(1) Service. Service of any document shall be
deemed complete upon being properly addressed, stamped, and deposited in the
United States Mail, or upon receipt of the complete document by the clerk of
the Department or any other party to whom a document is sent by facsimile
transmission or hand delivery (including express or courier services such as
Federal Express).
(2) "Receipt of
Notice of Agency Action" Defined. As an exception to subsection
28-106.111(2),
F.A.C., for the purpose of determining the time for filing a petition for
hearing on any actual or proposed action of the Department as set forth below
in this rule, "receipt of notice of agency action" means either receipt of
written notice or publication of the notice in a newspaper of general
circulation in the county or counties in which the activity is to take place,
whichever first occurs, except for persons entitled to written notice
personally or by mail under Section
120.60(3),
F.S., or any other statute. For purposes of this section, "publication of the
notice" for hazardous waste permits shall mean the publication of the notice in
a newspaper or the broadcast of the notice over a local radio station (both of
which are required) in accordance with subsection
62-730.220(9),
F.A.C., whichever is later. "Notice of agency action" shall include notice of
intended agency action as well as actual agency action. For applications
reviewed concurrently under Section
373.427, F.S., "notice of agency
action" shall mean only the consolidated notice of intent to grant or deny.
Except where otherwise provided by statute or this rule chapter, a timely
petition requesting an administrative hearing shall be filed within twenty-one
days of such receipt of notice of agency action.
(3) Time for Filing Petition.
(a) A petition shall be in the form required
by Rule
28-106.201 or
28-106.301, F.A.C., and must be
filed (received) in the office of General Counsel of the Department within the
following number of days after receipt of notice of agency action, as defined
in subsection (2), of this rule above:
1.
Petitions concerning Department action or proposed action on applications for
permits under Chapter 403, F.S., and related authorizations under Section
373.427, F.S., (except permits
for hazardous waste facilities): fourteen days,
2. Petitions concerning Department action or
proposed action on applications for hazardous waste facility permits:
forty-five days,
3. Petitions
concerning notices of violation: twenty days after receipt of the notice of
violation,
4. Petitions concerning
Department action or proposed action on applications for permits under statutes
other than Chapter 403 or Section
373.427, F.S., or concerning
other Department actions or proposed actions: twenty-one days.
The petitioner shall also serve a copy of the petition on all
other parties to the proceeding, as identified in the notice, at the time of
filing.
(b)
Failure to file a petition within the applicable time period after receiving
notice of agency action shall constitute a waiver of any right to request an
administrative proceeding under Chapter 120, F.S.
(4) Enlargement of Time. For good cause
shown, the Secretary of the Department (or the Secretary's designee) may grant
an enlargement of time for the doing of any act required or allowed to be done
under an order of the Department, the Uniform Rules of Procedure, or any rule
of the Department or notice given under such a rule, if the request for such
enlargement is made before the expiration of the period to be enlarged, or may
allow the act to be done even if the period has expired, upon motion showing
that the failure to act was the result of excusable neglect.
