223 So.3d 417 (Fla.App. 1 Dist. 2017), 1D16-46, Florida Pulp and Paper Association Environmental Affairs, Inc. v. Department of Environmental Protection

Docket Nº1D16-46
Citation223 So.3d 417, 42 Fla.L.Weekly D 1528
Opinion JudgeWETHERELL, J.
Party NameFLORIDA PULP AND PAPER ASSOCIATION ENVIRONMENTAL AFFAIRS, INC., Appellant, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION AND FLORIDA ENVIRONMENTAL REGULATION COMMISSION, Appellees
AttorneyGregory M. Munson and Terry Cole of Gunster, Yoakley & Stewart, P.A., Tallahassee, for Appellant. Robert A. Williams, Chief Deputy General Counsel, and Francine M. Ffolkes, Deputy General Counsel, Florida Department of Environmental Protection, Tallahassee, for Appellees.
Judge PanelOSTERHAUS and M.K. THOMAS, JJ., CONCUR.
Case DateJuly 11, 2017
CourtFlorida Court of Appeals

Page 417

223 So.3d 417 (Fla.App. 1 Dist. 2017)

42 Fla.L.Weekly D 1528

FLORIDA PULP AND PAPER ASSOCIATION ENVIRONMENTAL AFFAIRS, INC., Appellant,

v.

DEPARTMENT OF ENVIRONMENTAL PROTECTION AND FLORIDA ENVIRONMENTAL REGULATION COMMISSION, Appellees

No. 1D16-46

Florida Court of Appeals, First District

July 11, 2017

An appeal from an order of the Division of Administrative Hearings.

Gregory M. Munson and Terry Cole of Gunster, Yoakley & Stewart, P.A., Tallahassee, for Appellant.

Robert A. Williams, Chief Deputy General Counsel, and Francine M. Ffolkes, Deputy General Counsel, Florida Department of Environmental Protection, Tallahassee, for Appellees.

OPINION

WETHERELL, J.

In this administrative appeal, the Florida Pulp and Paper Association Environmental Affairs, Inc. (Association) seeks review of the order dismissing its rule challenge petition as untimely. We reverse for the reasons that follow.

Factual and Procedural Background

On June 30, 2016, the Department of Environmental Protection published in the

Page 418

Florida Administrative Register (FAR) notice of its intent to amend rules 62-302.400 and 62-302.530, Florida Administrative Code. On July 26, a public hearing on the proposed rule amendments was held by the Environmental Regulation Commission.1 The Commission approved the amendments to rule 62-302.530 as proposed and approved the proposed amendments to rule 62-302.400 with several changes.

On August 4, 2016, the Department published in the FAR a Notice of Change for rule 62-302.400 and a Notice of Correction for rule 62-302.530. Among other things, the Notice of Correction stated: " The [D]epartment has revised the SERC

2 to reflect that a lower cost regulatory alternative (LCRA) . . . was received on July 21, 2016, but was immediately withdrawn. A copy of the revised SERC. . . is available for public viewing at [the Department's website]." (emphasis added).

On August 23, 2016, the Association filed with the Division of Administrative Hearings (DOAH) a petition alleging that the proposed amendments to rule 62-302.530 were invalid exercises of delegated legislative authority under section 120.52(8)(a), (d), and (e), Florida Statutes.[3] The petition alleged that it was timely under section 120.56(2)(a) because it was filed " within 20 days of the Notice of Change, and within 20 days after a revised [SERC]."

The Department filed a motion to dismiss the Association's petition. The motion argued that no changes were made to the proposed amendments to rule 62-302.530 after publication of the rulemaking notice on June 30, and that the Association " cannot use a Notice of Change to Rule 62-302.400, F.A.C., which it has not challenged, to bootstrap its way into challenging proposed amendments to Rule 62-302.530, F.A.C." The motion also argued that the revised SERC did not provide a point of entry to challenge the proposed amendments to rule 62-302.530 because " [t]he revised SERC merely acknowledges a withdrawn LCRA and is the functional equivalent of not receiving any good faith written proposals for a [LCRA] to the proposed rule."

After a hearing at which the parties were afforded an opportunity...

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