11-002276 Department Of Environmental Protection vs. Thomas B. Mahon Status: Closed Recommended Order on Friday, December 30, 2011.

Summary: For failure to comply with record keeping and reporting requirements applicable to operators of wastewater and drinking water treatment facilities, it is recommended that Respondent pay a fine of $2,00 and the he be place on probation for two years.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 11 - 2276

)

THOMAS B. MAHON, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on November 30,

2011, by video teleconference at sites in Tallahassee and Tampa,

Florida, before Bram D. E. Canter, an Administrative Law Judge

of the Division of Administrative Hearings (DOAH).

A PPEARANCES

For Pet itioner: Matthew Smith - Kennedy, Esquire

Department of Environmental Protection

Douglas Building, M ail Station 35

3900 Commonwealth Boulevard

Tallahassee, F lorida 32399 - 3000

For Respondent: Thomas B. Mahon, pro se

8151 Gal l Boulevard

Zephyrhills, F lorida 33541

STATEMENT OF THE ISSUES

The issues to be determined in this case are whether the

Respondent, Thomas B. Mahon, violated state regulations related

to the operation, maintenance, and supervision of domestic

wa ste water treatment facilities ("WWTFs" ) and potable water

systems ("PWSs" ) , as alleged by the Department of Environmental

Protection ("Department" ) and, if so, whether his wastewater

treatment and drinking water operator licenses should be

suspended or revoke d.

PRELIMINARY STATEMENT

On March 10, 2011, the Department issue d an Administrative

Complaint for Revocation of Wastewater and Drinking Water

Operator Licenses, which included 28 counts against Respondent

for violation of rules related to the operation of WWTFs and

PWSs. Respondent filed a Petition for Formal Administrative

Hearing on March 25, 2011. The Department dismissed the

RespondentÓs initial p etition and Respondent filed a n a mended

p etition on May 4, 2011. The Department referred the amended

pet ition to DOAH . On June 8, 2011, the Department filed an

a mended c omplaint. By stipulation of the parties, the amended

p etition serves to challenge the amended c omplaint .

T he Department served a request for a dmissions upon

Respondent in which R espondent was asked to admit each

allegation of the complaint. When Respondent did not respon d,

the De partment mo ved to have the matters deemed admitted.

Respondent was ordered to show cause why the matters set forth

in the Department's request for admissions shou ld not be deemed

admitted . Following Respondent's response to the Order to Show

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

granted .

At the beginning of the final hearing, the Department

stated that it was dropping its charge in Count XXI of the

complaint that R espondent falsified entries in a WWTF log book.

The D epartment presented the testimony of Frank Fulghum and

Department Exhibit A was admitted into evidence . Respondent

testified on his own behalf and presented the testimony of

Michael Lloveras and Moritz Pila. Respondent had no exhibits

that were admitted into evidence.

A court reporter recorded the final hearing, but a

transcript was not ordered or filed by either party. The

Department submitted a proposed recommended order . Petitioner

file d a letter with attachments. The attachments were not

offered into evidence at the final hearing and, therefore, are

not admitted into the evidentiary record.

FINDINGS OF FACT

1 . Respondent is a dual - licensed , Class C WWTF and PWS

oper ator. The Department issued Respondent a w astewater l icense

on February 1, 1986. The license was renewed on April 30, 2009.

The D epartment issued Respondent a d rinking w ater l icense on

May 1, 1987. Th e drinking water license was also renewed on

April 3 0, 2009.

2 . Respondent was contracted to operate and maintain nine

WWTFs located in Hillsborough and Pasco Counties . 1 /

3 . Respondent was contracted to operate and maintain eight

PWSs located in Pasco County .

4 . The effect of the Order which deem ed as a dmitted all

matters in the Department's request for admissions is to

establish all the allegations of the complaint as facts in

evidence , except for the allegation of falsification of records,

which allegation the Department withdrew .

