The Issue The issue in this case is whether the Petitioner has the actual experience required for certification as a Class B domestic wastewater treatment plant operator.
Findings Of Fact By application filed September 16, 1991, James H. Redden applied for certification as a Class B domestic wastewater treatment plant operator. At the time of the application, Mr. Redden was employed as a laboratory technician at a Class B Collier County regional wastewater treatment facility. From August 15, 1978, to July 31, 1989, Mr. Redden was employed at the Colgate-Palmolive Company facility at Jeffersonville, Indiana. The Colgate-Palmolive treatment facility is an Indiana Class D industrial wastewater treatment plant. Mr. Redden is certified by the State of Indiana as a Class D industrial wastewater treatment plant operator. During his employment at the Jeffersonville facility, Mr. Redden held positions as an associate chemist, senior chemist/plant microbiologist, and wastewater treatment plant supervisor. His duties included daily operations and supervision of personnel, scheduling and performance of maintenance activities, budgeting, ordering, materials balance, sludge management, laboratory analysis, quality assurance and quality control programs, and compliance with various state and federal reporting requirements. Mr. Redden has no experience either in the operation of a drinking water or domestic wastewater treatment plant, or at a DER-permitted industrial wastewater treatment plant.
Recommendation Based on the foregoing, it is hereby: RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the application of James H. Redden for certification as a Class B wastewater treatment plant operator. DONE and RECOMMENDED this 9th day of April, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 9th day of April, 1992. APPENDIX The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner: The Petitioner did not file a proposed recommended order. Respondent: The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2-4. Rejected, unnecessary. COPIES FURNISHED: Carol Browner, Secretary Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 James H. Redden 1362 Chesapeake, Avenue Naples, Florida 33962 Francine M. Ffolkes, Esq. Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32399
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Pinellas County Construction Licensing Board, (Board), was the Pinellas County agency responsible for the certification and regulation of construction specialties. Respondent was certified by the Board as an irrigation systems specialty contractor under license C-5997 in force at the time. Respondent was the qualifying contractor for Sun City Lawn Irrigation. On or about May 17, 1994, Respondent contracted with William J. Schneider, who resided at 5661 25th Avenue North in St. Petersburg, to install a lawn irrigation system in Mr. Schneider's front lawn. The automatic system was to incorporate 2 zones and was, according to the contract and the testimony of Mr. Schneider, to be connected to Schneider's then existing 1/2 horsepower electric pump which drew water from several wells on his property. Mr. Schneider claims there are four wells. No evidence was introduced to contradict that. On the day the system was installed, Mr. Schneider was not at home. Respondent's employees performed a test of the water capacity on Mr. Schneider's property. At first, the wells produced 10 gpm, which was adequate for the system, but after a few minutes of drawdown, they found that the wells were producing only 4 gpm, along with some air. At that time Mr. Freestone, Respondent's sales manager, spoke with Mrs. Schneider about the situation, advising her there were two options open. One was to install a larger pump and the second was to connect the system to the city water supply. Mrs. Schneider returned to the house, presumably to call Mr. Schneider to get his decision on the matter. He claims she did not reach him. Respondent claims that she thereafter returned with directions to install a water line for connection to the city system. This is completely contrary to what Mr. Schneider had wanted and to what is included in the contract. Mr. Schneider claims he did not want to connect to city water because of the added expense of doing so, and he claims he made this very clear to Respondent's employees at the beginning and at all times thereafter. In any case, the system was installed and was, somehow, connected to the city water system near the place where the water line enters the house. In addition, no backflow preventer was installed to insure against contamination getting into the water system as is required by the building code. Most, if not all, the work on this project was completed by Respondent's son and employee, Scott, who was not present at the hearing. Respondent attempted to introduce an unsworn written statement by Scott Bosworth, but it was not accepted. Scott advised Mr. Schneider, when he returned from work that day, that they had been unable to use his pump and wells. Nonetheless, Mr. Schneider paid Respondent in full for the work for which he had contracted, except for a supplemental charge in the amount of $190.95 for the tie in to the city water and the valves and other items connected therewith. Mr. Schneider claims that he made several calls to Respondent's office in an effort to correct the situation but was unable to reach anyone who could give him satisfaction. However, the evidence indicates that on at least one occasion, Mr. Schneider got through and was called back by Mr. Freestone with whom he discussed the situation and the additional charges. He was subsequently advised by counsel that he did not have to pay the additional sum and did not do so. Some time thereafter, Mr. Schneider was advised by the city that he would be fined because of the illegal installation. He then contacted another irrigation company, run by Mr. Williams, who examined the system and determined that the irrigation system installed by Respondent had been connected to the city water system and that no backflow preventer had been installed. A check with the city's building department revealed that no permit had been procured for this installation. Respondent's license to install irrigation systems does not include authority to connect that system with the public water system. That procedure must be done by a licensed plumber. Respondent and Mr. Freestone, the only individuals in the company who had the authority to arrange with a plumber to make the actual hook up to the city system, both deny that any arrangement was made by them to have the system connected to the city water system. Mr. Schneider arrived home on the day in question to find only Respondent's son, Scott, at work on the project. Scott indicated it would be necessary to move two bushes near the house to facilitate connection of the system with the water supply. Mr. Schneider contracted with Scott to move the bushes and remove them from the premises. Scott moved them but failed to remove them. In light of the fact that Scott was working on the system at the time Mr. Schneider arrived home, and the system was found to be connected to the city system thereafter without anyone else touching it, it must be concluded that the connection was made him. Respondent admits he did not come to the property in question while the system was being installed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Board suspending the license of the Respondent for a period of six months with provision for withholding execution of the suspension for a period of one year conditioned upon such criteria as may be deemed appropriate by the Board. RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of March, 1995. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road Largo, Florida 34643-5116 Larry J. Bosworth 8901 14th Street North St. Petersburg, Florida 33716
The Issue 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 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). 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). 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. 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 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. 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." 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. 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. 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) 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 Danny Runyan was employed by Respondents during the period from approximately 1983 to May 1991. 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. 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. 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. 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. 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 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. 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. 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. 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/ 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. 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 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. 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. 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 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. It is the practice in the industry for certified operators to initial rather than fully sign each entry in the O & M log. 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. 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. 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. The practice of "backfilling" is contrary to standard operating practice for water treatment plant operators. Raven Parc - Inadequate Chlorine Residuals 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. 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." 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 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. 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. 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. 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. 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. 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." 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. 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 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. It was admitted that the flow meter at Raven Parc was inoperative. By tracking the amount of time a water pump operates with an elapsed time clock, an operator may calculate flows of treated water. 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. 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). 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. 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. 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." 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. 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. 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" 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). 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. 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. 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. 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 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. 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.) 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. 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 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). 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. 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. 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." 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. 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. Ms. Devores hinted, but offered no proof, that Wayne Dampier falsified initials on O & M logs, presumably to get them in trouble. 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 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. 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. 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." 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. 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. 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. 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). 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. 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. 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. John Canard and Danny Runyan each testified that they did not regularly collect effluent samples from wastewater treatment plants they maintained. 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 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. Respondents undertook the sampling and reporting requirements as part of their operating service agreements but did not follow appropriate sample collection methods. 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. 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. 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. 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 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. 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. 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. 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. 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. 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. 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. 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. 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. Other operating companies (not including Respondents) contacted the Department to find out how many visits per week would be required at Floresta. 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. 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. 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. 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. 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. 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 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. In their defense, Respondents showed that there is no specific permit requirement or rule which mandates such monitoring. 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. 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. Standard operating practice in the industry would indicate to a operator exercising ordinary care in performing his duties that such measurements must be taken. 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). 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). 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 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. 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. 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. 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 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. 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. 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) The Department has failed to prove the allegations of Count XV of its Amended Complaint. Costs 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 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. 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. 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. 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. 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. 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." 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. 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. Statements, admissions and actions by Respondents have undermined their own credibility. For example: 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. 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. 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. 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. Respondents were unable to explain why they never noticed that their initials repeatedly were being used at plants they contend they did not operate. 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).
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.
The Issue Whether the rules promulgated by the Department of Environmental Regulation require the Respondent to employ the services of a state certified water system operator to operate the water systems at the two business locations involved in these proceedings.
