25 Reasons to Ban Residential RP Backflow Valves

Here are 25 reasons why RP valves should be totally banned from residential areas.

If you find this page of interest, you might also find my two companion pages of interest:
Backflow Videos and General Backflow Information

Each reason below is given as a simple sentence or two. But if you click on the underlined Reason #, you can read the full background of the reason.

Backflow events are extremely rare.

Reason 1:
Florida has a population of over 18.5 million people. No one in Florida has ever died from a backflow incident!

Reason 2:
Hillsborough County, Florida has a population of over 1 million people. No one in Hillsborough County has ever even gotten sick from a backflow incident!

Reason 3:
Data cited by the DEP shows that there is an average of just one backflow incident per year in Florida.

RPs are dangerous.

Reason 4:
RPs provide direct access to the public water supply.

Reason 5:
National publications recognize that direct access to public water supplies (as through RPs) is a dangerous situation.

Reason 6:
Residential RPs are considered dangerous by officials from:

  • the Water Utility,
  • the County,
  • the Florida Department of Health (DOH) and
  • the Florida Department of Environmental Protection (DEP).

Reason 7:
Residential RPs are considered dangerous by the University of Florida.

Reason 8:
At any given moment, 1 out of 8 RP valves "fail to function properly".

Reason 9:
RPs may “dramatically fail”.

RPs violate a number of state and federal laws.

Reason 10:
Federal rules do not require homeowners to install RP valves.

Reason 11:
RPs violate the Patriot Act.

Reason 12:
RPs violate the Bioterrorism Act.

Reason 13:
RPs violate Section 403.851(3) F.S. (Florida Safe Drinking Water Act) by:

  • failing to provide safe drinking water at all times,
  • failing to give due regard to economic factors and
  • failing to consider efficiency in government.

Reason 14:
RPs violate Section 120.52(8)(f) of the Florida Statutes because of their cost.

Reason 15:
DEP doesn't have the authority to grant utilities the right to "more stringent regulations". CHECK QUOTE

RPs have a negative impact on utilities.

Reason 16:
RPs are an unfunded mandate.

Reason 17:
RP monitoring and reporting requirements are excessive.

  • Does Home Rule Alter the Reporting Requirements?

Reason 18:
RP regulations can increase a utility's debt and debt service costs.

Reason 19:
RPs are a liability to utilities.

Reason 20:
Backflow incidents through RPs moot Sovereign Immunity.

Reason 21:
RPs can lower a utility's bond rating.

RPs have a negative impact on homeowners.

Reason 22:
RPs, which must be above ground and adjacent to the water meter, are subject to a number of physical problems including:

  • RPs are easily damaged by careless drivers who run over them with their vehicles,
  • RPs are easily damaged by lawn-care crews who drive over them with their mowers,
  • RPs are easily sheared off by air-borne debris during hurricanes,
  • RPs are easily damaged by freezing temperatures in our more northern counties,
  • RPs are easily stolen - to be sold as scrap metal to buy drugs,
  • RPs are a hazard to walkers and joggers,
  • RPs are an eyesore,
  • RPs cause utility system disinfectants to deteriorate,
  • RPs have a high pressure drop across the valve and
  • RPs may cause hot water tanks to explode.

Reason 23:
Plumbers charge whatever the traffic will bear for installing RPs.

Reason 24:
Annual RP testing and maintenance is expensive and often corrupt.

Reason 25:
Scaring citizens into embracing RPs is like scaring citizens into buying home water treatment systems.

rainbow

 

Reason 1: Florida has a population of over 18.5 million people. No one in Florida has ever died from a backflow valve incident!

The DEP held five workshops around the state to seek guidance on revising the rules regarding backflow valves. These workshops were held at West Palm Beach (8/7/2008), Sanford (2/18/2009), Temple Terrace (7/8/2009), West Palm Beach (7/9/2009) and Tallahassee (7/21/2009). As part of each workshop, DEP gave a PowerPoint presentation about backflow. At the Sanford workshop, the lower part of slide 17 was about the city worker in Belle Glade who died from drinking insecticide. The DEP tried very hard to cast it as a death caused by a backflow incident.

Slide about drunk.

However, the Associated Press news report (6/26/1988) that was published on 6/26/1988 in "The Gainesville Sun", the "Tampa Tribune" and the "St. Petersburg Times" told a somewhat expanded and very different story.

Article from St. Petersburg Times.

Note that the faucet was tested and didn't show any trace of pesticide! In fact, the article even quotes the Belle Glade Public Works Director Frank Green as saying "We took water right out of the faucet and didn't get a trace (of pesticide).” And the Chief Medical Examiner's report showed that the worker died of "complications due to insecticide intoxication and chronic alcoholism" and that his blood-alcohol level at the time was .23%, which is almost three times Florida's legal limit of .08%. It doesn't take a rocket scientist to figure out that a drunk took a swig from a bottle of insecticide and died. And even if one ignores all of the actual circumstances, such an incident would have been prevented by a simple $4 hose-bib relief valve on the faucet, not by a $700 RP valve out by the road.

Some states do not require residential backflow prevention devices. These states include Arizona, Mississippi, Missouri, Utah and Wyoming. The Wyoming rule is very succinct as to why:

"The prevention of one death in 143 years at a cost of $1.3 billion dollars does not justify the mandatory installation of back flow devices on residential and domestic non-residential services."

Florida has 35 times the population of Wyoming, has been around even longer and has never had even one death. Here is the full Wyoming ruling:

Wyoming decision - page 1.

