Title: Agreement Concerning Plant City Phosphate Complex Phosphogypsum Stack Expansion / Berry XL Project
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003945/00001
 Material Information
Title: Agreement Concerning Plant City Phosphate Complex Phosphogypsum Stack Expansion / Berry XL Project
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Agreement Concerning Plant City Phosphate Complex Phosphogypsum Stack Expansion / Berry XL Project (JDV Box 108)
General Note: Box 16, Folder 3 ( Letters, Drafts, Permits - 1995 -1998 ), Item 10
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003945
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text






'i


AGREEMENT CONCERNING PLANT CITY
PHOSPHATE COMPLEX PHOSPHOGYPSUM STACK EXPANSION

This Agreement is made and entered into this __L_ day of

___a_-__-6__ 1995, by CF INDUSTRIES, INC. (CFI), the FLORIDA

DEPARTMENT OF COMMUNITY AFFAIRS (DCA), and the FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION (DEP).


RECITATIONS

1. The DEP is an agency of the State of Florida responsible

for environmental permitting and policy programs under Chapters

373, 376 and 403, F.S., which address matters including, among

other things, facility construction, operation management and the

specific permitting of phosphogypsum stack systems and management

under Chapter 403, F.S., and Chapter 62-673, Florida Administrative

Code (F.A.C.). Pursuant to Chapter 95-275, Laws of Florida,

Section 3, DEP also is the lead agency in the design and

implementation of a cooperative, coordinated ecosystem-management-

based Demonstration Project in the Hillsborough River and Bay

Ecosystem. In order to "enhance the success" of the Demonstration

Project, the DEP Secretary has the power to enter into agreements

with landowners, developers, industries and government agencies "as

may be necessary to effectuate the provisions" of the demonstration

project. DEP and its private and public partners are required to









make an interim report on the success of the Demonstration Project

to the Governor and Legislature by January 1, 1996.

2. The DCA is an agency of the State of Florida responsible

for the administration and enforcement of Chapter 380, Florida

Statutes (F.S.), which includes provisions related to Developments

of Regional Impact (DRIs). The DCA has the "power and duty" under

Section 380.032 (3), F.S. to

Enter into agreements with any landowner,
developer, or governmental agency as may be
necessary to effectuate the provisions and
purposes of this act or any rules promulgated
hereunder.

The parties agree that this agreement will effectuate the purposes

of Chapter 380, F.S., including the protection of natural resources

and the environment, provision of optimal use of limited water

resources, and facilitation of orderly, well-planned development.

3. CFI is a Delaware corporation, authorized to do business

and doing business in Florida. CFI owns and operates an existing

phosphate chemical complex located on S.R. 39 near Plant city in

northeast Hillsborough County. The existing CFI plant, which

converts phosphate rock to fertilizer with phosphogypsum (gypsum)

as a by-product that is placed in a "stack" near the plant

facilities, started operation in 1965 under CFI's predecessor-in-

interest. CFI purchased the facility in 1970. The plant was

expanded under state and county permits issued prior to July 1,

1973, upon which CFI has represented that it relied and changed

position.









4. On August 30, 1973, the DCA issued a Binding Letter of

Interpretation of Vested Rights, BLIVR 874-026, determining that

the 1965 development and 1973 expansion, consisting of industrial

operations located on a total of approximately 560 acres, including

a gypsum stack in Section 5, Range 22E, Township 27S, was not

subject to DRI review. CFI has represented that the 560-acre

phosphate complex operation (hereinafter "Existing Facilities") as

described in Composite Exhibit 1 has remained in continuous

operation to date and that CFI has relied on and changed its

position based on the determination that the Existing Facilities

are not subject to DRI review.

5. The Hillsborough River and Bay Ecosystem Demonstration

Project includes implementation of the February 1995 report of the

Hillsborough River Greenways Task Force on an Ecosystem Protection

Plan for the Upper Hillsborough Basin. Since 1992, CFI has

participated in the Hillsborough River Greenways Task Force

(Greenways Task Force), a broad-based coalition of public, private,

planning regulatory, environmental and corporate organizations

formed to develop and implement long-range programs to protect

natural resources in the upper Hillsborough River Basin.

6. The existing gypsum stack is "unlined." DEP rule Chapter

67-673 requires CFI to stack gypsum on a "lined" stack by March 24,

2001. CFI needs an alternative site near its Plant City complex to

keep that facility operational. CFI's proposed future operations

would include a phased expansion to develop a "lined" gypsum stack

(hereinafter "Gypsum Stack Expansion") moving southward from the









existing stack in Section 5 into an area consisting of

approximately 480 acres in Section 8 (see Future Gypsum Stack

Expansion Location map attached hereto as Exhibit 2). "Closure"

(as that process is described in DEP rules in Chapter 62-673,

Florida Administrative Code (1995)) of the existing stack would be

initiated as soon as the expansion is permitted and operational.

7. Use of Section 8 for the Gypsum Stack Expansion will

require Hillsborough County adoption and DCA review of local

comprehensive plan amendments pursuant to Chapter 163, F.S.

8. An industrial use of 480 acres is conclusively a DRI and

required to undergo DRI review under current statutes and rules.

9. The purpose of this Agreement is to address issues

related to the DRI status and to the DRI and local comprehensive

plan amendment review of the Gypsum Stack Expansion in a manner

consistent with Chapters 163, 380, F.S., and 95-275, Laws of

Florida, and to address the respective rules and required actions

of the DEP, DCA and CFI. Review of the DRI and comprehensive plan

amendment will proceed concurrently.

10. The Gypsum Stack Expansion into Section 8 at the Plant

City complex was recommended as part of the Greenways Task Force

Ecosystem Protection Plan for the upper Hillsborough River Basin

based on ecosystem management principles and net environmental

benefits. The Section 8 location was recommended as the best of 16

locations studied, based on environmental impacts, environmental

benefits and other criteria. The planned Gypsum Stack Expansion,










therefore, is one part of the 1995 Hillsborough River Ecosystem

Demonstration Project.

11. As one part of the implementation of the Task Force

recommendations, CFI and Hillsborough County, in August 1995,

agreed to a land exchange with the following features, among

others:

a. CFI agreed to exchange 1,938 acres adjacent to other
County land for 1,558 acres of County land around the existing
CFI phosphate complex. (See Exhibit 3 attached.) County
received a net benefit of 380 acres;

b. The CFI lands exchanged to the County were of higher
environmental quality than County lands CFI received;

c. CFI agreed to conserve, through permanent property
restrictions, upland/wetland habitat and wildlife corridors on
the 961 acres of the 1,558 acres it received, resulting in
1,341 net acres (including the 380 net acres received by the
County for protection) added to public/private protection
without public cost;

d. CFI agreed to provide and pay for long-term
management of the 961 protected acres;

12. In order to implement the Greenways Task Force

recommendations, CFI also, upon receipt of permits for the

construction of the Gypsum Stack Expansion, has proposed to provide

the following net ecosystem benefits, which will, in many cases,

exceed gypsum stack impacts:

a. CFI has agreed to use 2 million gallons per day
(MGD) of treated Plant City wastewater as part of its future
industrial operations, thereby reducing CFI's groundwater
consumption by 2 MGD while maintaining an appropriate cone of
influence around wells to control localized on-site
groundwater contamination.

b. CFI will provide a 1/4-mile buffer/conservation
corridor around the west, south and east sides of the Gypsum
Stack Expansion in Section 8 and to the east of the existing
gypsum stack in Section 5, although not required by DEP gypsum
stack rules;










c. Through deed restrictions, CFI will provide 961
acres of enhanced, restored, created and conserved upland and
wetland habitat (see exhibit 3);

d. Subject to permitting determinations, CFI will
provide for wetland restoration or enhancement as mitigation
that will exceed in acreage the 162 acres of impacted
wetlands, which are currently primarily in a disturbed,
ditched condition;

e. CFI will widen the existing greenways/wildlife
corridor bottleneck on the east side of S.R. 39 adjacent to
Blackwater Creek, through provision of the conservation
corridor as shown on Exhibit 3;

f. As determined through future public-private efforts,
CFI will provide management for the 961 acres described above,
plus an additional 640 acres of County-owned lands (eastern
half of Sections 4 and 9);

g. Through provision of the conservation corridor as
shown on Exhibit 3, CFI will restore/enhance the upland
connection between Big Ditch to the north and Blackwater Creek
to the south;

h. CFI will initiate and implement
enhancement/restoration efforts before expanded gypsum stack
impacts;

i. CFI will initiate the process of "closure" (as that
process is described in DEP rule Chapter 62-673) of the
existing gypsum stack before the expiration of its permitted
life under DEP gypsum stack rules;

j. CFI will participate in continued evaluations of
possible future uses of phosphogypsum and of possible use of
the existing gypsum stack in order to limit stack expansion
needs;

k. CFI will phase expansion of the new gypsum stack to
allow use of more environmentally sensitive technology as it
develops and enhance management of stack's water balance;

13. The parties agree that the CFI proposed actions further

the implementation strategy for the Upper Hillsborough River

Protection Plan because they:

a. are consistent with Hillsborough River Greenways
Task Force Report;










b. are consistent with principles of ecosystem
management;

c. are consistent with purpose of ecosystem management
demonstration project authorized by Chapter 95-275, Laws of
Florida;

d. promote integrated decision-making;

e. provide meaningful incentives to private landowner
participants;

f. provide for appropriate agreements with affected
agencies for implementation;

g. provide for a significant net ecosystem benefit for
the State of Florida and its citizens.

14. The DCA and CFI agree that the proposed expansion of the

CFI gypsum stack into Section 8 will not pose any state or regional

impacts in the DRI issue areas related to potable water supply;

wastewater management; domestic solid, hazardous or medical waste;

transportation; air quality related to motor vehicle emissions;

hurricane preparedness; adequate housing; police and fire

protection; recreation; education; health care; energy; and

archaeological and historical resources.

