62-110.106. Decisions Determining Substantial Interests

(1) Service. Service of any document shall be deemed complete upon being properly addressed, stamped, and deposited in the United States Mail, or upon receipt of the complete document by the clerk of the Department or any other party to whom a document is sent by facsimile transmission or hand delivery (including express or courier services such as Federal Express).

(2) “Receipt of Notice of Agency Action” Defined. As an exception to subsection 28-106.111(2), F.A.C., for the purpose of determining the time for filing a petition for hearing on any actual or proposed action of the Department as set forth below in this rule, “receipt of notice of agency action” means either receipt of written notice or publication of the notice in a newspaper of general circulation in the county or counties in which the activity is to take place, whichever first occurs, except for persons entitled to written notice personally or by mail under Section 120.60(3), Florida Statutes, or any other statute. For purposes of this section, “publication of the notice” for hazardous waste permits shall mean the publication of the notice in a newspaper or the broadcast of the notice over a local radio station (both of which are required) in accordance with subsection 62-730.220(9), F.A.C., whichever is later. “Notice of agency action” shall include notice of intended agency action as well as actual agency action. For applications reviewed concurrently under Section 373.427, Florida Statutes, “notice of agency action” shall mean only the consolidated notice of intent to grant or deny. Except where otherwise provided by statute or this rule chapter, a timely petition requesting an administrative hearing shall be filed within twenty-one days of such receipt of notice of agency action.

(3) Time for Filing Petition.

(a) A petition shall be in the form required by Rule 28-106.201 or 28-106.301, F.A.C., and must be filed (received) in the office of General Counsel of the Department within the following number of days after receipt of notice of agency action, as defined in subsection (2) of this rule above:

1. Petitions concerning Department action or proposed action on applications for permits under Chapter 403, Florida Statutes, and related authorizations under Section 373.427, Florida Statutes, (except permits for hazardous waste facilities): fourteen days;

2. Petitions concerning Department action or proposed action on applications for hazardous waste facility permits: forty-five days;

3. Petitions concerning notices of violation: twenty days after receipt of the notice of violation;

4. Petitions concerning Department action or proposed action on applications for permits under statutes other than Chapter 403 or Section 373.427, Florida Statutes, or concerning other Department actions or proposed actions: twenty-one days.

The petitioner shall also serve a copy of the petition on all other parties to the proceeding, as identified in the notice, at the time of filing.

(b) Failure to file a petition within the applicable time period after receiving notice of agency action shall constitute a waiver of any right to request an administrative proceeding under Chapter 120, Florida Statutes.

(4) Enlargement of Time. For good cause shown, the Secretary of the Department (or the Secretary’s designee) may grant an enlargement of time for the doing of any act required or allowed to be done under an order of the Department, the Uniform Rules of Procedure, or any rule of the Department or notice given under such a rule, if the request for such enlargement is made before the expiration of the period to be enlarged, or may allow the act to be done even if the period has expired, upon motion showing that the failure to act was the result of excusable neglect.

(5) Notices: General Requirements. Each person who files an application for a Department permit or other approval may publish or be required to publish a notice of application or other notice as set forth below in this section. Except as specifically provided otherwise in this paragraph, each person publishing such a notice under this section shall do so at his own expense in the legal advertisements section of a newspaper of general circulation (i.e., one that meets the requirements of Sections 50.011 and 50.031 of the Florida Statutes) in the county or counties in which the activity will take place or the effects of the Department’s proposed action will occur, and shall provide proof of the publication to the Department within seven days of the publication. For federally enforceable general permits approved by the Department for air operations, however, notice of a draft permit shall be published in the Florida Administrative Weekly, in accordance with 40 C.F.R. sec. 70.7(h)(1). In addition to the provisions of this section, other specific requirements for notices are as follows: notices for variances and waivers are governed by Rule 62-110.104, F.A.C., notices for federally enforceable air operation permits are governed by Rule 62-210.350, F.A.C., notices for exemptions from water quality criteria are governed by paragraph 62-4.243(1)(a), F.A.C., those for exemptions for water bodies classified for navigation, utility, and industrial use are governed by paragraph 62-4.243(2)(a), F.A.C., notices for exemptions from the limitations imposed on mixing zones are governed by paragraph 62-4.244(1)(c), F.A.C., notices for general permits are generally governed by subsection 62-4.530(5), F.A.C., notices on site-specific alternative criteria are governed by subparagraph 62-302.800(4)(c)7., F.A.C., notices for “noticed general permits” in the environmental resource permitting program are governed by paragraphs 62-343.090(1)(d)-(e), (2)(c), and (2)(h)-(j), F.A.C., notices on permits for underground injection wells are governed by Rule 62-528.315, F.A.C., notices on wastewater facility permits are governed by Rule 62-620.550, F.A.C., notices for general permits for solid waste transfer stations are governed by subsection 62-701.801(7), F.A.C., and notices (including the federal requirement for such notice to be broadcast over one or more local radio stations) for hazardous waste permits are governed by subsections 62-730.220(9) and (11), F.A.C.

