FINAL ORDER by 6rkbBpH

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									                                                                                            DEP06-1794
                              BEFORE THE STATE OF FLORIDA
                        DEPARTMENT OF ENVIRONMENTAL PROTECTION


CERTIFIED MAIL
RETURN RECEIPT REQUESTED

In Re:
Petition for Variance                         Levy County
David F. Ayers, Petitioner                    File number: 38-261781-002-EV
Florida Gas Transmission Co.                  Natural Gas Pipeline Installation
5444 Westheimer Road                          OGC Case No.: 07-0123
Houston, TX 77056
______________________________________________________________________________

                                             FINAL ORDER

BY THE DEPARTMENT:

         The Department received from Florida Gas Transmission Co. a Petition for Variance, pursuant
to section 403.201(1)(a), Florida Statutes (F.S.) and section 62-110.104, Florida Administrative Code
(F.A.C.). The Petitioner requested relief from rule 62-302.530(70), F.A.C., which specifies that turbidity
shall not exceed 29 Nephelometric Turbidity Units (NTUs) above natural background.

        The variance will allow elevated turbidity levels not to exceed 3,000 NTUs above natural
background levels for more than 3 consecutive hours after construction and no more than 1,000 NTU’s
above natural background levels for more than 12 consecutive hours after construction at the end of an
expanded mixing zone. This variance is sought in conjunction with the activities necessary to construct
the project as described in Environmental Resource Permit application No. 38-261781-001-EI for
construction of a natural gas pipeline system and with Variance application No. 38-261781-003-EV
which allows for an expanded mixing zone of 800 meters.

         After reviewing the Petition for Variance, the Department staff concluded that it satisfied the
requirements and criteria set forth in section 403.201(1)(a), F.S. A copy of the Department's Notice of
Intent to Grant Variance setting forth its findings is attached hereto and incorporated herein as Exhibit A.

        The intent of August 28, 2006, notified the Petitioner of the Department’s proposed agency action
and advised it of its right to a hearing pursuant to sections 120.569 and 120.57, F.S. On September 8,
2006, notice was given in the Florida Administrative Weekly informing the public of the Department’s
intended action and offering an opportunity for hearing pursuant to Section 120.57, F.S. The same notice
was given in the Chiefland Citizen on September 21, 2006. Copies are attached as Exhibit B.
Notice of Final Order
Florida Gas Transmission Co.
File No. 38-261781-002-EV
Page 2 of 2

        The Petitioner and interested parties having been advised of their rights under Chapter 120, F.S.,
and having failed or declined to file a Petition, pursuant to sections 120.569 and 120.57, F.S., are hereby
deemed to have waived those rights. Acceptance of the variance constitutes notice and agreement that the
Department will periodically review this variance for compliance, including site inspections where
applicable, and may initiate enforcement action for violation of the conditions and requirements thereof.

        It is therefore:

        ORDERED by the State of Florida, Department of Environmental Protection, that the Petition of
Florida Gas Transmission Co., requesting a variance be and is hereby granted, subject to the conditions
specified by Department staff in Exhibit A.

DONE AND ORDERED this ________ day of October 2006, in Jacksonville, Florida.

                                                 STATE OF FLORIDA DEPARTMENT
                                                 OF ENVIRONMENTAL PROTECTION




                                                 James R. Maher, P.E.
                                                 Program Administrator
                                                 Submerged Lands and Environmental
                                                 Resources Program

CW/lb

Copies furnished to:

DEP, Office of General Counsel
U. S. Army Corps of Engineers, Jacksonville
Attachments (Exhibits A & B)

                                    CERTIFICATE OF SERVICE

        This is to certify that this FINAL ORDER and all copies were mailed before the close of
business on                               , 2006.
EXHIBIT A

                             NOTICE OF INTENT TO GRANT VARIANCE

         The Department has reviewed your petition for variance and the supporting documentation, filed
on behalf of Florida Gas Transmission Co., pursuant to section 403.201(1)(a), Florida Statutes (F.S.).
This variance addresses situations in which “there is no practicable means known or available for the
adequate control of the pollution involved”. The petitioner seeks a temporary variance from section 62-
302.530(70), Florida Administrative Code (F.A.C.), which specifies that turbidity shall not exceed 29
Nephelometric Turbidity Units (NTUs) above natural background. The variance will allow elevated
turbidity levels not to exceed 3,000 NTUs above natural background levels for more than 3 consecutive
hours after construction and no more than 1,000 NTU’s above natural background levels for more than 12
consecutive hours after construction at the end of an expanded mixing zone. This variance is sought in
conjunction with the activities necessary to construct the project as described in Environmental Resource
Permit application No. 38-261781-001-EI for construction of a natural gas pipeline system and with
Variance application No. 38-261781-003-EV which allows for an expanded mixing zone of 800 meters.
The Department hereby gives notice of its intent to grant a variance for the project referenced above to
revise the turbidity standard (as specified above) in the surface waters and wetlands listed in the
application and on file with the Department.

