17-004366RP Florida-Spectrum Environmental Services, Inc., Flowers Chemical Laboratories, Inc., And Benchmark Enviroanalytical, Inc. vs. Department Of Environmental Protection Status: Closed DOAH Final Order on Tuesday, January 30, 2018.

Summary: Petitioners failed to demonstrate that proposed rule was an invalid exercise of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA - SPECTRUM ENVIRONMENTAL

SERVICES, INC., FLOWERS CHEMICAL

LABORATORIES, INC., AND

BENCHMARK ENVIROANALYTICAL,

INC.,

Petitioners,

vs. Case No. 17 - 4366RP

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respond ent.

_______________________________/

FINAL ORDER

Administrative Law Judge D. R. Alexander conducted a final

hearing in this case in Ta llahassee, Florida, on November 13,

2017.

APPEARANCES

For Petitioner s : Randall E. Denker , Esquire

Denker Law Firm

552 East Georgia Street

Tallahassee, Florida 32303 - 6246

For Respondent: Jeffrey Brown, Esquire

Department of Environmental Protection

Ma il Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE S

The issue is whether proposed rule 62 - 160.300(5)(c) is an

invalid exercise of delegated legislative authority, as allege d

in the Amended Petition for Rule Challenge (Petition) filed on

October 17, 2017.

PRELIMINARY STATEMENT

On March 14, 2017, the Department of Environmental

Protection (Department) published its Notice of Proposed Rule

(Notice), which made extensive revisio ns to Florida

Administrative Code Chapter 62 - 160. The chapter establishes

quality assurance standards for the collection and analysis of

water quality data. On July 14, 2017, the Department published

a Notice of Change, which makes further revisions to t he

chapter. Only proposed rule 62 - 160.300(5)(c) is challenged in

this proceeding.

On August 2, 2017, Petitioners, Florida - Spectrum

Environmental Services, Inc. (Florida - Spectrum), Flowers

Chemical Laboratories, Inc. (Flowers), and Benchmark

EnviroAnalytic al, Inc. (Benchmark), all certified laboratories

who perform collection and analysis of water quality data, filed

their Petition challenging the validity of proposed rule

62 - 160.300(5)(c) on the following grounds: 1) the rule is

vague, fails to estab lish adequate standards for agency

decisions, and vests unbridled discretion in the agency; 2) the

rule is arbitrary and capricious; and 3) the rule contravenes

the specific provisions of law being implemented. By Order

dated October 17, 2017, Petitioners were authorized to file an

Amended Petition for Rule Challenge. In the parties' Joint Pre -

hearing Stipulation, Petitioners added a n ew statutory ground,

section 120.52(8)(b), Florida Statutes, not cited in either

pleading, alleging that the agency exceed ed its grant of

rulemaking authority. However, the pleadings contain general

allegations (without a statutory citation) asserting that the

Department exceeded its grant of rulemaking authority in two

respects. See Amended Petition, ¶¶ 22 and 24. Therefo re, those

allegations will be addressed.

At the hearing, Petitioners presented the testimony of four

witnesses. Petitioners' Exhibits 1, 7, 9, and 13 through 18

were accepted in evidence. Exhibits 2 and 3 were proffered by

Petitioners, while a ruling w as reserved on the admissibility of

Exhibits 4 and 12. The latter two exhibits have been treated as

hearsay, not subject to an exception, and are used only to the

extent they supplement other competent evidence. The Department

presented the testimony of three w itnesses. Department

Exhibits 1 through 3 and 5 were accepted in evidence. Joint

Exhibits 1 through 6 were accepted in evidence. Finally, the

Department's Request for Official Recognition of certain

legislative staff reports, filed almost a month after the record

closed, is denied.

A two - volume Transcript of the proceeding was prepared.

Proposed final orders were filed by the parties on January 12,

2018, and they have been considered in the preparation of this

Final Order.

