BEFORE THE STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
In re: FLORIDA DEPARTMENT OF
Petition for Emergency Variance
OGC File No.06-0043
FINAL ORDER DENYING PETITION FOR EMERGENCY VARIANCE
AND GRANTING A VARIANCE FROM RULE 62-520.420, F.A.C.
On January 10, 2006, WRS Infrastructure & Environment, Inc.
on behalf of the Florida Department of Transportation, District
VI (FDOT), filed a petition for waiver from requirements in Rules
62-520.420, 62-550.320, and Chapter 62-777 of the Florida
Administrative Code (F.A.C.), under section 120.542 of the
Florida Statutes (F.S.) and Rule 28-104.002, F.A.C. (However
after careful review of the petition, the Department determined
that the only rule from which the waiver is needed is Rule 62-
520.420, F.A.C., and that is the only rule to which this Order
will be addressed.) By e-mail, Petitioner modified its petition
and stated it was requesting a variance, not a waiver, and this
Order will reflect that. The petition was for an emergency
temporary variance from Rule 62-520.420, F.A.C., which requires
discharges to Class G-II ground water to meet all secondary
drinking water standards. The FDOT is involved with the
construction of the Miami Intermodal Center at the Miami
International Airport in Miami.
1. Petitioner FDOT District VI is located at District
Environmental Management Office, Room 6109, 1000 NW 111 Avenue,
Miami, Florida 33172.
2. FDOT alleges as grounds for the emergency that it may
suffer severe economic loss from delay claims from the contractor
if FDOT is not ready to support the contractor's dewatering
operation by mid-February. The delay claims can be $6000 per
3. Neither the statute (section 120.542, F.S.) nor the rule
(28-104.004, F.A.C.) containing the emergency variance
requirements describes what constitutes an emergency. However,
section 120.569(2)(l), F.S. (the provision in chapter 120 for
emergency orders), requires that if the agency head finds that an
immediate danger to the public health, safety, or welfare
requires an immediate final order, such an order is permissible.
4. The facts stated by FDOT to justify the filing of a
petition for an emergency variance do not allege an immediate
danger to the public health, safety, or welfare if the variance
were not granted within thirty days. Although the delay claims
could be significant, this does not create an immediate danger to
the public welfare.
5. For the foregoing reasons, FDOT has not demonstrated
that it is entitled to an emergency variance from the requirement
to meet the secondary standards for ground water under Rule 62-
520.420, F.A.C., for the dewatering project being undertaken by
FDOT. However, under the provisions of Rule 28-104.005, F.A.C.,
the petition has been reviewed by the Department on a non-
emergency basis as set forth in Section 120.542(7), F.S.
6. The FDOT project includes dewatering to enable
construction of pedestrian tunnels and elevator shafts for the
transportation hub at the Miami Intermodal Center. The water is
placed in an on-site manmade stormwater pond.
7. The water from the dewatering project does not meet the
Department's secondary drinking water standard for iron of 0.3
mg/L in Rule 62-550.320, F.A.C., adopted as a ground water
standard in Rule 62-520.420, F.A.C. In addition, the Miami-Dade
Department of Environmental Management (DERM) set an alternative
ground water standard for iron for this project at 0.87 mg/L.
This alternative concentration cannot be met, either.
8. The water placed in the stormwater pond with the
elevated iron is expected to percolate to the ground water, which
has background iron concentrations ranging up to 2.6 mg/L.
However, the recovered water can contain up to 1.9 mg/L of iron,
with ground water in the vicinity of the pond containing up to
5.4 mg/L of iron.
9. Ground water flow is towards the Miami River, in a
southeasterly direction. The closest wellfield providing a
source of drinking water is at least one mile to the northwest,
and no private wells for drinking water exist in the vicinity of
the project, which is surrounded by commercial and industrial
users. All of these structures obtain their drinking water from
the County's public water system. In addition, ground water from
the dewatering project will not cause an exceedance of the
drinking water standard for iron offsite.
10. FDOT has petitioned for a temporary variance for 90
days for the dewatering project that has a flow of 1,000 gallons
per minute (gpm) to 1,500 gpm. The petition requested an
alternative ground water concentration for iron of 3.0 mg/L.
