WHAT SHOULD THEY HAVE DONE?
of Part 1
A municipal golf course operated by the City Parks Department was supplied by the public water system through two water services. A domestic service supplied the clubhouse. The second service supplied the golf course turf irrigation system. The water purveyor required a reduced pressure backflow assembly (RPBA) for premises isolation on the irrigation service.
The City Parks Department employed a cross connection control specialist (CCS) and a backflow assembly tester (BAT). Both were certified by the WA Department of Health.
During the annual test, when the BAT shut off the isolating valves to the RPBA it was discovered that a drinking fountain was supplied from the irrigation service and not the potable water service to the golf course.
The CCS notified the Parks Department maintenance supervisor of the need to disconnect the drinking fountain from the irrigation system. To reconnect the drinking fountain to the potable water piping on the golf course would require the installation of approximately 500-feet of pipe that would cross the fairway. The CCS and BAT did not know if the irrigation system was ever used to inject fertilizer or herbicides. However, the irrigation system did contain ground level sprinkler heads that may allow standing water on the ground to be siphoned into the irrigation piping. This would present a risk of microbiological contamination of the irrigation piping, and thus, the drinking fountain. They did not know of any complaints of an unusual taste or odor, or subsequent illness from golfers that may have consumed water from the drinking fountain. They did not collect a water sample for bacteriological or chemical analysis.
After two weeks, the CCS stopped at the golf course and observed that the drinking fountain was still in operation. At the end of the work shift the CCS asked the maintenance supervisor when the drinking fountain would be disconnected. The maintenance supervisor stated concerns about the cost of reconnecting the drinking fountain to the potable water piping and shutting off the drinking fountain during the summer months when the golf course was in high use.
The CCS restated concern about the health risk. The next day the CCS sent a memo to the maintenance supervisor about the drinking fountain and the potential risk of contamination. The CCS attached excerpts from the PNWS AWWA Manual and WA DOH regulations to provide additional information about the health risk and need for cross connection control.
After another week, the CCS asked the maintenance supervisor about the status of disconnecting the drinking fountain. The maintenance supervisor’s reply was that this was a complicated issue, and that consideration was being given to the appropriate action. The maintenance supervisor stated that the CCS and BAT would be informed on what action will be taken.
The CCS and BAT discussed the issue and decided that:
a) There was a significant health risk.
b) If someone became ill from drinking contaminated water from this drinking fountain, they could face criminal charges and/or a lawsuit for damages.
c) As certified operators, they had a responsibility to take action. Failure to do so could result in their loss of certification.
To obtain action, they notified the local newspaper of the situation. This was done under the understanding from the reporter that the newspaper would not disclose their names. Unfortunately, the newspaper credited the story to the two employees.
Shortly after the newspaper article was published, the parks department dismissed both the CCS and BAT for “exceeding their authority” and “failing to follow the instructions of their supervisor”.
The CCS and BAT options included, but were not limited to the following:
1) Limit their actions to providing a memo describing the situation and their concern to their immediate supervisor.
2) After another two to three weeks, send a second memo to their supervisor.
3) Not wait any longer, go over the head of their immediate supervisor and notify the head of the Parks Department.
4) Inform the mayor and council.
5) Inform the local health inspector and/or plumbing inspector.
6) Inform the WA Department of Health.
7) Ask their union to intercede and communicate their concerns to the head of the Parks Department and mayor.
8) Notify the news media.
9) On their initiative, disconnect the drinking fountain.
Part 2 of the hypothetical case history was presented at the February 24, 2004 SRC4 Seminar. The following is a summary of the material presented and ensuing audience discussions.
In determining what to do in a situation of this nature, the following should be considered:
Ø Health Issues – actual versus potential risk
Ø Regulatory Issues - WA DOH (WAC 246-290-490), LAA (Plumbing Code)
Ø Legal Issues – relating to employee’s actions or inactions
Ø Human Resources Management Issues
The degree of hazard posed by cross connections varies. For a water supply to become contaminated, the following four situations must occur simultaneously:
1. A contaminant must be present.
2. A physical connection must exist between the pipe, vat, etc., containing the contaminant.
3. The backflow prevention assembly must fail to perform or the cross connection is not isolated by a backflow preventer from the potable supply.
