Backflow Valve Update # 25
May 23, 2013
This is Update # 25. All prior Updates are available at www.backflowvideos.org
This Update covers four topics:
The Florida Department of Environmental Protection’s (DEP) recent Workshop
concerning the revision of their backflow valve regulations 62-555 (F.A.C.).
The statements by the DEP’s Senior Assistant General Counsel, Hillary Powell,
that the DEP’s backflow valve regulations (and by extension, the AWWA’s M14)
are not “standards”.
How to challenge the proposed rules.
The Roanoke, VA backflow incident and the $13,000,000 settlement against the
water utility because they were liable for distributing unsafe water.
Workshop/Webinar:
On April 17, 2013, the Florida Department of Environmental Protection (DEP) conducted
a Workshop about their proposed 62-555 (F.A.C.) regulations concerning backflow
valves. The presentation was built around 53 slides viewable here.
The Workshop lasted two hours forty minutes. The Workshop was also available on the
internet as a Webinar. The complete internet video of the slides and narrative can be
viewed by clicking here. The video is a .wmv file that can be viewed using Windows
Media Player. As a convenience and since some of you may not have the time to view
the whole video or may only be interested in certain aspects of the revised regulations,
I’ve prepared a Timeline of the video based on the slides’ subject matter. The Timeline
allows you to fast-forward to the item of your interest. The Timeline is Attachment A,
starting on page 8 of this Update.
There was a lot of discussion about using Dual-check valves (DuC) adjacent to water
meters. This is the only way for a PWS (Public Water System) to grantee responsibility
Update # 25 - Page 1
for the safety of the water in its mains, as opposed to the questionable use of either
Reduced Pressure Zone valves (RPs) or Double Check valves (DCs).
I have faith (not misplaced, I hope) that those water officials who are truly
knowledgeable and concerned with providing safe drinking water certainly know that:
RPs and DCs are devices that provide direct access into the public drinking water
supply in violation of a number of federal anti-terrorism laws that have come into
being since “9-11”;
RPs and DCs create a liability 1 for a Public Water Supply (PWS) because they
provide direct access into the public drinking water supply which allows for
contamination by terrorists resulting in an unsafe drinking water supply, which is
prohibited by the federal and state Safe Drinking Water Acts;
RPs and DCs are devices that absolutely don’t belong in the minimum standards
that are being set forth by the DEP and then forced on PWSs and homeowners.
When is a Standard not a Standard?
The Senior Assistant General Counsel for the DEP, Hillary Powell, has stated that the
62-555 regulations, which by extension includes the AWWA’s M14, are not “standards”
and that the DEP can therefore bypass established procedures for their approval.
In a March 26, 2013 email to me, Ms. Powell wrote:
“At this time, we do not anticipate any of the proposed amendments to chapter
62-555 to contain “standards,” as that term is defined in section 403.803(13),
Florida Statutes. Thus, under section 403.805(1), Florida Statutes, the Secretary of
the Department would have the authority to adopt any rules arising out of this
rulemaking.”
1
The responsibility for a PWS to provide safe drinking water to its customers was made
quite clear in the Roanoke, VA backflow incident court case decision in which the utility
distributed Chlordane-laced water to its customers and was then forced to pay
$13,000,000 to settle with them. This is discussed more fully later in this Update.
Update # 25 - Page 2
But the Florida Statute that Ms. Powell cites reads:
“403.803(13) “Standard” means any rule of the Department of Environmental
Protection relating to air and water quality, noise, solid-waste management, and
electric and magnetic fields associated with electrical transmission and distribution
lines and substation facilities. The term “standard” does not include rules of the
department which relate exclusively to the internal management of the department,
the procedural processing of applications, the administration of rulemaking or
adjudicatory proceedings, the publication of notices, the conduct of hearings, or
other procedural matters.”
I find it strange that Ms. Powell doesn’t consider cross-connections or backflow valves
or reporting forms to be concerned with water quality. I can’t decide if her driveway
doesn't quite reach the road or if she’s outright lying to protect a DEP agenda. In truth,
the Secretary of the DEP only has the authority under the Statute that Ms. Powell cites to
adopt rules related to the “internal management” of his DEP. And this limitation makes
sense! Otherwise, it would always be a case of the fox being in charge of security at the
hen house.