15. CFI further represents and states as follows:

a. The proposed expansion of the CFI gypsum stack into
Section 8 will not result in any material change in the
current manufacturing processes at the CFI phosphate complex,
in the existing plant facilities, or in the current number of
existing employees or in the shift times worked by those
employees;

b. The proposed expansion of the gypsum stack will not
require any material change in existing potable water,
wastewater or sewer, solid waste, police and fire protection
or health care services or materially change the existing
external road traffic resulting from existing operations.
Adequate potable water, sewer, solid waste, police and fire
protection and health care services presently are available to
serve these existing operations consistent with any relevant
adopted level of service standards;

7









c. The proposed expansion of the CFI expansion stack
will not result in any material change in motor vehicle carbon
monoxide emissions potentially reviewable in the DRI process;

e. The proposed expansion of the gypsum stack into
Section 8 will not cause a significant impact to any listed
endangered, threatened, or special concern wildlife species or
to any plant species listed in Rule 9J-2.041, F.A.C.;

f. The proposed expansion of the gypsum stack into
Section 8 will not cause a significant impact to any
regionally significant archaeological or historical resources
based on a determination by the Florida Department of State,
Division of Historical Resources.

16. The parties agree that, from the standpoint of

environmental permitting of the proposed Gypsum Stack Expansion,

DEP will have the lead technical review role in review of impacts

related to wetlands, groundwater, surface water, aquifer recharge,

soils and geotechnical subsurface evaluation, floodplains,

stormwater management and industrial solid waste.

17. The DCA and CFI desire to resolve any disagreement over

the DRI status of the Existing Facilities and operations, as

provided in this Agreement, in order to avoid any potential

litigation over matters in dispute, and in light of the lengthy

history and operation of the Existing Facilities and accommodation

of their impacts, the economic and environmental benefits of

continuing the ongoing operations of the complex, and the

opportunity to further the provisions and purposes of the 1995

Greenways Task Force Report and the Hillsborough River and Bay

Ecosystem Demonstration Project.

18. The DEP, DCA and CFI also enter into this Agreement to

"enhance the success" of the 1995 Hillsborough River and Bay

Ecosystem Demonstration Project; to effectuate the provisions of

8









Chapters 380, F.S., and 95-275, Laws of Florida, Section 3; to

provide the ecosystem-based net environmental benefits set forth

above; to implement the recommendation of the Hillsborough River

Greenways Task Force; to promote integrated decision-making; and to

provide meaningful incentives to CFI to provide the net

environmental benefits described above.

COVENANTS AND CONDITIONS

NOW, THEREFORE, based on the factual statements and

recitations set forth above and in view of the mutual covenants,

considerations and conditions herein, the parties hereto agree as

follows:

1. The recitals, representations and agreements set forth

above are incorporated herein and are essential elements of this

Agreement.

2. The DEP, DCA and CFI agree as follows as to their actions

generally:

a. The DEP and DCA will give priority to and expedite
action, in timeframes shorter than those allowed by law where
they have such authority, on any agreements, approvals or
permits related to the proposed expansion of the CFI gypsum
stack during the period of review of any such agreements,
approvals or permits.

b. The DEP will act as lead agency under Chapter 95-275,
F.S., to maximize implementation of the Hillsborough River and
Bay Ecosystem Demonstration Project by the January 1, 1996,
deadline for reporting on the success of the Project.

c. The DEP and DCA agree that the goals of this
Agreement, as consistent with law, are to avoid duplicative
review, eliminate review not required by the proposed CFI
Gypsum Stack Expansion, and to expedite review of related
approvals and permits.









3. The DEP, in this agreement, agrees to fulfill the lead

agency role in the review of certain DRI application for

development approval issue areas, as described below in Paragraph

7, in a manner consistent with Paragraph 2. DEP further states its

intent to enter into a separate agreement with CFI to address DEP's

lead agency role pursuant to Chapter 95-275, Laws of Florida, and

its direct permitting responsibilities.

4. The DCA agrees that the Existing Facilities and the

industrial activities (as described in Composite Exhibit 1)

conducted within the CFI Plant City phosphate complex as of the

date of this Agreement that are located on the property in Sections

5 and 6, Range 22E, Township 27S (see Exhibit 2) are not subject to

DRI review pursuant to Chapter 380, F.S. In light of potential

disputes and protracted litigation over the DRI status of the

entire existing operations, the other conditions within this

Agreement, and its purposes and the net environmental benefits to

land and water anticipated, the DCA agrees that it will not seek

enforcement of the DRI statutes in Chapter 380, F.S., concerning

the Existing Facilities or any CFI industrial activities existing

as of the-date of this Agreement on Sections 5 and 6, Range 22E,

Township 27S (see Exhibit 1). CFI acknowledges that any future

development on Sections 5 and 6 may be subject to the provisions of

Chapter 380, F.S., subject to CFI's right to continue to assert

that all industrial-related activities on such land and

modifications to them are vested from and not subject to DRI review









if they satisfy the criteria of Section 380.06(4)(e) and (f), F.S.

(1995).

5. CFI shall be required to file a DRI Application for

Development Approval (ADA) for the proposed Gypsum Stack Expansion

in Section 8, subject to the further conditions of this Agreement.

6. CFI will comply with the pre-application conference

requirements of Section 380.06(7), F.S., for the proposed Gypsum

Stack Expansion no later than 45 days after the execution of this

Agreement. CFI will file the ADA for the Gypsum Stack Expansion no

later than 90 days from the date of execution of this Agreement.

Based on the recitals above, CFI's and the DCA's position is that

the ADA should be required only to address the following questions

in the ADA: 1-16, 17 (non-potable water use only), 19, 20

(industrial solid waste only), and 34.

7. In order to effectuate the purposes of Chapter 380, F.S.,

and Chapter 95-275, the DCA further agrees that during review of

the Gypsum Stack Expansion it will acknowledge that DEP is the lead

technical agency for review of ADA Questions 13 (wetlands), 14

(water), 15 (soils), 16 (floodplains), 19 (stormwater management)

and 20 (industrial solid waste) and that the Florida Game and Fresh

Water Fish Commission is the lead technical agency for purposes of

ADA Question 12 concerning wildlife. DCA further agrees that if

such lead agencies indicate no objection under any pertinent

criteria in Chapter 9J-2, Florida Administrative Code, to the CFI

Gypsum Stack Expansion DRI in their respective question areas










listed above or to proposed related DRI conditions, the DCA will

defer to such determinations for purposes of its review.

8. DCA and CFI agree that the information to be submitted by

CFI as part of the "team permitting" application package to be used

in the Hillsborough River and Bay Ecosystem Demonstration Project,

as compiled by DEP, shall be sufficient to address the DRI ADA

questions that CFI must address for the Gypsum Stack Expansion. In

light of these "team permitting" efforts, DCA and CFI further

acknowledges CFI's intent to respond to only one set of ADA

sufficiency questions.

9. This Agreement shall not entitle CFI to a final DRI

development order approving the proposed Gypsum Stack Expansion

nor any other necessary permits, approvals or authorizations from

DEP or other agencies.

10. Nothing in this Agreement shall constitute a waiver by

DCA or CFI to appeal any future DRI development orders pursuant to

Section 380.07, F.S.

11. This Agreement affects the rights and obligations of DCA

and CFI under Chapter 380, F.S. It is not intended to determine or

influence 'the authority or decisions of any other permits or

approvals which might be required by state law or local ordinance

for any development authorized by this Agreement. This Agreement

does not relieve CFI from obtaining all other necessary

governmental approvals and permits. This Agreement shall not

prohibit the regional planning council from reviewing or commenting










on regional issues that the council determines should be included

in its report on the ADA.

12. Upon the issuance of a final DRI development order

pursuant to Chapter 380, F.S., or any final DEP permit or approval

for the proposed Gypsum Stack Expansion, the conditions and

restrictions of that development order and any such DEP permits)

or approval(s) shall supersede this Agreement where inconsistent

with this Agreement. All other provisions of this Agreement shall

remain in full force and effect.

13. In the event of a breach of this Agreement by CFI or

failure to comply with any conditions of this Agreement by CFI, or

if the Agreement is based on materially inaccurate information, the

DCA may terminate this Agreement or may file suit to enforce it as

provided in Section 380.06 and 380.11, F.S. (1995), seek

appropriate injunctive relief, or require renegotiation of this

Agreement based on accurate information. For the same reasons as

previously stated in this paragraph, the DEP also may terminate

this Agreement; file suit to enforce it or seek injunctive relief

in the Circuit Court for Hillsborough County; or require

renegotiation of the Agreement based on accurate information.

14. In order to ensure coordination of the review of the

proposed Gypsum Stack Expansion DRI with a related comprehensive

plan amendment to be proposed pursuant to Chapter 163, Part II,

F.S., the DCA further agrees to:

a. Expedite, in timeframes shorter than those allowed
by law, its review of any related proposed or adopted
comprehensive plan amendment;










b. In order to eliminate redundancy and duplication,
accept the Ecosystem Demonstration Project "team permitting"
application information package, when sufficient, as adequate
data and analysis to address similar comprehensive plan
amendment issues.

c. Accept, for purposes of Section 163.3187(6), F.S.
(1995), any comprehensive plan amendment related to the Gypsum
Stack Expansion as implementation of recommendations of the
Hillsborough County Evaluation and Appraisal (EAR) Report, so
long as such report addresses the pertinent recommendations of
the Hillsborough River Greenways Task Force Ecosystem
Protection Plan for the Upper Hillsborough River or addresses
the Hillsborough River and Bay Ecosystem Demonstration
Project. CFI hereby states its intent to seek inclusion of
such provisions in the County's EAR.

15. The terms and conditions of the Agreement, shall inure to

the benefit of and be binding upon the successors and assigns of

the parties hereto. CFI shall ensure that any successors-in-

interest in any property affected by this Agreement are bound by

the terms of this Agreement. CFI shall record a notice of this

Agreement which complies with Section 380.06(8) (a)10., F.S. (1995),

in the official records of Hillsborough County, Florida, and shall

provide the DCA and DEP with a copy of the recorded notice,

including Book and Page number, within 30 days of the execution of

this Agreement.

16. The date of execution of this Agreement shall be the date

that the last party signs and acknowledges the Agreement.



