Judges: WILLIAM E. WILLIAMS
Agency: Department of Environmental Protection
Latest Update: Feb. 26, 1979
Summary: Respondent violated regulations for water system and should pay costs of investigation/prosecution.
78-1209.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 78-1209
) DER NO. WC-10-78
EUGENE HARDY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on January 5, 1979, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Vance W Kidder, Esquire
Assistant General Counsel
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32301
For Respondent: None
On April 28, 1978, Petitioner, the State of Florida Department of Environmental Regulation (Department), issued a Notice of Violation and orders for Corrective Action against Respondent Eugene Hardy, concerning the alleged unauthorized operation of a public water system by Respondent in Chipley, Washington County, Florida, in violation of Sections 403.850-864, Florida Statutes, Rule 17-22.01.101-114, Florida Administrative Code. On June 16, 1978, Florida Statutes filed an answer and demand for administrative hearing.
Thereafter, in accordance with the provisions of Section 120.51(1)(b)(3), Florida Statutes, the Department requested that a Hearing Officer from the the Division of Administrative Hearings be assigned to conduct the hearing.
The final hearing was initially scheduled for Friday, October 20, 1978, by Order date August 17, 1978. On August 25, 1978, the Department propounded a set of interrogatories to Respondent and also filed a request for permission to enter land or other property pursuant to the applicable provisions of the Florida rules of Civil Procedure. After scheduling the final hearing in this cause, on October 3, 1978, the Department filed a Motion to Compel Discovery asserting that Respondent had failed to answer the aforesaid set of interrogatories and had also failed to respond to Petitioner's request to enter the property for inspection. ON October 16, 1978, this Hearing Officer entered an order cancelling the final hearing scheduled for October 20, 1978, on the grounds that the Department would be potentially prejudiced in preparation of
its case by virtue of not having received any responses to its discovery attempts, and scheduling a hearing for Friday, October 20, 1978, on Petitioner's Motion to Compel Discovery. After entry of this Hearing Officer's order cancelling the final hearing in this cause, and scheduling a hearing on the Department's Motion to Compel, Respondent filed a Motion to Continue the final hearing on the grounds that he would not be in the State of Florida on the dates scheduled for that hearing. In light of the Hearing Officer's Order of October 16, 1978, Respondent's Motion to Continue was rendered moot.
On October 20, 1978, an order was entered allowing Respondent twenty additional days in which to respond to the Department filed a Motion for Default asserting that the Respondent had not complied with the Order of October 20, 1978, requiring that he respond to the Department's discovery attempts.
Thereafter, by order dated November 30, 1978, an Order of Default was entered finding the Respondent to be in default, and allowing Respondent twenty days in which to show cause why the default should be set aside, failing which the Department would be allowed to present its case at final hearing, as if it were uncontested pursuant to Rule 28-5.25 (5), Florida Administrative Code 3.
Respondent filed no response to the Order of Default.
Respondent failed to appear at the final hearing. At the final hearing, the Department called as its witnesses Daniel C. Walker and Robert V. Kriegel. The Department offered Petitioner's Exhibits A through J, inclusive, all of which were received into evidence.
FINDINGS OF FACT
Respondent is an individual who owns or operates a water system that provides piped water for human consumption to the Hardy House Diner in Washington county, Florida. The water system serves at least 35 persons daily at least 60 days out of the year. Respondent has owned or operated the water system since at least October 28, 1976.
Respondent does not continually apply effective disinfectant measure to the water distributed to the customer of the Hardy House Diner, nor is Respondent's water system equipped with any disinfection equipment.
Respondent's water system has a daily flow greater than 2,500 gallons per day, but less than 100,000 gallons per day. The operation, maintenance and supervision of the water system is not performed by a person who has passed an examination that entitles such a person to be a certified operator.
Neither the Department nor the Washington County, Florida Health Department has received from Respondent reports which contained information about the operation and maintenance of the Respondent's water system.
The water system's lack of disinfectant equipment and the absence of a certified operator for the system and Respondent's failure to file operation reports have existed continuously since "October, 1976.
