SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division on the request of the Respondent, Scott Mehaffey, for a hearing to contest an administrative order (97-47-DWP) issued by the Department of Health and Environmental Control for violating the State Safe Drinking Water Act, S.C. Code Ann. §§ 44-55-10 et seq. (1976 & Supp. 1997). After notice to the parties, a hearing was conducted on February 18, 1998. Based on the evidence presented and the relevant law, the Respondent violated the State Safe Drinking Water Act by failing to comply with the requirements for grouting water wells, as specified in 25 S.C. Code Regs. 61-71 (1976). Any issues raised or presented in the proceedings or hearing of this case not specifically addressed in this Order are deemed denied. ALJD Rule 29(B).

I make the following Findings of Fact, taking into account the burden on the parties to establish their respective cases by a preponderance of the evidence and taking into consideration the credibility of the witnesses:

The Respondent is in the business of well drilling in South Carolina and holds Environmental Certification Board License No. 1028.

The Respondent installed a well in February 1996 for Tim Taylor at 2008 Hwy. 221 S., Greenwood, South Carolina ("Taylor well").

Taylor contacted Reginald E. Massey of DHEC on August 15, 1996 regarding problems with the well installed to serve his residence. Taylor's complaint was that there was not sufficient water to meet his needs.

Massey inspected the Taylor well on August 16, 1996. Massey measured the depth of the well as slightly less than twenty-two feet, with about three feet of water. He noted evidence of seepage through the second and third joints of casing, approximately four to five feet below ground level. Massey could not determine at that time whether the well had been grouted due to the cement on the ground surface around the well casing.

Subsequent DHEC inspections revealed there was some grouting of the Taylor well casing six to eight inches below the top, but there were gaps. Additional inspection was still not possible because of the cement pad around the top of the well. Further, dried mud was observed within the well from about the third casing joint and below.

By letter dated September 24, 1996, DHEC advised the Respondent that the Taylor well had been improperly constructed.

DHEC held enforcement conferences with the Respondent on December 18, 1996, during which Respondent requested to accompany DHEC for an inspection. After the inspection, another enforcement conference was conducted on March 18, 1997.

The parties met at the Taylor well on January 30, 1997 to conduct an inspection of the grouting and to conduct a well abandonment. The inspection and well abandonment were videotaped.

The videotape and the inspection revealed grouting around the well casing. The grouting was not uniform causing some gaps.

Grout was observed from the top of the well to the second casing joint, however, the grout was not uniform. There was the absence of grout at various points from the top down to the first casing joint. Seepage was observed below the third casing joint. Application of the grout was not uniform around the casing to a depth of at least six and one-half feet.

The grouting gaps at the Taylor well were not caused by DHEC staff during their inspections of the well.

The grouting of the well did not cause the problem of inadequate water that Taylor was experiencing.

The Respondent failed to file in the DHEC Groundwater Protection Division a water well record form for the Taylor well. DHEC did not charge Respondent for this violation.

The Respondent admitted that he did not use a tremie pipe to grout the Taylor well.

The Respondent did not obtain a variance from regulation standards covering the method of grout installation on the Taylor well.

DHEC performed a penalty assessment, taking into account several factors, including the violation's potential for harm, the economic benefit derived from the violation, the extent of deviation from the regulations, the number of previous violations, and mitigating factors, among others, in accordance with the Bureau of Water Control's Penalty Assessment Guide.

DHEC assessed the Respondent a fine of $5,000.

Based upon the Findings of Fact, I conclude as a matter of law the following:

The Administrative Law Judge Division has subject-matter jurisdiction in this action pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 1996); cf. S.C. Code Regs. 61-72 §§ 501 & 502 (Supp. 1996).

DHEC "is authorized to take action to abate, control and prevent pollution of the air and water resources of this State consistent with the public health, safety and welfare of its citizens." South Carolina Dep't of Health and Envt'l Control v. Armstrong, 293 S.C. 209, 214, 359 S.E.2d 302, 305 (Ct. App. 1987) (citing Harper v. Schooler, 250 S.C. 486, 189 S.E.2d 284 (1972)).

S.C. Code Regs. 61-71 was promulgated pursuant to S.C. Code Ann. § 44-55-40 of the State Safe Drinking Water Act, to "set forth the specific requirements for protecting underground sources of drinking water from contamination and include provision for: the classification and regulation of wells; establishing standards for location, construction, materials, reporting, operation, maintenance, and abandonment."

