                                       
                                       
                                       
                                       
                                       
                               STATE OF FLORIDA
                    DEPARTMENT OF ENVIRONMENTAL PROTECTION
                PROPOSED REVISION TO STATE IMPLEMENTATION PLAN
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                NUMBER 2009-03
                              COMBS OIL VARIANCE
                                       
                                 July 31, 2009
                                       




                      STATE IMPLEMENTATION PLAN SUBMITTAL
                                NUMBER 2009-03
                                       
                              Combs Oil Variance

                               TABLE OF CONTENTS
SUBJECT	PAGE

Letter of Submittal	1
Executive Summary	5
Response to 40 CFR Part 51, Appendix V, Criteria	11
Statutory Authority	13
120.542, F.S.	15
403.061, F.S.	18

Materials to be Incorporated into State Implementation Plan (SIP)	27
Order Granting Variance (Issued August 20, 2008)	29

Public Hearing	35
Response to 40 CFR 51.102 Requirements	37
FAW Notice of August 19, 2008, Public Meeting (40 CFR 51.102 Hearing)	38
Newspaper Affidavit-Notice of August 19, 2008, Public Hearing	39
Emergency Cancelation Flyer for August 19, 2008, Meeting due to Tropical Storm Fay (Posted on Door)	40
FAW Notice of October 21, 2008, Public Meeting (40 CFR 51.102 Hearing)	41
Newspaper Affidavit-Notice of October 21, 2008, Public Hearing	42
Public Information Package Transmittal Memo to District Office	43
Pre-hearing Submittal Letter to EPA	45

Materials Included in Public Information Packages and Pre-hearing Submittal	47
Text of Newspaper Notice of August 19, 2008, Public Hearing	49
Text of Newspaper Notice of October 21, 2008, Public Hearing	50
FAW Notice of August 19, 2008, Public Meeting (40 CFR 51.102 Hearing)	51
FAW Notice of October 21, 2008, Public Meeting (40 CFR 51.102 Hearing)	52
Public Hearing Agenda - August 19, 2008	53
Public Hearing Agenda  -  October 21, 2008	54
Draft Order Granting Variance	55



State Administrative Procedures	59
Notice of Receipt of Petition for Variance	61

Public and EPA Comments	63
EPA Comments On Pre-hearing Submittal	67




Letter of Submittal



                                       

                               Executive Summary

                                       

                               Executive Summary
                               EXECUTIVE SUMMARY
                         SIP SUBMITTAL NUMBER 2009-03
                              COMBS OIL VARIANCE
                                       

Contents
	
	Introduction
	Background
	Variance Process
	Summary of Applicable Rules
	Variance Determination
	Noninterference Demonstration
	Response to Public and EPA Comments
	Appendix:  Collier County Comparison to National Ambient Air Quality Standards 

Introduction

Florida Administrative Code (F.A.C.) Rule 62-296.418(2)(b)2. requires installation and operation of vapor collection and control systems on loading racks at bulk gasoline plants which commence operation on or after August 1, 2007.  Bulk gasoline plants which began operation prior to August 1, 2007, are not subject to the requirement of installation and operation vapor collection and control systems on the loading racks.  This revision to Florida's SIP consists of a variance issued to Combs Oil Company of Naples, Florida, relieving the company of the requirement to comply with Rule 62-296.418(2)(b)2., F.A.C., for the proposed relocation of its existing bulk gasoline plant to a new site in the same area.

Background

On May 30, 2007, Combs Oil Company, submitted a petition for variance from the requirements of Rule 62-296.418(2)(b)2., F.A.C., for its proposed new bulk gasoline plant.  The company currently operates an existing bulk gasoline plant in Naples, Florida.  The new plant would replace the existing plant and be constructed at a different site in the area.

In June of 2002, Combs Oil Company successfully bid to acquire a former state-owned property, also in Naples, with the intention of relocating its bulk gasoline plant and business headquarters to that property.  The company received approval of Conditional Use from the Collier County Board of County Commissioners for the newly acquired property in July of 2003.  The South Florida Water Management issued the company its water management permits in November of 2004.  The company was issued its building permits from Collier County for the office, warehouse containment area, tank foundations and loading/unloading areas in August of 2005.  

Between July 2005 and January 2007, Combs Oil Company experienced substantial construction delays beyond its control due to the effects of hurricanes, both in Florida and along the upper Gulf Coast.  The company experienced delays in obtaining steel for the office and loading/tank areas as well as the rationing of steel rebar and concrete supplies.

Combs Oil Company had invested $67,053 in equipment and $40,235 in construction costs for the support structure of the loading rack prior to the Department of Environmental Protection's (DEP's) initiation of rule revisions requiring a vapor collection and control system on the loading racks of new bulk gasoline plants.  However, the company was unable to complete construction and relocation of its plant by August 1, 2007, due to the aforementioned construction delays.

Variance Process

Under Section 120.542, of the Florida Statutes, the DEP may grant a variance when the person subject to a rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means, or when application of a rule would create a substantial hardship or violate principles of fairness.  A variance issued under Section 120.542, F.S., may be issued for an indefinite period.

Summary of Applicable Rules

The DEP began rulemaking in January of 2007 to establish statewide requirements for new bulk gasoline plants pursuant to proposed new Rule 62-296.418, F.A.C.  Bulk gasoline plants which began operation on or after August 1, 2007, would be required to install and operate vapor collection and control systems on their loading racks.  The rule became effective on May 9, 2007, and was submitted to EPA as a proposed SIP revision (number 2007-02) on May 31, 2007.  EPA approved the SIP revision, effective July 1, 2009.

Variance Determination

The DEP has determined that Combs Oil Company has demonstrated that principles of fairness would be violated based on the circumstances as outlined above which delayed the planned relocation of the facility and were beyond control of the company.  The company would not have been required to install and operate a vapor collection and control system on the loading racks at its relocated facility, if the facility had been operating at the new location prior to August 1, 2007.  Therefore, the DEP issued an Order Granting Variance to Combs Oil Company on August 20, 2008, relieving the company from the requirements of Rule 62-296.418(2)(b)2., F.A.C., for is proposed new facility.  The variance applies for an indefinite time period.

