IN SUPREME COURT OF THE STATE OF FLORIDA SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Petitioner,

vs. SC12-2336 L.T. 5Dll – 2329 RLI LIVE OAK, LLC.,

Respondent. _____________________________________/

ON DISCRETIONARY REVIEW OF A DECISION OF THE FIFTH DISTRICT COURT OF APPEAL CERTIFIED TO RAISE AN ISSUE OF GREAT PUBLIC IMPORTANCE

FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION’S AMICUS BRIEF IN SUPPORT OF

SOUTH FLORIDA WATER MANAGEMENT DISTRICT

Matthew Z. Leopold General Counsel Jack Chisolm Deputy General Counsel Florida Bar No. 273473 Florida Department of Environmental Protection 3900 Commonwealth Blvd., MS-35 Tallahassee, FL 32399-3000 Telephone: 850-245-2242

Electronically Filed 06/27/2013 05:01:15 PM ET

RECEIVED, 6/27/2013 17:03:39, Thomas D. Hall, Clerk, Supreme Court

TABLE OF CONTENTS

TABLE OF CITATIONS ......................................................................................... iv

GLOSSARY .............................................................................................................. vi

IDENTITY AND INTEREST OF AMICUS CURIAE............................................. 1

SUMMARY OF THE ARGUMENT ........................................................................ 2

STANDARD OF REVIEW ....................................................................................... 4

ARGUMENT ............................................................................................................. 5 THE TRIAL COURT CORRECTLY HELD THAT, WHEN AN AGENCY ASKS THE COURT TO IMPOSE CIVIL PENALTIES FOR VIOLATIONS OF CHAPTER 373, FLORIDA STATUTES, THE PREPONDERANCE OF EVIDENCE STANDARD APPLIES, BECAUSE THE NATURE OF THE ACTION AND ITS CONSEQUENCES DO NOT REQUIRE A HIGHER DEGREE OF PROOF THAN THAT GENERALLY APPLICABLE IN OTHER CIVIL ACTIONS ....................................................................................................... 5

A. The Purpose of Standards of Proof Is to Allocate for the Factfinder the Relative Risk of Erroneous Factual Determinations Between the Parties, Based on How Society Values the Individual and The Public Interest Involved ...................................................................................................... 5

B. Florida Law, Like Federal Law, Assigns a Standard of Proof Based on the Nature and Consequences of the Case, Offering a Higher Degree of Protection to Particularly Important Individual Rights ............................. 8

C. The Nature and Consequences of an Action to Impose Civil Penalties for Violations of Environmental Laws Differs Significantly from an Action to Impose Penalties on a Regulated Professional ........................ 11

1. A Finding that a Person Has Violated Environmental Laws Is Not Ruinous to the Violator’s Reputation ............................................... 11

2. Imposition of a Civil Penalty for Environmental Violations Does Not Preclude One From Practicing a Vocation ...................................... 12

ii

3. The Purpose of Civil Penalties for Environmental Violations Is Not Primarily to Punish ........................................................................... 12

4. One of the Consequences of Requiring a Clear and Convincing Standard of Proof in Environmental Civil Penalty Cases Is that the Legislative Directives to Obtain and Retain Federal Program Approvals Could Be Jeopardized ..................................................... 13

5. A Second Unintended Consequence of Holding that All Civil Penalties in a Circuit Court Action Must Be Proven by Clear and Convincing Evidence, Is that Violators Would Be Given a Choice as to the Standard of Proof that Will Be Applied to Them .................... 18

D. The Department’s Compelling Environmental and Programmatic Interests Weigh Strongly in Favor of a Preponderance of the Evidence Standard in Environmental Enforcement Cases Seeking Civil Penalties 18

