A.      DOAH

Coastal Petroleum Co. v. DEP, DOAH Case Nos. 98-1901 through 98-1912 (DEP Final Order May 10, 1999).

     Coastal filed twelve applications on February 12, 1997, seeking permits from the Department to drill exploratory oil and gas wells at twelve different sites in state waters in the Gulf of Mexico. On March 24, 1998, the Department’s Bureau of Geology entered an order denying all twelve Coastal permit applications. The stated ground for denial of the applications was Coastal’s failure to provide the Department with assurance that issuance of the permits would be in compliance with Chapter 377, Florida Statutes, and Chapter 62C-25 through 62C-30, F.A.C. This order also stated that the "Department cannot determine, based on the information submitted, that the proposed drilling activities do not threaten public safety and the state’s natural resources."

     On March 26, 1999, ALJ Larry J. Sartin entered a Recommended Order, concluding, inter alia, that Coastal did not provide complete permit applications to the Department. The ALJ also rejected Coastal’s contention that it was entitled to the issuance of the twelve permits by "default" under Section 120.60(1), F.S., due to the Department’s alleged failure to deny the applications within 90 days of receiving completed permit applications. On February 25, 1997, the Department sent Coastal a letter detailing each additional information request that remained incomplete. On September 22, 1997, Coastal furnished some of the requested information, but refused to furnish other information and asked the Department to cite specific authority that allowed the Department to make such request. On December 16, 1997, the Department provided Coastal with specific citations to statutes and rules that the Department believed supported its additional information request. In a letter dated December 26, 1997, Coastal disputed the Department’s authority to request the additional information. On the same day, Coastal filed petitions challenging the Department’s authority to request the additional information, and those petitions were eventually dismissed. On March 24, 1998, the Department entered its Final Order denying Coastal’s twelve applications because of insufficient information. In the administrative cases Coastal argued that it was entitled to "default" permits because the Department had failed to deny the allegedly complete applications within 90 days from September 22, 1997. The ALJ rejected that argument, finding that Coastal had not manifested an intent to have its applications considered complete until December 26, 1997, and the Department had timely denied those applications within the 90 day period in section 120.60 (1), F.S.

     The ALJ also found that the Department’s additional information request was an unadopted rule, but complied with each of the seven criteria set forth in section 120.57(1)(e)2, F.S. The ALJ found that the Department’s additional information request did not impose excessive regulatory cost and was not arbitrary or capricious under section 120.57(1)(e)2.g, noting that the Department did not have a duty to prove that there were no less costly alternatives to the additional information request.

     The ALJ ultimately recommended that a Final Order be entered denying Coastal’s twelve permit applications "for failure to file complete applications." The Department adopted the entire Recommended Order.

Ginnie Springs et al. v. Craig Watson & DEP, DOAH Case Nos. 98-945, 98-1070, 98-1071 (DEP Final Order April 8, 1999).

     Watson requested authorization to construct and operate a "rotational grazing" dairy on 511 acres of land owned by Watson in Gilchrist County. The proposed dairy site is located 6 miles south of the Santa Fe River, a designated Outstanding Florida Water. The Department issued a notice of intent to issue an Industrial Waste Water Facility Permit for the dairy construction and operation.

     On February 23, 1999, ALJ P. Michael Ruff entered a Recommended Order concluding that Watson had provided "reasonable assurances" that the proposed dairy farm "will not violate the relevant statutes, rules, and policies of the Department." The ALJ recommended that the Department enter a Final Order granting the requested permit to Watson, subject to conditions set forth in the draft permit and several additional conditions proposed by the ALJ in the Recommended Order. The Department adopted the ALJ’s Recommended Order, but rejected a finding of fact that the project would not discharge treated effluent to "waters of the state," because there was evidence that the effluent would reach ground water, which is one type of "waters of the state" under section 403.031(13), F.S. The Final Order expressly upheld the ALJ’s critical conclusions that there would be no discharges of surface water beyond the boundaries of the dairy site and that the dairy farm activities would not significantly degrade ground water or the waters of the Santa Fe River.