Since the SIP revision incorporating Rule 62-296.418, F.A.C., has been formally approved by EPA, the department is requesting approval of this variance as a revision to Florida's SIP.

Noninterference Demonstration
Section 110(l) of the Clean Air Act requires that SIP revisions must not interfere with any applicable requirement concerning attainment and reasonable further progress.   The relocated Combs Oil facility is located in Collier County in Southwest Florida.  Collier County has never been designated nonattainment for any air pollutant and, thus, is not subject to any reasonable further progress requirements.  Air quality monitoring is currently available in the county for the pollutants ozone and particles less than 2.5 micrometers diameter (PM2.5).  The appendix to this Executive Summary provides a comparison of the Collier County data in relation to the National Ambient Air Quality Standards for both ozone and PM2.5.  Both pollutants are well within the compliance levels defined for each.
The proposed SIP revision involves emissions of volatile organic compounds (VOC), a precursor to ozone and potentially PM2.5 (i.e., pollutants secondarily formed in the atmosphere from emissions of VOC).  As a result of the time involved in the chemical and physical transformations of the precursor emissions, the primary impact of the source cannot be explicitly determined but can be evaluated in terms of its addition to the county and regional emissions from all sources in this area. Table 1 shows the amount of VOC emissions in Collier County taken from the 2005 National Emissions Inventory.  While emissions have changed some from 2005, most of these changes are small.  No large new sources have been identified that would have significantly increased VOC emissions in the county.  As such, the 2005 inventory is representative of current conditions.  
The proposed source is currently operating in the county and is simply moving a relatively short distance (1.6 miles) within the same general area.  Emissions of VOC from this source, including increased storage capacity at the new location, are estimated to be less than 3 tons per year  -  nearly negligible in comparison to the county total of 33,945 tons per year.  Since ozone concentration levels are currently well below the ambient air quality standard of 0.075 parts per million, and emissions of VOC will not increase as a result of the relocation of this source, the DEP has reasonable assurance that issuance of the variance will not impact county ozone concentrations.  Similarly for PM2.5, the DEP has reasonable assurance that concentration levels in the county will not be affected.     
Table 1  -  Collier County 2005 VOC Emissions (tons per year) 
                                  Description
                                   Pollutant
                            Annual Emissions (tons)
FUEL COMB. ELEC. UTIL.
VOC
                                                                              0
FUEL COMB. INDUSTRIAL
VOC
                                                                              7
FUEL COMB. OTHER
VOC
                                                                             85
CHEMICAL & ALLIED PRODUCT MFG
VOC
                                                                              1
PETROLEUM & RELATED INDUSTRIES
VOC
                                                                             16
OTHER INDUSTRIAL PROCESSES
VOC
                                                                             85
SOLVENT UTILIZATION
VOC
                                                                          3,629
STORAGE & TRANSPORT
VOC
                                                                          2,171
WASTE DISPOSAL & RECYCLING
VOC
                                                                            171
HIGHWAY VEHICLES
VOC
                                                                          6,920
OFF-HIGHWAY
VOC
                                                                          5,644
MISCELLANEOUS
VOC
                                                                         15,215
TOTAL

                                                                         33,945
Source: U.S. Environmental Protection Agency 2005 National Emission Inventory
Response to Public and EPA Comments

No comments on the proposed SIP revision were received from the public.  Written comments were received from EPA Region 4.  They are repeated below, along with the DEP's response.

EPA Comments
      
   1. The submittal does not clearly state the length of the variance from Florida Rule 62-296.418(2)(b)2.  
   
   2. If the variance is approved by EPA, it is unclear what rule the company would have to comply with in the interim period of the variance.
   
   3. The State of Florida cites Section 120.542 of the Florida Statutes as the mechanism for allowing the variance due to fairness to a source who could not comply because of construction delays and procurement problems due to extreme weather (i.e., hurricanes).  As states in the submittal, the Florida citation for a variance does not exist in the federal version of Florida SIP.  

   4. A 110(l) demonstration is required for this submittal.  However, such a demonstration was not presented.  It is not clear what pollutants that are being affected while the Combs Oil Company does not comply with Rule 62-296.418(2)(b)2.  It is not clear which EPA National Ambient Air Quality Standard (NAAQS) would be impacted by the variance.  It is not stated if the affected county is in compliance with the applicable NAAQS that has the affected emissions as precursors.

DEP Response

   1.  The Order Granting Variance from Rule 62-296.418(2)(b)2., F.A.C., was issued in accordance with Section 120.542, F.S., and applies indefinitely.
      
   2. The variance allows the proposed new Combs Oil bulk gasoline plant to operate under the same requirements as the company's existing plant, both located in Collier County.  There are no Florida regulations that apply to operation of existing bulk gasoline plants in Collier County.  EPA requirements pursuant to 40 CFR Part 63, Subpart BBBBBB, National Emission Standards for Hazardous Air Pollutants for Source Category: Gasoline Distribution Bulk Terminals, Bulk Plants and Pipeline Facilities, would apply.  40 CFR Part 63, Subpart BBBBBB, simply requires the use of submerged fill for bulk gasoline plants.  It does not require installation of a vapor control system on the loading racks, as would Rule 62-296.418(2)(b)2., F.A.C., but for the variance.   
      
   3. DEP is not authorized under the SIP to issue any variance or waiver from a SIP-approved rule except through a SIP change in accordance with the procedures of 40 CFR Part 51.  In addition, section 120.542(1), Florida Statutes, does not authorize agencies to grant variances under federally approved programs, except when the variance is also approved by the appropriate federal agency.  Therefore, Combs Oil Company cannot rely on this variance under either state or federal law until EPA approves it into Florida's SIP.