(5) Notices: General Requirements. Each
person who files an application for a Department permit or other approval may
publish or be required to publish a notice of application or other notice as
set forth below in this section. Except as specifically provided otherwise in
this paragraph, each person publishing such a notice under this section shall
do so at his own expense in the legal advertisements section of a newspaper of
general circulation (i.e., one that meets the requirements of Sections
50.011 and
50.031, F.S.) in the county or
counties in which the activity will take place or the effects of the
Department's proposed action will occur, and shall provide proof of the
publication to the Department within seven days of the publication. For
federally enforceable general permits approved by the Department for air
operations, however, notice of a draft permit shall be published in the Florida
Administrative Register, in accordance with
40 C.F.R. sec.
70.7(h)(1). In addition to
the provisions of this section, other specific requirements for notices are as
follows: notices for variances and waivers are governed by Rule
62-110.104, F.A.C., notices for
federally enforceable air operation permits are governed by Rule
62-210.350, F.A.C., notices for
exemptions from water quality criteria are governed by paragraph
62-4.243(1)(a),
F.A.C., those for exemptions for water bodies classified for navigation,
utility, and industrial use are governed by paragraph
62-4.243(2)(a),
F.A.C., notices for exemptions from the limitations imposed on mixing zones are
governed by paragraph
62-4.244(1)(c),
F.A.C., notices for general permits are generally governed by subsection
62-4.530(5),
F.A.C., notices on site-specific alternative criteria are governed by
subparagraph
62-302.800(4)(c)
7., F.A.C., notices for "noticed general permits" in the environmental resource
permitting program are governed by paragraphs
62-343.090(1)(d)
-(e), (2)(c), and (2)(h)-(j), F.A.C., notices on permits for underground
injection wells are governed by Rule
62-528.315, F.A.C., notices on
wastewater facility permits are governed by Rule
62-620.550, F.A.C., notices for
general permits for solid waste transfer stations are governed by subsection
62-701.801(7), F.A.C., and notices (including the federal requirement for such
notice to be broadcast over one or more local radio stations) for hazardous
waste permits are governed by subsections
62-730.220(9) and
(11), F.A.C.
(6) Notice of Application. Publication of a
notice of application shall be required for those projects that, because of
their size, potential effect on the environment or natural resources,
controversial nature, or location, are reasonably expected by the Department to
result in a heightened public concern or likelihood of request for
administrative proceedings. If required, the notice shall be published by the
applicant one time only within fourteen days after a complete application is
filed and shall contain the name of the applicant, a brief description of the
project and its location, the location of the application file, and the times
when it is available for public inspection. The notice shall be prepared by the
Department and shall comply with the following format:
Notice of Application
The Department of Environmental Protection announces receipt
of an application for permit from [name of applicant] to [brief description of
project]. This proposed project will be located at [location] in [city, if
applicable] in [county]. This application is being processed and is available
for public inspection during normal business hours, 8:00 a.m. to 5:00 p.m.,
Monday through Friday, except legal holidays, at [name and address of
office].
A notice of application for an environmental resource permit
shall also contain the information required by Sections
373.413(3)-(4),
F.S.
(7) Notice of Proposed
Agency Action on Permit Application. After processing a permit application, the
Department shall give the applicant either a notice of permit issuance (or
denial) or a notice of the Department's intent to issue (or deny). Each such
notice shall comply with the requirements for format, content, and publication
as set forth below in this subsection.
(a) The
Department shall require publication of notice of the Department's proposed
action on an application in the following circumstances:
1. The Department shall require applicants to
publish an intent to issue for all construction permits for domestic wastewater
treatment plants, industrial wastewater treatment plants, Class I, Class III,
or major Class V underground injection control wells, solid waste disposal
facilities, hazardous waste facilities, and air pollution sources, as well as
any other project (including any environmental resource or wetland resource
project) that the Department finds is reasonably expected to result in a
heightened public concern or likelihood of a request for administrative
proceedings because of its size, potential effect on the environment or natural
resources, controversial nature, or location. In addition, all applicants shall
publish a notice of intent to issue under Rule
62-210.350, F.A.C., for
federally enforceable air operation permits, permit revisions, and permit
renewals, including those processed under the provisions of Chapter 62-213 of
the F.A.C., but not for permit revisions meeting the requirements of subsection
62-213.412(1),
F.A.C.
2. Applicants for
construction permits for drinking water treatment plants whose facilities will
discharge to surface or ground water and will be required to obtain a permit to
discharge or any other permit from the Department shall publish a notice of
intent to issue a permit.
3.
Applicants for construction or expansion of solid waste facilities shall
publish a notice of intent to deny a permit.
4. After publication of a notice of intent to
issue or intent to deny a permit application, the applicant shall publish an
additional notice if the subject activity or project is substantially modified
by the applicant and the Department proposes to issue the permit with the
modification. The additional notice shall not be required for applications for
which a notice of administrative proceeding on a permit application has been
published under paragraph (7)(e), below. For the purposes of this subparagraph,
the phrase "substantially modified" means a relocation or modification of the
activity or project that is reasonably expected to cause new or significantly
greater adverse environmental impacts.
