Environmental Permit Applications in Florida
December 1, 1999
Roger W. Sims- Orlando
The Florida Department of Environmental Protection (DEP) has proposed a
series of revisions to chapter 62-4, Florida Administrative Code, regarding the
meaning of "reasonable assurance" in DEP's permitting rules. Under the
existing rules, a permit applicant must provide "reasonable assurance"
to DEP that it will meet DEP rules and standards and that it will comply with
permit conditions. Nothing in the existing rules defined "reasonable
assurance." The revisions are intended to codify existing agency
interpretation of this criterion and expand it to address applicants with a
record of non-compliance. DEP Secretary Struhs recently denied a DEP air
construction permit for a cement plant in North Central Florida, based on agency
concerns about past compliance by the applicant and legal entities related to
the applicant.
The draft rule revisions were initially issued with a number of
"technical amendments" not directly related to the reasonable
assurance definition and were subsequently revised on November 5, to narrow the
focus of the proposed changes to address only the new definition and the issue
of an applicant's compliance history. A workshop was conducted by DEP Deputy
Secretary Kirby Green and legal staff on November 12, in Tallahassee. Numerous
objections were expressed by a variety of participants in the workshop, and
virtually no support was expressed for the rule changes as issued November 5.
Objections expressed at the workshop concerned the vagueness of the language
and the degree of discretion reserved to DEP to decide when an applicant had
"compliance" issues of a nature and degree justifying denial of an
application. Furthermore, a new definition of "applicant," as used in
the reasonable assurance rule, was broadly stated to include various corporate
affiliates of an owner or operator. This broad definition raised concerns on the
part of many that one corporate entity would be penalized for noncompliance by a
related company over which the applicant had no control or responsibility.
Deputy Secretary Green indicated that significant rewriting of the rule
changes would be undertaken by DEP, and Assistant General Counsel Betsy Hewitt
encouraged interested parties to submit specific language for consideration.
Comments are due at DEP by December 13, 1999.
For more information, contact Roger Sims at 1-888-688-8500.