SUBJECT: Part 41, Sewage Disposal and Water Works System, Sewerage Systems of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451 as amended.

Petition of Raju K. Markose - Class B Municipal WWTP Operator Certification

At a session of the office of Administrative Hearinqs held in Lansing, Michigan, on the 11th day of February, 1998, Richard G. Lacasse, Chief, Administrative Law Judge Presiding

The above captioned matter was the subject of a contested case hearing resulting in the issuance of a Proposal For Decision (PFD) June 2, 1997. In a letter dated June 3, 1997, the Office of Administrative Hearings gave the Parties until June 27, 1997, to file written Exceptions to the PFD. After the granting of several extensions, the Department of Environmental Quality (Department) filed its exceptions on August 1, 1997. On November 14, 1997, counsel for the Petitioner filed a Reply to the Department's Exceptions. The matter is now before the Chief Administrative Law Judge of the Office of Administrative Hearings for a final agency decision pursuant to Executive Order 1995-18 and Delegation Letter No. OAH-324.101 et seq.-01.

This Tribunal has considered the Proposal For Decision, exhibits, transcripts, pleadings, arguments, the Department's Exceptions and the Petitioner's reply to same. Proposed findings and conclusions not addressed in this Final Determination and Order are found to be unsupported by the record or unnecessary in making a final decision in this contested case.

In its Exceptions, the Department challenges the standard of review utilized by Administrative Law Judge (ALJ) , certain statements contained in the PFD, and the redefined issue set forth in the PFD. The Petitioner urges the Chief Administrative Law Judge to reject the Department's Exceptions and adopt the PFD in its entirety.

The Department asserts the appropriate standard of review is whether the Municipal Wastewater Treatment Plant Operator Certification Board of Examiners (Board) abused its discretion in denying Mr. Markose the opportunity to take the Class B Municipal WWTP Operator Certification examination. In support of that contention it relies on the utilization of the term "appeal" in the administrative rules. Ergo, the review should be based on the proceedings before the Board. First, such proceedings do not provide a full factual record, consisting of sworn testimony and exhibits. Thus, there is no record of the Board's decision which can be reviewed under any standard. Second, Rule 27(2) and the Part 5 rules are clear in providing for a contested case hearing under the Administrative Procedures Act, 1969 PA 306, as amended; MCL 24.201 et seq.; MSA 3.560(101) et seq.

The issue in this case is whether Mr. Markose is qualified under Part 41 of NREPA, and its administrative rules, to sit for the Class B Municipal WWTP Operator Certification examination. The purpose of this contested case hearing process is to provide the Petitioner with a de novo review of the relevant facts regarding his application to sit for the examination. The contested case hearing occurred in a setting where a formal record was created. Based on that record, a final agency decision on Mr. Markose's application will be rendered herein. MCL 24.285; MSA 3.560(185). This Tribunal's decision is subject to appeal in the circuit courts, pursuant to the Administrative Procedures Act, once all administrative remedies are exhausted. Based on the foregoing, I conclude, as a Matter of Law, the ALJ used the proper standard of review in this case.

The remainder of the Department's Exceptions are challenges to the findings of the ALJ regarding factual issues. These Exceptions to the ALJ's findings are based on the Department's assertion that the ALJ used an improper standard of review. Based on the conclusion the ALJ used the proper standard of review and that her findings are consistent with the record, the findings are accepted.

Based on the foregoing, the Chief Administrative Law Judge of the Office of Administrative Hearings ADOPTS AND INCORPORATES BY REFERENCE the Proposal For Decision including the Findings of Fact and Conclusions of Law.

THEREFORE, IT IS ORDERED:

1. The Proposal For Decision dated June 2, 1997, is adopted by reference and incorporated into this Final Order.

2. The Petitioner, Raju Markose, shall be allowed to sit for the Class B license examination. This Final Order constitutes the final agency decision in the matter of Part 41, Sewage Disposal and Water Works System, Sewerage Systems of the Natural Resources and Environmental Protection Act (NREPA) ,1994 PA 451 as amended, Petition of Raju K. Markose - Class B Municipal WWTP Operator Certification.

