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OAH 2-2200-20233-2 |
STATE OF
OFFICE OF ADMINISTRATIVE
HEARINGS
FOR THE POLLUTION CONTROL AGENCY
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In the Matter of the Administrative Penalty Order Issued to Thein Well Company, Inc.
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FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION
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The above-entitled matter came on for hearing before
Chief Administrative Law Judge Raymond R. Krause on
Leah M.P. Hedman, Assistant Attorney General, appeared on behalf of the Minnesota Pollution Control Agency (MPCA or Agency). Mark Thein, owner of Thein Well Company, Inc. (Thein or Respondent), appeared on its behalf.
STATEMENT OF ISSUES
1. Did Thein Well Company,
Inc., discharge industrial waste into a water of the state and thereby violate
Minn. R. 7053.0205, subp. 2?
2. Did Thein Well Company,
Inc., discharge industrial waste into a water of the state and thereby violate
Minn. R. 7050.0210, subp. 13?
3. Did Thein Well Company,
Inc., fail to notify the MPCA that it discharged a pollutant into the water of
the state and thereby violate Minn. Stat. § 115.061(a)?
4. If Thein Well Company
violated Minn. R. 7053.0205, subp. 2, Minn. R. 7050.0210, subp. 13, or
Minn. Stat. § 115.061(a), were the violations serious, requiring imposition of
a non-forgivable penalty, and was the assessed penalty reasonable or
appropriate?
The ALJ concludes that Thein violated Minn. R. 7053.0205, subp. 2, Minn.
R. 7050.0210, subp. 13, and
Based upon all of the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
The Drill Site
1.
In June and July 2008, Thein drilled a well at
Akkerman Manufacturing near
2.
Water from the Akkerman site drains to the
northwest and then west into the drainage route next to the corn field. Once water enters the drainage route, it
travels approximately 1,000 feet through high grass to reach the ditch that
runs along a gravel driveway. From there,
it travels another 2,500 feet through high grass to reach
3.
The Thein drilling site on the Akkerman property
is located approximately 3,077 feet from
4. The soil at the Akkerman site consists of clay and loam over fractured limestone bedrock. That type of soil requires a drilling foam to break the limestone and bring the cuttings to the surface to free the drill bit.[4] The process required vast amounts of water to facilitate the boring. Thein estimated that the active drilling process required approximately 500 gallons of water per minute, or 240,000 gallons of water in eight hours.[5]
The Complaints and Violations
5.
On July 1, 2008, William Buckley, Mower County
Environmental Health Specialist, received a complaint from a resident in
6.
Buckley drove to the complainant’s
property. He observed foaming,
discoloration and turbidity in the ditch running under County Highway 2, which
eventually drains into
7. The level of foam he observed in the ditch culvert can occur naturally from decaying leaves and other causes, but it is also consistent with drilling activity.[8]
8. Buckley then drove to the Akkerman site, where he saw two Thein employees and a drill rig. The employees were getting ready to leave the site for the day and Buckley observed no active drilling while he was on site. He observed a foam substance on the ground at the site that he recognized to be drilling foam.[9]
9. The Thein employees told Buckley that they had been air drilling at the Akkerman site, which is a drilling process in which water and a drilling foam are forced into the ground to break the soils and bedrock and carry the soil and rock pieces (drill cuttings) back to the surface. The drill cuttings were approximately a quarter-inch in diameter. The Thein employees told Buckley they were using a drilling foam called Quik-Foam.[10]
10. Quick-Foam is a common drilling foam that it is approved for use in potable well drilling.[11]
11. Buckley observed no Best Management Practices (BMPs), such as hay bales or shallow ditches used to divert the discharge, in place at the Akkerman site.[12]
12.
Buckley then drove to the site of the alleged
discharge on
13.
On the afternoon of July 2, 2008, Nancy
Christensen, who lives near the Akkerman site, observed that the water in the
drainage ditch along County Highway 2 was orange and foamy. She took photographs of the ditch.[14] She took one photograph of the location where
the ditch drains into
14. Buckley drove to the Akkerman site at approximately 4:00 p.m. on July 2, 2008, but he observed no drilling activity and there were no Thein employees present on the site. He observed no water or foam discharge on the site that day.[17]
15.
Buckley then drove to
16.
Buckley did not meet either citizen
complainant. He took no photographs of
the drilling site, the ditch or
17.
On July 7, 2008, Buckley referred the citizen
complaints to Ryan Swafford at the MPCA regional office in
18. From 1991-2003, Buckley was a certified well inspector. He has never observed an air drilling site where all the drilling water could be contained.[21]
19.
The photograph depicting
20.
21.
Mark Thein admitted that he realized that the
drilling water discharge from the Akkerman site would eventually reach
22.
There was no evidence that the discharge from
the Akkerman site reached the Cedar River from
Thein’s Previous Violations
23.
In April 2002, the MPCA issued Thein an
Administrative Penalty Order (APO) for violations that occurred at a
well-drilling site near
Alleged Violation Letter and Thein’s
Response
24.
On July 7, 2008, Ryan Swafford, MPCA Pollution
Control Specialist, learned of the complaints regarding the drilling on the
Akkerman site. Swafford spoke with
Buckley and issued an Alleged Violation Letter (AVL) to Thein on July 25, 2008. The AVL stated that the MPCA received a
complaint on July 7, 2008, regarding discharge from the Thein drilling site on
the Akkerman property. The AVL alleged
that Thein discharged sediment-contaminated wastewater to waters of the state
and that this wastewater caused nuisance conditions in
25.
