DEPARTMENT OF ENVIRONMENTAL PROTECTION
Notice of Intent to Issue Variance Under Section 403.201, F.S.
Notice of Intent to Issue Variance Under Section 403.201, F.S.
The Department of Environmental Protection (Department) gives notice of its intent to issue a variance (File No. 0237608-005-EV-VE, OGC No. 12-0798) to Cemex Construction Materials Florida, LLC, 100 Lem Carnes Road, Davenport, Florida 33837, under Section 403.201(1)(a), Florida Statutes (F.S.), from the provisions of subsection 62-302.530(30), Florida Administrative Code (F.A.C.), which provides minimum standards for dissolved oxygen levels in the surface waters of the state. This variance will authorize the dissolved oxygen levels in the deeper portions of a manmade lake to fall below the minimum levels set by Rule 62-302.530, F.A.C. The existing manmade lake is proposed to be expanded at an existing sand mine in Polk County. The proposed expansion will require an environmental resource permit which has been assigned a different file number, File No. 0237608-004, and is not the subject of this intent to issue a variance.
The mine is located in Sections 33 and 34, Township 29 South, Range 28 East, as well as Sections 3, 9, 10, and 11, Township 30 South, Range 28 East, approximately 3 miles east of Lake Wales, Polk County, on the north and south sides of State Road 60. The manmade lake will be constructed across property lines such that the lake will have more than one property owner. The manmade lake will be subject to the water quality standards provided in Rule 62-302.530, F.A.C.
On February 9, 2012, Cemex Construction Materials Florida, LLC, applied to the Department for a variance from the minimum standards for dissolved oxygen authorized by subsection 63-302.530(30), F.A.C., which requires a minimum level of 5.0 mg/L dissolved oxygen in the surface waters of the state.
Most of the surface waters in the proposed manmade lake will meet the minimum standards for dissolved oxygen authorized by Rule 62-302.530, F.A.C. However, the deepest layer of water in the lake, the hypolimnion layer, may not meet the minimum standards for dissolved oxygen as authorized by Rule 62-302.530, F.A.C.; and there is no practicable means known or available to achieve the required dissolved oxygen levels within the hypolimnion layer of water in the manmade lake. Stratification and the associated reduction of dissolved oxygen in the hypolimnion are natural phenomena in deep-water bodies, especially during warmer parts of the year. As a result, a variance from the minimum standards of dissolved oxygen provided in Rule 62-302.530, F.A.C., is necessary for the hypolimnion layer of water in the manmade lake. This was anticipated by the Florida Legislature in Section 373.414(6)(a), F.S., which states that “Where such mining activities otherwise meet the permitting criteria contained in this section, such activities may be eligible for a variance from the established water quality standard for dissolved oxygen within the lower layers of the reclaimed pit.” The low dissolved oxygen levels in the hypolimnion of the deep-water pockets are not expected to result in any on-site or off-site impacts. Oxygen levels in the upper layers of the lake are expected to meet the requirements of Rule 62-302.530, F.A.C., and be adequate to support healthy fish populations.
A variance of the minimum standards of dissolved oxygen provided in Rule 62-302.530, F.A.C., is not expected to result in any on-site or off-site impacts. Therefore, the Department intends to issue a variance pursuant to Section 403.201(1)(a), F.S., for the dissolved oxygen levels in the hypolimnion layer of the proposed manmade lake to fall below the minimum levels authorized by Rule 62-302.530, F.A.C.
The Department’s file on this matter is available for public inspection during normal business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, except legal holidays, at the Department of Environmental Protection, Bureau of Mining and Minerals Regulation, 2051 East Paul Dirac Drive, Tallahassee, Florida 32310, (850)488-8217.
Mediation under Section 120.573, F.S., is not available.
A person whose substantial interests are affected by the Department’s action may petition for an administrative proceeding (hearing) under Sections 120.569 and 120.57, F.S. The petition must contain the information set forth below and must be filed (received by the clerk) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000.
Under subsection 62-110.106(4), F.A.C., a person whose substantial interests are affected by the Department’s action may also request an extension of time to file a petition for an administrative hearing. The Department may, for good cause shown, grant the request for an extension of time. Requests for extension of time must be filed with the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station #35, Tallahassee, Florida 32399-3000, before the applicable deadline. A timely request for extension of time shall toll the running of the time period for filing a petition until the request is acted upon.
If a timely and sufficient petition for an administrative hearing is filed, other persons whose substantial interests will be affected by the outcome of the administrative process have the right to petition to intervene in the proceeding. Intervention will be permitted only at the discretion of the presiding officer upon the filing of a motion in compliance with Rule 28-106.205, F.A.C.
In accordance with Section 403.201, F.S., petitions for an administrative hearing by the applicant must be filed within 14 days of receipt of this written notice. Petitions filed by any persons other than the applicant, and other than those entitled to written notice under Section 120.60(3), F.S., must be filed within 14 days of publication of the notice or within 14 days of receipt of the written notice, whichever occurs first. Under Section 120.60(3), F.S., however, any person who has asked the Department for notice of agency action may file a petition within 14 days of receipt of such notice, regardless of the date of publication.
The petitioner shall mail a copy of the petition to the applicant at the address indicated above at the time of filing. The failure of any person to file a petition for an administrative hearing within the appropriate time period shall constitute a waiver of that person’s right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S.
A petition that disputes the material facts on which the Department’s action is based must contain the following information: (a) the name and address of each agency affected and each agency’s file or identification number, if known; (b) the name, address, and telephone number of the petitioner; the name, address, and telephone number of the petitioner’s representative, if any, which shall be the address for service purposes during the course of the proceeding; and an explanation of how the petitioner’s substantial interests are or will be affected by the agency determination; (c) a statement of when and how the petitioner received notice of the agency decision; (d) a statement of all disputed issues of material fact. If there are none, the petition must so indicate; (e) a concise statement of the ultimate facts alleged, including the specific facts that the petitioner contends warrant reversal or modification of the agency’s proposed action; (f) a statement of the specific rules or statutes that the petitioner contends require reversal or modification of the agency’s proposed action, including an explanation of how the alleged facts relate to the specific rules or statutes; and (g) a statement of the relief sought by the petitioner, stating precisely the action that the petitioner wishes the agency to take with respect to the agency’s proposed action.
A petition that does not dispute the material facts on which the Department’s action is based shall state that no such facts are in dispute and otherwise shall contain the same information as set forth above, as required by Rule 28-106.301, F.A.C. Under Sections 120.569(2)(c) and (d), F.S., a petition for administrative hearing must be dismissed by the agency if the petition does not substantially comply with the above requirements or is untimely filed.
This intent to issue a variance constitutes an order of the Department. Subject to the provisions of Section 120.68(7)(a), F.S., which may require a remand for an administrative hearing, the applicant has the right to seek judicial review of the order under Section 120.68, F.S., by the filing of a notice of appeal under Rule 9.110 of the Florida Rules of Appellate Procedure with the Clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, Mail Station #35, Tallahassee, Florida 32399-3000; and by filing a copy of the notice of appeal accompanied by the applicable filing fees with the appropriate district court of appeal. The notice of appeal must be filed within 30 days from the date when the order is filed with the Clerk of the Department.
