Everglades Phosphorus Rule - On January 13, 2005, DEP submitted the Everglades Phosphorus Criterion rule, 62-302.540, F.A.C. to EPA for review under the Clean Water Act. On January 24, EPA issued its formal determination on the rule, approving the rule in all respects except for the compliance/achievement methodology for the Loxahatchee Refuge. EPA did not approve this part of the rule, which adopts the 14-station methodology set forth in Appendix B of the Federal Settlement Agreement, because EPA did not consider this monitoring network to be sufficiently representative of the entire water body. EPA did approve the four-part test for use throughout the Everglades Protection Area, and also approved the Federal Settlement Agreement methodology from Appendix A for use in Everglades National Park. On February 11 and 18, DEP posted a notice of rule development and public workshop for Rule 62-302.540, F.A.C. on DEP’s official notices website. The rule amendments are limited to extending use of the 4-part test to the Refuge in response to EPA’s comments. The original rule became effective on July 15, 2004, after the Department successfully defended an administrative rule challenge. The petitioners have appealed the ALJ’s final order approving the rule as a valid exercise of the Department’s delegated legislative authority. Appellants’ brief was received by the 1st DCA on January 12, 2005 and Appellees’ answer briefs are due March 7, 2005. Oral argument has not yet been set.

Global RBCA - On February 2, 2005, the Environmental Regulation Commission approved the proposed rules to implement “Global” Risk-Based Corrective Action legislation, Rule 62-780, F.A.C., along with related clean-up rules, 62-770, 62-777, 62-782, and 62-785, F.A.C. On February 14, the Florida Petroleum Marketers and Convenience Store Association (FPMA) filed a petition with DOAH (Case No. 05-0529RP) challenging two subsections of proposed Rule 62-770, F.A.C. FPMA challenges the proposed requirement that a person seeking a temporary point of compliance beyond the property's boundary provide notice to any residents or business tenants of the property into which the temporary point of compliance is extended. It argues that the statutory language limits the notice requirement to local governments and the property owner of any such property. FPMA also challenges the requirement that notice be given every 5 years if the cleanup has not been completed, arguing that the statute limits notice to the time at which the temporary point of compliance is established.

Dillard & Associates Consulting v. DEP - On February 22, 2005, the First DCA affirmed DEP’s final order dismissing Dillard’s petition for formal administrative hearing for lack of standing to challenge a consent order between DEP and the Florida Department of Transportation (DOT). In 2001, Dillard entered into a contract with DOT to operate and manage five wastewater treatment facilities, including all permitting, reporting and site inspections with DEP. The agreement also requires Dillard to pay regulatory penalties and sanctions incurred as a result of Dillard’s operations at the facilities. However, in this case DOT paid the amount owed to DEP pursuant to the consent order. Dillard argued that it had standing because its agreement with DOT exposes Dillard to possible claims for reimbursement, without an opportunity to dispute their propriety and amount. The First DCA found that Dillard was not a party whose substantial interests were being determined, pursuant to Section 120.569, F.S., citing Sickon v. Sch. Bd. of Alachua County, Fla., 719 So.2d 360, 363 n.3 (Fla. 1st DCA 1998) and Agrico Chem. Co. v. Department of Envt’l Reg., 406 So.2d 478 (Fla. 2d DCA 1981). Instead, Dillard is affected by the terms of its contract with DOT and should challenge that contract in circuit court.

Coronet Industries - DEP and EPA conducted a joint investigation of the Coronet facility that revealed alleged violations in various program areas, including industrial wastewater, drinking water and hazardous waste. Subsequent sampling confirmed contamination in the soil and groundwater at this phosphate processing plant in Plant City. On May 11, 2004, DEP issued an Emergency Order, under which Coronet has been stabilizing and assessing the wastewater contamination at the Facility. That Order was amended in October 2004, to take into account the very active 2004 hurricane season. EPA and DEP are continuing to negotiate a compliance schedule with Coronet to address federal and state compliance and remedial actions at the Facility. In a related private lawsuit, lawyers for residents suing Coronet obtained an injunction on January 27, 2005 halting all work at the Coronet site. However, this injunction was dissolved on February 16, 2005, so Coronet may now continue its assessment and remedial work.