11. FDOT states that it would be a substantial hardship to
treat all of the water to meet the alternative DERM standard of
0.87 mg/L, with a cost for such treatment ranging from a low of
$450,000 for in situ iron removal to a high of $5,000,000, for
membrane methods such as reverse osmosis.
12. The purposes of the underlying statutes, protection of
ground water for use as a drinking water source, will be met if
the variance is granted because iron is a secondary standard
which is an aesthetic standard, and even at the alternative
concentration there are no health consequences. In addition, no
off-site exceedance of iron is expected, and there is no use of
the ground water for drinking water in the vicinity of the
project, with ground water flow away from the closest wellfield.
13. No public comment was received.
Therefore, based on the foregoing, the Emergency Variance is
hereby DENIED, and the temporary Variance is hereby GRANTED for
90 days from the effective date of this Order, to allow an
alternative iron concentration of 3.0 mg/L from the dewatering
project, with the following condition.
a. FDOT will undertake ground water monitoring for iron
close to the stormwater pond once per week for the first 4 weeks,
and then once a month for the remainder of the temporary
This final order will become final unless a petition for an
administrative proceeding is filed pursuant to the provisions of
sections 120.569 and 120.57 of the Florida Statutes. Any person
whose substantial interests are affected by the Department’s
action may file such a petition. The petition must contain the
information set forth below and must be filed (received) in the
Department’s Office of General Counsel, MS 35, 3900 Commonwealth
Boulevard, Tallahassee, Florida 32399-3000. Petitions filed by
FDOT or any of the parties listed below must be filed within 21
days of receipt of this order. Petitions filed by any other
person must be filed within 21 days of publication of the public
notice or within 21 days of receipt of this order, whichever
occurs first. A petitioner must mail a copy of the petition to
Rashid Z. Istambouli, Contract Manager, WRS Infrastructure &
Environment, Inc., Suite 12, 10025 NW 116th Way, Miami, Florida
33178, at the time of filing. The failure of any person to file
a petition 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, or to intervene in this proceeding and
participate as a party to it. Any subsequent intervention will
only be 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.
A petition must contain the following information:
(a) The name, address, and telephone number of each petitioner;
the Department case identification 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 Department action;
(c) A statement of how each petitioner's substantial interests
are affected by the Department action;
(d) A statement of the material facts disputed by the
petitioner, if any;
(e) A statement of facts that the petitioner contends warrant
reversal or modification of the Department action;
(f) A statement of which rules or statutes the petitioner
contends require reversal or modification of the Department
(g) A statement of the relief sought by the petitioner, stating
precisely the action that the petitioner wants the Department to
Because the administrative hearing process is designed to
formulate final agency action, the filing of a petition means that
the Department final action may be different from the position
taken by it in this order. Persons whose substantial interests
will be affected by any such final decision of the Department on
the petitions have the right to petition to become a party to the
proceeding, in accordance with the requirements set forth above.
Mediation under section 120.573 of the Florida Statutes is
not available for this proceeding.
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.
A party to this order has the right to seek judicial review
of it under section 120.68 of the Florida Statutes, by filing 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, Mail Station 35, 3900 Commonwealth Boulevard,
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 must be
filed within thirty days after this order is filed with the clerk
of the Department.
DONE AND ORDERED this ______ day of _____________ 2006 in
Mimi A. Drew
Director, Division of Water
Department of Environmental
2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Filed, on this date, pursuant to Section 120.52, F.S., with
the designated Department Clerk, receipt of which is hereby
Copies furnished to:
Linda Horne, WFA, SE District
Donnie McClaugherty, PG, MS 3580
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Final Order has been
furnished by FAX at 305/888-0140, and U.S. Mail to Rashid Z.
Istambouli, Project Manager, WRS Infrastructure & Environment,
Inc., Suite 12, 10025 NW 116th Way, Miami, Florida 33178, and by
U.S. Mail to Mauricio Gomez, FDOT-District VI, 1000 NW 11th
Avenue, Miami, FL 33172, an on this ______ day of February 2006.
Cynthia K. Christen
Sr. Assistant General Counsel
3900 Commonwealth Blvd.
Tallahassee, FL 32399-3000