(6) Notice of Application. Publication of a notice of application shall be required for those projects that, because of their size, potential effect on the environment or natural resources, controversial nature, or location, are reasonably expected by the Department to result in a heightened public concern or likelihood of request for administrative proceedings. If required, the notice shall be published by the applicant one time only within fourteen days after a complete application is filed and shall contain the name of the applicant, a brief description of the project and its location, the location of the application file, and the times when it is available for public inspection. The notice shall be prepared by the Department and shall comply with the following format:

Notice of Application

The Department of Environmental Protection announces receipt of an application for permit from [name of applicant] to [brief description of project]. This proposed project will be located at [location] in [city, if applicable] in [county]. This application is being processed and 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 [name and address of office].

A notice of application for an environmental resource permit shall also contain the information required by Sections 373.413(3)-(4) of the Florida Statutes.

(7) Notice of Proposed Agency Action on Permit Application. After processing a permit application, the Department shall give the applicant either a notice of permit issuance (or denial) or a notice of the Department’s intent to issue (or deny). Each such notice shall comply with the requirements for format, content, and publication as set forth below in this subsection.

(a) The Department shall require publication of notice of the Department’s proposed action on an application in the following circumstances:

1. The Department shall require applicants to publish an intent to issue for all construction permits for domestic wastewater treatment plants, industrial wastewater treatment plants, Class I, Class III, or major Class V underground injection control wells, solid waste disposal facilities, hazardous waste facilities, and air pollution sources, as well as any other project (including any environmental resource or wetland resource project) that the Department finds is reasonably expected to result in a heightened public concern or likelihood of a request for administrative proceedings because of its size, potential effect on the environment or natural resources, controversial nature, or location. In addition, all applicants shall publish a notice of intent to issue under Rule 62-210.350, F.A.C., for federally enforceable air operation permits, permit revisions, and permit renewals, including those processed under the provisions of Chapter 62-213 of the F.A.C., but not for permit revisions meeting the requirements of subsection 62-213.412(1), F.A.C.

2. Applicants for construction permits for drinking water treatment plants whose facilities will discharge to surface or ground water and will be required to obtain a permit to discharge or any other permit from the Department shall publish a notice of intent to issue a permit.

3. Applicants for construction or expansion of solid waste facilities shall publish a notice of intent to deny a permit.

4. After publication of a notice of intent to issue or intent to deny a permit application, the applicant shall publish an additional notice if the subject activity or project is substantially modified by the applicant and the Department proposes to issue the permit with the modification. The additional notice shall not be required for applications for which a notice of administrative proceeding on a permit application has been published under paragraph (7)(e) below. For the purposes of this subparagraph, the phrase “substantially modified” means a relocation or modification of the activity or project that is reasonably expected to cause new or significantly greater adverse environmental impacts.

(b) The applicant shall cause the notice to be published as soon as possible after notification by the Department of its intended action. The provisions of Section 120.60(1) of the Florida Statutes, shall be tolled by the request of the Department for publication of the notice and shall resume fourteen days after receipt of proof of publication, at the address specified by the Department in its request for publication.

(c) The notice shall be prepared by the Department and shall contain the following:

1. The name of the applicant and a brief description of the proposed activity and its location;

2. The location of the application file and the times when it is available for public inspection;

3. A statement of the Department’s intended action; and

4. A notification of the opportunity to request an administrative hearing and mediation (if available) that reads substantially as set forth in paragraph (12) of this rule, below.

(d) The notice required by this subsection shall read substantially as follows:

Notice of Intent to [insert “Issue” or “Deny” as appropriate] Permit

The Department of Environmental Protection gives notice of its intent to [issue] [deny] a permit to [name and address of applicant] to [brief description of project or activity]. The application 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 [name and address of office].

[Insert the language setting forth the notice of rights, as provided in paragraph (12) of this rule, below.]

(e) Notice of Administrative Proceeding. If the applicant initiates an administrative proceeding on a permit denial or an intent to deny and the project or activity is one for which publication of a notice of intent to issue would have been required under subparagraph (7)(a)1. above, the applicant shall publish a notice of administrative proceeding on permit application.

1. The notice shall be published at the applicant’s expense either

a. Within fifteen days after the applicant’s petition for administrative proceeding has been forwarded to the Division of Administrative Hearing (DOAH) or within fifteen days after the initiation of an administrative proceeding before the Department under Section 120.569 of the Florida Statutes; or, at the applicant’s option,

b. Within fifteen days after the applicant has filed a request for an extension of time in which to file a petition for an administrative proceeding.