Representatives of the Department conducted a public water systems inspection of Respondent's water system on October 26, 1976. At that time, the system was found to be unsatisfactory in several categories, including general plant condition, existence of safety hazards, lack of chlorination, failure to submit regular reports, failure to submit monthly bacteriological samples, failure to perform chemical analysis of drinking water and failure to install a raw water tap between the pump and point of chlorination.
A second inspection was performed on April 7, 1977, in which it was determined that Respondent still had not installed a chlorinations system, had failed to submit monthly operating reports had failed to employ a certified operator, had failed to submit monthly bacteriological samples, and had failed to perform annual chemical analysis of water disposed from the system.
On December 7, 1977, a representative of the Department whose job responsibilities included inspecting public water systems was refused permission to enter and inspect the water system serving the Hardy house diner and its customer. The Department representative was refused entry after he had identified himself and made his purpose known to Respondent.
The Department has incurred expenses of $117.58, including personnel time and travel expense, in the course of investigating Respondent's alleged violations.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Sections 120.57(1), 120.60, Florida Statutes.
Because the Respondent's water system serves piped water to more than twenty-five individuals at least sixty days out of the year, the Respondent is a person who owns or operates a public water system and is therefore a supplier of water. The Respondent's public water system is a non-community public water system subject to and regulated by Sections 403.851-403.864, Florida Statutes, and Rules 17-22.101-17-22.114, Florida Administrative Code.
Rule 17-22.106(3)(c), Florida Administrative Code, required systems to continually have effective disinfection measure employed on the water which the system distributes. The Respondent's public water system has not had and does not have disinfection measures continually employed. The Respondent does not comply and has not complied with Rule 17-22.106(3)(c) and Rule 17-22.08(6), Florida Administrative Code.
Rule 17-22.107(3)(b), Florida Administrative Code, require, and before it Rules 17-22.08(2) and 17-22.16(2), Florida Administrative Code, required public water systems to be operated and maintained by a person who is a certified operator. Rule 17-16.12(2), Florida Administrative Code, requires that Class D certified operator be employed for systems with a design flow of from 2,500 to 100,000 gallons per day. Rule 17-16.15, Florida Administrative Code, prohibits employment of any person to perform the duties of an operator unless the person possesses a valid certificate. The Respondent does not comply and has not complied with Rules 17-22.107(3)(b), 17-22.08(2) and 17-22.16(2), Florida Administrative Code, respectively, because the Respondent has not compiled and submitted the required monthly operation reports.
Section 403.858, Florida Statutes, empowers duly authorized representatives of the Department to enter and inspect any property or premises, except a building which is used exclusively for a private residence, on or at which a public water system is located at any reasonable time. The Respondent, when he refused the Department's representative entry to Respondent's water system, refused a duly authorized representative of the Department entry to property or premises, which is not a building used as a residence, on or at which public water is located. Respondent has therefore violated Section
403.859(4), Florida Statutes, because he has failed to allow a duly authorized representative of the Department to conduct an inspection pursuant to Section 403.858, Florida Statutes.
The Department is entitled to require the Respondent to pay the reasonable costs and expenses incurred in investigating this violation and in prosecuting this administrative proceeding. Section 403.860(3), Florida Statutes.
RECOMMENDATION
RECOMMENDED:
That a final order be entered by the State of Florida, Department of Environmental Regulation, finding the Respondent to be in violation of the above-referenced statutes and regulations, and requiring Respondent to pay the state its reasonable costs and expenses, in the amount of $117.58 incurred in investigating and prosecuting this administrative proceeding.
RECOMMENDED this 26th day of February, 1979, at Tallahassee, Florida.
WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building
2230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1979.
COPIES FURNISHED:
Vance W. Kidder, Esquire Assistant General Counsel Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Mr. Eugene Hardy 1005 Highway 90 West
Chipley, Florida 32428
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Petitioner,
vs. CASE NO. 78-1209
DER Case No. WC-10-78
EUGENE HARDY,
Respondent.
/
FINAL ORDER
BY THE DEPARTMENT:
On February 26, 1979, the duly appointed Hearing Officer in the above- styled matter completed and mailed to the Department and all parties a Recommended Order consisting of his findings of fact, conclusions of law, and recommendations, a copy of which is attached hereto as Exhibit "A".