Findings Of Fact At all times material to these proceedings, the Respondent was responsible for the operation of two water systems. One water system is located on Highway 92 West, Winter Haven, Polk County. The other water system is located on State Road 37 South, Mulberry, Polk County. The restaurant and bar business operated at the Winter Haven location is known as the Rainbow Club. Customers eat food and drink beverages prepared with water from the on site water system. The system serves at least twenty- five individuals daily, at least sixty days out of the year. The convenience store business operated in Mulberry serves ice tea, juices, and coffee to customers which is prepared with water from the on site water system. The system serves at least twenty-five individuals daily, at least sixty days out of the year. During the recent past, the Respondent retained a certified operator to meet the state requirements. He was not satisfied with the operator for the following reasons: (1) He had to show the man how to chlorinate the water. (2) The operator took the required chlorine samples from water that had not been chlorinated. (3) Visits were not made to the site as scheduled. (4) The pump at one of the establishments was harmed by the certified operator. (5) The expense of four hundred dollars a month for the testing of three sites operated by the Respondent was too much money. The Respondent wants to be able to chlorinate the water and maintain the systems himself. He has professional experience regulating the chemical balance of water in swimming pools. The samples he turned into the lab himself were good. The Respondent also wants to keep the old well next to the convenience store in Mulberry. He disagrees with the Department's request that he abandon the well because he needs it for an adjoining piece of property. This well is used for lawns, not for the convenience store business. The Department is amenable to the Respondent maintaining his own systems if he is certified to do so. The next examination is scheduled for November 1990.
The Issue The issue posed herein is whether or not the Respondent, Arthur M. Jones, Jr.'s Wastewater Treatment Plant Operator's license should be suspended or revoked based on conduct set forth hereinafter in detail based on allegations as set forth in the Petitioner's Administrative Complaint filed January 31, 1979.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the documentary evidence received, the following relevant facts are found. Respondent, Arthur M. Jones, Jr., is a duly certified Class C Wastewater Treatment Plant Operator, certified pursuant to Chapter 17-16, Florida Administrative Code. Respondent holds license No. 793 originally issued by the Florida Department of Health and Rehabilitative Services on May 13, 1971. The responsibility for certification of wastewater treatment plant operators was transferred to the Florida Department of Pollution Control by Executive Order 72-75. The Florida Department of Environmental Regulation is the successor agency to the Florida Department of Pollution Control by virtue of Chapter 75- 22, Laws of Florida, and is authorized by Section 403.101, Florida Statutes, to issue and revoke operators' certificates pursuant to its rules and Chapter 120, Florida Statutes. At all times material to this complaint, Respondent was employed by the Duval County School Board in Jacksonville, Florida. At all times material, Respondent was employed by the School Board as a School Sewer/Water Plant Mechanic, a position requiring certification by the Department as a Wastewater Treatment Plant Operator. In his capacity as a School Sewer/Water Plant Mechanic and Class C Operator, Respondent was responsible for the operation, supervision, maintenance and collection of influent and effluent samples from various Duval County schools. Persons responsible for the operation, supervision, maintenance and collection of influent and effluent samples must be licensed and certified by the Department as a Wastewater Treatment Plant Operator. Additionally, Respondent, in his capacity as a School Sewer/Water Plant Mechanic and Certified Class C Wastewater Treatment Plant Operator, was responsible for the proper collection of composite samples of raw sewage and the treated effluent from each such plant. According to instructions given the Respondent, a composite sample was to be taken by filling one-third of a sample bottle at two-hour intervals until the bottle was full. The composite sample of raw sewage was to be taken from the influent line and the composite sample of treated final sewage was to be taken from the effluent line. After the collection process, Respondent was responsible for properly and accurately labeling the composite samples and for depositing them in a refrigeration unit at School No. 98. The composite samples are then picked up at School No. 98 by authorized personnel for laboratory analysis to determine whether sewage is being adequately treated. The complaint, in summary fashion, alleged that the Respondent on or about February 15 and March 15, 1978, completely filled a raw sample bottle from the filter bed rather than from the influent line of the plant at School No. 94. That sample was submitted as a composite sample and placed in the refrigeration unit for pickup and analysis by laboratory personnel. Additionally, the complaint alleges that on February 15, 1978, at School No. 82, Respondent filled raw and final sample bottles for Schools Nos. 82, 64, 83 and 153, none of which were a proper composite sample. The samples, it is alleged, were all taken from School No. 82. The complaint alleges that similar acts occurred on March 15, 1978; on April 4, 1978 and April 11, 1978, all of which acts "constitute gross neglect and fraud in the performance of duties as an operator of a wastewater plant." Based thereon, the Petitioner seeks revocation of the Respondent's Class C Wastewater Treatment Plant Operator's license. L. L. Masters is Respondent's foreman and is in charge of the wastewater treatment plant facilities. Masters is Respondent's immediate supervisor. On March 15, 1978, Foreman Masters assigned Respondent the duties of taking composite samples of Schools 94, 64, 83, 82 and 159. Evidence reveals that Foreman Masters arrived at School 82 at 9:00 o'clock a.m. and departed at 2:00 p.m. Evidence also reveals that Foreman Masters had a clear view of the entire wastewater treatment plant and that it was impossible for the Respondent to enter and leave the treatment plant in a manner whereby composite samples could be collected without Foreman Masters seeing him. In this regard, Respondent's work orders reflect that he reported having arrived at School 82 at 10:40 a.m. and departed at 12:10 p.m. (Petitioner's Exhibits 5, 6, 7 and 8.) On April 4, 1978, Respondent was assigned to collect composite samples from Schools 72, 233, 76 and 208. (Petitioner's Exhibit 9.) Foreman Masters observed Respondent on April 4, 1978, with employee Carl Casey. Masters went to School 77 at 8:30 and Respondent was not there, although he had given a dispatcher a routing which would have taken him to School 76. When Foreman Masters noted that Respondent had not arrived at School 76 by 8:30 a.m., he took employee Carl Casey to School 233 and left Casey at School 233 while he returned to School 76. The Respondent was not there and Masters drove to School 208 where the Respondent arrived at approximately 9:30 a.m. It suffices to say that the Respondent then left for School 233 and arrived there at 10:30. From approximately 10:45 to 11:45, the Respondent was in the wastewater treatment area of School 233 and took three samples from the effluent line and three samples from the influent line at School 233 from the period 10:30 a.m. through 11:45 a.m. (Petitioner's Exhibits 9, 10 and 11.) Employee Pat Wilson testified that he accompanied Respondent on February 15, 1978, and that all samples were taken from the filter beds of Schools 98 and 82. Detective Jack C. Adams of the Jacksonville Police Department was assigned to the surveillance of Respondent on April 11, 1978. Detective Adams credibly testified that the Respondent did not take composite samples from the assigned schools as reflected by the work orders submitted by Respondent Respondent appeared and testified that one of the events for which he had been charged occurred as alleged; however, he testified that inasmuch as he questioned the procedures, he was of the opinion that since no harm was done, and since no school experienced problems, he is not guilty of gross neglect and fraud in the performance of his duties as an operator of a wastewater treatment plant as alleged. The evidence herein reveals that the Respondent was instructed as to the proper procedures for testing, collecting and preserving composite raw and final samples from wastewater treatment plants by his employer. He testified that he had attended a seminar wherein the instructions for such procedures were outlined to him and that he was given a manual on the methods for collecting raw and final samples. Barry McAlister, a certification officer for the Department, testified that Class C operators are instructed as to the proper procedures for collecting samples. Additionally, he testified that the submitting agencies rely heavily on the operators to properly collect samples which are submitted for analysis. Chapters 17-19.04, Florida Administrative Code, additionally set forth the sampling and testing methods for collection and preservation of composite samples. Although there was some conflicting testimony respecting the adherence to the procedures uniformly by the various wastewater treatment plant operators employed by the School Board, the undersigned is of the opinion that the Respondent was not at liberty to select and choose the manner within which he would collect composite samples for analysis by his employer in view of outstanding instructions which were in effect during his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Respondent, Arthur M. Jones, Jr.'s license as a Class C Wastewater Treatment Plant Operator be suspended for a period of two (2) years. RECOMMENDED this 28th day of September, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Silvia Morell Alderman, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Reed Tallahassee, Florida 32301 Joseph S. Farley, Jr., Esquire Mahon, Mahon & Farley 350 East Adams Street Jacksonville, Florida 32202
Findings Of Fact The parties stipulated, and it is so found, that Petitioner, DER, has jurisdiction over both the issues and the Respondents Dey and KWC. KWC owns and operates a water system which supplies water to both residential and commercial customers in the City of Keystone Heights, Florida. Virginia Key is the President of KWC, a member of the Board of Directors of the corporation, and one of the five stockholders. The other stockholders are her sisters. The five sisters are the daughters of the late G. E Wiggins, and inherited the company from him at his death in 1969. Mr. Wiggins developed the water company in the 1920's and operated it until his death. KWC came under the jurisdiction of the Florida Public Service Commission (PSC) just prior to Mr. Wiggins' death. At that time, pursuant to a PSC requirement, it was assessed and valued at a sum in excess of $250,000.00 by a consultant firm hired for the purpose. As of late November, 1984, KWC served approximately 752 residential customers which, when multiplied by an average 2.5 persons per family factor, results in a total of approximately 1,880 residential inhabitants served by the water system. In addition, the system serves 105 commercial customers. It is impossible to estimate with any reasonable degree of accuracy the number of individuals involved in the commercial service. The system consists of three wells drilled in 1940, 1946, and 1960 to a depth of 350, 450, and 492 feet respectively. Total yield from the three wells is normally 1,350 gallons per minute. The wells are generally well protected against surface water infusion, are normally not subject to inundation, and have had no salt water infiltration problems in the past. At the present time, well number 2, drilled in 1946, with a 350 gpm yield is out of service. The water, when pumped from the ground, is stored in two tanks-one with a 60,000 gallon capacity and the other with a capacity of 800 gallons. Both tanks are steel. Chlorine is added to the water in each storage situation by a hyper-chlori- nation system before the water is sent to the storage tank. The distribution system is made up of 6" and 2" diameter pipe. In March, 1984, two different inspections of the water system, done by, in one case, an environmental specialist and in the other, an