Agenda 07/10/2018 Item #16C1107/10/2018
EXECUTIVE SUMMARY
Recommendation to approve the proposed Agreement between the State of Florida Department of
Environmental Protection and the Collier County Water-Sewer District to resolve certain claims by
the Department related to potential spills in the aftermath of Hurricane Irma.
OBJECTIVE: To resolve a dispute with the State of Florida Department of Environmental Protection.
CONSIDERATIONS: On September 10, 2017, Hurricane Irma made landfall starting at Marco Island
and then passed directly over the Collier County Water-Sewer District’s (“District”) service area. Irma
brought sustained winds of 115 miles per hour and gusts of over 140 miles per hour. Over 11.5 inches of
rain fell in the Collier County area. The National Weather Service issued a flash flood emergency for
Collier County when the storm made landfall.
Four days after storm landfall over 500 wastewater pump stations remained without electrical power. The
District limited the number and volume of discharges by deploying 110 pumping trucks, deploying 140
generators that were jockeyed among various lift stations, marshalling over 200 workers in the field
working 12-20 hour shifts to restore the collections system during the storm response, and coordinating
with the Collier County Emergency Operations Center to limit and manage storm impacts to the
community. Power was not fully restored at collections system lift stations until 6 days later on 9/23/17.
In an effort to reduce public exposure and restore the collections system to norma l operation, the District
spent over $10 million.
During this period the District self-reported a number of wastewater events (“Events”), including non-
field verified reports from the public. It is possible that untreated wastewater may have entered
stormwater systems and reached waters of the State.
The State of Florida Department of Environmental Protection (“Department”) took the position that each
of the self-reported Events may be a violation of Rule 62-604.130 (1), F.A.C. The Department and the
District have discussed this matter and reached the proposed Agreement to resolve all disputed issues
regarding the Events associated with Hurricane Irma.
In the proposed Agreement the District agreed to take the following corrective actions within the stat ed
time periods:
Provide a written plan to reduce the potential for sanitary
sewer overflow for each community/sub-master pump
station where failure during or after Hurricane Irma resulted
in an SSO.
September 1, 2018
Purchase 15 portable generators or by-pass pumps to
improve emergency pumping capability.
December 31, 2018
Purchase and install 4 permanent diesel by-pass pumps at
critical pump stations.
December 31, 2018
Submit plan and implementation schedule for providing
additional emergency pumping capability at lift stations
deemed as critical.
October 31, 2018
Submit to the Department a Final Report documenting that
all items needed to close this agreement have been
completed, and list all planned future items to be performed
to continue to reduce SSOs.
January 31, 2019
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07/10/2018
In the proposed Agreement, the Department finds that assessment of civil penalties for the regulatory
matters addressed in this Agreement would amount to $14,992.50 and $500.00 for costs and expenses
incurred by the Department during the investigation of this matter as well as the preparation and tracking
of this Agreement. The parties agreed, however, that if the District rehabilitated 18 pump stations in the
Bayshore area, the $14,992.50 civil penalty portion of the settlement would be deemed fully satisfied.
The $500.00 portion of the settlement for costs and expenses incurred by the Department will be paid
within 30 days of the effective date of this Agreement.
FISCAL IMPACT: The estimated fiscal impact is $500 for administrative costs, plus the potential for
$14,992.50 if conditions are not met. Funds will come from the Wastewater Division administration
operating budget 408-210120.
GROWTH MANAGEMENT IMPACT: There are no Growth Management Impacts associated with
this action.
LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney, is approved as to
form and legality, and requires majority vote for approval. -JAK
RECOMMENDATION: That the Board approve the proposed Agreement between the State of Fl orida
Department of Environmental Protection and the Collier County Water-Sewer District to resolve certain
claims by the Department related to potential spills in the aftermath of Hurricane Irma.
Prepared by: G. George Yilmaz, Public Utilities Department Head
Jeffrey A. Klatzkow, County Attorney
ATTACHMENT(S)
1. Proposed Agreement (PDF)
16.C.11
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07/10/2018
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.C.11
Doc ID: 6144
Item Summary: Recommendation to approve the proposed Agreement between the State of
Florida Department of Environmental Protection and the Collier County Water-Sewer District to resolve
certain claims by the Department related to potential spills in the aftermath of Hurricane Irma.