Date: February 11, 1998

Richard G. Lacasse
Chief Administrative Law Judge

CC: Mr. George B. Washington, Scheff & Washington, P.C. , One Kennedy Square, Suite 2137, Detroit, Michigan 48226

Mr. John C. Scherbarth, AAG, Natural Resources Division, 300 S. Washington, Suite 530, Lansing, Michigan 48913

Mr. David Sole, President UAW 2334, 2727 Second Avenue, Room 314- A, Detroit, Michigan 48201

In Re: Part 41, Sewage Disposal and Water Works System, Sewerage Systems of the Natural Resources and Environmental Protection Act (,NREPA), 1994 PA 451, as amended.

Petition of Raja K. Markose - Class B Municipal WWTP Operator Certification.

This matter is a contested case proceeding about whether Mr. Raju K. Markose meets the criteria under Part 41, Sewage Disposal and Water Works System (NREPA), 1994 PA 45 1, as amended to sit for a Class B Municipal Waste Water Treatment Plant Operator Certification.

The hearing was conducted pursuant to Part 41, Sewage Disposal and Water Works System, Sewerage Systems of 'the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 45 1, as amended, MCL 3 24.4104.

1. Mr. John Scherbarth, Assistant Attorney General appeared on behalf of The Department of Environmental Quality.
2. Mr. David Sole, President of UAW Local 2334 - SCATA, appeared on behalf of Mr. Raju K. Markose.

Mr. Markose applied for a Class A and a Class B license in both 1994 and 1995. The Board of Examiners denied both applications by a vote of 3-0. Mr. Markose applied again on March 20, 1996, but he requested only a Class B license. On April 16, 1996 the Board again denied Mr. Markose's application to take the Class B certification examination by a vote of 3-0. Board Member, Ms. Louise Lieberman, who is the Assistant Chief Engineer at the Detroit Waste Water Facility abstained from voting. The Assistant Chief Engineer is the number two position of authority at the Detroit Waste Water Facility.

Mr. Markose appeals the decision of the Board. The burden of going forward with the evidence, as well as the burden of proof, is on Mr. Markose. Michigan Administrative Law, by Don LeDuc, January 4, 1993 at Section 6:42.

Section 4104 of Act 451 of 1994 (NREPA), MCL 324.4104 establishes the statutory basis for this contested case hearing. It provides, in pertinent part:

The department shall examine or provide for the examination of persons as to their qualifications to operate sewage treatment works. The department shall promulgate rules re-regarding the classification of sewage treatment works, the examinations for certification of operators for those works and the issuance and revocation of certificates, and shall issue and revoke certificates in accordance with those rules. Every sewage treatment works subject to this part shall be under the supervision of a properly certified operator,....

Rule 11, R 299.211(3)(b) defines a Class B Treatment Facility as one which serves or is designated to serve a population between 10,000 and 50,000 persons.

Rule 16, R 229.2916 requires the appointment of a Board of Examiners which shall consist of five members, with designated professional backgrounds.

Rule 17, R299.2917 establishes the duties and responsibilities of the Board of Examiners.

Ride 17(l). . . provides that the Board shall examine all persons making application for certification who meet the minimum requirements prescribed by Rule 18...

Rule 17(2) states, "As a result of the examination and application the Board shall recommend to the director the issuance or non-issuance of an Operator's Certificate in the proper classification to the applicant."

Rule 20(l) mandates that the ... information contained on the application shall be evaluated by the Board and shall constitute part of the examination.. . .

Rule 18, R299.2918, at 18(1)(b) establishes the requirements for a Class B Certification. It requires applicant to possess .... four years of experience of acceptable operation in a treatment facility of Class C or higher, two years of which shall have been in a supervisory capacity or a position of major operational responsibility. (Emphasis added)

This hearing is about whether Mr. Markose, a Water Systems Chemist at the Detroit Wastewater Treatment Facility has two years of experience in a position of major operational responsibility.

Mr. Daryle Smith who is one of the five members of the Board of Examiners testified.

He has been the Wastewater Treatment Plant Superintendent for the City of Grand Rapids since 1980 and has served on the Board of Examiners since 1984.