Engineer I with DER, revealed several deficiencies in the maintenance and operation of the system all of which constitute violations of DER rules. Specifically, these include (1) failure to provide an auxiliary power source in the event the main pumping capability of the system is lost, (Rule 17-22.106 (3)(a); (2) failure to utilize for the system an operator certi- fied by the state with a Class C license, (Rule 17-22.107(3)(b); (3) failure to maintain a free chlorine residual in the water of at least 0.2 ppm in the system, (Rule 17-22.106(3)(c); (4) failure to maintain a minimum pressure of 20 ppi in the distribution system, (Rule 17-22.106(3)(f); (5) failure to have a gas chlorination facility, (Rule 17-22.106(3)(d); and (6) failure to obtain proper permits to expand the distribution system, (Rule 17-22.108 (1)(b) Rule 17-22, F.A.C., sets up requirements for safe drinking water and was designed to establish guidelines and standards for facilities and water and to bring water into compliance with the Federal Act. Twenty ppi of pressure in the system was adopted as a standard minimum for residual pressure to protect against outside contaminants getting into the water system. Such contaminants could come from ground water, leaks, and water in storage tanks attached to the system such as toilet tanks, being aspirated into the system. Also a certain amount of pressure is required to operate appliances. Normally minimum pressure is found in areas at the edge of the system and in those areas where inadequate chlorination is located. They interact and both pressure and chlorinization are required. Chlorine can be injected into the system generally in two ways: the first is through gas chlori- nation and the second, through hyper-chlorinization as is used in the instant system. The effectiveness of hyper-chlorinization is limited, however, by the size of the system. Basically, hyper- chlorinization is effective when the demand in the system for pressure is no more than 10 ppi. Above this, gas chlorinization is necessary. As late as January 4, 1985, Mr. Dykes went to Keystone Heights to test the system. His tests showed that 11.9 ppi is the average daily flow per 24 hours for the last 12 months. Since this figure is above 10 ppi, in his opinion, a gas chlorinization system would be needed. Chlorine is used to purify water because it has been shown, through long use, to prevent disease. The requirement for a residual chlorine level in water, therefore, is consistent with that concept to insure chlorine is always in the water in sufficient quantity to prevent disease. Respondent's plant has less than the 0.2 residual that is required under the rule. This insufficiency is caused by the inadequate chlorinization system which has insufficient capacity to provide the appropriate amount of chlorine. At the current level, it is providing only approximately 60 percent of the needed chlorine. To correct this deficiency Mr. Dykes recommends installation of a gas chlorinization system. In addition, the pneumatic tank storing the water from the number 3 well does not give sufficient detention time to allow for appropriate reaction of the chlorine contained in the water before the water is released into the distribution system. Another factor relating to the lack of adequate pressure in the system is the fact that, in Mr. Dykes' opinion, too much of the system is made up of 2" diameter water line. A line of this small diameter prevents the maintenance of adequate pressure especially in light of the fact that there are numerous old lines in the system some with corrosion and scale in them which tends to reduce pressure. This latter factor would be prevalent even in the 6" lines. The current plant manager, Mr. Cross, who has been with Respondent for approximately 4 years is, with the exception of one part time employee, the only operations individual associated with the plant. As such, he repairs the meters and the lines, checks the pumps, the chlorinator, and checks and refills the chlorine reservoir on a seven day a week basis. Be learned the operation of the plant from his precedessor, Mr. Johnson, an unlicensed operator who was with the company for 10 years. Mr. Cross has a "D" license which he secured last year after being notified by DER that a license was required. It was necessary for him to get the "D" license before getting the required "C" license. At the present time, he is enrolled to take courses leading toward the "C" license. At the present time, however, he is not, nor is anyone else associated with KWC, holding a license as required. The rule regarding auxiliary power provides that all community systems serving 350 or more persons shall have standby pumping capability or auxiliary power to allow operation of the water treatment unit and pumping capability of approximately one-half the maximum daily system demand. Respondent has admitted that the system is not equipped with an auxiliary power source and it has already been established that more than 350 persons are served by the system. Respondent also admits that subsequent to November 9, 1977, it constructed main water lines for the system which required the obtaining of a permit from either the Petitioner or the county health unit. Respondent admits that it did not obtain or possess a permit to do the additional construction referenced above from either DER or the Clay County Health Department prior to the construction of the water lines referenced. The inspections referenced above, which identified the problems discussed herein, were accomplished by employees of Petitioner, DER, at a stipulated cost of $898.10. Respondent contends, and there is no evidence to the contrary, that there have been no complaints of contaminated water and that the monthly water samples which Mr. Cross forwards to the Clay County Health Department have been satisfactory. Mr. Cross also indicates that a September, 1983 DER analysis of water samples taken from the system was satisfactory. However, bacteriological analysis reports on water collected from Respondent's system on July 11 and 27, 1983, reflect unsatisfactory levels of either coliform or non-coliform bacteria in the water requiring resubmission of test samples. Respondent also contends that no one has ever gotten sick or died from the water furnished by the system and there is, in fact, no evidence to show this is not true. Even though so far as is known, no one has ever been made sick from the water in the system, in Mr. Dykes' opinion, the risk is there. As a result of the defects identified in this system, insufficient chlorine is going into the system to meet reasonable health standards. Though this does not mean that the water is now bad, it does mean that at any time, given a leak or the infusion of some contaminant, the water could become bad quickly, and the standard established by rule is preventive, designed to insure that even in the case of contamination, the water will remain safe and potable. Respondent does not deny that it is and has been in violation of the rules as set out by the Petitioner. It claims, however, that it does not have sufficient funds available to comply with the rules as promulgated by DER. Respondent has recently filed a request for variance under Section 403.854, Florida Statutes, setting forth as the basis for its request that it does not have the present financial ability to comply with any of the suggested or recommended corrective actions to bring its operation into compliance with the rules. Mr. Protheroe, the consulting engineer who testified for Respondent has not evaluated the system personally. His familiarity with it is a result of his perusal of the records of the company and the Petitioner. Based on his limited familiarity with the system, he cannot say with any certainty if it can be brought into compliance with, for example, the 20 ppi requirement. There are too many unknowns. If, however, the central system was found to be in, reasonably good shape, in his opinion, it would take in excess of $100,000.00 to bring it within pressure standards. To do so would require replacement of the 2" lines, looping the lines, and cleaning and replacing some central system lines as well. In his opinion, it would take three months to do a complete and competent analysis of the system's repair needs. Once that was done, he feels it would take an additional three months to bring the plant into compliance with DER requirements. Other repairs, such as those to the lines outside the plant, would take longer because some are located in the downtown area and have interfaced with other utilities. This could take from three to four months if the money were available to start immediately. Here, however, it has been shown that it is not. Consequently, to do the study and then, if possible, procure the funds required, could take well in excess of six months or so. Mr. Protheroe contends, and there is little if any evidence to indicate to the contrary, that to replace the current system with a new one entirely as it is currently constituted would cost at least $250,000.00. However, in his opinion, no one would ever put in a new system similar to the one currently there. He cannot say how much it would cost to buy the system and make the necessary corrections to it to rectify the deficiencies. His familiarity with the system is not sufficiently complete to do this. He cannot say exactly how much the system is worth in its current state, but he is satisfied that it is worth more than $65,000.00. In that regard, Mrs. Dey indicated that in her opinion, the fair market value of the system is currently at $250,000.00. At the present time, there are current outstanding loans in excess of $9,000.00 at 16 percent interest. This current loan basis has been reduced from a higher figure. In 1977, the company borrowed $15,000.00 at 9 percent. In 1981, it borrowed $5,000.00 more at 18 percent. In 1982, the loans were consolidated at an increased rate of 16 percent and the officers have been advised by their current creditors that they cannot borrow any more money for the system in its current state. They would sell the system if a reasonable price could be realized. However, any inquiries on prospective purchases have been chilled by a low rate base assigned by the PSC. In that regard, the City of Keystone Heights offered to purchase the system for $59,000.00. This offer was declined as being unreasonable. Nonetheless, in light of the low rate base assigned by the PSC in its order issued on December 21, 1981 of slightly over $53,000.00 the offer by the city of $59,000.00 is not completely out of line. A certified public accountant, in KWC's December 31, 1983 financial report assigned a valuation of approximately $62,000.00, again a figure only slightly higher than that offered by the city, but substantially less than the $175,000.00 price asked of the city by Respondent Dey and her sisters. Mrs. Dey indicated that to the best of her knowledge the PSC denied rate increases for the purposes of improvements. In the presentation before the commission, respondents relied exclusively on the services of their attorney and accountant. Evidence from Mr. Lowe, of the PSC, however, indicates that KWC has never requested a rate increase to finance any of the improvements called for here. In the PSC order referred to above, Respondent was awarded a 12.25 percent rate of return on its rate base. This figure was an amalgam of a more than 13 percent rate on equity and a lesser figure for cost of doing business, including debt. At the time of that hearing, however, the debt cost was based on a 9 percent interest figure. The 16 percent interest figure came afterwards and no hearing has been requested based on the higher interest rate and it is so found.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is, therefore: RECOMMENDED that Respondents Virginia W. Day and the Keystone Water Company be ordered to comply with the Orders for Corrective Action previously filed herein to bring the water system in question in compliance with the Florida Safe Water Drinking Act without delay or suffer the penalties for non- compliance called for by statute and, in addition, pay costs of investigation in the amount of $898.16. RECOMMENDED in Tallahassee, Florida this 19th day of February, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1987. COPIES FURNISHED: Debra A. Swim, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 John E Norris, Esquire 10 North Columbia Street Lake City, Florida 32055 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue presented in this case is whether the Petitioner has the requisite experience necessary in order to qualify to take a Class A drinking water treatment plant operator certification exam.