Wyoming decision - page 1.

The next to last sentence sets forth that mandatory installation of any backflow devices is not justified. The last sentence allows local governments to "implement more restrictive measures". However, this would not be allowed in Florida if it were a more expensive measure because of Section 120.52(8)(f) of the Florida Statutes which mandates that a local government cannot specify to a “regulated person” an alternate backflow device or requirements that are more costly. See Reason ?? for a broader explanation of Section 120.52(8)(f).

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Reason 2: Hillsborough County, Florida has a population of over 1 million people. No one in Hillsborough County has ever even gotten sick from a backflow valve incident!

On July 30, 2007, a Public Records Act request was made to the Hillsborough County Health Department for “the last twelve documented instances in residential areas in which water was pumped from a lake or well and entered the Hillsborough County's water supply and made people sick.” They were unable to supply any documents to satisfy the request.

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Reason 3: Data from the United States Environmental Protection Agency (USEPA) and sanctioned by the DEP indicates that there is an average of just one backflow incident per year in Florida.

The DEP’s Sanford Slide #17 states that the “USEPA has compiled data on 459 backflow incidents that occurred in U.S. from 1970 to 2001 & that resulted in estimated 12,093 illnesses.”

EPA data.

When 12,093 illnesses are prorated for the number of years and the population of Florida, it works out to an average of one backflow incident per year in Florida. And that one incident could be commercial, agricultural or residential. If that one incident happens to be the latter and it happens to emanate from a property that pumps its own irrigation water and the valve isn't that 1 in 8 valves that the DEP states is in a failure model at any given moment, then maybe, the backflow might be prevented. In other words, the installation, testing and maintaining of 170,000 residential RPs at a cost of hundreds of millions of dollars will maybe keep one person from getting diarrhea per year. Ta-daa!

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Reason 04: RPs provide direct access to the public water supply.

Direct access image.

This is a Reduced Pressure Zone (RP) backflow file. It is also known as a reduced-pressure principle backflow preventer. It can cost up to $700 to have one installed - depending on the honesty of the plumber. It is very complicated and prone to failure.

The DEP describes the RP valve as having "internal seals, springs, and check valves that are subject to fouling, corrosion, wear, or fatigue. Depositing water and tuberculation build-up, as well as foreign material such as sand grains, can foul check valves or can clog sensing lines in reduced-pressure principle backflow preventers. Corrosive waters can disintegrate metal parts. Even the simple movement of water through backflow preventers can cause wear on parts."

The DEP has stated that at any given moment, 1 out of 8 RP valves "fail to function properly". No wonder! Because it has so many parts that can go bad, it must be tested and maintained annually. According to the University of Florida, the cost for the annual testing and maintenance can range from $60 to over $840 - again depending on the honesty of the tester.

The valve must be mounted above ground and adjacent to the water meter. This means that typically, it is at the front of the lawn next to the sidewalk and street. Note the four access ports on top. The port on the left gives terrorists, disgruntled people and pranksters direct access to inject lethal chemicals and bio-toxins into a neighborhood's drinking water supply. This is because utilities usually operate their distribution system at a pressure of about 70 psi. Obviously, if a terrorist can pressurize a container of lethal chemicals or bio-toxins to more than 70 psi and has the right plumbing fittings (which are available at Home Depot and Ace Hardware), the greater pressure will overcome the utility's pressure and backfeed the chemicals or bio-toxins into the public water supply. It ain't rocket science!

Water utilities go to great lengths to ensure that the water leaving their treatment plants is 99.9% pure. Technically, this is referred to as achieving a "four log inactivation of viruses before point of entry into the distribution system." This is accomplished through high level filtration to remove small particles that can harbor protozoa and the use of chlorine, chloramines, and chlorine dioxide to kill or inactivate blue algae, e. coli, fecal coli, giardia, cryptosporidium, legionella and various other critters. The chlorine residual drops once the water leaves the treatment plant depending on distance, ground temperature and water consumption. For example, on my street in the middle of summer with many of the residents up north, the chlorine residual level dropped to zero. The water smelled so bad that one lady on the street commented that her bathroom smelled worst after she flushed. (The utility remedied the situation by installing a flushing whip at the end of our street and embarking on an aggressive flushing protocol.)

The chlorine residual in a system's distribution system is there to protect against minor microbial contamination, not major contamination events. And higher levels of chloramine residues are not permitted because they break down into carcinogens. So, if a terrorist backfeeds a lethal chemical or bio-toxin into the distribution system, there will not be sufficient residual or contact time to render the inactivation of contaminants before it is ingested by the public. In fact, there are certain chemicals and pathogens that aren't even affected by chloramine residues. (That's why outside faucets are not permitted on reclaimed water for irrigation systems because of the fear that someone, particularly children, might drink it. Reclaimed water is sewage water that has been highly chlorinated, but still contains active and harmful pathogens.)

So, armed with all this knowledge, two facts become abundantly clear.

  • First is that whatever a terrorist, disgruntled person or prankster backfeeds into a public water supply through an RP isn't going to be neutralized.
  • Second is that given the high failure rate of RPs, which the DEP reports to average 25% per year, the innocent backfeed of pesticide through a garden hose or lake water through a cross-connection of an irrigation system isn't going to be neutralized, either.

RPs aren't the answer to anything, except to provide income to plumbers and testers!

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Reason 5: National publications recognize that direct access to public water supplies (as through RPs) is a dangerous situation.

