Consent Order for water system violations in Apalachicola.

BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
V.
CITY OF APALACHICOLA
IN THE OFFICE OF THE NORTHWEST DISTRICT
OGC FILE NO. 25-1506
CONSENT ORDER
OGC FILE NO. 25-1506
This Consent Order (Order) is entered into between the State of Florida Department of Environmental Protection (Department) and City of Apalachicola (Respondent) pursuant to Section 120.57(4), Florida Statutes, to settle certain matters at issue between the Department and Respondent. The Department finds and Respondent admits the following: 1. The Department is the administrative agency of the State of Florida having the power and duty to protect Floridas water resources and to administer and enforce the provisions of the Florida Safe Drinking Water Act, Sections 403.850, et seq., Florida Statutes (F.S.), and the rules promulgated and authorized in Title 62, Florida Administrative Code (F.A.C.). The Department has jurisdiction over the matters addressed in this Order. 2. 3. Respondent is a person within the meaning of Section 403.852(5), F.S. Respondent is the owner and operator of a community public water system, PWS No. 1190150, located at #1 Avenue E, Apalachicola, in Franklin County, Florida (System). 4. On March 28, 2025, Department personnel completed a Sanitary Survey Inspection of the Water System. The Department finds that the following violations occurred: a) In 2023 the system was required to conduct routine monitoring for secondary containments, which included Odor. The system sampled for Odor on November 9, 2023, and the test results measured Odor at 8 Threshold Odor Number (TON), which exceeds the Secondary Maximum Contaminant Level (SMCL) of 3 TON. Rules 62-550.300, F.A.C., and 62-550.520(3), F.A.C. Since this initial violation, to address odor concerns, the system installed an aerator, conducted a hydrogen peroxide pilot study, and initiated well maintenance and repair. Odor was resampled on January 20th, 2026, and the results measured Odor at 1 TON which is below the SMCL. b) Isolation valves are not being exercised in accordance with a written plan. This is a repeat deficiency that was noted in the June 2019 and 2021 Sanitary Survey inspection reports. Rules 62-555.350(2) and 62-555.350(12)(c), F.A.C. c) At the time of the Inspection, the Operations & Maintenance (O&M) Manual did not contain operation and control procedures, preventive maintenance and repair procedures, for all plant equipment. Rule 62-555.350(13), F.A.C. On January 19, 2026, a followup site visit was conducted to review records and sufficient O&M Manual records were provided for all plant equipment. Having reached a resolution of the matter Respondent and the Department mutually agree, and it is ORDERED: 5. time periods: Respondent shall comply with the following corrective actions within the stated a) Within 30 days of the effective date of this Order, Respondent shall submit a valve exercise plan to the Department for review. The plan shall at minimum, establish the frequency of valve exercising and record keeping procedures. If the Department has any comments on the proposed plan, it will provide comments within 15 days of receipt. Respondent shall also submit a complete list of isolation valves within your system and provide records documenting all valves exercised within the previous five years of the effective date of this order. All outstanding valves shall comply with paragraph 5.b. below. b) No later than December 31, 2028, Respondent shall ensure that all isolation valves meet the minimum requirements of Rules 62-555.350(2) and 62-555.350(12)(c), F.A.C. The Respondent must submit progress reports quarterly, through December 31, 2028, verifying the isolation valves that were exercised during the reporting quarter in accordance with the approved plan. After December 31, 2028, isolation valves shall continue to be exercised in accordance with the applicable rules. 6. Within 90 days of the effective date of this Order, Respondent shall pay the Department $ 500.00 for costs and expenses incurred by the Department during the investigation of this matter and the preparation and tracking of this Order. 7. Within 30 days of written demand by the Department, Respondent shall pay the Department $4,750.00 in settlement of the regulatory matters addressed in this Order. The civil penalty in this case includes 3 violations that each warrant a penalty of $2,000.00 or more. The civil penalties are apportioned as follows: $3,000.00 for violations of Rule 62-550.520(3), F.A.C., $1,000.00 for violation of Rule 62-555.350(13), F.A.C., and $750.00 for violation of Rule 62-555.350(12)c, F.A.C. The Department agrees to waive the $4,750.00 civil penalty provided that Respondent fully and timely comply with all requirements set forth in Paragraph 5. 8. Respondent agrees to pay the Department stipulated penalties in the amount of $100.00 per day for each and every day Respondent fails to timely comply with any of the requirements of paragraphs 5 and 6 of this Order. The Department may demand stipulated penalties at any time after violations occur. Respondent shall pay stipulated penalties owed within 30 days of the Departments issuance of written demand for payment, and shall do so as further described in paragraphs 8 and 9, below. Nothing in this paragraph shall prevent the Department from filing suit to specifically enforce any terms of this Order. Any stipulated penalties assessed under this paragraph shall be in addition to the civil penalties agreed to in paragraph 6 of this Order. 