HomeMy WebLinkAboutPeition for Declatory Statement - Dec 2023DocuSign Envelope ID: 1E22CC2D-47BC-4DB6-9288-9A6C3962FE66
STATE OF FLORIDA
DEPARTMENT OF HEALTH
IN RE: CITY OF SANFORD
DOH Case No.: 2023-0251
Rendition No.: DOH-23-1507-DS-HSW
Petition for Declaratory Statement.
FINAL ORDER DENYING PETITION FOR DECLARATORY STATEMENT
On October 2, 2023, the Department of Health (Department) received a Petition for
Declaratory Statement (Petition) from Jacob D. Varn on behalf of the City of Sanford
(Petitioner), seeking a declaratory statement regarding several questions related to two Health
Consultations previously completed by the Department, and in general, health advisory levels
for 1,4 -dioxane. A copy of the Petition is attached as Attachment A and incorporated by
reference. The Notice of Petition for Declaratory Statement was published on December 1,
2023, in Vol. 49, No. 232, of the Florida Administrative Register. No public comments were
received by the Department after the filing and noticing of the Petition.
PRELIMINARY STATEMENT
A declaratory statement is a means for resolving a controversy or answering questions
or doubts concerning the applicability of statutory provisions, rules, or orders over which the
agency has authority. Fla. Admin. Code R. 28-105.001. A declaratory statement may only be
sought to address prospective conduct by the petitioner. Section 120.565(1), Fla. Stat.
Sections 381.0011 and 381.006, Florida Statutes, provides the Department's authority to
conduct environmental health consultations. Section 381.0062, Florida Statutes, further
provides the Department with authority over private water systems and certain public drinking
water systems.
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FINDINGS OF FACT
1. Petitioner is the City of Sanford, with an address at 300 North Park Avenue, Sanford,
Florida 32771. Pet., f 1.
2. Petitioner states that it is seeking a declaratory statement on the following statutory
provision(s), agency rule(s), or agency order(s): "Chapter 381, Florida Statutes; Chapter 64-E,
Florida Administrative Code; Health Consultation, Former Siemens-Stromberg Site, Lake Mary,
Florida, EPA Facility ID: FLD061989448, dated June 10, 2010; Health Consultation, North
Central Seminole County Groundwater, Seminole County, Florida, January 19, 2018." Pet., ¶ 3.
3. Petitioner alleges that a series of questions "must be answered in an affirmative and
positive manner in order for Sanford to serve the public interest and provide for water quality
from the Floridan Aquifer to its customers." Pet., ¶ 5.
4. Petitioner first questions who requested the health consultation and then sets out a
series of questions about past actions taken in relation to the Health Consultation, North Central
Seminole County Groundwater, Seminole County, Florida, January 19, 2018, in paragraphs
5.A.(1) — (9). Pet., ¶ 5.
5. Petitioner then questions who requested the health consultation and then sets out a
second series of questions about past actions related to the Health Consultation, Former
Siemens- Strom berg Site, Lake Mary, Florida, EPA Facility ID: FLD061989448, dated June 10,
2010, in paragraphs 5.8.(1) — (6). Pet., 15.
6. Petitioner further asks if the Department has plans to reconsider the health advisory
level for 1,4 -dioxane; whether the Department has, since 2010, provided communications to
Petitioner "advising them to advise Petitioner's water customers that the current levels of 1,4 -
dioxane are a threat to their health"; if the Department has the expertise and statutory authority
to determine "should the drinking water have more than 0.35 ppb of 1,4 -dioxane, it constitutes a
threat to public health"; and finally, if based on other statements, it is safe to assume that "1,4 -
dioxane was in the deep Floridan aquifer prior to 2001 T Pet., ¶¶ 5.C. — 5. F.
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CONCLUSIONS OF LAW
7. The Department has jurisdiction over this matter pursuant to section 120.565, Florida
Statutes, and Chapter 28-105, of the Florida Administrative Code.
8. Section 120.565, Florida Statutes, provides in part:
(1) Any substantially affected person may seek a declaratory
statement regarding an agency's opinion as to the applicability of
a statutory provision, or of any rule or order of the agency, as it
applies to the petitioner's particular set of circumstances.
(2) The petition seeking a declaratory statement shall state with
particularity the petitioner's set of circumstances and shall specify
the statutory provision, rule or order that the petitioner believes
may apply to the set of circumstances.