CONCLUSION ....................................................................................................... 20

CERTIFICATE OF SERVICE ................................................................................ 21 CERTIFICATE OF COMPLIANCE ....................................................................... 21

iii

TABLE OF CITATIONS CASES Addington v. Texas, 441 U.S. 418, 423 (1979) ................................................................................... 6,7,17 Allstate Ins. Co. v. Vanater, 297 So. 2d 293, 295 (Fla. 1974)................................................................................. 8 Bowling v. Dep’t of Ins., 394 So. 2d 165, 171 (Fla. 1St DCA 1981) ................................................................ 10 Chaunt v. United States, 364 U.S. 350, 353 (1960) ........................................................................................... 7 City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971) ......................................................................................... 19 D ‘Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003)................................................................................. 5 Dep’t of Envtl Regulation v. Brown, 449 So. 2d 908, 908-909 (Fla. 3d DCA 1988) ......................................................... 13 Dep’t of Envtl Regulation v. Kaszyk, 590 So. 2d 1010, 1012 (Fla. 3d DCA 1991) ............................................................ 13 Dep’t of Banking & Fin. v. Osborne Stern & Co., ......................................... 9,10,13 670 So. 2d 932 (Fla. 1996) Diaz de la Portilla v. Fla. Elections Comm’n, 875 So. 2d 913, 917 (Fla. 3d DCA 2003) .................................................................. 9 Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987) .................................................. 8,10

Herman & Maclean v. Huddleston 459 U.S. 375, 389 (1983) ........................................................................................... 6 In Re Bryan, 550 So. 2d 447 (Fla. 1989) ......................................................................................... 8

iv

In Re Pando, 903 So. 2d 902, 903 (Fla. 2005)................................................................................. 9 In Re Winship, 397 U.S. 418, 423 (1979) ........................................................................................... 6 Latham v. Fla. Comm’n on Ethics, 694 So. 2d 83, 84-86 (Fla. 1st DCA 1997) ................................................................ 9 Mattingly v. United States, 924 F. 2d 785 (8th Cir. 1991) ................................................................................... 7 Santacroce v. Dep’t of Banking & Fin., 608 So. 2d 134, 137 (Fla. 4th DCA 1992) ....................................................... 8,10,11 Schneiderman v. United States, 320 U.S. 118, 125, 159 (1943) ................................................................................... 7 State v. Hamilton, 388 So. 2d 561 (Fla. 1980) ....................................................................................... 19 Stern v. Miller, 348 So. 2d 303(Fla. 1977) ....................................................................................... 17 Woodby v. INS, 385 U.S. 276, 285 (1966) ........................................................................................... 7 United States v. Reagan, 232 U.S. 37, 48-49 (1914) ......................................................................................... 7 STATUTES Chapter 2001-258, § 2, Laws of Florida ...................................................................... 18 Chapter 373, Florida Statutes ...................................................................................... 1,5 § 373.430(6), Fla. Stat. (2011) .............................................................................. ... ..12 Chapter 403, Florida Statutes ....................................................................................... 19

v

§ 403.021, Fla. Stat. (1977) ........................................................................... .... .........19 § 403.121(2)(d), Fla. Stat. (2011)..................................................................... .... ......18 § 403.161(6), Fla. Stat. (2011) ................................................. ... ...............................13 §403.727(4), Fla. Stat. (2011) ...................................................................................... 11 §517.221(3), Fla. Stat. (2011) ................................................................................. 10,13 FLORIDA RULES Fla.Admin.Code R. 62-602.870 ....................................................................... ...... .....12 OTHER AUTHORITIES 33 U.S.C. 1251 ......................................................................................................... 14

42 U.S.C. 300f .......................................................................................................... 14

42 U.S.C. 6901 ......................................................................................................... 14

42 U.S.C. 7401 ......................................................................................................... 14

40 C.F.R. §22.24 ...................................................................................................... 17

40 C.F.R. Pt. 123, Subpt. B ...................................................................................... 15

40 C.F.R. §123.24 (b)(2) .......................................................................................... 16

40 C.F.R. §123.27 .................................................................................................... 15

40 C.F.R. §123.27(a) (3)(i) ...................................................................................... 15

40 C.F.R. §123.63 .................................................................................................... 16

40 C.F.R. Pt. 271, Subpt.A ...................................................................................... 16

40 C.F.R. §271.16 .................................................................................................... 16

vi

40 C.F.R. §271.16(a)(3)(i) ....................................................................................... 16

40 C.F.R. §271.16(b)(2) ........................................................................................... 16

40 C.F.R. §271.23 .................................................................................................... 16

40 C.F.R. Pt. 272, Subpt.K ...................................................................................... 16

60 Fed. Reg. 25719 (1995) ...................................................................................... 14

GLOSSARY OF BRIEF REFERENCES The following abbreviations/references will be used in this answer brief: ABBREVIATION/ REFERENCE