FINDING S OF FACT

Back ground

1. The Department is the agency charged with the

responsibility of adopting quality assurance rules for the

collection and analysis of water quality data submitted to the

Department. § 403.0623(1), Fla. Stat. These standards have

been codified in chapter 62 - 160. They are designed to "assure

that chemical, physical, biological, microbiological and

toxicological data used by the Department are appropriate and

reliable, and are collected and analyzed by scientifically sound

procedures." Fla. Admin. Code R. 62 - 160.110(1).

2. Part III of chapter 62 - 160 addresses laboratory

certification and procedures. The Legislature has mandated that

when water quality data are used to determine the quality of

drinking water or the effluent of a domestic wastewa ter

facility, all laboratories generating such data for submission

to the Department must hold certification from the Department of

Health (DOH) under the Department of Health, Environmental

Laboratory Certification Program (DOH ELCP). See §§ 403.863(7)

and 403.0625(2), Fla. Stat. Although DOH is the state's

environmental laboratory accreditation program body, the

Department has rulemaking authority to determine what types of

laboratory data req uire DOH ELCP certification. § 403.0623,

Fla. Stat. Not e very laboratory test requires certification for

the Department to accept the resulting data.

3. Certified laboratories must have approved Standard

Operating Procedures (SOPs), a formalized, written set of

instructions which are followed for sample collect ion and

preservation. The SOPs are reviewed by the Department to ensure

they provide sufficient laboratory quality assurance.

4. Petitioners are among the more than 100 laboratories in

the state that fall within the class of laboratories that must

meet DOH ELCP certification standards. They provide testing

services primarily for local governments, consultants, and

commercial accounts. Petitioners take pride in the fact that

they meet all federal and state standards for testing, their

laboratories are owned and managed by professionals, and they

have been successfully performing these services for decades.

5. The dispute here centers on proposed rule 62 -

160.300(5)(c), which allows non - certified "statutorily created

volunteer monitoring organizations" to submit water quality data

to the Department for certain purposes. Petitioners, who are in

the business of generating environmental data to the Department,

allege that if they are required to compete with a non - certified

laboratory, it will "directly a ffect their ability to earn a

living and will interfere with their contractual relationships."

6. Currently, the only statutorily created volunteer

monitoring organization in the state is the Florida LAKEWATCH

Program (Lakewatch), an organization create d in 2002 within the

Department of Fisheries and Aquaculture of the Institute of Food

and Agricultural Sciences (IFAS) at the University of Florida.

See § 1004.49, Fla. Stat.

Petitioners' Operations

7. Florida - Spectrum, located in south Florida, spends

around $100,000 annually to keep its five laboratories properly

certified. Around a third of its business is testing for

municipalities, a third for industries (such as investor - owned

utilities), and a third for consultants. It performs lake water

sampl ing for three cities for the purpose of compliance

monitoring, but the proposed rule does not allow a non - certified

laboratory to submit data to the Department for this purpose.

8. Flowers, located in the greater Orlando area, estimated

its annual direc t cost to remain certified is around $52,000.00.

It provides testing services primarily for domestic waste water

effluent and drinking water. Only five percent of its testing

is in lakes.

9. Although Benchmark did not provide its annual cost to

be cer tified, more than likely it incurs a similar expense, as

it performs water testing primarily for engineering firms and

municipalities located along the west coast from Tampa to

Naples. A very small percentage of work involves testing in

lakes to determine compliance with drinking water standards.

The Proposed Rule

10. Existing rule 62 - 160.300(5)(e), in effect since 2002,

allows the Department to waive the certification requirement for

an entity that uses "[m]ethods approved for site - specific,

limited - use purpose if such certification is specifically waived

by the Department program for which the method will be used."

The provision has rarely been used, and then "usually only [for]

research projects directly funded by DEP." Pet'r Ex. 14, p. 2.

11. The Department proposes to substantially revise

existing rule 62 - 160.300, entitled Laboratory Certification,

by adding new text, deleting language, and renumbering the

revised provisions. Although the Notice proposed only a

minor change to existing rule 62 - 160.300(5)(e), the Notice of

Change deletes that provision in its entirety and proposes to

adopt new rule 62 - 160.300(5)(c), which allows the Department to

consider and use data generated by non - certified "statutorily

created volunteer monitoring organiz ations."

