South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDHEC vs. Jeff Kozlowski, Certification No. 1715

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
South Carolina Department of Health and Environmental Control

Respondent:
Jeff Kozlowski, Certification No. 1715
 
DOCKET NUMBER:
03-ALJ-07-0376-CC

APPEARANCES:
Etta Williams, Esq. for Petitioner

Jeff Kozlowski, Pro Se, Respondent
 

ORDERS:

FINAL ORDER AND AMENDMENT OF CAPTION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court on the request of the Respondent, Jeff Kozlowski, for a hearing to contest an administrative order (03-145-DW) issued by the Department of Health and Environmental Control (DHEC) for violating the State Safe Drinking Water Act, S.C. Code Ann. §§ 44-55-10 et seq. (2002). The order of November 30, 2004 dismissing this matter is rescinded. Although the Respondent Kozlowski did not file any prehearing evidence exchange and did not notify the court of his correct address as set out in that order, he did appear at the court for the hearing on December 1, 2004 as agreed. After notice to the parties, a hearing was conducted on December 1, 2004. Pursuant to a motion at the hearing, the caption is hereby amended to show South Carolina Department of Health and Environmental Control as the Petitioner and Jeff Kozlowski as the Respondent. 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 (2002). [Erroneously referred to as SC Reg. 61-72 at the hearing.] The Agency Transmittal sheet filed with the court and served on Kozlowski correctly referenced 61-71, as did the Administrative Order of DHEC Any issues raised or presented in the proceedings or hearing of this case not specifically addressed in this Order are deemed denied. ALJC Rule 29(C).

FINDINGS OF FACT

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:
1. The Respondent is in the business of well drilling in South Carolina and holds Environmental Certification Board License No.1715.
2. The Respondent installed a well in 2002 for Terry Chandler at 125 Chapman Road in Belton, South Carolina ("Chandler well").
3. DHEC inspected the Chandler well on December 10, 2002. DHEC determined that upon initial inspection, the well appeared to be grouted properly. Once a hand auger was used in two locations near the well casing to a depth of 2.5 feet, however, the inspector found dry cement powder, in violation of SC Code Reg. 61-71(G)(2).

4. 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.
17. DHEC assessed the Respondent a fine of $3,500.00, required that the Respondent comply with all state rules and regulations on well construction and permitting, and have DHEC observe the complete grouting process for a minimum of three different bored residential wells.

CONCLUSIONS OF LAW


Based upon the Findings of Fact, I conclude as a matter of law the following:
1. The Administrative Law Court has subject-matter jurisdiction in this action pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2004).

2. 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)).
3. 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."
4. S.C. Code Regs. 61-71 (G) discusses the construction of bored water wells. Reg. 61- 71(G)(2) specifically addresses grouting. The specific composition of grout, its method of placement, depth of placement, and when to grout are outlined in this regulation.
8. The Respondent violated 25 S.C. Code Reg. 61-71(G)(2) in that he failed to grout properly around the well casing of the Chandler well.
9. 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.
10. 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).
11. 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 grout a well properly is a basis for a finding that the deviation is major. Two or more major factors must be found in order to classify the deviation as major. However, for a classification as moderate, DHEC need only find one factor. As a result, in this case, although the potential for harm is major, the extent of deviation is moderate.

12. After considering the factors above, DHEC calculated the penalty using the matrix in the Penalty Assessment Guide. This matrix aids in the calculation of damages. For purposes of calculating the appropriate penalty, factor A as used in the guidelines for potential harm to human health, is Major; and factor B to determine deviation from the relevant requirement, statute, or regulation, is Moderate. The result is a component of 70--80% of the statutory maximum which is $5,000 per day for violation. The range for the penalty is, therefore, $3,500 to $4,000. Other factors which may be considered include the frequency of the violation, the economic benefit as a result of noncompliance, the past performance history and the degree of willfulness or negligence.

13. Given the nature of the violation, a penalty of $3,500 against the Respondent for failing to comply with 25 S.C. Code Regs. 61-71 when grouting the Chandler well is justified and supported by a preponderance of the evidence adduced at the hearing.

ORDER


Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED, that the Respondent, Jeff Kozlowski violated provisions of the Safe Drinking Water Act and its regulations. DHEC shall enforce the provisions of the administrative order (03-145-DW) issued against Jeff Kozlowski for violation of the State Safe Drinking Water Act. The applicable monetary penalty is $3,500.

AND IT IS SO ORDERED.

______________________________

CAROLYN C. MATTHEWS

South Carolina Administrative Law Judge


June 2, 2005

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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