(b) The applicant shall cause the notice to
be published as soon as possible after notification by the Department of its
intended action. The provisions of Section
120.60(1),
F.S., shall be tolled by the request of the Department for publication of the
notice and shall resume fourteen days after receipt of proof of publication, at
the address specified by the Department in its request for
publication.
(c) The notice shall
be prepared by the Department and shall contain the following:
1. The name of the applicant and a brief
description of the proposed activity and its location,
2. The location of the application file and
the times when it is available for public inspection,
3. A statement of the Department's intended
action; and,
4. A notification of
the opportunity to request an administrative hearing and mediation (if
available) that reads substantially as set forth in paragraph (12), of this
rule, below.
(d) The
notice required by this subsection shall read substantially as follows:
Notice of Intent to [insert "Issue" or "Deny" as appropriate]
Permit
The Department of Environmental Protection gives notice of
its intent to [issue] [deny] a permit to [name and address of applicant] to
[brief description of project or activity]. The application is available for
public inspection during normal business hours, 8:00 a.m. to 5:00 p.m., Monday
through Friday, except legal holidays, at [name and address of office].
[Insert the language setting forth the notice of rights, as
provided in paragraph (12), of this rule, below.]
(e) Notice of Administrative Proceeding. If
the applicant initiates an administrative proceeding on a permit denial or an
intent to deny and the project or activity is one for which publication of a
notice of intent to issue would have been required under subparagraph (7)(a)1.,
above, the applicant shall publish a notice of administrative proceeding on
permit application.
1. The notice shall be
published at the applicant's expense either:
a. Within fifteen days after the applicant's
petition for administrative proceeding has been forwarded to the Division of
Administrative Hearing (DOAH) or within fifteen days after the initiation of an
administrative proceeding before the Department under Section
120.569, F.S.; or, at the
applicant's option,
b. Within
fifteen days after the applicant has filed a request for an extension of time
in which to file a petition for an administrative
proceeding.
2. The notice
shall read substantially as follows:
Notice of Administrative Proceeding on Permit
Application
The Department of Environmental Protection gives notice of
receipt of a [insert "request for an extension of time in which to file a" if
appropriate] petition for an administrative proceeding (hearing) on the
Department's [intent to deny] [denial of] a permit to [name and address of
applicant, application number, OGC file number, and DOAH case number, if
applicable] to [brief description of activity or project and of
location].
The administrative hearing process is designed to formulate
agency action. Accordingly, the Department's final action may be different from
the proposed agency action and may result in the issuance of a permit as
requested by the applicant or as modified in the course of the proceeding or by
settlement.
[Insert the language setting forth the notice of rights, as
provided in paragraph (12), of this rule, below.]
(f) Notices of intent to issue a permit for
hazardous waste facilities shall be in the format set forth above but shall
include the time frames and meet the federal requirements set forth in
subsection
62-730.220(9)
of the F.A.C.
(8) Notice
of Proposed Agency Action (Non-permitting). On a matter other than a permit
application, the Department or any applicant, petitioner for a variance or
waiver, party to a consent order, or person seeking the Department's
authorization or approval of a report, plan, proposal, or other request
(excluding any request for hearing) may publish or be required to publish
notice of the proposed action in substantially the following format:
State of Florida Department of Environmental Protection
Notice of Proposed Agency Action
The Department of Environmental Protection gives notice that
it proposes [insert phrase describing the agency action proposed (e.g., to
approve a consent order)] in reference to [a description and location of the
subject matter or activity covered by the action, the Department's
identification number, and the name and address of any person to whom the
action is directed]. Complete copies [of any document and accompanying material
expressing the proposed agency action] are available for public inspection
during normal business hours 8:00 a.m. to 5:00 p.m., Monday through Friday,
except legal holidays, at [name and address of office].
[Insert the language setting forth the notice of rights, as
provided in paragraph (12), of this rule, below, except that references in that
notice to deadlines of fourteen days shall be replaced by references to
twenty-one days.]