B.     Federal and State Court

Miccosukee Tribe of Indians of Florida v. U.S. Environmental Protection Agency et al., Southern District of Florida, Case No. 95-0533-CIV-DAVIS

     In April 1999, NPDES and Everglades Forever Act (EFA) permits were issued to the South Florida Water Management District (SFWMD) under section 373.4592(4)(a)1-6 of the Florida Statutes, for operation of Stormwater Treatment Area 1W (STA-1W). This STA incorporated the Everglades Nutrient Removal (ENR) project.

     In 1995 the Miccosukee Tribe filed suit in the U.S. District Court for the Southern District of Florida against the U.S. Environmental Protection Agency (EPA) asserting the EFA modified or altered existing state water quality standards. The EPA preliminarily determined that the EFA had not. In 1997, following appeal of the District Court’s order granting EPA’s motion to dismiss, the U.S. Eleventh Circuit Court of Appeals remanded the case to the District Court with instructions to make a factual determination on whether the EFA did or did not modify state water quality standards. Miccosukee Tribe of Indians of Florida v. U.S. Environmental Protection Agency, 105 F.3d 599 (11th Cir. 1997). Following remand, the Department moved for and was granted intervention as of right on the side of EPA. The United States Sugar Corporation and the Sugar Cane Growers Cooperative of Florida also intervened on the side of EPA.

     In late 1998, the District Court, upon cross-motions for summary judgment, found the EFA modified state water quality standards and remanded the matter to EPA to administratively review the EFA under the federal Clean Water Act as a change in water quality standards. The three intervenors, DEP and the two sugar interests, as well as the EPA concluded that the District Court erred and have appealed the court’s ruling to the U.S. Eleventh Circuit Court of Appeals. The appeal is presently pending in the Eleventh Circuit, with a decision not expected until 2000.

American Environmental Services, et al. v. DEP, et al., Case No. 98-1231-Civ-J-10-A (U.S. District Court, Middle District of Florida)

Perma-Fix Environmental Services, et al. v. DEP, et al., Case No. 99-174-Civ-J-21-A (U.S. District Court, Middle District of Florida)

     The first lawsuit was filed by American Environmental Services, Inc., an Oklahoma corporation that was denied a permit to construct a hazardous waste facility in Jacksonville, and American Environmental Leasing Corp., a Florida corporation that owns the property where the facility was proposed to be located (hereafter jointly referred to as AES). The permit was denied in part because construction and operation of the facility at the proposed location was prohibited by the recently enacted section 403.7211, F.S.

     AES’s five-count complaint is against the State of Florida, the Department, and the Secretary of the Department. The plaintiffs allege that the statute is unconstitutional because it violates the commerce clause of the United States Constitution; because it is pre-empted by Federal law; because it violates the Due Process and Equal Protection clauses of the United States Constitution; and that the statute violates the civil rights of the plaintiffs. In Count V of the complaint, plaintiffs also request an award of their attorney’s fees and costs.

     The second lawsuit, which is based on legal theories substantially similar to those in AES’s lawsuit, was filed by Perma-Fix Environmental Services, Inc., a Delaware corporation, and Perma-Fix of Florida, Inc., its wholly owned Florida subsidiary. The latter corporation owns a permitted hazardous waste storage facility in Gainesville that is within 1,000 yards of a residence, and it alleges that its ability to modify or expand its business operations at this facility are adversely affected by the "substantial modification" provisions of the legislation.

     The Department has filed a motion to dismiss the complaints in both actions, asserting, among other things that Federal courts should abstain from exercising jurisdiction over these cases under the Younger and Pullman abstention doctrines. The Department’s motions remain pending.

DEP v. Bouchard, Maritrans, Tsacaba, Case No. 96-9-5358, 13th Judicial Circuit, Hillsborough County.

