62-302.530: Table: Surface Water Quality Criteria
STATE OF FLORIDA
NOTICE OF INTENT TO GRANT VARIANCE
The Department of Environmental Protection (Department) gives notice of its intent to grant a variance (No. 175244-007 EV-VE) to Cemex Construction Materials Florida, LLC, 1501 Belvedere Road, West Palm Beach, Florida, 33406, under Section 403.201(1)(a), Florida Statutes, (F.S.), from the provisions of subsection 62‑302.530(30), Florida Administrative Code, (F.A.C.), which provides minimum standards for dissolved oxygen levels in the surface waters of the state. This variance will authorize the dissolved oxygen levels within manmade lakes at a reclaimed limestone mine, the FEC Quarry, to fall below the minimum levels set by Rule 62‑302.530, F.A.C. The manmade lakes are proposed to be constructed as part of the proposed expansion of an operating limestone mine in the Miami-Dade County Lake Belt Area, as designated by Section 373.4149(3), F.S. The proposed expansion of the limestone mine is located immediately south of Okeechobee Road, and west of the Florida Turnpike in Miami‑Dade County, Florida. The proposed expansion will also require a modification of an existing environmental resource permit which has been assigned a different file number, File No. 175244-004, and is not the subject of this intent to issue a variance.
The proposed expansion involves the construction of five large quarry pits located in sections 10, 14, 15, 21, 22, 23, 26 and 28, Township 52 South, Range 39 East. During mining, stormwater will be contained within the mine pits by using a system of berms and elevated work areas. At the completion of mining, the reclaimed lakes will be re-connected with state waters by the removal of all upland berms, and the water quality standards listed in Rule 62-302.530, F.A.C., will apply to all surface waters within the mine. On May 28, 2009, Cemex Construction Materials Florida, LLC., applied to the Department for a variance from the minimum standards for dissolved oxygen authorized by Rule 63‑302.530, F.A.C., for the deeper portions of the manmade lakes. Rule 62‑302.530, F.A.C., requires a minimum level of 5.0 mg/L dissolved oxygen in the surface waters of the state.
Most of the surface waters in the proposed manmade lakes will meet the minimum standards for dissolved oxygen proscribed by Rule 62-302.530, F.A.C. However, the deepest layer of water in the lakes, the hypolimnion layer, may not meet the minimum standards for dissolved oxygen as proscribed by Rule 62-302.530, F.A.C., and there is no practicable means known or available to achieve the required dissolved oxygen levels within the hypolimnion layer of water in the manmade lakes. As a result, a variance of the minimum standards of dissolved oxygen provided in Rule 62‑302.530, F.A.C., is necessary for the hypolimnion layer of water in the manmade lakes. This was anticipated by the Florida Legislature in Section 373.414(6)(a), F.S., which states that "Where such mining activities otherwise meet the permitting criteria contained in this section, such activities may be eligible for a variance from the established water quality standard for dissolved oxygen within the lower layers of the reclaimed pit.”
A variance of the minimum standards of dissolved oxygen provided in Rule 62‑302.530, F.A.C., is not expected to result in any on-site or off-site impacts. Therefore, the Department intends to grant a permanent variance pursuant to Section 403.201(1)(a), F.S., for the dissolved oxygen levels in the hypolimnion layer of the proposed manmade lakes to fall below the minimum levels authorized by Rule 62‑302.530, F.A.C.
The Department’s file on this matter 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 the Department of Environmental Protection, Bureau of Mining and Minerals Regulation, 2051 East Paul Dirac Drive, Tallahassee, Florida 32310, Telephone: (850)488-8217.