IN WITNESS THEREOF, the parties, by and through the

undersigned duly authorized representatives, have executed this

Agreement on the dates set forth below.










CF INDUSTRIES, INC.


By A44eok+V,4-
Title P



STATE OF FLORDA
COUNTY OF


SWORN TO and subscribed before me this /7 r'day of
,1995, by 6i. .
who is personally known to me/has produced a driver's license for
identification.


Notary Public
State of Florida












STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS


By

Tit e




STATE OF FLORIDA

COUNTY OF

SWORN TO and subscribed before me this day of

S1995, by __ ,

who is personally known to me/has produced a driver's license for

identification.






&-drky Public
State of Florida

'";c- oC CUZMJ
rA CO iSSiON i rC 2-45713 EXPIRES
BO% D Dncrmber 10, 1996
0.0NE ED THRU TROY FAIN INSUA CE., INC.












STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION




Title _/__ e___-_______- _




STATE OF FLORIDA

COUNTY OF ...~ / -/

SWOR TO and subscribed before me this day of

~~__________ / 1995, by ^c -c2'i

who is personally known to me/has produced a driver's license for

identification.




Notary Public
State of Florida


lELE -iANOcR C. DUNKLE
S M COMMISSION # CC 442408
4XP!RES: June 14, 19S9
SWIMTh T NotWay PWuKic UdeeMeteBr

















r EE3









Florida Department of
MEMORANDUM ENVIRONMENTAL PROTECTION



TO: District Directors
Mimi Drew
Howard Rhodes / Dottie Diltz
John Ruddell
Pam McVety
Pinky Hall

FROM: Jacki McGortyn

DATE: July 18, 199-

SUBJECT: Berry XL Project


Here is a copy of the Berry XL Final Project Agreement (FPA) and a copy of the status
report. As you may know, this is the first FPA to be completed and signed in the
country. Kudos go to Peter Ware and his staff who did an outstanding job as did Dee
Stewart and her staff from EPA, Region 4. It was a privilege for me to work with
them on this project. If you have questions regarding the project, you may reach Peter
at 941-332-6975 or me at 904-921-9717.








Status Report on
Berry XL Project
7/18/96

Description of Project

The US Environmental Protection Agency (EPA), Florida Department of
Environmental Protection (FDEP), the South Florida Water Management District
(SFWMD), and Jack M. Berry, Inc. are working cooperatively to carry out a pilot
project as part of EPA's "Project XL" program to test innovative approaches to
environmental protection. The above agencies, through a Final Project Agreement
(FPA), have agreed to develop a Comprehensive Operating Permit (COP).

The FPA involves an innovative approach to permitting Berry's existing citrus juice
plant in La Belle, Florida. The FPA allows Berry to prepare a COP for the facility that
will consolidate operating permits, including all operating procedures, into a single
permit with a five year evaluation period. In exchange for the regulatory processing
flexibility, Berry commits to superior environmental performance that exceeds the level
which would be achieved through compliance with current and reasonably anticipated
future regulations in the areas of water consumption, solid and hazardous waste, and
potable water. The objectives of the COP include: improved compliance with
regulations; net improvement in the environment; reduced costs of permit review and
field inspection; better working relationship with regulated facility and regulators;
simplified paperwork and reporting; opportunity to train staff in compliance and cross-
media permitting; long-term assurance of business operation; and creating a process
that is transferable to other facilities.

Regulatory Flexibility and Environmental Benefit

The innovation provided in this project will allow Berry to avail itself to an accelerated
permit application process. Specifically, Berry will be required to send a letter of
request for COP re-evaluation to FDEP and SFWMD prior to the anniversary date
(five-years) of the COP and submit a COP Evaluation Report. The report will include
supporting data on monitoring and compliance as described in the FPA, demonstrating
that Berry has been in compliance with the COP and will continue to perform up to the
same compliance level for the next five-year period. The accelerated application
process allows Berry to use non-standard forms; however, the necessary relevant
information is provided to the regulators through monitoring in the COP. Additionally,
the process does not require that the letter and accompanying data be certified by a
professional engineer. The five-year COP Evaluation Report, certified by Berry,
provides a five-year picture of environmental performance. The professional
engineer's certification of an application represents a single data point or "snapshot" of
environmental performance. The COP Evaluation Report is more comprehensive and








representative of actual environmental performance than a certified professional
engineer's application.

Legal Authority

Two provisions of the Florida Statutes (F.S.) confer authority upon the State to allow
flexibility in administering this project. In accordance with Section 403.061(21), F.S.,
the FDEP can enter into agreements with other agencies of the State, the Federal
Government, other states, interstate agencies, groups, political subdivisions, and
industries affected by the Environmental Control Act, its implementing regulations, or
policies of FDEP. Section 403.061(34), F.S., further provides that the State can
establish and administer programs that provide appropriate incentives for pollution
prevention and pollution reduction at its source. The parties have agreed that an
accelerated permit application process constitutes appropriate incentive for the expected
significant reductions in water consumption, air emissions, wastewater, and solid waste
disposal, and the benefit of drinking water that is safer than that required by law. The
General Counsel for the FDEP has determined that the regulatory incentive mechanism
satisfies the applicable statutory criteria and is a legal procedure for implementation by
FDEP.

Status

The FPA has been noticed for a 30 day public comment period which ended on June
30, 1996. Although the FPA is not considered agency action, in the spirit of the XL
program and encouraging public participation, the announcement of the FPA was
noticed in the Florida Administrative Weekly and two local newspapers. No comments
were received and the FPA was signed by all parties by July 8, 1996. The COP is due
to be completed by August 31, 1996. The COP will be publicly noticed as agency
action pursuant to the requirement of Sections 373.116, 373.229, 373.413 and
403.815, F.S.

Contacts

Ernie Caldwell, Jack M. Berry, Inc., P.O. Box 5609, Winter Haven, Florida 33880,
941-324-4988.

Peter Ware, Florida Department of Environmental Protection, South Florida District
Office, 2295 Victoria Avenue, Suite 362, Fort Myers, Florida 33901, 941-332-6975.

Jacqueline McGorry, Florida Department of Environmental Protection, Room 1005F,
Marjory Stoneman Douglas Building, 3900 Commonwealth Blvd., Tallahassee, Florida
32399-3000, 904-921-9717.

Dee Stewar, Environmental Protection Agency, Region 4, 345 Courtland Street, N.E.,
SAtlanta, Georgia 30365, 404-347-3012 ext. 2928.















Final Project Agreement

between

Jack M. Berry, Inc.

and

Florida Department of Environmental Protection,

South Florida Water Management District, and

Environmental Protection Agency

for

eXcellence and Leadership








-I 'R(- ^S










FINAL PROJECT AGREEMENT
BERRY XL PROJECT


Section I Governing Procedures

A. Purpose of Agreement/Project Description .................................. 1
B. FPA Signatories .................................................................... 2
C. Roles and Responsibilities of FPA Signatories ............................. 3
D. Duration and Evaluation of FPA and COP ................................... 3
E. M odification ................................................................................. 4
F. Term nation ....................................... .................................... 4
G Severability .................................................. ......................... 6
H. Transfer of FPA and COP ......................................... ............ 6
I. Dispute Resolution ................................... .............. .............. 6

Section II Permit Consolidation Plan

A. Description of Comprehensive Operating Permit ......................... 8
B. Public Participation ................................................ .............. 10
C. Governing Regulations ............................................ ........ ... 10
D. Identification of Regulatory Flexibility ....................................... .. 11
E. Enforcem ent ........................................................ .................. 12

Section III Project XL Criteria

A. Environmental Commitments and Monitoring ............................ 13
B. Cost Savings and Paperwork Reduction .................................... 25
C. Description of Stakeholder Involvement .................................... 25
D. Innovation/Multi-Media Pollution Prevention ............................ 26
E. Transferability .......................................................................... 26
F. Shifting of Risk Burden ........................................... ........... ... 26

Attachments

Facility Location Attachment 1
Simplified Permit Attachment 2
MOU Attachment 3
COP Employee Training Meeting Forms Attachment 4
COP Employee Training Results Reporting Attachment 5
Example COP Attachment 6
Public Notice Procedures Attachment 7
Florida General Counsel Statement Attachment 8


I













Section I Governing Procedures


A. Purpose of Agreement/Project Description

This Final Project Agreement (FPA) states the intention of the U.S. Environmental
Protection Agency (EPA), Jack M. Berry, Inc. (Berry), Florida Department of
Environmental Protection (FDEP), and South Florida Water Management District
(SFWMD), to carry out a pilot project as part of EPA's "Project XL" program, to test
innovative approaches to environmental protection. The FPA is intended to be a joint
statement of the parties' plans and intentions in this project The FPA is not, however,
intended to create legal rights or obligations and is not a contract, or a regulatory action
such as a permit or rule. Some provisions of this FPA will be implemented through a
separate permit, the terms and conditions of which will be legally enforceable.

This FPA involves an innovative approach to the permitting of an existing citrus juice
plant (Facility). A map of the facility location and general facility layout is located in
Attachment 1. Specifically, the FPA allows the applicant to prepare a Comprehensive
Operating Permit (COP) for the Facility, which will consolidate operating permits,
including all operating procedures, into a single permit, and provide for an evaluation
period. This streamlined permit review process is an acceptable form of compliance with
existing Florida law. Berry will apply for a COP to Florida Department of Environmental
Protection and South Florida Water Management District by August 31, 1997.

The signatory agencies to this FPA (Agencies) will review the COP to ensure that
appropriate regulations are satisfied. Each Agency will prepare a simplified permit
(Attachment 2) giving agency approval of the COP and stating that the intent of all
governing regulations will be met provided that the facility is operated in accordance with
the COP. Prior to issuance of the COP and the simplified permit, public notice
requirements of Chapter 120, F.S., will be satisfied. Any conditions of issuance or
operation will be incorporated into the COP. Therefore, the COP will supersede the
existing regulatory environmental permits identified in Section II.A.

A Memorandum of Understanding (MOU) (Attachment 3) will be signed by stakeholders
supporting the implementation of the COP. The objectives and expectations of the FPA
and MOU parties include the following.