        The Department issues the Notice of Intent to grant the variance, based upon the following
findings:
    1. It is not financially feasible or technically possible to directionally drill under all open water and
        wetland crossings.
    2. The permittee will utilize performance-based best management practices (BMPs) to avoid or
        minimize turbidity problems
    3. BMPs are not expected to adequately control turbidity in 8 (eight) of the Category II (streams,
        canals, and flooded wetlands) waterbody crossings (listed in the application and on file with the
        Department).
    4. The elevated turbidity levels at the end of the expanded mixing zones will be temporary in nature
        and are not expected to cause long-term adverse affects to biological resources in the project area.

        The variance is subject to the following conditions:

    1. This variance is valid only if an environmental resource permit (File No. 38-261781-001-EI) is
       issued for this project, and is subject to any and all conditions of the permit. The granting of this
       variance does not guarantee the issuance of the permit;
    2. Given good cause by either party, the Secretary or designee may alter the terms and conditions of
       the variance.
    3. This variance only applies to the activities conducted within surface water crossings LK-LE-3,
       LK-LE-4, LK-LE-11, LE-LK-16, LE-LK-18, LE-LK-20, LE-LK-24, and LE-LK-28.
    4. Turbidity levels at the end of the mixing zones shall not exceed 3,000 NTUs above natural
       background levels for more than 3 consecutive hours after construction and no more than 1,000
       NTU’s above natural background levels for more than 12 consecutive hours after construction.
    5. Appropriate performance-based BMPs shall be utilized to minimize increases in turbidity and
       control erosion when crossing surface waters and wetlands.
    6. This variance shall be subject to all monitoring conditions required by Environmental Resource
       Permit No. 38-261781-001-EI and Variance No. 38-261781-003-EV. The daily logs for the
       variance surface waters and wetlands shall be presented as a separate section in the monthly
       reports submitted to the Department.
EXHIBIT B

                                  STATE OF FLORIDA
                      DEPARTMENT OF ENVIRONMENTAL PROTECTION
                         NOTICE OF INTENT TO GRANT VARIANCE

        The Department of Environmental Protection gives notice of its intent to grant a variance
(File No. 38-261781-002-EV) under section 403.201 of the Florida Statutes to Mr. Davis Ayers,
Project Manager, Florida Gas Transmission Co., 5444 Westheimer Road, Houston, Texas 77056,
from the provisions of Rule 62-302.530 (70), Florida Administrative Code, which specifies that
turbidity shall not exceed 29 Nephelometric Turbidity Units (NTUs) above natural background.
The variance will allow elevated turbidity levels not to exceed 3,000 NTUs above natural
background levels for more than 3 consecutive hours after construction and no more than 1,000 NTU’s
above natural background levels for more than 12 consecutive hours after construction at the end of an
expanded mixing zone in 8 (eight) Category II surface waters. The variance is associated with
Environmental Resource Permit application No. 38261781-001-EI and Variance petition No. 38-
261781-003-EV for the construction of a natural gas pipeline in Levy County known as Loop K
of the Phase VII Expansion Project. The project will cross Class III waters.
        This variance is hereby granted unless a sufficient petition for an administrative hearing
is timely filed under sections 120.569 and 120.57 of the Florida Statutes as provided below. If a
sufficient petition for an administrative hearing is timely filed, this intent is issue automatically
becomes only proposed agency action on the application, subject to the result of the
administrative review process. Therefore, on the filing of a timely and sufficient petition, this
action will not be final and effective until further order of the Department. When proof of
publication is provided, as required by this intent, and if a sufficient petition is not timely filed,
the final order granting the variance will be issued as a ministerial action. Because an
administrative hearing may result in the reversal or substantial modification of this action, the
applicant is advised not to commence construction or other activities until the deadlines noted
below for filing a petition for an administrative hearing or request for an extension of time have
expired and until the final order granting the variance has been executed and delivered.
        A person whose substantial interests are affected by the Department’s action may petition
for an administrative proceeding (hearing) under sections 120.569 and 120.57 of the Florida
Statutes. The petition must contain the information set forth below and must be filed (received
by the clerk) in the Office of General Counsel of the Department at 3900 Commonwealth
Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000.
        Mediation under Section 120.573 of the Florida Statutes is not available.
        Under rule 62-110.106(4) of the Florida Administrative Code, a person whose substantial
interests are affected by the Department’s action may also request an extension of time to file a
petition for an administrative hearing. The Department may, for good cause shown, grant the
request for an extension of time. Requests for extension of time must be filed with the Office of
General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35,
Tallahassee, Florida 32399-3000, before the applicable deadline. A timely request for extension
of time shall toll the running of the time period for filing a petition until the request is acted
upon. If a request is filed late, the Department may still grant it upon a motion by the requesting
party showing that the failure to file a request for an extension of time before the deadline was
the result of excusable neglect.
        If a timely and sufficient petition for an administrative hearing is filed, other persons
whose substantial interests will be affected by the outcome of the administrative process have the
right to petition to intervene in the proceeding. Any intervention will be only at the discretion of
EXHIBIT B