12. New paragraph (5)(c) provides that certification is

not required for the following tests or analyses:

(c) Methods used by statutorily created

volunteer monitoring organizations, when the

Department has reviewed and concluded that

the organ ization's Standard Operating

Procedures provide sufficient quality

assurance requirements for Department

purposes.

13. The rule is designed to apply to an organization with

a very small laboratory and a single purpose. Lakewatch's only

purpose is to sam ple water quality in lakes, with an emphasis on

total nitrogen, phosphorus, chlorophyll a, and water clarity.

The IFAS laboratory has only "a couple of career staff."

Lakewatch performs no sampling for municipalities, commercial

accounts, or other entiti es typically served by certified

laboratories.

14. Section 1004.49 authorizes Lakewatch to "[t]rain,

supervise, and coordinate volunteers to collect water quality

data from Florida's lakes" and to "[c]ompile the data collected

by volunteers." The organ ization consists of citizen volunteers

(almost 1,500 as of May 2014), mainly lake residents, who take

and hold water samples and then send them to be analyzed by the

IFAS laboratory. The results are collected and maintained in a

Lakewatch database coordin ated by the IFAS. The testing results

are forwarded to the Department for inclusion in various

databanks.

15. In somewhat unclear terms, a Department witness

explained that the purpose of the rule is "to do routine

housekeeping for aspects of the rule that [the Department]

thought needed revising based on stakeholder input from all

sectors." However, the Notice further explains that the new

rule "provide[s] increased flexibility for approval of

alternative methods," and it "clarif[ies] when [DOH] labor atory

certification is not required, because substitute quality

assurance requirements will apply."

16. In addition, the Department points out that it has the

responsibility of assessing all waters in the State, but lacks

the resources to perform this tas k. At any one time, the

Department estimates that Lakewatch is sampling the water in

over 100 lakes, many of which are in remote areas that are not

accessed by other laboratories. The acceptance of Lakewatch

data will fill a gap in the Department's asses sment role. Even

when data are of lesser quality, they can be valid for some

purposes. As a general rule, it is helpful for the Department

to maximize the data available for review.

Does the Rule Exceed the Grant of Rulemaking Authority ?

17. The Notic e cites as rulemaking authority four

statutes, including sections 403.0623 and 403.0625.

Section 403.0623(2) authorizes the Department to "establish

standards for the collection and analysis of water quantity,

water quality, and related data to ensur e quality, reliability,

and validity of the data and testing results" and "to adopt

rules to implement this subsection." Section 403.0625(1)

authorizes the Department and DOH to "jointly establish criteria

for certification of laboratories that perform an alyses of

environmental samples that are not covered by the provisions in

s. 403.863."

18. Petitioners allege the new rule exceeds the grant of

rulemaking authority in section 403.0625(1) because the DOH did

not participate in the drafting of the regulati on.

19. Because the rule does not create any standards for

laboratory certification, DOH input is not required. The

Department's routine practice is to informally collaborate with

DOH only for issues that are specific to test methodology or

topics rela ted to DOH's scope of certification for environmental

test methods.

20. Petitioners also contend the rule exceeds the grant of

authority in section 403.0625(2), which provides that only

certified laboratories may submit water quality data to

determine " the quality of the effluent of a domestic wastewater

facility." However, this contention has been treated as an

argument that the rule contravenes the statute and is addressed

in the following section of this Recommended Order.

Does the Rule Contravene the Law Being Implemented ?

21. The Notice states that the revisions to chapter 62 - 160

implement more than 20 statutes, i ncluding sections 403.0623

and 403.0625.

22. At hearing, Petitioners asserted that Lakewatch

volunteers have sampled water in the S t. Johns River, which has

package plants that impact both the river and the Green Swamp.

They did not disclose the extent of such sampling in the river,

and, its purpose.

23. Petitioners incorrectly assume the purpose of the rule

is to allow Lakewatch to continue to submit data from areas

affected by domestic wastewater effluent, in violation of

section 403.0625(2). Assuming that river samples were submitted

to the Department, the proposed rule does not legitimize the

submission of data for that purpos e.