DESCRIPTION OF ABBREVIATION/REFERENCE

Department

Appellee Department of Environmental Protection

District Appellee South Florida Water Management District

EPA The United States Environmental Protection Agency

(IB:##) Initial Brief by page number(s)

vii

IDENTITY AND INTEREST OF AMICUS CURIAE The amicus curiae filing this brief in support of the Petitioner, South Florida

Water Management District (“District”), is the Florida Department of

Environmental Protection (“Department”). It has an interest in this case as the

agency of the State of Florida responsible for administering multiple chapters of

the Florida Statutes that are intended to preserve, protect, and enhance Florida’s

environment. Under Chapter 373, Part IV, Florida Statutes, the Department shares

responsibility with Florida’s water management districts, including the District, for

protecting the state’s wetlands and other surface waters. The Department and the

District thus share a common core of statutory authority and rules designed to

accomplish this end.

In this proceeding, the Court has agreed to consider the applicable standard

of proof that should be applied in civil environmental enforcement actions when

the District is seeking to recover civil penalties for violations of environmental

laws and rules. Any decision by the Court on this issue will necessarily also affect

the Department’s similar civil enforcement proceedings, brought under this

common authority.

In addition, the Department administers and enforces a number of federal

environmental programs, as directed by the Florida Legislature. If the Court

adopts a rule that requires that when an agency seeks civil penalties, the underlying

violations of environmental statutes and rules must be proven by clear and

convincing evidence, rather than by a preponderance of the evidence, the

Department may face loss of federal program approval for at least two

environmental programs, as discussed infra. This would thwart the legislative goal

that the Department obtain delegation or approval of these federal programs for the

benefit of its citizens.

SUMMARY OF THE ARGUMENT

The purpose of a standard of proof is to inform the factfinder how to allocate

the risk of error between the litigants. In the absence of a legislative

determination, both federal and Florida courts allocate the risk of error by

balancing the interests of the parties and society that will be affected by the

outcome of the litigation.

In criminal proceedings, courts have long established that the government

should bear the risk of error, because the defendant’s strong life and liberty

interests would be negatively affected by an erroneous judgment. Thus, the courts

have adopted the beyond a reasonable doubt standard of proof. In routine civil

proceedings involving a monetary dispute between private parties, in contrast,

courts generally apply the preponderance of the evidence standard of proof.

Because society does not have a heightened interest in the outcome of these private

civil proceedings, the risk of error is allocated roughly equally between the parties.

2

In certain civil cases, the defendant may have an interest that is sufficiently

compelling to require imposition of a higher standard of proof, clear and

convincing evidence. This standard shifts the risk of error away from the

defendant, and toward the plaintiff. This standard is generally imposed when there

is a particularly important individual interest that must be protected against the risk

of error in the litigation. Courts do not apply this elevated standard to cases that

simply require the payment of money.

There are some Florida cases reflecting that, in specific contexts, statutory

violations resulting in administrative fines must be proven by clear and convincing

evidence; these most often occur in disciplinary proceedings involving highly

regulated professions, such as sales of securities. However, this Court recognizes

that the trial court must consider both the nature and consequences of imposing an

administrative fine in determining the appropriate standard of proof.

The imposition of civil penalties for violations of environmental laws has

significantly different impacts on a defendant’s rights than might occur in

disciplinary cases. A finding that one has violated an environmental statute does

not carry the stigma that might result from a finding of unethical behavior, for

instance. Thus, the defendant’s interest is merely monetary, and due process

concerns are not implicated.

3

In contrast to this modest individual interest, existing strong public policy

supports ensuring compliance with environmental laws. Environmental penalties

are imposed by the Court to ensure compliance. In addition, the Legislature has

directed that the Department seek approval or delegation of several federal

programs for the benefit of Florida’s citizens. Retaining federal approval of at

least two of Florida’s environmental programs could be jeopardized if the

Department is required to impose a higher standard of proof for enforcement

actions than that applied at the federal level. The generally applicable standard of

proof in federal environmental enforcement actions is preponderance of the

evidence when civil money penalties are being sought.

The District has demonstrated in its Initial Brief that the legislature intended

civil penalties for environmental violations to be governed by a preponderance of

the evidence standard and that such a standard is consistent with due process

requirements. To apply a higher standard threatens the Department’s ability to

administer federal programs, as directed by the legislature. After balancing all of

the parties’ and societal interests, preponderance of the evidence should be the

standard applied to these cases.