the presiding officer upon the filing of a motion in compliance with rule 28-106.205 of the
Florida Administrative Code.
        In accordance with rules 28-106.111(2) and 62-110.106(3)(a)(4), petitions for an
administrative hearing by the applicant must be filed within 14 days of receipt of this written
notice. Petitions filed by any persons other than the applicant, and other than those entitled to
written notice under section 120.60(3) of the Florida Statutes must be filed within 14 days of
publication of the notice or within 14 days of receipt of the written notice, whichever occurs first.
Under section 120.60(3) of the Florida Statutes, however, any person who has asked the
Department for notice of agency action may file a petition within 14 days of receipt of such
notice, regardless of the date of publication.
        The petitioner shall mail a copy of the petition to the applicant at the address indicated
above at the time of filing. The failure of any person to file a petition for an administrative
hearing within the appropriate time period shall constitute a waiver of that person’s right to
request an administrative determination (hearing) under sections 120.569 and 120.57 of the
Florida Statutes.
        A petition that disputes the material facts on which the Department’s action is based must
contain the following information: (a) The name and address of each agency affected and each
agency’s file or identification number, if known; (b) The name, address, and telephone number
of the petitioner; the name, address, and telephone number of the petitioner’s representative, if
any, which shall be the address for service purposes during the course of the proceeding; and an
explanation of how the petitioner’s substantial interests are or will be affected by the agency
determination; (c) A statement of when and how the petitioner received notice of the agency
decision; (d) A statement of all disputed issues of material fact. If there are none, the petition
must so indicate; (e) A concise statement of the ultimate facts alleged, including the specific
facts that the petitioner contends warrant reversal or modification of the agency’s proposed
action; and (f) A statement of the specific rules or statutes that the petitioner contends require
reversal or modification of the agency’s proposed action; (g) A statement of the relief sought by
the petitioner, stating precisely the action that the petitioner wishes the agency to take with
respect to the agency’s proposed action.
        A petition that does not dispute the material facts on which the Department’s action is
based shall state that no such facts are in dispute and otherwise shall contain the same
information as set forth above, as required by rule 28-106.301. Under sections 120.569(2)(c) and
(d) of the Florida Statutes, a petition for administrative hearing must be dismissed by the agency
if the petition does not substantially comply with the above requirements or is untimely filed.
        This action is final and effective on the date filed with the Clerk of the Department unless
a petition is filed in accordance with the above. Upon the timely filing of a petition this order
will not be effective until further order of the Department.
        This intent to issue a variance constitutes an order of the Department. Subject to the
provisions of paragraph 120.68(7) of the Florida Statutes, which may require a remand for an
administrative hearing, the applicant has the right to seek judicial review of the order under
section 120.68 of the Florida Statutes, by the filing of a notice of appeal under rule 9.110 of the
Florida Rules of Appellate Procedure with the Clerk of the Department in the Office of General
Counsel, 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida, 32399-3000;
and by filing a copy of the notice of appeal accompanied by the applicable filing fees with the
appropriate district court of appeal. The notice of appeal must be filed within 30 days from the
date when the final order is filed with the Clerk of the Department.
EXHIBIT B

       The Department’s file on this matter is available for public inspection during normal
business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, except legal holidays, at the
Florida Department of Environmental Protection, 7825 Baymeadows Way, Suite B-200,
Jacksonville, Florida 32256.
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