4. A backflow conditions must occur either by backsiphonage or back pressure.
An immediate risk to public health was not apparent with the connection of the drinking fountain to the turf irrigation system. Two of the four conditions noted above were present (physical condition present and no backflow protection of the potable water system). A microbiological contaminant, e.g., coliform bacteria, may have been present, but this information was not ascertained. No backflow was observed, nor were there indication of any previous backflow condition.
The risk to public health from the supply of the drinking fountain is relative to other cross connections. If the turf irrigation system had chemical injection (e.g., herbicides or insecticides) or was connected with a pumped auxiliary supply (e.g., irrigation pond), the public health risk would be much higher.
Similar to other cross connections, lawn or turf irrigation systems without a backflow prevention assembly, with an unapproved backflow prevention device, with an assembly that was not tested when required by the purveyor, etc., are often found in the purveyor’s system. The urgency to install a backflow prevention assembly or take other corrective action is relative to the assessed hazard. This assessment is subjective.
In the hypothetical case history presented, there is a clear need to remove the drinking fountain from the irrigation system. The issue is not the need for action. The issues are the risk to public health until the corrective action is taken and the person with both authority and responsibility to initiate action.
Protection was provided to the water purveyor’s system by the installation of a reduced pressure backflow prevention assembly on the service. The WA Department of Health, Division of Drinking water does not have jurisdiction in this matter. However, WA DOH regulations can be used to provide guidance on the assessment of risk. The following from WAC 246-290-490 are relevant in establishing “standard practice”:
Table 9 assesses a high health hazard only to “Premises with separate irrigation systems using the purveyor’s water supply and with chemical addition”. Chemical addition was not established in the park system.
Under Section (6)(e) where the purveyor identifies a high health hazard, the customer shall be notified to install an RPBA within 90 days or with an alternate schedule acceptable to the purveyor (longer or shorter period). For a low health hazard, the purveyor shall require the installation of a backflow preventer within a schedule acceptable to the purveyor.
Using the above WA DOH regulations as a guide to “standard practice”, the Parks Department’s delay in removing the drinking fountain was acceptable.
The maintenance supervisor’s reply was that this was a complicated issue, and that consideration was being given to the appropriate action. This indicates that the maintenance supervisor and possibly other levels of management were taking responsibility for the risk in delaying action. Unfortunately, this information to the CCS and BAT was not in writing.
The Parks Department, as owner of property containing the irrigation system, has the obligation to comply with regulations. The elected officials of the government body (Parks Department) have authority and ultimate responsibility for the irrigation system installation, modification and maintenance. This authority and responsibility includes the issue of the removal of the drinking fountain connection to the irrigation system.
The WA Department of Health, Division of Drinking Water (WA DOH) has jurisdiction over the operation of the public water system (Purveyor). This jurisdiction ends at the point of delivery of water to the Purveyor’s customer (Parks Department). The public water system was protected by the installation of a reduced pressure backflow assembly located on the irrigation service. Therefore, the issues of public health risk and compliance with regulations fall under the jurisdiction of the local administrative authorities (LAA), specifically the local health and plumbing inspectors. In this case of a potable water supply from an irrigation system, although not within their jurisdiction, if the WA DOH has knowledge of a plumbing cross connection, it has an obligation to inform the LAA.
The local authorities have an obligation to inspect and enforce compliance with regulations. In the case of a potable water supply from an irrigation system, the local plumbing inspector would have jurisdiction. Once a plumbing system has been approved, the plumbing inspector would not make a subsequent inspection without cause. If reported by the CCS, WA DOH staff, or others, that the irrigation system supplied potable water, the plumbing inspector would have grounds for inspection and ordering removal of the potable water connection removal from the irrigation system. Where necessary, the plumbing inspector could take enforcement action through the courts.
