STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NOs. 91-1709

) 91-3861

PAUL AYERS and JUDY DEVORES, )

)

Respondents. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on October 9 and 10, 1991, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Agusta P. Posner, Esquire

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

For Respondent: Lynn Solomon, Esquire

Simmons, Fisher and Solomon 10032 South Federal Highway Port St. Lucie, Florida 34952

PRELIMINARY STATEMENT

On February 6, 1991, the Department of Environmental Regulation filed an Administrative Complaint for Permanent Revocation of Water and Wastewater Treatment Plant Operator's Certification, Notice of Violation, Proposed Agency Action and Orders for Corrective Action against Paul Ayers and Judy Devores.

The eleven-count Complaint alleged acts of gross neglect in the performance of duties as a certified operator of water and wastewater treatment plants, incompetence in the performance of those duties, and falsification or misrepresentation of data. The Complaint sought permanent revocation of Certification No. 4360 (Class C, Water) and Certificate No. 3375 (Class C, Wastewater), 1/ held by Paul Ayers, and Certificate No. 4458 (Class C, Water) and Certificate No. 4753 (Class C, Wastewater), held by Judy Devores.

The Complaint was amended by Order dated June 19, 1991, to include five additional counts.

In the interim, Mr. Ayers' wastewater certificate came up for renewal, which the Department denied. On June 24, 1991, in response to the Department's

Notice of Denial of Operator Certification, Mr. Ayers filed a timely Petition Objecting to Final Order Denying Certification. The Petition was referred to the Division of Administrative Hearings and consolidated with the Department's Complaint for revocation.

The Department called ten witnesses: Jerry Toney, Wes Upham and Francisco Perez, inspectors for the Department of Environmental Regulation; and Donna Anderson, Wayne Dampier, Lowell Polk, Danny Runyan and John Canard, all ex- employees of Petitioners. Bart Patria and Rim Bishop qualified as experts on behalf of the Department in wastewater and water plant operations, respectively. The Department offered 46 exhibits, all of which were admitted into evidence.

The Respondents testified in their own behalf and called Bill Coates, Kevin Prussing and Andrew P. Helseth as witnesses. The Respondents offered 29 exhibits, of which 25 were admitted into evidence.

STATEMENT OF THE ISSUES

The issues are whether the Respondents are guilty of misconduct as alleged in the Administrative Complaint filed on February 6, 1991, as amended and, if so, what corrective action should be ordered and what penalties imposed; and whether Paul Ayers is guilty of misconduct as alleged in the Notice of Denial of Operator Certification dated June 3, 1991, and, if so, whether the Department's action denying renewal of Mr. Ayers' wastewater treatment plant operator certification was correct.

FINDINGS OF FACT

1. Mr. Paul Ayers holds operator certificates issued by the Department in both drinking water treatment (Class C, No. 4360) and wastewater treatment (Class B, No. 3375). The Department's Notice of Denial of Operator Certificate, which forms the basis for the Division of Administrative Hearings case No. 91- 3861, identifies the wastewater treatment certificate number as Class B, No. 3375. Paul Ayers did submit certain Drinking Water Treatment Plant Daily Operation Summaries in which he identified his water treatment certificate as Class C, No. 4360 (Department Exhibit 8).

   
   

2. Ms. Judy Devores is a Department certified Class C water treatment plant (WTP) operator (Certificate No. 4885) and a Class C wastewater treatment plant (WWTP) operator (Certificate No. 4753).

   
   

3. Mr. Ayers and Ms. Devores are president and vice president, respectively, of Paul Ayers Utilities, Inc., a company that contracts with the owners of drinking water and wastewater treatment plants to operate them. Ms. Devores is sometimes known as Ms. Ayers (Department Exhibits 25 and 26). The office of the utilities company is in the home they share. The utility company has a handful of employees.

   
   

4. The Department's Amended Complaint alleged that during the calendar year 1990, Respondents operated the following public water treatment plants and wastewater treatment plants:

   ST. LUCIE COUNTY

   
   

   WATER WASTEWATER

   
   

   Coggin Osteen Auto Dealership

   Coca Cola Foods Distribution Center

   Demarco's Restaurant

   Floresta Elementary School Floresta Elementary School Florida Power & Light

   Distribution Center Fontenelle Plaza

   Glendale Commons Subdivision Glendale Commons Subdivision Lakewood Park Subdivision Lakewood Park Subdivision Johnny's Restaurant

   Lakewood Park Plaza

   Loyal Order of Moose #248

   Orange Co. of Florida, Orange Co. of Florida, Grove Grove Operations Complex Operations Complex

   Orchid Acres Mobile Home Orchid Acres Mobile Home Park Park

   Port St. Lucie Port St. Lucie Convalescent Center Convalescent Center

   Quick and Easy Convenience Store

   Raven Parc Industrial Park Rainbow Trailer Park Teacher's Place Child Care

   Visa St. Lucie Condominiums Vista St. Lucie Condominiums

   Whispering Creek La Buona Vita

   Lakewood Park Elementary Port St. Lucie Medical

   Center

   
   

   MARTIN COUNTY

   
   

   WATER WASTEWATER

   
   

   Lobster Shanty Restaurant

   Regency Mobile Home Park Regency Mobile Home Park Vista Del Lago Condominiums Vista Del Lago Condominiums Yankee Trader Plaza

   
   

   INDIAN RIVER COUNTY

   
   

   WATER WASTEWATER

   
   

   Citrus Elementary School

   Fellsmere Elementary School Fellsmere Elementary School Sebastian River Middle School Sebastian River Middle

   School

   OKEECHOBEE COUNTY

   
   

   WATER WASTEWATER

   
   

   Barlow's Fish Camp Big "O" R.V. Campground

   Barlow's Restaurant Four Acres Mobile Home Park

   Bob's Big Bass RV Park Pier 2 Motel

   Circle K Taylor Creek Lodge

   Crossroads Restaurant Town & County Mobile Home

   Martha's House Zachary Taylor Mobile Home Moose Lodge #1753

   Town Star Convenience Store

   
   

   GLADES COUNTY

   
   

   WATER

   
   

   Old River Run

   
   

   Many of these water and wastewater treatment plants were acknowledged during the hearing as being operated by Paul Ayers Utilities, Inc. Some were not mentioned during testimony, but show up on various exhibits. Department's Exhibit 16, the minutes of a meeting held between the Department and Ms.

   Devores, contain a partial list of plants operated by Respondents. Lakewood Plaza

5. On September 30, 1990, Paul Ayers and his employee, Danny Runyan, removed a water pump, flow meter, and chlorine feed pump from the Lakewood Plaza water treatment plant. This action interrupted potable water service to the facility until October 3, 1990.

   
   

6. Ms. Devores contended that the owner of Lakewood Plaza had not paid Respondents for the equipment, and that she notified Jerry Toney of the Department prior to removal of the equipment, who told her "to take it if it was ours."

   
   

7. Mr. Toney's contradiction of Ms. Devores' account is more believable. He first heard of the disabling of the Lakewood Plaza water treatment plant in a phone call from Wayne Dampier on October 1, 1990, notifying Mr. Toney that Mr. Dampier would replace the water pump that day, but no chlorinator pump could be installed until the next day. Ms. Devores' call to Mr. Toney was made after the equipment had been removed and after Mr. Dampier's call. A contemporaneous entry into the Department's records also indicates that Ms. Devores called the Department on October 1, 1990, after the water treatment plant had been disabled.

   
   

8. Expert testimony established that disabling a water treatment plant is a potential public health hazard, and that deliberate disabling of a water system by an operator is not the same as accidental interruption of operations. Rule 17-555.350(3), Florida Administrative Code, requires an operator to receive written permission from the Department prior to altering or discontinuing water purification. This forms a basis for the operator's duty to avoid unilateral action. Removal of essential parts of a water treatment system as a remedy for nonpayment of bills for operator services threatens not only the owner of the system but also the public health, and is contrary to the Rule and to standard operating practices.

9. Even were the testimony of Ms. Devores credited, oral notification to the Department before removal of equipment, or even oral acquiescence by an employee of the Department to removal undertaken to enforce collection of bills for services by disabling a public water system would not justify that action, which is inappropriate under Rule 17-555.305(3), Florida Administrative Code. Licensees have a duty to know the rules controlling their regulated activity. Mr. Ayers had been notified by the Department in 1986 that removing equipment (a gas chlorinator) from a public water system at Sand Dollar Villas was a serious violation of the duties of a certified operator and could result in revocation of his operating certificates. (Department Exhibit 13)

   
   

10. The evidence is clear and convincing that Respondents did not notify the Department prior to removing the equipment. Deliberate disruption of a public water supply by a certified operator constitutes gross neglect and incompetence in the performance of the duties of a certified operator, with potential public health consequences. Both Mr. Ayers and Ms. Devores are responsible for this misconduct, as both participated in it.

