Florida/Georgia Personal Injury & Workers Compensation

...ting molten sulphur. The air pollution potential from prill is controlled by moisture. During off-loading at dockside, the prill is sprayed with water to prevent dusting. Agrico initiated this proceeding by filing an application with DER pursuant to section 403.087, Florida Statutes (1977), for a construction permit to construct a terminal facility in Tampa to handle prill sulphur. Since the proposed terminal facility would constitute a potential pollution source under section 403.087, Agrico was required to comply with the procedure in chapter 17-4, Florida Administrative Code, which requires an applicant first to obtain a construction permit and then, after testing for compliance with pollution standards, an operation permit....

...at the rule-making function of an agency is "quasi-legislative action," and its activities in that respect "must be considered with deference to that function." ( Agrico, supra, at 762) *788 DER's Rule 17-4.07, Florida Administrative Code implements Section 403.087 (and other provisions), Florida Statutes....

...For example, section 403.061 (powers and duties) authorizes DEP to establish all rules and regulations necessary "to control and prohibit pollution of air and water in accordance with the law and rules and regulations adopted and promulgated by it." § 403.061, Fla. Stat. (1993). Section 403.087(3) (issuance of permits) directs DEP to "issue permits on such conditions as are necessary to effect the intent and purpose of this section." Id. § 403.087(3)....

...derive that power from a statutory base. Section 120.54(14), Fla. Stat. (1981). Grove Isle contends on appeal, as it did before the DOAH hearing officer, that the challenged rules are invalid because they were enacted without legislative authority. Section 403.087, Florida Statutes (1981), provides specific statutory authority which allows DER to "adopt, amend, or repeal rules, regulations, and standards for the issuance, denial, and revocation of permits." Also, section 403.061(7), Florida Sta...

...l. In other words, the rule appears to allow DER to determine arbitrarily whether an applicant has proposed an activity which is "clearly in the public interest" based on DER's subjective and unwritten notions of what the "public interest" might be. Section 403.087(2), Florida Statutes (1981), lays an affirmative duty upon DER to issue permits. Section 403.087, inter alia, states: (3) The department shall issue permits on such conditions as are necessary to effect the intent and purposes of this section....

...ratory judgment in which the trial court determined that appellees-Oyster Bay Estates, Inc., and Robert I. Kornegay, may proceed with development of their waterfront property in Wakulla County without being required to obtain a permit under Sections 403.087 and 403.088, Florida Statutes (1979)....

...The issue concerning the sufficiency of appellees' 1969 permit arose by virtue of the State's assertion of jurisdiction to impose additional permitting requirements under subsequently enacted legislation. Specially, Chapter 71-203, Florida Statutes (1979), effective January 1, 1972 (now Sections 403.087 and 403.088, Florida Statutes (1979)), required a permit for the construction or maintenance of any installation which will reasonably be expected to be a source of air or water pollution....

...ssary before the development could be completed as originally planned. [2] Being unsuccessful in obtaining the required permits, appellees filed for declaratory judgment in the circuit court, seeking a determination that the requirements of Sections 403.087 and 403.088 cannot be enforced so as to require a permit....

...However, in reversing the Department's action the court was not ruling upon whether the property owner was subject to statutory enactments under which the standards were promulgated. The opinion mentions the circumstance that, pending the application, amendments to Chapter 403 were enacted (Section 403.087(1), Chapter 71-203, Laws of Florida). This reference to a statutory change was only incidental to the court's decision, since state "certification" was required by federal law independently of and *894 prior to the enactment of the permit requirements of Section 403.087....

...hority to establish a permit system, apparently no regulations implementing this permitting authority for air and water pollution sources were promulgated until May 17, 1972, Chapter 17-3, Florida Administrative Code, following enactment of Sections 403.087, 403.088, Florida Statutes (1971)....