Findings Of Fact On May 11, 1989, Petitioner, Albert Galambos, submitted an application to Respondent, Department of Environmental Regulation ("DER"), to take the prerequisite examination necessary for certification as a Class A drinking water treatment plant operator. On May 20, 1989, Helen Setchfield, Certification Officer for DER mailed to the Petitioner a Notice of Final Order of Denial of Petitioner's Application for Examination and Certification as a Class A drinking water treatment plant operator. The Notice of Final Order of Denial stated that Petitioner was ineligible to sit for the examination and/or was ineligible for certification as a Class A drinking water treatment plant operator because his "actual experience is in an occupation which does not qualify as actual experience as an operator of a treatment plant as defined in Section 17-16.03, Petitioner has worked at the Miami-Dade Water and Sewer Authority Department ("Authority") for 17 years. His current position is Water and Sewer Mechanical Operations Supervisor, a position he has held since 1983. This position entails actual onsite operational control of the equipment and mechanical processes of the Authority's water production plants and overseeing all maintenance of equipment at the Authority's three regional water treatment plants and the smaller interim plants, developing safety procedures for the operation of equipment, training plant personnel in the mechanical operation of the equipment, establishing maintenance schedules and maintaining those records, and taking samples as necessary to determine proper equipment functioning, performing or overseeing the loading of chemicals and the connecting of chlorine cylinders, and the recharging of these systems. He assists the certified operators in remedial action if some aspect of the plant is not functioning properly, but he has no supervisory authority over the certified operators. Petitioner is held responsible by the Division Director for the smooth running of the equipment at the Authority's water treatment plants. He prepares reports, logs and records regarding the mechanical equipment and operations of the plant. Petitioner supervises and manages 36 employees who are mechanics, electricians and laborers. From 1979 to 1983, Petitioner was a plant maintenance foreman for the Authority. This position included responsibility for supervising and performing skilled mechanical tasks on a variety of mechanical equipment at the water plants. From 1976 to 1979, Petitioner was a plant mechanic at the Authority. This position was skilled work at the journeyman level in the installation, repair, and maintenance of mechanical equipment at the water plants. Between 1974 and 1976, Petitioner worked in an unclassified position doing what a diesel plant operator does at the Authority. This position involved responsibility for the operation of large diesel engines used to drive large pumps and related equipment. From 1972 and 1974, Petitioner was a semiskilled laborer with the Authority. This position involved heavy manual work requiring limited skills in various maintenance tasks. Petitioner has never served as a drinking water treatment plant operator nor been licensed as a drinking water treatment plant operator at any classification. Petitioner has not previously applied for, nor obtained any water treatment plant operator certification. Petitioner has successfully completed the required course work for Class A operator certification. Petitioner is a high school graduate and has successfully completed the required coursework for certification. These activities yield three years and four months of constructive experience towards certification. Petitioner's experience prior to 1983 did not constitute actual experience because in those positions, Petitioner did not have operational control of a drinking water treatment plant. Even if Petitioner's current position was accepted as "actual experience" (a determination which is specifically not resolved here,) the combination of Petitioner's constructive and actual experience would be less than the twelve years of experience required for certification as a Class A operator. Thus, Petitioner has failed to prove that he meets the experience requirement necessary for certification as a Class A drinking water treatment plant operator. Petitioner's current position is supervisory and he has a great deal of maintenance experience gained through his various positions at the Authority. Petitioner's current position affords him the opportunity to learn about many aspects of operating a treatment plant efficiently by conducting inspections of the treatment plant processes, monitoring of the treatment plant processes, and adjusting the treatment plant processes. However, the evidence did not establish that Petitioner manages the treatment plant processes as required to constitute actual experience under the existing rules. It is unclear from the evidence presented whether Petitioner's day-to- day onsite experience at the plants constitutes the actual operational control of a water treatment plant. It would appear that Petitioner's current position does not allow him experience in managing the overall treatment process. However, further evidence and/or a better understanding of Petitioner's job responsibilities could alter this observation. In view of the disposition reached in this case, that issue need not be addressed further at this time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation issue a final order denying Petitioner's application of May 10, 1989, for certification as a Class A drinking water treatment plant operator. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of January 1990. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1990.