   4. A section 110(l) demonstration is included as part of this Executive Summary.
      
Appendix:  Collier County Comparison to National Ambient Air Quality Standards 
                                       
                                       
                         Violation of Standards Report
                                 2002 to 2008 

                                   Criteria
                                     Site
                                   Parameter
                                   Interval
                                   L0210004
                                      O3
                                     001h
                        Report Created:07/07/2009 12:02
                        Ozone (44201)    Units: ppm
Site:L0210004 - Laurel Oak Elementary     County:Collier     AQS Monitor ID:12-021-0004-44201-1
                                     Year
                           Required
Monitoring Days
                              Valid Days
Measured
                     Ranked Daily Maximum 8-Hour Averages
                          Days with Max Over 0.075ppm
                                 Design Value



                                     1[st]
                                     2[nd]
                                     3[rd]
                                     4[th]


                                     2002
                                      365
                                                                           365 
(100%)
                                                                           .066
(04/05)
                                                                           .063
(04/06)
                                                                           .063
(04/24)
                                                                           .061
(05/24)
                                                                              0

                                     2003
                                      365
                                                                           334 
(92%)
                                                                           .077
(04/23)
                                                                           .075
(10/23)
                                                                           .073
(04/13)
                                                                           .073
(04/14)
                                                                              1

                                     2004
                                      366
                                                                           354 
(97%)
                                                                           .077
(04/05)
                                                                           .075
(04/06)
                                                                           .072
(04/04)
                                                                           .071
(03/09)
                                                                              1
                                                                          0.068
                                     2005
                                      365
                                                                           355 
(97%)
                                                                           .075
(09/16)
                                                                           .074
(09/15)
                                                                           .068
(09/12)
                                                                           .065
(04/14)
                                                                              0
                                                                          0.069
                                     2006
                                      365
                                                                           362 
(99%)
                                                                           .076
(04/06)
                                                                           .072
(06/06)
                                                                           .070
(05/12)
                                                                           .070
(04/28)
                                                                              1
                                                                          0.068
                                     2007
                                      365
                                                                           361 
(99%)
                                                                           .075
(05/01)
                                                                           .069
(04/29)
                                                                           .069
(05/02)
                                                                           .069
(05/08)
                                                                              0
                                                                          0.068
                                     2008
                                      366
                                                                           354 
(97%)
                                                                           .075
(04/22)
                                                                           .074
(05/13)
                                                                           .071
(05/06)
                                                                           .070
(04/23)
                                                                              0
                                                                          0.069
The 8-hour primary and secondary ozone ambient air quality standards are met at an ambient air quality monitoring site when the design value (3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration) is less than or equal to 0.075 ppm
                                       
                         Violation of Standards Report
                                 2004 to 2008 

                                   Criteria
                                     Site
                                   Parameter
                                   Interval
                                   L0210004
                                    PM25C_3
                                     001h
                        Report Created:07/07/2009 11:59
        PM2.5 (88101, 88500, 88501, 88502, 88503)   Units: ug/m[3]
Site:L0210004 - Laurel Oak Elementary     County:Collier     AQS Monitor ID:12-021-0004-88501-3
                                     Year
               Quarterly Averages (#Valid 24-hour Observations)
                             Ranked 24hr Averages
                               98[th]
Percentile
                            Weighted
Annual Average
                       3-Year 98[th]
Percentile
Average
                             3-Year
Annual
Average

                                 1[st] Quarter
                                 2[nd] Quarter
                                 3[rd] Quarter
                                 4[th] Quarter
                                     1[st]
                                     2[nd]
                                     3[rd]




                                     2004
                                                                          0.00*
(0)
                                                                          0.00*
(0)
                                                                          0.00*
(0)
                                                                          0.00*
(0)










                                     2005
                                                                         13.21*
(28)
                                                                          10.15
(91)
                                                                          10.32
(90)
                                                                           9.44
(89)
                                                                           43.0
(09/16)
                                                                           29.4
(09/15)
                                                                           23.9
(03/26)
                                                                           21.3
                                                                         10.78*


                                     2006
                                                                         10.42*
(67)
                                                                          12.00
(91)
                                                                           9.87
(90)
                                                                           9.34
(92)
                                                                           29.1
(07/30)
                                                                           28.1
(07/31)
                                                                           25.4
(08/01)
                                                                           22.4
                                                                         10.40*


                                     2007
                                                                           9.95
(89)
                                                                          12.27
(90)
                                                                           8.56
(92)
                                                                           7.92
(92)
                                                                           50.3
(05/08)
                                                                           33.4
(05/11)
                                                                           30.8
(05/12)
                                                                           23.1
                                                                           9.67
                                                                          22.2*
                                                                         10.28*
                                     2008
                                                                           8.60
(91)
                                                                          10.17
(91)
                                                                           8.50
(90)
                                                                           7.24
(84)
                                                                           28.5
(08/13)
                                                                           21.9
(06/28)
                                                                           20.6
(05/11)
                                                                           18.1
                                                                           8.62
                                                                          21.2*
                                                                          9.57*
* There was insufficient data to produce a valid average.
The national ambient air quality standards for PM 2.5 are: (1) 35 micrograms per cubic meter for a 24-hour average concentration and (2) 15 micrograms per cubic meter for an annual mean concentration. The 24-hour standard is attained when the 3-year average of the annual 98th percentile values is less than or equal to the 24-hour standard. The annual standard is attained when the 3-year of the annual means is less than or equal to the annual standard.



               Response to 40 CFR Part 51, Appendix V, Criteria


               RESPONSE TO 40 CFR PART 51, APPENDIX V, CRITERIA
Administrative Materials
   
   (a)  A copy of the letter of submittal, signed by the Director of the Division of Air Resource Management, Florida Department of Environmental Protection (DEP), on behalf of the Governor of the State of Florida, is located at the front of this document.
   
   (b)  This proposed revision to Florida's SIP consists of an Order Granting Variance issued by DEP to Combs Oil Company on August 20, 2008.
   
