lea Crandall, Agency Clerk

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Matthew Z. Leopold, General Counsel

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Herschel T. Vinyard, Jr., Secretary

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.