The Issue Whether, under the facts and circumstances of this case, Respondent's license to practice engineering in the State of Florida, should be revoked, suspended, or otherwise disciplined.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, L. Thomas Hubbard d/b/a The Hubbard Association, was licensed to practice professional engineering in the State of Florida, having been issued license number PE 006634 on August 17, 1962. Certificate of authorization number EB0003297 was issued to the firm, The Hubbard Association, Inc., on September 25, 1981. In March 1986, Respondent prepared a set of plans for the proposed City of Macclenny Wastewater Treatment Works Improvement Program, Sewage Treatment Facility ("Macclenny project"), and one volume of "Contract Documents and Specifications" ("specifications"), which were submitted to the State of Florida Department of Environmental Regulation, Bureau of Wastewater Management and Grants (Bureau) on or about April 24, 1986. All wastewater treatment plans designs must go to the DER for approval prior to construction, and if a public entity wants grant funding for its wastewater treatment facility, the project must be reviewed and approved by the Bureau (now called Bureau of Local Government and Waste Water Financial Assistance) which administers State grant programs for wastewater treatment facilities. The Bureau reviews grant project plans and specifications to ensure that they: (a) comply with administrative requirements of the grants programs; (b) comply with minimum Federal and/or State technical standards for wastewater facilities; (c) are suitable for bidding; and (d) present a constructible project. The plans for the Macclenny project depict an existing treatment facility, a new clarifier to improve the removal of solids (an expansion of about 130,000 gallons per day in treatment capacity), and a new effluent pumping station to pump to an overland flow field (field) through a force main pipeline to spray risers. The risers would spray the water laterally across the field. Water would collect in a central collection ditch, and run through a final chlorine contact chamber prior to discharge in Turkey Creek. A new agricultural building for equipment storage, and a new holding pond, which is an off-line pond for storage of inadequately treated water, are also depicted. The field in the Macclenny project is roughly 24 acres and is located in a large area between the chlorine contact chamber and the holding pond. The field in this system has 5 cells. A cell is an area of land that can be independently controlled to allow loading/resting cycles in the treatment process. Each cell in a given field should be as near equal in size as possible to provide for equal treatment of the wastewater during the loading/resting cycles. Loading/resting cycles allows a cell within the field to "rest" (no effluent being pumped on to that cell) so maintenance mowing or harvesting can be accomplished and to "load" the other cells to revitalize the bacteria that renews the treatment process. "Load" means to apply the effluent or treated wastewater from the existing facility to the field. Generally, forty percent of the field would be loaded with wastewater at any one time. On December 9, 1985, the Bureau had a predesign conference with Respondent in Macclenny to discuss design items. No plans or specifications for the Macclenny project had been submitted at that time, nor were they submitted at this conference. On February 18, 1986, an in-progress design review was held at Macclenny, with the Bureau staff available to answer Respondent's questions. On March 5, 1986, another in-progress design review meeting was held in Macclenny, with the Bureau staff present, at which time the plans were "fifty percent" (50%) complete. The unsigned and unsealed plans were given to the Bureau for a preliminary review. On March 25, 1986, the Bureau issued a few preliminary comments on the 50% completed plans and specifications. The purpose of the 50% complete review is to help the design engineer complete his plans and specifications. On March 31, 1986, Respondent transmitted to the Bureau a set of plans for the proposed Macclenny project. Respondent's transmittal letter, which the Bureau received with the plans on April 11, 1986, stated that "completed plans" were being transmitted. On April 21, 1986, Respondent transmitted to the bureau an additional set of the same plans for the Macclenny project, which Respondent again referred to as "completed plans" on his transmittal letter form which were received by Bureau on April 24, 1986. This transmittal also included specifications, a design data check list, design calculations, cost estimate, and plan of operation. The plans in this submittal are referred to as "the plans." It was Respondent's understanding that signing and sealing a set of engineering drawings signified a legal obligation that if someone takes the plans and builds a project it will work. Respondent's signature and seal are on the first sheet of the set of plans which was in the April 1986 submittal but not on the specifications. The plans were prepared, signed, sealed and submitted to the Bureau for review by Respondent. Respondent did not place any conditional language or qualification on the plans or write a letter advising the Bureau that the plans were not complete. It was Respondent's understanding that the Bureau would not review a set of plans unless they were signed and sealed, notwithstanding the completeness of the plans. Respondent did not consider the plans as completed, notwithstanding that he had signed, sealed and submitted them to Petitioner as "completed". It was Respondent's understanding that the plans were being submitted for review only, not complete for construction. An engineer may get answers from the Bureau without submitting plans that are signed and sealed as completed, such as the predesign conference or 50% review that occurred in this case. The Bureau considers plans that are signed, sealed and submitted as "completed" for review to be 100% complete and ready to bid. The Bureau considered the plans and specifications which Respondent submitted on April 24, 1986 as being final, complete plans and specifications for final review by the Bureau. The Bureau reviewed the plans assuming them to be complete and followed normal procedures for reviewing a complete set of plans and specifications. On June 19, 1989, the Bureau issued 52 written comments based on its review of the plans and specifications it had received in the April 24, 1986 submittal from Respondent. The plans and specifications were submitted to the Department of General Services (DGS) by the Bureau for a review and opinion because the Bureau was concerned about the structural design. DGS responded to this request through Jim Berkstresser, P.E. on June 25, 1986. By cover letter dated July 18, 1989, Respondent filed written responses to the Bureau's 52 comments. The Bureau did not approve Respondent's plans and specifications for the Macclenny project submitted on April 24, 1986. On September 5, 1986, Respondent resubmitted plans in response to the Bureau's 52 comments. These plans had the same configuration as the April submittal regarding the overland flow treatment. On September 29, 1986, Respondent met with David Wolfe to discuss the field configuration for the proposed overland flow system and other outstanding issues related to the revised contract documents. The principal concerns were non- uniform flow and significant erosion potential. Respondent's plans did not follow accepted design criteria. At this meeting field configurations were discussed, as well as guidelines to be followed in design of the overland flow field, and a general field layout were developed. Respondent submitted another set of plans which the Bureau received on October 30, 1986, and that set was approved and stamped accepted by DER-BWMG on December 22, 1986. All sheets in the approved set are dated August 20, 1986, with the exception of the cover sheet on which Respondent failed to date his seal and signature, and sheets G-6 and G-7 which are dated October 24, 1986. Respondent signed and sealed the cover sheet and sheet G-7 of the approved set of plans, but did not seal any other sheets in the approved set of plans. A signature and seal on a set of plans indicates that the plans were prepared by, or under the direct supervision of the person signing and sealing them, and that the plans are complete and depict a project that will perform its intended function. A signature and seal on a set of plans means the engineer assures that the design is his design and that the plans and specifications are ready to be bid for construction. The design should contain criteria and information significant to ensure the project will work. Sheet flow is the primary treatment mode in an overland flow system. Sheet flow is where a thin layer of water is induced to flow in a very controlled atmosphere across a length of land that is functioning very similarly to a trickling filter. The acceptable range of slope of an overland flow system is 2% to 8% with the best results obtained in the lower range because of a longer "residence time". "Residence time" is the amount time the wastewater is on the field for treatment. The slopes must be even and uniform to maintain a constant velocity so as to minimize the potential for erosion and to maintain a constant depth of water throughout the filed so as to maximize the treatment. Cross slopes should be minimized and topographic lines should be as close to parallel as possible on the field. The plans for the Macclenny project shows: (a) slopes ranging from less than 2% up to 6%; (b) multiple compound slopes across the field and; (c) topographic lines that are not parallel. The specifications for the field do not set out the acceptable tolerances on the slopes or the acceptable level of compaction of the field for the contractor who is to construct the field and; therefore, lacks control over the final product. Contours in an overland flow field are important, and while it is desirable for them to be on 1-foot intervals, contours at intervals of 2 feet are acceptable provided the plans and specifications address what happens between the contours. Respondent's plans and specifications show contours at intervals of 2 feet but do not address what happens between the contours. The plans of the facilities that were approved prior to the submittal of any plans by Respondent called for a 2- 3 week loading/resting cycle. The standard practice is to have all cells within an overland flow field to be of equal size so that the area to be loaded at any given period of time is the same size. The cells in the overland flow field in the Macclenny project as depicted by the plans are not of equal size, and if operated on a 2-3 week loading/resting cycle would not provide a consistent amount of treatment and thereby result in varying levels of treatment of the effluent. It is standard