What makes her opinion even stranger is that the word “standard” is actually used in the
Workshop’s slides eleven times. And that the DEP’s John Sowerby, who gave the
Workshop’s presentation, actually spoke the word “standard” at least six times in
connection with backflow valve regulations.
However, if Ms. Powell is correct, I wonder if that means that individual utilities have no
legal obligation to even adopt the minimum standards set forth in the regulations
particularly as they concern valves types and the survey forms? After all, if standards
aren’t really legal standards in the eyes of the DEP’s esteemed legal department, why
should a utility even bother with their implementation?
Actually, I do agree with Ms. Powell that the AWWA’s M14 should not be considered a
standard at all. It should be relegated to the trash bin for violating federal
anti-terrorism laws and the Florida Statutes. And, since the AWWA won’t permit M14 to
be freely available on the internet, a citizen must make a 140-mile round trip to the
nearest DEP office or else spend over $100 just to find out about the rules he must obey.
All rules should be enumerated in the Florida Statutes or Florida Administrative Code!
Update # 25 - Page 3
How to challenge the proposed rules.
Here is Slide 52 from the recent DEP Workshop. It shows the timeline for the remainder
of the rulemaking process. Note my red marker.
I’ve inserted a red marker following the “Publish a Notice of Proposed Rule” step. As
soon as the Notice of Proposed Rule is published, you’ll have 21 days in which to
challenge the proposed rule with the Florida Division of Administrative Hearings
(DOAH). As noted in one of their documents:
“this allows persons substantially affected by the decisions of administrative
agencies to challenge those decisions. The opportunity for citizen challenge
increases the likelihood that an agency will consider all sides of an issue and
choose the most effective resolution. Any person substantially affected by an
existing or proposed rule may seek an administrative determination of its
invalidity.”
Update # 25 - Page 4
There is a wealth of online information about the process at Florida Administrative Law
Central Online Network including their "Pocket Guide to Florida's Administrative
Procedure Act" . Also, the Division of Administrative Hearings website has complete
information and examples of how to file a Challenge. And the very precise rules for the
conduct of the hearing are in the Florida Administrative Code at Chapter 28-106.
You can challenge the DEP’s rulemaking process and/or challenge the rules themselves
for a number of reasons. A Challenge is filed in the format of a legal Complaint, an
administrative law judge is assigned, and you move forward just like in a real trial
including the ability to subpoena and question witnesses and to subpoena evidence. And,
according to the DOAH, if you challenge both the rulemaking process and the rules
themselves, you get to have two Hearings with double the subpoenas and double the
discovery!
To keep down the number of Challenges, the DOAH does require that a challenger have
standing of “substantial interests” in the proposed rule. “Substantial interests” is defined
in the Florida Statutes at 120.52(13). County departments have standing. Another
category of those who can challenge rules include those appointed “to represent the
interests of the consumers of a county” or to represent a “class of interested persons”.
I have standing because the Hillsborough County Board of County Commissioners
appointed me to be the “Citizen Representative” on the County’s Cross Connection,
Backflow and Back-Siphonage Control Board. [My understanding for the DOAH’s
established standing requirements was to prevent organizations with an agenda, like
environmentalists, from cluttering up the system by having each and every one of their
members file slightly different Challenges.]
If the DEP rules fail to “prohibit residential RPs, DCs and similar devices that provide
direct access into the public drinking water supply”, I will certainly challenge the current
proposed rules because they do violate a number of federal anti-terrorism laws put in
place since “9-11”. And it will be very easy to prove to the DOAH that RPs and DCs do
violate federal law - based on many official, internal Health Department & DEP emails.
An email with particular “smoking gun” attributes is the one written by Van Hoofnagle,
the Administrator of the DEP’s Drinking Water Section, in which he turns me over to his
law enforcement colleague because I had the audacity to point out the dangers of RPs.
See Attachment B at page 11 of this Update.
Update # 25 - Page 5
And then there is that wonderfully insightful article written by an AWWA staffer that
appeared in the Journal of the AWWA which states that:
“One sociopath who understands hydraulics and has access to a drum of toxic
chemicals could inflict serious damage to a water supply in a neighborhood or
pressure zone without detection pretty quickly in most communities.” 2
And, of course, I would certainly give the administrative law judge my infamous
demonstration (go to www.backflowvideos.org and click on “Demonstration”) of just
how easily a terrorist can backflow bio-toxins and deadly chemicals back through RPs
and DCs into a public drinking water distribution system.