Tim De Young and Adam Gravley, who are partners in the Seattle office of Preston Gates and Ellis, LLP wrote an article titled “Coordinating Efforts to Secure American Public Water Supplies” that appeared in the American Bar Association’s “Natural Resources and Environment Journal”, Volume 16, Number 3, Winter 2002. They wrote that:

“While it may be relatively easy to protect water sources and treatment plants from contamination, extensive distribution systems provide multiple access points. … Some water utility officials believe that the leading threat to the nation's water supply may be the use of backflow pressure to introduce poisons into local water distribution systems.”

WaterTechOnline.com reported on a Water Security Summit that was held in Hartford, CT in 2001. One of the speakers was Mike Hightower of Sandia National Laboratories, a member of the technical staff for the lab's Energy and Critical Infrastructure program. He spoke about the Vulnerability Assessment Process. The report of his speech quotes Mr. Hightower as stating that:

“The distribution system is the point that is probably most vulnerable to terrorists. … 'Guards, guns and gates' are not sufficient when it comes to terrorism.”

Gay Porter Denileon, a member of the National Critical Infrastructure Protection Advisory Group, wrote an article titled “The Who, What, Why, and How of Counterterrorism Issues” that appeared in the Journal of the AWWA, Vol. 93, May 2001. She wrote:

“One [individual] 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.”

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Reason 6: Residential RPs are considered dangerous by officials from:

  • the Water Utility,
  • the County,
  • the Florida Department of Health (DOH) and
  • the Florida Department of Environmental Protection (DEP).

I have a dog-and-pony show about the vulnerabilities of backflow valves that I take around to various community groups. It includes an actual demonstration of just how easily bio-toxins and lethal chemicals can be backfed into a neighborhood’s drinking water supply. You can view the demonstration by going to www.backflowvideos.org and clicking on Demonstration.

Demonstration rig.

In this photograph, I have just backfed a deadly chemical (cherry Kool-Aid) from a $30 pressure rig, at 125 psi, through a test port on the RP valve into the public water supply (the Tupperware container). When this happens for real, if residential RPs are left in the DEP's regulations, instead of the small fire extinguisher tank, the pressure vessel would probably be an air compressor tank from Home Depot with pressure supplied by a paintball gun gas cartridge, all of which would fit in the trunk of a car. I ain't never went to any of them thar fancy engineer schools, but overcoming the normal 70 psi in a public water supply in order to backflow bio-toxins and deadly chemicals through an RP is a pretty easy task. With all the engineering prowess available at the utilities, counties, the Department of Health, the Department of Environmental Protection, the University of Florida and at the federal level, one would think that devices, like RPs, that provide direct access to the public water supply from out-of-the-way places would be totally banned. But then again, maybe engineers and the safety of the drinking water supply take a backseat to the special interest groups that favor RPs. A number of government officials from my Water Utility, my County, the Florida Department of Health and the Florida Department of Environmental Protection were very upset by my presentations that questioned the wisdom of putting RPs at the front of lawns in residential areas. These officials exchanged a number of internal emails among themselves about my activities. The pattern that emerged was that county and state civil servants publicly preached the virtues of RPs while using every conceivable tactic to squelch any comment to the contrary. The most hurtful tactic they used was to contact law enforcement about my speaking out.

For example, Stacy Williams, a Community Relations Coordinator with Hillsborough County related that:

"Bob DeCecco [Hillsborough County’s Cross-Connection Control Coordinator] is contacting FDLE [Florida Department of Law Enforcement] and Homeland Security and reporting [Brown] to them, because he continues to publish these demonstrations."
Cindy Morris, the Environmental Administrator with the Florida Department of Health, wrote:
"We will be speaking with this individual [Brown] at the next cross connection control meeting to ensure our concerns are voiced regarding his e-mail & possible FDLE [Florida Department of Law Enforcement] involvement if he should continue this effort."
Wally Hill, the Assistant County Administrator for Hillsborough County, wrote:
"I asked the Sheriff's Office this weekend to contact Homeland Security regarding Mr. Brown's activities."

Perhaps the most hurtful action of all was Van Hoofnagle, the Administrator of the Drinking Water Program for the Florida Department of Environmental Protection, when he wrote:

"I would also refer the email to Law Enforcement as I have done by copy of this email to our DEP contact at Emergency Response. Van - P.S. Phil [Wieczynski] would [you] take a look at this and forward to the appropriate contacts you have in law enforcement?"
Hoofnagle is the person who is guiding the direction that the revised regulations will take. At the moment, he still has residential RPs in the draft.

It seems the height of civil servant hypocrisy for these officials to publically endorse RPs while using their official positions to get a citizen in trouble and causing him to have a criminal record. And indeed, I did get a visit from the FBI. But after I gave them the demonstration, they agreed with me and left. And all this for speaking out against residential RPs!

Stacy Williams, with the County's Communication department, summed it up best:

"Brown's reasoning is if above-the-ground backflow valves are that dangerous
that we don't want him showing it, then they shouldn't be in people's yards."

Citations to these internal government emails and other smoking gun emails are available at: www.backflowvideos.org/smoking-guns.pdf

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Reason 7: Residential RPs are considered dangerous by the University of Florida.

