The Department of Environmental Protection (Department) gives notice of its intent to issue a variance (File No. 0144913-009) to PCS Phosphate White Springs (PCS), Post Office Box 300, White Springs, Florida 32096 under Section 378.212, Florida Statutes (F.S.) from the provisions of Rule 62C-16.0051, Florida Administrative Code (F.A.C.), which provides minimum standards for mandatory phosphate mine reclamation, in order to allow reclamation of approximately 376 acres of its Swift Creek phosphogypsum stack (Gypstack) to industrial use. The variance will be permanent.
The Swift Creek Gypstack is located off United States Highway 41 at PCS Hamilton County Mine in
Reclamation programs SC-SP(3) and SC-84(1) are subject to mandatory reclamation requirements under Chapter 62C-16, F.A.C. However, the Swift Creek Gypstack will be the permanent repository for phosphogypsum material produced as a byproduct of PCS chemical plant operation and there is no known or practicable means to reclaim the Swift Creek Gypstack site to mandatory phosphate reclamation requirements. Therefore it is in the public interest that a variance be granted from mandatory phosphate mine reclamation standards on reclamation programs SC-SP(3) and SC-84(1) such that the Swift Creek Gypstack may continue to be used, operated, and closed using best engineering practices and institutional controls in accordance with the conditions of the closure plan for the Swift Creek Gypstack (DEP Wastewater Facility ID No. 0036226). Details related to the closure of the phosphogypsum stack can be found in the General Closure Plan and Closure Cost Estimate on file with the Departments Northeast District Office Industrial Wastewater Program.
The approved reclamation plans for programs SC-SP(3) and SC-84(1) originally required reclamation of nine acres and 52 acres of forested wetlands, respectively. Issuance of this variance will allow PCS to reclaim programs SC-SP(3) and SC-84(1) to industrial use, thereby reducing required wetland reclamation in the approved programs by 61 acres. As a consideration for the granting of this variance, PCS has agreed to transfer fee-simple ownership of the Cabbage Head mitigation wetland area (132 acres, of which 123 are wetland) and the connection channel to Four Mile Branch (25 acres, of which 17 acres are wetland) to the Board of Trustees of the Internal Improvement Trust Fund by December 31, 2007, unless a later date is approved in writing by the Department. Conveyance of the Cabbage Head mitigation wetland and the Four Mile Branch connection channel to the Board of Trustees of the Internal Improvement Trust Fund will satisfy the wetland reclamation requirement for reclamation programs SC-SP(3) and SC-84(1) and will also provide 79 acres of credit toward PCS obligations in Specific Condition 22a of Wetland Resource Permit (WRP) No. 0144913-003, and will also satisfy Specific Condition 3 of WRP No. 0144913-003. This variance does not limit or otherwise alter the requirement for acre-for-acre, type-for-type wetland reclamation within the conceptual reclamation plan boundary of the Hamilton County Mine.
The Departments 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 Florida Department of Environmental Protection, Bureau of Mine Reclamation,
Under this intent to issue, this variance is hereby granted subject to the applicants compliance with any requirement in this intent to publish notice of this intent in a newspaper of general circulation and to provide proof of such publication in accordance with Section 50.051, F.S. This action is final and effective on the date filed with the Clerk of the Department unless a sufficient petition for an administrative hearing is timely filed under Sections 120.569 and 120.57, F.S., as provided below. If a sufficient petition for an administrative hearing is timely filed, this intent to issue automatically becomes only proposed agency action on the application, subject to the result of the administrative review process. Therefore, on the filing of a timely and sufficient petition, this action will not be final and effective until further order of the Department. When proof of publication is provided, if required by this intent, and if a sufficient petition is not timely filed, the variance will be issued as a ministerial action. Because an administrative hearing may result in the reversal or substantial modification of this action, the applicant is advised not to commence construction or other activities until the deadlines noted below for filing a petition for an administrative hearing or request for an extension of time have expired and until the variance has been executed and delivered. Mediation is not available.
A person whose substantial interests are affected by the Departments 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 Departments 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
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 378.212, 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 persons 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 Departments action is based must contain the following information:
(a) The name and address of each agency affected and each agencys file or identification number, if known;
(b) The name, address, and telephone number of the petitioner; the name, address, and telephone number of the petitioners representative, if any, which shall be the address for service purposes during the course of the proceeding; and an explanation of how the petitioners 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 agencys proposed action;
(f) A statement of the specific rules or statutes that the petitioner contends require reversal or modification of the agencys proposed action; 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 agencys proposed action.
A petition that does not dispute the material facts on which the Departments 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.