practice to provide performance specifications for seeding the field with the primary grass cover and for overseeding when necessary to prevent wind and water erosion. There were no performance specifications in the plans and specifications on the Macclenny project submitted by the Respondent. Agricultural equipment is an integral part of the overland flow field system and has a direct bearing on whether the system will function over the long run. Specifications for agricultural equipment are necessary to determine if the system will work properly. There were no specifications for agricultural equipment submitted by the Respondent in the plans. It is standard practice to furnish spray nozzle specifications, such as nozzle size, degree of fanning, characteristics under varying pressures and how much water will be discharged by the nozzle, in a set of plans and specifications for an overland flow field. Respondent's specifications for the Macclenny project did not contain the necessary specifications for the spray nozzles. Compacting is a standard practice, and it is standard practice to show compaction requirements on plans or specifications. The usual practice is to investigate the soil and specify compaction, usually based on a foundation report by a geo-technical engineer, showing the safe beading capacity of the soil in what condition, with recommendations for compaction. The Respondent's specifications do not call for compaction of the soil under the clarifier slab. However, the Respondent's specifications do call for compaction in the holding pond and situations where an area is over-excavated and backfilled. Should the area under the clarifier slab be over- excavated and backfilled, then compaction is covered in the specifications but compaction would not be covered unless this occurs. Therefore, since the weight of the slab is carried by the soil beneath it, specifications for compaction should have been included in Respondent's specifications for any situation. Changes in temperature causes concrete to expand or contract which may result in cracking. Placement of a concrete slab may result in the slab bending which may result in cracking. Therefore, reinforcing a concrete slab is required to maintain the slab's integrity. The thickness of a concrete slab will determine the distribution of the reinforcing so that cracking is minimized. The clarifier slab in the Macclenny project is depicted as being 12 inches thick and shows number 6 bar reinforcing on 6 inch centers in the top of the slab but no reinforcing in the bottom of the slab. Failure to require reinforcing in the bottom of the slab could result in the slab cracking due to significant changes in temperature and soft spots in the soil beneath the slab. Failure to place reinforcing in the bottom as well as in the top of the slab is not in accordance with standards of the code of the American Concrete Institute (ACI), revised in 1983, and is a structural weakness. The chlorine contact chamber as detailed on sheets 5-6 and 5-7 is like a rectangular concrete box beneath the earth where the earth is within a few inches of the top of the walls. The walls are vertically reinforced with number 4 bars on 12 inch centers placed in the center of the 8 inch thick wall. When the tank is empty the reinforcing bars will be approximately 160 per cent overstressed from the active pressure of the earth. Additional reinforcing is needed in the walls to meet ACI standards. There are deficiencies in the vertical wall reinforcing of the chlorine contact chamber as detailed on sheets 5-6 and 5-7 of the Plans. On sheets 5-3, 5-4 and 5-7 of the plans, reinforcement through the construction joints is incorrectly detailed to assure that cracking of the concrete will not occur. Construction joints occur between different pours of concrete, such as where the walls meet the top of the bottom slab. The concrete bottom of the holding pond as detailed in sheet 5-8 of the Plans is large enough to require expansion joints to prevent cracking as the slab expands and contracts due to changes in the weather, yet no expansion joints are shown for the slab as detailed on sheet 5-8 of the plans. Neither the collection ditches nor the spray riser bases as detailed on the plans show any reinforcing to maintain the integrity of the concrete. While this is not a major structural weakness, it indicates a failure to comply with standard structural engineering practices. Although the plans call for relocation of an existing drainage ditch, the Respondent failed to consult DER regarding the permitting of such drainage ditch. A detention time of 30 minutes is required to properly disinfect wastewater and is-basic knowledge for all civil engineers, yet the plans called for only a fifteen minute detention time. It is standard engineering practice to provide flood level elevations on the site plans. Respondent failed to provide flood level elevations for the Macclenny facility site plans. The plans failed to: (a) provide elevations for high water alarm and pump off settings; (b) provide specifications for flume liner on sheet M-4; (c) show how to close an existing outlet on the chlorine contact chamber; (d) show where an effluent pump station was to be located; (e) show pressure relief valve locations and; (f) indicate quantities for purpose of contract bidding. The specifications list equipment and work items, such as pumping equipment, grit storage tank, case-out assembly, telescoping valve, air diffusers, portable pump, hose and couplings, that are inapplicable to the Macclenny project. There are inconsistencies in the plans and specifications, such as: (a) the plans showing one clarifier while the specifications call for two clarifiers, (b) the plans showing a 150 pound chlorine cylinder as opposed to a 1-ton chlorine cylinder in the specifications and; (c) the plans showing the clarifier with a 38-foot diameter while the specifications calls for a clarifier with a 40-foot diameter. Respondent was negligent in submitting incomplete plans to the Bureau as "completed plans" and in failing to utilize due care and failing to have due regard for acceptable standards of engineering principles, with regard to the content of those plans which he submitted as "completed plans".
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the circumstances surrounding this case, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent, L. Thomas Hubbard guilty of violating Section 471.033(1)(g), Florida Statutes, and for such violation impose an administrative fine of $1,000.00 and suspend from the practice of engineering for a period of thirty (30) days, stay the suspension and place the Respondent on probation for a period of one year under terms and conditions the Board deems appropriate. DONE AND ENTERED this 20th day of June, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 20th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0096 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1. Rejected as not being necessary to the conclusions reached in this Recommended Order. 3.-12. Adopted in Findings of Fact 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11, respectively, but modified. 13. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 14.-19. Adopted in Findings of Fact 12, 13, 14, 15, 16, and 17, respectively, but modified. Rejected as being immaterial or irrelevant or subordinate or unnecessary. Adopted in Findings of Fact 17 and 18 but modified. 22.-33. Adopted in Findings of Fact 19, 20, 21, 22, 23, 24, 24, 25, 26, 27 and 27, respectively, but modified. 34. Adopted in Findings of Fact 17 and 18, but modified. 35-37. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 38. Adopted in Findings of Fact 28 and 29, but modified. 39.-40. Rejected as being immaterial or irrelevant or unnecessary or subordinate, but see Findings of Fact 37 and 38. 41.-5O. Adopted in Findings of Fact 28, 32, 29 (28-31), 29, 29, 32, 30, 32 and 32, respectively, but modified. 51. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 52.-53. Adopted in Findings of Fact (28-33) and 32, respectively, but modified. 54.-55. Rejected as being immaterial or irrelevant or unnecessary or subordinate. Adapted in Finding of Fact 55. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 58.-62. Adopted generally in Findings of Fact 28-33. 63.-66. Adopted generally in Findings of Fact 34-36. 67.-72. Adopted generally in Finding of Fact 37. 73.-74. Adopted generally in Finding of Fact 38. 75.-76. Adopted generally in Finding of Fact 39. 77.-79. Adopted generally or covered in Findings of Fact 13-15 and 28-39. 80.-82 Adopted generally or covered in Findings of Fact 40- 41. 83.-90. Adopted generally or covered in Findings of Fact 42 and 43. 91.-96. Adopted generally or covered in Findings of Fact 44 and 45. 97.-104. Adopted generally or covered in Finding of Fact 46. 105.-107. Adopted generally or covered in Finding of Fact 47. 108.-109. Adopted in Finding of Fact 48. 110.-115. Adopted generally or covered in Finding of Fact 55. 116.-117. Adopted in Finding of Fact 49 and 50. 18. Rejected as being immaterial or irrelevant or unnecessary or subordinate. 119. Adopted in Finding of Fact 51. 120.-124. Adopted in Finding of Fact 52. 125. Rejected as immaterial or irrelevant or unnecessary or subordinate. 126.-127. Adopted in Finding of Fact 52. Adopted in Finding of Fact 53. Adopted in Finding of Fact 54. Adopted in Finding of Fact 53. Adopted in Finding of Fact 55. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 13-15. Adopted in Finding of Fact 19 except last sentence that is rejected as being immaterial or irrelevant. Rejected as being a restatement of Administrative Complaint and not a Finding of Fact but see Findings of Fact 15 and 19. Rejected as being a restatement of John Sowerby's testimony and not a Finding of Fact, but see Findings of Fact 15, 17 and 18. Adopted in Finding of Fact 15. 6. Restatement of David Wolfe's testimony COPIES FURNISHED: Rex Smith Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0750 Wings S. Benton, Esquire 1020 D. Lafayette Street, Suite 205 Post Office Box 5676 Tallahassee, Florida 32314-5676 L. Thomas Hubbard, pro se THA Building 3110 Spring Glen Road Jacksonville, Florida 32207
