By Jane Smith
More than two months after the city received a proposed $1.8 million fine over its botched reclaimed water program, the Delray Beach legal team was still negotiating a settlement with the Florida Department of Health in Palm Beach County.
“There is no set time” for the city to respond to the proposed consent order, Alexander Shaw, Health Department spokesman, wrote in a June 21 email to The Coastal Star. He also wrote in a July 26 email that the city met with Health Department leaders in person on July 7, and they “continue to have constructive negotiations with each other.”
He declined to reveal the substance of the negotiations.
City Attorney Lynn Gelin and two attorneys from the Lewis Longman & Walker firm make up the city’s legal team.
“Negotiations are ongoing,” Laurie Menekou, the publicist hired to answer media questions about the city’s reclaimed water program, wrote in a July 28 email. “There is no additional information to share at this time.”
The City Commission will have to approve the final agreement with the state.
The Health Department contends that Delray Beach’s reclaimed water program was flawed since its start in 2007.
The city created a step-by-step implementation manual, but never followed its own instructions, which called for annual inspections of each connection site and an ongoing cross-connection control program, according to the Health Department.
That’s why the Health Department wants the city to publish a public notice acknowledging it “cannot assure utility customers that the drinking water produced and distributed met the standards of the Safe Drinking Water Act for the period from inception of the reclaimed water service beginning in 2007 to the time reclaimed water was deactivated on February 4, 2020.”
The city will have to publish the notice in a newspaper, in its utility bills and on its website, according to state rules.
The proposed fine does not include the $21,194 that the Health Department spent on the investigation, as of June 21.
During an extensive review with the Florida Department of Environmental Protection in the spring, the departments determined that assessed penalties are more in line with fines that were in effect in 2018.
As a result, the proposed fine of nearly $1.8 million is lower than the nearly $2.9 million proposed in January in a draft consent order. The individual fines also were reduced as a result of the joint review.
Of the 11 violations cited, eight were deemed to be major and carry civil penalties of $5,000.
The city was cited for 12 years of not following its own program of annual inspections. It also submitted false reports saying annual inspections had taken place. The civil fine total is $60,000, at $5,000 per year.
In addition, Delray Beach was fined for missing 576 backflow preventers. The devices are needed on the drinking water pipes to prevent the reclaimed water from flowing back into the drinking water.
The Health Department is proposing fines of $2,229 per location, for a total of $1.3 million.
For submitting false information in December 2018 when a cross connection was discovered at 801 S. Ocean Blvd., Delray Beach should be fined $5,000 for not reporting that people were sickened. No names or job titles are mentioned in the consent order.
A cross connection happens when reclaimed water lines carrying highly treated wastewater for lawn irrigation, but not safe for human and pet use, are wrongly connected with drinking water pipes.
The city also failed to report to the Health Department about a 2019 cross connection discovered at 120 N. Ocean Blvd. In addition, Delray Beach did not issue a public notice of the cross connection found there. The Health Department wants to fine the city $10,000 total or $5,000 for each violation.
The civil penalties total $1.4 million. The Health Department wants to add a 25% charge for the city’s history of noncompliance. The nearly $1.8 million total was recommended at the start of initial negotiations, according to the document.
The Health Department was made aware of the problems in January 2020 by a South Ocean Boulevard area resident’s call.
That led the city to shut down its entire reclaimed water system and seek Health Department approval before turning on the reclaimed water for that location.
In 2020, Delray Beach spent more than $1 million to fix that system. The city can’t use the money spent fixing the system to offset the fines, according to the Health Department.
Another investigation of the reclaimed water program ended in May without finding a past or current city employee, department or outside vendor solely responsible.
As a result of that critical review, the city said it will educate its water customers about what reclaimed water is and its allowed use — only for lawn irrigation.
In addition, the Utilities Department started documenting all customer complaints or inquiries and tracking them in the city’s computerized maintenance management system. Utilities staff will be trained in the proper documentation and inspection reports required by the regulating agencies over reclaimed water.
Uncertainty about illnesses
The county Office of Inspector General became involved last August at the request of the Health Department. Health officials were “concerned that city staff and/or elected officials concealed and/or misrepresented their knowledge,” according to the OIG report.
The Health Department could only issue civil fines. The OIG can forward its results to the State Attorney’s Office for criminal prosecution.
The OIG investigated what the city staff knew about the illnesses from the December 2018 cross connection on South Ocean and whether they were reported to the Health Department as required.
The OIG “was unable to determine whether the reported illness was actually caused by the city’s drinking water,” according to its report. No elected official or current or past city employee was found liable.
But an unnamed city staffer identified in the report as a whistleblower submitted a lengthy rebuttal to the OIG findings based on a review by Public Management Services Inc., a firm the city hired in 2020 to independently review the system.
According to that review, a March 2019 meeting was held by an ex-assistant city manager with various department heads and the project’s consultant representative. They discussed the December 2018 cross connection.
Because no medical or hospital records connected the illnesses with the reclaimed water, the illnesses were not reported to the Health Department. The ex-assistant city manager determined no more action was needed without medical or hospital records connecting the illnesses to the reclaimed water.
“It was not the city’s job to determine this but to report it” to the Health Department, the whistleblower said in the rebuttal. The whistleblower did not attend the March 2019 meeting.