By Jane Smith
After a failed legal maneuver to water down the strength of its public notice, the city of Delray Beach admitted on Dec. 3 that its Utilities Department had failed to inform the public for about 12 years that drinking water might be unsafe.
Since 2008 — when the city first started its reclaimed water program — through Feb. 4, 2020, when the program was shut down, the Florida Department of Health in Palm Beach County insisted the city admit to four failures:
The city failed to inspect that its distribution system was protected from hazards; to ensure backflow preventers were installed at each reclaimed water site; to evaluate each location for cross connections and backflow preventers, and to conduct initial and follow-up inspections and investigate customer complaints.
The city’s outside counsel, Fred Aschauer, wanted to publish only two items “to provide clear, easy language for the general public.” He wanted to list only failures to conduct inspections to ensure adequate backflow prevention was installed on all properties when a customer connects to reclaimed water; and to have a dedicated employee conducting initial and follow-up inspections, testing and complaint investigations.
The Health Department did not back down.
As a result, the city published the public notice on its website on the Utilities Department page on Dec. 3. Two days later, Dec. 5, the notice was published as a legal ad in the South Florida Sun Sentinel newspaper that covers southern Palm Beach County.
Delray Beach has been operating under a consent order with the Health Department since Dec. 1. That legal agreement between the two parties covers the city’s reclaimed water program. Reclaimed water is highly treated wastewater that is suitable only for lawn irrigation, not for human and pet consumption.
The city used contractors to install the system, including the 581 backflow preventers that stop reclaimed water from flowing into the drinking water supply.
The reclaimed water problems became public on Jan. 2, 2020, when a South Ocean Boulevard resident notified the Health Department she was not properly informed of a cross connection found on her street in December 2018. A cross connection occurs when reclaimed water pipes are wrongly connected to the drinking water lines.
The city has spent a total of more than $1 million to inspect each of its reclaimed water locations and add backflow preventers when needed.
On Dec. 7, the city hand-delivered a check to the Health Department, as required in the consent order. The check covered the $1 million civil fine and $21,193.90 for costs and expenses of the Health Department’s investigation.
The Health Department also has set up a “corrective action” table to track the deadlines outlined in the consent order, according to an internal email of Nov. 15.
Some Delray Beach residents have written the city asking for an investigation of who’s to blame for the missing backflow devices and the lack of records. But City Manager Terrence Moore does not want to do that. He wants to keep moving forward and stop the drain on city coffers that fees to attorneys and consultants create, he told The Coastal Star.
“After signing the consent order, I want the city to focus on meeting the deadlines,” Moore said, referring to three years of deadlines in the consent order relating to quality control, so the city can avoid further fines.
Time line of settlement with state and deadlines
A time line of events along with deadlines Delray Beach must meet or risk being fined $5,000 per day for each violation by the Florida Department of Health in Palm Beach County:
• On Nov. 9, city commissioners approved the consent order with the Health Department, agreeing to pay a $1 million fine for violations in its reclaimed water program and $21,193.90 for costs and expenses of the Health Department’s investigation.
• On Nov. 15, the Health Department set up a “corrective action” table to track the deadlines listed in the consent order.
• On Dec. 1, the clerk in the Tallahassee office of the Health Department recorded the agreement that started the clock on the following deadlines:
• Dec. 30: City to submit a public notice about its failure to implement a cross-connection/backflow prevention program and within 10 days of the public notice, submit a certificate of delivery of publication to the Health Department. Both completed on Dec. 3.
• Dec. 30: City to pay the $1 million fine and $21,193.90 for costs and expenses of the investigation. Done on Dec. 7.
• April 10, 2022: Publish the violations in the U.S. Environmental Protection Agency’s 2021 Consumer Confidence Report.
• May 29, 2022: Complete or begin the installation at seven properties that still need backflow devices. Five are on the barrier island.
• Dec. 1, 2024: Ensure all reclaimed water customers comply with statewide rules and provide the Health Department quarterly progress reports that are needed starting Feb. 28, 2022.
Source: Public records from Florida Department of Health in Palm Beach County