    
    

    Use of Uncertified Personnel

    
    

11. Danny Runyan was employed by Respondents during the period from approximately 1983 to May 1991.

    
    

12. Mr. Runyan acknowledged that he never has been certified to operate water or wastewater treatment plants, but that during calendar year 1990, he fulfilled certified operator duties at Coggin O'Steen, Fontenelle, FPL Distribution Center, J & S Fish Camp, Johnny's Restaurant, PSL Medical Center, Quick & Easy, Rainbow Trailer Park, Raven Parc, Teachers' Place, Cinnamon Tree, Floresta Elementary School, Glendale Commons, Port St. Lucie Convalescent Home, and Vista del Lago plants under the direction or instruction of Paul Ayers or Judy Devores.

    
    

13. Donna Anderson was employed as secretary and office manager at Respondents' business and to perform domestic work for Respondents who ran their business out of their home, for two years and nine months from 1988 to approximately October 1990. Her testimony corroborated Runyan's admissions, as did the testimony of Wayne Dampier, who is a certified operator for both water and wastewater treatment plants and who was employed by Respondents during a period from approximately October 1985 to August 1990.

    
    

14. Ms. Anderson heard Paul Ayers or Judy Devores direct Danny Runyan to operate plants; it was common knowledge among Respondents' employees that Mr. Runyan operated plants.

    
    

15. Mr. Dampier heard Paul Ayers direct Danny Runyan to operate plants, and Paul Ayers also directed Mr. Dampier to direct Danny Runyan to operate plants.

    
    

16. Respondents contended that they did not know that Danny Runyan was operating plants, and that if he was doing so it was solely on the instruction of Wayne Dampier, a field manager for Paul Ayers Utilities, Inc. This is not believable, because the same pattern was followed with the work of another employee, John Canard. 2/ John Canard was uncertified, but received direct instructions about which plants he was to operate from Wayne Dampier. Mr. Canard believed that the instructions originated with Respondents, who were aware that he was operating water treatment plants before he was certified. Mr.

    Canard's belief is supported by Mr. Canard's time sheets (Respondents' Exhibit

    26) which shows that between December 29, 1989, and January 19, 1990, while Mr. Canard was not yet certified in water treatment operations, he visited the following water treatment plants which Respondents serviced:

    
    

    12/29/89 12:00 Lobster Shanty

    12:15 Yankee Trader

    2:15 Teachers Place

    4:45 Fontenelle Plaza

    
    

    1/2/90 3:00 Lobster Shanty

    3:30 Yankee Trader

    
    

    1/3/90 11:45 Yankee Trader

    1:45 Teachers Place

    4:00 Fontenelle Plaza

    
    

    1/4/90 10:00 Johnny's Restaurant 12:15 Lobster Shanty

    1:00 Yankee Trader

    
    

    1/5/90 1:00 Yankee Trader

    3:30 Teachers Place

    5:15 Fontenelle Plaza

    
    

    1/8/90 1:30 Teachers Place

    3:15 Yankee Trader

    5:45 Fontenelle Plaza

    
    

    1/9/90 10:30 Lobster Shanty

    11:15 Lobster Shanty

    12:00 Yankee Trader

    2:30 Johnny's Restaurant

    3:30 Fontenelle Plaza

    
    

    1/10/90 12:45 Teachers Place

    1:15 Fontenelle Plaza

    5:00 Yankee Trader

    
    

    1/11/90 2:45 Yankee Trader

    4:00 Fontenelle Plaza

    
    

    1/12/90 1:15 Lobster Shanty

    3:30 Yankee Trader

    4:00 Fontenelle Plaza 1/15/90 4:00 Yankee Trader

    1/16/90 1:00 Yankee Trader

    1:30 Lobster Shanty

    5:30 Fontenelle Plaza

    
    

17. Respondents maintained that John Canard operated the Rainbow Park water treatment plant and offered his time sheets as evidence, which show that he did so prior to May 1990. Mr. Canard's time sheets show several entries for Rainbow Park prior to certification, including 3/27/90 at 1:00 p.m.; 4/5/90 at 2:00 p.m.; 4/10/90 at 1:15 p.m.; 4/12/90 at 3:45 p.m. and 4/17/90 at 12:30 p.m.

    The evidence establishes a pattern of using uncertified operators which Respondent knew or should have known about, based on the employee time sheets.

    
    

18. It is not credible that Mr. Canard visited these plants on such a regular basis without providing operator service, or that Respondents did not see the time sheets in the regular course of their business. Respondents had to know that their employees were operating plants for which they were not certified.

    
    

19. Respondents' contention that all irregular practices originated with Wayne Dampier, and that they knew nothing about them until they met with the Department in June 1990 is undermined by the testimony of Lowell Polk.

    
    

20. Mr. Polk was an employee of Respondents for a nine-month period during 1988. At that time, Mr. Polk was certified in water treatment plant operation only, not wastewater plants. 3/

    
    

21. While employed, Mr. Polk told Judy Devores that Wayne Dampier had asked him to operate a wastewater treatment plant when Mr. Polk was not certified as a wastewater treatment plant operator. Ms. Devores replied "don't worry about it, just do it." He did so, until he was discovered by the Department, and then told Ms. Devores that he did not want to do it anymore. This incident exemplifies the casual attitude the Respondents had toward regulations governing their business.

    
    

22. The Department has established by clear and convincing evidence the allegations of Count III of the Amended Complaint. During calendar year 1990, Respondents employed Danny Runyan, a person uncertified in either water or wastewater treatment plant operation, to fulfill certified operator requirements at water and wastewater treatment plants, a practice which can result in a threat to public health.

    
    

    Raven Parc - No Certified Operator

    
    

23. Jerry Toney inspected the Raven Parc water treatment plant on February 16, February 19, February 20, February 21, February 22, and February 23, 1990. Through February 23, 1990, there were no entries in the on-site operation and maintenance log. The absence of entries indicated no visits by an operator on any of those days. When he inspected again on February 26, 1991, all the data had been backfilled by someone using the initials "J.D." as certified operator.

    
    

24. Danny Runyan admitted that although he was the de facto operator of the Raven Parc plant, he did not visit the Raven Parc water treatment plant during the period from February 16 through February 23, 1990.

    
    

25. The Department has established by clear and convincing evidence the allegations of Count II of the Complaint that no certified operator, or indeed any operator, visited the Raven Parc water treatment plant during the period from February 16 through February 23, 1990. Use of an individual to provide operator services at a water treatment plant who is uncertified, and failure to provide any operator coverage at all for a week each constitute serious inattention to operations which could result in a hazard to public health.

    
    

    Raven Park - Backfilled O & M Log, False Use of Initials

    
    

26. Certified operators are under a duty to "maintain an operation and maintenance log for each plant . . . current to the last operation and

    maintenance performed . . . . The log, at a minimum, shall include . . . the signature and certification number of the operators." Rule 17-602.360(1)(e), Florida Administrative Code.

    
    

27. It is the practice in the industry for certified operators to initial rather than fully sign each entry in the O & M log.

    
    

28. Mr. Runyan entered the initials of Judy Devores, a certified operator, after the fact in the O & M log for February 16, 19, 20, 21, 22 and 23, 1990. Mr. Runyan "backfilled" and used the initials "J.D." at the instruction of Respondents.

    
    

29. Respondents' denial that they ever instructed Mr. Runyan to use their initials and backfilled O & M logs is not credible in light of Mr. Runyan's admission and the corroborating testimony of John Canard, who also testified that he was instructed by Paul Ayers to backfill O & M logs.

    
    

30. The Department has established by clear and convincing evidence the allegations of Count II of the Amended Complaint that a certified operator initials, namely Judy Devores' initials, were "backfilled," or entered after the fact, at the Raven Parc plant during February 1990. This was done with the knowledge and approval of Respondents.

    
    

31. The practice of "backfilling" is contrary to standard operating practice for water treatment plant operators.

    
    

    Raven Parc - Inadequate Chlorine Residuals

    
    

32. When Jerry Toney visited the Raven Park plant on February 7, February 14, February 22, February 23, and February 26, 1990, he took chlorine samples and found inadequate chlorine residuals, that is, a free chlorine residual of less than 0.2 milligrams per liter (mg/1). Chlorine residuals are an assurance that no biological or bacteriological contamination will taint the water supply. The readings were taken after Mr. Toney had "flushed" the system at full tap for three minutes, which is a remedy for a low chlorine residual.

