STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

PHILLIP G. PANOS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0479

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to appropriate notice, this cause came on for formal proceeding on October 1, 1990 in Tallahassee, Florida,

before P. Michael Ruff duly designated hearing officer. The appearances were as follows:

APPEARANCES

For Petitioner: Phillip G. Panos

2315 N.W. 115 Drive

Coral Springs, FL 33065

For Respondent: Francine M. Ffolkes, Esq.

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, FL 32399-2400 STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether the Petitioner has the requisite experience necessary for certification by the Respondent agency as a Class C domestic waste water treatment plant operator, given the requirements for such certification embodied in the rules cited below.

PRELIMINARY STATEMENT

The Petitioner applied for examination and certification as a "Class C" waste water treatment plant operator. On December 27, 1989 the Respondent agency notified' the Petitioner that his application for examination and certification as such an operator had been denied because he

did not have the requisite experience, as delineated in Rule 17- 16.03, Florida Administrative Code.

On January 9, 1990, by letter, the Petitioner requested an administrative proceeding to contest the matter. On January 25, 1990 the cause was referred to the Division of Administrative Hearings and ultimately to the undersigned Hearing Officer. A hearing was set for May 7, 1990. The hearing was

continued because of the inability of the Petitioner to attend. The hearing was reset for October 1, 1990. At the hearing the Petitioner testified on his own behalf and Petitioner's exhibits 1 and 2 were admitted into evidence. The Respondent presented the testimony of Helen Setchfield and Mary Katherine Kinloch. Respondent's exhibits 1 through 4 were admitted into evidence. Official recognition was taken of Chapter 17-602, Florida Administrative Code.

At the conclusion of the proceeding the Respondent obtained a transcript thereof and the parties were afforded the right to file proposed findings of fact and conclusions of law in the form of proposed recommended orders. The Respondent agency saw fit to file a proposed recommended order. The proposed findings of fact contained therein are treated in this recommended order and specifically ruled upon in the Appendix attached hereto and incorporated herein.

FINDINGS OF FACT

1. The Petitioner, Phillip G. Panos, recently moved from Michigan to Florida and is now a Florida resident. On December 9, 1989, prior to moving to Florida, he applied to the Respondent, Department of Environmental Regulation for certification as a Class C domestic waste water treatment plant operator. The Respondent is an agency of the State of Florida charged, among other duties, with regulating the certification, the practice standards and the educational standards of Class C domestic waste water treatment plant operators.

   
   

2. The Respondent agency reviewed the Petitioner's application and denied it for failure to demonstrate the requisite three years of experience required by the rule cited below.

   
   

3. From April, 1974 to June, 1990 the Petitioner was employed at the Chapaton Pumping Station in St. Clair Shores, Macomb, Michigan. The Chapaton Pumping Station duties involved the Petitioner monitoring the distribution of sewage flows, collecting sludge samples, chlorinating the effluent and pumping it into Lake St. Clair. When the Petitioner left the Chapaton Pumping Station, in June of 1990, he held the position of Senior Station Operator II.

   
   

4. The Chapaton Pumping Station receives a combination of storm water flow and sanitary sewage flows. It is a pumping and storm water retention facility for combined sewage. The facility provides primary treatment and disinfection for this combined sewage effluent. The effluent is chlorinated and then pumped to nearby Lake St. Clair while the solids that have settled out of the effluent are retained, collected and sent to the Detroit waste water treatment facility for advanced waste treatment.

   
   

5. Chapaton is classified by the state of Michigan's Department of Natural Resources as an "industrial/commercial facility". The industrial classification was originated by the U.S. Environmental Protection Agency (EPA) and has been adopted as a designation or classification by both Michigan and Florida.

   
   

6. The Petitioner holds an industrial/commercial waste water treatment certification from the state of Michigan in the category of "plain clarification and disinfection." The Petitioner's experience in Michigan is in the area of industrial waste water treatment and does not constitute actual experience in on-site operational control of a domestic waste water treatment plant (that is a sewage treatment plant).

7. The Petitioner's experience in Michigan does not qualify as industrial waste water treatment plant experience, that could be used to meet the actual experience requirement, because the Chapaton plant performs only primary treatment and disinfection. Secondary or advanced waste treatment is performed at the Detroit waste water treatment plant, with which the Petitioner has no experience.

   
   

8. In a typical domestic waste water treatment plant in Florida, "primary treatment" involves primary clarification or settling. Primary clarification occurs in a circular or rectangular tank where soluble solids settle out to the bottom of the tank and floating solids are removed by a skimming device. The soluble solids are called sludge. Primary clarification can remove 40% of BOD and suspended solids. It is not a form of advanced treatment or even secondary treatment.

   
   

9. At the Chapaton plant, during primary treatment, a minimum of 70% BOD and suspended solids are removed. The sludge is not treated at the Chapaton plant but is pumped to the Detroit waste water treatment plant. Thus Chapaton could not be classified as a domestic waste water treatment plant by Florida standards, since it only provides primary clarification and no secondary or advanced waste water treatment.

   
   

10. Secondary treatment consists of two types. Activated sludge or trickling filter treatment. Both types deal with oxygen being introduced to the sludge to achieve stabilization and more settling out of the sludge elements.

    
    

11. Since June 18, 1990 the Petitioner has been employed as a waste water treatment plant operator I in a training program at the George L. Lohmeyer Waste water Treatment Plant in Ft. Lauderdale, Florida. In that training program the Petitioner is being trained in all phases of operation of the Lohmeyer plant. It is a 34-million-gallon-per-day (MGD) activated sludge treatment plant.