5 . Florida Administr ative Code Rule 62 - 602.650(3) requires

that operators maintain an opera tion and maintenance log book

("O&M log" ) for each WWTF and PWS and to keep the O&M log on

site for inspection. On one Department inspection in 2009,

Respondent failed to have the O& M log on site at one of the

WWTF s that he operated and maintained . On 1 5 Department

inspections in 2010, Respondent failed to have the O&M log on

site for inspection at several WWTFs and PWSs that he operated

and maintained.

6 . Rule 62 - 601.300 (1) requires WWTF operators to monitor

the operation of the WWTFs and to submit monthly Discharge

Monitoring R eports (" DMRs") to the permitee and to the

Department . In 2010, there were 25 times when Respondent failed

to timely submit DMRs .

7 . Rule 62 - 555.350(12)(b) requires PWS operators to

monitor the operations of the PWS and to timely submit monthly

operating reports ("MORs") to the water supplier and to the

Department. In 2010, there were 2 0 times when Respondent failed

to timely submit MORs .

8 . In addition to recordkeeping and reporting duties ,

operators of WWTFs are required to perform responsible and

effective on - site operation, supervision, and maintenance of the

facility . See Fla. Admin C ode R. 62 - 602.650(1). The WWTFs for

which Respondent had responsibi lity were sometimes operating out

of compliance with Department rule s and standard operating

practices. For example, at different times at different WWTFs ,

the nitrate limit was exceeded , the surface of the clarifier was

covered with solids , there were so lids at the bottom of the

chlorine contact chamber , the annual average fecal coliform

limit was exceeded , the maximum fecal coliform maximum limit was

exceeded, there was excessive foam and scum on clarifierÓs

surface , the lift station warning system was n ot operational ,

the c alibration for meters had expired, there was accumulated

sludge in the percolation pond , the blowerÓs air filter was

dirty and overdue for replacement , facility upsets were not

reported , the stilling well was full of dried solids , the pump

drive belt was cracked , air diffusers were clogged or broken ,

the lift stationÓs audible and visual alarms were inoperable,

and solids were discharging over the clarified weir.

9. These conditions are not consistent with standard

operating practices for WWTFs.

10. The Department did not claim nor present evidence to

show that these conditions have resulted in harm to public

health or safety or to the environment.

1 1 . Respondent's expert witness acknowledged that

Respondent was not good with "pape rwork ," but said that the

operating problems described in paragraph 8, above, are common

to all small WWTFs. The Department presented no testimony to

rebut that statement.

1 2 . Respondent asserted that he is a victim of selective

enforcement by the Depar tment . However, because n either party

presented evidence to show how frequently the described problems

occur for most licensed WWTF operators or that the Department

does not seek similar disciplinary action against other

operators with similar numbers of noncompliance issues, the

record does not support Respondent's claim of selective

enforcement.

1 3 . In April 2007, the Department and Respondent entered

into a consent order regarding Respondent's failure to submit

DMRs for several WWTFs and for failure t o perform responsible

and effective on - site management and supervision of WWTFs for

which he was the operator. Respondent was placed on one - year

probation. The consent order included a provision that failure

to comply with all WWTF o p erator duties set fo rth in rule

62 - 602.650 "will result in a minimum penalty of two year

suspension" of Respondent's wastewater license.

1 4 . With the exception of one residential development,

Respondent is no longer under contract with owner s of WWTF s and

PWS s to provide op eration and maintenance services. He is now

an employee of a facility management company which contracts

with owners to provide su ch services.

CONCLUSIONS OF LAW

1 5 . The Department is authorized by sections 403.865

through 403.876 , Florida Statutes (201 1) 2 / to establish

qualifications, examine and certify water and wastewater

treatment plant operators , and issue, deny, revoke, or suspend

operator licenses .

1 6 . The Department is authorized to conduct disciplinary

proceeding s in accordance with chapter 1 20, Florida Statutes.

See § 403. 876(2) , Fla. Stat.

1 7 . The admissions and other record evidence establish

Respondent's violation of all counts of the complaint.

1 8 . The failure to maintain records, submit reports, and

to perform treatment plant or wat er distribution system

operations in a manner consistent with standard operating

practices are grounds for disciplinary action. See Fla. Admin .

C ode R . 62 - 602.800(4) and (6).

