Title: Memo to Directors of District Management , Division Directors, etc., Re: New System for Permitting Facilities Formerly Eligible for Temporary Operation Permits
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 Material Information
Title: Memo to Directors of District Management , Division Directors, etc., Re: New System for Permitting Facilities Formerly Eligible for Temporary Operation Permits
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Memo to Directors of District Management , Division Directors, etc., Re: New System for Permitting Facilities Formerly Eligible for Temporary Operation Permits (JDV Box 95)
General Note: Box 20, Folder 4 ( Industrial Wastewater - 1994-1995 ), Item 5
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004356
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.

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Environmental Affairs Group: Ivone Garcia I Amarjit ("Jeet") S. Gill I David T.
Hagerman I Daniel W. Heintz / Ellen Hofmann-Haynle I Bernie Johnson / Charles
Knight I Janet Krolczyk I Michael A. Tilton

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DATE:


TO:


AT:


FAX NO:

FROM:


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NO. 949 [01


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Florida Department of

Memorandum Environmental Protection






TO: Directors of District Management
Division Directors
Water Facility Administrators
Waste Program Administrators

THROUGH: Ken Plante,.General Counselk
Office of General Counsel
Tim. Smith, Deputy General Counsellt
Office of General Counsel

FROM: Jennifer Mason, Assistant General Counsel-T '
Office of General Counsel

DATE: 1 March 1995

SUBJECT: New System for Permitting Facilities Formerly
Eligible for Temporary Operation Permits


This memorandum is to provide guidance on the new
replacements for Temporary Operation Permits (TOPs). When the
legislature adopted chapter 93-213 of the Laws of Florida, it
replaced the provisions in section 403.088 on TOPs with new
provisions calling for issuance of operation permits with
administrative orders, in circumstances previously calling for
issuance of TOPs. Because chapter 93-213 also provided that the
NPDES-related amendments (including the elimination of TOPs)
would be implemented when EPA approved "delegation of the NPDES
program to the Department, we have previously opined that the
Department still had authority to issue TOPs. The Department has
continued doing so, but recently, legal staff for the legislature
questioned whether such authority would continue, once the
legislature adopts the 1993 edition of the Florida Statutes as
the official law of Florida. Such adoption could occur on any
day of the current session. To avoid a dispute, the Department
has decided to begin the new system at once. The Department has
clear authority under chapter 93-213, Laws of Florida, to issue
Operation Permits with Administrative Orders (OPs with AOs).
Therefore, as of March 7, 1995, which is the first day of the
1995 legislative session, the Department shall begin issuing OPs
with AOs in situations where TOPs were previously used. This
change is independent of the Department's application to
administer the federal National Pollutant Discharge Elimination
System (NPDES) program.
RECEIVED

mAR 7 1995

tardhwes Fiaid
nee


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TOP Memo
1 March 1995
Page 2

As of March 7, 1995, the Department as a whole shall -no
longer issue any new TOPs nor renew any existing TOPs upon their
expiration. A facility that is currently operating under a TOP
will not be affected until the expiration date of the existing
TOP.

Beginning March 7, 1995, if a facility cannot meet our
statutes and rules, the Department shall issue an operation
permit accompanied by an order establishing a schedule for
achieving compliance with all permit conditions. Section
403.088(2)(e) of the Florida statutes authorizes the Department
to issue, renew, or reissue an operation permit if:

1. The applicant is constructing, installing, or
placing into operation, or has submitted plans and a
reasonable schedule for constructing, installing, or
placing into operation, an approved pollution
abatement facility or alternative waste disposal
system;

2. The applicant needs permission to pollute the
waters within the state for a period of time
necessary to complete research, planning,
construction, installation, or operation of an
approved and acceptable pollution abatement facility
or alternative waste disposal system;

3. There is no present, reasonable, alternative
means of disposing of the waste other than by
discharging it into the .waters of the state;

4. The granting of an operation permit will be in
the public interest; or

5. The discharge will not be unreasonably
destructive to the quality of the receiving waters.

Section 403.088(2)(f), F.S., goes further to state that any
permit "issued, renewed, or reissued pursuant to paragraph (e)
shall be accompanied by an order establishing a schedule for
achieving compliance with all permit conditions. Such permit
shall require compliance with the accompanying order."

What this all means is that after March 7, 1995, the
Department shall issue an operation permit to any facility that
meets the requirements of section 403.088(2)(e), F.S. This
operation permit must be accompanied by an administrative order,
and the permit must require compliance with the order.
The administrative order must set forth the schedule for
achieving compliance with the Department rules. The timing of
the AO is critical. It must not be entered after the OP is
issued. It must be entered concurrently with or before the
permit and should include all of the steps needed to get the
facility into compliance. For your convenience, a model
administrative order has been attached to this memorandum.