Back on July 2, 2007, Hillsborough County had a “seminar” about backflow valves. Les O’Brien from the University of Florida's Center for Training, Research, and Education for Environmental Occupations (TREEO Center) was there. The TREEO Center conducts a number of classes about water and sewage matters. The DEP considers O’Brien to be “a nationally recognized expert on backflow prevention and cross-connection control.” I took my backflow demonstration rig to the seminar to demonstrate to the attendees just how easy it is to backflow a contaminate through an RP valve into the public drinking water supply. I was prohibited from giving my demonstration by Hillsborough County’s Bob DiCecco. However, O’Brien told me that he had built a similar, though more robust, rig that he took to Homeland Security and law enforcement seminars to demonstrate the ease of contaminating a public water supply.

Fast forward to May of 2010… When I heard that O’Brien had recently retired, I sent him an email asking about his rig:

“Now that you're retired, whatever happened to it? Do you still have it? Did you 'will' it to the University? Or did it end up somewhere else?”
He responded with:
“That equipment belongs to TREEO Center. It is well hidden. I only show it to Homeland Security folks and law enforcement agencies.”

I then sent an email to Director Hinton of the TREEO Center:

“Based on Les' response, you have the device I was asking him about. Would you please confirm that it is in TREEO's possession? And, I would very much appreciate your keeping it intact for the next few years in case it's ever needed as evidence in any sort of future legal action to demonstrate that you, as a state official, and the TREEO Center are very much aware of the way that RP (RPZ) valves can be used by terrorists, disgruntled people and pranksters to inject bio-toxins and deadly chemicals directly into public water supplies.”
She didn’t respond, so I wrote again:
“Over a week ago I sent you an email asking about the location of piece of TREEO equipment. I have not yet received a response from you. Since this device may figure prominently in the recognition by a state official of the vulnerability of RP backflow valves, I hope that you will devote some time to locating and securing the item, since as Mr. Les O'Brien, a former employee of yours, notes: ‘That equipment belongs to TREEO Center.’"

Her response a week later was:

“After researching your request, I am afraid that the information you received from Mr. O’Brien is not correct. He did devise a small device using a water filter, but not a large device. This has been dismantled and is no longer a problem. Please remove the reference to the University of Florida from your videos since it is not accurate and makes UF/TREEO vulnerable to a potential terrorist.”

The Director’s decision to dismantle the rig was an arrogant act and unbecoming of a civil servant. But, on the bright side, it certainly is confirmation that a state official with respected knowledge about RPs recognizes that such a rig is useful to terrorists who are intent on contaminating a public water supply with deadly chemicals or bio-toxins. And if the DEP does include RPs (and Double-check) valves in the residential choices in their final revision and if the whole matter ends up in a court somewhere, I look forward to Director Hinton's testimony since it will be such a direct and powerful confirmation by an official very familiar with water matters that these valves don’t belong in residential areas.

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Reason 8: At any given moment, 1 out of 8 RP valves "fail to function properly".

RPs are very complicated with many parts that can fail. The DEP prepared an official statement concerning the unreliability of Reduced Pressure Zone backflow valves (RPs) in response to a question from a member of the Florida Senate as to why the time between testing RPs shouldn’t be five years, instead of one. The statement was sent by John Sowerby on 4/1/2005 to Geofrey Mansfield and Brian Welch (DEP’s lobbyist to the Florida Senate) for presentation to the Senator. Here it is:

"Mechanical backflow preventers have internal seals, springs, and check valves that are subject to fouling, corrosion, wear, or fatigue. Depositing water and tuberculation build-up, as well as foreign material such as sand grains, can foul check valves or can clog sensing lines in reduced-pressure principle backflow preventers. Corrosive waters can disintegrate metal parts. Even the simple movement of water through backflow preventers can cause wear on parts. Therefore, testable mechanical backflow preventers must be tested periodically to ensure that the internal parts of the backflow preventers are functioning properly. All manufacturers of backflow preventers, the U.S. Environmental Protection Agency, the American Water Works Association, the American Backflow Prevention Association, the American Society of Sanitary Engineering, and the National Fire Protection Association, as well as the International Plumbing Code and Florida Building Code, recommend or require that testable mechanical backflow preventers be tested at least annually (or more frequently). Less frequent testing of testable mechanical backflow preventers will result in both an increased number of these backflow preventers failing to function properly between tests and an increased period of time during which these backflow preventers are not functioning properly. According to Les O'Brien, an instructor at the University of Florida's Center for Training, Research, and Environmental Occupations and a nationally recognized expert on backflow prevention and cross-connection control, the percentage of testable mechanical backflow preventers failing to function properly during any year typically ranges between 10% to 40% and increases about 10% each year a backflow preventer is not tested. Therefore, after five years, the percentage of testable mechanical backflow preventers failing to function properly may be between 50% and 80%. When a mechanical backflow preventer fails to function properly, it may or may not still prevent backflow depending on the type and degree of failure."
The “10% to 40%” failure rate averages out to a 25% yearly failure rate. An RP failure rate of 1 out of 4 (25%) to protect a public water system from contamination is very troubling, from both a safety and liability standpoint. From a statistical point of view, 25% means that at any given moment, 1 out of 8 RP valves are failing to function properly. As to whether the failure to function properly means that the RP "may or may not still prevent backflow", the fact that the DEP's recommendation was for continued annual testing is a pretty good sign to me that "failing to function" RPs generally don't prevent backflow - otherwise DEP would have recommended every two, or even every five, year testing.

I can’t think of any discipline concerned with the safety of individuals, including aviation, railroads, highways, automobiles and even the disinfecting of a public water supply, that would abide a 1 in 8 chance of "failure to function" at any given moment.

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Reason 9: RPs may “dramatically fail”.

