Florida Pulp & Paper Ass'n Environmental Affairs, Inc. v. Department of Environmental Protection , 2017 Fla. App. LEXIS 9889 ( 2017 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
FLORIDA PULP AND PAPER NOT FINAL UNTIL TIME EXPIRES TO
ASSOCIATION FILE MOTION FOR REHEARING AND
ENVIRONMENTAL AFFAIRS, DISPOSITION THEREOF IF FILED
INC.,
CASE NO. 1D16-4610
Appellant,
v.
DEPARTMENT OF
ENVIRONMENTAL
PROTECTION AND FLORIDA
ENVIRONMENTAL
REGULATION COMMISSION,
Appellees.
_____________________________/
Opinion filed 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.
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 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
1
The Commission is part of the Department and exercises the Department’s
“standard-setting authority” under chapter 403 and parts of chapter 373, Florida
Statutes. See §§ 20.255(6), 403.804(1), Fla Stat.
2
Statement of estimated regulatory costs. See § 120.541, Fla. Stat.
2
21, 2016, but was immediately withdrawn.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
3
Separate petitions challenging the proposed amendments to rule 62-302.530 were
filed by the Seminole Tribe of Florida (on August 8), the City of Miami (on August
19), and Martin County (on August 25). All of the petitions were consolidated into
a single proceeding at DOAH.
3
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 to present
oral argument on their respective positions, the administrative law judge (ALJ)
entered an order granting the Department’s motion and dismissing the Association’s
petition. 4 The ALJ concluded that the notices published in the FAR on August 4 did
not provide a new point of entry for the Association to challenge the proposed
amendments to rule 62-302.530 because that rule was not changed in any way by
the notices. The ALJ further concluded that the revised SERC was “misidentified
by [the Department] as such” and that it did not create a new point of entry for the
Association to challenge the proposed amendments to rule 62-302.530 because the
Association was not substantially affected by the revision to the SERC.
The Association appealed the dismissal order to this Court. 5
Analysis
We review the dismissal order under the de novo standard of review because
the determination of whether the Association’s petition was timely filed is a question
of law. See Madison Highlands, LLC v. Fla. Hous. Fin. Corp., 42 Fla. L. Weekly
4
The order also dismissed the petitions filed by the Seminole Tribe, the City of
Miami, and Martin County.
5
The City of Miami and the Seminole Tribe appealed the dismissal order to the
Third District Court of Appeal. Those appeals, Case Nos. 3D16-2129 and 3D16-
2440, are still pending as of the date of this opinion.
4
D482 (Fla. 5th DCA Feb. 24, 2017) (citing Parlato v. Secret Oaks Owners Ass’n,
793 So. 2d 1158, 1162 (Fla. 1st DCA 2001)); Brown v. Comm’n on Ethics, 969 So.
2d 553, 556 (Fla. 1st DCA 2007); § 120.68(7)(d), Fla. Stat.
A petition challenging the invalidity of a proposed rule must be filed at DOAH
within:
[1] 21 days after the date of publication of the notice
required by s. 120.54(3)(a);
[2] 10 days after the final public hearing is held on the
proposed rule as provided by s. 120.54(3)(e)2.;
[3] 20 days after the [SERC] or revised [SERC], if
applicable, has been prepared and made available as
provided in s. 120.541(1)(d); or
[4] 20 days after the date of publication of the notice
required by s. 120.54(3)(d).
§ 120.56(2)(a), Fla. Stat. (emphasis added). These time periods are
jurisdictional. See Dep’t of Health & Rehab. Servs. v. Alice P., 367 So. 2d 1045,
1053 (Fla. 1st DCA 1979). Accordingly, an untimely petition must be dismissed. Id.
Here, it is undisputed that the Association’s rule challenge petition was not
timely filed after the first or second points of entry in section 120.56(2)(a). It is also
undisputed that the petition was filed within 20 days after the notices published in
the FAR on August 4, 2016. Accordingly, the dispute in this case boils down to
whether those notices triggered the third or fourth points of entry.
The Association contends that the third point of entry was triggered by the
5
revised SERC referred to in the Notice of Correction. We agree. Accordingly, we
need not address whether the fourth point of entry was also triggered by the Notice
of Correction and/or the Notice of Change.
