STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE T. DONALDSON, d/b/a ) CYPRESS KNEE COVE MOBILE ) HOME PARK, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2847

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on September 12, 1990 in Lake Wales, Florida.

APPEARANCES

For Petitioner: George T. Donaldson, Pro Se

3300 Canal Road

Lake Wales, FL 33853

For Respondent: Francine M. Ffolkes, Esquire

2600 Blair Stone Road Tallahassee, FL 32399-2400

STATEMENT OF THE ISSUE

Whether the Petitioner's water supply system that supplies water to residents of Cypress Knee Cove comes under the jurisdiction of the Respondent and, if so, is the level of Ethylene dibromide (EDB) in the water supplied by Petitioner an imminent hazard to the residents of Cypress Knee Cove.

PRELIMINARY STATEMENT

By a notice of violation and Order for Corrective Actions filed with the Division of Administrative Hearings on May 9, 1990 Respondent charges the Petitioner with supplying the residents of Cypress Knee Cove with water containing a level of EDB that creates an imminent hazard to the residents of Cypress Knee Cove. As grounds therefor the Respondent alleges that Petitioner's water system is a noncommunity water system as defined in Section 403.852(4), Florida Statutes and Rule 17-550.200(24), Florida Administrative Code and that the level of EDB contained in the water exceeds the maximum containment level (MCL) for EDB of 0.02 parts per billion (ppb). The notice was amended twice without a motion being filed with the Division of Administrative Hearings to allow an amendment. However, at the hearing the Respondent was allowed to move forward with Amended Notice of Violation and Order for Corrective Action dated

August 28, 1990 and filed with the Division of Administrative Hearings on September 6, 1990 as the charging document without objection from Petitioner. This amended notice is basically the same as the original notice with the exception of some different test results for EDB and the allegations that the Petitioner's water system is a non-transient, noncommunity water system as defined in Rule 17-550.200(25), Florida Administrative Code rather than a noncommunity water system as alleged in the original notice. Additionally, the amended notice alleged that the Respondent had incurred costs of $209.88 which are recoverable under Section 403.860(3), Florida Statutes.

It was agreed that the Respondent had the burden of proof. Therefore the Respondent presented its case first. The Respondent presented the testimony of Diane Ross, Robert Kollinger and Kent Kines. Respondent's exhibits 1 through 13 were received into evidence.

Petitioner testified in his own behalf and presented the testimony of Geraldine Donaldson. Petitioner's exhibits 1 through 6 were received into evidence.

No transcript was filed with the Division of Administrative Hearings. The parties were allowed until October 4, 1990 to file their respective Proposed Recommended Orders which were timely filed. A ruling on each proposed finding of fact has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found.

1. Petitioner George T. Donaldson owns and operates Cypress Knee Cove Mobile Home Park (Park) a residential mobile home park located at 3300 Canal Road, Lake Wales, Polk County, Florida.

   
   

2. Petitioner owns and operates a water system providing piped water for consumption and use by the residents of the Park.

   
   

3. The water system uses a groundwater source and can have up to 32 connections.

   
   

4. The water system is presently connected to 27 mobile homes. Of those

   27 mobile homes, one is vacant, 11 are used year-round, 15 are used seasonally. Of those being used seasonally, four are being used six months or more out of the year.

   
   

5. Nineteen residents live in the 11 mobile homes used year-round and eight residents live in the four mobile homes 6 months or more out of the year. There are a total of 46 residents living in the Park during the year. The balance of the residents live in the Park less than 6 months out of the year.

   
   

6. All of the mobile homes at the Park are permanently mounted and remain on the lots year-round.

   
   

7. Twenty-five of the mobile homes in the Park are privately owned by residents of the Park and are available for year-round occupancy by the owner.

8. Sampling for EDB from Petitioner's water system at the Park are done by the Department of Health and Rehabilitative Services, Polk County Health Unity (PCHU) on March 14, 1984 and the samples analyzed by the University of Florida (UF) for EDB. The UF reported EDB concentration of 0.02756 ppb.

