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COLUMNS
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DEP Update |
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Regina M. Keenan |
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State of Alabama v. U.S. Army Corps of Engineers, et al. (ACF),
90-CV-1331-Bowdre (N.D. Ala.)
On September 20, 2006, the court lifted the stay allowing parties to seek
leave to amend in light of the September 5, 2006 U.S. Fish and Wildlife Service
biological opinion (“BiOP”) assessing the Corps’ operation of federal structures
on the Chattahoochee River. On October 4, 2006, the court granted Alabama and
Alabama Power’s motions to amend and denied Florida's motion to lift the stay
for the contempt motions. On November 3, 2006, in State of Alabama v. USACOE, et
al., 06-14211-FF (11th Cir.), Florida’s motion to dismiss the appeal as moot was
granted and the district court's order was remanded for consideration and
disposition.
Southeastern Federal Power Customers, Inc. v. Luis Caldera, et al. (ACF),
1:00-cv-02975-Jackson (D.C. Cir.), 06-5080, 06-5081 (D.C.)
On November 17, 2006, the Court filed an order amending the briefing
schedule. Appellant’s Initial brief is due February 1, 2007. On November 17,
2006, the Atlanta Regional Commission and other parties petitioned the Judicial
Panel on Multi-District Litigation to transfer four pending cases to the D.C.
District Court for consolidated multidistrict proceedings.
State of Florida v. U.S. Fish and Wildlife Service, et al. (ACF),
4:06-cv-00410-RH-WCS-Hinkle (N.D. Fla.)
On November 15, 2006, U.S. Fish and Wildlife Service (FWS) answered
Florida’s Complaint challenging the BiOP. On November 16, 2006, FWS filed a
motion to transfer the case to the Northern District of Alabama.
State of Georgia v. U.S. Army Corps of Engineers, et. al. (ACF),
2:01-cv-0026-Story (N.D. Ga.)
On November 6, 2006, the court entered an Order granting Alabama’s and
Florida’s motions to intervene. On November 7, the court granted Alabama's
motion for leave to file motion to consolidate this action with State of Georgia
v. USACOE, et al., 1:06-CV-1473-Pannell, Jr. (N.D. Ga.). The court indicated it
would reconsider its previous denial of Alabama's motion to transfer
proceedings. Argument is set for December 11, 2006.
Miccosukee Tribe of Indians v. EPA, et al., 04-21448-Civ-Gold/Simonton (S.D.
Fla.)
The court has allowed the Tribe to depose a number of EPA employees in order
to ensure the completeness of the federal administrative record relating to
EPA's determinations concerning the Phosphorus Rule and 2003 Everglades Forever
Act amendments. The Tribe must complete all discovery by December 31 and has
until January 31, 2007, to file its request for supplementation of the federal
administrative record based on documents and testimony received during the
discovery process. The court has set a deadline of April 20, 2007 for the filing
of motions for summary judgment and set oral argument on those motions for June
15, 2007.
Miccosukee Tribe of Indians v. EPA, et al., 88-01866-Civ-Moreno (S.D. Fla.)
On September 26, the parties filed their responses and/or objections to the
Special Master's report. That report found, among other things, that past
exceedances of water quality requirements in the Loxahatchee Refuge should not
be excused as being due to error or extraordinary natural phenomena, but that no
remedial action beyond those offered by the State Parties were necessary. On
October 16, 2006, the court heard oral argument on the parties' responses and
objections. The court is expected to issue a ruling within the next four to
eight weeks.
Florida Disabled Outdoor Association, et al. v. DEP, 05-10073-Moore (S.D.
Fla.)
Several disabled plaintiffs and associations for disabled persons alleged a
failure to comply with the Americans With Disabilities Act (ADA) at the John D.
Pennekamp Coral Reef State Park in the Florida Keys. In a settlement dated
September 1, 2006, the Department agreed to make over 200 modifications to the
park facilities and modify its statewide policies for the disabled.
Florida Power & Light v. DEP, 06-002871RP-Alexander (Fla. DOAH)
On November 14-17, 2006, a hearing was held on the challenge to portions of
the proposed Clean Air Interstate Rule (CAIR rule). Petitioners object to the
provisions of the rule that apply fuel adjustment factors to determine how many
NOx credits a company will receive. Petitioners assert that the rule is an
attempt to impose economic regulation beyond the scope of authority of Chapter
403, F.S., because the rule allegedly favors coal-fueled plants over fuel oil
and natural gas plants.
DEP v. Coronet Industries, Inc.
The settlement agreement, finalized on October 16, 2006, requires a removal
action involving Pond 6 at the Coronet site in Hillsborough County. Pond 6 has
historically been the most contaminated pond on the site and the biggest threat
to contaminating offsite surface and ground water. DEP, EPA, DOJ and Coronet
will now begin negotiation of a federal consent decree that will address,
comprehensively, the closure and remediation of the site.
DEP v. City of Ft. Lauderdale & Waste Management of Florida, Inc.,
CACE-03012923 (Fla. 17th Cir.)
DEP was seeking reimbursement of costs expended to assess and remediate
off-site dioxin contamination related to the Wingate Road Municipal Incinerator
& Landfill in Ft. Lauderdale. The City of Ft. Lauderdale paid $200,000 in
settlement and a stipulation of dismissal has been filed with the court.
DEP v. Eagle Roofing Products Florida, LLC, 2006 CA 001475 (Fla. 5th Cir.)
This case involves construction of a cement roofing tile manufacturing plant
without an air construction permit. On October 17, 2006, parties entered a
consent final judgment which prohibits any operational testing and operation
until Eagle obtains an air construction permit and requires the payment of
$500,000 in civil penalties and costs. Eagle has submitted an air construction
permit application to the Southwest District.
Chapter 62-730 Rulemaking - Risk-based Corrective Action Requirements for
hazardous waste facilities
The hazardous waste regulation section filed a certification package with
the Secretary of State amending Chapter 62-730. The amendments, effective
November 29, apply the risk-based corrective action requirements of Chapter
62-780 to cleanups at hazardous waste facilities.
Rules, 62-312.825 and 62-341.486, F.A.C. - General Permits to the United
States Army Corps of Engineers for Environmental Restoration or Enhancement
A new wetland resource general permit/environmental resource general permit
has been created for specified environmental enhancement and restoration
projects funded or conducted by the United States Army Corps of Engineers. These
permits require notice to the Department and an affirmative Department
confirmation of qualification with the terms and conditions of the general
permit before work may commence. The permits include limitations and conditions
that ensure that the authorized activities will not cause individual or
cumulative adverse environmental impacts. The Department filed the rule on
November 15, 2006, making it effective on December 5, 2006.
Rule 62-302.800, F.A.C. - Lower St. Johns River SSAC
Rule 62-302.800, F.A.C., setting site-specific alternative criterion for
dissolved oxygen for the Lower St. Johns River, was effective on June 28, 2006
and approved by the EPA on October 10, 2006.
Chapter 62-302, F.A.C. - Triennial Review of Water Quality Changes
On September 28, 2006, the Environmental Regulation Commission approved
proposed amendments to chapter 62-302, F.A.C., amending the state's surface
water quality standards. The Department filed the certification package on
November 17, 2006, with an effective date of December 7, 2006.
