Penzell v. M&M Construction, 915 So.2d 194 (Fla. 3d DCA 2005) - 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 of Environmental Protection (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). The Third District declined to grant Appellants' (Penzell and Bank of America) motions for rehearing and clarification on December 21, 2005. 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 allege that the Penzell decision conflicts with several other district court decisions. Jurisdictional briefs have been filed and are currently pending before the Florida Supreme Court (Case No. 06-56). The briefs are available at http://www.floridasupremecourt.org/clerk/briefs/2006/1-200/index.shtml.

EPA AND FLORIDA SIGN BROWNFIELDS AGREEMENT – On November 29, 2005, DEP and USEPA executed a Memorandum of Agreement (MOA) recognizing Florida’s Brownfields Redevelopment Program as a means to expedite the cleanup of polluted properties and return them to productive use. This MOA supercedes the previous MOA between DEP and USEPA executed in December 1999. The new MOA incorporates the requirements of the 2002 federal Brownfields Law and recognizes that cleanups conducted under Florida’s program may also satisfy the requirements of the federal Resource Conservation and Recovery Act (RCRA) by specifying the criteria under which the USEPA will forego its oversight. In addition, the MOA expands the types of sites that are eligible for consideration. Now, certain sites subject to corrective action by RCRA will be eligible for State economic redevelopment incentives. Additionally, to be eligible to receive funding under CERCLA Section 128(a) authorized by the federal Small Business Liability Relief and Brownfields Revitalization Act of 2002, a state must be a party to a voluntary response program MOA with USEPA or demonstrate that its response program includes, or is taking steps to include, the elements of a response program. All states with response programs must maintain, and make available to the public, a record of sites in accordance with CERCLA Section 128(b)(1)(c). The State of Florida is one of only 19 states with an existing MOA. Therefore, Florida’s response program is automatically eligible for grants from the USEPA pursuant to CERCLA Section 128(a).

UNDERGROUND INJECTION CONTROL (UIC) FAST TRACK RULEMAKING – On November 22, 2005, the USEPA published it final regulation, which allows vertical fluid movement from Class I municipal injection control wells into an underground source of drinking water (Class G-II groundwater as designated by the Department), so long as the domestic wastewater being injected meets at least secondary treatment standards under Rule 62-600.420, Fla. Admin. Code; the pretreatment requirements in Chapter 62-625, Fla. Admin. Code; and high level disinfection, as proscribed in Rule 62-600.440, Fla. Admin. Code; and does not otherwise adversely affect the heath of persons. Without this change in the federal regulations, fluid movement into the underground source of drinking water is strictly prohibited from this type of UIC facility. The regulation was effective on December 22, 2005. The Department adopted the federal regulations by reference into Chapter 62-528, Fla. Admin. Code, on December 27, 2005. Since the Department adopted the rules by reference and the rules already went through the economic analysis and public meeting process, rulemaking proceeded under Section 403.8055, Fla. Stat., which allows for a faster track. Under the new rule, existing UIC wells (well which filed a complete application on or before December 22, 2005) must meet the treatment requirements within 5 years from notice from the Department of possible fluid movement. The regulation covers 24 counties primarily in South Florida, which includes counties with no Class I municipal UIC wells, but which probably have the type of geology that could allow fluid movement out of the injection zone. Those counties are: Brevard, Broward, Charlotte, Collier, Flagler, Glades, Hendry, Highlands, Hillsborough, Indian River, Lee, Manatee, Martin, Miami-Dade, Monroe, Okeechobee, Orange, Osceola, Palm Beach, Pinellas, St. Johns, St. Lucie, Sarasota, and Volusia. New wells in these counties must meet the treatment requirements before waste is injected. Eight entities filed notices of intent to challenge the federal regulation. They are the Counties of Miami-Dade and Palm Beach, the Cites of Sunrise, Ft. Lauderdale, Cooper City, Margate, and Miramar, and the Sierra Club. If the federal regulation is found invalid in part or in whole, and is modified or withdrawn, then Florida must modify or withdraw its rule accordingly.

ERC ADOPTS AMENDMENTS TO VEGETATIVE INDEX RULE – On October 27, 2005, the Environmental Regulation Commission (ERC) held an adoption hearing on the Department’s proposed changes to Rule 62-340.450, Fla. Admin. Code. The proposed changes revise the status of gallberry and slash pine from positive indicators of upland areas to a neutral or “facultative” indicator of uplands and wetlands. The ERC continued the October hearing so that the Department could conduct more field tests to demonstrate the effects of the rule change. Twelve sites were submitted to the Department for field tests. The proposed rule change would result in a small increase of wetlands in 3 of the 12 sites. On February 23, the Department presented the results of the field tests to the ERC, which unanimously adopted the amendment. Pursuant to Section 373.421, Fla. Stat., the adopted amendment does not become effective until ratified by the legislature. In addition to improving the scientific accuracy of the vegetative index, adding slash pine and gallberry to the list of facultative plants in Chapter 62-340, Fla. Admin. Code, is viewed as an essential step toward streamlining the state wetland program with the federal wetland program.

ERC APPROVES WEKIVA RULE: On February 23, 2006, the Environmental Regulation Commission approved proposed Rule 62-600.550, Fla. Admin. Code, for the Wekiva Basin to create protection zones for domestic wastewater management with additional restrictions on discharges of total nitrogen. The Wekiva Basin comprises parts of Seminole, Lake, and Orange Counties. The goal of 0.2 mg/L of nitrate-nitrogen for the spring vents within the Basin is set out in the legislation found at Sections 369.316 and 369.318, Fla. Stat. These new rule restrictions, which apply to for new and existing discharges of domestic wastewater, is protective of that goal. The rule also provides for the legislatively-mandated opportunity for an affirmative demonstration by a facility that its discharge should not have to meet the new restrictions. The groundwater standard for total nitrogen is 10 mg/L, but there is no surface water standard. The Wekiva Rule is the first rule that regulates springs and is a culmination of the Governor's Springs Initiative.

ACF UPDATE – On December 7th, the Eleventh Circuit denied Florida’s motion for rehearing. In the DC litigation, the court granted the hydropower customers’ motion to stay the litigation, stating that the stay did not impede the Corps’ obligation to go forward under the settlement agreement, now that the Alabama court’s injunction has been lifted. Accordingly, the DC litigation is stayed while the Corps undertakes NEPA procedures regarding the proposed water storage contracts. Florida and Alabama have filed motions to certify the stay order and begin the appeal. In the Alabama litigation, Florida has filed a motion for preliminary injunctive relief under the Endangered Species Act seeking to compel the Corps to consult formally with the U.S. Fish and Wildlife Service regarding the needs of the threatened and endangered species in the Apalachicola River and Bay prior to the gulf sturgeon spawning season. Florida also filed a motion for an order to show cause why the Corps should not be held in contempt. A hearing on all pending motions has been set for April 14.