...The answer alleges also that appellees applied to the Department for certification (under Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.), and a permit (Chapter 403), which were denied. [3] See footnote 1 as to adoption of rules implementing permit requirements of Sections 403.087 and 403.088, Florida Statutes (1971)....

...uction or expansion of any installation that may be a source of air or water pollution; . ." See footnote I regarding permits. Section 403.061(16) was retained in the 1971 Florida Statutes, but additional provisions were added, particularly Sections 403.087 and 403.088 expressly prohibiting construction or maintenance of an installation "reasonably expected to be a source of air or water pollution . . without an appropriate and currently valid permit issued by the department ...," (Section 403.087(1)), and prohibiting "discharge into waters within the state" which reduces the quality of the receiving waters below the classification established for them (Section 403.088(1) et seq.)....

...Public Law 92-500 (Title 33 U.S.C. § 1341). For history see 1972 U.S. Code Congressional and Administrative News, page 3668. [7] The Sexton Cove ruling could be applied to a change in water quality standards after application for a permit for completed work under Sections 403.087 or 403.088, Florida Statutes....

...inier. Section 403.061, Florida Statutes (1983), gives DER the power and duty to "establish a permit system whereby a permit may be required for the operation, construction or expansion of any installation that may be a source of air ... pollution;" Section 403.087(1) states that "no stationary installation which will reasonably be expected to be a source of air ......

...Division of Florida Land Sales and Condominiums, 421 So.2d 623 (Fla. 1st DCA 1982). The crux of this case is simply that before Gardinier may be allowed to proceed with a project that will reasonably be expected to cause water pollution, or air pollution, or both, an "appropriate" permit is required. Section 403.087(1), Florida Statutes (1983)....

...inary to agency action." [3] It can hardly be argued that a "no permit required" decision confers any right to construct or operate a source of pollution, since the statutes, and related rules, conclusively prohibit such activities without a permit. Section 403.087(1), Florida Statutes (1983)....

...r unreasonably interfere with the enjoyment of life or property, including outdoor recreation. [7] On the issue of entitlement to the permit, the burden of proof would lie with the applicant, Gardinier. Rule 17-1.59, Florida Administrative Code. [8] Section 403.087(4), Florida Statutes (1983).

...(27) Perform any other act necessary to control and prohibit air and water pollution, and to delegate any of its responsibilities, authority, and powers, other than rulemaking powers, to any state agency now or hereinafter established. [9] (Emphasis supplied). With respect to proscribed developmental activities, section 403.087(1), Florida Statutes (1981), prohibits the operation, maintenance, construction, expansion, or modification, without an appropriate and currently valid permit, of any "stationary installation [10] which will reasonably be expected to be a source of air or water pollution," "unless exempted by department rule." In accordance with its mandate under section 403.087, DER properly promulgated and adopted rules and regulations relating to the issuance of such permits....

...He shall be and have been a member of the bar of Florida for the preceding five years. He shall devote full time to his duties, and he shall not engage in the private practice of law. State attorneys shall appoint such assistant state attorneys as may be authorized by law. [5] See §§ 403.087(1); 403.161(1)(a), (b); Rules 17-4.02(3), (17); 17-4.03, 17-4.28(1)(3), Fla....

...laration that the final order allowed LMI to use the anchors without a permit. DER issued its declaratory statement finding that use of the type of anchors described in the petition would require a permit. This finding was based upon Florida Statute Section 403.087(1), which requires that a permit be obtained for "any stationary installation which will reasonably be expected to be a source of pollution." "Stationary" is undefined by rule or statute....

...tification from respondent that water quality standards would not be (were not) violated by the canals. Petitioner then made application to respondent for such certification. In the meantime, during the pendency of the application for certification, § 403.087(1), Florida Statutes, 1971 (Ch....