Meeting Date: 07/10/2018
Prepared by:
Title: – Solid and Hazardous Waste
Name: Sarah Hamilton
07/02/2018 9:25 AM
Submitted by:
Title: Department Head - Public Utilities – Public Utilities Department
Name: George Yilmaz
07/02/2018 9:25 AM
Approved By:
Review:
Public Utilities Operations Support Joseph Bellone Additional Reviewer Completed 07/02/2018 9:32 AM
Wastewater George Yilmaz Additional Reviewer Skipped 07/02/2018 9:40 AM
Public Utilities Department Sarah Hamilton Level 1 Division Reviewer Completed 07/02/2018 10:01 AM
Public Utilities Department George Yilmaz Level 2 Division Administrator Review Completed 07/02/2018 10:03 AM
Office of Management and Budget Valerie Fleming Level 3 OMB Gatekeeper Review Completed 07/02/2018 10:20 AM
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 07/02/2018 10:23 AM
Budget and Management Office Ed Finn Additional Reviewer Completed 07/02/2018 12:34 PM
County Manager's Office Leo E. Ochs Level 4 County Manager Review Completed 07/02/2018 1:48 PM
Board of County Commissioners MaryJo Brock Meeting Pending 07/10/2018 9:00 AM
16.C.11
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BEFORE THE STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
STATE OF FLORIDA DEPARTMENT ) IN THE OFFICE OF THE
OF ENVIRONMENTAL PROTECTION ) SOUTH DISTRICT
)
v. ) OGC FILE NO. 18-0080
)
COLLIER COUNTY WATER-SEWER
DISTRICT (CCWSD) )
)
AGREEMENT
This Agreement (“Agreement”) is entered into between the State of Florida Department of
Environmental Protection (“Department”) and Collier County Water-Sewer District (“Respondent”), to
reach settlement of certain matters at issue between the Department and Respondent.
The Department finds and Respondent neither admits nor denies the following:
1. The Department is the administrative agency of the State of Florida having the power and
duty to protect Florida’s air and water resources and to administer and enforce the provisions of Chapter
403, Florida Statutes (F.S.), and the rules promulgated and authorized in Title 62, Florida Administrative
Code (F.A.C). The Department has jurisdiction over the matters addressed in this Agreement.
2. Respondent is a person within the meaning of Section 403.031(5), F.S.
3. Respondent is the owner and is responsible for the operation of the following facilities:
North County Water Reclamation Facility (NCWRF), FL0141399, and South County Water
Reclamation Facility (SCWRF), FL0141356.
4. On September 4, 2017, Governor Scott declared a state of emergency for each of the 67
counties in Florida to prepare for Hurricane Irma. Respondent asserts that it began immediate
preparations and activated emergency response plans.
16.C.11.a
Packet Pg. 1498 Attachment: Proposed Agreement (6144 : DEP Irma Agreement with Collier County Water-Sewer District)
DEP vs. Collier County Water-Sewer District
Agreement, OGC No. 18-0080
Page 2 of 10
5. On September 10, 2017, Hurricane Irma made landfall starting at Marco Island and then
passed directly over Respondent’s service area. The Category 3 Hurricane brought sustained winds of
115 miles per hour and gusts of over 140 miles per hour. Over 11.5 inches of rain fell in the Collier
County area. The National Weather Service issued a flash flood emergency for Collier County when the
storm made landfall.
6. Respondent asserts that four days after storm landfall over 500 wastewater pump stations
remained without electrical power. Respondent further asserts that it limited the number and volume of
discharges by deploying 110 pumping trucks, deploying 140 generators that were jockeyed among
various lift stations, marshalling over 200 workers in the field working 12-20 hour shifts to restore the
collections system during the storm response, and coordinated with the Collier County Emergency
Operations Center to limit and manage storm impacts to the community. The final Event as described
below was reported on 9/17/17 although power was not fully restored at collections system lift stations
until 6 days later on 9/23/17. The Respondent further asserts that it exhausted over $10 million
deploying manpower and resources from throughout the United States, in an extraordinary effort to
reduce public exposure and restore the collections system to normal operation.
7. Respondent asserts that as a direct result of Hurricane Irma and the attendant extreme
rainfall, flooding, and power outages at lift stations, Respondent self-reported wastewater
malfunctions/abnormal events (“Events”) during/after the Hurricane including non-field verified reports
from the public.
8. Untreated wastewater may have entered stormwater systems and reached waters of the
State. The Department finds that each of the Events may be a violation of Rule 62-604.130 (1), F.A.C.