   (c)  The department has the necessary legal authority to adopt and implement this proposed revision to Florida's SIP.  Pertinent excerpts of the current Florida Statutes may be found in the "Statutory Authority" section of this submittal.
   
   (d)  A copy of the document (Order Granting Variance) proposed for incorporation into the SIP may be found in the section, "Material to be Incorporated into SIP."
   
   (e)  The department has complied with all state procedural requirements in adoption of the material to be incorporated into the SIP.  Copies of the required notices are included in the section, "State Administrative Procedures."  A copy of the final Order Granting Variance and certificate of service is included in the section, "Material to be Incorporated into SIP."
   
   (f)  The department has complied with all public hearing requirements of 40 CFR 51.102.  Copies of all relevant notices, affidavits of publication and notification letters may be found in the "Public Hearing" section of this submittal.  Materials made available for public inspection during the public notice period may be found in the "Materials Included in Public Information Packages and pre-hearing Submittal" section of this submittal.
   
   (g)  Certification of compliance with all state and federal public notice and hearing requirements is provided in the letter of submittal.
   
   (h)  The only comments received during the public notice period on this proposed SIP revision were from the U.S. Environmental Protection Agency (EPA), Region 4.  These comments may be found in section, "Public Comments."  The DEP's response to EPA's comments is found in the "Executive Summary."
   
Technical Support

   (a)  This SIP revision addresses the emissions of volatile organic compounds (VOC).
   
   (b)  This SIP revision only applies to the proposed Combs Oil Company bulk gasoline plant located at 76 Industrial Boulevard in Naples, Florida.  Collier County is designated attainment or unclassifiable for all pollutants.
   
   (c) No change in the actual emissions of VOC is expected as a result of this SIP revision.
   
   (d) A section 110(l) demonstration may be found in the "Executive Summary."
   
   (e) through (i)  Not applicable.
     

                              Statutory Authority
                              Statutory Authority
                                       
                Sections §§ 120.542, 403.061Florida Statutes
                                       





120.542, F.S.
                                  CHAPTER 120
                         ADMINISTRATIVE PROCEDURES ACT
                                       
120.542  Variances and waivers.-- 
(1)  Strict application of uniformly applicable rule requirements can lead to unreasonable, unfair, and unintended results in particular instances. The Legislature finds that it is appropriate in such cases to adopt a procedure for agencies to provide relief to persons subject to regulation. A public employee is not a person subject to regulation under this section for the purpose of petitioning for a variance or waiver to a rule that affects that public employee in his or her capacity as a public employee. Agencies are authorized to grant variances and waivers to requirements of their rules consistent with this section and with rules adopted under the authority of this section. An agency may limit the duration of any grant of a variance or waiver or otherwise impose conditions on the grant only to the extent necessary for the purpose of the underlying statute to be achieved. This section does not authorize agencies to grant variances or waivers to statutes or to rules required by the Federal Government for the agency's implementation or retention of any federally approved or delegated program, except as allowed by the program or when the variance or waiver is also approved by the appropriate agency of the Federal Government. This section is supplemental to, and does not abrogate, the variance and waiver provisions in any other statute. 
(2)  Variances and waivers shall be granted when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or would violate principles of fairness. For purposes of this section, "substantial hardship" means a demonstrated economic, technological, legal, or other type of hardship to the person requesting the variance or waiver. For purposes of this section, "principles of fairness" are violated when the literal application of a rule affects a particular person in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule. 
(3)  The Governor and Cabinet, sitting as the Administration Commission, shall adopt uniform rules of procedure pursuant to the requirements of s. 120.54(5) establishing procedures for granting or denying petitions for variances and waivers. The uniform rules shall include procedures for the granting, denying, or revoking of emergency and temporary variances and waivers. Such provisions may provide for expedited timeframes, waiver of or limited public notice, and limitations on comments on the petition in the case of such temporary or emergency variances and waivers. 
(4)  Agencies shall advise persons of the remedies available through this section and shall provide copies of this section, the uniform rules on variances and waivers, and, if requested, the underlying statute, to persons who inquire about the possibility of relief from rule requirements. 
(5)  A person who is subject to regulation by an agency rule may file a petition with that agency, with a copy to the committee, requesting a variance or waiver from the agency's rule. In addition to any requirements mandated by the uniform rules, each petition shall specify: 
(a)  The rule from which a variance or waiver is requested. 
(b)  The type of action requested. 
(c)  The specific facts that would justify a waiver or variance for the petitioner. 
(d)  The reason why the variance or the waiver requested would serve the purposes of the underlying statute. 
(6)  Within 15 days after receipt of a petition for variance or waiver, an agency shall provide notice of the petition to the Department of State, which shall publish notice of the petition in the first available issue of the Florida Administrative Weekly. The notice shall contain the name of the petitioner, the date the petition was filed, the rule number and nature of the rule from which variance or waiver is sought, and an explanation of how a copy of the petition can be obtained. The uniform rules shall provide a means for interested persons to provide comments on the petition. 
(7)  Except for requests for emergency variances or waivers, within 30 days after receipt of a petition for a variance or waiver, an agency shall review the petition and request submittal of all additional information that the agency is permitted by this section to require. Within 30 days after receipt of such additional information, the agency shall review it and may request only that information needed to clarify the additional information or to answer new questions raised by or directly related to the additional information. If the petitioner asserts that any request for additional information is not authorized by law or by rule of the affected agency, the agency shall proceed, at the petitioner's written request, to process the petition. 
(8)  An agency shall grant or deny a petition for variance or waiver within 90 days after receipt of the original petition, the last item of timely requested additional material, or the petitioner's written request to finish processing the petition. A petition not granted or denied within 90 days after receipt of a completed petition is deemed approved. A copy of the order granting or denying the petition shall be filed with the committee and shall contain a statement of the relevant facts and reasons supporting the agency's action. The agency shall provide notice of the disposition of the petition to the Department of State, which shall publish the notice in the next available issue of the Florida Administrative Weekly. The notice shall contain the name of the petitioner, the date the petition was filed, the rule number and nature of the rule from which the waiver or variance is sought, a reference to the place and date of publication of the notice of the petition, the date of the order denying or approving the variance or waiver, the general basis for the agency decision, and an explanation of how a copy of the order can be obtained. The agency's decision to grant or deny the petition shall be supported by competent substantial evidence and is subject to ss. 120.569 and 120.57. Any proceeding pursuant to ss. 120.569 and 120.57 in regard to a variance or waiver shall be limited to the agency action on the request for the variance or waiver, except that a proceeding in regard to a variance or waiver may be consolidated with any other proceeding authorized by this chapter. 
(9)  Each agency shall maintain a record of the type and disposition of each petition, including temporary or emergency variances and waivers, filed pursuant to this section. On October 1 of each year, each agency shall file a report with the Governor, the President of the Senate, and the Speaker of the House of Representatives listing the number of petitions filed requesting variances to each agency rule, the number of petitions filed requesting waivers to each agency rule, and the disposition of all petitions. Temporary or emergency variances and waivers, and the reasons for granting or denying temporary or emergency variances and waivers, shall be identified separately from other waivers and variances. 
History.--s. 12, ch. 96-159; s. 5, ch. 97-176. 
                                 CHAPTER 403 
                             ENVIRONMENTAL CONTROL
                                       