STANDARD OF REVIEW

The question of whether, consistent with the trial court’s ruling, the

preponderance of the evidence standard applies in a civil environmental

4

enforcement action is an issue of law, subject to the de novo standard of review.

See D'Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003) (reflecting that the

de novo standard of review applies to questions of law).

ARGUMENT

THE TRIAL COURT CORRECTLY HELD THAT, WHEN AN AGENCY ASKS THE COURT TO IMPOSE CIVIL PENALTIES FOR VIOLATIONS OF CHAPTER 373, FLORIDA STATUTES, THE PREPONDERANCE OF THE EVIDENCE STANDARD APPLIES, BECAUSE THE NATURE OF THE ACTION AND ITS CONSEQUENCES DO NOT REQUIRE A HIGHER DEGREE OF PROOF THAN THAT GENERALLY APPLICABLE IN OTHER CIVIL ACTIONS

The Florida Department of Environmental Protection agrees with the District

that the trial court correctly held that civil penalties for violations of Chapter 373,

Florida Statutes, should be based on proof of the violations by a preponderance of

the evidence. An analysis of the purpose of standards of proof in light of the

nature and consequences of this particular proceeding confirms that the trial court

correctly ruled on this issue. Thus, the opinion of the Fifth District Court of

Appeal holding that clear and convincing evidence is the correct standard of proof

should be reversed, and the trial court’s decision should be affirmed.

A. The Purpose of Standards of Proof Is to Allocate for the Factfinder the Relative Risk of Erroneous Factual Determinations Between the Parties, Based on How Society Values the Individual and the Public Interests Involved

5

The purpose of standards of proof is to “instruct the factfinder concerning

the degree of confidence our society thinks he should have in the correctness of

factual conclusions for a particular type of adjudication.” In Re Winship, 397 U.S.

358, 370 (1970) (Harlan, J., concurring). “The standard serves to allocate the risk

of error between the litigants and to indicate the relative importance attached to the

ultimate decision.” Addington v. Texas, 441 U.S. 418, 423 (1979). If Congress

(or the legislature) “has not prescribed the appropriate standard of proof and the

Constitution does not dictate a particular standard, [the court] must prescribe one,”

keeping in mind this purpose. Herman & Maclean v. Huddleston, 459 U.S. 375,

389 (1983).

In Addington, the U.S. Supreme Court discussed the continuum of standards

of proof that might apply to cases presented for judicial determination. The Court

noted that at one end lies the typical private civil case for money damages, which

requires only proof of the facts by a preponderance of the evidence. “Since society

has a minimal concern with the outcome of such private suits, plaintiff's burden of

proof is a mere preponderance of the evidence. The litigants thus share the risk of

error in roughly equal fashion,” Addington, 441 U.S. at 423. At the other extreme

are criminal prosecutions, which require proof of the facts beyond a reasonable

doubt. Addington, 441 U.S. at 423-24 (citing In Re Winship, 397 U.S. at 370).

6

The clear and convincing evidence standard is an intermediary

standard, used in civil cases in which the defendant’s interests at stake are

more substantial than the mere loss of money. This standard is intended to

protect “particularly important individual interests in civil cases.”Addington,

441 U.S. at 424 (emphasis added) (citing Woodby v. INS, 385 U.S. 276, 285

(1966) (involving deportation); Chaunt v. United States, 364 U.S. 350, 353

(1960) (involving denaturalization); Schneiderman v. United States, 320

U.S. 118, 125, 159 (1943) (same).

The U. S. Supreme Court has not viewed the requirement that a person pay

money as a “particularly important individual interest” (when measured against

other societal interests) worthy of the elevated level of proof imposed by the “clear

and convincing” standard. See Herman & Maclean, 459 U.S. at 390-391

(appropriate standard of proof in a securities fraud suit alleging fraud and

misrepresentation is preponderance of the evidence, not clear and convincing

evidence); United States v. Reagan, 232 U.S. 37, 48-49 (1914) (proof by a

preponderance of the evidence was sufficient in a civil suit to recover a penalty for

violation of alien immigration act involving proof of acts that also exposed a party

to a criminal prosecution); Mattingly v. United States, 924 F. 2d 785 (8th Cir.

1991) (violations of the tax code, other than tax fraud, need only be proven by a

preponderance of the evidence). Federal law thus allows application of the normal

7

civil standard of proof, except when particularly important interests or rights are at

stake. Then, any countervailing societal interest must also be taken into account.