S.C. Code Regs. 61-71.6 discusses the construction of water wells. Reg. 61-71.6.B. specifically addresses grouting. The specific composition of grout, its method of placement, depth of placement, and when to grout are outlined in this regulation.

S.C. Code Regs. 61-71.6(B)(4) requires that grout be applied through a tremie pipe during the construction of all water wells. When emplacing the grouting material:

[T]he tremie pipe shall be lowered to the bottom of the zone to be grouted and raised slowly as the grout material is introduced. The tremie pipe shall be kept full continuously from start to finish of the grouting procedure, with the discharge and of the tremie pipe being continuously submerged in the grout until the zone to be grouted is completely filled.

DHEC issued a Memorandum to all certified well drillers allowing certain variances in construction standards for certain wells including large diameter bored wells (e.g. the Taylor well). It states that "except where noted below, this policy document does not constitute a blanket variance from the criteria established in the South Carolina Well Standards and Regulations, R. 61-71." It further states, "A driller must have a written variance approval on file prior to constructing a well outside of the standards set forth in R. 61-71 or this policy document."

The policy document allows an alternative to grouting large diameter bored wells:

a. By grouting the annular space from ground level to a minimum depth of six and one-half feet (6-1/2') or to a depth which covers at least two (2) well casing joints where casing length is a minimum of three (3) feet. The grout must consist of a wet mix of with neat cement, sand/cement or 10% bentonite/cement; and,

b. By installing a six inch (6") thick cement/concrete pad which extends a minimum of twelve inches (12"), in all directions, from the outside of the well casing.

The Respondent violated 25 S.C. Code Regs. 61-71.6(B) in that he failed to properly grout around the well casing of the Taylor well and failed to obtain a variance from regulation standards covering the method of grout installation on the Taylor well.

The Respondent's violations of 25 S.C. Code Regs. 61-71 subject him to the assessment of civil penalties as authorized by S.C. Code Ann. § 44-55-90.

Section 44-55-90 gives DHEC the authority to administer civil penalties of up to five thousand dollars for each day of violation of the Safe Drinking Water Act or its implementing regulations. S.C. Code Ann. §§ 44-55-80 & 44-55-90 (1976).

Under the Penalty Assessment Guide utilized by DHEC, there are several factors considered before applying a formula to calculate a penalty. One factor is the gravity of the offense which is determined by potential for harm, extent of deviation and the number of prior violations. The failure to properly grout a well is considered major in evaluating the potential for harm to the water supply. In determining the extent of deviation, failure to properly grout a well or failure to case a well are two separate factors for a finding that the deviation is major. Two or more major factors must be found in order the classify the deviation as major. However, for a classification as moderate, DHEC need only find one factor. Among those factors are one from the "major" group or failure to submit a well record form, or failure to properly label a well with an identification plate. DHEC considered the extent of deviation as major for failure to properly grout a well and failure to use a tremie pipe as two factors. However, the failure to use a tremie pipe is part of the problem resulting from the failure to properly grout the well. DHEC did not charge Respondent with the violation of failing to submit well records. As a result, the extent of deviation is moderate not major. The last element DHEC considered was a previous violation by Respondent within three years, which is considered Level II under the guide.

After considering the factors above, DHEC calculated the penalty using the matrix in the guide. This Division determines that for purposes of calculating the appropriate penalty, factor A as used in the guidelines for potential harm to human health, is Major Level II; and factor B to determine deviation form the relevant requirement, statute, or regulation, is Moderate. The result is a component of 61-70% of the statutory maximum (instead of the 81-100% as calculated by DHEC). All other components of the formula remained the same as determined by DHEC. The range for the penalty is, therefore, $3050 to $3500.

Given the nature of the violation, a penalty of $3,300 against the Respondent for failing to comply with 25 S.C. Code Regs. 61-71 when grouting the Taylor well is suitable.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED, that the Respondent, Scott Mehaffey violated provisions of the Safe Drinking Water Act and its regulations. DHEC shall enforce the provisions of the administrative order (97-47-DWP) issued against Scott Mehaffey for violation of the State Safe Drinking Water Act. The applicable monetary penalty is $3,300.

AND IT IS SO ORDERED.

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ALISON RENEE LEE

Administrative Law Judge

March 4, 1998

Columbia, South Carolina.