                                    PART I
                   POLLUTION CONTROL (ss. 403.011-403.4154)

403.061, F.S.  Department; powers and duties.--The department shall have the power and the duty to control and prohibit pollution of air and water in accordance with the law and rules adopted and promulgated by it and, for this purpose, to: 
(1)  Approve and promulgate current and long-range plans developed to provide for air and water quality control and pollution abatement. 
(2)  Hire only such employees as may be necessary to effectuate the responsibilities of the department. 
(3)  Utilize the facilities and personnel of other state agencies, including the Department of Health, and delegate to any such agency any duties and functions as the department may deem necessary to carry out the purposes of this act. 
(4)  Secure necessary scientific, technical, research, administrative, and operational services by interagency agreement, by contract, or otherwise. All state agencies, upon direction of the department, shall make these services and facilities available. 
(5)  Accept state appropriations and loans and grants from the Federal Government and from other sources, public or private, which loans and grants shall not be expended for other than the purposes of this act. 
(6)  Exercise general supervision of the administration and enforcement of the laws, rules, and regulations pertaining to air and water pollution. 
(7)  Adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this act. Any rule adopted pursuant to this act shall be consistent with the provisions of federal law, if any, relating to control of emissions from motor vehicles, effluent limitations, pretreatment requirements, or standards of performance. No county, municipality, or political subdivision shall adopt or enforce any local ordinance, special law, or local regulation requiring the installation of Stage II vapor recovery systems, as currently defined by department rule, unless such county, municipality, or political subdivision is or has been in the past designated by federal regulation as a moderate, serious, or severe ozone nonattainment area. Rules adopted pursuant to this act shall not require dischargers of waste into waters of the state to improve natural background conditions. Discharges from steam electric generating plants existing or licensed under this chapter on July 1, 1984, shall not be required to be treated to a greater extent than may be necessary to assure that the quality of nonthermal components of discharges from nonrecirculated cooling water systems is as high as the quality of the makeup waters; that the quality of nonthermal components of discharges from recirculated cooling water systems is no lower than is allowed for blowdown from such systems; or that the quality of noncooling system discharges which receive makeup water from a receiving body of water which does not meet applicable department water quality standards is as high as the quality of the receiving body of water. The department may not adopt standards more stringent than federal regulations, except as provided in s. 403.804. 
(8)  Issue such orders as are necessary to effectuate the control of air and water pollution and enforce the same by all appropriate administrative and judicial proceedings. 
(9)  Adopt a comprehensive program for the prevention, control, and abatement of pollution of the air and waters of the state, and from time to time review and modify such program as necessary. 
(10)  Develop a comprehensive program for the prevention, abatement, and control of the pollution of the waters of the state. In order to effect this purpose, a grouping of the waters into classes may be made in accordance with the present and future most beneficial uses. Such classifications may from time to time be altered or modified. However, before any such classification is made, or any modification made thereto, public hearings shall be held by the department. 
(11)  Establish ambient air quality and water quality standards for the state as a whole or for any part thereof, and also standards for the abatement of excessive and unnecessary noise. The department is authorized to establish reasonable zones of mixing for discharges into waters. 
(a)  When a receiving body of water fails to meet a water quality standard for pollutants set forth in department rules, a steam electric generating plant discharge of pollutants that is existing or licensed under this chapter on July 1, 1984, may nevertheless be granted a mixing zone, provided that: 
1.  The standard would not be met in the water body in the absence of the discharge; 
2.  The discharge is in compliance with all applicable technology-based effluent limitations; 
3.  The discharge does not cause a measurable increase in the degree of noncompliance with the standard at the boundary of the mixing zone; and 
4.  The discharge otherwise complies with the mixing zone provisions specified in department rules. 
(b)  No mixing zone for point source discharges shall be permitted in Outstanding Florida Waters except for: 
1.  Sources that have received permits from the department prior to April 1, 1982, or the date of designation, whichever is later; 
2.  Blowdown from new power plants certified pursuant to the Florida Electrical Power Plant Siting Act; 
3.  Discharges of water necessary for water management purposes which have been approved by the governing board of a water management district and, if required by law, by the secretary; and 
4.  The discharge of demineralization concentrate which has been determined permittable under s. 403.0882 and which meets the specific provisions of s. 403.0882(4)(a) and (b), if the proposed discharge is clearly in the public interest. 
(c)  The department, by rule, shall establish water quality criteria for wetlands which criteria give appropriate recognition to the water quality of such wetlands in their natural state. 

