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:
Joseph Anderson, III vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Joseph Anderson, III

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
99-ALJ-07-0535-CC

APPEARANCES:
Andrew K. Epting, Jr., Attorney for Petitioner

M. Shawn Harmon, Attorney for Respondet
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division ("ALJD") following the Petitioner's request for a contested case hearing. The Petitioner, Joseph Anderson, III, challenges Administrative Order 99-147-DW issued by the South Carolina Department of Health and Environmental Control ("Department") which found that Petitioner violated the Well Standards and Regulations, 25 S.C. Code Ann. Regs. 61-71 (Supp. 1998) and 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 January 19, 2000, at the Administrative Law Judge Division in Columbia, South Carolina. 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).



FINDINGS OF FACT

Having carefully considered the testimony and the arguments, and taking into account the credibility of the evidence, I find by a preponderance of the evidence:

1. The Petitioner is in the business of well drilling in South Carolina and holds Environmental Certification Board License No. 982.

2. The Petitioner installed a private water well on June 18, 1998, for William Moore at 5777 Boone Haven Rd., Wadmalaw, South Carolina ("Moore well").

3. On April 7, 1999, Department inspector Christine Sanford-Coker inspected the Moore well and determined that the well was not grouted.

4. On April 12, 1999, the Petitioner met Mrs. Sanford-Coker at the well site and aided her in examining the well. Mrs. Sanford-Coker informed the Petitioner that the well was not grouted properly. The grout material was crumbling and did not adequately seal the well casing, thereby failing to protect the aquifer from contaminants. Additionally, the grout material did not completely enclose the annular space around the well casing.

5. On May 13, 1999, the Petitioner properly abandoned the Moore well and installed a properly constructed replacement well.

6. On May 21, 1999, the Department mailed a Notice of Enforcement Conference to the Petitioner advising him of the construction problem associated with the Moore well.

7. On June 23, 1999, the Department convened the Enforcement Conference with the Petitioner.

8. The Department performed a penalty assessment, taking into account several factors, including a "gravity" component of 50%, a 10% discount for the Petitioner's degree of cooperation, and a 10% discount for measures taken to prevent a recurrence, all in accordance with the Bureau of Water Control's Penalty Assessment Guide.

9. Based on the penalty assessment performed, the Department assessed the Petitioner a $2,000 fine and included it in a proposed Consent Order.

10. On August 9, 1999, the Department mailed the proposed Consent Order to the Petitioner in an effort to resolve the matter. The Petitioner received the proposed Consent Order on August 11, 1999.

11. On August 16, 1999, the Department received a letter from the Petitioner dated August 12, 1999, notifying the Department that he would not enter into a Consent Order.

12. The Department performed another penalty assessment, raising the "gravity" component from 50% to 60% and eliminating the discounts for cooperation and measures taken to prevent a recurrence, and assessed the Petitioner a $3,000 fine.

13. Being unable to resolve this matter by consent, the Department determined that an Administrative Order should be issued, including the adjusted penalty amount, to the Petitioner



requiring compliance with S.C. Code Ann. § 44-55-10 (1976 and Supp. 1998), State Safe Drinking Water Act, and 25 S.C. Code Ann. Regs. 61-71 (Supp. 1998), Well Standards and Regulations.

14. Pursuant to 25 S.C. Code Ann. Regs. 61-72 (Supp. 1998), the Petitioner filed a request for a contested hearing with the Administrative Law Judge Division.

15. The Petitioner testified his employees mixed and poured the grout as usual. The Petitioner explained the condition of the grout as found by Mrs. Sanford-Coker as a result of flash-setting, an occurrence resulting from certain soil conditions. Because the Petitioner testified that he did not know the grout would flash-set, he contends that he should not be responsible for the resulting imperfections.

16. The Petitioner did not return to the well to ascertain whether or not the grout had properly set.



CONCLUSIONS OF LAW

Based upon these Findings of Fact, I conclude:

1. 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. 1998) and R. 61-72 §§ 501 & 502.

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. R. 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. R. 61-71.6 discusses the construction of water wells. R. 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.



5. R. 61-71.6.B(5) requires that grouting procedure take place within five days of well construction. "Grouting procedure" requires more than a mere attempt at grouting. The well must be grouted properly, as outlined in all of R. 61-71.6.B.

6. R. 61-71.6.B provides:

(1) The diameter of the drilled hole shall be large enough to allow for a minimum of 1.5 inches of annular space for pressure grouting and 3.0 inches of annular space for pouring of grout through a tremie pipe.

(2) Grout is to be composed of neat cement, sand cement, a bentonite cement mixture, or concrete. Sand cement shall be composed of not more than two (2) parts by weight of sand to one (1) part of cement with not more than seven (7) gallons of clean water per bag (one cubic foot or 94 pounds).

(3) Grouting depth shall be a minimum of twenty feet, unless otherwise approved by the Department.

(4) When emplacing the grouting material, the 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.

(5) Grouting procedure shall take place within five (5) days after completion of well construction.



7. R. 61-71.6.B is mandatory. The purpose of the regulation is to ensure that underground sources of drinking water are not contaminated. It is not reasonable to believe the Department enacted regulations that would not comport with that purpose. A fair reading of the regulation in light of its intended purpose requires that the Petitioner assume some responsibility for properly grouting and ensuring that the grout properly seals the well casing.

8. Therefore, the Petitioner violated 25 S.C. Code Ann. Regs. 61-71.6.B (Supp. 1998), Well Standards and Regulations, in that he failed to properly grout around the well casing of the Moore well. The grout material was crumbling and did not completely enclose and seal the annular space around the well casing.

9. The Petitioner's violations of 25 S.C. Code Ann. Regs. 61-71 (Supp. 1998), Well Standards and Regulations, subject him to the assessment of civil penalties as authorized by the S.C. Code Ann §§ 44-55-90 (1976 & Supp. 1996), State Safe Drinking Water Act, in the amount not to exceed five thousand dollars ($5,000.00) per day of violation.



10. Great weight should be given to the Department's penalty assessment, especially when the penalty is calculated in accordance with written policy. When, however, without any change in circumstances other than the Petitioner chose not to execute the consent order and to exercise his right to a hearing, the "gravity" of the violation is increased from 50% to 60%; the Petitioner is deemed uncooperative, as that discount was eliminated; and the Petitioner is deemed not to have taken steps to prevent a recurrence, as that 10% discount was eliminated; I do not feel bound by the subsequent assessment.

11. The Petitioner's exercising his right to a hearing did not increase the gravity of the violation, nor did it affect the Petitioner's cooperation or steps taken to prevent a recurrence.

12. Therefore, I find the appropriate penalty should be the original calculation of Two Thousand Dollars ($2,000.00) which was calculated by the Department using its own guidelines. This is not to hold that in no event can a penalty be increased due to failure to reach a consent; however, the facts of this case will not support such a result.



ORDER

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

ORDERED, that the Petitioner, Joseph Anderson, III, shall pay the Department a monetary penalty in the amount of Two Thousand Dollars ($2,000.00) for his violations.

AND IT IS SO ORDERED.



______________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE



February 8, 2000

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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