Findings Of Fact The Petitioner is a utility regulated by the Commission that is in the business of acquiring and operating water and sewer systems in Florida, principally in Central Florida. It now operates 39 systems, of which at least 30 water systems and 5 sewer systems are located in Orange, Lake and Seminole counties. In this case, the Central Florida Division has one water system in Lake County (Picciola Island) , two water systems in Orange County (Daetwyler Shores and Lake Conway), three water systems and one sewer system in Seminole County (Bretton Woods/Druid Hills, Dol Ray Manor, and both water and sewer in Chuluota; these systems serve 949 water customers and 98 sewer customers. Southern commenced operating these systems in the spring of 1978, purchased them from Central Florida Utilities, Inc. in October, 1978 and applied to the Commission for a transfer, which application is still pending. (Docket 780278- WS; Hearing Examiner's Recommended Order approving the transfer was filed January 29, 1979) Notwithstanding customer complaints of the quality of the water service (low or fluctuating pressure, excess chlorine, sediment, no noticed interruptions and lack of fire protection capabilities) and Southern's admission of the general disrepair of the systems at the time of the purchase, the systems are in compliance with governmental standards. The utility has spent $52,000 since the test year on repair and upgrading with another $87,000 necessary to complete the required projects, of which $25,000 is for governmentally mandated improvements to the Chuluota wastewater system. The Petitioner's use of the purchase price of $215,800 for the facilities involved in the seven systems as the amount of plant in service as of June 30, 1978, rather than Respondent's use of the 1977 annual reports of the prior owner, is appropriate because: it follows past FPSC decisions on this subject with respect to this utility; the purchase price was considerably less than FPSC's estimated replacement cost of over $800,000; the purchase was an arms-length transaction; the books of the prior owner were considered unreliable; and, following complete integration of operations with Petitioner's other systems in Lake, Orange and Seminole counties, the customers should obtain the best possible service at the lowest rates obtainable. Alternatively, the Utility is entitled to an acquisition adjustment that achieves the same rate base as using the purchase price. Petitioner's rate bases using a 12-month average, rather than the preferred 13-month average, are as follows: Water Sewer Average test year plant $178,305 $ 62,242 Mandated additions 25,000 Accumulated depreciation (1,833) (623) CIAC (net of amortization) (6,703) Working Capital 11,241 1,801 Income tax lag (776) (370) $180,234 $ 89,050 The capital structure and rate of return is as stipulated by the parties as follows: WEIGHTED TYPE AMOUNT RATIO COST COST Common Stock $1,882,055 60.44 14.0 percent 8.46 Long Term Debt 1,037,372 33.31 8.89 2.96 Cost Free 194,768 6.25 0 0 TOTAL $3,114,195 100.00 11.42 perc. Rate of Return The above rate bases and rate of return provide an authorized constructed net operating income from water service of $20,583 and from sewer service of $10,170. This results in the following constructed statement of operations for year ended June 30, 1979: Water Sewer Operating Revenue $122,993 $29,085 Operating Expense Operation 84,760 12,346 Maintenance 4,103 2,065 Depreciation 3,531 1,245 Taxes, other than income 6,138 1,409 Income taxes 3,878 1,850 Total $102,410 $18,915 Net Operating Income $ 20,583 $10,170 It is noted that the above revenue requirement is more than the interim authorized revenue of $97,184 for water and $17,640 for sewer. The staff proposed that the rate structure should be changed from the present block structure far water and flat rate for sewer to a base facility charge for both water and sewer. This concept is appropriate since it serves to conserve water and insures that each customer pays his fair share of the costs of providing service. No evidence opposing this type rate structure was presented.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Southern States Utilities, Inc., Central Florida Division, be granted and that the utility be authorized to file new tariffs to be approved by the Florida Public Service Commission that would have provided for the test year ending June 30, 1979 annual gross revenues of $122,993 for water service and $29,085 far sewer service. It is further RECOMMENDED that the utility be required to implement rates for fire protection service in Belle Isle and a base facility charge in structuring water and sewer rates. It is further RECOMMENDED that the refund bond be returned to utility. DONE and ORDERED this 24th day of October, 1980, in Tallahassee, Florida. H. E. SMITHERS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1980. COPIES FURNISHED: Kenneth H. Myers, Esquire 1428 Brickell Avenue Miami, Florida 33131 William H. Harrold, Esquire 101 E. Gaines Street Tallahassee, Florida 32301 Sam Owens, Esquire 101 E. Washington Street Orlando, Florida 32801 Steve Tribble, Clerk Florida Public Service Commission 101 E. Gaines Street Tallahassee, Florida 32301 Robert T. Mann, Chairman Public Service Commission 101 E. Gaines Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Tamaron wastewater treatment facility (facility), located at 3800 Gatewood Drive, Sarasota, Florida, serves the Tamaron residential subdivision which was originally developed by U. S. Homes Corporation in 1976. The subdivision presently consists of 499 homes and was completely built out in the mid-1980's. The facility was originally owned and operated by U. S. Homes Corporation. Tamaron Utilities, a nonprofit entity comprised of the 499 homeowners, acquired the facility in November, 1987. At that time, the facility's existing operating permit was transferred to Tamaron Utilities. The facility is overseen by an elected board of volunteer homeowners. The Department is the agency of the State of Florida that is authorized to regulate domestic wastewater treatment and disposal facilities and permit their construction and operation. It is the successor agency to the Department of Environmental Regulation. By letter dated November 10, 1987, the Department notified Tamaron of the requirements of Chapter 87-303, Laws of Florida (Grizzle-Figg Amendment), which amended Section 403.086, Florida Statutes, and of the Department's intention to modify Tamaron's operating permit to incorporate a schedule of compliance with Section 403.086, Florida Statutes, as amended by Chapter 87-303, Laws of Florida. On August 23, 1988, an operating permit (D058-141783), which contained secondary water treatment requirements, was issued to the facility. Specific condition 7 of the permit required that the facility be in compliance with the Grizzle-Figg Amendment by October, 1990, or eliminate discharge to surface waters. On September 5, 1990, Tamaron filed an application with the Department to renew its domestic waste water treatment and disposal systems operation permit. Tamaron did not consider its facility as discharging waste into one of the specifically named water bodies set forth in the Grizzle-Figg Amendment or to "water tributary thereto" and thereby required to meet the advanced waste treatment criteria set forth in the Grizzle-Figg Amendment. However, in an abundance of caution, Tamaron proceeded to bring its facility into compliance with the advanced waste treatment criteria as set forth in the Grizzle-Figg Amendment. After numerous requests for additional information and several meetings between Tamaron and the Department, the Department issued its Notice of Permit Denial on April 9, 1991, asserting that Tamaron had not provided: (a) reasonable assurance that the requirements of Section 403.086(1)(c), Florida Statutes, mandating advanced waste treatment (AWT) before discharge to certain designated surface waters, would be met and; (b) reasonable assurance that the discharge to those certain designated surface waters would result in minimal negative impact as required by Section 403.086(5)(a), Florida Statutes. The facility continues to operate under its secondary treatment permit No. DO58-141783. The facility consists of a wastewater treatment plant designed for secondary treatment, with tertiary filtration. The design capacity of the facility is 155,000 gallons per day (0.155MGD) with actual flows of slightly over 100,000 gallons per day (0.100MGD+). Three percolation ponds surround the facility comprising the primary effluent disposal method for the facility. The Tamaron subdivision has a series of excavated surface water bodies (stormwater lakes), hydraulically connected, which eventually discharge at the northeast corner of the subdivision into Phillippi Creek. The direct path of surface water flow is from the subdivision's stormwater lakes to Phillippi Creek. These stormwater lakes are in multiple ownership. Under Department policy, stormwater systems permitted by the Department, its predecessor DER, or a water management district solely as stormwater treatment facilities under Chapter 17-25, Florida Administrative Code, are not considered "waters of the State". However, stormwater systems built prior to Chapter 17-25, Florida Administrative Code, permitting requirements, were considered "waters of the State" if they discharge more frequently than a twenty five year, twenty-four hour storm event. See Petitioner's exhibits 13 & 15. Tamaron's stormwater system was built prior to Chapter 17-25, Florida Administrative Code, permitting requirements, and was designed to discharge at a ten year, twenty-four hour storm event which is more frequent than a twenty five year, twenty-four hour storm event. Discharge of water into Phillippi Creek from the subdivision's stormwater lakes is fairly frequent; however, the volume of the discharge is low. Phillippi Creek is a natural surface water which eventually flows into Roberts Bay. Roberts Bay is a specifically named water body in the Grizzle-Figg Amendment (Section 403.086(1)(c), Florida Statutes). Since September, 1989, Tamaron has retained William Murchie, P.E. of AM Engineering, to evaluate the design and operation of the facility in order to comply with appropriate regulatory requirements. The facility provides biological treatment through a contact stabilization utilizing an activated sludge. This process typically provides high quality advanced secondary biological treatment. A chemical feed tank system utilizing ferrous sulfate was added to the facility several years ago to chemically precipitate out total phosphorus to meet the advanced waste treatment requirements. High-level disinfection is achieved in the large chlorine contact chamber and through two tertiary filters. At the design flow of 0.155MGD, the chlorine contact chamber provides nearly 80 minutes of contact time, while actual contact time for existing flows, not including time in filters, is calculated at 110 minutes. Upon leaving the chlorine contact chamber and the biological treatment components of the facility, the chlorinated effluent is directed through two tertiary filters to reduce the biochemical oxygen demand (BOD) and total suspended solids (TSS). After the tertiary filters, the effluent passes through the sample block where it is sampled for TSS, BOD and chlorine and is then piped sequentially into the first, second and third percolation ponds. The percolation ponds span two acres and provide residence time of 35 to 45 days, during which time the effluent is further biologically treated and nitrogen is reduced. From the percolation ponds, the effluent is pumped into a low pressure system which uniformly distributes effluent over two nitrogen reduction filters. The nitrogen reduction