   
   

9. No samples of water from Petitioner's water system at the Park were collected by PCHU for testing for EDB from March 14, 1984 and until April 4, 1988.

   
   

10. The PCHU began sampling Petitioner's water system at the Park again in April, 1988 and submitting those samples to the Department of Health and Rehabilitative Services (HRS) state certified laboratory in Jacksonville, Florida for analysis. The following are the results of those tests:

    
    

    Date of Sampling EDB Level

    April 4, 1988 below detectable level of

    0.02 ppb - BDL

    August 17, 1988 0.17 ppb

    October 5, 1988 unconfirmed positive- resample

    November 7, 1988 0.058 ppb

    November 22, 1988 BDL-analytical problem- resample

    December 1, 1988 BDL

    January 4, 1989 0.062 ppb

    *January 18, 1989 0.070 ppb

    July 26, 1990 0.058 ppb

    *split sample with P.E. LaMoreaux and Associates

    
    

11. P.E. LaMoreaux and Associates, a private state certified laboratory (PELA), analyzed samples taken from Petitioner's water system at the Park. The following are the results of those samples:

    
    

    Date of Sampling EDB Level

    August 23, 1988 BDL

    October 12, 1988 BDL

    *January 18, 1989 0.12 ppb

    **January 18, 1989 BDL

    *split sample with HRS

    **Revised report of January 18, 1989 split sample with HRS

    
    

12. The Sun Air water system is owned and operated by Polk County and potable water for the Park is immediately available from this water system.

    
    

13. The cost of connection to Polk County's Sun Air water system for residents in this area is covered under the state of Florida's EDB grant program. However, since the mobile homes do not have individual meters from Petitioner's water system, the grant will only pay for one hook-up. A water line from Sun Air runs along Canal Road beside the Park and is available for immediate connection.

    
    

14. Although the hook-up is paid for by the grant, Polk County would charge for the water furnished to the Park.

15. Sun Air water system was sampled in May, 1986 and again in July, 1990. The 1986 sample was analyzed by PELA and the level of EDB was BDL. The 1990 sample was analyzed by HRS and the EDB level was also BDL.

    
    

16. An alternative method of treating EDB contamination at the Park would be the installation of a carbon filter system which cost approximately

    $3,000.00.

    
    

17. Fluctuations in the EDB level may be due to the nature of EDB and the local hydrology.

    
    

18. Should Petitioner hook-up to the Sun Air water system, his present well may be used for irrigation or watering lawns.

    
    

19. There was no evidence adduced at the hearing concerning the allegation of cost in Count III.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57, Florida Statutes.

   
   

2. Section 403.852(2)(3) and (17), Florida Statutes provides in pertinent part as follows:

   
   

   1. "Public water system" means a community or noncommunity system for the provision to

      the public of piped water for human consumption, provided that such system has at least 15 service connections or regularly serves at least 25 individuals at least 60 days out of the year . . .

   2. "Community water system" means a public water system which serves at least 15 service connections used by year-round residents or

      regularly serves at least 25 year-round residents.

      * * *

      (17) "Nontransient noncommunity water system" means a public water system that is not a community water system and that regularly serves at least 25 of the same persons over

      6 months per year.

      
      

3. Section 403.852(12), Florida Statutes provides in pertinent part as follows:

   
   

   (12) "Primary drinking water regulation" means a rule which:

   1. Applies to public water systems;

   2. Specifies contaminants which, in the judgement of the department, after consultation with the Department of Health and Rehabilitative Services, may have an adverse affect on the health of the public;

   3. Specifies for each such contaminant either:

   1. A maximum contaminant level if, in the judgement of the department, it is economically

   and technologically feasible to ascertain the level of such contaminant in water in public water systems; or . . .