16.C.11.a
Packet Pg. 1499 Attachment: Proposed Agreement (6144 : DEP Irma Agreement with Collier County Water-Sewer District)
DEP vs. Collier County Water-Sewer District
Agreement, OGC No. 18-0080
Page 3 of 10
9. Respondent asserts that it has initiated and/or completed the following response and
improvement actions:
a) Respondent has developed and implemented a Management, Operations and
Maintenance (MOM) program as required by EPA to mitigate against Sanitary Sewer Overflows
(“SSOs”).
b) Respondent has developed a new standard operating procedure (SOP) for spill
reporting and trained all senior collections staff.
c) Respondent has developed a public education program for customers regarding
hurricane preparation, water conservation during power outages, and Fats, Oils, and Grease (FOG)
Program.
d) Respondent has completed 2 force main improvements and 13 gravity system
interconnections to provide for collections system surcharge capacity, reducing the potential for wet
weather SSOs.
e) Respondent has provided the Department with the updated Sewer Overflow
Response Plan for Collier County Wastewater Division.
f) Respondent has developed a comprehensive, county-wide staffing plan for
emergency response and identified dedicated staff shelter facilities for enhanced utility coordination and
response.
The Department and Respondent have discussed this matter and reached agreement on resolution
of all disputed issues regarding the above described Events associated with the Category 3 Hurricane
Irma. Having reached agreement on resolution of the matter, Respondent and the Department mutually
agree that, except as provided in paragraphs 18 and 19, this agreement is considered universally
inclusive of all events that Respondent self-reported to the Department associated with Hurricane Irma
16.C.11.a
Packet Pg. 1500 Attachment: Proposed Agreement (6144 : DEP Irma Agreement with Collier County Water-Sewer District)
DEP vs. Collier County Water-Sewer District
Agreement, OGC No. 18-0080
Page 4 of 10
from storm landfall on 9/10/17 through the period at which the last Event was reported on 9/17/17. It is
accordingly agreed upon that:
10. Respondent shall comply with the following corrective actions within the stated time
periods:
Provide a written plan to reduce the potential for sanitary
sewer overflow for each community/sub-master pump
station where failure during or after Hurricane Irma resulted
in an SSO.
September 1, 2018
Purchase 15 portable generators or by-pass pumps to
improve emergency pumping capability.
December 31, 2018
Purchase and install 4 permanent diesel by-pass pumps at
critical pump stations.
December 31, 2018
Submit plan and implementation schedule for providing
additional emergency pumping capability at lift stations
deemed as critical.
October 31, 2018
Submit to the Department a Final Report documenting that
all items needed to close this agreement have been
completed, and list all planned future items to be performed
to continue to reduce SSOs.
January 31, 2019
16.C.11.a
Packet Pg. 1501 Attachment: Proposed Agreement (6144 : DEP Irma Agreement with Collier County Water-Sewer District)
DEP vs. Collier County Water-Sewer District
Agreement, OGC No. 18-0080
Page 5 of 10
11. The Department finds that assessment of civil penalties for the regulatory matters addressed in
this Agreement would amount to $14,992.50 and $500.00 for costs and expenses incurred by the
Department during the investigation of this matter as well as the preparation and tracking of this
Agreement. However, the Rehabilitation of 18 pump stations in the Bayshore area – Group 1 & 2 (306
Basin) (“In-Kind Project”) is considered a pre-approved, in-kind project list. Accordingly, if
Respondent commits to the In-Kind Project, the $14,992.50 civil penalty portion of the settlement shall
be deemed fully satisfied, and as such is not payable unless and until Respondent fails to timely
complete the project. The $500.00 portion of the settlement for costs and expenses incurred by the
Department will be paid within 30 days of the effective date of this Agreement.
12. Respondent shall make all payments required by this Agreement by cashier's check,
money order or on-line payment. Cashier’s check or money order shall be made payable to the
“Department of Environmental Protection” and shall include both the OGC number assigned to this
Agreement and the notation “Water Quality Assurance Trust Fund.” Online payments by e-check can
be made by going to the DEP Business Portal at: http://www.fldepportal.com/go/pay/. It will take a
number of days after this agreement is final and effectively filed with the Clerk of the Department
before ability to make online payment is available.
13. Except as otherwise provided, all submittals and payments required by this Agreement
shall be sent to Toni Fonseca, Engineering Specialist III, Department of Environmental Protection,
South District Office, P.O. Box 2549, Fort Myers, Florida, 33902-2549.