     On August 10, 1993, in Tampa Bay, the outbound freighter BALSA 37, owned by Tsacaba, collided with inbound barges owned by Maritrans and Bouchard, resulting in a spill of jet fuel from the Maritrans barge and a massive oil spill from the Bouchard barge. Litigation ensued in multiple forums. The three vessel owners each sued for limitation of liability in the federal court for the Middle District. DEP filed protective claims in these proceedings, then moved for dismissal based on Eleventh Amendment immunity and the Oil Pollution Act’s preclusion of actions under the Limitation of Liability Act. Ultimately the Eleventh Circuit affirmed dismissal of DEP’s claims under the Oil Pollution Act and the state Pollutant Discharge Prevention and Control Act, but denied the Eleventh Amendment claim, leaving DEP’s maritime claims in the limitation actions. DEP and the vessel owners each sought Supreme Court review, which was denied.

     Meanwhile, Bouchard and Maritrans appealed DEP’s initial claim for natural resource damages to the First District Court of Appeal, Bouchard sued DEP in Hillsborough County Circuit Court for a declaratory judgment that DEP owed Bouchard in excess of fifty million dollars in cleanup costs expended above the limitation amount given in the state pollution act, and the United States and DEP each obtained permission from the Middle District to file actions against the vessel owners outside of the limitation proceedings. All these actions were stayed pending the appeals to the Eleventh Circuit and the Supreme Court.

     Finally, the United States and DEP reached a settlement with the vessel owners, and consent decrees have been entered by Judge Merryday for the federal litigation and Judge Menendez for the state litigation. By the terms of the settlement, the vessel owners paid the state and federal governments a total of eight million dollars for response, assessment, and restoration costs, agreed to perform certain in-kind restoration, and agreed to forego the claim against DEP for cleanup costs.

DEP FLORIDA ADMINISTRATIVE CODE AMENDMENTS FOR 1999

(listed by rule number)

18-20 5-27-99 FLORIDA AQUATIC PRESERVES

To comply with section 120.536, F.S., language in subsections .004(5)(a)4. and (d)7. was deleted for lack of sufficient statutory authority.

62-17 2-1-99 ELECTRICAL POWER PLANT SITING

Amendments to this rule chapter implement the provisions of the Florida Electrical Power Plant Siting Act, update and conform the rule to changes made in the Statute (403.501 - 403.518, F.S.), and reorganize the rule to clarify the procedural process described in the rule.

62-17 3-16-99 ELECTRICAL POWER PLANT SITING

Sections .151 and .161 were repealed to eliminate duplicative notice sections in the rule.

62-102 1-4-99 RULES OF ADMINISTRATIVE PROCEDURE - RULEMAKING

Section .040 was repealed because the provisions for notice of rulemaking hearing requirements are either not used, or are already part of the rulemaking requirements of chapter 120, F.S. Section .050 was repealed because the provision is either unnecessary or is superseded by rule 62-110.103(2), F.A.C. Section .070 was repealed because it was superseded by rule 62-110.103(3), F.A.C.

Section .050 was repealed and replaced with the agency statement found on the Department’s web page. Section .150 was repealed and replaced with Rule 62-110.106. Section .155 was repealed and replaced with Rules 62-110.106, 28-106.201, and 28.106.301. Section .200 was repealed and most of this section was replaced by Rule 28-106.217 and the remainder of the section was no longer needed. Section .510 was repealed and replaced by Rule 28-105.002.

62-204 4-1-99 AIR POLLUTION - GENERAL PROVISIONS

Amendments were made to Rule 62-204.800 as a 403.8055, F.S. amendment in order to comply with changes in the Federal Regulations adopted by reference.