...l Board for its decision. After considerable delay, the Board advised that a hearing examiner would be appointed and hearing would be held on October 19, 1973. Ten days before the hearing, on October 9, 1973, respondent served notice of violation of § 403.087(1), supra, upon petitioner and the hearing was held on both petitioner's request for review of the denial of certification and on the notice of violation. Respondent thereafter considered the findings of the hearing examiner and denied petitioner's request for certification. Although it found petitioner to be in violation of § 403.087(1), supra, it took no penal action on the violation....

...The delay here was occasioned by appellant's failure to provide adequate *725 pollution control facilities under Chapter 403, Florida Statutes, so as to bring the project within the standards or rules promulgated by the Department of Environmental Regulation. Section 403.087, Florida Statutes....

...finding of fact that surface water contamination in the park site could be removed once detected. We reject appellant's arguments. DER's permitting jurisdiction over future park tenants is assured by the broad permitting jurisdiction granted DER by Section 403.087(1), Florida Statutes (1983), regarding "stationary installation[s] which will reasonably be expected to be a source of air or water pollution......

...state water quality standards. Appellant contends that DER has no authority to permit the deposit of further pollutants from new sources into the already contaminated water, no matter how de minimis the impact on the receiving water, citing Sections 403.087 and 403.088, Florida Statutes (1983)....

...NOTES [1] Moreover, the stipulation entered into by DER and the developers requiring future park tenants to submit to the DER permitting process is an appropriate exercise of DER's statutory authority to condition the grant of permits "... as ... necessary to effect the intent and purposes of [Section 403]", Section 403.087(3), Florida Statutes (1983). [2] These statutes provide in relevant part: 403.087 Permits; general issuance; denial; revocation; prohibition; penalty....

...Stat., (prohibiting pollution harmful to human, animal, aquatic or plant life, or property); and § 403.161(1)(b), Fla. Stat., (making it unlawful for any person to violate any lawful rule or regulation of the Department). The notice of violation did not specifically mention § 403.087, Fla....

...At the same time Sunshine filed a motion to dismiss arguing that because the discharge occurred prior to its purchase and use of the property, it had no legal responsibility for the cleanup. In its response to Sunshine's motion to dismiss, DER again failed to specifically allege Sunshine to be in violation of § 403.087, Fla....

...the result of acts or omissions of K & F; (3) that as owner of a contaminated property which is continuing to maintain a source of groundwater pollution appellant is "maintaining" a stationary installation which is a source of pollution contrary to § 403.087; and (4) that Sunshine is therefore responsible for abating the pollution emanating from its property....

...result of the acts or omissions of K & F, and that as owner of contaminated property which is continuing to constitute a source of groundwater pollution, Sunshine is "maintaining" a stationary installation which is a source of pollution contrary to § 403.087....

...shine maintained a polluting installation by taking no affirmative steps to abate the continuing discharge. Under the circumstances, I consider that the Department adequately sustained its conclusion that Sunshine violated the permit requirements of Section 403.087, Florida Statutes (1985)....

...In its opinion, the majority also refers to the fact that the agency found Sunshine liable for maintaining a stationary installation which could reasonably be expected to be a source of water pollution, in contravention of the permit requirement provisions of section 403.087, although Sunshine was not charged with violating this particular statute....

...hat the discharge was caused solely by the acts of a third party, and, as a result, Sunshine is exonerated from any liability. Nonetheless, if the majority's opinion was influenced in any respect by the failure of the agency to allege a violation of section 403.087 in its notice of violation, I cannot agree that the Department's failure to reference this statute prejudiced Sunshine from adequately defending itself....

...mit, given the general allegations stated. Moreover, despite the lack of reference to the statute in the initial notice of violation, the Department, before the case proceeded to hearing, in response to Sunshine's motion to dismiss, explicitly cited section 403.087....

times without proper permits in violation of section 403.87, Florida Statutes, and sections 62-601.300(1)

...a Statutes, which prohibits the extension of existing lands bordering on or being in the “navigable waters” of the State without compliance with statutes restricting bulkhead *508 lines waterward of the line of mean, or ordinary, high water; (2) section 403.087, Florida Statutes, which prohibits the construction, maintenance of any structure, equipment, facility, or operation which would reasonably be expected to be a source of pollution of “waters of the state” as defined in section 403...