It is important to distinguish the requirements under the statute and the rules, versus the interpretation within the discretion of the Board of Examiners. The Statute at Section 4104 requires that the department shall examine or provide for the examination of persons as to their qualification to operate sewage treatment works. The department is ordered to promulgate rules regarding the classification of sewage treatment works, the examinations, for certification of operators for those works and the issuance and revocation of certificates.

Pursuant to that statutory mandate, the department promulgated rules regarding required education and experience. Mr. Markose meets the educational requirements. Rule 18 governs the requirements for experience. That rule requires two things:

Number One: An applicant must possess four years of experience of acceptable operation in a treatment facility of Class C or higher; and

Number Two: Two of the fours years experience must have been either:

A. In a supervisory capacity; or
B. In a position of major operational responsibility.

Therefore, the question to be decided is whether Mr. Markose has two years of experience "in a position of major operational responsibility."

There are no promulgated rules which define major operational responsibility. This issue has been defined by the, Board of Examiners via adjudication. The only written directive relating to major operational responsibility is found in the Announcement for Municipal Wastewater Treatment Plant Operator Certification Examinations. (Exhibit 1) There it states:
 

A Position of Major Operational Responsibility is where one who may not be supervising five (three for a Class B license) or more employees but has responsibility for making decisions on treatment plant operation, process changes and major maintenance repairs. Examples are: Superintendent, assistant superintendent or person in charge of a shift or major segment of a system or facility.

Experience not acceptable - Working in a treatment plant performing custodial duties or duties that do not involve operational process assignments.

The question to be decided in this hearing is whether Mr. Markose has two years of experience in a position of major operational responsibility.

Mr. Smith testified that although Mr. Markose has operational experience in chlorination pickle liquor and polymer, that his experience does not reach the level of major operational responsibility because Mr. Markose is not in total charge of those areas. (Vol. 1, p. 39). In order to determine whether someone is in charge, Mr. Smith testified that he would need to examine the job description of the person and review the applicant's description of their own duties.

The job description published by the Detroit Personnel Department (Exhibit 3) for a Water Systems Chermist states:

Under general supervision, as the chemist-in-charge on an assigned shift at a moderately large water or wastewater treatment plant, to be responsible for performing a variety of chemical, bacteriological and physical tests and analyses; to be responsible for the proper operation of filtration and chemical treatment equipment for overseeing low lift storage and transmission operations as they relate to treatment and control processes, and to initiate changes in operations as conditions warrant; and/or at a major-water or wastewater treatment facility, to perform a variety of chemical, bacteriological and physical analyses of a non-routine or experimental nature, and assist in carrying out laboratory testing, filtration, chemical treatment and control operations; and to perform related work as required.

Prior to July of 1993, the Board of Examiners regularly recognized the experience of Water Systems Chemists at the Detroit Waste Water Treatment Plant as qualifying as "major operational responsibility." On July 26, 1993 the five members of the Board of Examiners visited the Detroit Waste Water Treatment facility. (Vol. 1, p.62) The tour was taken in response to a complaint which had been filed with the Board that persons were being, certified at the Detroit facility who lacked the requisite experience. Therefore the Board visit occurred to increase the Board members' understanding of the management at the Detroit facility to better enable them to determine if an applicant for licensure has major operational responsibilities. (Vol. 1, p.63)

During the tour the Board members visited every chlorination area, and several labs. The Board did not interview any of the employees nor did they follow any of the Water Systems Chemists to determine the nature of their duties. Following the site visit, the Board determined that without other experience, the Water Systems Chemists at the Detroit Waste Treatment Facility were not engaged in activities that would meet the major operational responsibility standard. (Vol. 1, p.67). The decision was made primarily from viewing the organizational chart of the facility and speaking with Ms. Louise Lieberman, the Assistant Chief Engineer, which is the number two person at the plant and a fellow Board member.

The decision to deny major operational responsibility to those who hold the title of Water Systems Chemists at the Detroit facility is a departure from previous policy. It is based on the rationale that a Water Systems Chemist at the Detroit facility does not have primary responsibility for any of the areas in which he or she works. But the Board's own Announcement (Exhibit One) defines major operational experience as one who "has responsibility for making decisions on treatment plant operations, process changes and major maintenance repairs."

Therefore, the question is does Mr. Markose have responsibility for making decisions on treatment plant operations, process changes and major maintenance repairs?

