The Department of Environmental Protection (Department) gives notice of its intent to grant a variance (No.: 0292013-002-EV, OGC No.: 10-2326) to Troyer Brothers Florida, Inc., 14700 Troyer Brothers Road, Ft. Myers, Florida 33913, 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 manmade lake is proposed to be constructed at a new limestone mine in Lee County. The proposed construction will require an environmental resource permit which has been assigned a different file number, File No.: 0292013-001, and is not the subject of this intent to issue a variance.
The project is located in portions of Sections 28 and 33, Township 45 South, Range 27 East as well as Sections 4, 9, 16, and 21, Township 46 South, Range 27 East, approximately 16 miles southeast of Fort Myers, south of the intersection of State Road 82 (Immokalee Road) and Homestead Road South, between State Road 82 and Corkscrew Road, Lee County. Mediation is not available.
The files associated with this order are 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 Bureau of Mining and Minerals Regulation, 2051 East Dirac Drive, Tallahassee, Florida 32310-3760.
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 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 request is filed late, the Department may still grant it upon a motion by the requesting party showing that the failure to file a request for an extension of time before the deadline was the result of excusable neglect.
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 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, 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 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), (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 grant 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 of Environmental Protection, 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.