B. Florida Law, Like Federal Law, Assigns a Standard of Proof Based on the Nature and Consequences of the Case, Offering a Higher Degree of Protection to Particularly Important Individual Rights

Florida law regarding the appropriate standard of proof to be applied in civil

cases is similar to the analogous federal law. Unlike the instant case, if there is no

legislatively mandated standard of proof, the general rule in Florida is that the

preponderance of the evidence standard is appropriate in civil cases. See Allstate

Ins. Co. v. Vanater, 297 So. 2d 293, 295 (Fla. 1974) (recognizing three basic

standards of proof and that the preponderance of the evidence standard is “used in

most civil actions”). Further, Florida law, like federal law, recognizes that, in civil

cases where particularly important interests or rights are at stake a higher level of

proof—clear and convincing evidence—is required. See e.g. In Re Bryan, 550 So.

2d 447 (Fla.1989) (reflecting that clear and convincing evidence is required to

make a determination of incompetency [which the court likened to mental

“confinement”]); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987) (loss of

livelihood resulting from revocation of a professional license due to alleged sexual

misconduct requires the higher standard); Santacroce v. Dep’t of Banking & Fin.,

608 So. 2d 134, 137 (Fla. 4th DCA 1992) (noting that the non-financial sanctions

imposed by the agency had “the effect of so severely limiting appellant's practice

8

of his chosen profession as to virtually prohibit such practice altogether”) Latham

v. Fla. Comm’n on Ethics, 694 So. 2d 83, 84-86 (Fla. 1st DCA 1997) (holding that

the clear and convincing evidence standard applies to a proceeding before the

Commission on Ethics seeking to impose sanctions, including civil penalties, on

public officers for violation of a corruption statute); Diaz de la Portilla v. Fla.

Elections Comm’n, 857 So. 2d 913, 917 (Fla. 3d DCA 2003) (reflecting that clear

and convincing evidence is required to impose sanctions, including civil penalties,

based on a determination that a candidate has violated the Campaign Financing

Law, which has a “ruinous effect on an individual’s reputation for personal

integrity” and the individual’s potential to seek public office); See, e.g., In Re

Pando, 903 So. 2d 902, 903 (Fla. 2005) (reflecting that sanctions, including

disciplinary fines, for alleged judicial misconduct must be based on findings

proven by clear and convincing evidence).

This Court placed Department of Banking & Finance v. Osborne Stern &

Co., 670 So. 2d 932 (Fla. 1996) into this subcategory of cases requiring a higher

degree of protection. In Osborne, this Court considered the certified question of

whether denial of a professional license based on violations committed by the

applicant and administrative fines imposed by the agency because of the alleged

violations of Chapter 517, Florida Statutes, regulating the sale of securities,

required application of the clear and convincing evidence standard. The Court first

9

observed that “parties are held to varying standards of proof at the fact-finding

stage in administrative proceedings depending on the nature of the proceedings and

the matter at stake.” Id. at 933 (citing Bowling v. Dep’t of Ins., 394 So. 2d 165,

171 (Fla. 1st DCA 1981), Relying on the well-known principle that in a licensing

proceeding the applicant must demonstrate entitlement to the license, the Court

held that preponderance of the evidence was the appropriate standard of proof for

licensing1. The court then observed that it must look to the “nature of the

proceedings and their consequences to determine the degree of proof required to

justify the Department’s imposition of administrative fines under Section

517.221(3), Florida Statutes.” Osborne, 670 So 2d at 935. Noting that

administrative fines like those imposed under that statute are penal2 in nature, and

implicate significant property rights, the Court agreed that imposing the higher

standard of proof was necessary. The case does not, however, stand for a

universal proposition that all administrative fines, much less all civil penalties,

must be established by clear and convincing evidence; in each case, the Court must

1 By contrast, professional license revocation proceedings are subjected to a “clear and convincing evidence” standard of proof. See, Ferris v. Turlington, 510 So. 2d at 294-295 2 The Court cited to Santacroce v. Dep’t of Banking & Fin., 608 So. 2d at 137 However, Santacroce does support the proposition for which it is cited. The decision refers to severe sanctions being imposed, but these sanctions were restrictions on the respondent’s ability to conduct his profession, not the administrative fines, which were relatively minor, and were adjusted downward based on a failure of the agreed facts to support the penalties.