(9) Proof
of Publication. Notice to substantially affected persons on applications for
Department permits or other authorizations is an essential and integral part of
the state environmental permitting process. Therefore, no application for a
permit or other authorization for which published notice is required shall be
granted until proof of publication of notice is made by furnishing a uniform
affidavit in substantially the form prescribed in Section 50.051 of the Florida
Statutes, to the office of the Department issuing the permit or other
authorization. Applicants for hazardous waste permits must also comply with
subsection
62-730.220(11),
F.A.C.
(10)
(a) Any applicant or person benefiting from
the Department's action may elect to publish notice of the Department's
intended or proposed action (or notice of a proceeding on such intended action)
in the manner provided by subsection (7) or (8), above. Upon presentation of
proof of publication to the Department before final agency action, any person
who has elected to publish such notice shall be entitled to the same benefits
under this rule as a person who is required to publish notice. Since persons
whose substantial interests are affected by a Department decision may petition
for an administrative proceeding within the time provided in this rule (at
subsection (3), above) after receipt of notice of agency action, and since
receipt of such notice can occur at any time unless notice is given or
published as prescribed in this rule, the applicant or other person requesting
a particular action by the Department cannot justifiably rely on the finality
of the Department's decision unless the notice has been duly published or
otherwise provided to all persons substantially affected by the
decision.
(b) The notices required
by this rule may be combined with other notices required by the Department
under Chapter 373, 376, 378, or 403, F.S., or Title 62 of the Florida
Administrative Code. For applications concurrently reviewed under Section
373.427, F.S., the provisions of
that statute shall govern.
(c) The
provisions of this section shall also apply to the permitting and regulation of
hazardous waste facilities, except that subsections
62-730.220(9),
62-730.220(11),
and 62-730.310(6), F.A.C., shall govern to the extent that they provide for a
different time or notice procedure than that set forth in this
section.
(d) In issuing notices on
permits or administrative orders under a federally delegated or approved
program, the Department shall follow the procedures approved by the federal
government for the Department's implementation of the program: Rule
62-210.350 of the F.A.C., for
air quality programs, Rule
62-528.315, F.A.C., for the
underground injection control program, Rule
62-620.550, F.A.C., for the
National Pollutant Discharge Elimination System program, and subsection
62-730.220(9)
and
62-730.220(11),
F.A.C., for the program regulating hazardous wastes. In general, those rules
require that the Department or the applicant give public notice that a draft
permit (or an order that is not the result of a hearing under Section
120.569, F.S.) has been
prepared, including a statement whether a public meeting has been scheduled on
the permit or order. Public notice of such a permit or order shall allow at
least thirty days for public comment for air, underground injection control,
and national pollution discharge elimination system permits, and forty-five
days for such public comment on hazardous waste permits. If a public meeting on
such a permit or order is scheduled, public notice of the meeting shall be
given at least thirty days before the meeting. The two notices may be
combined.
(11) Failure to
publish any notice of application, notice of intent to issue permit, or notice
of agency action required by the Department shall be an independent basis for
the denial of the permit or other pertinent approval or
authorization.
(12) Notice of Right
to Hearing and to Mediation. Every notice under this section required to
include a notice of the right to an administrative hearing and to mediation
(when available) shall read substantially as follows, in pertinent part:
[Insert either "The Department will issue the permit with the
attached conditions" or "The Department's proposed agency action shall become
final"] unless a timely petition for an administrative hearing is filed under
Sections 120.569 and
120.57, F.S., before the
deadline for filing a petition. [If mediation is available, insert: "Persons
who have filed such a petition may seek to mediate the dispute, and choosing
mediation will not adversely affect the right to a hearing if mediation does
not result in a settlement."] The procedures for petitioning for a hearing are
set forth below [if mediation is available, insert, "followed by the procedures
for pursuing mediation"].
A person whose substantial interests are affected by the
Department's proposed [insert either "permitting decision" or "agency action"]
may petition for an administrative proceeding (hearing) under Sections
120.569 and
120.57, F.S. The petition must
contain the information set forth below and must be filed (received) in the
Office of General Counsel of the Department at 3900 Commonwealth Boulevard,
Mail Station 35, Tallahassee, Florida 32399-3000.