    
    

33. Chlorine residuals in treated water can vary over the course of time, and a reading taken by a Department inspector on a particular day might not match exactly the chlorine residuals obtained by an operator at a different time on the same day. Rule 17-550.510(6)(d), Florida Administrative Code, requires "a minimum free chlorine residual of 0.2 milligrams per liter or its equivalent throughout the distribution system at all times."

    
    

34. On February 7, 14, 22, 23 and 26, 1990, the chlorine residuals documented by Jerry Toney at the Raven Parc Water Treatment plant did not meet the requirement of Rule 17-550.510(6)(d), Florida Administrative Code. These inadequate chlorine residuals on February 22 and 23, 1990, the dates alleged in the Amended Complaint, were a direct result of gross neglect by Respondents in the operation of the plant, by failing to visit it over an extended period of time, and resulted in a condition which was a potential public health hazard. This aspect of Count II of the Amended Complaint has been established by clear and convincing evidence.

    Raven Parc - Falsified Chlorine Data

    
    

35. Rules 17-550.730(1) and 17-601.300(1)(a), Florida Administrative Code, require monthly operating reports to be submitted to the Department for drinking water treatment plants and wastewater treatment plants.

    
    

36. With regard to water treatment plants, and specifically, the Raven Parc water treatment plant, it was the practice of Paul Ayers Utilities, Inc., to keep a "Drinking Water Treatment Plant Daily Operation Summary" worksheet [DER Form 17-1.208(5)] at the plant on which to record certain measurements such as flow, pH and chlorine residuals. The Daily Operation Summary worksheet is also known as an MOR (monthly operating report) worksheet.

    
    

37. At the end of each month, the MOR worksheets would be brought into the office, where the information on the worksheet would be transferred to the "official" monthly operating report [DER Form 17-555.910(2)], which would be signed by the lead operator to certify to its accuracy and sent to the Department. The information on the worksheets was the best and most accurate information available for flows, pH, and chlorine residuals on any particular day.

    
    

38. The chlorine residual values certified to the Department by Ms. Devores for February 19, 21 and 23, 1990, are different than the values recorded in the on-site MOR worksheet. The on-site entry for each of those days shows the chlorine residuals (in mg/1) were 1.0 at the plant and 0.3 at the remote tap each day, but the MOR as submitted shows 1.8 and 0.8 respectively on those days. These MOR entries are false.

    
    

39. Department Exhibit 4, the certified MOR for Raven Parc for February 1990 signed by Ms. Devores, shows that the entries for February 6, 9, 12 and 16, 1990, have been whited-out and reentered.

    
    

40. The original entries on Department Exhibit 4, the certified MOR, had higher values than recorded on Department Exhibit 3, the MOR worksheet. Those higher values had originally been entered to satisfy the concerns expressed by Jerry Toney in a note left on the Raven Parc MOR worksheet on February 16, 1990: "Judy, the DER classifies .3 - .4 chlorine as 'marginal.' We would like to see it higher. Also, the system requires a weekend visit. Thanks, Jerry 878-3890" (Department Exhibit 3). The higher values were whited-out and changed back to the lower values actually recorded on the on-site MOR worksheet, because Respondents realized that Mr. Toney had seen the on-site MOR worksheet for all dates up to February 16, 1990, when he made the dated notation on the worksheet. This conclusion is supported by the appearance of the document itself and by Donna Anderson's testimony that, while she generally transferred the information from the MOR worksheet to the MOR for submission to the Department, she never whited-out data on an MOR, and that she did not do so in this instance. Ms. Anderson testified that after she had typed in the MOR header information and transferred data from the MOR worksheet, it was routine practice for Respondents to take the MORs and "fill in for days that were missing."

    
    

41. All of the chlorine values recorded and reported on the official form fall within acceptable values established in Rule 17-550.510(6)(d), Florida Administrative Code. This is not surprising, since they were all made up at the time they were backfilled on the worksheet.

    
    

42. Danny Runyan admitted that he did not actually visit the plant during the period from February 16 to February 23, 1991, Findings 23 and 24, above.

    All information recorded for those days on both the MOR worksheet and the MOR submitted to the Department were fabricated. The evidence clearly and convincingly establishes that the chlorine data on the MOR submitted to the Department for the Raven Parc water treatment plant for February 16-23, 1990, and certified by Ms. Devores as correct, were knowingly falsified. The Department has proven the allegations of Count VII of the Amended Complaint.

    
    

    Raven Parc - Falsified Flow Data

    
    

43. Judy Devores and Paul Ayers respectively signed and submitted the February 1990 and March 1990 MORs for Raven Parc. They each reported at least twenty-four daily entries of "Total Water Treated in Gallons," that is, flow of treated water.

    
    

44. It was admitted that the flow meter at Raven Parc was inoperative.

    
    

45. By tracking the amount of time a water pump operates with an elapsed time clock, an operator may calculate flows of treated water.

    
    

46. An elapsed time clock was installed at Raven Parc at some point. The issue raised by the Department is whether the elapsed time clock was available and used to calculate the treated water flows certified by Respondents in February and March 1990.

    
    

47. Respondents claimed that an elapsed time clock was installed at Raven Parc on February 8, 1990. In support of this contention, Respondents offered a photocopy of a work order in Danny Runyan's handwriting, indicating the installation of an elapsed time clock at Raven Parc. The date on this document is obscured and cannot be read. Even Paul Ayers had trouble trying to decipher a date on the exhibit at the hearing (Respondent's Exhibit 25).

    
    

48. Jerry Toney in February 1990, and Wes Upham and Jerry Toney together, on June 25, 1990, looked for an elapsed time clock at the Raven Parc water treatment plant found none.

    
    

49. Mr. Runyan and Mr. Dampier both testified that the elapsed time clock was installed "in June" and "after the meeting with the Department," which took place on June 25, 1990. Ms. Anderson also believed that elapsed time clock was installed in June, although she was "not sure." Her belief is consistent with the testimony of Mr. Runyan and Mr. Dampier. Taken together, this testimony is highly persuasive.

    
    

50. Mr. Runyan testified that he was instructed by Wayne Dampier to put the time clock "at the breaker panel in the top part of the panel under the top of the lid" because "they didn't want DER to see it." Mr. Dampier admitted relaying instructions from Paul Ayers to "put it in an inconspicuous area to where it wouldn't be as noticeable so if the DER come out looking for it they wouldn't find it just right offhand."

    
    

51. Determining water flows by the use of an elapsed time clock requires multiplication of the time the water pump was operating by the capacity of the pump. Neither the MOR worksheet, nor the O & M log for Raven Parc contained such calculations.

    
    

52. Even according to Mr. Ayers' contentions, the elapsed time clock was not installed until February 8, 1990, at the earliest. The MOR submitted to the Department for February 1990, signed by Judy Devores, includes entries for

    "Total water Treated in Gallons," i.e. flow, for February 1, 2, 3, 5, 6 and 7, 1990, as well as for the rest of the month. It has already been established that no one visited the plant between February 16 and February 23, 1990, but flows are entered for February 16, 17, 19, 20, 21, 22 and 23, 1990. (Department Exhibit 4). These facts wholly undermine the claim that flow was measured by an elapsed time clock and accurately recorded and certified to the Department by Respondents.

    
    

53. Viewing the evidence as a whole, the Department has presented clear and convincing evidence to establish the allegations of Count VI of the Amended Complaint, that no means to measure or to estimate flow data was available at Raven Parc during this period. The flow data submitted on the Raven Parc MORs for February and March 1990, by Paul Ayers and Judy Devores were falsified.

    
    

    Raven Parc - Failure to Fulfill Duties of "Lead Operator"

    
    

54. On June 25, 1990, the Department and Judy Devores met to discuss the operation of Raven Parc plant. At that meeting, Ms. Devores stated that she did not operate the Raven Parc plant, and in testimony, Ms. Devores stated she did not visit Raven Parc. Ms. Devores signed the Raven Parc MOR for February as lead operator, however, and the initials "JD" are the only initials which appear on the Raven Parc O & M log for February 1990 (Department Exhibits 1 and 4).

    
    

55. Ms. Devores exhibited a lack of familiarity with the actual conditions at Raven Parc during the June 25th meeting. This was inconsistent with a person who properly functioned as its lead operator. According to the Department's expert, the lead operator is "the individual with the most knowledge of the workings of that treatment plant and its condition at any given point in time." (Tr. Day 1, p. 69) At a minimum, a lead operator personally should provide once-a-week on-site supervision to a certified operator, and should never delegate the operation of a water treatment plant to an uncertified operator.

    
    

56. Danny Runyan was the de facto operator of the Raven Parc plant, and admitted that he did not visit the plant from February 16 through February 23, 1990.