filters are located north of the plant and are immediately adjacent to one of the subdivision's stormwater lakes. The nitrogen reduction filters consist of deep sand beds covered with Bermuda grass to provide high nitrogen uptake. The irrigation of the two nitrogen reduction filters is alternated every half day. These nitrogen reduction systems were modified in October/November, 1990, by adding 3 to 3 1/2 feet of clean sand with a permeability rate of 28 feet per day, planting Bermuda grass, and installing an irrigation/distribution system. These filters replaced two sand pits with shallow layers of very coarse sand, after initial testing demonstrated the sand pits to be inadequate in removing nutrients consistent with statutory requirements. In January, 1992, an underdrain system utilizing perforated pipe was installed in the nitrogen reduction filters to create an aerobic zone and to provide a representative sample port after nutrient reduction in the filters. This sample port, used for the biweekly monitoring, consists of a single solid pipe, that collects effluent from the perforated pipes, with a tap to prevent discharge into the adjacent stormwater lake, except during sampling events. The biweekly sampling event results in effluent being discharged from the pipe for approximately 30 minutes to flush the pipe so as to get a proper sample. The underdrain sampling port at the nitrogen reduction filters replaced two earlier monitor wells between the nitrogen reduction filter and the stormwater pond, which proved ineffective because of their location. The perforated underdrains are situated in filter bed sand of medium grain size with a permeability rate 100 feet per day and located below 3 - 3 1/2 feet of clean sand with a permeability rate of 28 feet per day and above very permeable layers of sand, stone and coarse shell. (See Tamaron's exhibit 23 and Department's exhibit 14) The very permeable layers of sand, coarse shell, the perforated pipe and the single solid pipe are all located above the ground water table. Since the perforated pipe and sample port are both located above the ground water level and the surface of the adjacent stormwater lake, it is unlikely that the effluent sample taken from the sample port would be influenced by the ground water or a back flow of water from the adjacent stormwater lake. The coarse shell layer situated below the nitrogen reduction filters extends to the edge of the adjacent stormwater lake. Therefore, the effluent, other than the effluent trapped in the perforated pipe and carried to the sample port, that is irrigated onto the nitrogen reduction filters passes through the sand and into the coarse shell layer. The effluent is then transported laterally through the coarse shell layer to the underground edge of the adjacent stormwater lake where there is a subsurface discharge into the adjacent stormwater lake. Since the discharge to the stormwater lakes is primarily subsurface in nature, the logical compliance point to measure effluent parameters would be the underground sample port which collects the effluent prior to subsurface discharge into the stormwater lake. See Petitioner's exhibit 15. The direction of ground water flow at the facility is towards the north to the adjacent stormwater lakes as evidenced by the hydraulic gradient of the site determined using ground water table elevations. The location for sampling effluent from the facility for compliance with secondary standards was described in Specific Condition 5 of Tamaron's previous permit No. D058-141783 dated August 23, 1988. Specific Condition 5 states that the discharge from the chlorine contact chamber shall be sampled in accordance with Chapter 17-19, Florida Administrative Code, (now Chapter 17-601, Florida Administrative Code), for compliance with the stated secondary limits. The facility's tertiary filters are located after the chlorine contact chamber. Tamaron samples effluent for compliance with secondary standards (BOD,TSS, chlorine) at the sampling box after disinfection and tertiary filtration. Tertiary filtration is designed to achieve a more efficient removal of TSS and BOD. The resulting effluent is usually of higher quality than secondarily treated effluent. A secondary plant with tertiary filtration is referred to as an "advanced secondary treatment" plant. Data presented by Tamaron titled Tamaron 1991-1993 Data On FDER Permit Compliance (Tamaron's exhibit 17, page 1 of 2) shows reported values, sampled after tertiary filtration at the sample box, which suggest that secondary treatment parameters, including fecal coliform, are not being exceeded. The data actually shows a very high removal rate for the parameters sampled. The United States Environmental Protection Agency issued a National Pollutant Discharge Elimination System (NPDES) permit, number FL0042811, to Tamaron for the facility with an effective date of June 1, 1991, which authorized Tamaron to discharge from the facility to the receiving waters named Phillippi Creek to Roberts Bay in accordance with the effluent limitation, monitoring requirements and other conditions set forth in the permit. Since the facility was located in the Grizzle-Figg Amendment area of Florida certain changes were made from the draft permit to the final permit. Those changes appear in the Amendment To The Statement Of Basis At The Time Of Final Permit Issuance which is made a part of the final permit. The amendment provides for changes in Part I, Effluent Limitations and Monitoring Requirements. These changes, among other things, require that the Grizzle-Figg Amendment annual limits of 5 mg/l BOD, 5mg/l TSS, 3mg/l total nitrogen and 1mg/l total phosphorus be added to the effluent limits to adequately maintain water quality standards, and added monitoring requirements and measurement frequency regulations to give the basis for permit limits and conditions in accordance with Chapters 17-302, 17-600 and 17-601, Florida Administrative Code. Data presented by Tamaron titled Tamaron 1991-1993 Data On NPDES Permit Compliance (Tamaron's exhibit 17, page 2 of 2) show reported values sampled after nitrogen reduction filters which suggest that the maximum values for AWT parameters, including fecal coliform, are not being exceeded, particularly after January, 1992, when Tamaron began sampling effluent collected by the perforated underdrains at the sample port. Tamaron has been monitoring and reporting compliance under its final NPDES permit and providing copies to the Department. There was no evidence that Tamaron was ever in violation of its NPDES permit. Tamaron submitted documentation to the Department with its permit application that demonstrated high-level disinfection within the facility was being achieved. However, TSS was being sampled after the application of the disinfectant. Using this procedure, the facility continued to achieve high- level disinfection until the permit denial. After the permit denial, the facility resumed basic disinfection which was required under Tamaron's permit for secondary treatment. This same data indicates that there was compliance with the requirements for fecal coliform. The record is not clear as to the frequency and number of samples taken to provide the data for reporting compliance with the NPDES permit and the data presented in Petitioner's exhibit 17, page 2 of 2. However, there was no evidence, other than sampling for TSS after the disinfectant was added, that Tamaron was not complying with its NPDES Permit that required, among other things, that the monitoring requirements and measurement frequency of the Department's rules and regulations be followed by Tamaron. Tamaron has modified and upgraded the facility in order to achieve a treatment process which will produce effluent of a quality for discharge under the Grizzle-Figg Amendment. Tamaron has provided reasonable assurances, although not absolute assurance, that the facility can comply with the discharge permit requirements of Chapter 403, Florida Statutes, including Section 403.086, Florida Statutes, notwithstanding the testimony of Jay Thabaraj to the contrary concerning Tamaron's sampling technique and its method of obtaining high-level disinfection which can be addressed as a specific condition, if necessary. Studies conducted by the Tamaron's engineer included in Petitioner's exhibit 21 indicates that there was no adverse impact to the stormwater lakes from the facility's wastewater treatment and disposal system. Tamaron has provided reasonable assurances that the point of discharge is a reasonably access point, where such discharge results only in minimal negative impact.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order granting Tamaron an operating permit for its facility as secondary treatment facility. In the alternative, that the Department enter a final order granting Tamaron an operating permit for its facility that requires compliance with the advanced waste treatment criteria set forth in Section 403.086(4), Florida Statutes, that, in addition to any general or specific conditions that are normally required, contains specific conditions that: (a) contains specific instructions on sampling technique, sampling frequency and reporting as set forth in Rule 17- 740(1)(b)2., Florida Administrative Code, and (b) sets forth compliance with high-level disinfection, with a time limit for compliance, that accomplishes the intent of the rule, if not the strict letter of the rule, without total redesign of the facility. DONE AND ENTERED this 3rd day of May, 1994, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2968 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner, Tamaron's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(5,6); 5(6); 6(7); 8(12); 10(8); 11-12(13-25,38); 13(31-34); 14(8); 15(13); 16(14); 17-18(15); 19(36); 20(16); 21(17); 22(18); 23(19); 24(20); 25(21);26(22); 32(32,7); 33(33); 34(32,32); 36(31); 39-40(34); 41(36); 42- 43(34); 44(35); 47(4); and 51(10). Proposed findings of fact 27-31, and 35 are conclusions of law rather than findings of fact.. Proposed findings of fact 45, 46, 48-50, 56, 57, 59, and 61-72 are arguments rather than findings of fact. Proposed findings of fact 7, 9, 37, 38, 52-55, 58 and 60 are neither material nor relevant. Respondent, Department's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1,6); 2(2); 3(4,10); 5(9); 6(9,10); 8(11); 9-17(18-27); 18(8); 19(13); 20(5); 21(17); 22(30); 23(31); 24(14); 25(17); 26(18-23); 27(34); and 32(35,38). Proposed finding of fact 4 is neither material nor relevant but see Findings of Fact 18-25. Proposed findings of fact 7, 31 and 33 are arguments rather than findings of fact. Proposed findings of fact 28-30 are conclusions of law rather than findings of fact. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Charles G. Stephens, Esquire C. Robinson Hall, Esquire Enterprise Plaza, Suite 1516 101 E. Kennedy Blvd. Tampa, Florida 33602 Francine Ffolkes, Esquire Office of General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