10

consider the nature and consequences of the case, including a consideration of the

parties’ and society’s interests in the outcome. As the Court’s reference to

Santacroce makes clear, the nature and consequences of the action were considered

in the context of a professional discipline case.

C. The Nature and Consequences of an Action to Impose Civil Penalties for Violations of Environmental Laws Differs Significantly from than an Action to Impose Penalties on a Regulated Professional

The District has demonstrated in its Initial Brief that the Legislature intended

that the preponderance of the evidence standard apply in actions for civil penalties

for violation of environmental laws, and that no due process consideration requires

a heightened standard. Initial Brief, pp. 17-31. The nature of an action to impose

penalties for violation of environmental laws, compared to an action to impose

penalties on a regulated professional, and a balancing of the consequences of

imposing such a civil penalty, confirms that standard as correct.

1. A Finding that a Person Has Violated Environmental Laws Is Not Ruinous to the Violator’s Reputation

Penalties for violations of environmental laws do not tend to stigmatize a

defendant in the same way that a finding of a violation associated with conducting

one’s profession might. Although not the case for the violations committed by

RLI, many environmental violations, in fact, are based on strict liability principles

that imply no specific wrongdoing. See, e.g., § 403.727(4), Fla. Stat. (2011)

11

(making the owner of a facility liable for cleanup of hazardous substances that

others may have released). Thus, the consequences of a finding that one has

violated an environmental law are quite different from situations in which

professionals, judges, or legislators may find themselves subjected to scorn, loss of

position, and other severe consequences if found to have violated rules related to

their livelihood.3

2. Imposition of a Civil Penalty for Environmental Violations Does Not Preclude One from Practicing a Vocation

Unlike professional licensing matters, neither a finding of a violation nor the

assessment of penalties under environmental statutes generally precludes one from

practicing a chosen vocation.4 Rather, the outcome may be an order to correct the

violation, to pay damages, or to pay civil penalties.

3. The Purpose of Civil Penalties for Environmental Violations Is Not Primarily to Punish

The primary purpose for imposing civil penalties for environmental

violations is not to penalize for the current violation, but to create an incentive to

quickly come into compliance and to deter the violator and others from committing

future violations. See § 373.430(6), Fla. Stat. (2012) (“It is the intent of the

3 Many environmental violations are also committed by corporate entities, to which the concept of personal discredit does not apply. 4 A specific exception to this general rule would be violations by “certified operators” of water and wastewater facilities. A finding of violation in such a case could ultimately lead to a loss of licensure. See Fla. Admin. Code R. 62-602.870.

12

Legislature that the civil penalties imposed by the court be of such amount as to

ensure immediate and continued compliance with this section.”); § 403.161(6), Fla.

Stat. (2012) (same). There is no such intent expressed in section 517.221(3),

Florida Statutes—the provision addressed in Osborne. Moreover, civil penalties

level the economic playing field when a violator has received an economic benefit

from noncompliance that gives it a comparative business advantage against the

individuals who have paid the associated costs of compliance in the first instance.

See,§ 403.121(8), Fla. Stat. (2012)

Further, civil penalties sometimes serve as a substitute measure of damages

for environmental harm. See Dep’t of Envtl. Regulation v. Kaszyk, 590 So. 2d

1010, 1012 (Fla. 3d DCA 1991) (“The very nature of the violations alleged and

testified to …demonstrate that DER had no remedy at law that would adequately

address the harm being done to the environment. Recognizing that such

environmental damage is not entirely compensable, the legislature gave DER

independent and cumulative remedies of injunctive relief and penalties.”); see also

Dep’t of Envtl Regulation v. Brown, 449 So. 2d 908, 908-09 (Fla. 3d DCA 1988)

(ordering payment of a civil penalty in lieu of restoration of illegally filled

wetland).