    
    

57. Rule 17-602.200(11), Florida Administrative Code, defines "lead or chief operator" as "the certified operator whose responsibilities include the supervision of all other persons who are employed at a plant, performance of on- site treatment plant operation and whose responsibility it is for the effectiveness and efficiency of the overall treatment plant operation." While Ms. Devores may not have ever gone to the plant, she was responsible for its operation as the lead operator, and should have done so.

    
    

58. The Department has presented clear and convincing evidence to substantiate the allegations of Count IX of the Complaint that Judy Devores did not fullfil the duties of a lead operator for the Raven Parc water treatment plant.

    
    

    Raven Parc and Moose Lodge - O & M Log Falsification

    
    

59. The Loyal Order of Moose #248 water treatment plant is located in Fort Pierce, and is 12.0 miles away from the Raven Parc plant. Travel between the two plants takes approximately 20 minutes.

    
    

60. An operator with the initials "JD" arrived at each plant on February 20, 1990, at 4:15 and left each plant at 4:30, according to the O & M logs at

    each of the two plants. Similarly, on February 22, 1990, "JD" left the Moose Lodge at 4:30 and arrived at Raven Parc at 4:30. The handwriting on the logs appear to be the same, but the initials do not appear to be in the handwriting of Judy Devores. (See the signature on Department Exhibits 4 and 16, and the initials in the entries for August 21 to August 25 on Department Exhibit 33.)

    
    

61. The O & M logs for Raven Parc and Moose Lodge are documents required to be kept by the operator "current to the last operation and maintenance performed." Rule 17-602.360(1)(e), Florida Administrative Code. They are falsified for February 1990. The facts alleged in Count VIII of the Complaint are true.

    
    

62. The false O & M log for Raven Parc for February 1990, was maintained by Danny Runyan, with the authorization and under the direction of Judy Devores.

    
    

    Other Falsified O & M Logs

    
    

63. The Amended Complaint alleged in Count X that initials of Judy Devores were entered in O & M logs for days she did not visit facilities, and could not have visited facilities because she was out of town. Specific instances are tabulated below:

    
    

    JUDY DEVORES

    
    

    Big O WWTP July 18, 1990 (10-10:30 AM).

    
    

    Glendale Commons WTP July 1990: 18th (3-3:30 PM) 23rd - 25th, 30th and 31st, August 1990: 1st, 2nd, 3rd, 6th, 9th, 10th, 13th and 14th.

    
    

    Johnnies Restaurant WTP June 11th and 12, 1990. Pier II Motel WWTP July 18th, 1990 (10-10:25). Rainbow Trailer Park WTP July 24th and 27th, 1990.

    Zachary Taylor WWTP July 18th, 1990 (12:15 - 12:45 PM).

    
    

64. The Department introduced at hearing copies of the relevant O & M logs (Department Exhibits 27 through 35), and airline ticket receipts which show that the Respondents were out-of-state on the relevant dates (Department Exhibits 24 through 27), and the testimony of Danny Runyan, who admitted that he had signed those O & M logs.

    
    

65. Judy Devores characterized Danny Runyan's testimony as erroneous. She was not sure whether or not she used the ticket introduced as Department Exhibit 25, and maintained that she used the ticket introduced as Department Exhibit 26, but left on July 19, 1990, rather than July 18, the departure date noted on the ticket receipt.

    
    

66. Judy Devores also asserted that she went to all five plants listed in paragraph 21 of the Amended Complaint as having been visited by "J.D." on July 18, 1990 because "Wayne was on vacation. Paul and I had to cover the plants."

67. She could not blame Wayne Dampier for false entries on those days. She swore that she went to the West Palm Beach airport and "missed the plane" scheduled to leave at 9:34 a.m. on July 18, 1990, and by 10:00 a.m., after having taken the time to make arrangements to pay an extra $75.00 and be reticketed for a next-day departure, arrived at the Big O water treatment plant in Okeechobee County (Department Exhibit 29). This is not believable.

    
    

68. Ms. Devores would have had to miss both flights (or used neither of the non-refundable tickets offered as Department Exhibits 25 and 26) in order to establish her presence at the various water and wastewater treatment plants on the dates her initials appear.

    
    

69. Ms. Devores hinted, but offered no proof, that Wayne Dampier falsified initials on O & M logs, presumably to get them in trouble.

    
    

70. The testimony of Judy Devores is not credible, and her evidence inadequate to overcome the Department's proof, especially in light of Danny Runyan's admission. The initials entered showing Judy Devores performed services at the facilities listed in Finding 63 above are false. The allegations of Count X have been proven by clear and convincing evidence.

    
    

    Falsified BOD and TSS Data

    
    

71. The Department's Amended Complaint alleged in Count IV that during calendar year 1990, Respondents reported biochemical oxygen demand (BOD) and total suspended solids (TSS) data in the wastewater treatment plant MORs for the Town & Country wastewater treatment plant and other facilities operated by them, for which no analyses were performed.

    
    

72. BOD and TSS and measurements of the treatment efficiency of wastewater plants, and maximum counts for BOD and TSS are established by the Department in Rule 17-600.420, Florida Administrative Code, which sets minimum treatment standards. Measuring and reporting BOD and TSS values is required for the protection of public health.

    
    

73. Rule 17-601.300, Florida Administrative Code, requires monthly monitoring and reporting of BOD and TSS. The MOR, which is the reporting format for BOD and TSS, must be signed by the "lead operator in charge of operating the treatment facility."

    
    

74. While the Rule imposes a duty on "wastewater treatment facilities" to monitor effluent for compliance with the rules, the common practice in the industry is for the operator to be responsible to collect samples, forward the samples to a laboratory for analysis, receive the lab report and report the laboratory results to the Department. Respondents did not deny that monitoring of BOD and TSS was part of the operating services they had contracted to perform.

    
    

75. In support of the allegation that BOD and TSS analyses were not done, the Department submitted MORs for each month in 1990 for six wastewater treatment plants: Town and Country Mobile Home Park, Big O RV Park, Four Acres Mobile Home Park, Motel Pier II, Taylor Creek Lodge, and Zachary Taylor RV Camp (Department Exhibits 19a-19f). Each of these MORs has a value entered in the space labeled "BOD (mg/1) EFFLUENT" and "TSS (mg/1) EFFLUENT." All are signed by Paul Ayers or Judy Devores.

76. In the course of discovery, the Department asked Respondents in deposition which laboratories Respondents used for analysis of BOD and TSS. The labs identified as performing analyses for Respondents were East Coast Laboratories, Bioservices, and Envirometrics, with Envirometrics being the lab mainly used.

    
    

77. Affidavits from the directors of Bioservices and East Coast Laboratories indicate that neither of those laboratories performed any BOD or TSS analyses for Respondents. 4/ Proof of the non-existence of reports by those labs is admissible under Section 90.803(7), Florida Statutes (1991).

    
    

78. The Department subpoenaed and copied the records of Envirometrics, and Francisco Perez prepared a summary of the documents, which the director of the laboratory confirmed in an affidavit to be accurate, with certain corrections.

    
    

79. The summary shows only 11 rather than 72 instances of lab analyses (six plants times 12 months of MOR entries) for the plants listed in Finding 75: Big O - 2; Town & Country - 2; Four Acres - 2; Motel Pier II - 3; Zachary Taylor

    - 2; and Taylor Creek Lodge - 0.

    
    

80. While Donna Anderson was employed, there was no procedure for collecting monthly effluent samples from the approximately 21 wastewater treatment plants operated by Respondents. Ms. Anderson did not receive regularly 21 sets of lab reports for BOD and TSS, and she saw no evidence at Respondents' office/home that 21 sets of such samples routinely were being collected, stored, or delivered to any laboratory for analysis.

    
    

81. John Canard and Danny Runyan each testified that they did not regularly collect effluent samples from wastewater treatment plants they maintained.

    
    

82. Applying the standard of clear and convincing evidence, the Department has proven that the BOD and TSS analyses were not performed, although both Paul Ayers and Judy Devores certified they had been in Department Exhibits 19a-19f. The Department's evidence is not rebutted by Respondents' bare assertions, with no supporting documentation, that the required laboratory analyses were performed. Their refusal to identify the lab or lab technician they maintain ran the tests for them renders their testimony highly suspect, and the evidence of other falsifications make their testimony unbelievable. See Finding 130(a), below.

    
    

    Falsified Bacteriological Data

    
    

83. Rule 17-550.510(6)(b), Florida Administrative Code, requires at least monthly monitoring of each regulated water system for coliform bacteria (bacteriologicals). One representative raw sample and two samples from the distribution system (sometimes identified as remotes) are required. Rule 17- 550.730(1)(a), Florida Administrative Code, requires monthly reporting of the bacteriological results to the Department.