The third point of entry is triggered when a revised SERC is “prepared and
made available as provided in s. 120.541(1)(d).” Section 120.541(1)(d) provides
that “an agency that is required to revise a [SERC] . . . shall provide notice on the
agency’s website that it is available to the public.” One circumstance in which the
agency is required to revise a SERC is when a LCRA is submitted. § 120.541(1)(a),
Fla. Stat. (“Upon the submission of the [LCRA], the agency . . . shall revise its prior
[SERC] . . . .”) (emphasis added).
Here, although a LCRA was timely submitted, the Department argues that it
was not required to prepare a revised SERC because the LCRA was “immediately
withdrawn.” The Association responds that upon receipt of the LCRA, the
Department had an obligation to revise the SERC to address the LCRA irrespective
of the fact that the LCRA was subsequently withdrawn. We need not resolve this
dispute because, whether it was required to or not, the Department did prepare a
revised SERC and did make it available to the public on its website in accordance
with section 120.541(1)(d). By doing so, the Department triggered the third point
of entry in section 120.56(2)(a).
The Department argues that the revised SERC did not trigger a new point of
6
entry because, as the ALJ stated in the dismissal order, “the ‘revision’ contemplated
by section 120.541 is a revision to the estimated costs, not a change in the narrative
accompanying the estimated costs that has no effect on the costs.” We reject this
argument because it is inconsistent with section 120.541(1)(a), which specifically
contemplates that the revision to a SERC could simply be a “statement of the
[agency’s] reasons for rejecting the [LCRA] in favor of the proposed rule.”
We also reject the Department’s argument—which the ALJ adopted in the
dismissal order—that the Association could not take advantage of this point of entry
because it is not substantially affected by the revised SERC. This argument
erroneously conflates the issues of standing and timeliness.
A person’s standing to challenge a proposed rule depends on whether the
person is substantially affected by the proposed rule. See § 120.56(1)(a) (“Any
person substantially affected by . . . a proposed rule may seek an administrative
determination of the invalidity of the rule . . . .”), (1)(b)2. (“The petition challenging
the validity of a proposed rule . . . must state . . . [f]acts sufficient to show that the
petitioner . . . would be substantially affected by the proposed rule”), Fla. Stat.; but
cf. § 120.541(1)(g) (stating that a rule cannot be invalidated based on the
agency’s wrongful rejection of a LCRA unless it is raised by a person whose
“substantial interests . . . are materially affected by the rejection”) (emphasis added).
Had the Legislature intended that there be a different standing requirement when a
7
rule challenge petition is filed after the point of entry created by the preparation of a
revised SERC, it would have said so. Likewise, had the Legislature intended to limit
the grounds upon which a person could challenge a proposed rule based on the point
of entry after which the petition was filed, it would have said so. Cf. § 120.56(2)(a),
Fla. Stat. (“A person who is not substantially affected by the proposed rule as
initially noticed, but who is substantially affected by the rule as a result of a change,
may challenge any provision of the resulting proposed rule.”).
Finally, we reject the Department’s argument—which the ALJ adopted in the
dismissal order—that it is inequitable to allow the Association to take advantage of
the point of entry that was “serendipitously” created by the preparation of the revised
SERC because there was no reason that the Association could not have filed a rule
challenge petition after one of the first two points of entry. This argument ignores
the fact that the points of entry listed in section 120.56(2)(a) are separated by the
disjunctive conjunction “or,” which indicates that they are mutually exclusive
alternatives. See Sparkman v. McClure, 498 So. 2d 892, 895 (Fla. 1986) (“[T]he
word ‘or’ is generally construed in the disjunctive when used in a statute or rule.
The use of this particular disjunctive word in a statute or rule normally indicates that
alternatives were intended.”) (citations omitted). Accordingly, a person who is
substantially affected by a proposed rule who fails to take advantage of the first
available point of entry is not necessarily precluded from taking advantage of one of
8
the later points of entry. 6
Conclusion
For the reasons stated above, we reverse the order dismissing the
Association’s rule challenge petition as untimely and remand for consideration of
the petition on its merits.
REVERSED and REMANDED for further proceedings.
OSTERHAUS and M.K. THOMAS, JJ., CONCUR.
6
That said, we agree with the ALJ’s comment in the dismissal order that a prudent
person will file a rule challenge petition at the first available opportunity.
9