1 9 . Disciplinary guidelines applicable to operators of

WWTFs and OPWSs are con tained in rule 62 - 602.850. For the

failure to maintain O&M logs and to timely submit DMRs and MORs,

the recommended penalty is, as a minimum , issuance of a

probation letter and, as a maximum, an administrative fine of

$1,000. See Fla. Admin. Code R. 62 - 6 02.850(8).

20 . The recommended penalty for failure to report plant

upsets or unpermitted discharges is a minimum one year license

suspension and a maximum of license revocation. Id.

2 1 . The recommended penalty for failure to perform

operations in a ma nner consistent with standard operating

practices is a minimum fine of $100 per day up to a maximum of

$1,000.

2 2 . The Department is not seeking to fine Respondent, but,

instead seeks to revoke his wastewater license for two years and

suspend his drinkin g water license for two years. When a

license is revoked, the operator cannot work again as an

operator unless he or she re - applies for and is issued a new

license. When a license is suspended, the operator may continue

to work as an operator at the conc lusion of the suspension

period.

2 3 . For suspending a license, r ule 62 - 602.870 (1) states

that the Department "shall , depending on aggravating and

mitigating circumstances, in addition to a fine" suspended a

license" for up to two years for incompetence i n the performance

of the duties of an operator. See Fla. Admin . Code R. 62 -

602.870 (c).

2 4 . The term "incompetence" is not defined in a Department

rule , but t he word has the common meaning of "inadequate or

unsuitable for a particular purpose." See Webs ter's New

Collegiate Dictionary , 446 (1979). The record evidence shows

that Re spondent's performance of the duties imposed on him by

the Department's rules as an operator of PWSs was inadequate.

Therefore, the evidence is sufficient to suspend Respondent 's

drinking water license .

2 5 . For revoking a license, r ule 62 - 602.870(2) states that

one basis is "persistent inaccuracy or incompleteness of data or

information" in required log and reports. The problems

identified in paragraph 8, above, are not groun ds for revoking

Respondent's wastewater license under rule 62 - 602.870(2) because

it was not shown that they resulted in harm to the public health

or safety or to the environment. The record evidence is

sufficient to revoke Respondent's wastewater license for

frequent failures to maintain O&M logs or to submit DMRs and

MORs for WWTFs and PWSs under his management.

2 6 . A mitigating circumstance that should be considered in

the determination of the disciplinary action to be taken against

Respondent is the f act that , with the exception of one WWTF and

one PWS, the owner of which appeared at the hearing to praise

Respondent's services to him, Respondent has lost all of his

contracts with owners of WWTFs and PWSs to operate and maintain

the ir facilities. T he re fore, the problems that occurred in the

past may not occur in the future with any greater frequency than

they occur with other licensed operators.

2 7 . A lthough the Department is authorized by its rules to

suspend Respondent's drinking water license and t o revoke his

wastewater license, the circumstances suggest the alternative

disciplinary action of imposi ng an administrative fine and a

probation period to test Respondent's claim that his new

employment with a facilities management company will make his

p erformance acceptable to the Department .

2 8 . The Department did not request investigative costs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department issue a Final Order

that

1 . requires R espondent pay an administrative fine of

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

2 . places Respondent on probation for two years, during

which time Respondent is prohibited from entering into any new

oral or written contract s to provide operato r services to owners

of WWTFs and PWSs, and

3. requires Respondent to deliver a copy of the Final

Order to his employer so that the employer is made aware of the

problems for which the disciplinary action was taken.

DONE AND ENTERED this 30th day of Decem ber 2011 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of December 2011.

ENDNOTES

1/ The Department's complaint puts the number at seven, but

omitted Happy Days Mobile Home Park WWT F and Hillcrest RV WWTF,

which are addressed, respectively, in Counts XXIV and XXVI of

the amended complaint.

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

codification.

COPIES FURNISHED :

Matthew Smith - Kennedy, Esquire

Department of Enviro nmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399

Thomas B. Mahon

8151 Gall Boulevard

Zephyrhills, Florida 33541

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Tom Beason, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32309 - 3000

Herschel T. Vinyard, Jr., Secr etary

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32309 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.