    
    

84. Respondents undertook the sampling and reporting requirements as part of their operating service agreements but did not follow appropriate sample collection methods.

    
    

85. Wayne Dampier, Danny Runyan, and Donna Anderson each testified that for the month of October 1990 unlabeled samples were brought into the office, and Paul Ayers, Danny Runyan and Donna Anderson assigned arbitrary and false

    identifications to the bacteriological samples, identifying them as various facilities operated by Paul Ayers Utilities, Inc. These falsely labelled samples were then submitted to a laboratory for analysis and the results were reported to the Department.

    
    

86. The practice of intentionally submitting mislabeled bacteriological samples and reporting false results constitutes submission of fraudulent data, gross neglect in the performance of the duties of a certified operator which can result in adverse public health consequences, and violates standard operating practice for plant operators.

    
    

87. Paul Ayers simply denied that he ever collected samples from one location or misalabeled unlabeled samples, and called Donna Anderson's testimony untrue. This testimony is not credible.

    
    

88. The allegation of Count XI of the Amended Complaint, that bacteriological samples were mislabeled during the month of October 1990 to seem to have come from other treatment plants, has been proven by clear and convincing evidence.

    
    

    Floresta Elementary - Inadequate Operator Visits

    
    

89. The Amended Complaint alleged in Count XII that Respondents failed to provide the Floresta Elementary School water treatment plant the required five visits per week plus one weekend visit for the period from August 22, 1990, through April 23, 1991.

    
    

90. The Department offered copies of the on-site O & M log for the relevant period showing inadequate coverage (Department Exhibit 39), and the testimony of Wes Upham.

    
    

91. A letter from the school, dated July 26, 1991, states that "Present Operator Paul Ayers Utilities states they have been operating the plant at least

    5 days per week for the past several months since Department notice to that effect." The "Department notice" referred to is the notification Wes Upham gave to the school board after his inspection on April 26, 1991. From April to July is "several months" of five day per week operator coverage. The letter does not establish adequate operator coverage for the period at issue: August 22, 1990, to April 23, 1991, and so does not exonerate Mr. Ayers.

    
    

92. Kevin Prussing serviced Floresta Elementary for Paul Ayers Utilities, Inc. He was asked by counsel for Respondents whether Paul Ayers called him in April of 1991 to tell him to start going to visit Floresta. Mr. Prussing replied that he did not remember the exact date, but it was after "the question came up about how many visits" and after "it was settled amongst Paul and whoever. . . " (Tr. Day 2 p. 179), which was after the Department's Notice of Noncompliance dated July 10, 1991, was sent to the school board.

    
    

93. Paul Ayers did not deny that prior to April 23, 1991, operator coverage was less than five day per week plus one weekend visit. He asserted that his company entered into a contract with the school board which called for three day per week coverage, and that prior to plant modifications in August 1990, only three day per week coverage was required for the Floresta Elementary School water treatment plant.

    
    

94. Mr. Ayers acknowledged that he knew five days per week with one weekend visit was required after the plant modifications were completed in

    August 1990, and that he informed a representative of the school board of that fact. Mr. Ayers claimed that the school board representative refused to pay for additional operator coverage until he was notified by the Department of increased operator coverage requirements.

    
    

95. The Department established through the testimony of Rim Bishop, Wes Upham and Kevin Prussing that a licensed operator and the owner of a water treatment plant each have an independent responsibility to know and comply with the plant coverage requirements, which are designed to protect public health.

    
    

96. Both Rim Bishop and Kevin Prussing, certified water treatment plant operators, testified that they would not accept a customer who wanted them to provide less than the required operator coverage.

    
    

97. The Invitation to Bid circulated by the school board on May 9, 1990, to which Paul Ayers responded on May 23, 1990 (Department Exhibit 37), has a set of "Special General Conditions," which include the following for Floresta Elementary School: "Provide service for both water and wastewater treatment plants, as required by current DER regulations." This specification indicates that the school board intended the operator to make the judgment about appropriate operator attendance requirements. No specific number of days was required in the school board's bid documents.

    
    

98. Other operating companies (not including Respondents) contacted the Department to find out how many visits per week would be required at Floresta.

    
    

99. For some time before completion of the modifications to Floresta Elementary's system, the school's water supply was such a problem that the school board was required to supply bottled water for cooking and drinking, and to post warnings that bathroom water was not potable.

    
    

100. From the time Mr. Ayers became the operator of the Floresta Elementary School water plant, he knew or should have known that water quality was a problem and that extensive treatment modifications were forthcoming. The plant's system, as modified in August 1990, included aeration, gas chlorination, multimedia filtration and ion exchange softening. Proper operation of this system requires blending of raw and treated water.

     
     

101. Andrew Helseth, the plant engineer, pointed out that this plant "was only the second one that has had filters and softeners on it". Kevin Prussing, the current operator of the Floresta plant, testified that the plant modifications caused the plant to be "unusual" and "pretty complex" and stated that the engineer was still "very heavily" involved in making corrections.

     
     

102. The O & M logs for Floresta Elementary School indicate a period in early 1991 when the plant was visited only twice a week by Respondents. An examination of the O & M logs show that during the week of February 24 to March 2, the plant was visited only twice; from March 3 to March 9 only once; from March 17 to March 23 twice; from March 24 to March 30 twice. The plant was not visited at all from February 28 to March 9, 1991, a period of nine days.

     
     

103. This plant is located at a public elementary school. It had a history of water quality problems, and the unique combination of treatment processes. It was gross negligence for an operator to provide less than the three visits per week arguably covered by contract, and less than the required coverage of fives days plus one weekend visit which Mr. Ayers acknowledged, and to leave the plant unattended for nine days.

104. Respondents' claim that the owner of the facility is responsible for ensuring operator coverage is inadequate to overcome the Department's clear and convincing proof with regard to Count XII of the Amended Complaint, that Paul Ayers failed to provide the required operator coverage at the Floresta Elementary School water treatment plant between August 22, 1990, and April 23, 1991.

     
     

     Floresta Elementary - Monitoring Requirements

     
     

105. It is essentially undisputed that Respondents failed to monitor the Floresta Elementary plant on each visit for turbidity and water hardness at the water's point of entry into the system, and failed to measure on each visit the raw, bypass and finished water flows.

     
     

106. In their defense, Respondents showed that there is no specific permit requirement or rule which mandates such monitoring.

     
     

107. The Department established by clear and convincing evidence, including the testimony of Rim Bishop, Wes Upham, Kevin Prussing and Andrew Helseth, and the construction permit issued for the Floresta Elementary School water treatment plant (Department Exhibit 38) that this monitoring is essential to the operation of this type of plant, which includes mixed media filtration, ion exchange and raw water blending, and which had a history of water quality problems.

     
     

108. The modifications to the Floresta plant included a turbidometer and additional flow meters beyond the normal flow meters, but Mr. Ayers contended that the presence of this additional monitoring equipment did not imply that additional flows for which gauges had been installed should be measured.

     
     

109. Standard operating practice in the industry would indicate to a operator exercising ordinary care in performing his duties that such measurements must be taken.

     
     

110. The Amended Complaint further alleged in Count XIII that Respondents failed to monitor monthly for nitrate, chloride, pH, specific conductance, total dissolved solids and fecal coliform, as required by specific condition 13 of the Floresta water treatment plant construction permit (Department Exhibit 38).

     
     

111. This allegation was not denied. Paul Ayers defended his conduct by contending that the school board was responsible for the failure to monitor, even though the Invitation to Bid states: "Special General Condition (A). Floresta Elementary (B). Perform all analysis on water and wastewater as required by current D.E.R. regulations" and "General Conditions (2). Contractor agrees to sub-contract laboratory analysis on samples in accordance with the analytical procedure acceptable to the Department of Environmental Regulations (sic)" Mr. Ayers' own bid response states "The charge for the above-described services per school will be, Floresta Elementary water $310, waste water, $210 per month to include all DER required lab analysis and labor service as described herein" (Department Exhibit 37).

     
     

112. Standard operating practice requires that a water treatment plant operator be familiar with the terms of a plant's permit, and operate the system in compliance with the permit's terms. Even if the school board had an independent duty to assure compliance with the special monitoring requirements set out in Specific Condition 13 of the construction permit, Paul Ayers failed

     to comply with standard operating practice with regard to these monitoring requirements. The allegations of Count XIII have been proven by clear and convincing evidence.

     
     

     Failure to Supply Chlorine at Armadillo Warehouse

     
     

113. The Amended Compliant alleged in Count XIV that Respondents failed to supply chlorine to the Armadillo warehouse water treatment plant after becoming aware that its on-site cholrine reservoir was empty, which caused an inadequate chlorine residual. The Department's evidence on this count included testimony from Francisco Perez, Donna Anderson, Wayne Dampier and Lowell Polk.

