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30, 2004 dismissing this matter is rescinded.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 |