[For written notice, insert the following: "Petitions by the
applicant or any of the parties listed below must be filed within [insert
"fourteen, " "twenty, " or "twenty-one, " or "forty-five, " as specified for
the kind of agency action under subsection (3), of this rule, above] days of
receipt of this written notice. Petitions filed by other persons."]
[For published notice related to a permit, insert the
following: "Petitions filed by any persons other than those entitled to written
notice under Section 120.60(3),
F.S."] must be filed within [insert "fourteen, " "twenty, " or "twenty-one, "
or "forty-five, " as specified for the kind of agency action under subsection
(3), of this rule, above] days of publication of the notice or receipt of the
written notice, whichever occurs first. [For written notice, insert the
following: "Under Section
120.60(3),
F.S., however, any person who asked the Department for notice of agency action
may file a petition within fourteen days of receipt of such notice, regardless
of the date of publication."] The petitioner shall mail a copy of the petition
to the applicant at the address indicated above at the time of filing. The
failure of any person to file a petition within the appropriate time period
shall constitute a waiver of that person's right to request an administrative
determination (hearing) under Sections
120.569 and
120.57, F.S., or to intervene in
this proceeding and participate as a party to it. Any subsequent intervention
(in a proceeding initiated by another party) will be only at the discretion of
the presiding officer upon the filing of a motion in compliance with Rule
28-106.205, F.A.C.
A petition that disputes the material facts on which the
Department's action is based must contain the following information: [insert
the categories of required information listed in subsection
28-106.201(2),
F.A.C.]. A petition that does not dispute the material facts on which the
Department's action is based shall state that no such facts are in dispute and
otherwise shall contain the same information as set forth above, as required by
Rule 28-106.301, F.A.C.
Because the administrative hearing process is designed to
formulate final agency action, the filing of a petition means that the
Department's final action may be different from the position taken by it in
this notice. Persons whose substantial interests will be affected by any such
final decision of the Department have the right to petition to become a party
to the proceeding, in accordance with the requirements set forth above.
[Insert either the statement that "Mediation is not available
in this proceeding, " or the following statement:
In addition to requesting an administrative hearing, any
petitioner may elect to pursue mediation. The election may be accomplished by
filing with the Department a mediation agreement with all parties to the
proceeding (i.e., the applicant, the Department, and any person who has filed a
timely and sufficient petition for a hearing). The agreement must contain all
the information required by Rule
28-106.404, F.A.C. The agreement
must be received by the clerk in the Office of General Counsel of the
Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee,
Florida 32399-3000, within ten days after the deadline for filing a petition,
as set forth above. Choosing mediation will not adversely affect the right to a
hearing if mediation does not result in a settlement.
As provided in Section
120.573, F.S., the timely
agreement of all parties to mediate will toll the time limitations imposed by
Sections 120.569 and
120.57, F.S., for holding an
administrative hearing and issuing a final order. Unless otherwise agreed by
the parties, the mediation must be concluded within sixty days of the execution
of the agreement. If mediation results in settlement of the administrative
dispute, the Department must enter a final order incorporating the agreement of
the parties. Persons seeking to protect their substantial interests that would
be affected by such a modified final decision must file their petitions within
[insert "fourteen, " "twenty, " or "twenty-one, " or "forty-five, " as
specified for the kind of agency action under subsection (3), of this rule,
above] days of receipt of this notice, or they shall be deemed to have waived
their right to a proceeding under Sections
120.569 and
120.57, F.S. If mediation
terminates without settlement of the dispute, the Department shall notify all
parties in writing that the administrative hearing processes under Sections
120.569 and
120.57, F.S., are
resumed.]
Any party to this order has the right to seek judicial review
of it under Section 120.68, F.S., by filing a notice
of appeal under rule 9.110 of the Florida Rules of Appellate Procedure with the
clerk of the Department in the Office of General Counsel, Mail Station 35, 3900
Commonwealth Boulevard, Tallahassee, Florida 32399-3000, and by filing a copy
of the notice of appeal accompanied by the applicable filing fees with the
appropriate district court of appeal. The notice of appeal must be filed within
thirty days after this order if filed with the clerk of the
Department.