OBJECTIVES

GOVERNMENT INDUSTRY/AGRICULTURE

Improve compliance with regulations Improve compliance with regulations

Net improvement in the environment Net improvement in the environment

Reduce costs of permit review and field Reduce costs of permit review and field
inspection inspection

Better working relationship with the Better working relationship with regulators
regulated facility.

Reduce complexity in rules and paperwork Simplify paperwork and reporting

Opportunity to train staff in place-based Certainty and long-term assurance of
management, cross media permitting, and business operation
compliance

Create a process that will be transferable to COP to replace current short-term permits
other facilities


EXPECTATIONS

GOVERNMENT IINDUSTRY/AGRICULTURE

Courtesy inspections Employee training

Technical support More stringent emission standards than
required by rule

Holistic, multi-media (air, waste, water), Employee involvement/empowerment,
approach, considering impact of entire facility require staff to comply with COP
on ecosystem

Open communication Open communication

5 year re-evaluation of COP 5 year re-evaluation of COP

Implement pollution prevention strategies Implement pollution prevention strategies

B. FPA signatories

The signatories to this document are: the President of Berry; the Regional Administrator
of EPA, Region 4; the Secretary of FDEP; and the Governing Board of SFWMD or its
designee (collectively referred to as the signatory parties).










All reports required by the FPA and COP, and other information requested by the
Agencies, will be signed by the President of Berry or by a duly authorized representative
of Berry. A person is a duly authorized representative only if:

1. The authorization is conferred in writing by the President of Berry;
2. The authorization specifies either an individual or a position with the legal
authority to bind the company; and
3. The written authorization is submitted to FDEP.


C. Roles and Responsibilities of FPA signatories

All signing parties will strive for a high level of cooperation, communication, and
coordination to assure successful, effective, and efficient administration of the FPA and
COP.

Permittee/Berry: Implementation of and compliance with the COP.

The Agencies/FDEP, SFWMD, EPA: FDEP will oversee management of the FPA, in
partnership with EPA, SFWMD, and Berry. FDEP is also responsible for coordinating the
input and review of all the Agencies at evaluation points.

The Agencies, in partnership with Berry, will monitor the implementation of the FPA
through annual review of the COP and FPA reporting data. The Agencies may provide to
Berry technical and other assistance on matters associated with the COP, as requested.
EPA retains oversight authority pursuant to all applicable statutes.

D. Duration and Evaluation of FPA and COP

The FPA and the COP will be re-evaluated every five (5) years.

The consumptive use authorization included in the COP may be approved for a ten (10)
year duration. However, during the five (5) year evaluation of the COP, the consumptive
use permit shall not be subject to renewal or competition pursuant to Part II, Chapter 373,
F.S.

To facilitate evaluation of the COP, Berry will prepare a COP Evaluation Report every
five (5) years which will include a summary of all environmental performance monitoring
data collected, as required by -the COP, for the previous five (5) year period. The
availability of the Evaluation Report will be publicly noticed. This notice will solicit
comments from the public, regulatory agencies, and environmental groups. At the time of
COP evaluation, any new statutory or regulatory requirements will be included if not








already incorporated. After consideration of all submitted comments, FDEP and SFWMD
will jointly prepare a written response. In addition to the notice of availability of the COP
evaluation report, FDEP will notify all persons submitting written comments of any
substantial modification of the COP.

To facilitate evaluation of the FPA, Berry will prepare a certified Project XL FPA
Evaluation Report every five (5) years which will include a discussion of environmental
benefits obtained and a summary of all monitoring data collected, as required in Section
I.A, for the previous five year period. For each five (5) year reporting period, these
reports will be submitted to FDEP, SFWMD, and EPA one hundred and eighty (180) days
prior to the anniversary of the effective date of the COP.

These reports will be reviewed by the Agencies for the purpose of determining:

1. whether superior environmental benefits have been achieved as anticipated in the
FPA;
2. whether Berry has complied with the terms and conditions of the COP; and,
3. whether the FPA and COP should be continued for another five (5) year time
period.

If the above agency determinations support continuation of the FPA and COP, Berry will
publish notice of intended agency action to continue and/or amend, as necessary, the FPA
and COP. With regard to the COP only, such notice will be provided in accordance with
Chapter 120, F.S., and will afford an opportunity to petition for an administrative hearing
in accordance with applicable State law.

If the parties determine that continuation of the FPA or COP is not warranted, then
termination, in accordance with Section I.F, will be invoked.

E. Modification

At any time, the FPA may be modified with the concurrence of all the signatory parties.
Any modifications to the COP shall be made in accordance with the normal procedures for
permit modification under Florida law. EPA and SFWMD may choose to waive
concurrence with COP modifications. The submission of a request for a modification of
the FPA or COP does not stay any condition of the FPA or COP.

F. Termination

Berry may terminate the FPA or COP at any time. Any Agency may terminate its
participation in the FPA and initiate proceedings, available and consistent with those
provided under the appropriate State or Federal law, to withdraw its approval for those
portions of the COP governed by its statutes and regulations. Any party deciding to










terminate shall provide a notice of intent to terminate to the other parties.

If requested by any one party, the dispute resolution proceedings provided in I.I., below,
may be initiated to resolve any dispute relating to the intent to terminate. If, following any
dispute resolution or informal discussion, termination is finalized by any of the Agencies,
the Agency terminating its participation in the process and withdrawing its approval of the
COP must give final notice of termination to all parties. Berry shall retain all procedural
and due process rights and remedies to obtain review or hearings available under
applicable Federal and State law, including Chapter 120, F.S.

A party may withdraw from this FPA at any time. However, it is the desire of the parties
for the FPA to remain in effect and be implemented as fully as possible and it is not their
intent to withdraw unless there is a compelling reason to do so. The parties recognize that
any of the following events could justify withdrawal of a party from the FPA:

1. One or more parties concludes, at a five (5) year evaluation, that the results of the
project are not satisfactory (see section I.D.) or that continuation of the project is
for other reasons no longer appropriate or desirable;

2. Violation of any terms or conditions of the COP by Berry or by any subsequent
owner or operator of the facility;

3. Failure by any party to implement provisions of this FPA not contained in the
COP;

4. Discovery of failure by Berry to disclose relevant facts during development of the
FPA or the COP;

5. Discovery of newly acquired information indicating that implementation of the
FPA or COP is presenting unexpected risks or unforeseen adverse consequences,
or may present a substantial threat to public health, safety, or welfare, or to the
environment

If one or more parties withdraw(s), the remaining parties will consult to determine
whether or not the FPA should be continued in modified form, or terminated by mutual
consent.

This section does not limit or otherwise affect the Agencies' enforcement rights in Section
I.E, or Berry's rights under Federal and State law.

Within sixty (60) days after the date of any termination notice, Berry Corporation, or the
current responsible party, will submit standard permit applications and fees to the
appropriate permitting authorities. The permitting authorities will expedite the process of









issuing permits, unless a permit is deemed inappropriate for cause, such as presenting an
imminent and substantial endangerment to the health of persons, the public health or
welfare, or the environment, in accordance with existing regulations. The COP, or
portions thereof, shall remain effective and fully enforceable until the applicable permits)
becomes) effective. Upon the effective date of a permit, the corresponding portions) of
the COP will terminate. Upon termination of the COP or FPA, or any portion thereof,
Berry will not be considered a new source or a new user.

G. Severability

Should any term or provision of the FPA be modified or withdrawn, to any extent, such
modification or withdrawal shall not affect any other term or provision of the FPA.

H. Transfer of FPA and COP

It is the intention of the parties that FPA and COP responsibilities, coverage and liability
will transfer on the same date as any transfer of ownership of the Facility. The FPA and
COP shall be automatically transferred to the new owner of the Facility if:

1. Berry notifies the Agencies of the proposed transfer of ownership at least
ninety (90) days prior to the proposed transfer date;
2. The notice includes a written agreement between Berry Corporation and the new
owner containing a specific date for transfer of FPA and COP responsibility,
coverage, and liability, which will be the same as the date for transfer of
ownership;
3. The new owner provides the Agencies with a written statement affirming that it
has reviewed the FPA and COP, agrees to accept responsibility for operating the
facility in accordance with these documents, and will execute, on the same date
that transfer of ownership takes place, an amended FPA and COP which replaces
Berry as a signatory party.

If a termination notice from an Agency is not received by Berry within 90 days of the date
of Berry's notification of transfer of ownership, the transfer of the FPA and COP becomes
effective on the same date that transfer of ownership of the facility takes place. Transfer
of the COP will take place in accordance with applicable procedures for permit transfer
under Florida law.

I. Dispute Resolution

Any dispute that arises with respect to the meaning, application, implementation,
interpretation, amendment, termination or modification of the FPA, or with respect to
Berry's implementation of the FPA, the resolution of which is not expressly provided for
in the FPA, will, in the first instance, be the subject of informal negotiations, except with









respect to matters preserved in Section II.E. To initiate informal negotiations, any party
which believes it has a dispute with any other party will simultaneously notify all of the
parties, in writing, setting forth the matters) in dispute. If the dispute cannot be resolved
by the parties within thirty-five (35) days of receipt of such notice, then one or both of the
parties may invoke non-binding mediation by setting forth the nature of the dispute, with a
proposal for its resolution, in a letter and submit the same to the EPA Region 4
Administrator, with a copy to all parties. The EPA Regional Administrator or the
disputants may request an informal mediation meeting. The disputants may request an
opinion from the Regional Administrator in lieu of or in addition to the mediation meeting.
Any opinion, verbal or written, expressed by the Regional Administrator will be non-
binding. Nothing in this section shall be construed to alter the principal parties' right to
request termination pursuant to Section F herein.










Section IL PERMIT CONSOLIDATION PLAN

A. Description of Comprehensive Operating Permit

1. Discussion


One of the objectives of this XL project is to replace existing regulatory permits and
regulatory operating requirements with a single document, called a COP. The current
permits, listed below in Table 1, are issued by different agencies, and have varying
expiration dates and renewal requirements.

