DEP Issues Final Order In Controversial Cement Plant Case
 
June 1, 2000
 
Lawrence Sellers- Tallahassee

The Florida Department of Environmental Protection (DEP) recently entered its final order in a closely-watched case involving the application for an air construction permit for a proposed cement plant in Suwannee County. The final order grants the requested permit. Florida Chapter of the Sierra Club v. Suwannee American Cement Co and DEP, OGC Case No. 99-1116 (final order entered May 19, 2000).

The case was potentially noteworthy in two respects: first because the agency initially proposed to deny the application based solely on a new “reasonable assurances” policy; and second because the challenge to the agency’s subsequent decision to issue the AIR permit was based exclusively on a claim that the applicant failed to show it would meet certain WATER quality standards. However, the final order addresses neither of these issues on the merits.

Reasonable Assurances Policy

DEP initially proposed to deny the permit application based on its then newly-announced “reasonable assurances” policy. The agency premised the proposed denial solely on the regulatory history of certain companies allegedly related to the applicant. The applicant challenged the application of this new policy on a number of grounds. However, the department and the applicant reached a settlement, and thereby avoided litigation over the validity of this new policy. As part of the settlement, DEP also agreed to issue the requested permit.

Applicability of Water Quality Standards to Air Permit

The Sierra Club challenged the proposed decision on the permit application. The challenge was based exclusively on its argument that the application for the AIR permit should be denied because emissions from the plant would cause violations of certain WATER quality standards, including the Outstanding Florida Water (OFW) Rule.

The Administrative Law Judge (ALJ) initially assigned to the case granted the applicant’s motion to dismiss the Sierra Club’s initial petition. She agreed that these claims could not provide a basis for denying the permit application, and she entered a Recommended Order of Dismissal on October 21.

Counsel for the Sierra Club and counsel for DEP filed exceptions to the Recommended Order of Dismissal, but DEP remanded the case on November 30 without addressing the parties’ arguments regarding the applicability of water quality standards to an application for an air permit.

The final hearing was held on February 14. The parties stipulated that the applicant met all of the applicable air quality standards. The principal issues were whether water quality standards applied and, if so, whether the applicant could provide reasonable assurances that the proposed project would comply with these water quality standards. In particular, the Sierra Club argued that mercury emissions from the proposed cement plant would violate the OFW Rule and certain other water quality standards.

ALJ Larry Sartin issued the recommended order on April 5. Like Judge Hood, he too concluded that the water quality standards do not apply to an application for an air permit. He also found that, if such standards did apply, the applicant had demonstrated that the amount of mercury would not be detectable. He therefore concluded that the applicant had provided reasonable assurances that emissions from the proposed plant would comply with any applicable water quality standards, and that the requested permit should be issued.

On May 19, DEP entered its final order issuing the requested permit. DEP adopted ALJ Sartin’s findings that the applicant provided the required reasonable assurances as to compliance with  water quality standards. Significantly, DEP then concluded that the ALJ’s rulings regarding the applicability of water quality standards were dicta, and the agency expressly did not adopt them in its final order.

The final order thus leaves for another day the resolution of the question of whether an applicant for an air permit must demonstrate compliance with water quality standards. But for those keeping count, you should note that DEP’s OGC has gone on record as saying they do apply, and three ALJs have said they do not.

Stay tuned, as an appeal is likely.  The Recommended Order of Dismissal, the Agency Remand, and the second Recommended Order all may be found at the DOAH Web site, http://www.doah.state.fl.us/internet/search/detail.cfm?CaseNo=99-003096&URLString=0.