9. Respondent shall make all payments required by this Order by cashiers check, money order or on-line payment. Cashiers check or money order shall be made payable to the Department of Environmental Protection and shall include both the OGC number assigned to this Order and the notation Water Quality Assurance Trust Fund. Online payments by e-check can be made by going to the DEP Business Portal at: http://www.fldepportal.com/go/pay/. It will take a number of days after this order becomes final, effective and filed with the Clerk of the Department before ability to make online payment is available. 10. Except as otherwise provided, all submittals and payments required by this Order shall be sent electronically by email to Kate Heller at Kate.Heller@FloridaDEP.gov, and copy the programs shared email box at NWDPWS@FloridaDEP.gov. 11. Respondent shall allow all authorized representatives of the Department access to the Facility and the Property at reasonable times for the purpose of determining compliance with the terms of this Order and the rules and statutes administered by the Department. 12. In the event of a sale or conveyance of the Facility or of the Property upon which the Facility is located, if all of the requirements of this Order have not been fully satisfied, Respondent shall, at least 30 days prior to the sale or conveyance of the Facility or Property, (a) notify the Department of such sale or conveyance, (b) provide the name and address of the purchaser, operator, or person(s) in control of the Facility, and (c) provide a copy of this Order with all attachments to the purchaser, operator, or person(s) in control of the Facility. 13. If any event, including administrative or judicial challenges by third parties unrelated to Respondent, occurs which causes delay or the reasonable likelihood of delay in complying with the requirements of this Order, Respondent shall have the burden of proving the delay was or will be caused by circumstances beyond the reasonable control of Respondent and could not have been or cannot be overcome by Respondents due diligence. Neither economic circumstances nor the failure of a contractor, subcontractor, materialman, or other agent (collectively referred to as contractor) to whom responsibility for performance is delegated to meet contractually imposed deadlines shall be considered circumstances beyond the control of Respondent (unless the cause of the contractors late performance was also beyond the contractors control). Upon occurrence of an event causing delay, or upon becoming aware of a potential for delay, Respondent shall notify the Department by the next working day and shall, within seven calendar days notify the Department in writing of (a) the anticipated length and cause of the delay, (b) the measures taken or to be taken to prevent or minimize the delay, and (c) the timetable by which Respondent intends to implement these measures. If the parties can agree that the delay or anticipated delay has been or will be caused by circumstances beyond the reasonable control of Respondent, the time for performance hereunder shall be extended. The agreement to extend compliance must identify the provision or provisions extended, the new compliance date or dates, and the additional measures Respondent must take to avoid or minimize the delay, if any. Failure of Respondent to comply with the notice requirements of this paragraph in a timely manner constitutes a waiver of Respondents right to request an extension of time for compliance for those circumstances. 14. The Department, for and in consideration of the complete and timely performance by Respondent of all the obligations agreed to in this Order, hereby conditionally waives its right to seek judicial imposition of damages or civil penalties for the violations described above up to the date of the filing of this Order. This waiver is conditioned upon Respondents complete compliance with all of the terms of this Order. 15. This Order is a settlement of the Departments civil and administrative authority arising under Florida law to resolve the matters addressed herein. This Order is not a settlement of any criminal liabilities which may arise under Florida law, nor is it a settlement of any violation which may be prosecuted criminally or civilly under federal law. Entry of this Order does not relieve Respondent of the need to comply with applicable federal, state, or local laws, rules, or ordinances. 16. The Department hereby expressly reserves the right to initiate appropriate legal action to address any violations of statutes or rules administered by the Department that are not specifically resolved by this Order. 17. Respondent is fully aware that a violation of the terms of this Order may subject Respondent to judicial imposition of damages, civil penalties up to $15,000.00 per day per violation, and criminal penalties. 