Nothing in this act shall be construed to invalidate any existing department rule relating to mixing zones. The department shall cooperate with the Department of Highway Safety and Motor Vehicles in the development of regulations required by s. 316.272(1). 
(12)(a)  Cause field studies to be made and samples to be taken out of the air and from the waters of the state periodically and in a logical geographic manner so as to determine the levels of air quality of the air and water quality of the waters of the state. 
(b)  Determine the source of the pollution whenever a study is made or a sample collected which proves to be below the air or water quality standard set for air or water. 
(13)  Require persons engaged in operations which may result in pollution to file reports which may contain information relating to locations, size of outlet, height of outlet, rate and period of emission, and composition and concentration of effluent and such other information as the department shall prescribe to be filed relative to pollution. 
(14)  Establish a permit system whereby a permit may be required for the operation, construction, or expansion of any installation that may be a source of air or water pollution and provide for the issuance and revocation of such permits and for the posting of an appropriate bond to operate. 
(a)  Notwithstanding any other provision of this chapter, the department may authorize, by rule, the Department of Transportation to perform any activity requiring a permit from the department covered by this chapter, upon certification by the Department of Transportation that it will meet all requirements imposed by statute, rule, or standard for environmental control and protection as such statute, rule, or standard applies to a governmental program. To this end, the department may accept such certification of compliance for programs of the Department of Transportation, may conduct investigations for compliance, and, if a violation is found to exist, may take all necessary enforcement action pertaining thereto, including, but not limited to, the revocation of certification. The authorization shall be by rule of the department, shall be limited to the maintenance, repair, or replacement of existing structures, and shall be conditioned upon compliance by the Department of Transportation with specific guidelines or requirements which are set forth in the formal acceptance and deemed necessary by the department to assure future compliance with this chapter and applicable department rules. The failure of the Department of Transportation to comply with any provision of the written acceptance shall constitute grounds for its revocation by the department. 
(b)  The provisions of chapter 120 shall be accorded any person when substantial interests will be affected by an activity proposed to be conducted by the Department of Transportation pursuant to its certification and the acceptance of the department. If a proceeding is conducted pursuant to ss. 120.569 and 120.57, the department may intervene as a party. Should an administrative law judge of the Division of Administrative Hearings of the Department of Management Services submit a recommended order pursuant to ss. 120.569 and 120.57, the department shall issue a final department order adopting, rejecting, or modifying the recommended order pursuant to such action. 
(15)  Consult with any person proposing to construct, install, or otherwise acquire a pollution control device or system concerning the efficacy of such device or system, or the pollution problem which may be related to the source, device, or system. Nothing in any such consultation shall be construed to relieve any person from compliance with this act, rules and regulations of the department, or any other provision of law. 
(16)  Encourage voluntary cooperation by persons and affected groups to achieve the purposes of this act. 
(17)  Encourage local units of government to handle pollution problems within their respective jurisdictions on a cooperative basis and provide technical and consultative assistance therefor. 
(18)  Encourage and conduct studies, investigations, and research relating to pollution and its causes, effects, prevention, abatement, and control. 
(19)  Make a continuing study of the effects of the emission of air contaminants from motor vehicles on the quality of the outdoor atmosphere of this state and the several parts thereof and make recommendations to appropriate public and private bodies with respect thereto. 
(20)  Collect and disseminate information and conduct educational and training programs relating to pollution. 
(21)  Advise, consult, cooperate, and enter into agreements with other agencies of the state, the Federal Government, other states, interstate agencies, groups, political subdivisions, and industries affected by the provisions of this act, rules, or policies of the department. However, the secretary of the department shall not enter into any interstate agreement relating to the transport of ozone precursor pollutants, nor modify its rules based upon a recommendation from the Ozone Transport Assessment Group or any other such organization that is not an official subdivision of the United States Environmental Protection Agency but which studies issues related to the transport of ozone precursor pollutants, without prior review and specific legislative approval. 
(22)  Adopt, modify, and repeal rules governing the specifications, construction, and maintenance of industrial reservoirs, dams, and containers which store or retain industrial wastes of a deleterious nature. 
(23)  Adopt rules and regulations to ensure that no detergents are sold in Florida after December 31, 1972, which are reasonably found to have a harmful or deleterious effect on human health or on the environment. Any regulations adopted pursuant to this subsection shall apply statewide. Subsequent to the promulgation of such rules and regulations, no county, municipality, or other local political subdivision shall adopt or enforce any local ordinance, special law, or local regulation governing detergents which is less stringent than state law or regulation. Regulations, ordinances, or special acts adopted by a county or municipality governing detergents shall be subject to approval by the department, except that regulations, ordinances, or special acts adopted by any county or municipality with a local pollution control program approved pursuant to s. 403.182 shall be approved as an element of the local pollution control program. 
(24)(a)  Establish a permit system to provide for spoil site approval, as may be requested and required by local governmental agencies as defined in [1]s. 403.1822(3), or mosquito control districts as defined in s. 388.011(5), to facilitate these agencies in providing spoil sites for the deposit of spoil from maintenance dredging of navigation channels, port harbors, turning basins, and harbor berths, as part of a federal project, when the agency is acting as sponsor of a contemplated dredge and fill operation involving an established navigation channel, harbor, turning basin, or harbor berth. A spoil site approval granted to the agency shall be granted for a period of 10 to 25 years when such site is not inconsistent with an adopted local governmental comprehensive plan and the requirements of this chapter. The department shall periodically review each permit to determine compliance with the terms and conditions of the permit. Such review shall be conducted at least once every 10 years. 
(b)  This subsection applies only to those maintenance dredging operations permitted after July 1, 1980, where the United States Army Corps of Engineers is the prime dredge and fill agent and the local governmental agency is acting as sponsor for the operation, and does not require the redesignation of currently approved spoil sites under such previous operations. 
(25)  Establish and administer a program for the restoration and preservation of bodies of water within the state. The department shall have the power to acquire lands, to cooperate with other applicable state or local agencies to enhance existing public access to such bodies of water, and to adopt all rules necessary to accomplish this purpose. 
(26)(a)  Develop standards and criteria for waters used for deepwater shipping which standards and criteria consider existing water quality; appropriate mixing zones and other requirements for maintenance dredging in previously constructed deepwater navigation channels, port harbors, turning basins, or harbor berths; and appropriate mixing zones for disposal of spoil material from dredging and, where necessary, develop a separate classification for such waters. Such classification, standards, and criteria shall recognize that the present dedicated use of these waters is for deepwater commercial navigation. 
(b)  The provisions of paragraph (a) apply only to the port waters, spoil disposal sites, port harbors, navigation channels, turning basins, and harbor berths used for deepwater commercial navigation in the ports of Jacksonville, Tampa, Port Everglades, Miami, Port Canaveral, Ft. Pierce, Palm Beach, Port Manatee, Port St. Joe, Panama City, St. Petersburg, Port Bartow, Florida Power Corporation's Crystal River Canal, Boca Grande, Green Cove Springs, and Pensacola. 
(27)  Establish rules which provide for a special category of water bodies within the state, to be referred to as "Outstanding Florida Waters," which water bodies shall be worthy of special protection because of their natural attributes. Nothing in this subsection shall affect any existing rule of the department. 
(28)  Perform any other act necessary to control and prohibit air and water pollution, and to delegate any of its responsibilities, authority, and powers, other than rulemaking powers, to any state agency now or hereinafter established. 
(29)  Adopt by rule special criteria to protect Class II shellfish harvesting waters. Rules previously adopted by the department in [2]rule 17-4.28(8)(a), Florida Administrative Code, are hereby ratified and determined to be a valid exercise of delegated legislative authority and shall remain in effect unless amended by the Environmental Regulation Commission. 
(30)  Establish requirements by rule that reasonably protect the public health and welfare from electric and magnetic fields associated with existing 230 kV or greater electrical transmission lines, new 230 kV and greater electrical transmission lines for which an application for certification under the Florida Electric Transmission Line Siting Act, ss. 403.52-403.5365, is not filed, new or existing electrical transmission or distribution lines with voltage less than 230 kV, and substation facilities. Notwithstanding any other provision in this chapter or any other law of this state or political subdivision thereof, the department shall have exclusive jurisdiction in the regulation of electric and magnetic fields associated with all electrical transmission and distribution lines and substation facilities. However, nothing herein shall be construed as superseding or repealing the provisions of s. 403.523(1) and (10). 
(31)  Adopt rules necessary to obtain approval from the United States Environmental Protection Agency to administer the Federal National Pollution Discharge Elimination System (NPDES) permitting program in Florida under ss. 318, 402, and 405 of the Federal Clean Water Act, Pub. L. No. 92-500, as amended. This authority shall be implemented consistent with the provisions of part II, which shall be applicable to facilities certified thereunder. The department shall establish all rules, standards, and requirements that regulate the discharge of pollutants into waters of the United States as defined by and in a manner consistent with federal regulations; provided, however, that the department may adopt a standard that is stricter or more stringent than one set by the United States Environmental Protection Agency if approved by the Governor and Cabinet in accordance with the procedures of s. 403.804(2). 
(32)  Coordinate the state's stormwater program. 
(33)  Establish and administer programs providing appropriate incentives that have the following goals, in order of importance: 
(a)  Preventing and reducing pollution at its source. 
(b)  Recycling contaminants that have the potential to pollute. 
(c)  Treating and neutralizing contaminants that are difficult to recycle. 
(d)  Disposing of contaminants only after other options have been used to the greatest extent practicable. 
(34)  Adopt rules which may include stricter permitting and enforcement provisions within Outstanding Florida Waters, aquatic preserves, areas of critical state concern, and areas subject to chapter 380 resource management plans adopted by rule by the Administration Commission, when the plans for an area include waters that are particularly identified as needing additional protection, which provisions are not inconsistent with the applicable rules adopted for the management of such areas by the department and the Governor and Cabinet. 
(35)  Exercise the duties, powers, and responsibilities required of the state under the federal Clean Air Act, 42 U.S.C. ss. 7401 et seq. The department shall implement the programs required under that act in conjunction with its other powers and duties. Nothing in this subsection shall be construed to repeal or supersede any of the department's existing rules. 
(36)  Establish statewide standards for persons engaged in determining visible air emissions and to require these persons to obtain training to meet such standards. 
(37)  Enter into a memorandum of agreement with the Florida Ports Council which provides a supplemental permitting process for the issuance of a joint coastal permit pursuant to s. 161.055 or environmental resource permit pursuant to part IV of chapter 373, to a port listed in s. 311.09(1), for maintenance dredging and the management of dredged materials from maintenance dredging of all navigation channels, port harbors, turning basins, and harbor berths. Such permit shall be issued for a period of 5 years and shall be annually extended for an additional year if the port is in compliance with all permit conditions at the time of extension. The department is authorized to adopt rules to implement this subsection. 
(38)  Enter into a memorandum of agreement with the Florida Ports Council which provides a supplemental permitting process for the issuance of a conceptual joint coastal permit pursuant to s. 161.055 or environmental resource permit pursuant to part IV of chapter 373, to a port listed in s. 311.09(1), for dredging and the management of materials from dredging and for other related activities necessary for development, including the expansion of navigation channels, port harbors, turning basins, harbor berths, and associated facilities. Such permit shall be issued for a period of up to 15 years. The department is authorized to adopt rules to implement this subsection. 
(39)  Enter into a memorandum of agreement with the Florida Inland Navigation District and the West Coast Inland Navigation District, or their successor agencies, to provide a supplemental process for issuance of joint coastal permits pursuant to s. 161.055 or environmental resource permits pursuant to part IV of chapter 373 for regional waterway management activities, including, but not limited to, maintenance dredging, spoil disposal, public recreation, inlet management, beach nourishment, and environmental protection directly related to public navigation and the construction, maintenance, and operation of Florida's inland waterways. The department is authorized to adopt rules to implement this subsection. 
(40)  Serve as the state's single point of contact for performing the responsibilities described in Presidential Executive Order 12372, including administration and operation of the Florida State Clearinghouse. The Florida State Clearinghouse shall be responsible for coordinating interagency reviews of the following: federal activities and actions subject to the federal consistency requirements of s. 307 of the Coastal Zone Management Act; documents prepared pursuant to the National Environmental Policy Act, 42 U.S.C. ss. 4321 et seq., and the Outer Continental Shelf Lands Act, 43 U.S.C. ss. 1331 et seq.; applications for federal funding pursuant to s. 216.212; and other notices and information regarding federal activities in the state, as appropriate. The Florida State Clearinghouse shall ensure that state agency comments and recommendations on the environmental, social, and economic impact of proposed federal actions are communicated to federal agencies, applicants, local governments, and interested parties. 