2. The notice shall read substantially as follows:

Notice of Administrative Proceeding on Permit Application

The Department of Environmental Protection gives notice of receipt of a [insert “request for an extension of time in which to file a” if appropriate] petition for an administrative proceeding (hearing) on the Department’s [intent to deny] [denial of] a permit to [name and address of applicant, application number, OGC file number, and DOAH case number, if applicable] to [brief description of activity or project and of location].

The administrative hearing process is designed to formulate agency action. Accordingly, the Department’s final action may be different from the proposed agency action and may result in the issuance of a permit as requested by the applicant or as modified in the course of the proceeding or by settlement.

[Insert the language setting forth the notice of rights, as provided in paragraph (12) of this rule, below.]

(f) Notices of intent to issue a permit for hazardous waste facilities shall be in the format set forth above but shall include the time frames and meet the federal requirements set forth in subsection 62-730.220(9) of the F.A.C.

(8) Notice of Proposed Agency Action (Non-permitting). On a matter other than a permit application, the Department or any applicant, petitioner for a variance or waiver, party to a consent order, or person seeking the Department’s authorization or approval of a report, plan, proposal, or other request (excluding any request for hearing) may publish or be required to publish notice of the proposed action in substantially the following format:

State of Florida Department of Environmental Protection Notice of Proposed Agency Action

The Department of Environmental Protection gives notice that it proposes [insert phrase describing the agency action proposed (e.g., to approve a consent order)] in reference to [a description and location of the subject matter or activity covered by the action, the Department’s identification number, and the name and address of any person to whom the action is directed]. Complete copies [of any document and accompanying material expressing the proposed agency action] 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 [name and address of office].

[Insert the language setting forth the notice of rights, as provided in paragraph (12) of this rule, below, except that references in that notice to deadlines of fourteen days shall be replaced by references to twenty-one days.]

(9) Proof of Publication. Notice to substantially affected persons on applications for Department permits or other authorizations is an essential and integral part of the state environmental permitting process. Therefore, no application for a permit or other authorization for which published notice is required shall be granted until proof of publication of notice is made by furnishing a uniform affidavit in substantially the form prescribed in Section 50.051 of the Florida Statutes, to the office of the Department issuing the permit or other authorization. Applicants for hazardous waste permits must also comply with subsection 62-730.220(11), F.A.C.

(10)(a) Any applicant or person benefiting from the Department’s action may elect to publish notice of the Department’s intended or proposed action (or notice of a proceeding on such intended action) in the manner provided by subsection (7) or (8) above. Upon presentation of proof of publication to the Department before final agency action, any person who has elected to publish such notice shall be entitled to the same benefits under this rule as a person who is required to publish notice. Since persons whose substantial interests are affected by a Department decision may petition for an administrative proceeding within the time provided in this rule (at subsection (3) above) after receipt of notice of agency action, and since receipt of such notice can occur at any time unless notice is given or published as prescribed in this rule, the applicant or other person requesting a particular action by the Department cannot justifiably rely on the finality of the Department’s decision unless the notice has been duly published or otherwise provided to all persons substantially affected by the decision.

(b) The notices required by this rule may be combined with other notices required by the Department under Chapters 373, 376, 378, or 403 of the Florida Statutes, or title 62 of the Florida Administrative Code. For applications concurrently reviewed under Section 373.427, Florida Statutes, the provisions of that statute shall govern.

(c) The provisions of this section shall also apply to the permitting and regulation of hazardous waste facilities, except that subsections 62-730.220(9), 62-730.220(11), and 62-730.310(6), F.A.C., shall govern to the extent that they provide for a different time or notice procedure than that set forth in this section.

(d) In issuing notices on permits or administrative orders under a federally delegated or approved program, the Department shall follow the procedures approved by the federal government for the Department’s implementation of the program: Rule 62-210.350 of the F.A.C., for air quality programs, Rule 62-528.315, F.A.C., for the underground injection control program, Rule 62-620.550, F.A.C., for the National Pollutant Discharge Elimination System program, and subsection 62-730.220(9) and 62-730.220(11), F.A.C., for the program regulating hazardous wastes. In general, those rules require that the Department or the applicant give public notice that a draft permit (or an order that is not the result of a hearing under Section 120.569 of the Florida Statutes) has been prepared, including a statement whether a public meeting has been scheduled on the permit or order. Public notice of such a permit or order shall allow at least thirty days for public comment for air, underground injection control, and national pollution discharge elimination system permits, and forty-five days for such public comment on hazardous waste permits. If a public meeting on such a permit or order is scheduled, public notice of the meeting shall be given at least thirty days before the meeting. The two notices may be combined.