Permit Responsible Number DEP ID# Issued Re-Issued Expires
Agency

Boiler #1 DEP A026-24- 52FTM26000 23-Mar-89 9-Mar-94 9-Mar-99
4203 602

Boiler #2 DEP A26-24- 52FTM26000 18-Apr-S9 7-Jun-94 7-Jun-99
4199 603

Boiler #3 DEP A26-23- 52FTM26000 19-Oct-93 19-Oct-98
0947 604

Feed Mill Dryer DEP A026-24- 52FTM26000 23-Mar-89 14-Mar-94 14-Mar-99
__4209 601

Drinking Water DEP WC26- 52600-8 7-Apr-93 7-Apr-98
S__227842

Industrial DEP FLA014291 12-Oct-95 12-Oct-
Wastewater 2000
Groundwater
Monitoring
Consumptive Use SFWMD 26-00276- 10-Sep-87 10-Sep-97
Permit W __________ __
*Note: A storm water National Pollutant Discharge Elimination System (NPDES) permit is not
needed for Berry's process area since run-off from the activity exposed to storm water does not
discharge to waters of the United States. The storm water is collected in a holding pond and sent
to the treatment system. Discharge from the treatment system is used for irrigation.

The consolidation process will combine all of the permits listed above so that the entire
single permit will be re-evaluated every five years. The COP will include all operating
procedures necessary to operate the plant in accordance with both company policies and
regulatory requirements. The facility was constructed in mid-1970s. There are some
storm water management works associated with the facility. As part of the COP
development process, Berry will evaluate the existing surface water management system
and incorporate the applicable Environmental Resource Permit criteria into the site design.
The COP will also include the requirements of any applicable regulations for which
permitting is not mandated.










2. Employee Training


Initial Training: All processing plant personnel from hourly employees through plant
managers will go through specific training within their respective areas of the COP.
Employees will be specifically trained regarding the relationship between job procedures
contained in the COP, permit conditions, and general regulatory requirements. A
regulatory coordinator will be appointed to manage this overall training effort.

Continuous Training: In order to facilitate on-going training and initiate corrective action
when necessary, a two-tier system will be developed consisting of the following:

a. Regulatory Council
Comprised of at least five (5) Berry senior level staff personnel meeting on a monthly
basis.

b. Regulatory Steering Committees
Comprised of at least four (4) members meeting bi-monthly whose areas of processing
plant operations include:

Fruit Receiving/Processing/Feedmill
General Plant Maintenance
Blindroorn/Drumming/Warehouse
Administration
Not-From-Concentrate
Quality Control/Sanitation
Safety

Each steering committee meeting will be recorded utilizing a specific format (Attachment
4). Progress and results for each steering committee will be measured by using a variable
control chart (Attachment 5).

3. Replacement of Existing Permits

On the effective date of the COP, all existing environmental regulatory permits listed in
Section IU.A.1 will be replaced by the COP.

4. Form of the Permit

Each Agency will issue a simplified permit (Attachment 2) giving agency approval of the
COP and stating that the intent of all governing regulations will be met provided that the
facility is operated in accordance with the COP. Any conditions of issuance or operation
shall be incorporated into the COP. Therefore, the COP and the simplified permit will
replace the existing regulatory environmental permits identified in Section II.A. ., and will
constitute the permit as defined in the applicable statutes and regulations.










5. Incorporation of Existing Permit Conditions


The COP will incorporate all applicable regulatory conditions of issuance and operation,
as of the date the COP is effective, except as noted in Section II.D. New requirements or
other changes to Berry's regulatory status are accomodated through a modification of the
COP pursuant to Section I.E., and II.C. The COP format will reflect instructions needed
to operate the facility by process area. Each specific operating procedure, condition,
standard, or criteria required by current rules will be highlighted by holding, or other
technique, in order to indicate that it is a mandatory action required by law. An example
of the COP is located in Attachment 6.

6. Scope of Authorization

The COP protocol will provide authority solely for the operation of the Berry Facility.
Neither the FPA nor the COP shall constitute an authorization for the construction of new
regulated facilities, or for major or minor modifications (as defined in Agency rules). Such
activities will continue to be administered through appropriate permit actions. However,
the COP may be amended to include operation of new/modified facilities.

B. Public Participation

This procedure is not intended to diminish in any way the ability of the public to
participate in the COP review, modification, or re-evaluation process. Indeed, since this is
a new approach to permitting, additional time and effort will be devoted to notifying the
public of the process as well as the content of this project The public notice/participation
requirements set forth in Attachment 7 will apply to COP issuance.

C. Governing Regulations

It is the intent of the parties that all applicable governing regulations will be identified in
the COP. However, Berry is required to comply with all applicable regulations and laws,
whether or not they are identified in the COP or the FPA. Existing Florida laws and
regulations, except as specifically listed in this FPA in Section II.D, shall continue to
apply. The COP shall be modified to incorporate new applicable statutory or regulatory
requirements.

If any portion of this FPA conflicts with an existing or future statue or regulation, then the
existing or future requirement will render that portion of the FPA invalid. This conflicts
exception does not extend to the regulatory flexibility identified in Section II.D.


I










D. Identification of Regulatory Flexibility


The Florida regulations which govern the permit application process applicable to Berry
include the following:

1. Rules 62-4.050(1), 62-4.090(1), and 40E-1.603(2)(a), F.A.C., require that permit
applications be submitted on prescribed application forms. Application forms are adopted
by rule.

2. Rule 62-4.050(3), F.A.C., requires that all applications for FDEP permits be certified
by a professional engineer registered in Florida, except for renewal of a minor air source.

3. Rule 62-4.070(7), and the last sentence of 62-4.160(5), F.A.C., negate the concept of
a permit shield, and require all persons to comply with all valid laws and regulations,
notwithstanding the issuance of a permit.

4. Rule 40E-4.321(l)(c), F.A.C., specifies that the duration of the construction phase of
an Environmental Resource Permit is five years or such amount of time as is made a
condition of the permit.

The innovation provided for by this FPA will allow Berry to avail itself of an accelerated
permit application process. Specifically, Berry will be required to send a letter of request
for COP re-evaluation to FDEP and SFWMD, six (6) months prior to the anniversary date
of the COP. The letter will be accompanied by supporting data on monitoring and
compliance, as described in Section I.D., demonstrating that the company has been in
compliance and will continue to perform up to the same compliance level for the next five-
year period.

This accelerated application process effects three changes to the above regulations of
FDEP and SFWMD. First, it allows Berry to use non-standard forms rather than those
required by Rules 62-4.050(1), 62-4.090(1), F.A.C and 40E-1.603(2)(a), F.A.C.
However, all the necessary relevant information provided to the regulators under those
rules will be provided by this alternative application process. Second, it does not require
that the letter and accompanying data with the re-evaluation request be certified by a
professional engineer as dictated by Rule 62-4.050(3), F.A.C. The five year COP
Evaluation Report, certified by Berry, provides a five year picture of environmental
performance. The professional engineers' certification of an application would represent a
single data point, "a snapshot" of environmental performance. Therefore, the COP
Evaluation Report is far more comprehensive and representative of actual environmental
performance than a certified professional engineers' application. Third, by allowing Berry
flexibility on the two previous requirements, the result is a narrower construction of the
requirement of Rule 62-4.070(7) and the last sentence of 62-4.160(5). Fourth, the
standard duration for construction permit issued pursuant to the Environmental Resource









Permit Program is five years. However, because the five year evaluation of the FPA and
COP provides an opportunity to incorporate new regulatory criteria into the project, a
longer duration construction permit may be authorized, subject to continuation of the FPA
and COP.

Two provisions of the Florida Statutes confer authority upon the State to allow flexibility
in administering these regulations. In accordance with Florida Statue 403.061(21) the
State can enter into agreements with other agencies of the State, the Federal Government,
other states, interstate agencies, groups, political subdivisions, and industries affected by
the Environmental Control Act, its implementing regulations, or policies of FDEP. Florida
Statute 403.061(34) further provides that the State can establish and administer programs
that provide appropriate incentives for pollution prevention and pollution reduction at its
source.

The parties to this FPA have determined that an accelerated permit application process
constitutes appropriate incentive for the expected significant reductions in water
consumption, air emissions, wastewater, and solid waste disposal, and the benefit of
drinking water that is safer than that required by law. The General Counsel for FDEP has
determined that the regulatory incentive mechanism herein satisfies the applicable statutory
criteria and is, in all respects, a legal procedure for implementation by FDEP (Attachment
8).

E. Enforcement

All state and federal regulations and policies governing enforcement of this Facility will
remain effective and be fully enforceable. The regulations and policies in effect at the time
of the occurrence of any alleged violation will apply. Nothing in the FPA shall be
construed to prevent or limit either Berry's legal rights or the Agencies' rights to seek
legal, equitable, civil, criminal, or administrative relief, except as expressly provided in the
COP. Neither this FPA nor the COP shall be construed to limit the authority of the
Agencies to respond to conditions which may present an imminent and substantial
endangerment to the health of persons, the public health or welfare, or the environment.


_










Section HI: Project XL Criteria


A. Environmental Commitments and Monitoring

Berry, through this FPA, commits to superior environmental performance. Berry
commits to environmental performance that exceeds that which would be achieved
through compliance with current and reasonably anticipated future regulation, in
the areas of; water consumption and conservation, air emissions, industrial
wastewater treatment and wetland conservation, solid waste, and potable water
and surface water management. Berry also commits to instituting the ISO 9000
management program and the ISO 14000 environmental management program.
The superior environmental performance measures, benefits, baselines, and
monitoring requirements are described in the following tables and charts. The
environmental benefits for the FPA Evaluation Report will be measured from an
annual average baseline. The annual average baseline was determined from the
most representative data of the past three calendar years.









1. Water Consumption and Conservation


Berry Environmental Superior Environmental Benefit Environmental Environmental Performance
Commitment Baseline Monitoring

Re-use treated industrial Reduce the consumptive use of 2.0 MGD Measure amount of ground water
wastewater. water, and surface water withdrawn. This
will be reported monthly to
SFWMD and copied to FDEP.