9. The purpose of the declaratory statement procedure is "...to enable the public to
secure definitive binding advice as to the applicability of agency -enforced law to a particular set
of facts." Fla. Dep't of Bus. & ProfI Regulation, Div. of Pari-Mutuel Wagering v. Inv. Corp. of
Palm Beach, 747 So. 2d 374, 382 (Fla. 1999) (quoting Patricia A. Dore, Access to Florida
Administrative Proceedings, 13 Fla. St. U. L. Rev. 965, 1052 (1986)); see also ExxonMobile Oil
Corp. v. State, Dep't of Agric. & Consumer Servs., 50 So. 3d 755, 757 (Fla. 1St DCA 2010);
Citizens v. Fla. PSC, 164 So 3d 58, 62 (Fla. 15t DCA 2015).
10. First, the Petition must be denied as the Petitioner fails to set out any particular set of
facts or circumstances specific to the Petitioner and fails to identify any specific agency -
enforced law(s) that Petitioner believes may apply to such facts or circumstances.
11. In paragraphs 5.A. and B. of the Petition, the Petitioner puts forth many questions
about actions of the Department or the Seminole County Health Department in the
Department's development and review of the two listed health consultations completed in 2010
and 2018. Paragraph 5.F. ultimately asks if it is safe to assume that "1,4 -dioxane was in the
deep Floridan aquifer prior to 2001"? These questions, in addition to those laid out in
paragraphs 5.C. and 5.E., do not constitute a particular set of circumstances specific to the
Petitioner.
K,
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12. Further, the Petition fails to specifically identify the statute, rule, or order that may
apply to the list of questions. Instead, Petitioner generally references in paragraph 3 of the
Petition an entire statutory chapter (Chapter 381, Florida Statutes), a title of the Florida
Administrative Code (64-E [sic]), and then two health consultations. Chapter 381, Florida
Statutes, covers a wide range of topics over which the Department has jurisdiction, from various
environmental health matters to issues of public health such as immunizations, communicable
diseases, cancer, and medical marijuana. Similarly, Title 64E, of the Florida Administrative
Code, encompasses the Department's rule chapters that cover the many varied environmental
health programs under the Department's jurisdiction, such as drinking water, public swimming
pools, tattooing, and biomedical waste programs. Lastly, the two listed health consultations are
not a statute, rule, nor order of the Department.
13. Second, the Petition must be denied as the Department is unable to issue a
declaratory statement regarding past conduct. The purpose of a declaratory statement is to
allow a petitioner to select a proper course of action in advance. Novick v. Dep't. of Health, Bd.
of Medicine, 816 So. 2d 1237 (5th DCA 2002); Adventist Health System/Sunbelt, Inc. v. Agency
for Health Care Admin., 955 So.2d 1173 (2007). "In fact, a declaratory statement is not available
when seeking approval of acts which have already occurred." Adventist at 1176.
14. The questions presented to the Department in paragraph 5 of the Petition pertain to
actions, if in fact such have been made, that have already taken place. The Petition does not
pose any question related to potential decisions or actions of the Petitioner. As such, the
conduct at issue in this matter has already occurred and cannot be the basis for a declaratory
statement.
15. Finally, Rule 28-105.001, of the Florida Administrative Code, provides that "[a]
petition for declaratory statement may be used to resolve questions or doubts as to how the
statutes, rules, or orders may apply to the petitioner's particular circumstances. A declaratory
statement is not the appropriate means for determining the conduct of another person."
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16. In addition to the questions posed about Department conduct previously discussed in
this Order, paragraphs S.C., S.D., and S.E. of the Petition poses questions about the
Department's plans for future actions, whether the Department provided communication to
Petitioner, and whether the Department has expertise and authority to make certain
determinations related to 11,4 -dioxane. The Petition fails to present any question or set of
circumstances related to potential decisions or actions of the Petitioner.
17. Consequently, the Department is unable to issue a declaratory statement to the
extent that the Petitioner is attempting to determine the proper course of conduct, past, present,
or future, of the Department.
Therefore, the Petitioner's Petition for Declaratory Statement is DENIED.
22nd
DONE AND ORDERED this day of December, 2023, in Tallahassee, Leon County,
Florida.
Joseph A. Ladapo, MD, PhD
State Surgeon General
8lgn.d by:
ED«uocu HB, FAEHS
B�/ 7 ' 2A7DFCFC410242E_.
Kenneth A. Scheppke, MD, FAEMS
Deputy Secretary for Health
FILED ON THIS DATE PURSUANT TO § 120.52,
FLORIDA STATUTES, WITH THE DESIGNATED
DEPARTMENT CLERK, RECEIPT OF WHICH IS
HEREBY ACKNOWLEDGED.
