ALJDEC decisions subject to certification as final

24A-D01-DEQ · Department of Environmental Quality · 2025-03-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In The Matter Of:

Bryce Kirkpatrick

PO Box 357

Saint David, AZ 85630

Early Exam Request ID 113464

Appellant.

No. 24A-D01-DEQ

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 11, 2025

APPEARANCES: Bryce Kirkpatrick, (hereinafter “Appellant”), appeared on behalf of himself. Assistant Attorney General J. Nick Bacon appeared on behalf of the Arizona Department of Environmental Quality, hereinafter (“ADEQ” or “Department”).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Department’s Exhibits 1, 5, and 7. Appellant’s Exhibit 1.

_____________________________________________________________________

FINDINGS OF FACT

On December 20, 2024, the Department issued a Notice of Hearing setting the above-entitled matter for hearing on February 11, 2025. The Notice of Hearing provided that the issue set for determination was, “whether ADEQ’s denial of Appellant’s April 24, 2024 application to take the Grade 4 Wastewater Treatment and the Grade 4 Wastewater Collection operator certificate examinations was in accordance with the procedures governing operator certificate examinations in A.A.C. R18-5-101 to R18-5-112, based on the appeal.”

A hearing was held on February 11, 2025.

At hearing, ADEQ presented the testimony of Eboni Rhone, the Operator Certification Programs Coordinator in the Drinking Water Unit. Appellant testified on behalf of himself.

On April 4, 2024, Appellant submitted an application to ADEQ to take the Grade 4 Wastewater Treatment and the Grade 4 Wastewater Collection operator certificate examinations.

On June 27, 2024, ADEQ notified Appellant that he had been approved for Grade Level 2. The Department notified Appellant that he was not approved for Grade Level 3 or 4 for the following reasons:

ADEQ will not authorize admission to an exam for grade level 3 or based on your application, as it does not show prior operator experience. In consideration of the experience outlined in your application, the technical experience can only

count for up to six months of qualifying experience. This qualifying experience, coupled with your bachelor’s degree, authorizes certification to the Grade 2 exam.

Appellant requested an appeal regarding the determination.

The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

At hearing, Ms. Rhone explained that Appellant was denied for Grade Level 3 or 4 because while he had experience with designing wastewater treatment plant systems, Appellant lacked sufficient experience operating a wastewater treatment plant.

Ms. Rhone reviewed Appellant’s resume and determined much of the experience listed was described as “periodical” or “experimental”. Ms. Rhone explained that the Department determined that appellant has 6 months of qualifying experience as an operator of a wastewater treatment plan.

Appellant contended that he had at least 7 years of experience in the wastewater treatment plant industry. Appellant performed work at the University of Arizona Water Environment and Sustainable Technology (WEST) Center that was related to his pursuit of his Master’s Degree. Appellant recalled receiving some labor credit during one semester. Appellant stated that he worked over 40 hours per week but he was not paid for nor did he receive school credit for most of the work. However, Appellant explained that the long hours were expected from graduate students.

CONCLUSIONS OF LAW

Appellants bears the burden of proof and the standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

A.A.C. R18-5-112 (D) provides:

An applicant shall meet the following requirements for admission to a certification examination:

1. For Grade 1, high school graduation or the equivalent.

2. For Grade 2, at least: a. High school graduation or the equivalent and one year of qualifying experience as a Grade 1 operator or the equivalent of a Grade 1 operator in another jurisdiction; b. Two years of postsecondary education in a qualifying discipline and one year of qualifying experience, including six months as a Grade 1 operator or the equivalent of a Grade 1 operator in another jurisdiction; or c. A bachelor’s degree in a qualifying discipline and six months of qualifying experience.

3. For Grade 3, at least: a. High school graduation or the equivalent and two years of qualifying experience, including one year as a Grade 2 operator or the equivalent of a Grade 2 operator in another jurisdiction; b. Two years of postsecondary education in a qualifying discipline, and 18 months of qualifying experience as a Grade 2 operator or the equivalent of a Grade 2 operator in another jurisdiction; or c. A bachelor’s degree in a qualifying discipline and one year of qualifying experience.

4. For Grade 4, at least: a. High school graduation or the equivalent and three years of qualifying experience, including one year as a Grade 3 operator or the equivalent of a Grade 3 operator in another jurisdiction; b. Two years of postsecondary education in a qualifying discipline and 30 months of qualifying experience, including one year as a Grade 3 operator or the equivalent of a Grade 3 operator in another jurisdiction; or c. A bachelor’s degree in a qualifying discipline, and two years of qualifying experience.

Upon consideration of the evidence presented at hearing, the Administrative Law Judge concludes that Appellant failed to establish that he had the requisite qualifying experience as an operator of a wastewater treatment facility to qualify for the Grade 4 Wastewater Treatment and the Grade 4 Wastewater Collection operator certificate examinations. The preponderance of the evidence supports that conclusion and Appellant has not shown that ADEQ’s determination was otherwise in error or contrary to law.

As such, Mr. Kirkpatrick’s appeal should be dismissed.

ORDER

IT IS ORDERED that Bryce Kirkpatrick’s appeal is dismissed.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

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-137160-45720000Done this day, March 2, 2025.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Karen Peters,

Department of Environmental Quality

By: OAH Staff