62-210 2-11-99 STATIONARY SOURCES - GENERAL REQUIREMENTS

Two rulemaking processes amended this rule chapter. One process clarified and updated various provisions of the state’s Title V and non-Title V air permitting programs. Obsolete references to Chapter 62-103, F.A.C., were also corrected. The other process addressed forms used in the department’s air permitting program and referenced in Rule 62-210.900. The current Long Form was updated and made applicable to Title V sources only (construction and initial operation), a new application form was adopted for non-Title V sources (construction and federally-enforceable operation), the current Short Form was updated and made applicable to non-Title V renewals only, the Annual Operating Report form was updated, and the Notification of Intent to Relocate form was renumbered and updated as necessary.

Amendments to this rule chapter updated the state’s Title V air permitting program under the Clean Air Act with respect to permit applications and various permit processing procedures. The amendments clarified applicability of the Title V permit revision process, provided that hazardous air pollutants be fully addressed in permit applications where their emissions would be synthetically limited, made various changes in permit processing procedures, and updated the Title V annual fee forms.

Amendments to this rule chapter updated the state’s Title V air permitting program under the Clean Air Act to clarify and update various provisions of the state’s Title V air general permitting program. All air permit notification forms were adopted by reference at Rule 62-213.900 and updated to reflect the change made to Rule 62-213.300.

62-257 2-09-99 ASBESTOS PROGRAM

This rule chapter was amended because of the 1997 and 1998 changes to Section 376.60, F.S. These amendments clarify and update various provisions to ensure consistency with the provisions of 40 CFR Part 61, Subpart M, and accommodate a new project notification and invoicing system. Additionally, the title of the chapter was changed to Asbestos Program.

62-296 3-2-99 STATIONARY SOURCES-EMISSION STANDARDS

Amendments to this rule chapter update and clarify various provisions and provide for the use of transmissometers for opacity measurement by large fossil fuel steam generators. The amendments update the State Implementation Plan under the Clean Air Act to clarify certain provisions and provide for use of a transmissometer for opacity measurement by certain sources.

62-297 3-2-99 STATIONARY SOURCES-EMISSIONS MONITORING

Amendments to this rule chapter update the State Implementation Plan under the Clean Air Act with respect to emissions testing procedures. These amendments clarify certain test requirement provisions, update the list of Environmental Protection Agency (EPA) test methods and performance specifications adopted by reference, and revise the VOC capture efficiency test procedures for consistency with EPA’s capture efficiency testing rule.

62-702 1-12-99 SOLID WASTE COMBUSTOR ASH MANAGEMENT

Section .530 was repealed because it has been identified as a rule which exceeds the rulemaking authority permitted by Section 120.536, F.S. No specific legislation authorizing this rule was enacted by the Legislature during the 1998 Regular Session.

62-716 1-12-99 SOLID WASTE GRANTS PROGRAM

Sections .800 & .850 were repealed because these rules set forth the requirements and procedures for two separate small county landfill closure grants, which were one-year grants created as part of the Legislative appropriations in 1994 and 1995. The rules are no longer needed.

62-788 3-31-99 THE VOLUNTARY CLEANUP TAX CREDIT RULE

This new rule chapter was developed as a result of the 1998 Florida Legislature’s creation of a tax credit to encourage voluntary cleanup of certain contaminated sites in Florida. An eligible applicant can receive up to 35% of the costs of voluntary cleanup activity that is integral to site rehabilitation, not to exceed $250,000 per site per year in tax credits that can be applied toward Corporate Income Tax or Intangible Personal Property Tax in Florida. This rule provides the administrative process, guidelines and forms for application for these tax credits.

62N-24 4-12-99 BOATING RESTRICTED AREAS

The amendment to this rule section amends section .164, the Idle Speed No Wake zones, currently in effect at Daytona Beach, New Smyrna Beach and Edgewater. The amendments more clearly define the areas which make these zones more enforceable.

62N-24 3-3-99 BOATING RESTRICTED AREAS

The amendment to this rule section amends the existing Idle Speed No Wake zone which currently ends at the north end of the fender system of the East Atlantic Avenue (State Road 806). The zone was extended to 650 feet north of the centerline of the East Atlantic Avenue (State Road 806), within the City of Delray Beach, Palm Beach County.