CDusgned by:
0w«r4u+ 12/22/2023
A14843OB16E94BE
CLERK DATE
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NOTICE OF APPELLATE RIGHTS
A party adversely affected by this Final Order is entitled to judicial review pursuant to
section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules
of Appellate Procedure. Such proceedings may be commenced by filing a Notice of
Appeal with the Clerk of the Department of Health and a copy accompanied by the filing
fee with the District Court of Appeal in the appellate district where the party resides or
the First District Court of Appeal. The notice must be filed within 30 days of the filing of
this Final Order.
Copies furnished to:
Jacob D. Varn
Manson, Bolves, Donaldson, Tanner, P.A.
106 E. College Ave., Suite 820
Tallahassee, FL 32301
Amanda G. Bush, Chief Legal Counsel
Department of Health
4052 Bald Cypress Way, Bin #A-02
Tallahassee, FL 32399-1703
Amanda. Bush@flhealth.gov
City of Sanford
300 North Park Ave.
Sanford, FL 32771
Marjorie C. Holladay, Chief Attorney
Joint Administrative Procedures Committee
Room 680, Pepper Building
111 W. Madison Street
Tallahassee, FL 32399-1400
holladay.marjorie@leg.state.fl.us
japc@leg.state.fl.us
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing FINAL ORDER has
sent by regular U.S. Mail or by electronic mail to each of the above-named persons this
day of December, 2023.
DuSnW by:
.
0A148430816E94BE..
Wanda Range, Agency Clerk
Department of Health
4052 Bald Cypress Way, Bin A-02
Tallahassee, Florida 32399-1703
DocuSign Envelope ID: lE22CC2D-47BC-4DB6-9288-9A6C39B2FE66^��12023 2:53:00 PM
STATE OF FLORIDA
DEPARTMENT OF HEALTH
PETITION FOR DECLARATORY STATEMENT
COMES NOW, the Petitioner, the City of Sanford, Florida, a Florida municipality, (Sanford) and
petitions the Florida Department of Health (FDOH) for a declaratory statement as herein
requested. This Petition is filed in accordance with the provisions of Section 120.54(5) and
Section 120.565, Florida Statutes, and the Uniform Rules of Administrative Procedure (Rule
28-105.002, Florida Administrative Code).
In support of this Petition, Sanford states as follows:
1. The name, address, telephone number, and any facsimile number of the
Petitioner. City of Sanford, 300 North Park Avenue, Sanford, Florida 32771; 407-330-5602
(telephone number); 407-330-5616 (facsimile number).
2. The name, address, telephone number and any facsimile number of the
attorney or qualified representative of the Petitioner. Jacob D. Varn, Manson, Bolves,
Donaldson, Tanner, P.A., 106 East College Avenue, Suite 820, Tallahassee, Florida 32301;
850-509-5585 (cell telephone number); no facsimile number.
3. The statutory provision(s), agency rule(s) or agency order(s) on which a
declaratory statement is sought. Chapter 381, Florida Statutes; Chapter 64-E, Florida
Administrative Code; Health Consultation, Former Siemens-Stromberg Site, Lake Mary, Florida,
EPA Facility ID: FLD061989448, dated June 10, 2010; Health Consultation, North Central
Seminole County Groundwater, Seminole County, Florida, January 19, 2018.
4. Legal Authority of the FDOH. The FDOH under Chapter 381, Florida
Statutes, has broad powers to evaluate public health risks associated with public and private
wells throughout the State, including Seminole County, Florida. It also has the ability to issue
"public health advisories", which are warnings or reports giving information to the public about
a potential public health threat.
5. Resulting questions.. BASED UPON THE FOREGOING, SEVERAL
QUESTIONS MUST BE ANSWERED IN AN AFFIRMATIVE AND POSITIVE MANNER IN
ORDER FOR SANFORD TO SERVE THE PUBLIC INTEREST AND PROVIDE FOR
WATER QUALITY FROM THE FLORIDAN AQUIFER TO ITS CUSTOMERS. THOSE
QUESTIONS ARE:
A. With respect to the Health Consultation, North Central Seminole County
Groundwater, Seminole County, Florida, dated January 19, 2018:
(1). Who requested the FDOH to prepare the Health
Consultation?
Attachment A Page 1 of 4
Page 1
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(2). As a result of the Health Consultation, did DOH issue a
public health advisory? If not, why not?
(3). Was the public made aware of the Health Consultation? If
so, when and what means?
