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COLUMNS
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DEP Update |
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Regina M. Keenan |
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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 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, the court ordered mediation among the Corps, Georgia, Florida and
Alabama. On June 12, the United States Supreme Court denied Florida and
Alabama’s petition for certiorari 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. Alabama filed a
Motion for Leave to File Fifth Amended and Supplemented Complaint to incorporate
challenges to the BiOP (see below).
State of Florida v. U.S. Fish and Wildlife Service, et al. (ACF), N.D.
Fla., 4:06-cv-00410-RH-WCS
On September 5, the U.S. Fish and Wildlife Service issued its biological opinion
("BiOP") assessing the Corps' operation of Federal structures on the
Chattahoochee River. On September 6, 2006, Florida filed a Complaint for
Declaratory and Injunctive Relief challenging the BiOP in the Federal District
Court for the Northern District of Florida.
DEP v. Pasco County Utilities
Pasco County signed a consent order with the Department in resolution of
numerous violations at several of the County's wastewater treatment facilities.
These violations included, among others, unpermitted discharges between 2002 and
2006, sanitary sewer overflows, modifications to facilities without the required
permits, and repeated failure to meet effluent quality standards. The consent
order requires the County to implement various corrective actions and to pay
civil penalties of approximately $1.8 million.
DEP v. Coronet Industries, Inc.
An administrative settlement agreement has been signed by DEP and Coronet and
approved by EPA and DOJ. The Agreement requires the implementation of a removal
action for Pond 6 at the Coronet site. Pond 6 is a 50 plus acre pond that has,
historically, been the most contaminated pond on the site and the pond that is
the biggest threat to contaminating offsite surface and ground waters. The
agreement requires that Coronet reinforce Pond 6’s sediments, surface water
management and the capping of Pond 6. The agreement also requires Coronet to
establish and fund a trust account in the amount of $11.6 million to assure that
the Pond 6 remedial work is completed. DEP, EPA, DOJ and Coronet will now begin
negotiations on a federal consent decree that will address the complete closure
and remediation of the site.
Osceola County & DEP v. Best Diversified and Peter Huff, Fla. 5th DCA
5D04-217
This inverse condemnation/Bert Harris case arose from the Department’s denial of
a permit application seeking the renewal of a general permit to operate a
construction and demolition disposal facility. The Fifth DCA first held that the
County was liable but DEP was not. On August 11, the Fifth DCA withdrew that
opinion and issued a second opinion which held that neither the Department nor
the County was liable for the inverse condemnation/Bert Harris claims. This
decision reversed a jury award of 14 million dollars in damages. Appellees are
seeking Supreme Court review.
Board of Trustees of the Internal Improvement Trust Fund v. James D. Lee,
Sr., Fla. 1st DCA 1D05-4974
This case involves a claim of adverse possession that predates 1937. On July 26,
the First DCA found that there was a lack of competent substantial evidence and
reversed the order awarding the appellee eighty-acres of land in the Blackwater
River State Forest. Appellee is seeking Supreme Court review.
Florida Power & Light v. DEP
On August 10, Florida Power & Light filed a challenge to portions of the
proposed Clean Air Interstate Rule (CAIR rule). FP&L objected to the provisions
of the CAIR rule that applied fuel adjustment factors to determine the number of
NOx credits a company would receive. FP&L asserted that the rule was an attempt
by the Department to impose an economic regulation that exceeded the
Department’s authority in Chapter 403, F.S., because the rule allegedly favored
coal-fueled plants over fuel oil and natural gas plants. A hearing on the rule
challenge is set for November 14-17.
Miccosukee Tribe of Indians v. EPA, et al., S.D. Fla. 88-01866-Civ-Moreno
On July 5, the Special Master issued his report to Judge Moreno and the parties
finding, among other things, that past exceedances of water quality requirements
in the Loxahatchee Refuge should not be excused based on error or extraordinary
natural phenomena, but concluded that no remedial action beyond those offered by
the State Parties, was necessary. The Settling Parties jointly requested, and
were granted, a 60-day extension of time to file exceptions to the report while
settlement discussions continue. The exceptions are due on or before September
26.
Miccosukee Tribe of Indians v. EPA, et al., S.D. Fla.
04-21448-Civ-Gold/Simonton
As a result of the Tribe's lawsuit challenging EPA's determinations regarding
the Phosphorus Rule and the 2003 EFA amendments, EPA recently concluded that
Section (5)(d) of the Rule was a change to state water quality standards that is
consistent with the Clean Water Act. In addition, the Court dismissed several
counts of the Plaintiff’s original complaint based on its decision on EPA’s
motion for judgment on the pleadings. Plaintiffs have amended their complaints
in response to these determinations.
Atlantis at Perdido Association, Inc. et al. v. Bobby L. Warner, et al.,
Fla. 1st DCA 1D05-4069
The First DCA recently reversed a Department order granting a coastal
construction control line permit authorizing the replacement of two single story
structures with a 9-story condominium. The Department approved the permit as a
“rebuilding project” because the site had previously suffered environmental
impacts from the original two structures. The First DCA held that the permit
should have been processed as “new construction.” Processing an application as
“new construction” requires consideration of where the proposed project would be
placed as a factor in the determination of whether a “reasonable line of
construction" exists or can be determined.
St. Johns Riverkeeper, et al v. U.S. EPA, M.D. Fla. 3:04-cv-699-J-32MCR
The St. Johns Riverkeepers filed suit against the United States Environmental
Protection Agency (EPA), alleging that EPA acted arbitrarily or capriciously, or
otherwise demonstrated an abuse of discretion, when it approved Florida’s
amendments to its Type II Site Specific Alternative Criteria (SSAC) set forth in
Rule 62-302.800, F.A.C. EPA’s approval of this surface water quality standard
change is valid unless and until overturned by a court of competent
jurisdiction.
Rules 62-672 & 62-673, F.A.C. Process Water Rulemaking
The ERC approved amendments to Rules 62-672 and 62-673, FAC, on April 27. The
amendments are intended to ensure that phopshogypsum stack systems can be
operated in a manner that avoids spills of process wastewater or the discharges
of materials that could adversely affect surface or ground waters. The rule
became effective on July 19.