Describe water conservation
measures and submit one year

Water Conservation Reduce the consumptive use of 2.0 MGD from COP effective date and yearly
thereafter.
water.
Measure amount of water used in
Facility operations monthly and
submit one year from COP
effective date and yearly thereafter-


* Represents process water for the facility and irrigation water for a 1,400 acre section.












14















Process water for the facility & irrigation for 1,400 acre section
Baseline: 2.0 MGD (5/1/95 5/1/96)


2.05

2

1.95

1.9

1.85

1.8

1.75


1996


1997


1998


1999


2000


2001


year

Production = 7,975,000 boxes of fruit processed


----- Projected

- Baseline


``1--...







_ _. __


I











2. Air Emissions


Berry Environmental Superior Environmental Benefit Environmental Environmental Performance Monitoring
Commitment Baseline

Berry commits to the Reduction in VOC emissions to the 'VOC (fuel only) Berry commits to performing a stack test
replacement of the existing air. emissions = 1.0 ton per following installation of a new peel dryer
peel dryer with a more year (TPY) or completion of an improved process
efficient peel dryer or modification.
improved process VOC (peel dryer) =
modification. unknown industry-wide
Berry commits to preparing Reduction in SO,, NO,, and VOC 'SO2 = 340.3 TPY The strategy will be submitted one year
and implementing a strategy emissions to the air. 'NO = 141.8 TPY from COP effective date. All signing
for reduction of SO,, NO,, parties will review and provide comments.
and VOC emissions. 'VOC (fuel only) = 1.0 The agreed on strategy will be
TPY implemented.

SAir emissions are based on a December 1994 November 1995 annual average

Note Reductions in SO, may be accomplished through fuel restrictions, cleaner fuels, and/or the installation of an SO2 scrubber. VOC
reductions may occur through process improvements (i.e., d-limonene recovery), installation of a more efficient peel dryer,
and/or installation of an VOC control device.








16















Nitrous Oxide Emissions
Baseline: 141.8 TPY (12/94 11/95)


1996


1997 1998 1999 2000


..... Projected

- Baseline


2001


year

Production = 7,850,000 boxes of fruit processed


144

142

140

138

136

134


~ __t_____














Sulfur Dioxide Emissions
Baseline: 340.3 TPY (12/94 11/95)

345

*C 340 ---..

S335 ------ Projected

C .n 330 Baseline
0 I "- -.. I

325
320 --_--- -- .--.. .- ----
1996 1997 1998 1999 2000 2001
year
Production = 7,850,000 boxes of fruit processed















Volatile Organic Compound Emissions
Baseline: 1.0 TPY (12/94 11/95, fuel only)

1.02

~ 1
U-)
o I- -- ----- Projected
0 0.98
> Baseline
c ..... ----... ... .
2 0.96 i ---..

0.94 ,- ,
1996 1997 1998 1999 2000 2001
year

Production = 7,850,000 boxes of fruit processed









3. Industrial Wastewater Treatment and Wetland Conservation


Berry Environmental Superior Environmental Benefit Environmental Environmental Performance
Co mmnitment Baseline Monitoring

Permanent abandonment of Elimination of land application and 1995 use of spray field. Certification of abandonment of
spray site as an industrial upgrading the land use from a spray field one year from COP
wastewater disposal area and wastewater disposal area to citrus effective date and yearly
re-use of treated industrial groves, thereafter.
wastewater as irrigation
water.

Maintain the present wetland Perpetuate the existence of the Wetland system in full Certification of use of wetland
treatment area. wetland ecosystem. use in 1996. treatment system one year from
the COP effective date and yearly
thereafter.

Maintain wetland treatment Minimizes off-site odor complaints Wetland system in full Certification of location of
ponds at or near the present by the public, use in 1996. wetland treatment system one
location. year from the COP effective date
and yearly thereafter.


Close or modify surge pond Eliminates potential groundwater 1995 use of surge pond Submit a plan for surge pond
to eliminate potential ground contamination and serves to control for industrial closure or modification one year
water contamination from odor. wastewater from COP effective date. Surge
industrial wastewater. pond will be modified or closed.
for industrial wastewater 3 years
from the effective date of the
COP.










4. Solid Waste


Berry Environmental Commitinent Superior Environmental Environmental Environmental Performance
Benefit Baseline Monitoring

Reduction of the number and types Reduction in the amount of air List of spray can Report the amount of solid
of solvents and lubricants used on- emissions, possible reduction in solvents and lubricants waste disposal in tons/year
site and replace with a set number of operating costs, and reduced used on the site on the one year from COP effective
environmentally friendly materials heath issues for facility workers. FPA signing date. date and yearly thereafter.
centrally distributed.
Submit a list of existing spray
can solvents and lubricants
used on site on the FPA
Recycle scrap metal. Increased metal recovery and 64,500 Ib/yr of scrap the
signing date and the list of
decreased tlhe amount of metal metal recycled. .
substituted environmentally
entering the solid waste stream friendly sent an
friendly solvents and
lubricants, i.e., no metals
paint, low VOC products,
water-based solvents, one year
from COP effective date and
Recycle, to the best extent possible, Reduction in the amount of ** 15,480 yd'/year certify or modify list yearly
paper, metal, glass, and plastic, paper, glass, metal, and plastic thereafter.
entering the solid waste stream.
Report the amount of scrap
metal recycled one year from
COP effective date and yearly
I thereafter.


* Scrap metal recycled is based on a June 1995 to June 1996 annual average

** Solid waste produced is based on a January 1994 December 1994 annual average


















Solid Waste

Baseline: 15,480 yds3/yr (1/94 12/94)


---- Projected

- Baseline


1996


1997


= 7,220,000 boxes


1998


year

of fruit processed


-1 4 -.


OU
0
CO


1999


2000


2001


~--~----'- "


``
``
'


IProduction















Scrap Metal
Baseline: 64,500 Ib/yr (6/1/95 6/1/96)

-a 68

oX -- 67
) >,
Si --- Projected
-- 66
, o --" Baseline
T 65
ro o -' 6"5

cO 64 i
1996 1997 1998 1999 2000 2001
year

Production = 7,975,000 boxes of fruit processed


~_~ _~_









5. Potable Water


Exceedance of a new voluntary standard would trigger voluntary corrective action, but would not result in enforcement
unless the MCL as specified in Chapter 62-550, FAC was also exceeded.





















24


Berry Environmental Superior Environmental Environmental Environmental
Commitment Benefit Baseline Performance Monitoring

Voluntarily meet drinking Drinking water will be safer Chapter 62-550, FAC Report MCL in
water standards that are equal than required by law. (RO water used for accordance with Chapter
to one half of the maximum domestic purposes is 62-550, FAC.
contaminant (MCL) levels as approximately 3,480
specified in Chapter 62-550, gallons/day)
FAC.


*Note -









3. Cost Savings and Paperwork Reduction


Berry expects to realize cost savings and paperwork reduction through the COP by eliminating
the requirements and associated costs of preparing permit applications approximately every five
years. The burden on the Agencies to review permit applications and permits will be reduced,
allowing the Agencies to concentrate on compliance with environmental laws versus permit
application review or renewal processes. It is anticipated that this savings could yield a cost
reduction for the Facility of several million dollars. Additionally, the paperwork associated with
the submittal and processing of the current permits for Berry will be eliminated. In calculating the
fees for the COP, with regard to permits issued by FDEP, credit will be given for the unexpired
portion of the existing permits by pro-rating.

C. Description of Stakeholder Involvement

The Berry facility is located five miles from the nearest community (Labelle, Florida) and is
essentially surrounded by ten thousand acres of citrus groves. A Stakeholder Committee was
formed in May 1996 and includes representatives from the Labelle Chamber of Commerce.
Regional Economic Development Initiative (REDI), River Watch, Audubon Society, Nature
Conservancy. Department of Interior, and the Mayor of Labelle. The Committee will review and
comment to Berry on the proposed COP. Public outreach focusing on Lee and Hendry counties
will also play an essential role in soliciting stakeholder involvement. The Stakeholder Committee
participated in conducting the public meeting held in Labeiie, Florida, on May 9, 1996. The
purpose of the meeting was to inform all interested citizens concerning the development and
implementation of Berry's COP under EPA's XL Program and to seek public comment and input
on the proposal. The proposed COP will be available for review at the offices of Berry, FDEP,
EPA, and SFWMD.

Berry will continue to involve stakeholders in the implementation of the COP after signing.
Except for data determined to be confidential under 40 CFR Part 2, all reports prepared pursuant
to the COP shall be available for public inspection at the offices of FDEP and Berry. Berry
pledges to maintain open communication with stakeholders.









Innovation/Multi-Media Pollution Prevention


The proposed COP involves a one-stop approach to the permitting of an existing citrus juice
plant. It will reflect a multi-media permit and will utilize an innovative approach to regulatory
compliance. Specifically, it will allow Berry, in partnership with the Agencies, to prepare the
COP for the facility, which will include all operating procedures to be used by the plant
employees, written in user-friendly language. Each Agency will prepare a simplified permit giving
agency approval of the COP and stating that the intent of all governing regulations will be met
provided that the facility is operated in accordance with the COP.

E. Transfte-ability

There are currently twenty-four (24) similar juice processing facilities in the State of Florida, all of
which are potential candidates for future use of the permitting approach described herein. A
similar approach could be applied to other industrial facilities as well.

Berry commits to the development of the COP in an open and public atmosphere. With the
exception of confidential business information, all aspects of the COP development, including the
COP itself, are public information. To the extent possible, all signing parties, commit to the
transfer of information concerning the COP to interested facilities.

F. Shifting of Risk Burden

The issuance of this COP shall not be construed to authorize or promote, directly or indirectly:
any harm or injury to personal rights or private property, nor any infringement of Federal, State.
or local laws or regulations; discrimination on the basis of race, color, or national origin;
infringement on the protection of worker safety; or any imposition of unjust or disproportionate
environmental impacts upon low-income or minority communities. Every effort shall be made to
ensure that actions taken pursuant to this COP are consistent with the goals of Presidential
Executive Order #12898.