And if the DEP insists on having an internal Secretarial Hearing on the rules, instead of a
proper hearing by the Environmental Regulation Commission (ERC), see Update # 5, I
will certainly file a second Challenge based on their questionable rulemaking process.
And for those of you who are with water utilities, you might, for example, want to
consider challenging the DEP on their standard of having to replace Dual-check valves
adjacent to the water meter at least every ten years, instead of when the meter is changed
out. Because of all the liability issues that a water utility will create for itself if it fails to
protect its distribution system from terrorist contamination with the primary goal being to
provide safe drinking water to its customers, I expect that all water utilities would opt to
install Dual-checks at each meter.
Replacing the Dual-check when the meter is changed out is just plain old common sense.
But if you don’t change out your meters at precisely ten year intervals, then being forced
replace the valves every ten years would mean that you have to hire additional employees
– salaries, pensions, insurance, uniforms, etc. - and buy additional trucks – initial cost,
gas, insurance, maintenance, tires, etc. – and incur additional administrative costs just for
dedicated crews to go around and do nothing else except replace the valves. If you think
you might want to proceed in the direction of a Challenge, you should probably give your
2
The article “The Who, What, Why, and How of Counterterrorism Issues” was written
by Gay Porter Denileon, a member of the National Critical Infrastructure Protection
Advisory Group. And she is on the AWWA’s staff. The article appeared in the Journal
of the AWWA, Vol. 93, May 2001.
Update # 25 - Page 6
legal department or lawyer a heads-up now since they’ll only have three weeks within
which to prepare the Complaint. Incidentally, if any of you have already worked out
what the cost would be to have dedicated crews replace all the DuCs every ten years as
opposed to doing it when you change out the meter, I would be very interested in
knowing what you came up with. Please email me at [email protected]
Roanoke, VA Backflow Incident.
Backflow incidents are few and far between! (This is assuming that you leave out the
100,000s of poorly designed toilet tank valves that allowed the blue Tidy Bowl sanitizer
to migrate back into a home’s drinking water supply - which some officials unethically
cite to prove that backflow incidents are commonplace.) No one has ever died in Florida
from a backflow incident. And according to the Health Department, no one has ever
even gotten sick from a backflow incident in Hillsborough County, FL. However, there
are two historical incidences that have occurred. One was at the 1904 World’s Fair when
sewage water was plumbed into the Fair’s drinking water supply. The other occurred in
Roanoke, VA back in 1979. I very recently received a document from the DEP, which
they did not author, describing the Roanoke, VA backflow incident and the liability of the
water utility. Please see Attachment C at page 12 of this Update for the document.
If any of your colleagues would like to receive future Updates, please email me.
I truly appreciate your positive response to these Backflow Valve Updates and welcome
your feedback.
Thank you,
David Brown
1805 Burlington Circle
Sun City Center, FL 33573-5219
Phone: 1-813-634-6048
Email: [email protected]
Update # 25 - Page 7
Attachment A – Video Timeline – Page 1 of 3
On April 17, 2013, the DEP (Florida Department of Environmental Protection)
conducted a Workshop about their proposed regulations concerning backflow
valves. The presentation was built around 53 slides which can be viewed by
clicking here.
The Workshop lasted two hours forty minutes. It was also available on the
internet as a Webinar. The complete internet video of the slides and narrative
can be viewed by clicking here. The video is a .wmv file which can be viewed
using Windows Media Player.
Since you may not have the time to view the entire video or only be interested in
certain aspects of the revised regulations, below is the timeline of the video so
that you can fast-forward to the desired subject matter. For example, if you are
just interested in the minimum standards for a cooling tower, you could fastforward the video to Slide 41 which is at 1:32:00 (one hour, thirty two minutes)
into the video. If you are just interested in the standard Form that the DEP has
developed for annual reporting by utilities, you could fast-forward to 1:49:00 for
the narration that accompanied Slides 45 to 47. (And by the way, if you’re going
to be the person filling out this form, you may want to remember this video since
the DEP’s John Sowerby spent twelve minutes discussing the form and additional
time answering several follow-up questions during the public comments period.)
