STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERT G. GALAMBOS, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 89-4143

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, J. Stephen Menton, held a formal hearing in the above-styled case on October 26, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Albert D. Galambos, Jr., pro se

4380 S.W. 95th Avenue Miami, Florida 33165

For Respondent: Cynthia K. Christen, Esquire

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUES

The issue presented in this case is whether the Petitioner has the requisite experience necessary in order to qualify to take a Class A drinking water treatment plant operator certification exam.

PRELIMINARY STATEMENT

By Notice of Final Order of Denial dated May 20, 1989, Respondent notified Petitioner that his application to take the prerequisite examination for certification as a Class A drinking water treatment plant operator had been denied. As reason for the denial, the Notice of Final Order of Denial stated that Petitioner did not have the requisite actual experience as an operator of a treatment as defined in Rule 17-16.03, Florida Administrative Code.

By Amended Petition for Formal Administrative Hearing filed with the Department of Environmental Regulation on July 27, 1989, Petitioner objected to the denial and requested a formal hearing. On August 1, 1989, Respondent

referred the matter to the Division of Administrative Hearings with a request that a Hearing Officer be assigned to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the formal hearing, Petitioner testified on his own behalf and offered six exhibits which were received into evidence. Respondent presented the testimony of two witnesses, Helen Setchfield and Joseph Habraker, (who was accepted as an expert in the operation of water treatment plants,) and offered two exhibits which were received into evidence.

Respondent elected not to engage the services of a certified court reporter to preserve the record of the proceeding and duly notified Petitioner of Respondent's intent to use mechanical recording equipment to preserve the record. The official record of the formal hearing has been preserved on cassette tapes. Both parties timely submitted proposed findings of fact. The proposed findings of fact have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. On May 11, 1989, Petitioner, Albert Galambos, submitted an application to Respondent, Department of Environmental Regulation ("DER"), to take the prerequisite examination necessary for certification as a Class A drinking water treatment plant operator.

   
   

2. On May 20, 1989, Helen Setchfield, Certification Officer for DER mailed to the Petitioner a Notice of Final Order of Denial of Petitioner's Application for Examination and Certification as a Class A drinking water treatment plant operator. The Notice of Final Order of Denial stated that Petitioner was ineligible to sit for the examination and/or was ineligible for certification as a Class A drinking water treatment plant operator because his "actual experience is in an occupation which does not qualify as actual experience as an operator of a treatment plant as defined in Section 17-16.03,

   
   

3. Petitioner has worked at the Miami-Dade Water and Sewer Authority Department ("Authority") for 17 years. His current position is Water and Sewer Mechanical Operations Supervisor, a position he has held since 1983. This position entails actual onsite operational control of the equipment and mechanical processes of the Authority's water production plants and overseeing all maintenance of equipment at the Authority's three regional water treatment plants and the smaller interim plants, developing safety procedures for the operation of equipment, training plant personnel in the mechanical operation of the equipment, establishing maintenance schedules and maintaining those records, and taking samples as necessary to determine proper equipment functioning, performing or overseeing the loading of chemicals and the connecting of chlorine cylinders, and the recharging of these systems. He assists the certified operators in remedial action if some aspect of the plant is not functioning properly, but he has no supervisory authority over the certified operators. Petitioner is held responsible by the Division Director for the smooth running of the equipment at the Authority's water treatment plants. He prepares reports, logs and records regarding the mechanical equipment and operations of the plant. Petitioner supervises and manages 36 employees who are mechanics, electricians and laborers.

4. From 1979 to 1983, Petitioner was a plant maintenance foreman for the Authority. This position included responsibility for supervising and performing skilled mechanical tasks on a variety of mechanical equipment at the water plants.

   
   

5. From 1976 to 1979, Petitioner was a plant mechanic at the Authority. This position was skilled work at the journeyman level in the installation, repair, and maintenance of mechanical equipment at the water plants.

   
   

6. Between 1974 and 1976, Petitioner worked in an unclassified position doing what a diesel plant operator does at the Authority. This position involved responsibility for the operation of large diesel engines used to drive large pumps and related equipment.

   
   

7. From 1972 and 1974, Petitioner was a semiskilled laborer with the Authority. This position involved heavy manual work requiring limited skills in various maintenance tasks.

   
   

8. Petitioner has never served as a drinking water treatment plant operator nor been licensed as a drinking water treatment plant operator at any classification. Petitioner has not previously applied for, nor obtained any water treatment plant operator certification.

   
   

9. Petitioner has successfully completed the required course work for Class A operator certification.

   
   

10. Petitioner is a high school graduate and has successfully completed the required coursework for certification. These activities yield three years and four months of constructive experience towards certification.