The department shall implement such programs in conjunction with its other powers and duties and shall place special emphasis on reducing and eliminating contamination that presents a threat to humans, animals or plants, or to the environment. 
History.--s. 7, ch. 67-436; ss. 19, 26, 35, ch. 69-106; s. 1, ch. 71-35; s. 2, ch. 71-36; s. 3, ch. 72-39; s. 1, ch. 72-53; s. 113, ch. 73-333; s. 3, ch. 74-133; s. 1, ch. 77-21; s. 137, ch. 77-104; s. 268, ch. 77-147; s. 2, ch. 77-369; s. 14, ch. 78-95; s. 2, ch. 78-437; s. 73, ch. 79-65; s. 1, ch. 79-130; s. 96, ch. 79-164; s. 160, ch. 79-400; s. 1, ch. 80-66; ss. 2, 5, ch. 81-228; s. 5, ch. 82-27; s. 1, ch. 82-79; s. 2, ch. 82-80; s. 66, ch. 83-310; s. 5, ch. 84-79; s. 1, ch. 84-338; s. 1, ch. 85-296; s. 5, ch. 85-345; s. 5, ch. 86-173; s. 52, ch. 86-186; s. 22, ch. 88-393; s. 31, ch. 89-279; s. 54, ch. 90-331; s. 24, ch. 91-305; s. 23, ch. 92-203; s. 127, ch. 92-279; s. 55, ch. 92-326; s. 36, ch. 93-213; s. 5, ch. 94-311; s. 1, ch. 94-321; s. 356, ch. 94-356; s. 55, ch. 95-144; s. 144, ch. 96-320; s. 8, ch. 96-370; s. 129, ch. 96-410; s. 26, ch. 97-160; s. 100, ch. 98-200; s. 3, ch. 98-326; s. 155, ch. 99-8; s. 2, ch. 2001-188; s. 1, ch. 2001-224; s. 8, ch. 2002-275; s. 68, ch. 2006-230. 
[1]Note.--Repealed by s. 18, ch. 2001-270. 
[2]Note.--Transferred to another location. 
 