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TOP Memo
1 March 1995
Page 3

See Exhibit 1. Also attached is-a model public notice statement
if publication is required. See Exhibit 2.

Fees for these operation permits with administrative orders
will be identical to the fees for a regular operation permit.
These OPs with AOs will not be subject to the TOP fees -- 20%
over the operation permit fee.

There may be some applications that will be caught in the
middle of this change. To address these situations, the date
when the Department deemed the application complete will control
the type of permit issued. If, for example, the Department
received a complete application for a TOP on March 4, 1995, we
will issue a TOP unless the applicant requests an OP with AO.
If, however, the application was not complete until March 8,
1995, we will issue an OP with AO.

Please contact either Doug MacLaughlin or Jennifer Mason in
the Office of General Counsel (SC 278-9730) if you have any
questions regarding this change.













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....... NO.949 905







BEFORE THE STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION


IN THE MATTER OF: IN THE OFFICE OF THE
DISTRICT

[Name and address of Administrative order No.:
permitted]

DEP Permit No:


ORDER ESTABLISHING COMPLIANCE SCHEDULE UNDER SECTION
403.088(2)(f), F.S.

I. STATUTORY AUTHORITY

The Department of Environmental Protection (Department)

issues this order under the authority of section 403.088 of

the Florida Statutes. The Secretary of the Department has

delegated this authority to the Director of District

Management, who issues this order and makes the following

findings of fact.

II. FINDINGS OF FACT

1. [Name of permitted] is a person under section

403.031 of the Florida Statutes.

2. [Name of permitted] owns and operates a

facility located at which discharges wastewater into

waters of the state as defined in section 403.031 of the

Florida Statutes.

3. [Name of permitted] has applied for a permit under

section.403.088(2) of the Florida Statutes.
4. [Name of permittee]'s discharge does not/will not

meet the following specific conditions of DEP Permit No.

([Name of permittee]'s discharge does not/will not meet the



EXHIBIT 1




SOUTHDOWN 904 222 0398


following statutes and rules: ).
5. Sections 403.088(2)(e) and (f) of the Florida

Statutes authorize the Department to issue a permit for the

discharge of wastes into waters of the state, accompanied by

an order establishing a schedule for achieving compliance

with all permit conditions if the specified criteria are met.

6. The Department finds that (choose the applicable

criteria and supply facts showing how the criteria are met)

(1) The applicant is constructing, installing, or
placing into operation, or has submitted plans and
a reasonable schedule for constructing, installing,
or placing into operation, an approved pollution
abatement facility or alternative waste disposal
system;

(2) The applicant needs permission to pollute the
waters within the state for a period of time
necessary to complete research, planning,
construction, installation, or operation of an
approved and acceptable pollution abatement
facility or alternative waste disposal system;

(3) There is no present, reasonable, alternative
means of disposing of the waste other than by
discharging it into waters of the state;

(4) The granting of an operation permit will be
in the public interest; or

(5) The discharge will not be unreasonably
destructive to the quality of the receiving waters.

III. ORDER

Based on the foregoing findings of fact,

IT IS ORDERED,

1. [Name of permitted] shall (outline construction
schedules, other compliance schedules, etc.).
2. (Name of permitted] shall provide this office with

(monthly/quarterly/etc.) reports outlining progress toward


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NO.949 907


compliance with the time frames specified in paragraph 1 of

this section, beginning on

3. [Name of permitted] shall maintain and operate its

facilities in compliance with all other conditions of DEP

Permit No.

4. This order may be modified as set forth in chapter

62-4 of the Florida Administrative Code (This order may be

modified through revisions as set forth in chapter 62-620 of

the Florida Administrative Code).

5. Reports or other information required by this order

shall be sent to [name of contact, address of district

office].

6. This order does not operate as a permit under section

403.088 of the Florida Statutes. This order shall be

incorporated by reference into DEP Permit No. which

shall require compliance by the permitted with the

requirements of this order.
7. Failure to comply with the requirements of this

order shall constitute a violation of this order and DEP

Permit No. and may subject the permitted to penalties

as provided in section 403.161 of the Florida Statutes.
8. This order is final when filed with the clerk of the

Department, and [Name of permitted] then shall implement this

order unless a petition for an administrative proceeding

(hearing) is filed in accordance with the notice set forth in
the following section.

IV. NOTICE OF RIGHTS




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NO.949 P08







Persons whose substantial interests are affected by'this

order may petition for an administrative proceeding (hearing)
in accordance with section 120.57 of the Florida Statutes.

The petition must conform to the requirements of rule 62-103
of the Florida Administrative Code, and must be filed
(received) in the Office of General Counsel, Department of

Environmental Protection, 2600 Blair Stone Road, Tallahassee,
Florida 32399-2400, within fourteen (14) days of publication

of this notice. Failure to file a request for hearing within

this time period shall constitute a waiver of any right such
person may have to request air administrative determination
(hearing) under section 120.57 of the Florida Statutes.
If a petition is filed, the administrative hearing

process is designed to formulate agency action. Accordingly,

the Department's final action may be different from the

position taken by it in this preliminary statement.