    
    

12. In his duties, the Petitioner monitors the plant treatment processes, takes samples and submits them to the city's laboratory. The Petitioner is capable of testing the samples himself for dissolved oxygen, chlorine and ph. Reports are signed by the regional chief or the regional facilities manager. The Petitioner's present position qualifies as actual, appropriate experience in the operational control of a waste water treatment plant.

    The Petitioner has accumulated approximately 3-1/2 months of the 12 months of actual experience required for certification as a Class C waste water treatment plant operator, through the exercise of his duties at the Lohmeyer plant. The Petitioner must accumulate 12 months or 2,080 hours of actual experience before he can qualify for the Class C certification.

    
    

13. The Petitioner is a high school graduate and has successfully completed Volumes I and II of the California State University correspondence course in waste water treatment, which is included on the Respondent agency's list of approved courses. Petitioner's 3-1/2 months of actual appropriate experience in Ft. Lauderdale, plus his educational background, including the courses taken in California, yield a total of 36 months or 3 years of constructive experience. Petitioner does not yet have the 12 months of actual experience required by the rules but rather, is approximately 8-1/2 months short of the actual experience requirement. Thus, the Petitioner fails to

    meet the experience requirement necessary for certification as a Class C domestic waste water treatment plant operator at this time, although in approximately 8-1/2 months, he should be able to meet that requirement.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes (1989). The Respondent is authorized to establish qualifications for and to examine and certify waste water treatment plant operators pursuant to Section 403.101(3), Florida Statutes. The Respondent has promulgated criteria for certification of such operators in Rule 17-602.300, Florida Administrative Code. The Petitioner

    has the burden of proving that he meets the criteria for certification before it can be granted. See Florida Department of Transportation v. J. W. C. Co. Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

15. Rule 17-602.300(2), Florida Administrative Code provides pertinently as follows:

    
    

    at least three (3) years of actual or recognized constructive experience as herein scheduled which shall include at least one year of actual experience in the operation, supervision and maintenance of either a drinking water or domestic waste water treatment plant, as appropriate.

    
    

16. Actual experience is defined in Rule 17-602.200(1), Florida Administrative Code as "full time employment in the actual on-site operational control of a water or waste water treatment plant." Actual experience is further defined in Rule 17-602.300(10), for purposes of computing eligible treatment plant operation experience.

    
    

17. Industrial experience that can be used to meet the actual experience requirement of Class C operator certification is detailed in Rule 17-602.300(8), as follows:

    
    

    "(8) Persons employed in the actual on-site operational control of an industrial waste water treatment plant may use this experience to meet the actual experience requirement of Class . . . C operator certification. Industrial waste water treatment plant means the structures, equipment and processes, required to treat waste water, primarily organic in composition, in a plant using a biodegradation and/or physical-chemical treatment process, similar in fact to the domestic waste water secondary, tertiary or advanced treatment processes commonly used in Florida. This definition expressly excludes plants which have not been issued the permit by the Department to operate an industrial waste water treatment plant."

18. the Petitioner's experience in the training program in Ft. Lauderdale, Florida, at the waste water treatment plant constitutes approximately 3-1/2 months of actual experience, as specified in Rule 17- 602.300(10), Florida Administrative Code. However, the Petitioner failed to

demonstrate that his years of experience at Chapaton Pumping Station in Michigan qualifies as actual experience. That experience is "industrial" in nature.

However, since that industrial experience was in primary treatment processes only, it may not be used to meet the experience requirement for actual experience contemplated by the above rule. In order to attain the required three years of experience, the Petitioner must show that he meets the remaining two years in constructive experience. Rule 17-602.300(2), Florida Administrative Code. Rule 17-602.300(6) contains a constructive experience schedule which shows that Petitioner would receive 24 months credit for being a high school graduate and no more than 12 months credit for the successful completion of an approved correspondence training course pertaining to operations, supervision, and maintenance of treatment plants. His successful completion of the California correspondence course referenced in the above Findings of Fact accords him the twelve months credit for such correspondence course training. Thus, the Petitioner does have the two years of constructive experience required because his actual total of accrued constructive experience is three years. He simply lacks the required one-year actual experience for licensure. Accordingly, it has been established that the Petitioner has constructive and actual experience in the amount of two years and 3-1/2 months, 3-1/2 months of which is actual experience. Therefore, he does not meet the three-year combination of constructive and actual experience required by Rule 17-602.300(2), Florida

Administrative Code, and the application should be denied.

RECOMMENDATION

Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is therefore

RECOMMENDED:

That a Final Order be entered by the Department of Environmental Regulation denying Petitioner's application for certification as a Class C

domestic waste water treatment plant operator without prejudice to reapplication at such time as his one year of actual experience at such a treatment facility is completed.

DONE and ENTERED this 11 of December, 1990, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11 day of December, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-479

(The Petitioner filed no proposed findings of fact.) RESPONDENT'S PROPOSED FINDINGS OF FACT

1. - 21. are accepted.

COPIES FURNISHED TO:

Dale H. Twachtmann, Secretary Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

Daniel H. Thompson, Esq. General Counsel

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400 Phillip G. Panos

2315 N.W. 115 Drive

Coral Springs, FL 33065

Francine M. Ffolkes, Esq. Assistant General Counsel Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING

EXCEPTIONS TO 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: 90-000479

Orders for Case No: 90-000479