14. Respondent shall allow all authorized representatives of the Department access to the
Facility and the Property at reasonable times for the purpose of determining compliance with the terms
of this Agreement and the rules and statutes administered by the Department.
16.C.11.a
Packet Pg. 1502 Attachment: Proposed Agreement (6144 : DEP Irma Agreement with Collier County Water-Sewer District)
DEP vs. Collier County Water-Sewer District
Agreement, OGC No. 18-0080
Page 6 of 10
15. In the event of a sale or conveyance of the Facility or of the Property upon which the
Facility is located, if all of the requirements of this Agreement have not been fully satisfied, Respondent
shall, at least 30 days prior to the sale or conveyance of the Facility or Property, (a) notify the
Department of such sale or conveyance, (b) provide the name and address of the purchaser, operator, or
person(s) in control of the Facility, and (c) provide a copy of this Agreement with all attachments to the
purchaser, operator, or person(s) in control of the Facility. The sale or conveyance of the Facility or the
Property does not relieve Respondent of the obligations imposed in this Agreement.
16. If any event, including administrative or judicial challenges by third parties unrelated to
Respondent, occurs which causes delay or the reasonable likelihood of delay in complying with the
requirements of this Agreement, Respondent shall have the burden of proving the delay was or will be
caused by circumstances beyond the reasonable control of Respondent and could not have been or
cannot be overcome by Respondent’s due diligence. Neither economic circumstances nor the failure of
a contractor, subcontractor, materialman, or other agent (collectively referred to as “contractor”) to
whom responsibility for performance is delegated to meet contractually imposed deadlines shall be
considered circumstances beyond the control of Respondent (unless the cause of the contractor's late
performance was also beyond the contractor's control). Upon occurrence of an event causing delay, or
upon becoming aware of a potential for delay, Respondent shall notify the Department by the next
working day and shall, within seven calendar days notify the Department in writing of (a) the anticipated
length and cause of the delay, (b) the measures taken or to be taken to prevent or minimize the delay,
and (c) the timetable by which Respondent intends to implement these measures. If the parties can agree
that the delay or anticipated delay has been or will be caused by circumstances beyond the reasonable
control of Respondent, the time for performance hereunder shall be extended. The agreement to extend
compliance must identify the provision or provisions extended, the new compliance date or dates, and
16.C.11.a
Packet Pg. 1503 Attachment: Proposed Agreement (6144 : DEP Irma Agreement with Collier County Water-Sewer District)
DEP vs. Collier County Water-Sewer District
Agreement, OGC No. 18-0080
Page 7 of 10
the additional measures Respondent must take to avoid or minimize the delay, if any. Failure of
Respondent to comply with the notice requirements of this paragraph in a timely manner constitutes a
waiver of Respondent’s right to request an extension of time for compliance for those circumstances.
17. The Department, for and in consideration of the complete and timely performance by
Respondent of all the obligations agreed to in this Agreement, hereby conditionally waives its right to
seek judicial imposition of damages or civil penalties for the Events associated with the Category 3
Hurricane Irma up to the date of the filing of this Agreement. This waiver is conditioned upon
Respondent’s complete compliance with all terms of this Agreement. This waiver applies exclusively to
the Events associated with the Category 3 Hurricane Irma. It does not apply to any Events that occurred
prior to or that may occur subsequent to the dates specified herein.
18. This Agreement is a settlement of the Department’s civil and administrative authority
arising under Florida law to resolve the matters addressed herein. This Agreement is not a settlement of
any criminal liabilities which may arise under Florida law, nor is it a settlement of any violation which
may be prosecuted criminally or civilly under federal law. Entry of this Agreement does not relieve
Respondent of the need to comply with applicable federal, state, or local laws, rules, or ordinances.
19. The Department hereby expressly reserves the right to initiate appropriate legal action to
address any violations of statutes or rules administered by the Department that are not specifically
resolved by this Agreement.
20. Respondent acknowledges and waives its right to an administrative hearing pursuant to
sections 120.569 and 120.57, F.S., on the terms of this Agreement. Respondent also acknowledges and
waives it’s right to appeal the terms of this Agreement pursuant to section 120.68, F.S.