Slide
1
2
3
4
5
6
7
Time
00:00
00:16
00:25
00:56
01:36
01:55
02:20
Content
Webinar title
Call to Order
Number of Attendees: 5 from DEP – 9 in room – 59 online
Workshop Agenda Slide - “Call to order”
Introduction of DEP Staff
Workshop reminders
Purpose of Workshop
Update # 25 - Page 8
Attachment A (cont’d) – Video Timeline – Page 2 of 3
8
9
10
11
12
13
14
15
16
17
18
19
20
21
03:20
03:52
04:10
05:02
05:06
05:47
06:30
06:49
08:37
10:50
11:01
12:03
14:32
16:48
Purpose of Workshop (cont’d)
Workshop Agenda Slide - “Rulemaking amendments”
DEP Review of Rulemaking Amendments
1.
“Statutory Authority & History of, CCC Rules for PWSs “
Florida Statutes - Section 403.086(8),
Florida Statutes (cont’d) - 403.853(1), 403.852(12)
Florida Statutes (cont’d) - 403.855
History of CCC Rules for PWSs
U.S. Environmental Protection Agency (USEPA) & CCC
2.
“Purpose & Effect of CCC Rule Amendments”
Clarify CCC Rules for PWSs
Reduce Burden of CCC Rules
Reduce Burden of CCC Rules (cont'd)
Require Annual CCC Program Report
Florida Administrative Code (F.A.C.) Sections for these regulations:
3.
“Rule-by-Rule Review of CCC Rule Amendments”
22
18:50
23
20:00
62-555.330 - M14.
24
21:38
62-555.360(1) - Clarify when cross-connections are prohibited.
25
25:00
62-555.360(1) - Types of BPs for various applications.
26
29:34
62-555.360(2) - Establishing & implementing a CCC program.
27
30:50
62-555.360(2) - Tables 62-555.360-1 & 62-555.360-2.
28
33:11
62-555.360(2) - CWS to submit Form 62-555.900(13).
29
33:58
62-555.360(3) - When a cross-connection is found.
30
40:06
62-555.360(4) - Deleting this subsection as redundant.
31
42:22
62-555.360(5) - Deleting this subsection as redundant.
32
42:56
62-555.900 - New Form 62-555.900(13).
33
43:40
Table 62-555.360-1 - Minimum Components in a CCC Plan.
34
47:02
Table 62-555.360-1 - Ownership, installation, testing &
maintenance of backflow valves.
Update # 25 - Page 9
Attachment A (cont’d) – Video Timeline – Page 3 of 3
35
59:10
Table 62-555.360-1 - New & existing service connections,
evaluation, record keeping, public education.
Categories of Customers in Table 62-555.360-2
36
1:08:15
Beverage, cannery, car wash.
37
1:10:51
Chemical, dairy, dye, film lab, medical.
38
1:13:20
Lab, laundry, marine, metal manufacturing, mortuary, gas.
39
1:18:42
Auxiliary or reclaimed water system.
40
1:28:50
Reclaimed water exceptions, footnotes.
41
1:32:00
Cooling tower, dedicated irrigation.
42
1:38:00
Wet-pipe sprinkler & standpipe.
43
1:44:00
Fire protection.
44
1:45:00
Nuclear, paper, plating, steam, tall buildings, wastewater,
water-hauling.
Standard Reporting Form 62-555.900(13):
45
1:49:00
Form 62-555.900(13) - Parts 1 & 2.
46
1:50:50
Form 62-555.900(13) - Part 3.
47
1:50:30
Form 62-555.900(13) - Parts 4 to 6.
Audience Questions & Comments:
48+ 2:01:00
Public questions & comments.
51
52
53
2:34:50
2:34:55
2:39:25
Workshop Agenda Slide - “Rulemaking process”.
Steps in this rulemaking process.
Adjournment.
Update # 25 - Page 10
Attachment B – DEP’s confirmation that RPs are dangerous
Van Hoofnagle, the Administrator of the DEP’s Drinking Water Section, having learned
of my speaking out about the danger of RPs being used by terrorists to contaminate the
public drinking water supply, sent an email to Phil Wieczynski, the Chief of the DEP’s
Bureau of Emergency Response, instructing him to:
“take a look at this and forward to the appropriate contacts you have in law
enforcement?" 3
And following that, I did indeed get an early morning, unannounced visit from the
FBI. Have you ever gotten an early morning, unannounced visit from the FBI about
backflow valves? I’ll bet not! Nothing ever came of the visit because I gladly gave the
agents a demonstration of just how easily a terrorist can contaminate a public water
supply through an RP. They were surprised at the ease of doing the contamination and
left me alone.