According to a 4/1/2005 email from Mark Krouse, Water Treatment Division, Charlotte, NC to John Sowerby, Florida DEP:

“A dramatic failure of the RP will allow a full discharge continuously until the water to the RP is turned off. Lots of water is wasted (water conservation concern). Customer expense for property damage and water used. Water purveyors expense for any water bill write-offs, increased water treated and wasted. A repair will need to be made before water can be reactivated. Customer will be inconvenienced.”

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Reason 10: Federal rules do not require homeowners to install RP valves.

"The Feds do not have rules requiring how a Cross-Connection Control program must be administered." This quote is from an email written by Les O'Brien who was a Senior Training Specialist at the University of Florida’s Center for Training, Research, and Education for Environmental Occupations (TREEO Center) until his recent retirement. The email was to Bob DiCecco, Hillsborough County's Cross-connection Control Manager - 9/5/07.

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Reason 11: RPs violate the Patriot Act.

The DEP's regulations provide “material support and resources” to terrorists, which is a violation of the Patriot Act. DEP's regulations do this by providing the access weapons (RPs) and an open invitation for terrorists to contaminate the public drinking water supply.

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Reason 12: RPs violate the Bioterrorism Act.

The DEP's regulations promote “adversarial actions that might substantially disrupt the ability of a system to provide a safe and reliable supply of drinking water.”, which is a violation of the Bioterrorism Act. DEP's regulations do this by providing the means (RPs) to disrupt the ability of a system to provide safe drinking water.

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Reason 13: RPs violate Section 403.851(3) F.S. (Florida Safe Drinking Water Act) by:

  • failing to provide safe drinking water at all times,
  • failing to give due regard to economic factors and
  • failing to consider efficiency in government.

Section 403.851(3) of the Florida Statutes (Florida's Safe Drinking Water Act) states:

"Declaration of policy - It is the policy of the state that the citizens of Florida shall be assured of the availability of safe drinking water. ... Without any relinquishment of Florida’s sovereign powers and responsibilities to provide for the public health, public safety, and public welfare of the people of Florida, the Legislature intends: (3) To provide for safe drinking water at all times throughout the state, with due regard for economic factors and efficiency in government."

First, given the official statement by the DEP’s John Sowerby about RP failure rates which showed that from a statistical point of view, at any given moment, 1 out of 8 RP valves are "failing to function properly", reconciling the providing of safe drinking water at all times with his stated failure rates for RPs seems like a real reach.

Second, the DEP is required to consider the “economic factors” related to the installation, testing and maintenance of RPs (compared to Automatic Meter Reading (AMR) water meters). When an agency creates or revises a regulation, it is required to prepare a Statement of Estimated Regulatory Costs (SERC) on small businesses. And yet, DEP does not plan to estimate the cost on homeowners even though it will run into hundreds of millions of dollars. How in the world can the DEP ever hope to give due regard to economic factors, as required by law, if they’re unwilling to consider the costs to homeowners to install and annually test and maintain RP valves?

Third, the DEP is required to consider efficiency in government. The 07/01/2009 Draft Regulations create reporting requirements that only a career bureaucrat could love. See Reason 37 for additional information. The reporting requirements were the main complaint by utility personnel at the workshops. And according to Slide 20 at the Sanford workshop, the DEP doesn't even expect utility workers to be honest about their reporting, anyway!

Slide about poor reporting.

The DEP has already acknowledged that an average of 25% RPs "fail to function properly" each year. And this rate along with backflow incidents will go on month-after-month, year-after-year as succeeding valves continue to succumb to all the problems that can plague them. If AMRs are used instead of RPs, there will be little need for any reporting because all cross-connections will be detected and resolved within 30 days of the AMR's installation.

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Reason 14: RPs violate Section 120.52(8)(f) of the Florida Statutes because of their cost.

Section 120.52(8)(f) of the Florida Statutes precisely states:

“A proposed or existing rule is an invalid exercise of delegated legislative authority if the rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives.”

The DEP has already laid out a number of “alternatives” that they have found to “substantially accomplish the statutory objectives”. These are in Tables 1 & 2 of their 07/01/2009 Draft Regulations.

DEP Table 1.

DEP Table 2.

Having laid out a number of eligible devices, DEP’s task, in order to conform with Section 120.52(8)(f), is to determine for each of the six cells of Table 1, the alternatives that are the “less costly”.

Likewise, all utilities that are also required to obey the Florida Statutes and the Florida Administrative Code, must also abide by the “less costly alternatives” mandate. This would include utilities owned by municipalities and counties.

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Reason 15: RPs may “dramatically fail”.

The DEP does not have the authority to authorize a CWS [Community Water Systems] to violate the Florida Statutes by establishing and implementing written cross-connection control programs with more elements, or more stringent requirements, if those elements are not the less costly alternative (Section 120.52(8)(f) F.S.). The DEP’s 07/01/2009 Draft Revision uses the phrase “as stringent as” or “more stringent than” three times to let utilities range beyond the regulations. In particular, on page 12 of the draft: “(b) CWSs [Community Water Systems] may establish and implement written cross-connection control programs with more elements, or more stringent requirements, than those described in paragraph 62-555.360(5)(a), F.A.C. Paragraph 62-24 555.360(5)(a), F.A.C., establishes minimum requirements for written cross-connection control programs and does not prohibit CWSs from establishing and implementing programs with more elements or more stringent requirements.” The Department of Environmental Protection does not have the authority to allow a utility to violate Section 120.52(8)(f) of the Florida Statutes by authorizing any backflow devices or requirements that are are not "the less costly alternative".