24. Petitioners contend the proposed rule will contravene

other Department rules which set general requirements for

collection and laboratory methods, including minimum holding

times. However, the proposed rule authorizes the Department to

approve a n alternate method or procedure for some methods used

by the organization. Therefore, Lakewatch does not follow

generally approved requirements for sample preservation.

Rather, it follows approved alternate methods evaluated and

approved by the Departmen t. Likewise, Lakewatch relies on an

approved limited - use method for chlorophyll extraction, rather

than following the typical methods used by certified

laboratories.

Vagueness, Lack of Standards, and Unbridled Discretion

25. The proposed rule requires an organization's data to

be of "sufficient quality assurance" to meet Department

purposes. Petitioners argue that by simply using the word

"sufficient," rather than mandating that the data be "accurate

and reliable," the rule gives the Department unbrid led

discretion in determining what level of assurance is required.

However, this is a distinction without a difference.

26. The Department's determination will be based on

whether the laboratory procedures conform to the use of approved

methods, sample preservation procedures, and recordkeeping and

reporting procedures. See Pet'r Ex. 18. The Department will

also consider whether the organization has the ability to

produce valid data that can withstand scrutiny under the

criteria in rule 62 - 160.670. I d. Depending on the purpose of

the data, criteria in other rules will be applied to the

approval of methods and acceptance of data. See, e.g. , Fla.

Admin. Code R. 62 - 160.330 and 62 - 160.670.

27. In those instances when certification is not required,

ne w rule 62 - 160.300(9) requires that the organization's

laboratory "follow the relevant Department - approved methods as

provided in Rule 62 - 160.320, F.A.C., and shall meet all other

requirements for laboratories as provided in this Chapter."

Coupled with the challenged rule, this change sets a floor for

quality assurance in uncertified laboratories with approved

SOPs. Therefore, a non - certified laboratory must have minimum

requirements for method detection limits, reporting and

documentation, preservation of samples, data validation, and

procedures for coding data that do not meet quality control

criteria.

28. Given the different purposes for which data are

submitted, and the variability of data quality objectives that

must be achieved, the Department must necessarily have some

level of flexibility and discretion. It would be impractical to

include in the rule every potential circumstance that might

arise during this assessment.

29. In sum, the record supports a finding that there are

adequate and defin itive standards in place to ensure that the

operating procedures of a non - certified laboratory are

sufficiently reliable for the Department to accept the data.

Use of Lakewatch Data

30. Section 1004.49 provides that "[d]ata collected and

compiled [by Lake watch] shall be used to establish trends and

provide general background information and shall in no instance

be used in a regulatory proceeding." However, the term

"regulatory proceeding" is not defined. Even though the law is

almost 16 years old, the De partment has not yet taken a formal

position on how the term should be interpreted and generally

decides this issue on a case - by - case basis. While the

Department admits that the undefined term is a source of

confusion, its practice is to never use Lakewat ch data for

enforcement action or permit compliance. On the other hand, the

Department says the statute is "unclear" on whether Lakewatch

data can be used for ambient water quality assessments and

restoration plans, such as water listings and Total Maximu m

Daily Loads. Therefore, Lakewatch data have been used for trend

analysis, background information, agency resource allocation,

and the compilation of the planning list under the Impaired

Waters Rule. The Department does not consider these uses to

violat e the statutory proscription.

31. From 2013 until August 2017, the Department used

Lakewatch data for some purposes that may have been inconsistent

with section 1004.49. However, that practice has ceased, and

the Department now uses Lakewatch data in a manner that it

believes is consistent with the statutory directive.

Petitioners argue that the improper use of data during the five -

year period, by itself, is a sufficient basis to invalidate the

rule. This contention is rejected.

32. After a compara bility study of Lakewatch and

Department data was conducted by the Department in 2011 - 2012,

the Department initiated a review of the Lakewatch SOPs. The

SOPs have been periodically revised, the last time in 2016, to

incorporate certain quality control mea sures recommended by the

Department. Although Petitioners contend otherwise, the SOPs

provide sufficient laboratory quality assurance for accepting

data for trend analysis, setting priorities on monitoring plans,

and general information.