(11) Failure to publish any notice of application, notice of intent to issue permit, or notice of agency action required by the Department shall be an independent basis for the denial of the permit or other pertinent approval or authorization.

(12) Notice of Right to Hearing and to Mediation. Every notice under this section required to include a notice of the right to an administrative hearing and to mediation (when available) shall read substantially as follows, in pertinent part:

[Insert either “The Department will issue the permit with the attached conditions” or “The Department’s proposed agency action shall become final”] unless a timely petition for an administrative hearing is filed under Sections 120.569 and 120.57 of the Florida Statutes, before the deadline for filing a petition. [If mediation is available, insert: “Persons who have filed such a petition may seek to mediate the dispute, and choosing mediation will not adversely affect the right to a hearing if mediation does not result in a settlement.”] The procedures for petitioning for a hearing are set forth below [if mediation is available, insert “, followed by the procedures for pursuing mediation”].

A person whose substantial interests are affected by the Department’s proposed [insert either “permitting decision” or “agency action”] may petition for an administrative proceeding (hearing) under Sections 120.569 and 120.57 of the Florida Statutes. The petition must contain the information set forth below and must be filed (received) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000.

[For written notice, insert the following: “Petitions by the applicant or any of the parties listed below must be filed within [insert “fourteen”, “twenty”, or “twenty-one”, or “forty-five” as specified for the kind of agency action under subsection (3) of this rule, above] days of receipt of this written notice. Petitions filed by other persons”]

[For published notice related to a permit, insert the following: “Petitions filed by any persons other than those entitled to written notice under Section 120.60(3) of the Florida Statutes”] must be filed within [insert “fourteen”, “twenty”, or “twenty-one”, or “forty-five” as specified for the kind of agency action under subsection (3) of this rule, above] days of publication of the notice or receipt of the written notice, whichever occurs first. [For written notice, insert the following: “Under Section 120.60(3), Florida Statutes, however, any person who asked the Department for notice of agency action may file a petition within fourteen 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 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 of the Florida Statutes, or to intervene in this proceeding and participate as a party to it. Any subsequent intervention (in a proceeding initiated by another party) will be only at the discretion of the presiding officer upon the filing of a motion in compliance with Rule 28-106.205 of the F.A. C.

A petition that disputes the material facts on which the Department’s action is based must contain the following information: [insert the categories of required information listed in subsection 28-106.201(2), F.A.C.]. 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.

Because the administrative hearing process is designed to formulate final agency action, the filing of a petition means that the Department’s final action may be different from the position taken by it in this notice. Persons whose substantial interests will be affected by any such final decision of the Department have the right to petition to become a party to the proceeding, in accordance with the requirements set forth above.

[Insert either the statement that “Mediation is not available in this proceeding,” or the following statement:

In addition to requesting an administrative hearing, any petitioner may elect to pursue mediation. The election may be accomplished by filing with the Department a mediation agreement with all parties to the proceeding (i.e., the applicant, the Department, and any person who has filed a timely and sufficient petition for a hearing). The agreement must contain all the information required by Rule 28-106.404, F.A.C. The agreement must be received by the clerk in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000, within ten days after the deadline for filing a petition, as set forth above. Choosing mediation will not adversely affect the right to a hearing if mediation does not result in a settlement.

As provided in Section 120.573 of the Florida Statutes, the timely agreement of all parties to mediate will toll the time limitations imposed by Sections 120.569 and 120.57, Florida Statutes, for holding an administrative hearing and issuing a final order. Unless otherwise agreed by the parties, the mediation must be concluded within sixty days of the execution of the agreement. If mediation results in settlement of the administrative dispute, the Department must enter a final order incorporating the agreement of the parties. Persons seeking to protect their substantial interests that would be affected by such a modified final decision must file their petitions within [insert “fourteen”, “twenty”, or “twenty-one”, or “forty-five” as specified for the kind of agency action under subsection (3) of this rule, above] days of receipt of this notice, or they shall be deemed to have waived their right to a proceeding under Sections 120.569 and 120.57, Florida Statutes. If mediation terminates without settlement of the dispute, the Department shall notify all parties in writing that the administrative hearing processes under Sections 120.569 and 120.57, Florida Statutes, are resumed.]

Any party to this order has the right to seek judicial review of it under Section 120.68 of the Florida Statutes, by filing 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, Mail Station 35, 3900 Commonwealth Boulevard, 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 thirty days after this order if filed with the clerk of the Department.

Specific Authority 120.54(5), 403.061, 403.0876, 403.722(7), 403.815 FS. Law Implemented 120.54(5), 120.569, 120.57, 120.60, 161.0535, 373.413(4), 373.4145, 373.427, 403.0872(4)-(5), 403.0876, 403.121(2)(c), 403.201(3), 403.722, 403.814, 403.815 FS. History–New 7-1-98.