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Environment
Newsletter - Fourth Quarter 1999
 
In this Issue...
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.