Petitioners' Su bstantial Interests

33. Petitioners are concerned the Legislature will create

other volunteer organizations and this will result in multiple

organizations taking advantage of the new rule. They also fear

the Department will amend the new rule to allow ot her non -

certified organizations to submit data. These concerns are

speculative in nature and without evidentiary support.

34. Because Lakewatch services are free, Petitioners

contend their customers will use Lakewatch volunteers rather

than paying a ce rtified laboratory for testing services.

However, Petitioners did not identify any "contractual

relationship" that will be interfered with by virtue of the

rule, any existing customer that will move its business to

Lakewatch, or more importantly, the perc entage of their work, if

any, that coincides with work being performed by the volunteer

organization. In sum, the evidence does not support a finding

that Lakewatch volunteers will compete for the services now

provided by Petitioners, who pay substantial fees each year to

remain certified.

35. Petitioners posit that if the proposed rule is

adopted, the term "regulatory proceeding" will be applied in

such a way as to allow Lakewatch data to be accepted and used

for a wide range of testing purposes, inclu ding regulatory

proceedings. But this assumption is based on speculation, and

current law prohibits the rule being applied in this manner. If

Petitioners disagree with how the rule is applied, there are

other remedies in chapter 120, including a requirem ent that a

point of entry be given to third parties when an agency order is

involved. The fact that Petitioners may not be notified every

time the Department uses data from a volunteer monitoring

organization is not a ground for invalidating the rule.

36. Most of Petitioners' evidence at hearing questioned

the reliability and accuracy of testing services by Lakewatch.

Among other things, Petitioners contend Lakewatch uses

volunteers with limited training and experience, its collection

and preservation me thods do not conform to acceptable

professional standards, the Department has never audited the

Lakewatch laboratory, and a 2011 - 2012 comparability study of

Lakewatch data with Department data is flawed in many respects.

To determine the validity of the r ule, however, more on that

story need not be told at this time.

CONCLUSIONS OF LAW

37. Section 120.56(1)(a) provides that any person

substantially affected by a proposed rule may seek an

administrative determination of the invalidity of the rule on

the ground the rule is an invalid exercise of delegated

legislative authority. Pursuant to section 120.56(2)(a),

Petitioners have the burden to prove their standing, and if they

meet their burden, then the Department has the burden to prove

that the ch allenged proposed rule is not an invalid exercise of

delegated legislative authority. The standard of proof is by a

preponderance of the evidence. § 120.56(2)(a), Fla. Stat.

Proposed rules are not presumed to be valid or invalid.

§ 120.56(2)(c), Fla. S tat.

38. To establish standing, the challenger must be

"substantially affected" by the proposed rule. § 120.56(2)(a),

Fla. Stat. A person is substantially affected if the proposed

rule is or will be applied to that person as a basis for the

agency action. Standing is not predicated on showing that the

challenger would prevail on the merits of the proceeding. It is

sufficient to show that the challenger was subjected to the rule

as a basis for the agency's action. A less demanding standard

applies in a rule proceeding than in a section 120.57

proceeding, and the standard differs from the "substantial

interest" standard of a licensure proceeding. See, e.g. ,

Abbott Labs. v. Mylan Pharms., Inc. , 15 So. 3d 642, 651 n.2

(Fla. 1st DCA 2009); Cole Visio n Corp. v. Dep't of Bus. & Prof'l

Reg. , 688 So. 2d 404, 407 (Fla. 1st DCA 1997).

39. Therefore, Petitioners must demonstrate that the rule

will result in a real and immediate injury in fact and that the

alleged interest is within the zone of interes t to be protected

or regulated. Jacoby v. Fla. Bd. of Med. , 917 So. 2d 358, 360

(Fla. 1st DCA 2005). To satisfy the real and immediate injury

in fact element, there must be a specific injury that could

reasonably result from the proposed administrative a ction. It

cannot be the product of pure conjecture or speculation. Ward

v. Bd. of Trs. of the Internal Improvement Tr. Fund , 651 So. 2d

1236, 1237 (Fla. 4th DCA 1995). However, "the proper inquiry is

on the likelihood of injury, not that it be certain." SCF, Inc.

v. Fla. Thoroughbred Breeders' Ass'n, Inc. , 227 So. 3d 770, 776

(Fla. 1st DCA 2017).