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Reason 16: RPs may “dramatically fail”.

Likewise, and because of that same statute, a utility does not have the authority to specify to a “regulated person” an alternate backflow device or requirements that are more costly. Likewise, a utility does not have the authority to specify to a “regulated person” an alternate backflow device or requirements that are more costly.

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Reason 16: RPs illegally delegate the responsibility for safe drinking water.

All Florida water utilities accept the responsibility to deliver a safe product to their customers. That responsibility cannot be ignored.

Section 403.851(3) of the Florida Statutes (Florida's Safe Drinking Water Act) declares that:

"... the Legislature intends to provide for safe drinking water at all times throughout the state."

The DEP has developed a Source Water Assessment and Protection Program (SWAPP) based on the federal Safe Drinking Water Act as amended in 1996. "The program is meant to ensure that not only is the water at your tap is safe to drink, but also that the source is protected."

The yearly Water Quality Reports from utilities, like that from my own utility, state the intention that "Our goal is to provide you with a safe, dependable supply of drinking water."

Paul Vanderploog, Director of the Hillsborough County Water Resource Services, wrote:

"As system operators we have the safety and well being of our customers at the top of our list. Thus, we fully accept the responsibility to police our operating systems and stand accountable for the system's operation. … I would not expect our customers or other external agencies to be responsible for the operational issues, to include water quality, safety, etc., associated with the operation of the County's potable water system.”

Note that the Director accepts that his utility, not the customers, is responsible for the water quality and safety of the potable water system. I trust that all utilities accept this responsibility. Please let me know by email if yours doesn't.

Despite many laws and a lot of posturing about safe water, the DEP’s current regulations don't really call for a utilities to provide safe water "at all times". For example, no provision is made for safe water once it leaves the confines of the treatment plant. Oh sure, it has a little chlorine in it. But, according to the DEP, even "the chlorine residual required in a system's distribution system is [only] to protect against minor microbial contamination." There is no required infrastructure device, like an AMR with a Dual-check valve, to protect me from deadly chemicals or biotoxins emanating from my neighbor’s property, either inadvertently or intentionally - or from a backfeeding terrorist, disgruntled person or a prankster. A neighbor’s RP that has been failing for the better part of a year without detection doesn’t exactly conjure up images of a safe drinking water supply for the rest of the community. Nor does having RPs along dimly lit residential streets that provide terrorists with direct access to the public water supply inspire confidence If the ultimate goal is to provide the delivery of safe drinking water to my premises, who should be held responsible for the integrity of that goal – the utility or my neighbor? I'd sooner put the responsibility on the utility, as does the law, than on my neighbor.

Regulations must be based on logic and facts (Section 120.52(8)(e), Florida Statutes). The inclusion of dangerous RPs that the DEP recognizes to have an annual 25% "fail to function properly" rate in the current regulations is a violation of Section 120.52(8)(e) of the Florida Statutes and indicates that DEP has wandered outside of its regulatory authority. And regulations that ignore federal acts, like the Patriot Act and Bioterrorism Act, must not be promulgated. The DEP does not have the authority to bypass such federal laws, by including RPs in their regulations. By doing so, DEP is providing “material support and resources”, i.e. the weapons (RPs) and an open invitation for terrorists to contaminate the public drinking water supply. And state officials have amply demonstrated, in a number of ways, that they are very much aware of the dangers of residential RP valves (See Reason ?????). Including RPs in the regulations is the same as if the Florida Department of Environmental Protection handed out radioactive material, blocks of C4 explosive and detonators so that terrorists could make dirty bombs.

Three Concerns: Given the official internal emails and actions at all levels of government that acknowledged that residential RPs are dangerous, is the DEP putting itself in legal jeopardy by listing RPs as an option? Is the DEP putting utilities and counties in legal jeopardy by allowing RPs? In fact, does DEP even have the legal authority to downgrade the responsibility vested in utilities to provide safe drinking water, by giving the utilities the option of specifying RPs located on private property that are owned and maintained by the homeowner, instead of requiring the more reliable AMRs with a Dual-check valve located in the Back to the top.  

Reason 17: RPs may cause loss of Sovereign Immunity.

Sovereign immunity means that the King is always right, i.e. “It’s good to be da King!” It is rooted in English common law. It is not a part of the U.S. Constitution. Despite that, U.S. courts tend to shield local, state and federal government from lawsuits, unless negligence is involved.

An On Tap article notes:

“Many organizations, including water companies, mistakenly believe that they are immune from lawsuits. However, the exposures that can potentially lead to a lawsuit are plentiful.”

In another On Tap article, it is noted that:

"Some utility boards and administrators mistakenly believe they are exempt from lawsuits because they are a public entity. Consequently, they don’t see insurance as a necessary expense. How wrong they are. Small utilities can and have been successfully sued."

In an article co-authored by Tim De Young and Adam Gravley, partners in the Seattle office of Preston Gates and Ellis, LLP, that was appeared in the American Bar Association’s “Natural Resources and Environment Journal”, Volume 16, Number 3, Winter 2002, they wrote:

“Generally, utilities would be sued under negligence theories. From a policy perspective, it could be argued that making water utilities liable for damages caused by terrorist attacks may encourage utilities to take necessary steps to prevent such attacks. On the other hand, many water utilities simply do not have the resources to act as insurers for its customers or to address all conceivable threats. Ironically, legal actions may arise from attempts to make public water supplies more secure. For example, EPA's recently issued guidelines detail the security measures water utilities are advised to implement immediately. If a particular utility fails to implement some or all of these measures or does so in a negligent manner, then the utility arguably should be liable for consequential damages. In the numerous jurisdictions where comparative negligence applies, a utility theoretically could be held liable for some portion of the damages upon a showing of minimal negligence. There appears to be little case law directly on point but a number of courts have held that a water distributor is not an insurer with respect to the condition of its infrastructure and is therefore not liable for damages except on a showing of negligence.”

