City may incur more fines if terms aren’t met
By Jane Smith
Delray Beach must meet three years of deadlines along with paying a record $1 million civil fine and $21,193.90 for costs and expenses to settle issues raised by the county branch of the Florida Department of Health regarding violations in the city’s reclaimed water program.
If it doesn’t meet the conditions, the city will have to pay an additional fine of $5,000 per day for each corrective action.
The city, which signed the consent order on Nov. 9, has to meet the conditions to ensure it stays in compliance with state drinking water regulations. These include:
• Within 30 days of signing the order, Delray Beach must publish a public notice about its failure to implement a cross connection/backflow program that was supposed to start in 2008 to prevent mixing of reclaimed and drinking water.
• Within 180 days, Delray Beach must complete the installation of the backflow prevention devices that are marked “pending” on lists submitted to the Health Department.
• Also within 180 days, the city must complete an inventory of all properties connected to its drinking water system. The inventory must cover the type of property served, type of backflow prevention device installed, the manufacturer of the device, date of installation and date of replacement in accordance with the maker’s specifications.
• Within three years, Delray Beach must ensure that all connections to its drinking water system follow the state rules controlling cross connections and backflow protection. The city must list the addresses where backflow protection is not needed by state law or local rules, but it does not have to physically inspect those sites.
• The city must provide quarterly progress reports of connections during the three-year period until the corrective action is completed.
“I’m confident we have the people and systems in place to meet the Health Department’s requirements,” Mayor Shelly Petrolia said. “If we don’t, we will have to pay penalties of $5,000 a day.”
Petrolia also said the problems appear to date to 2008 when the program was started. “I am extremely disappointed that the city’s current taxpayers will pay for the deficiencies,” she said.
“I’d rather see the money go to the water system upgrades than pay civil fines, but I think the regulators wanted to get the city’s attention,” barrier island resident Ned Wehler said.
Negotiations got testy
The Health Department’s chief legal counsel was concerned over news reports about the consent order, a legal agreement that binds both parties.
“We should provide a statement because I believe based on what I’ve read so far that everyone thinks this consent order covers only the reclaimed water,” chief legal counsel Cathy Linton wrote in a Nov. 10 internal Health Department email that included Rafael Reyes, the department’s environmental health director.
“Rafael, I think we need something that states that the City of Delray will have 180 days to advise the Department of Health where all the other non-reclaimed water sites are that need backflow protection, and three years to ensure that the backflow protection is installed in all those sites.”
The settlement comes more than 19 months after the Health Department demanded the city shut down its reclaimed water system to avoid a citywide boil water order in February 2020. Reclaimed water is highly treated wastewater suitable only for lawn irrigation and not for human or pet consumption.
On Jan. 2, 2020, a South Ocean Boulevard resident called the Health Department to say she was not properly informed of a cross connection in her area. Cross connections occur when the drinking water pipes are mistakenly connected to those carrying reclaimed water.
The civil fine, the highest ever imposed by the Health Department, is down from the $1.8 million that the city was asked to pay in June. The higher amount included a 25% surcharge for the city’s history of noncompliance.
City Manager Terrence Moore touted the $800,000 reduction in letters to the editors of local newspapers. The city also paid the Lewis, Longman & Walker law firm nearly $110,000 as of Oct. 28 to negotiate with the Health Department.
Negotiations broke down in the late summer over the proposed $1.8 million fine.
“As you may recall, our offer (on July 30) proposed a final settlement of $327,192.90,” attorney Frederick Aschauer wrote to Linton on Aug. 30. “We also proposed that the city be afforded the opportunity to conduct an in-kind penalty project.”
He called the transfer of money from one public body to another a way “simply to exact a pound of flesh.”
Aschauer also wrote that the city “has already expended significant sums recently in order to improve its utility’s service and increase its efforts to ensure the protection of the public health, safety, and welfare.”
Delray Beach has spent more than $1 million bringing the program into compliance.
“By not complying with the rules since 2008 for reclaimed water the city had a cost savings,” Linton wrote in an Oct. 1 email to Aschauer. “For the backflows that are missing from businesses the city has failed to comply with the rules since the 1990s.”
Her email added that the Health Department has spent months with the state Department of Environmental Protection going over its proposed consent order. The county Health Department leaders wanted to make sure they followed DEP guidelines for enforcement fairness and consistency.
“We will not be back at the negotiating table for less than what we said was the Health Department’s lowest number — $1 million in penalties and all of our costs,” Linton wrote.
The Health Department also cited the city for failing to report residents who said they became sick from drinking contaminated water at the cross connection reported in December 2018.
The city has an ordinance that requires property owners to connect to the reclaimed water system when the pipes are installed near the property. But some South Ocean residents were able to switch back to lawn irrigation with drinking water and the city paid for the plumbers’ costs.
“That’s ridiculous,” said barrier island resident Bill Petry. “We all should be treated equally.”