40. Petitioners claim the adoption of the rule will

"directly affect their ability to earn a living and will

interfere with their contractual relationshi ps." In support of

this contention, Petitioners assert the rule will place them in

direct competition with Lakewatch and result in a loss of

customers who will choose to use the free testing services of

Lakewatch, rather than paying Petitioners for the sa me service,

and that it will interfere with existing contractual

relationships. They also assert the Legislature may create more

volunteer organizations, and the Department may further amend

the rule to allow other types of non - certified organizations to

submit data. Finally, they contend the data submitted by

Lakewatch is unreliable and will create questionable databases,

and this will undermine their "missions" as certified

laboratories and cause confusion in the minds of the public and

their clients.

41. As previously found, the record shows otherwise.

Petitioners did not identify any customer that has ever used the

services of Lakewatch, or has indicated it will switch business

to that type of organization. Petitioners did not identify any

co ntractual relationship that might be impaired. Most of

Petitioners' testing services are for domestic wastewater

effluent and drinking water programs, which services cannot be

provided by a non - certified laboratory under current law or the

proposed rule. Lakewatch does not provide testing services for

cities, commercial accounts, or consultants, which make up most,

if not all, of Petitioners' business. The assumption that the

Legislature may create more volunteer organizations, and that

the rule may be f urther amended to allow other organizations to

submit data without certification, is speculation without

evidentiary support. Finally, the assertion that the rule will

result in unreliable and untrustworthy Department databases and

lead to confusion on th e part of the public and Petitioners'

clients is deemed to be speculative and contrary to the accepted

evidence. In short, the alleged injury is the product of

speculation and conjecture, is unlikely to occur, and is

therefore not sufficiently real and im mediate.

42. Accordingly, Petitioners have failed to identify a

specific injury that will reasonably result from the adoption of

the rule. Because Petitioners will not be directly and

immediately harmed by the proposed rule, Petitioners lack

stand ing to challenge the rule. Notwithstanding this

determination, the merits of their claims will be addressed

below.

43. The term "invalid exercise of delegated legislative

authority" is defined by section 120.52(8). Petitioners

challenge the propos ed rule as an invalid exercise of delegated

legislative authority on the basis of paragraphs (8)(b), (c),

(d), and (e). Those provisions provide that a proposed rule is

invalid if the following apply:

(8) "Invalid exercise of delegated

legislative author ity" means action that

goes beyond the powers, functions, and

duties delegated by the Legislature.

A proposed or existing rule is an invalid

exercise of delegated legislative authority

if any one of the following applies:

* * *

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(3)(a)1.;

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious.

A rule is arbitrary if it is not supported

by logic or the necess ary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational;

* * *

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implem ented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling statute. No agency shall have the

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agency's

class of powers and duties, nor shall an

ag ency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no fu rther than implementing or

interpreting the specific powers and duties

conferred by the enabling statute.

Whether the Rule Exceeds its Grant of Rulemaking Authority

44. The Notice cites sections 403.0623 and 403.0625 as

rulemaking authority for the challenged rule. Petitioners

contend the Department exceeded its grant of rulemaking

authority under section 403.0625(1) by failing to "jointly" work

with DOH in drafting the rule. The statute does not apply here,

as the proposed rule does not creat e new criteria for laboratory

certification.

45. Because section 403.0623(2) contains the necessary

"specific grant of legislative authority" for the Department to

adopt the rule, the Department did not exceed its grant of

rulemaking authority pursua nt to section 120.52(8)(b).

