July 2006

COLUMNS  
     

  DEP Update
  Regina M. Keenan

      

Internet Noticing Program Ends

Pursuant to Senate Bill 262, Fla. Stat., the Department’s (and Board of Trustees of the Internal Improvement Trust Fund) Internet Noticing program ends on July 1, 2006. The Internet Noticing site will remain active for historical information, but no notices will be posted after June 30: http://tlhora6.dep.state.fl.us/onw/pilot.asp.  Thereafter, all agencies must publish all notices in the Florida Administrative Weekly: http://faw.dos.state.fl.us/index.html.

Southeastern Federal Power Customers, Inc. v. Luis Caldera, et al. (ACF), D.C. Cir. 1:00CV02975

On March 9, 2006, Florida's motion to certify the order approving the settlement agreement as a final, appealable order, was granted. Florida and Alabama have filed timely notices of appeal, and are awaiting a briefing schedule.

State of Alabama v. U.S. Army Corps of Engineers, et al. (ACF), N.D. Ala., CV 90-BE-1331-E

On March 31, 2006, the court ordered mediation among the Corps, Georgia, Florida and Alabama. The litigation is stayed for four months while mediation is ongoing. The court has directed that the mediation proceedings be kept confidential and, that those proceedings are to be concluded no later than August 31. Under the order, the mediator has the authority to include parties deemed necessary to achieve resolution of the dispute, and joint status reports are required from the mediating parties every 30 days. Florida and Alabama filed a petition for certiorari with the United States Supreme Court, seeking review of the Eleventh Circuit's opinion vacating the Alabama district court's preliminary injunction prohibiting the Corps from moving forward with the DC settlement agreement.

Penzell v. M&M Construction, 915 So.2d 194 (Fla. 3d DCA 2005) cert. denied (Fla. April 24, 2006).

In September 2005, the Third District Court of Appeal, in Penzell v. M&M Construction, affirmed the trial court’s determination of the priority afforded a final judgment held by the Department under Section 197.582(2), Florida Statutes (establishing priorities for distribution of excess tax sale proceeds). The Department’s final judgment, inter alia, (1) mandated environmental cleanup of the subject property, (2) authorized the Department to conduct the remedial activities itself (should the owner default), with the owner held liable for the cost, and (3) retained jurisdiction to enforce these provisions. The Penzell Court held that the Department’s final judgment constituted a valid “lien of record held by a governmental unit” entitled to priority under Section 197.582(2), Florida Statutes (establishing priorities for distribution of excess tax sale proceeds). On December 21, 2005, the Third District declined to grant Appellants' motions for rehearing and clarification. Appellants subsequently sought to invoke the Florida Supreme Court's discretionary review pursuant to Article V, Section 3(b)(3), Florida Constitution, and Rule 9.030(a)(2)(A)(iv), Florida Rules of Appellate Procedure. Appellants alleged that the Penzell decision conflicts with several other district court decisions. On April 24, 2006, the Florida Supreme Court declined to accept jurisdiction.

Association of Florida Community etc., et al. vs. DEP, et al. (62-40 Reservations Rule), DOAH 04-0880RP, Fla. 1st DCA 1D06-1425

This rule sets forth guidance for the water management district’s use of water reservations to protect fish and wildlife and public health and safety. Rules 62-40.410(3) and 62-40.474, FAC, were found not to be an invalid exercise of delegated legislative authority and were filed with Department of State on March 9, with an effective date of the day after the end of the regular session of 2006. Letters of notification to the President of the Senate and the Speaker of the House were delivered March 10, as required by statute. The rules became effective on May 7, 2006. Petitioner’s appeal is pending in the First DCA.

ContractPoint Florida Parks, LLC v. DEP, 2nd Cir., 2003 CA 001005

On May 11, 2006, the court dismissed Plaintiff's petition for a writ of mandamus compelling the Department to approve payment of a judgment (of over $600,000 received in a Circuit Court case against the Department in 2005) and submit the request for payment to the Chief Financial Officer. Plaintiff failed to allege that an appropriation has been made to pay the judgment.

Wakulla County, Florida Wildlife Federation, Joe Glisson, and Crist v. City of Tallahassee and DEP, DOAH Case Nos. 06-1252, 06-1253 and 06-1254

This is a third-party challenge to the Department’s renewal of a permit issued to the City of Tallahassee for the operation of the T.P. Smith Water Reclamation Facility. The Attorney General has intervened on behalf of petitioners. The final hearing is set for two weeks starting September 25, 2006.

ERC Adopts Amendments to Chapters 62-672 and 62-673, F.A.C., for Phosphogypsum Stack System Process Water Consumption and Management

On April 27, 2006, rule modifications were adopted by the Environmental Regulation Commission that will increase protection for Florida’s natural resources and strengthen environmental management requirements for phosphogypsum stack systems. The rule requires operators of “gyp” stack systems to plan better for extreme weather conditions and take actions to reduce on-site water levels, avoid wastewater spills, and provide the State with timely information. On May 19, 2006, the Department published a notice of change incorporating the rule modifications.

ERC briefed on Significant Air rules

On May 25, 2006, the Environmental Regulation Commission was briefed on 2 rules. EPA's Clean Air Interstate Rule (CAIR) is designed to reduce emissions of pollutants that contribute to violations of the National Ambient Air Quality Standards for fine particles and ozone. Florida is required to submit a State Implementation Plan revision to EPA by September 11, indicating that it has adopted all rules needed to implement all the emissions reduction requirements of CAIR. CAIR allows Electric Generating Units to trade SO2 and NOX emission allowances not to exceed the appropriate emissions cap. This allows sources flexibility in determining how to comply with their allowance limits. The Clean Air Mercury Rule (CAMR) builds upon the CAIR rule. Unlike CAIR, the CAMR cap-and-trade program is optional; however, the Department has opted to participate in the national mercury cap-and-trade program. When the rules are implemented fully, they will reduce coal-fired utility emissions of mercury nationwide by nearly 70%. These rules will be presented to the Environmental Regulation Commission for their approval at its June 29, 2006, public hearing in Tallahassee. Additional information is available at http://www.dep.state.fl.us/Air/rules/regulatory.htm.






 

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