62R-5 5-10-99 REPORTING REQUIREMENTS FOR THE MARINE FISHERIES INFORMATION SYSTEMS

Section 62R-5.900(1), Closed Season Crawfish Declaration Form (DEP#30-208), was developed pursuant to Section 370.1405(1), F.S. This section states that "within 3 days after the commencement of the closed season for the taking of saltwater crawfish, each and every seafood dealer, either retail or wholesale, intending to possess whole crawfish, crawfish tails, or crawfish meat during the closed season shall submit to the Department of Environmental Protection, on forms provided by the Department, ...." Section 370.1405(6), F.S. also authorizes the Department to adopt such forms by rule.

62R-7 3-18-99 THE COMPREHENSIVE SHELLFISH CONTROL CODE

There were two rulemaking processes affecting this rule chapter. Amendments were made to reclassify the Horseshoe Beach shellfish harvesting area (#25). This reclassification created a seasonal management plan with Winter (October - March) and Summer (April - September) seasons. Later amendments required marine sanitation receptacles on-board shellfish harvest vessels to reduce the potential of illness outbreaks related to the overboard discharge of bodily waste. This requirement would provide a method of on-board waste disposal to reduce the risk of illness outbreaks from Florida harvest areas caused by overboard discharge of waste.

62R-18 4-7-99 SPINY LOBSTER TRAP CERTIFICATE PROGRAM

Sections .010, .011, .012, .013, and .014 have been repealed and subsection 62R-18.005(4) has been deleted because the subsection and sections have been replaced by statute or are obsolete rules.

B. Proposed Rules

AMENDMENT TO CHAPTER 62-730 FOR ENHANCED CONTINGENCY PLAN

     By NOTICE OF RULE DEVELOPMENT published in the October 23, 1998 F.A.W., (DOCKET NO.: 97-38R) the Department’s Division of Waste Management announced workshops to review a revised draft of its "Enhanced Contingency Plan" (ECP) rule, which continued rule development for the proposed rule formerly known as the "Off-site Consequences Rule."

T     hese proposed amendments to Chapter 62-730, F.A.C., are intended to implement Section 403.7211, F.S., which imposed certain setbacks and restrictions on the location of hazardous waste facilities in residential areas. These revisions are also intended to reduce the likelihood of an accidental release from facilities that treat, store, dispose of, or act as transfer facilities for, hazardous waste, and to reduce the consequences of such a release if it occurs.

     To accomplish these purposes, the proposed rule amendments are expected to require hazardous waste treatment, storage or disposal facilities and transfer facilities to meet specified location, operation, and design standards, and to include additional requirements in their contingency plans for emergency planning and evacuation in the event of a release, fire or explosion.

     The Department expects to conduct further workshops and present the proposed ECP Rule to the ERC for adoption in late winter or early spring.

AMENDMENT TO CHAPTER 62-672 FOR PHOSPHOGYPSUM MANAGEMENT

     On April 29, 1999, the Environmental Regulation Commission adopted new rules relating to phosphogypsum management, which will become effective at the end of June 1999. These new rule requirements are based in part on legislation adopted during the 1997 legislative session and in part on the terms of an existing Memorandum of Agreement (MOA) between the Department and all facilities regulated by Chapter 62-672. In response to a spill of acid water at the Mulberry Phosphate, Inc., facility in 1997, the Florida Legislature passed Laws of Florida Chapter 98-117, which requires the Department to adopt rules regarding phosphogypsum management by July 1, 1999.

     Based in large part on the findings of the Phosphogypsum Impoundment Technical Advisory Forum (PITAF), the Department proposed changing Chapter 62-672 to ensure that impoundment structures and water conveyancing systems used in phosphogypsum management are designed and maintained to meet critical safety standards, and to incorporate provisions of the MOA.