    
    

11. Petitioner's experience prior to 1983 did not constitute actual experience because in those positions, Petitioner did not have operational control of a drinking water treatment plant.

    
    

12. Even if Petitioner's current position was accepted as "actual experience" (a determination which is specifically not resolved here,) the combination of Petitioner's constructive and actual experience would be less than the twelve years of experience required for certification as a Class A operator. Thus, Petitioner has failed to prove that he meets the experience requirement necessary for certification as a Class A drinking water treatment plant operator.

    
    

13. Petitioner's current position is supervisory and he has a great deal of maintenance experience gained through his various positions at the Authority. Petitioner's current position affords him the opportunity to learn about many aspects of operating a treatment plant efficiently by conducting inspections of the treatment plant processes, monitoring of the treatment plant processes, and adjusting the treatment plant processes. However, the evidence did not establish that Petitioner manages the treatment plant processes as required to constitute actual experience under the existing rules. It is unclear from the evidence presented whether Petitioner's day-to- day onsite experience at the plants constitutes the actual operational control of a water treatment plant.

    It would appear that Petitioner's current position does not allow him experience in managing the overall treatment process. However, further evidence and/or a better understanding of Petitioner's job responsibilities could alter this observation. In view of the disposition reached in this case, that issue need not be addressed further at this time.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

    
    

15. Respondent is authorized to establish qualifications for, and to examine and certify, water treatment plant operators, Section 403.101(3), Florida Statutes. Pursuant thereto, Respondent has promulgated criteria for the certification of drinking water treatment plant operators. These criteria are set forth in Rule 17-602.300, et seq., Florida Administrative Code.

    
    

16. Petitioner has the burden of proving that he meets the criteria for certification, Florida Department of Transportation v. J. W. C. Company, Inc.,

    396 So.2d 778 (Fla. 1st Dist. App. 1981).

    
    

17. In pertinent part, the criteria, in Rule 17- 602.300(4), require that an applicant for Class A certification must document the following:

    
    

    ... at least twelve (12) years of actual or recognized constructive experience as herein scheduled which shall include at least four

    (4) years of actual experience in the operation, supervision, and maintenance of either a drinking water or domestic wastewater treatment plant, as appropriate.

    
    

18. Actual experience is defined in Rule 17-602.200(1) as "full time employment in the actual onsite operational control of a water or wastewater treatment plant." In the certification process, actual experience for the purposes of computing eligible treatment plant operation is further defined in Rule 17-602.300(10) as follows:

    
    

    (10) Actual experience recognized by the Department for computing eligible treatment plant operation includes experience in item

    (a) below and experience in at least 3 other areas listed in (b) through (f):

    
    

    1. Management, inspection, monitoring and adjustment of the plant treatment processes.

    2. Collection of samples, in-plant testing or interpretation of test results.

    3. Supervision and management of plant personnel.

    4. Preparation and maintenance of reports, logs and records.

    5. Adjustment and recharging of chemical feeding equipment.

    6. Maintenance, lubrication and repair of plant equipment. ...

    
    

19. DER Form 17-1.210(1), page 2, paragraph 7, further describes what functions relate to actual onsite experience. The functions described therein constitute actual experience in combination, and not as any single item. In describing what "full time employment" means, this paragraph states that the majority of the applicant's experience must be duties which relate to the

    operational control of a plant, that is, duties in which the applicant is learning to operate a treatment plant efficiently. It further states, "a person who is limited solely to driving a sludge truck, maintenance, laboratory, collection or distribution systems, etc. and is not actively involved in plant operational control is not gaining `actual' experience time for certification."

    
    

20. To reach the required twelve years of experience, Petitioner has shown that he has obtained some constructive experience, Rule 17-602.300(4). Constructive experience for the purposes of calculating the eligibility for Class A certification as quoted from Rule 17-602.300(6) includes the following:

    
    

    CONSTRUCTIVE EXPERIENCE NUMBER OF MONTHS SCHEDULED

    High School Graduate: 24

    
    

    Successful completion, or instruction 1 for each 8 classroom of an approved resident hours or for each 16

    training course.* laboratory hours.

    
    

21. The proof demonstrated that Petitioner had only 3 years and 4 months of constructive experience under Rule 17- 602(6). This total is calculated by applying Rule 17-602.300(6) to the following proven experience: Petitioner completed high school which granted him twenty-four months credit and Petitioner successfully completed an approved training course which granted him sixteen months credit.

    
    

22. Petitioner has failed to demonstrate the additional eight years and eight months of actual or constructive experience necessary for certification as a class A operator (at least four years of this additional experience requirement would have to qualify as "actual" experience).