   
   

4. The maximum contaminant level (MCL) for a contaminant is a primary drinking water standard. The standards are contained in Rule 17-550.310, Florida Administrative Code. The standard or MCL for EDB in a nontransient noncommunity water system is set forth in Rule 17-550.310(2)(d), Florida Administrative Code, and is 0.00002 milligrams per liter which equals 0.02 ppb or micrograms per liter.

   
   

5. Rule 17-550.300, Florida Administrative Code requires corrective action approved by the Department of Environmental Regulation to be taken when the MCL of a contaminant in a public water system is exceeded.

6. Section 403.859(2), Florida Statutes provides as follows: 403.859 Prohibited acts. - The following acts

   and the causing thereof are prohibited and are violations of this act.

   * * *

   (2) Failure by a supplier of water to comply with regulations adopted pursuant to Section 403.853, with any rule adopted by the department pursuant to this act, or with conditions for variances or exemptions authorized under Section 403.854.

   
   

   Petitioner is a supplier of water as defined in Section 403.852(8), Florida Statutes.

   
   

7. Penalties and remedies are set forth in Section 403.860, Florida Statutes and subsection 2 provides for an administrative proceeding to establish liability and require corrective action.

   
   

8. The burden of proof is on the party asserting the affirmation of an issue before an administrative tribunal. Florida Department of Transportation

v. J.W. Company, Inc., 396 So.2d 778 (1 DCA Fla. 1981). Respondent has sustained its burden of proof except for the allocation of costs.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Environmental Regulation enter a final order directing Petitioner to connect to the available and approved Polk County water system or install a treatment system necessary for the reduction of EDB below the established MCL and placing appropriate and reasonable time schedule for commencing and completing either alternative and other conditions deemed appropriate and reasonable under the circumstances.

It is further Recommended that Count II be dismissed.

DONE and ENTERED this 26th day of October, 1990, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1990.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner

1. The first clause of the first sentence of proposed Finding of Fact 1 is adopted in Finding of Fact 1, the balance of sentence one is not supported by substantial competent evidence in the record. The balance of proposed Finding of Fact 1 is not material.

2. The first clause of the first sentence of proposed Finding of Fact 2 is not supported by substantial competence evidence in the record. The balance of proposed Finding of Fact 2 is adopted in Findings of Fact 10 and 11.

3. Proposed Finding of Fact 3 is not supported by substantial competent evidence in the record.

4. Proposed Finding of Fact 4 adopted in Findings of Fact 12 and 15.

5. While the undersigned is aware that cost is a concern to the Petitioner, it is not a necessary Finding of Fact to reach a conclusion.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent

1.-6. Adopted in Findings of Fact 1, 2, 3, 4, 7 and 7, respectively.

7. Not material.

8.-10. Adopted in Findings of Fact 5, 6 and 4, respectively.

11.-14. Adopted in Findings of Fact 4 and 5.

15.-16. Unnecessary.

17.-18. Adopted in Finding of Fact 8.

19. Adopted In Findings of Fact 9 and 10. 20.-22. Adopted in Finding of Fact 10.

23. Adopted in Finding of Fact 11.

24.-25. Adopted in Finding of Fact 10.

26. Adopted in Finding of Fact 11.

27.-29. Adopted in Finding of Fact 10.

30. Adopted in Finding of Fact 11.

31.-32. Adopted in Finding of Fact 10.

1. Adopted in Finding of Fact 12.

2. Adopted in Findings of Fact 12 and 13.

35.-38. Adopted in Findings of Fact 13, 15, 16 and 17, respectively. 39.-43. Not material or necessary.

44. Adopted in Finding of Fact 18.

COPIES FURNISHED:

Francine M. Ffolkes, Esq. 2600 Blair Stone Road Tallahassee, FL 32399-2400

George T. Donaldson 3300 Canal Road

Lake Wales, FL 33853

Dale W. Twachtmann, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

Daniel H. Thompson, General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-002847

Orders for Case No: 90-002847