Since the final determination regarding major operational responsibility is determined by adjudication, the manner in which other applicants have been treated is probative. Exhibit five relates to an application from Mr. Antonnio Reaves. Mr. Reaves was a Sewage Plant Operator. Mr. Reaves was allowed to sit for the Class B examination because he supervised three persons for the requisite two years. He therefore did not need to meet the criteria of major operational responsibility because the rules establish an either or standard. Therefore, the determination in Mr. Reaves case is not relevant to Mr. Markose.

Exhibit Number Six is an application from Mr. Curtis Thompson. At the time of his application to take the B License, he was a Water Systems Control Instrument Technician. Mr. Thompson's application to sit for the B License exam was originally denied, but was subsequently approved based on new information presented to the Board. The new information, which qualified as major operational responsibility, according to Mr. Smith, was that Mr. Thompson had to start up and perform chemical additions, add polymer, run the centrifuge until it stabilized and then shut it down to ensure operability. Mr. Thompson gave instructions to the operators on the best operations for the polymer introduction for stable running conditions. He also established conditions for proper start-up and shut-down operations of the centrifuge. Mr. Thompson made factory recommended modifications. In addition he suggested and implemented cleaning operations after machine shut-down. All of these functions were done on one machine, the centrifuge.

Based on the experience on this one machine, the Board recognized this as major operational responsibility, (T-100) and granted Mr. Thompson's application to sit for the B License. Mr. Smith's testimony was inconsistent regarding whether a person needs major operational responsibility more than one area of a treatment facility. Mr. Smith testified: (Vol. 1, p.38)

Q: So the Board will never approve someone who has simply major operational responsibility for only part of an operation? Is that what you're saying?

A: That is our intent. That is how we try to rule.

And yet Mr. Smith later testified: (Vol 1, p. 150)

Q: How many areas of a plant do you have to have major operational responsibility in order to qualify for sitting for the B exam?

A: Well, I personally like to see...

Q: No; no; no; How would --

A: As a Board member. Okay? But if the Board has ruled,.it can be one, such as total control of the sludge area.

It is not necessary that an applicant have major operational responsibility plant-wide.

Therefore, the question, can be further refined, "Does Mr. Markose have major operational responsibility in at least one area of the factory?" Recall, the Announcement (Exhibit One) defines major operational responsibility as having "responsibility for making decisions on treatment plant operations, process changes and major maintenance repairs."

Mr. Markose attended the Board meeting where his 1995 application was considered.

Mr. Markose testified predominantly regarding his responsibilities in chlorination. He explained that he was responsible for switching the chlorine cars and making sure they were properly docked; he maintained a specified chlorine residual in the facility by adjusting the chlorine feed rate, and made sure all the units were operational.

Mr. Markose has been employed at the Detroit Waste Water Treatment plant for eleven years. He demonstrated that he is in charge of the addition of polymer (vol. II, p.6); he increases the feed of the polymer to get low suspended solids. He also adjusts the flow of polymer and puts pumps in and out of service (Vol. 11, p.8).

Mr. Markose testified that he was in charge of the Primary Treatment pickle liquor operation to reduce phosphates. He directs the incoming trucks in unloading, chemically tests the pickle liquor, calculates the amount of pickle liquor to add and regulates the feed from the tanks. (Vol. 11, p. 9-1 1) Additionally, he is responsible for cleaning spills, if they occur.

Mr. Markose testified that he directly contacts other departments and supervisors with his results and recommendations. In particular, he contacts the incinerator operator for sludge samples (Vol. II, p. 17) and the Assistant Head Operator for total suspended solid samples (Vol. II, p. 18). While performing these functions, Mr. Markose's supervisor, the Senior Water Systems Chemist, would be in his office and have no direct involvement with making the assessments leading to the necessary recommendations or adjustments.

Mr. Markose testified regarding his duties in the Secondary Treatment chlorination room. This process involves "disinfection of the final effluent of approximately 1.4 billion gallons per day. Part of his duties involves hooking up and changing railroad tank cars where he, alone, responds to) the low chlorine pressure alarm. (Vol. II, p. 25-27)

Mr. Markose wiIl make the decisions on putting in service standby eclipse boilers or to place in service or take out of service any of the eleven chlorinators (Vol. II, p. 29-31). The dosages of chlorine to be added to meet the target residuals are determined by Mr. Markose.