    
    

23. Petitioner's experience prior to serving as Water and Sewer Mechanical Operations Supervisor does not constitute actual experience as specified in Rule 17-602.300(10). Specifically, he has not shown that his day-to-day responsibilities and activities prior to 1983 embodied management, inspection, monitoring and adjustment of the plant treatment processes as required in Rule 17-602.300(10)(a). Since Petitioner failed to demonstrate that his experience was comprised of a combination of twelve years of actual and constructive experience, he does not meet the experience requirements for a Class A Operator under Rule 17-602.300(4) regardless of whether his tenure as Water and Sewer Mechanical Operations is accepted as actual experience.

    
    

24. His activities during the time period since 1983 does satisfy subparagraphs (b)-(f) of Rule 17-602.300(10) i.e., collecting samples, in-plant testing and interpreting results, subparagraph(b); supervision and management of plant personnel, subparagraph (c); preparation and maintenance of reports, logs and records, subparagraph (d); adjusting and recharging chemical feeding equipment, subparagraph (e); and maintaining, lubricating and repairing plant equipment, subparagraph (f). However, Petitioner failed to demonstrate that his years of experience as Water and Sewer Mechanical Operations Supervisor from 1983 through the present contained the overall management responsibilities required in Rule 17-602.300(10)(a), although, arguably, his experience did involve the inspection, monitoring and adjustment elements of Rule 17- 602.300(10)(a).

25. Respondent argues that Rule 17-602.300(5) prevents any of Petitioner's experience as Water and Sewer Mechanical Operations Supervisor from being considered as actual experience. Rule 17-602.300(5) reads as follows:

    
    

    Periods of employment as directors of public works, engineers, utility managers, regulatory inspectors, or in other occupations which do not include actual operations or direct onsite supervision of the operation of water or wastewater plants shall not be credited as actual experience as defined herein.

    
    

    Petitioner's current position does appear to provide him with experience in actual operations. However, at this point it is unclear whether the position is broad enough to provide him with experience in "management of the plant treatment process."

    
    

26. Petitioner is obviously a diligent, ambitious and capable person. While he is learning many of the aspects of operating a water treatment plant, in order for this experience to count towards certification under the existing rules, he will have to demonstrate that he has been involved in the management of the treatment process. It is unclear whether he will be able to demonstrate that his current job responsibilities will qualify. The nature of the current rules creates somewhat of a dilemma. On the one hand, Petitioner needs overall management responsibility to satisfy the actual experience requirements. However, he may be unable to get that experience in his current job even though it involves significant responsibilities at several plants. Unfortunately, this frustrating scenario is built into the existing licensing structure. That structure is not at issue in this proceeding. It may be necessary for Petitioner to obtain certification at a lower level and assume overall management on a small scale in order to qualify under this structure.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation issue a final

order denying Petitioner's application of May 10, 1989, for certification as a

Class A drinking water treatment plant operator.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of January 1990.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1990.

ENDNOTE

1/ Course work must pertain to the type of certification desired, i.e., drinking water treatment courses will not be credited toward wastewater certification, and vice versa.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Adopted in substance in Findings of Fact 3.

2. Adopted in the Preliminary Statement.

3. Adopted in substance in Findings of Fact 1.

4. Adopted in substance in Findings of Fact 2.

5. Adopted in the Preliminary Statement.

6. Rejected as irrelevant.

7. Rejected as irrelevant.

8. Adopted in the Preliminary Statement.

9. Subordinate to Findings of Fact 3.

10. Subordinate to Findings of Fact 3.

11. Subordinate to Findings of Fact 3.

12. Subordinate to Findings of Fact 3.

13. Subordinate to Findings of Fact 3.

14. Subordinate to Findings of Fact 3-8.

15. Subordinate to Findings of Fact 3-8.

Respondent's proposed findings of fact are addressed as follows:

1. Adopted in substance in Findings of Fact 3.

2. Adopted in substance in Findings of Fact 4.

3. Adopted in substance in Findings of Fact 5.

4. Adopted in substance in Findings of Fact 6.

5. Adopted in substance in Findings of Fact 7.

6. Adopted in substance in Findings of Fact 8.

7. Adopted in substance in Findings of Fact 1.

8. Adopted in substance in Findings of Fact 1.

9. Rejected as irrelevant.

10. Rejected as a legal conclusion rather than a finding of fact.

11. Rejected as irrelevant.

12. Adopted in substance in Findings of Fact 10.

13. Rejected as constituting argument and not a finding of fact.

14. Rejected as a summary of testimony and not a finding of fact.

COPIES FURNISHED:

Albert D. Galambos, Jr., pro se 4380 S.W. 95th Avenue

Miami, Florida 33165

Cynthia K. Christen, Esquire Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel H. Thompson General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Docket for Case No: 89-004143

Orders for Case No: 89-004143