     
     

114. Lowell Polk testified that he was given a list of plants to operate, which included the Armadillo plant. Despite his efforts during four or five visits to the plant, he "could not get satisfactory operation out of the [chlorine] feed pump." (Tr. Day 2 p. 141-142) As a result, "There was no chlorine in the water" (Tr. Day 2 pp. 141 and 149). Mr. Polk informed Ms. Devores about the inadequate chlorine situation, and she told him "don't worry about it." The plant was so small it did not fall under the jurisdiction of the Department, but was supervised by the local county public health unit.

     
     

115. Respondents maintain that they had no contract to provide operator service, and that their only responsibility at Armadillo was "for a monthly bacteriological to be picked up" according to Ms. Devores (Tr. Day 2 p. 206), although Mr. Ayers believed it was a "quarterly sample" (Tr. Day 2 p. 258) for the public health unit.

     
     

116. Despite the appearance of the Armadillo warehouse in Lowell Polk's list of plants to be serviced, the evidence about the contractual obligation of Respondents to provide any services to the Armadillo warehouse is too vague to support a finding that Respondents failed to perform services they had agreed or were required to perform for the public health unit. The Department has failed to prove the allegations of Count XIV of its Amended Complaint.

     
     

     Port St. Lucie Convalescent Center

     
     

117. Count XV alleges that no operator certified in wastewater provided the minimum number of visits to the Port St. Lucie Convalescent Center wastewater treatment plant during the period from approximately June 1, 1989, through November 30, 1989.

     
     

118. At the hearing, Lowell Polk, an operator certified in water only, testified that he operated the Port St. Lucie Convalescent Center plant during the period that he worked for Respondents, which was in 1988, not 1989.

     
     

119. Mr. Polk's testimony does not support the allegations of Count XV, since that count specifically alleged misconduct by Respondents during 1989. Mr. Polk's testimony tends to corroborate, to some extent, the allegations of Count III, that uncertified operators were used by Respondents, and negates Respondents' assertions that they were unaware that any plants were being operated by uncertified operators. Mr. Polk told Judy Devores that Wayne Dampier asked him to operate a plant for which he was not certified, and Ms. Devores responded, "don't worry about it, just do it." (Tr. Day 2 p. 140)

     
     

120. The Department has failed to prove the allegations of Count XV of its Amended Complaint.

     Costs

     
     

121. The Department incurred costs and expenses in its investigation of the violations alleged in the amount of $15,512.60, which it seeks to recover in Count XVI.

     
     

     GENERAL OBSERVATIONS ABOUT THE EVIDENCE

     
     

122. Respondents have attempted to impeach the credibility of Donna Anderson and Wayne Dampier as witnesses against them, alleging bias. They claim Ms. Anderson was fined because she had been embezzling funds from petty cash, and Mr. Dampier was personally responsible for improprieties alleged by the Department. Both witnesses, according to Respondents, are lying because they are disgruntled ex-employees.

     
     

123. Danny Runyan, another ex-employee, admitted lying under oath during a deposition taken while he was still employed by Respondents, and explained that he lied under instructions from Respondents in order to keep his job.

     
     

124. I have listened to the testimony, read the transcript, examined the documentary evidence and considered the various allegations of interest, motive and bias. I have observed the witnesses and evaluated their opportunity to have observed the matters they testified about, their ability to remember the facts, their ability to articulate details of their recollection, and any reason they had to shade or avoid the truth. Based on these observations and review of the record, I find that the evidence offered by Ms. Anderson, Mr. Dampier and Mr. Runyan are for the most part corroborated by testimony from John Canard, Kevin Prussing and Lowell Polk; by testimony from Department employees; and by exhibits offered by both parties.

     
     

125. Mr. Dampier, Mr. Canard and Mr. Polk all admitted misconduct involving activities which could jeopardize their treatment plant operations certificates, with no evidence of any "grant of immunity" or agreement by the Department not to take enforcement action against their certifications.

     
     

126. I simply do not believe that Ms. Anderson, Mr. Dampier and Mr. Runyan have perjured themselves for the purpose of revenge, or for any other reason.

     
     

127. Many details in the testimony, while not alleged as to specific counts, and which do not in themselves support a finding of gross neglect in treatment plant operations, tend to corroborate the Department's specific allegations about false entries in required reports. For example, Donna Anderson said Respondents had instructed her to "stagger between 6.8 and 7.2" the pH values as she filled out the MORs; Wayne Dampier testified that Respondents told him "definitely not to take a raw sample because its too likely they will flunk" and to "make sure you got a good chlorine residual so that the samples would pass."

     
     

128. During cross examination, Donna Anderson remembered Respondents asked her "to put in times and dates and stagger information of these particular logs

     . . . They had me make up these so called O & M logs that were missing from plants. They didn't have any." This is consistent with the statement made by Respondents in their written response to the Department's Notice of Noncompliance. In paragraph 3, of Department's Exhibit 15, Respondents state: "When the laws concerning the O & M logs were enforced, Paul Ayers Utilities immediately complied." It appears that Respondents "immediately complied" by having Donna Anderson manufacture O & M logs.

129. Past questionable reports submitted by Respondents offer some slight corroboration of the charge of false labeling of samples. In 1986, the Department was notified by an HRS laboratory that samples submitted by Respondents were questionable, in that all samples, although labeled from different plants, had the same coliform bacteria counts. Respondents were advised at that time to take care in the handling of samples, just as they were warned in 1986 that removal of components of a treatment plant was considered by the Department to be "gross neglect in the performance of duties as a certified operator." The evidence of the fraud in the samples the Department charged in the Amended Compliant is itself highly persuasive even without this evidence.

     
     

130. Statements, admissions and actions by Respondents have undermined their own credibility. For example:

     
     

     1. Respondents alleged that the nonexistent BOD and TSS analyses had been performed by a "moonlighting" lab technician in Okeechobee County who had been paid in cash. This entire line of testimony was not credible and damaged Respondent's credibility generally.

        
        

     2. Ms. Devores testified that the initials "J.D." which appear on the Zachary Taylor plant O & M log (Department Exhibit 33) for August 21 through 26, 1990, are in her handwriting, and that the initials "J.D." which appear on the same document on the dates July 17 and 18, 1990, are also in her handwriting, even though the handwritings are distinctly dissimilar, and even though Danny Runyan admitted that he had entered the latter set of initials. This further undermined the trustworthiness of Ms. Devores' testimony.

        
        

     3. Respondents tried to implicate Wayne Dampier in the allegations involving Floresta Elementary School, but the Floresta allegations all relate to a time period after Wayne Dampier's employment had terminated.

        
        

     4. Ms. Devores was unable to explain how her initials, "J.D." appeared in the Big O Water Treatment Plant at 10 a.m., on 7-11-90, and simultaneously at the Pier II WWTP, except that she "didn't have on my watch". Similarly, she was unable to explain how her initials show her to be simultaneously at Moose Lodge and Raven Parc on February 20, 1990.

        
        

     5. Respondents were unable to explain why they never noticed that their initials repeatedly were being used at plants they contend they did not operate.

        
        

     6. Ms. Devores kicked and threatened Ms. Anderson with bodily harm when she saw Anderson in the hall of the Palm Beach County Courthouse during the proceedings (Tr. Day 2 p. 96-99).

     
     

     CONCLUSIONS OF LAW

     
     

131. The Department is the administrative agency which has the authority to administer and enforce the provisions of Chapter 403, Florida Statutes (1989), and the rules promulgated thereunder in Title 17, Florida Administrative Code. The Department is authorized by Section 403.101(3), Florida Statutes (1989), to establish qualifications, examine and certify water and wastewater treatment plant operators and to issue, deny, suspend or revoke operator certificates pursuant to its rules and Chapter 120, Florida Statutes.

     
     

132. Rule 17-602.370, Florida Administrative Code, provides that owners of all wastewater and certain water treatment plans employ certified operators on-

     site, and specifies minimum visit requirements according to plant capacity and treatment complexity. Certified operators have an independent duty to know and comply with the minimum coverage requirements.

     
     

133. The Certificates described in Finding 1 authorize Respondents to operate treatment plants as described in Chapter 17-602, Florida Administrative Code.

     
     

134. Rule 17-602.360(1), Florida Administrative Code, imposes a general duty on certified operators to operate and maintain water and wastewater plants ". . . in a responsible and professional manner consistent with standard operating practices . . ." It also imposes minimum duties set forth in the Department's rules.