4. One of the Consequences of Requiring a Clear and Convincing Evidence Standard of Proof in Environmental Civil Penalty Cases Is that Legislative Directives to Obtain and Retain Federal Program Approvals Could Be Jeopardized

13

The United States Congress has enacted federal statutes regulating

activities that affect the environment. These acts include, inter alia, the

Clean Water Act, the Clean Air Act, the Resource Conservation and

Recovery Act, as amended by the Hazardous and Solid Waste

Amendment Act of 1984, and the Safe Drinking Water Act Amendments

of 19965. The United States Environmental Protection Agency (EPA) has

adopted regulations implementing these laws. These regulations include

requirements that persons or entities conducting regulated activities obtain

permits from EPA. They also give the states the opportunity to create

programs meeting certain requirements, which, if approved, operate in

lieu of the corresponding federal programs administered by EPA. See e.g.,

60 Fed. Reg. 25718, 25722. Permits required for activities regulated by

that approved program are then issued by the State, not EPA.

The Florida Legislature has directed the Department to implement

several federal environmental programs. See §403.061(31), Fla. Stat.,

(National Pollutant Discharge Elimination System, or NPDES), §403.061

(35) (2012), Fla. Stat., (Clean Air Act), §403.704(21), Fla. Stat.,(2012)

(Hazardous and Solid Waste Amendments of 1984, RCRA), Safe

5 33 U.S.C 1251, et seq., 42 U.S.C. 7401, et seq., 42 U.S.C. 6901, et seq., and 42 U.S.C 300f, et seq., respectively.

14

Drinking Water Act §403.851(1), Fla. Stat.(2012). Two of these statutes

expressly require the Department to seek approval or delegation of the

specified federal program. See §403.061(31), Fla. Stat., (2012) and

§403.704(21), Fla. Stat.(2012) The Legislature has explained, with

respect to the NPDES program, “that it is in the public interest to promote

effective and efficient regulation of the discharge of pollutants into waters

of the state and eliminate duplication of permitting programs by the

United States Environmental Protection Agency under s. 402 of the Clean

Water Act…and the department under this chapter.” See §403.0885(1),

Fla. Stat. (2012). Although not expressly stated, this rationale holds true

for the Department’s efforts to obtain delegation or approval of other

federal programs, as well. A failure to obtain approval may result in an

applicant being required to obtain both a state and federal permit for the

same activity.

The requirements that the Department must meet in order obtain

approval of the NPDES program are set forth in 40 C.F.R. Pt. 123, Subpt.

B. One requirement is that the state must have a specified level of

enforcement authority. See 40 C.F.R §123.27. To meet this test, the state

must be able to pursue civil penalties for violations. See 40 C.F.R

§123.27(a)(3)(i). In addition, “[t]he burden of proof and degree of

15

knowledge or intent under State law for establishing violations under

paragraph (a)(3) of this section, shall be no greater than the burden of

proof or degree of knowledge or intent EPA must provide when it brings

an action under the appropriate Act.” See 40 C.F.R. §123.27(b)(2). The

state has received program approval. See 60 Fed. Reg. 25719 (May 12,

1995). However, that program approval can be withdrawn if the state fails

to comply with a requirement necessary for continued approval. See 40

C.F.R §123.63.

Similarly, the requirements for obtaining approval of the RCRA

program are found at 40 C.F.R. Pt. 271, Subpt.A. The requirements for

enforcement authority are set forth in 40 C.F.R. section 271.16. Like the

NPDES program requirements, the Department must be able to recover

civil penalties. See 40 C.F.R. §271.16(a)(3)(i). Further, state law may not

impose a more stringent burden of proof and degree of knowledge or

intent than what EPA must provide when it brings an action under the Act.

See 40 C.F.R. §271.16(b)(2). The state has received program approval.

See, 40 C.F.R. Pt. 272, Subpt.K. Approval can be withdrawn. See 40

C.F.R. §271.23.

The United States Supreme Court has held that preponderance of the

evidence is the standard of proof that must be applied in most civil cases,

16

including most cases for civil money penalties. See, Addington v. Texas,

441 U.S. at 423. Further, EPA has adopted rules establishing the standard

of proof that must be demonstrated by EPA when it is prosecuting

administrative penalty cases—preponderance of the evidence. See 40

C.F.R. § 22.24. A holding by this Court that all state law violations

supporting civil penalties must be proven by clear and convincing

evidence would be more stringent than the burden imposed on EPA when

seeking the same civil penalties in federal forums, and could thus result in

a loss of federal program approval. The legislature is presumed to know

the law—that obtaining approval of these federal programs requires that

the state apply a preponderance of the evidence standard. See Stern v.

Miller, 348 So. 2d 303 (Fla. 1977). This strongly suggests that it intended

the preponderance standard to apply.

