STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Petitioner,

vs.

THOMAS B. MAHON,

Respondent.

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) Case No. 11-2276

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RECOMMENDED ORDER

The final hearing in this case was held on November 30, 2011, by video teleconference at sites in Tallahassee and Tampa, Florida, before Bram D. E. Canter, an Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Matthew Smith-Kennedy, Esquire

Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Respondent: Thomas B. Mahon, pro se

8151 Gall Boulevard

Zephyrhills, Florida 33541 STATEMENT OF THE ISSUES

The issues to be determined in this case are whether the Respondent, Thomas B. Mahon, violated state regulations related to the operation, maintenance, and supervision of domestic wastewater treatment facilities ("WWTFs") and potable water

systems ("PWSs"), as alleged by the Department of Environmental Protection ("Department") and, if so, whether his wastewater treatment and drinking water operator licenses should be suspended or revoked.

PRELIMINARY STATEMENT

On March 10, 2011, the Department issued an Administrative Complaint for Revocation of Wastewater and Drinking Water Operator Licenses, which included 28 counts against Respondent for violation of rules related to the operation of WWTFs and PWSs. Respondent filed a Petition for Formal Administrative Hearing on March 25, 2011. The Department dismissed the Respondent’s initial petition and Respondent filed an amended petition on May 4, 2011. The Department referred the amended petition to DOAH. On June 8, 2011, the Department filed an amended complaint. By stipulation of the parties, the amended petition serves to challenge the amended complaint.

The Department served a request for admissions upon Respondent in which Respondent was asked to admit each allegation of the complaint. When Respondent did not respond, the Department moved to have the matters deemed admitted.

Respondent was ordered to show cause why the matters set forth in the Department's request for admissions should not be deemed admitted. Following Respondent's response to the Order to Show

Cause, the Department's motion to deem the matters admitted was granted.

At the beginning of the final hearing, the Department stated that it was dropping its charge in Count XXI of the complaint that Respondent falsified entries in a WWTF log book. The Department presented the testimony of Frank Fulghum and Department Exhibit A was admitted into evidence. Respondent testified on his own behalf and presented the testimony of Michael Lloveras and Moritz Pila. Respondent had no exhibits that were admitted into evidence.

A court reporter recorded the final hearing, but a transcript was not ordered or filed by either party. The Department submitted a proposed recommended order. Petitioner filed a letter with attachments. The attachments were not offered into evidence at the final hearing and, therefore, are not admitted into the evidentiary record.

FINDINGS OF FACT

1. Respondent is a dual-licensed, Class C WWTF and PWS operator. The Department issued Respondent a wastewater license on February 1, 1986. The license was renewed on April 30, 2009. The Department issued Respondent a drinking water license on

   May 1, 1987. The drinking water license was also renewed on April 30, 2009.

   
   

2. Respondent was contracted to operate and maintain nine WWTFs located in Hillsborough and Pasco Counties.1/

3. Respondent was contracted to operate and maintain eight PWSs located in Pasco County.

4. The effect of the Order which deemed as admitted all matters in the Department's request for admissions is to establish all the allegations of the complaint as facts in evidence, except for the allegation of falsification of records, which allegation the Department withdrew.

5. Florida Administrative Code Rule 62-602.650(3) requires that operators maintain an operation and maintenance log book ("O&M log") for each WWTF and PWS and to keep the O&M log on site for inspection. On one Department inspection in 2009, Respondent failed to have the O&M log on site at one of the WWTFs that he operated and maintained. On 15 Department inspections in 2010, Respondent failed to have the O&M log on site for inspection at several WWTFs and PWSs that he operated and maintained.

6. Rule 62-601.300(1) requires WWTF operators to monitor the operation of the WWTFs and to submit monthly Discharge Monitoring Reports ("DMRs") to the permitee and to the Department. In 2010, there were 25 times when Respondent failed to timely submit DMRs.

   
   

7. Rule 62-555.350(12)(b) requires PWS operators to monitor the operations of the PWS and to timely submit monthly operating reports ("MORs") to the water supplier and to the Department. In 2010, there were 20 times when Respondent failed to timely submit MORs.

8. In addition to recordkeeping and reporting duties, operators of WWTFs are required to perform responsible and effective on-site operation, supervision, and maintenance of the facility. See Fla. Admin Code R. 62-602.650(1). The WWTFs for which Respondent had responsibility were sometimes operating out of compliance with Department rules and standard operating practices. For example, at different times at different WWTFs, the nitrate limit was exceeded, the surface of the clarifier was covered with solids, there were solids at the bottom of the chlorine contact chamber, the annual average fecal coliform limit was exceeded, the maximum fecal coliform maximum limit was exceeded, there was excessive foam and scum on clarifier’s surface, the lift station warning system was not operational, the calibration for meters had expired, there was accumulated sludge in the percolation pond, the blower’s air filter was dirty and overdue for replacement, facility upsets were not reported, the stilling well was full of dried solids, the pump drive belt was cracked, air diffusers were clogged or broken,

   
   

   the lift station’s audible and visual alarms were inoperable, and solids were discharging over the clarified weir.

9. These conditions are not consistent with standard operating practices for WWTFs.

10. The Department did not claim nor present evidence to show that these conditions have resulted in harm to public health or safety or to the environment.

11. Respondent's expert witness acknowledged that Respondent was not good with "paperwork," but said that the operating problems described in paragraph 8, above, are common to all small WWTFs. The Department presented no testimony to rebut that statement.