     
     

135. Rule 17-602.360(1)(b), Florida Administrative Code, requires certified operators to "submit complete, accurate and timely plant monthly operating reports. "

     
     

136. Rule 17-602.360(1)(e), Florida Administrative Code, imposes on certified operators the specific duty to "maintain an operation and maintenance log for each plant . . . current to the last operation and maintenance performed." The log, referred to as the O & M log, "shall include . . .

     specific operation and maintenance performed; tests performed and samples taken

     . . ."

     
     

137. Rule 17-602.350(2), Florida Administrative Code, authorizes the Department to permanently revoke a certificate for "gross neglect in the performance of duties as a certified operator in treatment plant operation. Gross neglect is defined as but not limited to: performance by and under the personal control of a certified operator that results in conditions which are a threat to public health or the environment; insufficient attention to treatment plant operation which can result in a hazard to the public health or to the environment."

     
     

138. Rule 17-602.350(1)(d), Florida Administrative Code, authorizes the Department to refuse to issue or renew a certificate for "fraud or cheating."

     
     

139. Rule 17-602.350(3), Florida Administrative Code, authorizes the Department to suspend a certificate for a period not to exceed two years for "(a) falsification or misrepresentation of data or information contained in any documents or reports required to be submitted to the Department including

     but not limited to . . . operation, laboratory or maintenance reports or logs required to be maintained, signed or submitted by a certified operator" and "(b) incompetence in the performance of duties of a certified operator in treatment plant operation which results in a plant under the direct charge of the operator being operated in a manner inconsistent with standard operating practice."

     
     

140. Paul Ayers and Judy Devores are each a person within the meaning of Section 403.031(5), Florida Statutes (1989), and an operator within the meaning of Section 403.101(7), Florida Statutes (1989).

     
     

141. Deliberate removal of the essential components of a water treatment plant by a certified operator as a self-help remedy for nonpayment constitutes gross neglect by Respondents in the performance of their duties as certified operators. These actions also resulted in a condition at the Lakewood Plaza water treatment plant which was a threat to public health, and is sufficient

     grounds for certificate revocation under Rule 17-602.350(2)(a), Florida Administrative Code, as to both Paul Ayers and Judy Devores.

     
     

142. Failure to provide operator coverage to a water treatment plant for a period of eight days (February 16 to 23, 1990, at the Raven Parc plant) and failure to maintain adequate chlorination during that period of time constitute insufficient attention to treatment plant operation which can result in a hazard to public health, and are sufficient grounds for certificate revocation pursuant to Rule 17-602.350(2)(a), Florida Administrative Code, for the lead operator Judy Devores.

     
     

143. Use of noncertified persons to provide the required operator coverage at water and wastewater treatment plants constitutes insufficient attention to treatment plant operation which can result in a hazard to public health, and is sufficient grounds for certificate revocation pursuant to Rule 17-602.350(2)(a), Florida Administrative Code, for Paul Ayers and Judy Devores.

     
     

144. A consistent pattern of failing to collect wastewater effluent samples to be analyzed for TSS and BOD constitutes insufficient attention to treatment plant operation which can result in a hazard to public health, and is sufficient grounds for certificate revocation pursuant to Rule 17-602.350(2)(a), Florida Administrative Code, as to Paul Ayers and Judy Devores.

     
     

145. A consistent pattern of reporting TSS and BOD values to the Department on MORs when no effluent samples have been analyzed constitutes insufficient attention to treatment plant operation which can result in a hazard to public health, and is sufficient grounds for certificate revocation pursuant to Rule 17-602.350(2)(a), Florida Administrative Code, for Paul Ayers and Judy Devores.

     
     

146. Any single instance of reporting TSS and BOD values on an MOR when no effluent sample has been analyzed constitutes serious falsification or misrepresentation of data required to be reported by a certified operator, and is sufficient grounds for certificate suspension for two years pursuant to Rule 17-602.350(3)(a), Florida Administrative Code, for both Paul Ayers and Judy Devores.

     
     

147. Repeated instances of authorizing employees to "backfill" O & M logs at water and wastewater treatment plants and to use initials other than their own in O & M logs constitutes serious misconduct and shows insufficient attention to treatment plant operation which can result in a hazard to public health and is sufficient grounds for certificate revocation pursuant to Rule 17- 602.350(2)(a), Florida Administrative Code, for Paul Ayers and Judy Devores.

     
     

148. Any single instance of authorizing employees to "backfill" O & M logs at water and wastewater treatment plans and to use initials other than their own in O & M logs constitutes falsification or misrepresentation of data required to be maintained or signed by a certified operator, and is sufficient grounds for certificate suspension for two years pursuant to Rule 17-602.350(3)(a), Florida Administrative Code, for Paul Ayers and Judy Devores.

     
     

149. Repeated failure to measure water treatment plant flows at Raven Parc constitutes insufficient attention to treatment plant operation which can result in a hazard to public health, and is sufficient grounds for certificate revocation pursuant to Rule 17-602.350(2)(a), Florida Administrative Code, for Paul Ayers and Judy Devores.

150. Failure to measure water treatment plant flows and falsely reporting flow data on MORs as though measurements had been taken at Raven Parc constitutes falsification or misrepresentation of data required to be reported by a certified operator, and is sufficient grounds for certificate suspension for two years pursuant to Rule 17-602.350(3)(a), Florida Administrative Code, for Paul Ayers and Judy Devores.

     
     

151. Any instance of falsifying chlorine values on MORs constitutes falsification or misrepresentation of data required to be reported by a certified operator, and is sufficient grounds for certificate suspension for two years pursuant to Rule 17-602.350(3)(a), Florida Administrative Code, for Paul Ayers and Judy Devores.

     
     

152. Any instance of entering substantially incorrect "time in" and "time out" data in O & M logs constitutes falsification or misrepresentation of data required to be maintained or signed by a certified operator, and is sufficient grounds for certificate suspension for two years pursuant to Rule 17- 602.350(3)(a), Florida Administrative Code, for Judy Devores.

     
     

153. Any instance of signing MORs as lead operator without "performance of on-site treatment plant operation" which is required under the definition found in Rule 17-602.200(11), Florida Administrative Code, constitutes falsification or misrepresentation of data required to be reported by a certified operator, and is sufficient grounds for certificate suspension for two years pursuant to Rule 17-602.350(3)(a), Florida Administrative Code, as to Paul Ayers and Judy Devores.

     
     

154. More than one instance of deliberately mislabeling a water sample taken from a water treatment plant and submitting the mislabled samples to a laboratory for bacteriological analysis constitutes very serious misconduct, and shows insufficient attention to treatment plant operation which can result in hazard to public health, and is sufficient grounds for certificate revocation pursuant to Rule 17-602.350(2)(a), Florida Administrative Code, as to both Paul Ayers and Judy Devores.

     
     

155. One instance of deliberately mislabeling a water sample taken from a water treatment plant and submitting the mislabled sample to a laboratory for bacteriological analysis constitutes a serious falsification or misrepresentation of data required to be reported by a certified operator, and is sufficient grounds for certificate suspension for two years pursuant to Rule 17-602.350(3)(a), Florida Administrative Code, for Paul Ayers and Judy Devores.

     
     

156. Failure to provide the necessary frequency of operator coverage for a period of eight months, and failure to provide any coverage at all for a period of nine days at the Floresta Elementary School constitutes insufficient attention to treatment plant operation which can result in a hazard to public health, and is sufficient grounds for certificate revocation pursuant to Rule

     17-602.350(2)(a), Florida Administrative Code, for Paul Ayers.

     
     

157. Failure to monitor the Floresta Elementary School water treatment plant for special parameters required by its permit and failure to monitor the plant for additional special parameters which are called for by standard operating practice, given the unique operating history and treatment features of the plant, constitutes insufficient attention to treatment plant operation which can result in a hazard to public health, and is itself sufficient grounds for certificate revocation pursuant to Rule 17-602.350(2)(a), Florida Administrative Code, for Paul Ayers.

158. The findings, taken as a whole, show incompetence in the performance of duties of a certified operator in treatment plant operation as described in Rule 17-602.350(3)(b), Florida Administrative Code. Respondents failed to follow standard operating practices by submitting false information in violation of Rules 17-602.350(1)(a), Florida Administrative Code. These are more than sufficient grounds for certificate suspension for two years pursuant to Rule 17- 602.350(3)(a), Florida Administrative Code.

     
     

159. The findings of fact set forth in paragraphs 82 and 88 constitute fraud in the operation of wastewater treatment plants and are sufficient grounds for the Department to refuse to renew the wastewater operator certificate for Paul Ayers pursuant to Rule 17-602.350(1)(d), Florida Administrative Code.