In balancing the interests at stake in this proceeding and deciding the

appropriate standard of proof that must be applied to claims for civil penalties

based on violations of environmental laws, the Court must consider the impact that

its holding will have on the public interest as enunciated by the Legislature. A

decision that all such violations must be proven by clear and convincing evidence

will thwart that enunciated policy, resulting in duplicative permitting and other

actions.

17

5. A Second Unintended Consequence of Holding that All Environmental Civil Penalties in a Circuit Court Action Must Be Proven by Clear And Convincing Evidence, Is that Violators Would Be Given a Choice as to the Standard of Proof that Will Be Applied to Them

The Environmental Litigation Reform Act, Chapter 2001-258, § 2, Laws of

Florida, specifically granted the Department the authority to impose administrative

penalties for environmental violations specified in the Act. The legislature

established preponderance of the evidence as the standard of proof for imposing

these administrative penalties. See §403.121(2)(d), Fla. Stat.(2012). The Act,

however, allows a person alleged to have committed such a violation to “opt out”

of the administrative process. See, §403.121(2)(c) Fla. Stat. If the Court holds that

these violations must be established by clear and convincing evidence in Circuit

Court, there would be two separate standards of proof for the same violation,

depending on the venue chosen by the respondent. Those charged with violations

listed in section 403.121, Florida Statutes, would be able to choose the standard of

proof to be applied to them by opting out of administrative enforcement. Such an

outcome would thwart the legislative goal of disposing of these cases

economically, and its direction to use the preponderance of the evidence standard.

D. The Department’s Compelling Environmental and Programmatic Interests Weigh Strongly in Favor of a Preponderance of the Evidence Standard in Environmental Enforcement Cases Seeking Civil Penalties

18

Considering all these factors, and using the judicially-recognized balancing

approach reflected by both state and federal cases, where the court is called upon to

balance the interests of an individual charged with violating environmental statutes

against the public’s interest, the individual’s interest is no more significant than

that of any other person called upon to pay money as a result of an adverse

outcome in a civil damages case.

Environmental laws such as those administered by the Department and the

District have a public purpose. As the Florida Supreme Court held in State v.

Hamilton:

A statute enacted for the public benefit should be construed liberally in favor of the public even though it contains a penal provision.” City of Miami Beach v. Berns, 245 So. 2d 38, 40 (Fla. 1971). There is no doubt that the Pollution Control Act was intended to operate in the public interest. See §403.021, Fla. Stat. (1977).

388 So. 2d 561, 563 (Fla. 1980). Further, the Legislature has exercised its

discretion by directing the Department to seek federal approval of two6 programs

administered by the Department. These programs are at risk if the Court holds that

all civil penalties must be established by clear and convincing evidence.

Given that the private interests are no greater in civil penalty cases than in

typical civil cases for monetary damages, and that the Department and District

have a strong interest in ensuring continued compliance with the law,

6 Chapter 403, Florida Statutes, authorizes, but does not expressly direct, the Department to seek federal approval of other programs.

19

preponderance of the evidence should be the standard of proof applied in actions to

assess civil penalties for violations of environmental laws.

CONCLUSION

The lower court correctly determined that when the District seeks civil

penalties resulting from violations of environmental statutes and rules it

administers, preponderance of the evidence is the proper standard of proof to

apply. This Court should, therefore, reverse the ruling of the Fifth District Court of

Appeal and affirm the trial court’s judgment on this issue.

Respectfully submitted, Matthew Z. Leopold General Counsel /s/ Jack Chisolm Jack Chisolm Deputy General Counsel Florida Bar No. 273473 Florida Department of Environmental Protection 3900 Commonwealth Boulevard, MS 35 Tallahassee, FL 32399-3000 (850) 245-2242 (phone) (850) 245-2297 (fax) Jack.Chisolm@dep.state.fl.us

20

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has

been furnished by electronic mail this 27th day of June, 2013, to:

Kenneth G. Oertel, Esquire M. Christopher Bryant, Esquire Oertel, Fernandez, Bryant & Atkinson P.O. Box 1110 Tallahassee, Florida 32302-1110

James E. Nutt, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406

/s/ Jack Chisolm Deputy General Counsel

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing brief complies with the font

requirements of rule 9.210(a), Florida Rules of Appellate Procedure, this 27th

day of June, 2013.

/s/ Jack Chisolm Deputy General Counsel

21