The CCS and BAT stated a legal concern that if someone became ill from drinking contaminated water from this drinking fountain, they could face criminal charges and/or a lawsuit for damages. The following RCW is often cited in training courses:
R.C.W. Chapter 70.54.020
Furnishing impure water – penalty
Every owner, manager, operator or other person having charge of any waterworks furnishing water for public or private use, who shall knowingly permit any act or omit any duty or precaution by reason whereof the purity or healthfulness of the water supplies shall become impaired, shall be guilt of a gross misdemeanor.
(Gross misdemeanor – up to $5,000 fine and/or up to 365 days in jail)
Although the CCS and BAT felt a responsibility for the operation of the Park’s system, they were not the “person having charge of any waterworks”. The CCS and BAT discharged their responsibility to the Parks Department by notifying their supervisor (in writing) of the cross connection and potential health risk. They did not have the authority of their employer to take any other action.
The CCS and BAT were concerned that their failure to take action could result in their loss of WA DOH certification. They displayed their competence by recognizing the cross connection. They discharged their responsibility as a CCS or BAT to take action by notifying their supervisor. There are not grounds for suspension or revocation of certification.
Once the CCS and BAT were discharged, the legal issue arose of “whistleblowers” protection for wrongful discharge. The following significant points pertain to whistleblowers protection:
1) In the State of Washington, without an employment contract, employment is at the “will of the employer”. For protection, the employment contract, either for an individual employee or group (union contract), would need to address the issue of grounds for suspension or termination, and resolution of dispute for an employer’s action without just cause.
2) Public employees, e.g., cities, water districts, etc., are covered by the Local Government Whistleblower Act, R.C.W. Chapter 42.41. The act covers the issues of violation of federal, state or local laws, and specific danger to the public health or safety. In this case, it is:
a. Necessary for the CCS and BAT to be right (i.e., there was a specific danger to public health).
b. Helpful for the CCS and BAT to contact supervisors/officials before the media.
3) Under this statute, local governments are required to adopt policy and post procedures summarizing:
a. List of persons to contact.
b. May require report to public official first, otherwise lose protection of statute,
c. Allow for emergency exception.
d. Provide for employee that feels retaliation has occurred to request a hearing within 30 days. The statute sets up the hearing procedures.
The public health issue was discussed previously. The contact made to the immediate supervisor may not be sufficient to ensure protection under the statute. No further effort was made to contact a more senior manager or an official before notifying the media.
Human Resources Issues
An employer should provide job descriptions, employment policies/guidelines that include procedures for an employee to resolve disputes with an immediate supervisor, guidance counseling by the human resources staff, etc. Small public utilities, including small public agencies such as water districts, seldom have job descriptions, least of all policies, employment manuals, etc. Even for large employers with policies that deal with the issues faced by the CCS and BAT, there is still the human behavior factor that must be considered by all employees.
In a perfect employment environment, a good employer, with well-trained managers, may look at the issue of the CCS and BAT notifying the media as a need for:
In the real world, the CCS and BAT should understand that:
§ Their immediate supervisor would not appreciate any of the other options listed in Part 1 (e.g., inform the mayor, WA DOH, etc.) that were not taken by the CCS and BAT.
§ Senior management, mayor, etc., could be embarrassed and not react favorably to the media being informed, particularly where an effort was not made to contact them.
Even where protection is provided under a whistleblowers statute, supervisors may not forget an incident. Although an act of overt retaliation may not occur, a future decision may be influenced by the incident. For example, where two employees are being considered for promotion, although not stated as a reason for not being selected, the incident with the CCS or BAT may be a “career limiting move”.
Ultimately, each person must decide on what course of action to take, knowing that there are consequences to every decision, whether it is to take an action that may be a “career limiting move”, or not to take a further action (than to pass the responsibility for action to a supervisor) that may have prevented a backflow incident that caused someone to be harmed.
A poll of the audience at the SRC4 Seminar revealed that the vast majority would have taken additional steps before notifying the media, and some indicated they would have then notified the media and/or would have on their own initiative, disconnect the drinking fountain. Of course this is an easy decision to make in a hypothetical case study.