     
     

160. The prosecution and investigative costs incurred by the Department are identified in Finding 121 and are reasonable costs. The Department contends it is entitled to reimbursement of its costs and expenses of prosecution as expenses incurred in controlling and abating pollutants, namely, negligent operation of water and wastewater treatment plants, and that such costs are recoverable pursuant to Section 403.141(1), Florida Statutes (1989). Submission of a false report to the Department can make one liable for the Department's costs for tracing, controlling and abating pollution, and for restoring air, water or property to its former (i.e., unpolluted) condition. See Section 403.161(1)(c), Florida Statutes (1989). The statutes does not, however, make a party liable for prosecution costs and expenses whenever the misconduct involves filing false reports. There is insufficient evidence of any actual pollution in this record. Because uncertified persons operated plants, plants were left unattended, data was manufactured, or samples mislabled, does not mean pollution necessarily occurred. Without such proof, the statute does not give the Department the right to recover its prosecution expenses. While such a statute might be salutary, that is not the statute enacted in Section 403.141(1), Florida Statutes (1989). Perhaps the Department may seek judicial imposition of a civil penalty under Section 403.141(1), but that action must be brought in an Article V court. No other sort of remedial action has been sought by the Department.

RECOMMENDATION

Paul Ayers' and Judy Devores' water and wastewater treatment plant operator certifications referred to in Finding 1 should be permanently revoked. They should surrender those certificates to the Department within thirty (30) days of the effective date of the final order. Respondents should no longer accept employment in a capacity requiring water or wastewater treatment certification nor represent themselves as holding such certifications.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of May 1992.

WILLIAM R. DORSEY, JR.

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 5th day of May 1992.

ENDNOTES

1/ The allegation that Paul Ayers' wastewater treatment operator certificate is a Class C certificate is incorrect. The actual classification is Class B, as shown by the Notice of Denial of Operator Certification and Ayers' Petition Objecting to Final Order Denying Certification (See Finding 1). The Complaint is deemed amended to conform to this evidence, as it does not prejudice the Respondents.

2/ The actions of Mr. Canard do not form an independent basis for discipline of Respondents, but corroborate evidence of misconduct in the duties assigned to Danny Runyan.

3/ The actions of Mr. Polk also do not form an independent basis for discipline of Respondents.

4/ Mr. Perez' testimony included mention of ABC Research as a laboratory used by Respondents. For reasons not explained, this laboratory was not included in the set of affidavits of labs which had not done the required BOD and TSS analyses for Respondents. Respondents did not counter the Department's allegation with some evidence that ABC Research did the disputed analyses.

Instead, they insisted the analyses were performed by a moonlighting laboratory technician in Okeechobee County, whom they would not identify. ABC Research did not do the analyses.

APPENDIX TO RECOMMENDED ORDER

Rulings on findings proposed by the Department.

1. Adopted in Finding 1.

2. Adopted in Finding 2.

3. Adopted in Finding 3.

4. Adopted in Finding 4.

5. Adopted in Finding 5.

6. Adopted in Finding 6.

7. Adopted in Finding 7.

8. Adopted in Finding 8.

9. Generally adopted in Finding 9.

10. Generally adopted in Finding 10.

11. Adopted in Finding 11.

12. Adopted in Finding 12.

13. Adopted in Finding 13.

14. Adopted in Finding 14.

15. Adopted in Finding 15.

16. Adopted in Finding 16.

17. Rejected as unnecessary.

18 & 19. Adopted in Finding 16.

1. Adopted in Finding 17.

2. The first sentence is rejected, the remainder is adopted in Finding 18.

3. Adopted in Finding 19.

23-25. Rejected because the I find little relevancy in the testimony of Mr. Prussing on these points. At best, it is cumulative.

1. Adopted in Finding 20.

2. Adopted in Finding 21.

3. The first sentence is rejected, the remainder is adopted in Finding 22.

4. Generally adopted in Finding 23.

5. Generally adopted in Finding 24.

6. Adopted in Finding 25.

7. Adopted in Finding 26.

8. Adopted in Finding 27.

9. Generally adopted in Finding 28.

10. Adopted in Finding 29.

11. Adopted in Finding 30.

12. Adopted in Finding 31.

13. Adopted as amended in Finding 32.

14. Adopted in Finding 33.

15. Adopted as amended in Finding 34. Only the deficiencies on February 22 and 23, 1990, were alleged in the Amended Complaint.

62 and 63. Adopted as amended in Finding 55.

1. Adopted in Finding 56.

2. Adopted in Finding 67.

3. Adopted in Finding 58.

4. Adopted in Finding 59.

5. Adopted as amended in Finding 60.

6. Adopted in Finding 61.

7. Adopted as amended in Finding 62.

8. Adopted as amended in Finding 63. The Amended Complaint makes no allegations against Paul Ayers, and those proposed findings have been rejected.

9. Adopted in Finding 64.

10. Adopted in Finding 65.

11. Adopted in Findings 66 and 67.

12. Adopted as amended in Finding 68. Two, not three tickets are involved.

13. Rejected because no allegations were made against Paul Ayers in that count.

14. Adopted in Finding 69.

15. Adopted as amended in Finding 70.

1. Amended to limit the finding to Paul Ayers, but adopted in Finding 87.

2. Adopted in Finding 88.

3. Adopted as amended in Finding 89.

4. Adopted in Finding 39.

5. Rejected as unnecessary.

6. Adopted in Finding 91.

7. Adopted in Finding 92.

8. Amended to refer to only Paul Ayers, but adopted in Finding 93.

9. Adopted in Finding 94, but amended as to the year (1991) for the August date.

10. Adopted in Finding 95.

11. Adopted in Finding 96.

12. Adopted as amended in Finding 97.

13. Adopted in Finding 98.

14. Rejected as unnecessary.

15. Adopted in Finding 99.

16. Adopted as amended in Finding 100.

17. Adopted as amended in Finding 101.

18. Adopted in Finding 102.

19. Adopted as amended in Finding 103.

20. Adopted in Finding 104.

21. Adopted in Finding 105.

22. Adopted in Finding 106.

23. Adopted in Finding 107.

24. Adopted in Finding 108.

25. Adopted in Finding 109.

26. Adopted as amended in Finding 110.

27. Adopted in Finding 111.

28. Adopted as amended in Finding 112.

29. Adopted in Finding 113.

30. Rejected as unnecessary.

31. Adopted as amended in Finding 114.

32. Adopted in Finding 115.

33. Rejected for the reasons stated in Finding 116.

34. Adopted as amended in Finding 117.

35. Adopted in Finding 118.

36. Adopted as amended in Finding 119.

37. Adopted in Finding 121.

38. First sentence rejected as unnecessary, the remainder is adopted in Findings 122 through 130 although it is necessary to compare the findings to the proposals to see that not all of the arguments have been accepted.

Rulings on findings proposed by the Respondents:

The findings proposed by the Respondents have generally been rejected for the reasons stated in Findings 122 through 130. By the end of their testimony, both Respondents had very little credibility.

1. Count I: Rejected for the reasons stated in Findings 7 through 9.

2. Count II: Rejected because I do not believe Respondents Exhibit 25 bears a February 1990 date, see Findings and 49 and 123 which explains the contradictions in Runyan's testimony.

3. Count IV: Rejected for the reasons stated in Findings 75 through 82.

4. Count VI: Respondents' interpretation of their Exhibit 25 is unconvincing, and Mr. Ayers' testimony was unpersuasive.

5. Counts II and VII: Rejected because I am convinced that some of the entries were whited over in an effort to hide information which, if sent in its original form, the Department surely would have known was false, see Finding 40. But the most significant problems are the improper value certified for February 19, 20 and 23, 1990. See Finding 38.

6. Count VIII: Rejected, see Finding 62.

7. Count IX: Rejected, Wayne Dampier did not sign as lead operator, Judy Devores did, and her initials are on the worksheets kept at the plants.

8. Count XI: Whether Donna Anderson worked for a utilities company before or was a certified operator is not significant. The bacteriological data was falsified. See Findings 83 through 88.

9. Count XII: As a certified operator, Mr. Ayers was obligated to provide the necessary service, and that obligation is consistent with his contract with the school board. See Finding 97.

10. Count XIII: Rejected for the reasons stated in Finding 112.

11. Count XIV: The contention of Respondents that they did not have a contract with Armadillo warehouse for operator services has been accepted.

12. Count XV: The Department failed to prove the allegations of Count XV.

COPIES FURNISHED:

Agusta P. Posner, Esquire

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Lynn Solomon, Esquire Simmons, Fisher and Solomon 10032 South Federal Highway Port St. Lucie, Florida 34952

Carol Browner, 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

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. Some agencies allow a larger period within 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: 91-001709

Orders for Case No: 91-001709