18. Respondent acknowledges and waives its right to an administrative hearing pursuant to sections 120.569 and 120.57, F.S., on the terms of this Order. Respondent also acknowledges and waives its right to appeal the terms of this Order pursuant to section 120.68, F.S. 19. Electronic signatures or other versions of the parties signatures, such as .pdf or facsimile, shall be valid and have the same force and effect as originals. No modifications of the terms of this Order will be effective until reduced to writing, executed by both Respondent and the Department, and filed with the clerk of the Department. 20. The terms and conditions set forth in this Order may be enforced in a court of competent jurisdiction pursuant to sections 120.69 and 403.121, F.S. Failure to comply with the terms of this Order constitutes a violation of section 403.161(1)(b), F.S. 21. This Consent Order is a final order of the Department pursuant to section 120.52(7), F.S., and it is final and effective on the date filed with the Clerk of the Department unless a Petition for Administrative Hearing is filed in accordance with Chapter 120, F.S. Upon the timely filing of a petition, this Consent Order will not be effective until further order of the Department. 22. Respondent shall publish the following notice in a newspaper of daily circulation in Franklin County, Florida. The notice shall be published one time only within 15 days of the effective date of the Order. Respondent shall provide a certified copy of the published notice to the Department within 10 days of publication.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION NOTICE OF CONSENT ORDER The Department of Environmental Protection (Department) gives notice of agency action of entering into a Consent Order with the CITY OF APALACHICOLA pursuant to section 120.57(4), Florida Statutes. The Consent Order addresses the violations regarding the improper operation and maintenance of the potable water system at #1 Avenue E, Apalachicola, Florida 32320. The Consent Order 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 Department of Environmental Protection, Northwest District, 160 West Government Street, Suite 308, Pensacola, Florida 32502. Persons who are not parties to this Consent Order, but whose substantial interests are affected by it, have a right to petition for an administrative hearing under sections 120.569 and 120.57, Florida Statutes. Because the administrative hearing process is designed to formulate final agency action, the filing of a petition concerning this Consent Order means that the Departments final action may be different from the position it has taken in the Consent Order. The petition for administrative hearing must contain all of the following information: a) The name and address of each agency affected and each agencys file or identification number, if known; b) The name, address, any e-mail address, any facsimile number, and telephone number of the petitioner, if the petitioner is not represented by an attorney or a qualified representative; the name, address, and telephone number of the petitioners representative, if any, which shall be the address for service purposes during the course of the proceeding; and an explanation of how the petitioners substantial interests 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 agencys proposed action; f) A statement of the specific rules or statutes the petitioner contends require reversal or modification of the agencys proposed action, including an explanation of how the alleged facts relate to the specific rules or statutes; and g) A statement of the relief sought by the petitioner, stating precisely the action petitioner wishes the agency to take with respect to the agencys proposed action. The petition must be filed (received) at the Departments Office of General Counsel, 3900 Commonwealth Boulevard, MS# 35, Tallahassee, Florida 32399-3000 or received via electronic correspondence at Agency_Clerk@floridadep.gov, within 21 days of receipt of this notice. A copy of the petition must also be mailed at the time of filing to the District Office at Northwest District, 160 West Government Street, Suite 308, Pensacola, Florida 32502.. Failure to file a petition within the 21-day period constitutes a persons waiver of the right to request an administrative hearing and to participate as a party to this proceeding under sections 120.569 and 120.57, Florida Statutes. Within 10 days after filing a petition, a person whose substantial interests are affected by this Consent Order may choose to pursue mediation as an alternative remedy under section 120.573, Florida Statutes. Choosing mediation will not adversely affect such persons right to an administrative hearing if mediation does not result in a settlement. Additional information about mediation is provided in section 120.573, Florida Statutes and Rule 62-110.106(12), Florida Administrative Code. 23. Rules referenced in this Order are available at https://floridadep.gov/ogc/ogc/content/rules.
FOR THE RESPONDENT:
Brenda Ash
Mayor
Date: March 12, 2026
DONE AND ORDERED this 12th day of March, 2026, in Franklin County Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
Brandy M. Smith for
Elizabeth Mullins Orr
Director Northwest District
Filed, on this date, pursuant to section 120.52, F.S., with the designated Department Clerk, receipt of which is hereby acknowledged.
Michelle Goldsmith
Clerk
Date: March 17, 2026

April 2, 2026
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