The Department of Environmental Protection (Department) gives notice of its intent to issue a variance (File No. 0144913-006) to PCS Phosphate White Springs (PCS), Post Office Box 300, White Springs, Florida 32096 under Section 378.212(1)(b), Florida Statutes (F.S.) from posting of security on the number of acres that PCS must reclaim during the 2006-2010 five-year period required by portions of Section 378.208(2)(f), F.S. and paragraph 62C-16.0075(1)(b), F.A.C. The variance is requested for a five-year period ending December 31, 2010.
A reduction in the rate of mining during 2001 and 2002 coupled with PCS decision to utilize existing clay storage capacity in its SA4 Clay Settling Area significantly reduced the amount of land available for reclamation during the 2001-2005 five-year period. Section 378.209(1)(e), F.S., and paragraph 62C-16.0075(5)(e), F.A.C., require that for the fifth five-year period of mining for new mines, and each five-year period thereafter, reclamation of acres mined shall be completed at the rate of an acreage equivalent of 100 percent of the acres mined during the immediately preceding five-year period. Section 378.208(2), F.S., and paragraph 62C-16.0075(1)(a), F.A.C., require that if the Department determines that an operator is not in compliance with the rate of reclamation, the Department shall notify the operator in writing that the operator shall have 30 days to post one or more of the forms of security specified in Sections 378.208(2)(a)-(c), F.S., and subparagraphs 62C-16.0075(1)(a)1.-5., F.A.C., Section 378.208(2)(f), F.S., and paragraph 62C-16.0075(1)(b), F.A.C., require that the security posted shall cover the number of acres that the operator is delinquent in reclaiming in the required time period as well as the number of acres that the operator must reclaim in the current five-year period. Based on the information in PCS 2006 annual report, the Department has determined that PCS is delinquent in reclaiming 453 acres during the required (2001-2005) time period and the number of acres that PCS must reclaim during the current (2006-2010) time period totals 2,824 acres.
As it is an objective of both PCS and the Department to minimize the acreage committed to clay settling areas, and since PCS delayed reclamation of SA4 in order to utilize existing clay storage capacity within the existing SA4 clay settling area, and the delay in reclamation of SA4 is related to the deficiency in the rate of reclamation, the Department has determined that there exists sufficient justification for granting approval of a variance from the posting of security on the number of acres that PCS must reclaim during the current (2006-2010) five-year period. The term of the variance will be until December 31, 2010, unless a later date is approved in writing by the Department.
Normally, PCS would be required to post security on the 453 acres for which it is delinquent in reclaiming during the required (2001-2005) five-year period. However, since becoming out of compliance with the rate of reclamation for the five-year period ending December 31, 2005, PCS also sought approval of a variance (File No. 0144913-009) from reclamation standards required by Rule 62C-16.0051, F.A.C., on approximately 376 acres of mandatory lands associated with its Swift Creek phosphogypsum stack (GypStack) complex. The variance from reclamation standards on the 376 acres of GypStack complex will allow PCS to immediately reclaim 55 mandatory mined acres within reclamation program SC-SP(3) and 241 mandatory mined acres within reclamation program SC-84(1) (296 mandatory mined acres in total) to industrial use and apply the completed reclamation towards its rate of reclamation obligation for the five-year period ending December 31, 2010. Since reclamation of the 296 mandatory mined acres within programs SC-SP(3) and SC-84(1) is immediate and in addition to the normal schedule for reclamation at the Hamilton County Mine, the Department has agreed to reduce the acreage for which PCS will be required to post security for the required (2001-2005) five-year period by 296 acres. Therefore, the number of acres for which PCS will be required to post security for the required (2001-2005) five-year period is 157 acres.
PCS will be required to post security at a rate of $7,502 per acre to cover the remaining 157-acre deficiency in the rate of reclamation during the required (2001-2005) time period. The security required per acre is based on paragraph 62C-16.0075(2)(e), F.A.C., and on the first issue of the December 2006 Engineering News Record. The security shall be posted by August 31, 2007, unless another date is approved in writing by the Department. The full amount of security shall remain in place until PCS provides demonstration that all delinquent acres have been reclaimed within the 2006-2010 five-year period. Demonstration that all delinquent acres have been reclaimed shall be achieved by PCS meeting the rate of reclamation for the 2006-2010 five-year period or by equaling or exceeding the average rate of reclamation required to comply with the overall rate of reclamation required during the 2006-2010 five-year period over at least two consecutive years, whichever occurs first. The average rate of reclamation for the 2006-2010 five-year period shall be based on the information contained in PCS completed annual reports. Failure to reclaim all delinquent acres by December 31, 2010, shall result in forfeiture of the security.
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.