Therefore, persons who may not object to the proposed agency
action may .wish to intervene.in the proceeding.- A petition
for intervention must be filed under model rule 28-5.207,

F.A.C., at least five days before the final hearing with the
hearing officer (if one has been assigned) at the Division of

Administrative Hearings, The DeSoto Building, 1230 Apalachee
Parkway, Tallahassee, Florida 32399-1550. If no hearing
officer has been assigned, the petition is to be filed with
the Office of General Counsel, Department of Environmental
Protection, 2600 Blair Stone Road, Tallahassee, Florida
32399-2400. Failure to file a petition to intervene within





08:54 SOUTHDOWN 904 222 03S;,


NO.949 [09







the allowed time frame constitutes a waiver of any right such

person has to request a hearing under section 120.57 of the

Florida Statutes.

Any party to this order has the right to seek judicial

review of the order under section 120.68 of the Florida

Statutes, by the filing of a notice of appeal under rule

9.110 of the Florida Rules of Appellate Procedure with the

clerk of the Department in the Office of General Counsel,

Department of Environmental Protection, 2600 Blair stone

Road, Tallahassee, Florida 32399-2400, and by filing a copy

of the notice of appeal accompanied by the applicable filing

fees with the appropriate district court of appeal. The

notice of appeal must be filed within thirty days after this

order is filed with the clerk of the Department.




DONE AND ORDERED on this day of _1995 in
Florida."




STATE OF FLORIDA DEPARTMENT
.OF :NVPRONMENTAL -PROTECTION


[name)
DIRECTOR OF DISTRICT MANAGEMENT

[ADDRESS]


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CLERK STAMP

FILED AND ACKNOWLEDGED on this date, under section
120.52(11) of the Florida Statutes, with the designated
Department Clerk, receipt of which is acknowledged.


Clerk



Date


Copies furnished to:


~


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NO.949 D11






PUBLIC NOTICE OF INTENT TO ISSUE PERMIT AND
ADMINISTRATIVE ORDER
(Use this form only when a publication of Notice
in a newspaper is required)

STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
NOTICE OF INTENT TO ISSUE PERMIT AND
ADMINISTRATIVE ORDER

The Department of Environmental Regulation gives notice of its
intent to issue a permit (DEP Permit No.: ) and accompanying
administrative order (Admin. Order No.: T-to [name and address
of applicant] to [brief.description of project].
A person whose substantial interests are affected by the
Department's proposed permitting decision may petition for an
administrative proceeding (hearing) in accordance with Section
120.57, Florida Statutes. The petition must contain the
information set forth below and must be filed (received) in the
Office of General Counsel of the Department at 26.00 Blair Stone
Road, Tallahassee, Florida 32399-2400, within 14 days of
publication of this notice. Petitioner shall mail a copy of the
petition to the applicant at the address indicated above at the
time of filing. Failure to file a petition within this time
period shall constitute a waiver of any right 'such person may have
to request an administrative determination (hearing) under Section
120.57, Florida Statutes.
The Petition shall contain the following information: (a) The
name, address, and telephone number of each petitioner, the
applicant's name and address, the Department Permit File Number
Administrative Order Number and the county in which the project is
proposed; (b) A statement of how and when each petitioner received
notice of the Department's action or proposed action; (c) A
statement of how each petitioner's substantial interests are
affected by the Department's action or proposed action; (d) A
statement of the material facts disputed by Petitioner, if any;
(e) A statement of facts which petitioner contends warrant
reversal or modification of the Department's action or proposed
action; (f) A statement of which rules or statutes petitioner
contends require reversal or modification of the Department's
action or proposed action; and (g) A statement of the relief
sought by petitioner, stating precisely the action petitioner
wants the Department to take with respect to the Department's
action or proposed action.
If a petition is filed, the administrative hearing process is
designed to formulate agency action. Accordingly, the
Department's final action may be different from the position taken
by it in this Notice. Persons whose substantial interests will be
affected by any decision of the Department with regard to the
application have the right to petition to become a party to the
proceeding. The petition must conform to the requirements
specified above and be filed (received) within 14 days of
publication of this notice in the Office of General Counsel at the



EXHIBIT 2


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...... NO. 949 I12







above address of the Department. Failure to petition within the
allowed time frame constitutes a waiver of any right such' person
has to request a hearing under Section 120.57, F.S., and to
participate as a party to this proceeding. Any subsequent
intervention will only be at the approval of the presiding
officer upon.motion filed pursuant to Rule 28-5.207, F.A.C.
The application is available for public inspection during
normal business hours, 8:00 a.m. to 5:00 p.m., Monday through
Friday, except legal holidays, at [name and address of office).




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