Attachmn


Berry's Plant Layout and Coordinates
Latitude: 2641'43'
Longitude: 81029'32"
Sec.Township Range: 35-43S 28E


ILU
LU I
U-
Ct


L,
LUi
LU F


1C -


_I


U~


2


U-
L^


LU I


cz1


i 1












Attachment 2


Jack M. Berry In. XL Project
Sample of a Simplified Permit

The undersigned, for and on behalf of the Florida Department of Environmental Protection, hereby finds
that the Comprehensive Operating Permit (COP) prepared for this facility has properly addressed all
relevant regulatory issues.within the jurisdiction of the Department. The Department is confident that the
intent of the regulations will be met provided the applicant adheres to the COP.


2-1









Attachment 3


Memorandum of Understanding
by
Stakeholders
supporting the
Comprehensive Operating Permit Concept



I. Purpose

The signatories to this Memorandum of Understanding support the development and
implementation of the COP.

II. Background

Agricultural and industrial operations are often subject to multiple permits with varying duration
necessitating a continuous expense to prepare renewal applications. In many cases, no change to
the original permit ensues.

The current approach to permitting and regulation is highly compartmentalized, within each
agency, and subdivision of each agency, focus on environmental issues is limited to a narrow
spectrum. As a result, opportunities for net environmental benefit are sometimes missed, and
unnecessary costs are sometimes incurred by both government and the regulated community.

Regulatory staff have significant expertise in environmental management practices which could be
of benefit to applicants. This resource is often wasted when their responsibilities limit them to
reviewing the applicant's permit application.


3-1









Ill. Onh ecuj\, jCn Ed LnmijoUh


OBJECTIVES

GOVERNMENT INDUSTRY Y/A AGRICULTURE

improve Compliance with regulations I[mprove Compliance with regulations

Net improvement in the environment Net improvement :n the environment

Reduce costs of permit re, i\ew and field Reduce costI f permit review and field
inspection i inspection

Better working relationship with the Better w working relationship with regulators
regulated facility i

Reduce complexity in rules and paperwork Simplify paperwork and reporting

Opportunity to train staff in place-based Certainty and long-term assurance of
management. cross media permitting. and business operation
compliance

Create a process that will be transferable to COP to replace current short-term permits.
other facii; ct.


EXPECTATIONS

GOVERNMENT IINDUSTRY/AGRICULTURE

Courtesy inspections Employee training

Technical support More stringent emission standards than
required by rule

Holistic. multi-media (air. \,aste. water). Employee involvementiempowerment.
approach. considering impact of entire facility require staff to comply ith COP
on ecosystemr

Open coirununication Open communication

5 year re-evaluation of COP 5 year re-evaluation of COP

Implement pollution prevention strategies Implement pollution prevention strategies

The Department of Environmental Protection will accept lead agency role. for coordinating the
review of the Comprehensive Operating Permit with all other affected agencies.








Attachment 4


Steering Committee Form

Date: Time:

Name: Dept/Area:

Supervisor/Shift:

What's the problem?'



Control chart or statistical evidence of this problem?



Most likely assignable cause:



Objectives of the committee:
a)
b)
c)

Suggested committee members:

a) d)

b) e)
c) f

Outcome of each objective:
a)
b)

c)

How was the problem corrected?


4-1





Att L achmnt 5


Variable Control Chart
(example)


_ -.J -_ I _L _I-L L__LtI J ___ .I _- _. _-- -I"'_-, 1__L- I7_LI- L_.I
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
Batch


---- Individual
- Moving


5) -- 1










Attachment 6








Sample COP for:






Dept. 1570 Organization Chart of Accountability






Vice President
of Operations




Director of
Technical Services




General Plant
Maintenance Supervisor

S .......... .......... ..... ......... ......



Hazardous Waste/ Plant Water Wastewater Supply & Upkeep
U.-j C',i Tecnnciar, Technician Technician Thriciar













6-1















1570 GENERAL PLANT MAINTENANCE

Department Description:

The General Plant Maintenance (GPM) area serves as a storage area and distribution point for various
chemical products used in conjunction with maintenance and sanitation activities throughout the
processing facility. GPM stores and dispenses lubricants, cleaning materials, paints and other hazardous
chemicals routinely used in the plant. The storage area is kept locked, and materials are obtained through
the attendant. Persons picking up lubricants, cleaners, or.other chemicals must use suitable, labeled
containers to transport the product to the desired work area. If special, protective.clothing or
instructions are required, the attendant ensures that the user is properly attired and informed on the
chemicals use before dispensing the product.

The GPM materials list and handling procedures found in tables 1 & 2 must be approved by the
Regulatory Council followed by instructions to the purchasing department to purchase only materials
listed. Any requests for purchase and/or storage of non-listed materials will be immediately rejected by
the purchasing agent and storage area attendant. Materials found in the work place not on the materials
list will be immediately removed and evaluated to determine whether the material can be safely used and
returned to the work place. This evaluation of the material can be done by the GPM supervisor. The
GPM also serves as the collection point for various solid and liquid waste materials, which are stored
appropriately labeled receptacles. The receptacles are kept closed at all times except tot transfer the
contents from one container to another. All waste products are transported by licensed agents to
authorized, off-site disposal recycling operations.

The GPM department is also responsible for the operation and monitoring of the plant's water system.
The well-field consists of five wells that supply raw water to a Reverse Osmosis (RO) unit via ion
exchange resin and filter units. The permitted, the water effluent from the RO unit is stabilized, and
injected with liquid chlorine for its disinfectant properties.

The GPM supervisor will assure that his employees comply with the following applicable regulations:

Federal Regulations

40 CFR Parts 260-280, 40 CFR Parts 141 and 142, 29 CFR Part 1910

Florida Administrative Code

62-730, 62-710, 62-555, 62-550, 62-551, 62-560, and 62-699.

Employee Training:


6-2









All GPM employees will go through specialized training of local state and federal regulations that pertain
"o worker safety and environmental protection, in addition to job responsibilities an company policies that
will enable the appointed GPM technicians to make the proper determinations on issues relating to their
specific functions.

"Training program" will include initial and on-going training as needed.

All employees sign attendance sheet s which include the date of training activity, and a brief description of
the training being received. This document is placed in each employee's personnel file to document the
receipt of various training activities. This document will be provided to various governmental agencies as
needed to fulfill employee regulatory training requirements.


6-3











TABLE 1


Approved Materials List

Stored Chemicals and Cleaning Agents


Chemical Name Location Used Application Method Prevention Control

CS-100 Process bactericide Spray nozzles Recycled until solution
is neutralized

CS-101 Process bactericide Applied manually Used until neutralized

CS-203 Sanitizing fruit contact Applied manually Used until neutralized
areas

CS-300 Descaling evaporators Clean in-place systems Neutralized on contact

CS-400 Extractor/finishing Clean in-place systems Recycled until solution
cleanup is neutralized

CS-707 NFC clean-up Clean in-place systems Recycleo until solution
is neutralized

CS-900 Chain lubricant for Applied manually L uited before use
elevators

Sodium Hydroxide Evaporators/ Clean in-place systems Recycled until solution
process cleanup is neutralized

Sodium Hypochlorite Exterior non-contact Added to cooling Used until neutralized
sanitizer and water towers
bath sanitizer

Sulfuric Acid Adjust water pH in Neutralized on contact
water treatment
process

Rub OutTM Plant Cleanup Applied manually Neutralized on contact

Descaler Plant wide stain Manually sprayed Neutralized on contact
removal

Glycol Refrigeration systems _Collected in drums


6-4









Table 2

Approved Materials Lis

Stored Lubricants and Paints


6-5


Chemical Name Location Used Application Method Prevention Control

SAE 20 W Oil Lubricating pumps Manually added Recycled after use

SAE 30 W Oil Small gas engines Manually added Recycled after use

SAE 40 W oil Diesel oil engines Manually added Recycled after use

SAE 80 -90 W Grease Gear Boxes Manually added Recycled after use

68 Hydraulic Oil Hydraulic power packs Manually added Recycled after use

APU Caulkin Oil Homogenizers Manually added Recycled after use

DEX Mercon Power steering units Manually added Recycled after use

Refrigeration Oil Refrigeration Manually added Recycled after use
compressors_

Diesel Oil Large engine fuel Manually added Recycled after use

Rustoleum Epoxy High use areas Brushed on surface Residue returned for
Paint disposal

Rustoleum Latex Paint Appearance areas Brushed on surface Residue returned for
plant-wide disposal

Rustoleum Enamel Appearance areas feed Brushed on surface Residue returned for
Paint mill disposal

Floor DriTM Spill control plant-wide Broadcast over spill Depends on spill type









Hazardous Waste/Used Oil Technician


While few if any hazardous wastes are generated at Berry site, a system of waste identification and
appropriate handling has been established to segregate general solid waste from hazardous wastes. Once
wastes have been appropriately characterized, a certified waste contractor will be used to remove the
waste.

Berry's waste oil recycling system is designed to capture any waste oil produced on site. Special waste
oil tanks are located in the production area and are replaced as filled. When the inventory of special tanks
are filled a licensed oil recovery contractor is called to pump out the tanks and the process is repeated.

The technician is responsible for the following functions:

1. Receive waste paint cans to assure that the cans are empty. Once it is determined that the cans
are empty, they will be either recycled or disposed of into the facility's solid waste disposal
system.

2. Will handle all waste drums and determine if the drums are empty and if so return them to GPM
area where they will be stored appropriately closed until they are returned to supplier.

3. Determine if any material absorbed by a sorbent ( such as Floor Dri or waste oil diapers) will be
handled as a hazardous waste or a solid waste.

4. Determine if waste paint and related materials used for painting will be handled as a hazardous
waste or solid waste.

5. Retrieve lead-acid batteries and waste tires and deliver them immediately to the maintenance
foreman in the grove's maintenance area.

6. Identified hazardous waste will be managed in closed, labeled containers at all times. The
hazardous waste technician will inspect containers weekly to insure that those containers are
appropriately labeled, are not leaking, and are appropriately closed.

7. Inspect used oil tanks to insure that they are labeled as "used oil", that they are not leaking, and to
remove tanks to GPM area when they are full. Empty tanks will immediately replace full ones.

8. Inspect the GPM petroleum product storage area for any product leakage, and appropriate
management of the product container.