The Operations Laboratory people (le. A Water Systems Chemist) works in areas affecting the process from influent to effluent. (Vol. 11, P. 107)

The State called no witnesses who could testify regarding Mr. Markose's specific responsibilities. Mr. Smith testified that according to the organizational chart of the Detroit Waste Water Treatment Plant Mr. Markose could not have major operational responsibility because he was not in total charge of any particular area of the plant. But the rules provide that supervisory experience is only one way to obtain the requisite two years of experience. The alternative is for an applicant to establish that he or she has two years of major operational responsibility. Mr. Smith again could not testify regarding Mr. Markose's operational responsibility. The only evidence submitted by the State relating to Mr. Markose's operational responsibility is found at Exhibit 7. This is a form which was completed by Mr. Markose's Supervisor, Mr. Prasher, a Senior Water Systems Chemist. Mr. Prasher completed the form briefly describing Mr. Markose's duties and responsibilities. Mr. Prasher wrote:
 

Question: Please describe the applicant's duties as they relate to supervision and responsibility for decisions on a major segment of the plant operations:

Answer: Monitoring the operation of chlorination facility making adjustments to the chlorine feed for the proper disinfection of the plant effluent on a rotational basis.

Question: In addition to the requirement of supervision or major operational responsibility, the applicant is required to have direct experience in three of the five areas listed below.

Therefore, the only evidence provided by the State regarding Mr. Markose's "major operational responsibility" is the one sentence statement on a verification form which was completed on April 10, 1994.

Mr. Markose has met the burden of going forward and the burden of proof to establish that he has two years of major operational responsibility.

An Administrative Agency may proceed by rule or by order. The flexibility to proceed by order allows an aaency to carry out the duties it is delegated by statute. That flexibility is a delicate balance. In Mallchok v. Liquor Control Conmussion, 72 Mich App 341, 344 (1976) the Court found that "while every vestige of regulation is within the purview of the commission's authority, the same cannot be said of the agency's procedures for implementing that authority. Procedures may be subject to control in order to make a state agency deal uniformly with all citizens." The Court in Mallchok, ordered the case remanded to the commission; it specifically, ordered that the plaintiff s application be measured by all existing promulgated, published and processed rules and regulations..

Not all action taken by an agency need be done pursuant to its rule making authority. Agencies, within the bounds of consistent operation and within the scope of the statute, are free to carry out its directives through adjudication. However, consistent and fair application is a necessary.

The Board of Examiners announced the position it would take in assessing licensure by publication of the Announcement for Municipal Wastewater Treatment Plant Operator Certification Examinations. (Exhibit One) Therein it stated that a person would be deemed to possess two years of major operational responsibility if the applicant has responsibility for making decisions on treatment plant operation, process changes and major maintenance repairs.

The Michigan Administrative Procedures Act of 1969, 1969 PA 306 at Section 7, MCL 24.207 establishes the definition of a rule. It also provides certain exemptions from the definition. One such exemption in set forth in Section (h) which includes "an interpretative statement." An interpretative statement is not a rule, and is an appropriate way for an agency to inform the public of its position(s).

The interpretative statement issued in Exhibit One is therefore not an improperly promulgated rule.

Mr. Markose has demonstrated that he has responsibility for making decisions on treatment plant operations, process changes and major maintenance repairs.

Mr. Markose has demonstrated that he possses two years of major operational responsibility.

THEREFORE, it is recommended that Mr. Raju Markose be allowed to sit for the Class B license.
 

6/2/97
Date

Kimberly Adams Colgate
Administrative Law Judge

Exhibit One: 1994 Board Announcement
Exhibit Two: Experience for A and B
Exhibit Three: Personnel Department Document
Exhibit Four: 1993 Minutes
Exhibit Five: 1994 Reaves Application
Exhibit Six: 1992 Thompson Application
Exhibit Seven: March 31 Correspondence - Prasher
Exhibit Eight: Markose - 1994 Application
Exhibit Nine: Markose - 1995 Application
Exhibit Ten: Markose - 1996 Application