12. Respondent asserted that he is a victim of selective enforcement by the Department. However, because neither party presented evidence to show how frequently the described problems occur for most licensed WWTF operators or that the Department does not seek similar disciplinary action against other operators with similar numbers of noncompliance issues, the record does not support Respondent's claim of selective enforcement.

13. In April 2007, the Department and Respondent entered into a consent order regarding Respondent's failure to submit DMRs for several WWTFs and for failure to perform responsible and effective on-site management and supervision of WWTFs for

    
    

    which he was the operator. Respondent was placed on one-year probation. The consent order included a provision that failure to comply with all WWTF operator duties set forth in rule

    62-602.650 "will result in a minimum penalty of two year suspension" of Respondent's wastewater license.

14. With the exception of one residential development, Respondent is no longer under contract with owners of WWTFs and PWSs to provide operation and maintenance services. He is now an employee of a facility management company which contracts with owners to provide such services.

    CONCLUSIONS OF LAW

    
    

15. The Department is authorized by sections 403.865 through 403.876, Florida Statutes (2011)2/ to establish qualifications, examine and certify water and wastewater treatment plant operators, and issue, deny, revoke, or suspend operator licenses.

16. The Department is authorized to conduct disciplinary proceedings in accordance with chapter 120, Florida Statutes. See § 403.876(2), Fla. Stat.

17. The admissions and other record evidence establish Respondent's violation of all counts of the complaint.

18. The failure to maintain records, submit reports, and to perform treatment plant or water distribution system operations in a manner consistent with standard operating

    
    

    practices are grounds for disciplinary action. See Fla. Admin. Code R. 62-602.800(4) and (6).

19. Disciplinary guidelines applicable to operators of WWTFs and OPWSs are contained in rule 62-602.850. For the failure to maintain O&M logs and to timely submit DMRs and MORs, the recommended penalty is, as a minimum, issuance of a probation letter and, as a maximum, an administrative fine of

    $1,000. See Fla. Admin. Code R. 62-602.850(8).

    
    

20. The recommended penalty for failure to report plant upsets or unpermitted discharges is a minimum one year license suspension and a maximum of license revocation. Id.

21. The recommended penalty for failure to perform operations in a manner consistent with standard operating practices is a minimum fine of $100 per day up to a maximum of

    $1,000.

    
    

22. The Department is not seeking to fine Respondent, but, instead seeks to revoke his wastewater license for two years and suspend his drinking water license for two years. When a license is revoked, the operator cannot work again as an operator unless he or she re-applies for and is issued a new license. When a license is suspended, the operator may continue to work as an operator at the conclusion of the suspension period.

    
    

23. For suspending a license, rule 62-602.870(1) states that the Department "shall, depending on aggravating and mitigating circumstances, in addition to a fine" suspended a license" for up to two years for incompetence in the performance of the duties of an operator. See Fla. Admin. Code R. 62- 602.870(c).

24. The term "incompetence" is not defined in a Department rule, but the word has the common meaning of "inadequate or unsuitable for a particular purpose." See Webster's New

    Collegiate Dictionary, 446 (1979). The record evidence shows that Respondent's performance of the duties imposed on him by the Department's rules as an operator of PWSs was inadequate. Therefore, the evidence is sufficient to suspend Respondent's drinking water license.

25. For revoking a license, rule 62-602.870(2) states that one basis is "persistent inaccuracy or incompleteness of data or information" in required log and reports. The problems identified in paragraph 8, above, are not grounds for revoking Respondent's wastewater license under rule 62-602.870(2) because it was not shown that they resulted in harm to the public health or safety or to the environment. The record evidence is sufficient to revoke Respondent's wastewater license for frequent failures to maintain O&M logs or to submit DMRs and MORs for WWTFs and PWSs under his management.

    
    

26. A mitigating circumstance that should be considered in the determination of the disciplinary action to be taken against Respondent is the fact that, with the exception of one WWTF and one PWS, the owner of which appeared at the hearing to praise Respondent's services to him, Respondent has lost all of his contracts with owners of WWTFs and PWSs to operate and maintain their facilities. Therefore, the problems that occurred in the past may not occur in the future with any greater frequency than they occur with other licensed operators.

27. Although the Department is authorized by its rules to suspend Respondent's drinking water license and to revoke his wastewater license, the circumstances suggest the alternative disciplinary action of imposing an administrative fine and a probation period to test Respondent's claim that his new employment with a facilities management company will make his performance acceptable to the Department.

28. The Department did not request investigative costs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a Final Order

that

1. requires Respondent pay an administrative fine of

   
   

   $2,000 to be paid to the Department within 60 days,

   
   

2. places Respondent on probation for two years, during which time Respondent is prohibited from entering into any new oral or written contracts to provide operator services to owners of WWTFs and PWSs, and

3. requires Respondent to deliver a copy of the Final Order to his employer so that the employer is made aware of the problems for which the disciplinary action was taken.

DONE AND ENTERED this 30th day of December 2011, in Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of December 2011.

ENDNOTES

1/ The Department's complaint puts the number at seven, but omitted Happy Days Mobile Home Park WWTF and Hillcrest RV WWTF, which are addressed, respectively, in Counts XXIV and XXVI of the amended complaint.

2/ All references to the Florida Statutes are to the 2011 codification.

COPIES FURNISHED:

Matthew Smith-Kennedy, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399

Thomas B. Mahon 8151 Gall Boulevard

Zephyrhills, Florida 33541

Lea Crandall, Agency Clerk

Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32309-3000

Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32309-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 11-002276

Orders for Case No: 11-002276