I will not wade into Sovereign Immunity with my own opinions because of my "dumb as dirt" status. However, I will note several recent decisions in which government negligence resulted in huge settlements. For example, here in Florida there was a Miami settlement of $5,000,000 when a police cruiser negligently injured a man. In California, there was that more recent $20,000,000 settlement for the little girl who was kidnapped by a paroled sex offender, held hostage for 18 years, raped and bore two children because the California Department of Corrections and Rehabilitation was negligent. Actually, in many cases, government defendants decide to settle out of court because they fear an even larger settlement against them if the lawsuit goes to trial - because everybody, including juries, know that counties and states have deep pockets.

Sovereign immunity doesn't come into play for a private firm or even a government sub-contractor. For example, for the recent I35W bridge collapse in Minneapolis, as a first step in the trial process, the bridge inspection firm (not the state highway department) has been found to be responsible, and will end up providing the multi-million dollar settlements. And there have been a number of lawsuits where construction companies have been doing work at courthouses and water or ice on the slick granite floors that came from outside through propped-open doors caused accidents. Guess what? It was always the contractor, never the courthouse's owner, that had to pony-up the settlement.

In Florida, the Legislative Claims process allows a citizen to bring a negligence lawsuit against an agency and then take the court’s decision to the Legislature for approval.

Given that a number of Florida officials on behalf of their local governments or state agencies, including the University of Florida, have reluctantly but clearly acknowledged that residential RPs are dangerous, utilities should be very concerned about their liability if there are any RPs connected to their distribution systems. Back to the top.  

Reason 18: RPs are an unfunded mandate.

Since the Feds do not have rules requiring how a Cross-Connection Control program must be administered, this mandate to install RPs is from the Florida DEP. Unfunded mandates are the curse of state governments and thence local governments and thence the citizens who end up footing the bill for all unfunded mandates anyway. The DEP seems immune to the plight of senior citizens, indeed all citizens. Imagine some elderly soul on a fixed income who has to choose between eating dog food or cutting her heart medicine pills in half. Now add to her misery that the DEP is forcing her to install an RP valve that might cost as much as $700 with annual testing and maintenance costs of up to $840, or else her water gets turned off. Is this the "of the people, by the people and for the people" country that our forefathers envisioned? I think not!

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Reason 19: RPs could lower a utility's bond rating.

Here is a quote from an article that was co-authored by Tim De Young and Adam Gravley, partners in the Seattle office of Preston Gates and Ellis, LLP. Their article was published in the American Bar Association’s “Natural Resources and Environment Journal”, Volume 16, Number 3, Winter 2002.

“A second issue concerns the liability of water utilities. Our review of the initial institutional responses to terrorist threats suggests that there has been little consideration of this issue. Because of limited experience, the extent to which utilities could be held liable for terrorist attacks is largely unknown. Following the 1993 bombing of the World Trade Center, hundreds of lawsuits were filed against the New York Port Authority claiming personal injury, wrongful death, property damage, and damages for business interruption. While many of the liabilities were based on claims of negligence, claims were also made based on premises liability and contract. Lawsuits inevitably will arise in the aftermath of September 11 to the extent that victim compensation relief is insufficient. Similar lawsuits can be expected when water supplies or infrastructure are sabotaged. For many water utilities, a large award could undermine their financial ability to continue providing needed services. Even a claim could affect a utility's bond rating."
Since this article was written, the 9/11 lawsuits have been settled. According to Wikipedia, "the average payout was $1.8 million." Could the bond ratings for a utility, even with taxing authority, survive such a settlement for each victim of a terrorist attack made via an RP valve? I doubt it!

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Reason 20: RP monitoring and reporting requirements are excessive.

The 07/01/2009 Draft Regulations create reporting requirements that only a career bureaucrat could love. The reporting requirements were the main complaint by utility personnel at the workshops. They spoke that the economic downturn has brought about layoffs, but that the same amount of work was required to keep the infrastructure functioning. The last thing they needed was to waste time making periodic on-site inspections, replacing Dual-check valves "just in case they've gone bad" and doing additional paperwork.

And according to Slide 20 from the Sanford workshop, the DEP doesn't even expect utility workers to be honest, anyway!

Slide about poor reporting.

The DEP has already acknowledged that an average of 25% RPs "fail to function properly" each year. And this rate along with backflow incidents will go on month-after-month, year-after-year as succeeding valves continue to succumb to all the problems that can plague them. If AMRs are used instead of RPs, there will be little need for any reporting because all cross-connections will be detected and resolved within 30 days of the AMR's installation. And any malfunctioning Dual-check valves will be replaced as needed.

Does Home Rule Alter the Reporting Requirements?

At the Tallahassee workshop on July 21, 2009, over a year ago, a gentleman from one of the panhandle utilities asked if the regulations applied to those with Home Rule. He questioned the legality of DEP’s mandating an unfunded mandate on local governments that have been granted Home Rule under Article 8 of the Florida Statutes, because they are special districts and have their own legal responsibility for water quality. Cynthia Christen, the legal counsel for the DEP at that meeting, promised that she would get back to him (and me) with an answer. I reminded her of her promise on 7/22/2009, 8/3/2009, 3/22/2010 and 7/21/2010 – and still there is no answer. I wonder what part of "civil servant" she doesn't understand?