...11 Upon enactment of the Wetlands Protection Act in 1984, FAR 17-4.022 was revised to provide an expanded list of vegetative species for purposes of delineating the DER wetlands jurisdictional line relating both to DER’s old pollution based regulatory authority (sections 403.087 and 403.161, Fla.Stat.), and also as to its new dredge and fill authority under the Wetlands Protection Act....

...Furthermore, the Perrys’ complaint does not allege, and there is no evidence, (1) that the fill dirt placed on the property in question by Field and Bruce in December, 1985, constituted a “structure” which could reasonably be expected to be a source of pollution invoking DER regulatory authority under section 403.087, Florida Statutes, or (2) that such fill dirt constituted a pollutant harmful or injurious to animal, plant or aquatic life or property so as to involve DER regulatory authority under section 403.161, Florida Statutes....

applicable pollution control standards and rules. § 403.-087, Fla.Stat. (1989). See Council of Lower Keys

intent to deny the application “pursuant to Section 403.087 and 253.123, Florida Statutes (F.S.), and Sections

...However, we do find that the no-discharge plan did not constitute such a major or substantial change in the proceedings as to result in a due process violation. See Hopwood v. Department of Environmental Regulation, 402 So.2d 1296 (Fla. 1st DCA 1981). Section 403.087(1), Florida Statutes, provides: (1) No stationary installation which will- reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and cu...

...Estech argues that the order is within the department’s discretion and that Estech should be permitted to spend millions of dollars on construction while “taking its chances” that it will receive the groundwater permit necessary to begin operations. However, § 403.087(1) 6 is clear on its face in prohibiting the construction of a probable source of pollution without an appropriate permit....

...See generally, § 403.021; Fla.R.Admin.P. 17-3. . If the facts of the case were inverted so that the stipulation attempted to modify a no-discharge plan into a controlled discharge plan, due process issues would assume a different character. See Hopwood, supra. . 403.087 Permits; general issuance; denial; revocation; prohibition; penalty.— (1) No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modifie...

...[[Image here]] (27) Perform any other act necessary to control and prohibit air and water pollution, and to delegate any of its responsibilities, authority, and powers, other than rulemaking powers, to any state agency now or hereinafter established. 9 (Emphasis supplied). With respect to proscribed developmental activities, section 403.087(1), Florida Statutes (1981), prohibits the operation, maintenance, construction, expansion, or modification, without an appropriate and currently valid permit, of any “stationary installation 10 which will reasonably be expected to be a source of air or water pollution,” “unless exempted by department rule.” In accordance with its mandate under section 403.087, DER properly promulgated and adopted rules and regulations relating to the issuance of such permits....

...He shall be and have'been a member of the bar of Florida for the preceding five years. He shall devote full time to his duties, and he shall not engage in the private practice of law. State attorneys shall appoint such assistant state attorneys as may be authorized by law. . See §§ 403.087(1); 403.161(l)(a), (b); Rules 17-4.02(3), (17); 17-4.03, 17-4.28(1)(3), Fla.Admin.Code....

...3 And see , AGO 70-170 which discusses the authority of the Department of Environmental Regulation (formerly the Department of Air and Water Pollution Control) to establish a permit system for the construction, expansion, or operation of installations which may be a source of water pollution. 4 Section 403.087 (1), F.S. 5 Section 403.087 (4), F.S....

...equently adopted rule. Among the conditions listed on the 1983 permit were two conditions requiring the facility to operate backup and auxiliary facility or similar systems when necessary to achieve compliance with changes in Department rules. Also, section 403.087, Florida Statutes (1989), permits the Department to issue new permits upon the expiration of old permits only in accordance with Department rules and regulations then existing....