Under this intent to grant, this variance is hereby granted subject to the applicant’s compliance with any requirement in this intent to publish notice of this intent in a newspaper of general circulation and to provide proof of such publication in accordance with Section 50.051, F.S. This action is final and effective on the date filed with the Clerk of the Department unless a sufficient petition for an administrative hearing is timely filed under Sections 120.569 and 120.57, F.S., as provided below. If a sufficient petition for an administrative hearing is timely filed, this intent to grant automatically becomes only proposed agency action on the application, subject to the result of the administrative review process. Therefore, on the filing of a timely and sufficient petition, this action will not be final and effective until further order of the Department. When proof of publication is provided, if required by this intent, and if a sufficient petition is not timely filed, the variance will be granted as a ministerial action. Because an administrative hearing may result in the reversal or substantial modification of this action, the applicant is advised not to commence construction or other activities until the deadlines noted below for filing a petition for an administrative hearing or request for an extension of time have expired and until the variance has been executed and delivered. Mediation is not available.
A person whose substantial interests are affected by the Department’s action may petition for an administrative proceeding (hearing) under Sections 120.569 and 120.57, F.S. The petition must contain the information set forth below and must be filed (received by the clerk) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, MS 35, Tallahassee, Florida 32399-3000.
Under Rule 62-110.106(4), F.A.C., a person whose substantial interests are affected by the Department’s action may also request an extension of time to file a petition for an administrative hearing. The Department may, for good cause shown, grant the request for an extension of time. Requests for extension of time must be filed with the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, MS 35, Tallahassee, Florida 32399-3000, before the applicable deadline. A timely request for extension of time shall toll the running of the time period for filing a petition until the request is acted upon. If a request is filed late, the Department may still grant it upon a motion by the requesting party showing that the failure to file a request for an extension of time before the deadline was the result of excusable neglect.
If a timely and sufficient petition for an administrative hearing is filed, other persons whose substantial interests will be affected by the outcome of the administrative process have the right to petition to intervene in the proceeding. Intervention will be permitted only at the discretion of the presiding officer upon the filing of a motion in compliance with Rule 28-106.205, F.A.C.
In accordance with Section 403.201, F.S., petitions for an administrative hearing by the applicant must be filed within 14 days of receipt of this written notice. Petitions filed by any persons other than the applicant, and other than those entitled to written notice under Section 120.60(3), F.S., must be filed within 14 days of publication of the notice or within 14 days of receipt of the written notice, whichever occurs first. Under Section 120.60(3), F.S., however, any person who has asked the Department for notice of agency action may file a petition within 14 days of receipt of such notice, regardless of the date of publication.
The petitioner shall mail a copy of the petition to the applicant at the address indicated above at the time of filing. The failure of any person to file a petition for an administrative hearing within the appropriate time period shall constitute a waiver of that person’s right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S.
A petition that disputes the material facts on which the Department’s action is based must contain the following information: (a) the name and address of each agency affected and each agency’s file or identification number, if known; (b) the name, address, and telephone number of the petitioner; the name, address, and telephone number of the petitioner’s representative, if any, which shall be the address for service purposes during the course of the proceeding; and an explanation of how the petitioner’s substantial interests are or will be affected by the agency determination; (c) a statement of when and how the petitioner received notice of the agency decision; (d) a statement of all disputed issues of material fact. If there are none, the petition must so indicate; (e) a concise statement of the ultimate facts alleged, including the specific facts that the petitioner contends warrant reversal or modification of the agency’s proposed action; (f) a statement of the specific rules or statutes that the petitioner contends require reversal or modification of the agency’s proposed action, including an explanation of how the alleged facts relate to the specific rules or statutes; and (g) a statement of the relief sought by the petitioner, stating precisely the action that the petitioner wishes the agency to take with respect to the agency’s proposed action.
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. Under Sections 120.569(2)(c) and (d), F.S., a petition for administrative hearing must be dismissed by the agency if the petition does not substantially comply with the above requirements or is untimely filed.
This intent to grant a variance constitutes an order of the Department. Subject to the provisions of Section 120.68(7)(a), F.S., which may require a remand for an administrative hearing, the applicant has the right to seek judicial review of the order under Section 120.68, F.S., by the filing of a notice of appeal under Rule 9.110 of the Florida Rules of Appellate Procedure with the Clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, MS 35, Tallahassee, Florida 32399‑3000; and by filing a copy of the notice of appeal accompanied by the applicable filing fees with the appropriate district court of appeal. The notice of appeal must be filed within 30 days from the date when the order is filed with the Clerk of the Department.