(4). Was the Seminole County Health Department made aware
of the Health Consultation? If so, what actions did the Seminole
County Health Department take? Specifically, did the Seminole
County Health Department advise the public water supply
systems and the primary drinking water well users of the Health
Consultation?
(5). At the bottom of the Foreword page, the Health
Consultation states that the FDOH solicited community input
and asks for feedback from the public. How did the FDOH
solicit feedback from the public? Specifically, what members of
the public were contacted for input?
(6). On page 4 (Summary) of the Health Consultation it says
that the FDOH's "top priority is to ensure the public has the best
information to safeguard their health". How was this
information shared with the public? Does this information
continue to be shared? If so, how and with whom?
(7). On page 4 (Summary - Next Step #2) of the Health
Consultation it reads: "The Department recommends private
drinking wells must meet the HAL". What efforts, if any, were
made by the FDOH or the Seminole County Health Department
to ensure that the private drinking wells in the North Central
Seminole County area were meeting the HAL?
(8). With respect to the data that the FD?OH has collected or
been provided concerning the presence of 1,4 -dioxane in North
Central Seminole County, does the FDOH know how long (the
specific dates) the public water supply to the citizens of Lake
Mary contained 1,4 -dioxane in excess of 0.35 ppb? Please
provide the water quality data that supports the FDOH's
position on this question.
(9). At any point in time has the FDOH rendered a "public
health advisory" concerning the presence of 1,4 -dioxane in
North Central Seminole County? If not, why not?
B. With respect to the Health Consultation, Former Siemens-Stromberg Site,
Lake Mary, Seminole County, Florida, EPA Facility ID: FLD061989448, dated June 10,
2010; the following questions are submitted:
(1). Who requested the FDOH to prepare the Health
Consultation?
Page 2 of 4
Page 2
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(2). As a result of the Health Consultation, did DOH issue a
public health advisory? If not, why not?
(3). Was the public made aware of the Health Consultation? If
so, when and what means?
(4).. Was the Seminole County Health Department made aware
of the Health Consultation? If so, what actions did the Seminole
County Health Department take? Specifically, did the Seminole
County Health Department advise the public water supply
systems and the primary drinking water well users of the Health
Consultation?
(5). On page 2 - Summary - Conclusion #2 - provides that because of inadequate
data the FDOH could not conclude whether drinking water from private wells
near the former Siemens facility could harm people's health. It goes on to read:
"The FDOH does not have enough data to determine if off-site groundwater
contamination migration is impacting those private wells." Has the FDOH taken
any steps since this Health Consultation to gather additional data so it could
determine if off-site groundwater contamination migration is impacting those
private wells? If not, why not?
(6). On page 2 - Summary - Next Step near the bottom of the page reads "The
responsible party should test private drinking water wells quarterly for VOC's
within one mile radius of the facility's boundaries to ensure contaminated ground
water does not impact off-site communities." Who is the responsible party? Does
the FDOH know if the responsible party conducted these tests? If not, why not?
Did the FDOH check to determine if these tests were conducted?
C. In light of the considerable data available about 1,4 -dioxane and that several
other states have established lower Health Advisory Levels for 1,4 -dioxane, does the
FDOH have any plans to reconsider the HAL for 1,4 -dioxane? If not, why not?
D. At any time since 2010, has the FDOH provided any communications to
Sanford advising them to advise their water customers that the current levels of 1,4 -
dioxane are a threat to their health? If not, why not?
E. Does FDOH have the expertise and statutory authority to determine should the
drinking water have more than 0.35 ppb of 1,4 -dioxane, it constitutes a threat to public
health?
F. Other contaminants from the General Dynamics Corporation, Siemens
Corporation and Moni Holdings, LLC (also known as the "Three Responsible Parties")
site/plant were detected in the deep part of the Floridan aquifer as early as 2001, since
1,4 -dioxane moves through soils and the Floridan aquifer faster than the other
contaminants, is it safe to assume that 1,4 -dioxane was in the deep Floridan aquifer prior
to 2001 ?
Page 3 of 4
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6. The signature of the Petitioner or of the Petitioner's attorney or qualified
representative and the date of submission.
DATED this 2nd day of October, 2023.
Respectfully submitted,
/s/ Jacob D. Varn
Jacob D. Varn
Manson, Bolves, Donaldson, Tanner, P.A.
106 E. College Avenue, Suite 820
Tallahassee, FL 32301
Phone 850-509-5585
Attorneys for the City of Sanford
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