I’m not going to try to fathom all the aspects of Home Rule. I think it simply means that a local government can write its own rules as long as federal laws are not violated. Please email me a better definition if I'm incorrect. But what really concerns me is that when a civil servant fails to respond after fourteen months and four reminders, one has to wonder if there’s more to this simple question than meets the eye. According to an email from Les O’Brien (TREEO Center) to Bob DiCecco (Hillsborough County), "The Feds do not have rules requiring how a Cross-Connection Control program must be administered." I’ve sort of wondered if home rule can bypass any number of DEP regulations that aren’t specifically mandated by the federal government. And that answering this question related to the lowly RP valve might prove a precedent for a number of other DEP regulations. I have absolutely no legal basis to support this conjecture, but it sure would explain why the DEP’s lawyer won’t provide an answer, despite several reminders and the great passage of time.

Oh, and by the way, Section 120.54(2)(c) of the Florida Statutes requires that: "When a workshop or public hearing is held, the agency must ensure that the persons responsible for preparing the proposed rule are available to explain the agency's proposal and to respond to questions or comments regarding the rule being developed." Apparently, DEP’s lawyer isn’t familiar with this part of the Florida Statutes.

Of course, one has to appreciate the dark humor of her failure to respond. The DEP has written all kinds of time constrains into the revised regulations for harried utility workers to fill out forms about possible backflow incidents and send them in to DEP. And yet, DEP can't even respond to a simple workshop question, even after more than a year! --- Water utilities go to great lengths to insure that an almost perfect product leaves the treatment plant. quote van Nightly expansion reveals any failed dual-checks

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Reason 21: RP regulations could increase a utility's debt and debt service costs

Here

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Reason 22: RPs are required to be above ground and adjacent to the water meter.

Valve in front of home - 1. Valve in front of home - 2.

Because of their required location, RPs are subject to a number of physical problems including:

  • RPs are easily damaged by careless drivers who run over them with their vehicles,
  • RPs are easily damaged by lawn-care crews who drive over them with their mowers,
  • RPs are easily sheared off by air-borne debris during hurricanes,
  • RPs are easily damaged by freezing temperatures in our more northern counties,
  • RPs are easily stolen - to be sold as scrap metal to buy drugs,
  • RPs are a hazard to walkers and joggers,
  • RPs are an eyesore,
  • RPs cause utility system disinfectants to deteriorate,
  • RPs have a high pressure drop across the valve and
  • RPs may cause hot water tanks to explode.
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Reason 23: Plumbers charge whatever the traffic will bear for installing RPs.

This is from an Observer News article:

"In Sun City Center, another homeowner had a similarly unpleasant encounter with county personnel in connection with the backflow valve. Wendell Spencer, whose home also borders a lake, contacted the county department trying to locate a permit number related to a plumbing job done several years ago. In the course of the conversation, Spencer, who was not aware of the backflow valve ordinance, acknowledged his secondary watering system for irrigating his landscaping. He was not cited for any violation, he said, but the next day the plumber who did the original job appeared at the Spencer home, although no one in the family had contacted him. The local plumber wanted $695 to install a backflow valve and additional money to provide a camouflaging artificial rock, Spencer said."

It turned out that as soon as Spencer got off the phone, the Cross-connection Control Manager, who use to be a plumber, called his plumber friend and gave him the tip about Spencer's not having a backflow valve. Well, so much for the County's Code of Ethics!

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Reason 24: Annual RP testing and maintenance is expensive and often corrupt.

The University of Florida’s Center for Training, Research, and Education for Environmental Occupations (TREEO Center), who trains and certifies the Florida RP testers, released internal documents showing that the annual cost to a homeowner for testing and maintaining an RP valve ranges from $60 to over $840 and characterized some testers as “criminals” trying to “milk the system” by “ripping off the customers and charging criminal prices.” Testers have been known to consistently replace valves (more $) rather than repair them, or to “repair” the same valves, year-after-year. Testers have also been known to do “drive-by” inspections.

Three of the TREEO Center's documents can be viewed at www.suncitydave.info/Update-3.pdf.

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Reason 25: Scaring citizens into embracing RPs is like scaring citizens into buying home water treatment systems.

My utility is very concerned about complaints they receive from customers concerned with the sales tactics of home water treatment system salesmen. The utility advises:

"It sounds like a great offer - fill out a card or return a phone call, and have your tap water tested - for free. Take that step, though, and what you're likely to get is a heavy-handed sales pitch to buy overpriced and unnecessary water treatment systems. ... Many complaints come from residents who are seniors, disabled or who have limited incomes - prime targets for salespeople who rely on scare tactics and high-pressure pitches."
Does this have a familiar ring to it? Isn't this the same sort of scam that DEP, with the backing of the plumbing interests, is laying on Floridians with the scare tactic that the threat from backflow contamination is so great that homeowners need to buy $700 backflow valves followed by annual testing and maintenance costs of $60 to $840?

Utilities go to great lengths to insure that their water is safe. Likewise, no one has ever died in Florida from a backflow incident. In fact, no one has ever even gotten sick in my county of over 1 million people from a backflow incident.

Advocating home water treatment systems, RPs and snake oil are all on the same page of the "Scam Artist's Handbook".

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