I’m sure that Hoofnagle’s involving law enforcement was done in the hope that it would
intimidate me into being silent about the DEP’s ill-advised regulations. Obviously, that
didn’t work! Actually, it pissed me off and realizing that I was on the right track, became
the incentive to expand my advocacy against RPs and DCs. The moral is to never, never
poke a sleeping dragon. If the valves were not a true danger, why in God’s name would
Hoofnagle, acting in his official capacity, ‘reach out to me’ through his law enforcement
resources? I’ll bet that the DEP has never targeting anyone else with law enforcement
involvement for simply pointing out the shortcomings of their regulations!
I truly believe that Hoofnagle’s action was an overt, outward and a truly honest
expression of his concerns of just how easily the safety of the drinking water supply can
be compromised by using RPs and DCs to introduce bio-toxins and deadly chemicals into
a community’s distribution mains. Now then, why can’t Hoofnagle follow up on his
concerns by banning RPs and DCs in their entirety from his 62.555 regulations?
3
Email from Van Hoofnagle to Ed Bettinger, Kenyon Carter and Phil Wieczynski 6/5/07.
Update # 25 - Page 11
Attachment C – Roanoke Backflow Incident – Page 1 of 2
Liability of the Water Supplier
“According to the Federal Safe Drinking Water Act of 1974, the water supplier
is responsible for the quality of the water being delivered to each customer. In
a 1979 lawsuit, a Roanoke, Virginia utility company was ordered to pay
customers thirteen million - $13,000,000 - dollars because of a backflow
accident that allowed Chlordane, a highly toxic insecticide, to enter the public
water supply. Since the Roanoke lawsuit, many utility companies are reluctant
to enter into litigation 4 with customers.”
Detailed description of the incident courtesy of the Watts Regulator Company:
DATE OF OCCURRENCE: October 1979
LOCATION: Roanoke, Virginia
SOURCE OF INFORMATION: Watts Regulator Company “Stop Backflow”
SUMMARY: Water system contamination resulted from the backsiphonage of
the insecticide Chlordane following the interruption of water system supply
pressure.
DETAILS:
On October 12, 1979 the residents along the 4900 block of Austin Lane
complained that their water looked milky, felt greasy, foamed and smelled like
“a combination of kerosene and Black Flag pesticide”.
4
This remark about a water utility’s liability in litigation agrees entirely with the
statement of the DEP’s John Sowerby during his presentation at the DEP’s Workshop
held in Sanford, FL on February 18, 2009. Here is what Sowerby said:
“I know that we have a lot of water system personnel in the audience. Don’t be
offended but it’s obvious that there is a dis-incentive for water systems to make
public these [backflow] incidents even when they’re aware of them because of
liability and consumer confidence issues.”
Update # 25 - Page 12
Attachment C (cont’d) – Roanoke Backflow Incident – Page 2 of 2
Approximately three gallons of Chlordane, a highly toxic insecticide, had been
backsiphoned into the city water system.
The contamination occurred while water department personnel were repairing
a water main. At the same time an exterminator was treating a nearby home
with Chlordane for termite control. The workmen for the exterminating
company left one end of the hose connected to an outside hose tap and left the
other in a barrel of diluted insecticide. During the water service interruption,
the solution was backsiphoned into the house plumbing and then into the city
water main. The homes in the affected area, because of the hilly terrain, were
particularly susceptible to backsiphonage.
The water department undertook an extensive program of flushing water
mains. The insecticide, however, adhered to the inside of the pipes. Tests of
water samples taken six days after the contamination showed Chlordane levels
five times greater than considered safe.
The water department tapped into the water main at two points along the
street to continue flushing operations. For several days residents either carried
water to their homes from two 400 gallon water tanks the city put up on a
vacant lot in the area, or traveled to homes of friends or relatives to shower
and eat meals.
The contamination affected homes in the 4700 to 4900 block of Autumn Lane,
and a lawsuit was initiated. In 1985 the lawsuit was settled in the plaintiff’s
favor with an award of $13,000,000.
Update # 25 - Page 13