Manasota-88, Inc. v. State, Dept. of Environmental Regulation, MANASOTA-88

• Decision Date: 23 April 1990
• Docket Number: INC,MANASOTA-88,No. 88-197,88-197
• Parties: 15 Fla. L. Weekly D1095 , Appellant, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION; Sugar Cane League; WCWSA; Florida Citrus Processors Association; Florida Chemical Industry Council; Florida Phosphate Council, Inc.; Florida Electric Power Coordinating Group, Inc.; Mobil Mining; and Waste Management, Appellees.
• Court: Florida District Court of Appeals

Page 895

567 So.2d 895

15 Fla. L. Weekly D1095

MANASOTA-88, INC., Appellant, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION; Sugar Cane League; WCWSA; Florida Citrus Processors Association; Florida Chemical Industry Council; Florida Phosphate Council, Inc.; Florida Electric Power Coordinating Group, Inc.; Mobil Mining; and Waste Management, Appellees.

No. 88-197.

District Court of Appeal of Florida,

First District.

April 23, 1990.

Rehearing Denied Nov. 1, 1990.

Thomas W. Reese, St. Petersburg, for appellant.

Cynthia Cristen, Asst. Gen. Counsel, Tallahassee, for appellee, Dept. of Environmental Regulation.

Philip S. Parsons of Landers & Parsons, Tallahassee, for appellee, Sugar Cane League.

Edward de la Parte, Tampa, for appellee, WCWSA.

Roderick K. Shaw, Jr. of Allen, Dell, Frank & Trinkle, Tampa, for appellee, Florida Citrus Processors Ass'n Richard S. Brightman of Hopping Boyd Green & Sams, Tallahassee, for appellee, Florida Chemical Industry Council.

Robert L. Rhodes, Jr. and Lawrence E. Sellers, Jr. of Holland & Knight, Tallahassee, for appellee, Florida Phosphate Council, Inc.

William H. Green, James S. Alves, and Richard S. Brightman of Hopping Boyd Green & Sams, Tallahassee, for appellee, Florida Elec. Power Coordinating Group, Inc.

Lawrence E. Sellers, Jr. of Holland & Knight, Tallahassee, for appellee, Mobil Mining.

William D. Preston of Hopping Boyd Green & Sams, Tallahassee for appellee, Waste Management.

SHIVERS, Chief Judge.

Appellant, Manasota-88, Inc., brings a direct appeal from the Department of Environmental Regulation's (DER's) adoption of an amendment to Rule 17-4.245(8)(b), F.A.C., raising two challenges to the amendment: (1) that DER exceeded its delegated legislative authority in adopting the amendment, and (2) that the amended rule is vague and standardless, vesting unbridled discretion in DER staff. For the reasons set out below, we remand to the agency for further proceedings.

In 1983, the Environmental Regulatory Commission (ERC) adopted a new rule dividing Florida's groundwaters into two classes of nonpotable (G-III and G-IV) and two classes of potable (G-I and G-II) water. In addition to these four use classifications, the ERC adopted two "standards," known as primary and secondary drinking water standards. Primary standards listed certain health-threatening contaminants and their maximum allowable levels per liter of water, while secondary standards listed other constituents, related primarily to color, odor, taste, and aesthetic factors, and their maximum allowable levels per liter.

When originally promulgated in 1980, the secondary standards were not applicable to groundwater, but only to tap water in "community water systems," (not including private wells, restaurants, malls, or other public buildings). On January 1, 1983, the ERC began requiring some installations which discharged into Class G-II groundwater to meet secondary as well as primary standards. Existing installations were temporarily exempted from compliance with the secondary standards. In the meantime, however, they were required to install on-site quality monitoring wells in order to test for secondary standard parameters. DER was directed to evaluate the environmental, social, and economic costs and benefits associated with requiring existing installations to meet secondary standards and, if justified, to consider recommending changes and modifications of the secondary standards' implementation to the ERC.

Accordingly, DER reviewed the groundwater monitoring data, conducted workshops, and prepared a comprehensive report in which it confirmed that there were large variations in secondary standards parameters in Florida's groundwater. It also determined that the cost of requiring all existing installations to strictly comply with secondary standards would be extremely high for both the installations and for DER. DER thus recommended to ERC that existing installations be exempted from compliance with secondary standards except when determined that compliance would be necessary to protect a drinking water source and the benefits of compliance outweighed the cost.

On November 6, 1987, DER gave notice of a proposed amendment to Rule 17-4.245, F.A.C., which would implement this recommendation by exempting all existing dischargers from compliance with secondary standards unless DER determined that compliance was necessary to protect groundwater used or reasonably likely to be used as a potable water source. Rule 17-4.245(8)(a), F.A.C. Even where such determination was made, however, the proposed amendment provided that an existing discharger could avoid application of secondary standards by affirmatively demonstrating that the economic, social, and environmental costs of compliance outweighed the economic, social, and environmental benefits of compliance provided, however, that such demonstration would not allow an existing discharger to violate secondary standards at any private or public water supply well beyond the discharger's property boundary. Rule 17-4.245(8)(b).

Prior to the Department's adoption of the proposed rule, appellant Manasota-88, Inc. and several other environmental protection organizations filed and were granted party status in the rule-making proceedings. A public hearing was conducted on December 17, 1987, and the proposed amendment was adopted and filed with the Secretary of State on January 22, 1988. Appellant Manasota-88 then filed the instant direct appeal from the Department's adoption of the rule amendment.

It is well established that an adversely affected party may bring a direct appeal to this court from rule-making proceedings, and that the adoption of a rule constitutes final agency action. See Brewster Phosphates v. DER, 444 So.2d 483 (Fla. 1st DCA 1984), cert. denied, 450 So.2d 485 (1984); General Telephone Company of Florida v. Public Service Commission, 446 So.2d 1063 (Fla.1984); Booker Creek Preservation, Inc. v. Southwest Florida Water Management District, 534 So.2d 419 (Fla. 5th DCA 1988); Polk v. School Board of Polk County, 373 So.2d 960 (Fla. 2d DCA 1979); City of Key West v. Askew, 324 So.2d 655 (Fla. 1st DCA 1975); Florida Administration Commission v. District Court of Appeal, First District, 351 So.2d 712 (Fla.1977). Agency action becomes final in rule-making proceedings at the time the rule is adopted and filed with the Secretary of State. Florida Administration Commission, supra. An adversely affected party then has 30 days from the filing of the rule or amendment in which to seek judicial review.

It is also clear that the standard of review to be applied by the...