   

   

                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
       Materials to be Incorporated into State Implementation Plan (SIP)





















                                       




Order Granting Variance (Issued August 20, 2008) 











                                       

                                       
                                Public Hearing
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                Public Hearing







Response to 40 CFR 51.102 Requirements 
                    RESPONSE TO 40 CFR 51.102 REQUIREMENTS
                                       
(a)  The Order Granting Variance comprising this proposed revision to Florida's State Implementation Plan (SIP) was subject to a public hearing held in West Palm Beach, Florida, on October 21, 2008.  The public hearing was originally scheduled for August 19, 2008, but was cancelled due to the impending landfall of Tropical Storm Fay.

(b) through (c)  Not applicable.

(d)(1)  The public hearing was advertised at least 30 days prior to the hearing and held according to the requirements of 40 CFR 51.102.  A copy of the original public notice, cancellation flyer, and second public notice are included in this section along with the publication affidavit from the newspaper in the affected air quality control region.  Also included are copies of the notices of public hearing that appeared in the Florida Administrative Weekly for both the originally scheduled August 19, 2008, and rescheduled October 21, 2008, public meetings.

(d)(2)  The Order Granting Variance was made available for public inspection in the department's South District office.  The memoranda of transmittal are included in this section.

(d)(3)  The Region 4 office of the U.S. Environmental Protection Agency (EPA) was notified at least 30 days in advance of the public hearings and provided with copies of the material to be considered.  The letters of notification are included in this section.

(d)(4)  Not applicable.

(d)(5)  Not applicable.

(e)  The department has retained a tape recording of the public hearing, including a list of attendees.

(f)  Certification that the public hearing was held in accordance with the requirements of 40 CFR 51.102 is included in the letter of submittal.

(g)  Not applicable.





      FAW Notice of August 19, 2008, Public Meeting (40 CFR 51.102 Hearing)

Newspaper Affidavit-Notice of August 19, 2008, Public Hearing
Emergency Cancelation Flyer for August 19, 2008, Meeting due to Tropical Storm Fay (Posted on Door)

FAW Notice of October 21, 2008, Public Meeting (40 CFR 51.102 Hearing) 

Newspaper Affidavit-Notice of October 21, 2008, Public Hearing  

Public Information Package Transmittal Memo to District Office

Pre-hearing Submittal Letter to EPA


                                       
  Materials Included in Public Information Packages and Pre-hearing Submittal
  Materials Included in Public Information Packages and Pre-hearing Submittal

                                       




Text of Newspaper Notice of August 19, 2008, Public Hearing

Text of Newspaper Notice of October 21, 2008, Public Hearing

FAW Notice of August 19, 2008, Public Meeting (40 CFR 51.102 Hearing)
 FAW Notice of October 21, 2008, Public Meeting (40 CFR 51.102 Hearing) 
Public Hearing Agenda - August 19, 2008

Public Hearing Agenda  -  October 21, 2008

Draft Order Granting Variance 

                        State Administrative Procedures



Notice of Receipt of Petition for Variance 



                           Public and EPA Comments 


                                       

                                       

                                       

                                 EPA Comments
                                       
                                       



EPA Comments On Pre-hearing Submittal