9. Container inspections must be recorded weekly in a permanent log (see example below) which
will be kept in the GPM office. If the containers are found to be incorrectly managed, the
identified problem will be corrected immediately.

10. Notify GPM supervisor when hazardous waste or used oil containers stored in the GPM area need
to be removed or emptied for proper disposal or recycling.


6-6









11. Assure that all paperwork associated with the disposal and recycling of hazardous waste or
recycling of used oil has been appropriately completed prior to waste leaving the premises.

12. Maintaining all paperwork associated with the management of hazardous waste on site, and
associated paperwork dealing with the off-site disposal or recycling of hazardous waste or used
oil for a minimum of three years at the GPM office.

Technician will be accountable to the GPM supervisor and will keep supervisor appraised of any
problems encountered in his/her daily functions.

Example: Hazardous waste/Used Oil Inspection Log


6-7










Attachment 7


PUBLIC NOTICE PROCEDURES

1. NOTICE OF APPLICATION

Pursuant to the requirements of Sections 373.116, 373.229, 373.413 and 403.815, F.S.
and Rules 40E-1.6062. 40E-1.6059 and 62-103.150. F.A.C., Berry shall publish a Notice
of Application within 14 days of filing an application with the FDEP and the SFWMD for
a Comprehensive Operating Permit (COP) in a newspaper of general circulation in the
area affected. Notice language follows.

"The Department of Environmental Protection (FDEP) and the South Florida Water
Management District (SFWMD) announces receipt on 1997, of
application number for a Comprehensive Operating Permit (COP)
under the XL Project inclusive of air resources management, industrial wastewater
facilities, drinking water, storage tanks, consumptive use of water and environmental
resource authorizations from Jack M. Berry, Inc., to operate the Berry Citrus processing
plant located in Hendry County, Labelle, Florida. Groundwater will be withdrawn from
[source of water supply here] by well(s) located on the [location of wells) or point of
diversion here] of the proposed project and the amount of allocation requested is [quantity
of water requested here]. The groundwater will be used at the subject processing plant for
the purpose of [use and limitations of water here]. The proposed environmental resource
activities include [brief description of proposed activity, including mitigation here). Tne
proposed environmental resource activities include (brief description of proposed
activityy. Surface water will discharge to (name of water body here) which (is) (is not) an
Outstanding Florida Water (or aquatic preserve).

The purpose of the COP is to consolidate all existing FDEP and SFWMD operating and
regulatory permits into a single document. The Berry Citrus processing plant is an
existing facility and source located in Labelle, Hendry County, Florida. The applications
are being processed and 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 FDEP's
South District Office, 2295 Victoria Avenue, St. 364, Fort Myers, Florida 33901 and
South Florida Water Management District, 3301 Gun Club Road, West Palm, Beach, FL
33406."

2. NOTICE OF INTENT TO ISSUE A PERMIT

At the time when the COP is deemed complete by FDEP and SFWMD, Jack M. Berry,
Inc. will issue a further public notice as follows:


7-1










S Water Management District (SFWMD) give notice or its intent to issue a pernut tor me
proposed project as detailed in the application specified above, for the reasons stated
below.

The applicant, Jack M. Berry, Inc., applied on 1997 to the FDEP and SFvVMD for a
comprehensive operating permit (COP) inclusive of air resource management, industrial
wastewater facility, drinking water, storage tank requirements, consumptive use permit
and environmental resource permit to operate the Berry Citrus processing plant located in
Hendry County. Labelle, Florida.

The permit files 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 FDEP's south District Office, 2295
Victoria Avenue, St. 364, Fort Myers, Florida. 33901, and SFWMD, 3301 Gun Club Road, West
Palm Beach, Florida, 33406.

The FDEP has permitting jurisdiction under the provisions of Chapters 373 and 403,
Florida Statutes (F.S.). The project is not exempt from permitting procedures. The FDEP
and SFWMD have determined that a permit is required to continue operation at the
described facility.

The FDEP and the SFWMD intend; ...a ..media comprehensive operating permit
based on the determination that reasonable assurances have been provided to indicate that
operation of the source will not adversely impact air and water quality and will meet the
drinking water standards and that the source will comply with all the agency's appropriate
rule provisions.

Pursuant to Section 403.815, Florida Statutes (F.S.), Chapter 373, F.S., Rules
62-103.150, 40E-1.6059, and 40E1.606, Florida Administrative Code (F.A.C.), Berry will
be required to publish at its own expense the enclosed Notice of Intent to Issue Permit.
The notice shall be published one time only within 30 days in the legal ad section of a
newspaper of general circulation in the area affected. For the purpose of this rule,
"publication in a newspaper of general circulation in the area affected" means publication
in a newspaper meeting the requirements of Sections 50.011 and 50.031, F.S., in the
county where the activity is to take place. Where there is more than one newspaper of
general circulation in the county, the newspaper used must be one with significant
circulation in the area that may be affected by the permit. Berry Corporation shall provide
proof of publication to the FDEP, at South District, 2295 Victoria Avenue, Fort Myers,
Florida 33901 within seven days of publication. Failure to publish the notice and provide
proof of publication within the allotted time may result in the denial of the permit

Upon the Facility plan meeting the applicable regulatory requirements, the FDEP and the
SFWMD shall take agency actions that will result in issuance of the above-referenced










armoryy Stone-manr Douglas Building
.,wtcn C-.ile 3900 Commonwea'th Boulevard Virtinia 6. Wethercll
Cove-ncr Tallhassee. Fiorida 32399.3000 Scercury

May 22, 1996

DEP OGC # 96-10

TO: Virginia B. Wetherell
Secretary

FROM: Kenneth J. Plante-r
General Counsel

SUBJECT: Secretary's Authority to EnterInto Agreements with the Regulated Community in
Furtherance of Project XL, Ecosys:em Management and Compliance Initiatives


QUESTION:

Whether the Secretary of the Departmen: of Environmental Protection ("Department") has:
the authority to enter into a:rccments with the regulated community in furtherance of the
Department's Project XT-, Ecosystem Management, and compliance initiatives.

ANSWER:

As part of its Reinventing Government Initiative, the Clinton administration has created the
Reinventing Environmental Regulation initiative to give regulated entities the flexibility to develop
cm-native strategies that will replace or modify existing regulatory requirements on the condition
that they produce better environmental benefits. The U.S. Environmental Protection Agency
("EPA") is prepared to demonstrate that environmental goals can be better achieved by providing
regulatory flexibility while maintaining accountability; that flexibility can provide greater protection
at a lower cost; that better decisions result when people work together; and that environmental
solutions are of cn achieved by focusing efforts on the facility or place where protection is being
sought.

Cor.sequently, the Department has been developing a compliance initiative and an ecosystem
:r.anagement approach to environmental protection which directs the Department's approach toward
crCativity, flexibility and problem solving to provide better environmental protection, beer
communication and net environmental benefit. Included within the Department's approach is the
Project XL initiative. Project XL is a federal initiative that stands for Exceilence in Leadership.
Once a regulated entity gains XL status, the entity then has the flexibility to develop alternative
strategics that will replace or modify specific regulatory requirements on the condition that they
produce better environmental benefits. This initiative does not weaken dc-parunent standards, but








DEP OGC # 96-10
May 22, 1996
--age 2

aiiows the regulated community and the Department to devise procedural alternatives that provide
beer environmental results within the limits of those standards.

Similarly, Ecosystem Management and the compliance inititiaive allow the Department and
the regulated community to cooperate in solving environmental problems through creativity and
flexibility. In order for these cooperative partnerships to be successful, the Department must have
the authority to enter into agreements with :he regulated community hlat procedurally replace or
modify current environmental regulations, with the understanding that such agreements will not
serve to weaken substantive Department standards.

Chapter 403, Part I, Florida Statutes, is known as the "Florida Air and Water Pollution
Corttrol Act." The purpose of the Act is to conserve and protect the wate-s of the state and to
achieve and maintain suitable levels of air quality. See generally, 403.021, Fla. Stat. (1995).
Pursuant to the Act, the Department is charged with controlling and prohibiting air and water
pollution in accordance with the Act, existing law and rules promulgated by the Department.
403.061, Fla- Slat. (1995). To accomplish this mission, the Department has the following powers:

(21) Advise, consult, cooperate and emner into agreeimene s with industries
affected by the provisions of this act, rui;.. r policies of the depanment.

(2S) Perform any other act necessary :o control and prohibit air and water
pollution ....

(34) Establish and administer programs providing appropriate incentives that
have the following goals, in order of importance:
(a) Preventing and reducing pollution at its source.
(b) Recycling contaminants that have the potential to pollute.
(c) Treating and neutralizing contaminants that are difficult to recycle.
(d) Disposing of contaminants only after other options have been used to the
greatest extent practicable.

: 403.061, Fla. Sat. (1995).

These delegated powers allow the Deanrment to pursue its Project XL, Ecosystem
Management and compliance initiatives by giving the SecrUeary the authority to sign agreements
necessary to effectuate these initiatives. Tnc only caveat being that any agreement entered into by
the Secretary must be "in accordance with the law and rules adopted and promulgated by [the
Department]." 403.061, Fla. Stat. (1995). Thus, if an agreement serves to affect substantive
provisions of law or rule (i.e., specified limits of air or water pollution), the Secretary would be
without authority to en;er into it. See venerallv. Hamilton County Commissinners v State, 587 So.
2d 1378 (Fla. Ist DCA 1991).


8-2







Effective Date of Final Project Agreement


This Final Project Agreement (FPA) shall take effect upon signature of the President of Jack M.
Berry, Inc., the Regional Administrator of the Environmental Protection Agency (EPA) Region 4, the
Secretary of the Florida Department of Environmental Protection (FDEP), and the Governing Board of
the South Florida Water Management District (SFWMD) or their designee.


/lDa i
Date


Jack M: Berry, President
Jack M. Berry, Inc.


Date


John H. Hankinson, Jr.
Regional Administrator, egi 4
I.S. Environmental Protec ion agency


Dae


Virginia Wetherell
Secretary, State of Florida
Department of Environmental Protection


Date


,it Governing Board




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs