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HomeMy WebLinkAbout2004-128 MM= MM WEPT No . 7001 2510 0001 0820 1150 ;; , , o g 0 `{ RECEIVED JUN 10 2004 0q - l � BEFORE THE STATE OF FLORIDA Central Cist. - ® EP Q 3 A S 3 3 3 8 DEPARTMENT OF ENVIRONMENTAL PROTECTION STATE OF FLORIDA DEPARTMENT ) IN THE OFFICE OF THE OF ENVIRONMENTAL PROTECTION , ) CENTRAL DISTRICT Complainant , ) VSO ) OGC FILE NO . 01 - 1675 INDIAN RIVER COUNTY ) FACILITY ID : FLO166511 , ) Respondent . ) MODIFICATION OF RESOLUTION AGREEMENT TO ALLOW EXTENSIONS OF TIME The State of Florida Department of Environmental Protection ( " Department " ) and Indian River County ( " Respondent " ) having entered into a Resolution Agreement in OGC File No . 01 - 1675 ( " Resolution Agreement " ) to reach settlement of certain matters at issue between the Department and Respondent , and desiring to enter this Modification of the Resolution Agreement ( " Modification " ) to allow the below-described extensions of time , the Department finds and Respondent admits the following : 1 . The below-described extensions of time are appropriate because the Respondent needs more time to evaluate options to obtain a variance for those parameters for which a mixing zone is not available . The Department and Respondent mutually agree , and it is , ORDERED : 2 . The first sentence of Paragraph 8 . A . (3 ) of the Resolution Agreement is modified to substitute 910 days (December 09 , 2004) for 730 days . O : \ANDERSON\CO\DOCS\ircud_hobart park rate .doc 3 . The first sentence of Paragraph 8 . B . ( 1 ) of the Resolution Agreement is modified to substitute 900 days (November 29 , 2004) for 365 days . 4 . The first sentence of Paragraph 8 . B . (2) of the Resolution Agreement is modified to substitute 910 days (December 09 , 2004) for 730 days . 5 . Respondent acknowledged but waives its right to an administrative hearing afforded by Sections 120 . 569 and 120 . 57 , Florida Statutes , on the terms of this Modification . Respondent acknowledges its right to appeal the terms of this Modification pursuant to Section 120 . 68 , Florida Statutes , but waives that right upon signing this Modification . 6 . Persons who are not parties to this Modification but whose substantial interests are affected by this Modification have a right, pursuant to Sections 120 . 569 and 120 . 57 , Florida Statutes , to petition for an administrative hearing on it . The Petition must contain the information set forth below and must be filed (received) at the Department ' s Office of General Counsel , 3900 Commonwealth Boulevard , MS #35 , Tallahassee , Florida 32399-3000 , within 21 days of receipt of this notice . A copy of the Petition must also be mailed at the time of filing to the Central District Office at the following address : 3319 Maguire Boulevard , Suite 232 , Orlando , Florida 32803 -3767 . Failure to file a petition within the 21 days constitutes a waiver of any right such person has to an administrative hearing pursuant to Sections 120 . 569 and 120 . 57 , Florida Statutes . The petition shall contain the following information: (a) The name , address , and telephone number of each petitioner ; the Modification ' s OGC File Number and the county in which the subject matter or activity is located ; (b) A statement of how and when each petitioner received notice of the Modification; Modification 2 OGC File No . 01 - 1675 (c) A statement of how each petitioner ' s substantial interests are affected by the Modification ; (d) A statement of the material facts disputed by petitioner , if any ; (e) A statement of facts which petitioner contends warrant reversal or modification of the Modification; (f) A statement of which rules or statutes petitioner contends require reversal or modification of the Modification; (g) A statement of the relief sought by petitioner , stating precisely the action petitioner wants the Department to take with respect to the Modification . If a petition is filed , the administrative hearing process is designed to formulate agency action . Accordingly , the Department ' s final action may be different from the position taken by it in this Notice . Persons whose substantial interests will be affected by any decision of the Department with regard to the subject Modification have the right to petition to become a parry to the proceeding . The petition must conform to the requirements specified above and be filed (received) within 21 days of receipt of this notice in the Office of General Counsel at the above address of the Department . Failure to petition within the allowed time frame constitutes a waiver of any right such person has to request a hearing under Sections 120 . 569 and 120 . 57 , Florida Statutes , and to participate as a party to this proceeding . Any subsequent intervention will only be at the approval of the presiding officer upon motion filed pursuant to Rule 28 - 106 . 205 , Florida Administrative Code . A person whose substantial interests are affected by the Resolution Agreement may file a timely petition for an administrative hearing under Sections 120 . 569 and 120 . 57 , Florida Statutes , or may choose to pursue mediation as an alternative remedy under Section 120 . 573 before the Modification 3 OGC File No . 01 - 1675 deadline for filing a petition . Choosing mediation will not adversely affect the right to a hearing if mediation does not result in a settlement . The procedures for pursuing mediation are set forth below . Mediation may only take place if the Department and all the parties to the proceeding agree that mediation is appropriate . A person may pursue mediation by reaching a mediation agreement with all parties to the proceeding (which include the Respondent , the Department , and any person who has filed a timely and sufficient petition for a hearing) and by showing how the substantial interests of each mediating party are affected by the Resolution Agreement . The agreement must be filed in (received by) the Office of General Counsel of the Department at 3900 Commonwealth Boulevard , MS #35 , Tallahassee , Florida 32399-3000 , by the same deadline as set forth above for the filing of a petition . The agreement to mediate must include the following : (a) The names , addresses , and telephone numbers of any persons who may attend the mediation; (b) The name , address , and telephone number of the mediator selected by the parties , or a provision for selecting a mediator within a specified time ; (c) The agreed allocation of the costs and fees associated with the mediation ; (d) The agreement of the parties on the confidentiality of discussions and documents introduced during mediation ; (e) The date , time , and place of the first mediation session , or a deadline for holding the first session , if no mediator has yet been chosen ; (f) The name of each party ' s representative who shall have authority to settle or recommend settlement ; and Modification 4 OGC File No . 01 - 1675 (g) Either an explanation of how the substantial interests of each mediating party will be affected by the action or proposed action addressed in this notice of intent or a statement clearly identifying the petition for hearing that each party has already filed , and incorporating it by reference . (h) The signatures of all parties or their authorized representatives . As provided in Section 120 . 573 of the Florida Statutes , the timely agreement of all parties to mediate will toll the time limitations imposed by Sections 120 . 569 and 120 . 57 for requesting and holding an administrative hearing . Unless otherwise agreed by the parties , the mediation must be concluded within sixty days of the execution of the agreement . If mediation results in settlement of the administrative dispute , the Department must enter a final order incorporating the agreement of the parties . Persons whose substantial interests will be affected by such a modified final decision of the Department have a right to petition for a hearing only in accordance with the requirements for such petitions set forth above , and must therefore file their petitions within 21 days of receipt of this notice . If mediation terminates without settlement of the dispute , the Department shall notify all parties in writing that the administrative hearing processes under Sections 120 . 569 and 120 . 57 remain available for disposition of the dispute , and the notice will specify the deadlines that then will apply for challenging the agency action and electing remedies under those two statutes . 7 . Except as expressly modified by this Modification, the Resolution Agreement remains in full force and effect . The terms and conditions of the Resolution Agreement , as modified by this Modification, may be enforced in a court of competent jurisdiction pursuant to Sections 120 . 69 and 403 . 121 , Florida Statutes . Failure to comply with the Resolution Agreement , Modification 5 OGC File No . 01 - 1675 w as modified by this Modification , shall constitute a violation of Section 403 . 161 ( 1 ) (b) , Florida Statutes , 8 . This Modification is a final order of the Department pursuant to Section 120 . 52 (7) , Florida Statutes , and it is final and effective on the date filed with the Clerk of the Department unless a Petition for Administrative Hearing is filed in accordance with Chapter 120 , Florida Statutes . Upon the timely filing of a petition this Modification will not be effective until further order of the Department . FOR THE RESPONDENT : A K . Barton , Cler Indian River County , Florida Board of County Commissioners Deputy Clerk By ^ '40 r Caroline D . Ginn, C irman Date : June 8 , 2004 Approved by : Ap oved y : jJeph A . Baird lam G . Collins , ounty Attorney nty Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FO DEPARTMENT USE ONLY DONE AND ENTERED this day of4 2004 . STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION 1 Vivian F . Garfein Director , Central District Management Modification 6 OGC File No . 01 - 1675 f FILING AND ACKNOWLEDGMENT FILED , on this date , pursuant to § 120 . 52 , Florida Statutes , With the designated Department Clerk , receipt of which is hereby Acknowledged . Clerk Date VFG : ca Copies furnished to : Kathy Carter , OGC Modification 7 OGC File No . 01 - 1675