Drinking Water Variance Request, Manner of Decision on Variances, Exemptions, and Waivers

DEPARTMENT OF ENVIRONMENTAL PROTECTION

NOTICE OF INTENT TO GRANT A DRINKING WATER VARIANCE

RULE NO: RULE TITLE
62-560.510: Drinking Water Variance Request
62-560.550: Manner of Decision on Variances, Exemptions, and Waivers

       The Department of Environmental Protection gives notice that it intends to grant a variance request to the Florida Governmental Utility Authority (FGUA) for its public water system (Lehigh Water Treatment Plant Number 2, LWTP#2), located at 925 Bolivia Drive in Lehigh Acres, Lee County, Florida. The variance is under Rule 62-560.510, F.A.C., so that the Secondary Maximum Contaminant Level (SMCL) for Total Dissolved Solids of 500 mg/L will not have to be met in the water served to its customers from the issuance date through January 31, 2010 when the petitioner shall have treatment in place at that time. An alternative level of 1000 mg/L for TDS will be required during this time.

      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 is not available.

       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. Intervention will be permitted only at the discretion of the presiding officer upon the filing of a motion in compliance with Rule 28-106.205 of the Florida Administrative Code.

       In accordance with subsection 28-106.111(2), paragraph 62-110.106(3)(a), (4), and Rule 62-560.550, F.A.C., petitions for an administrative hearing must be filed within 30 days of publication of the notice or receipt of written notice, whichever occurs first. Under subsection 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 will toll the running of the time period for filing a petition until the request is acted upon. Upon 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, the Department may also grant the requested extension of time.

       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 right.

       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 the petitioner contends warrant reversal or modification of the agency’s proposed action;

       (f) A statement of the specific rules or statutes that the petitioner contends require reversal or modification of the agency’s proposed action; and

       (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, F.A.C.

       Under Sections 120.569(2)(c) and (d) of the Florida Statutes, a petition for administrative hearing shall be dismissed by the agency if the petition does not substantially comply with the above requirements or is untimely filed. Complete copies of all documents relating to this determination are available for public inspection during normal business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, at Florida Department of Environmental Protection, South District, 2295 Victoria Avenue, Suite 364, Fort Myers, Florida 33901, please contact James Oni, Drinking Water Supervisor at [phone], ext. 110.