Pursuant to Section 17-1.68, Florida Administrative Code, and Section 120.57(1)(b)(8), Florida Statutes, the parties were allowed ten (10) days in which to present written exceptions to the Recommended Order. On March 5, 1979, Respondent, State of Florida Department of Environmental Regulation, submitted its Response to the Hearing Officer's Recommended Order. A copy of the Response is attached hereto as Exhibit "B". The Recommended Order thereafter came before me, as head of the Department, for final agency action on this matter.
Pursuant to Section 120.57(9), Florida Statutes, the following guidelines apply to the rendition of this final order:
The agency may adopt in the recommended order as the agency's final order. The agency in its final order may reject or modify the conclusions of law and inter- pretation of administrative rules in the recommended order...
An effort has been made to fairly apply this test with careful deliberation. After consideration of the record, the exhibits, pleadings, and Recommended Order, the Secretary, as head of the Department, enters the following conclusions of law:
The Respondent violates Section 403.859(2), Florida Statutes. The first Exception filed by the Department is well taken.
The Hearing Officer found that the Respondent does not comply and has not complied with Sections 17-22.106(3)(c), 17-22.107(3)(b), 17-22.16(2), 17- 22.107(3)(b), and 17-22.111(2), Florida Administrative Code. Section 403.859(2), Florida Statutes, prohibits a supplier of water from failing to comply with the rules contained in Chapter 17-22.16(2), 17-22.107(3)(b), and 17- 22.111(2), Florida Administrative Code. Section 403.859(2), Florida Statutes, prohibits a supplier of water from failing to comply with the rules contained in Chapter 17-22, Florida Administrative Code, and makes such a failure a violation of the Florida Safe Drinking Water Act. Accordingly, the Conclusions of Law in the Recommended Order and the additional conclusion of law herein are adopted as final action of the agency.
The Respondent, being in violation of Sections 403.859(2) and 403.859(4), Florida Statutes, must abate the violations of law. The second Exception filed by the Department is well taken.
The administrative process would be a meaningful exercise if the Department was able to find the Respondent in violation of law, but unable to order the Respondent to abate such violation. Accordingly, the specific corrective actions which are contained in Section 8 of the Notice of Violation and Orders for Corrective Action and which were supported by the testimony of Mr. Walker are adopted as final agency action of this agency.
It is, therefore, ORDERED, by the State of Florida Department of Fact and Conclusions of Law, is adopted, with the following modifications:
The Respondent shall abate the violations of law by performing the specific corrective actions contained in the Notice of Violation and Orders for Corrective Action in DOAH Case No. 78-1209, DER Case No. WC-10-78, to wit:
The Respondent can resolve, satisfy and correct the violations within thirty (30) days of service (postmark date) of this Notice of Violation and Order, as follows:
Install and thereafter continually employ effective disinfection measures to the water distributed by the Respondent's public water system, i.e., comply with Section 17-22.106(3)(c), Florida Administrative Code.
Employ a Class "D" certified operator to operate and maintain the Respondent's public water system or himself pass the examination and become a Class "D" certified operator, i.e., comply with Section 17-22.107(3)(b), Florida Administrative Code. The Respondent's public water system must thereafter be operated and maintained in accordance with Chapter 17-16, Florida Administrative Code. The Respondent must also thereafter submit monthly operation reports in compliance with Section 17-22.111(2), Florida Administrative Code.
Allow Mr. Walker, or any other duly authorized representative of the Department, entry to inspect the Respondent's public water system.
Pay to the state's general revenue fund the costs and expenses that the Department expended while investigating and prosecuting this Notice of Violation and Orders for Corrective Action.
DONE and ENTERED this 10th day of April, 1979, in Tallahassee, Florida.
JACOB D. VARN
Secretary
Copies furnished:
Eugene Hardy
1005 Highway 90 West
Chipley, Florida 32428
cc: Walt Flanigan, DER
Division of Administrative Hearings Paul Parks, DER
Docket for Case No: 78-001209
Orders for Case No: 78-001209
| Issue Date |
Document |
Summary |
|
Feb. 26, 1979 |
Recommended Order
|
Respondent violated regulations for water system and should pay costs of investigation/prosecution.
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