Whether the Rule Contravenes the Law Implemented

46. The Notice cites sections 403.0623 and 403.0625 as the

law being implemented. Petitioners contend the proposed rule is

invalid because it contravenes section 403 .0625(2), which

requires that only certified laboratories may conduct testing to

determine the quality of the effluent of a domestic wastewater

facility. However, as stated before, the rule does not permit a

volunteer organization to submit data for this purpose.

47. Petitioners contend the new rule contravenes a federal

regulation (40 CFR § 136). However, federal standards are not

the law being implemented.

48. Petitioners contend the new rule contravenes

section 1004.49, which creat ed the Lakewatch program. However,

the new rule does not authorize a volunteer organization to

submit data for an unauthorized purpose.

49. In sum, the rule does not contravene the

specific provisions of the law implemented in violation of

sec tion 120.52(8)(b).

Vagueness, Inadequate Standards, or Vesting Unbridled

Discretion in the Department

50. Section 120.52(8)(d) provides that a rule is an

invalid exercise of delegated legislative authority where the

rule is vague, fails to establish adequate standards for agency

decisions, or vests unbridled discretion in the agency. A rule

is considered vague if it requires performance of an act in

terms that are so vague that people of common intelligence must

guess as to its meaning. State v. Peter R. Brown Const., Inc. ,

108 So. 3d 723, 728 (Fla. 1st DCA 2013). The rule does not

violate this proscription.

51. Petitioners further contend the rule fails to

establish adequate standards and vests unbridled discretion in

the Depar tment by failing to contain any standards governing how

the methods are approved. The sufficiency of a rule's standards

and guidelines "may depend on the subject matter dealt with and

the degree of difficulty involved in articulating finite

standards." A skew v. Cross Key Waterways , 372 So. 2d 913, 918

(Fla. 1978). An agency need not adopt rules in such

"excruciating detail" that they address every potential

circumstance that may arise during their implementation.

Cole Vision Corp. , 688 So. 2d at 410. As previously found, the

proposed rule provides sufficient standards and details for

guiding the approval process. The preponderance of the evidence

demonstrates that the proposed rule establishes adequate

standards for agency decisions and does not ves t unbridled

discretion in the Department. The rule is not invalid under

section 120.52(8)(d).

Arbitrary and Capricious

52. Section 120.52(8)(e) declares that a rule is an

invalid exercise of delegated legislative authority when it is

arbitrary and capricious. The statute states that a rule is

arbitrary if it "is not supported by logic or the necessary

facts." A rule is capricious "if it is adopted without thought

or reason or is irrational." A determination is not arbitrary

or capricious if i t is justifiable "under any analysis that a

reasonable person would use to reach a decision of similar

importance." See Dravo Basic Materials Co. v. Dep't of Transp. ,

602 So. 2d 632, 634 (Fla. 1st DCA 1992).

53. In light of these principles, the re is no credible

evidence that the proposed rule is not supported by logic

and the necessary facts or that it was taken without thought

or reason or irrationally. The rule is not invalid under

section 120.52(8)(e).

54. In summary, the Department ha s proven by a

preponderance of the evidence that the rule is a valid exercise

of delegated legislative authority. § 120.56(2)(a), Fla. Stat.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that proposed rule 62 - 16 0.300(5)(c) is not an

invalid exercise of delegated legislative authority. The

Amended Petition for Rule Challenge is denied.

DONE AND ORDERED this 30th day of January , 2018 , in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

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 Ad ministrative Hearings

this 30th day of January , 2018 .

COPIES FURNISHED:

Randall E. Denker, Esquire

Denker Law Office

552 East Georgia Street

Tallahassee, Florida 32303 - 6246

(eServed)

Jeffrey Brown, Esquire

Department of Environmental Protection

Mail S top 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Ernest Reddick, Chief

Anya Grosenbaugh

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coordinator

Joi nt Administrative Procedure s Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Noah Valenstein, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Robert A. Williams, General Counsel

Department of Environmental Protection

Legal Department, Suite 1051 - J

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Lea Crand all, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

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 administrative appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the clerk of the District Court of Appeal in the appellate

district w here the agency maintains its headquarters or where a

party resides or as otherwise provided by law.