21. Electronic signatures or other versions of the parties’ signatures, such as .pdf or facsimile,
shall be valid and have the same force and effect as originals. No modifications of the terms of this
16.C.11.a
Packet Pg. 1504 Attachment: Proposed Agreement (6144 : DEP Irma Agreement with Collier County Water-Sewer District)
DEP vs. Collier County Water-Sewer District
Agreement, OGC No. 18-0080
Page 8 of 10
Agreement will be effective until reduced to writing, executed by both Respondent and the Department,
and filed with the clerk of the Department.
22. The terms and conditions set forth in this Agreement may be enforced in a court of
competent jurisdiction pursuant to sections 120.69 and 403.121, F.S. Failure to comply with the terms
of this Agreement constitutes a violation of section 403.161(1)(b), F.S.
23. This Agreement is a final agreement of the Department pursuant to section 120.52(7),
F.S., and it is final and effective on the date filed with the Clerk of the Department unless a Petition for
Administrative Hearing is filed in accordance with Chapter 120, F.S. Upon the timely filing of a
petition, this Agreement will not be effective until further order of the Department.
24. The undersigned designee of the CCWSD Board, G. George Yilmaz, does represent that
he has the power and authority to bind the Respondent Collier County Water Sewer District to the terms
and conditions of this Agreement.
NOTICE OF RIGHTS
Persons who are not parties to this Agreement, but whose substantial interests are affected by it,
have a right to petition for an administrative hearing under sections 120.569 and 120.57, Florida
Statutes. Because the administrative hearing process is designed to formulate final agency action, the
filing of a petition concerning this Agreement means that the Department’s final action may be different
from the position it has taken in the Agreement.
The petition for administrative hearing must contain all of the following information:
a) The OGC Number assigned to this Agreement;
16.C.11.a
Packet Pg. 1505 Attachment: Proposed Agreement (6144 : DEP Irma Agreement with Collier County Water-Sewer District)
DEP vs. Collier County Water-Sewer District
Agreement, OGC No. 18-0080
Page 9 of 10
b) The name, address, and telephone number of each petitioner; the name, address, and
telephone number of the petitioner’s representative, if any, which shall be the address for
service purposes during the course of the proceeding;
c) An explanation of how the petitioner’s substantial interests will be affected by the
Agreement;
d) A statement of when and how the petitioner received notice of the Agreement;
e) Either a statement of all material facts disputed by the petitioner or a statement that the
petitioner does not dispute any material facts;
f) A statement of the specific facts the petitioner contends warrant reversal or modification of
the Agreement;
g) A statement of the rules or statutes the petitioner contends require reversal or modification
of the Agreement; and
h) A statement of the relief sought by the petitioner, stating precisely the action petitioner
wishes the Department to take with respect to the Agreement.
The petition must be filed (received) at the Department's Office of General Counsel, 3900
Commonwealth Boulevard, MS# 35, Tallahassee, Florida 32399-3000 within 21 days of receipt of this
notice. A copy of the petition must also be mailed at the time of filing to the South District Office at
P.O. Box 2549, Fort Myers, Florida, 33902-2549. Failure to file a petition within the 21-day period
constitutes a person’s waiver of the right to request an administrative hearing and to participate as a
party to this proceeding under sections 120.569 and 120.57, Florida Statutes. Before the deadline for
filing a petition, a person whose substantial interests are affected by this Consent Agreement may
choose to pursue mediation as an alternative remedy under section 120.573, Florida Statutes. Choosing
mediation will not adversely affect such person’s right to request an administrative hearing if mediation
does not result in a settlement. Additional information about mediation is provided in section 120.573,
Florida Statutes and Rule 62-110.106(12), Florida Administrative Code.
16.C.11.a
Packet Pg. 1506 Attachment: Proposed Agreement (6144 : DEP Irma Agreement with Collier County Water-Sewer District)
DEP vs. Collier County Water-Sewer District
Agreement, OGC No. 18-0080
Page 10 of 10
FOR COLLIER COUNTY WATER SEWER DISTRICT:
____________________________________ ______
G. George Yilmaz Date
Department Head, Collier County Public Utilities
DONE AND ORDERED this _________ day of _____________, in Lee County, Florida.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
____________________________________
Jon M. Iglehart
District Director
South District
Filed, on this date, pursuant to section 120.52, F.S., with the designated Department Clerk, receipt of
which is hereby acknowledged.
________________________________ _____________________
Clerk Date
Copies furnished to:
Lea Crandall, Agency Clerk
Mail Station 35
16.C.11.a
Packet Pg. 1507 Attachment: Proposed Agreement (6144 : DEP Irma Agreement with Collier County Water-Sewer District)