Thein responded to the AVL by letter dated
Case Forum Discussion and
26. The MPCA uses a forum process in cases that may involve a non-forgivable penalty. Swafford prepared a Case Development Form and an Administrative Penalty Order Penalty Calculation Worksheet to facilitate a forum discussion in which the MPCA staff would determine what violations occurred and assess the appropriate penalty.[29]
27. In determining the appropriate penalty, the forum consulted the APO Penalty Calculation Guidance policy, which incorporates the factors to be considered under Minn. Stat. § 116.072 and provides guidance for determining the appropriate penalty amount. In calculating the base penalty, the Guidance policy and Worksheet use a matrix to determine whether the potential for harm to natural resources was minor, moderate or major, and whether the deviation from compliance was minor, moderate, or major.[30]
28. The Guidance policy and Worksheet permit the base penalty to be adjusted (enhanced or mitigated) for willfulness of culpability, history of past violations, economic benefit gained from the violation, and other factors as justice may require.[31]
29. The MPCA held a forum discussion on September 18, 2008. The forum considered the information presented in the Case Development Form and determined that three violations had occurred and that those violations were serious. The forum reasoned that:
[The violations were serious] because they resulted in nuisance conditions to waters of the state. The regulated party failed to minimize, recover or abate the discharges to waters of the state and exacerbated negatively the already impaired water. Immediate notification of the State Duty Officer and the MPCA by a discharger is critical as it gives the MPCA the ability to respond to a discharge in a timely manner.[32]
30.
The MPCA determined that the violations were
repeat based on the previous
31. The MPCA determined that the Potential for Harm factor was Major and that the Deviation from Compliance factor was Moderate. The MPCA reasoned that:
The potential for harm was realized and is Major because: 1) there was a direct discharge of sediment, drilling mud and chemically contaminated wastewater (industrial waste) to waters of the state; 2) silt-laden water is very high in TSS [Total Suspended Solids], and exacerbates negatively to this impaired water; and 3) Roberts Creek/Cedar River are impaired for Turbidity; turbidity/TSS is imperative to this violation.
The deviation from compliance is considered Major (sic) because: 1) The regulated party failed to notify the MPCA, nor did they make an attempt to minimize, abate or prevent pollution to waters of the state. The immediate notification to the MPCA allows the MPCA to adequately respond to discharges and make appropriate evaluations to determine what actions should be taken to prevent further impact to the environment and recovery of waste materials. It is also critical that the RP [Regulated Party] rapidly recover discharged material and take actions to minimize pollution in order to minimize the environmental impact from the discharge to the receiving waters of the state.[34]
32. The MPCA determined the base penalty range for a major potential for harm and a moderate deviation from compliance was $3,500 to $8,000. The MPCA set the base penalty amount at $7,500. The MPCA matrix for calculating the base penalty is shown below:[35]
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Deviation from Compliance |
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Minor |
Moderate |
Major |
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Potential |
Major |
$5,000 to $2,000 |
$8,000 to $3,500 |
$10,000 to $5,000 |
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For |
Moderate |
$2,000 to $500 |
$3,500 to $1,000 |
$5,000 to $2,000 |
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Harm |
Minor |
$500 to $0 |
$1,000 to $200 |
$2,000 to $500 |
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33. The forum addressed the enhancement or mitigation of the base penalty by considering the factors of willfulness/culpability, history of past violations, other factors such as justice may require, and economic benefit. The forum determined that a 20 percent enhancement was appropriate because of Thein’s prior violations in 2002. The penalty was not enhanced or mitigated pursuant to any other factor.[36]
34. The forum determined that the penalty was non-forgivable because the violations were serious.[37]
35.
On
36.
On January 7, 2009, Thein appealed the
37.
On
38. At the hearing, Mark Thein stated that he received adequate notice of the hearing.[42]
39. Any Conclusion of Law more appropriately considered a Finding of Fact is hereby adopted as such.
Based on the above Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Administrative Law Judge and the Commissioner of the Minnesota Pollution Control Agency have jurisdiction in this case pursuant to Minn. Stat. §§ 14.57 – 14.62 and Minn. Stat. § 116.072.
2.
The Notice of
and Order for Hearing in this matter was improper. Pursuant to Minn. Stat. § 116.072, subd.
6(a), if the Respondent requests an expedited hearing, the Commissioner of MPCA
must notify Respondent of the time and place of the hearing at least 20 days
before the hearing. The Notice of and
Order for Hearing in this matter was issued on
3.
Although the
Notice of and Order for Hearing was untimely, Respondent stated that he had
adequate notice of the hearing.
Accordingly, Respondent has waived any argument that the
4. The Department has satisfied all other all relevant substantive and procedural requirements of law and rule, and this matter is properly before the Administrative Law Judge.
5.
The MPCA has the
burden to establish by a preponderance of the evidence that Thein violated applicable
laws or rules and that issuance of the Administrative Penalty Order was
warranted. If the violations are established, the Administrative Law
Judge may not recommend a penalty different in amount than that contained in
the Administrative Penalty Order unless the amount of the proposed penalty is
determined to be unreasonable, after considering the factors set forth in Minn.
Stat. § 116.072, subd. 2(b).[44]
6.
The MPCA proved
by a preponderance of the evidence that Thein discharged sediment and
chemically-contaminated wastewater to waters of the state (Roberts Creek) and
that this discharge caused nuisance conditions of excessive suspended solids,
material discoloration and turbidity in violation of Minn. R. 7053.0205, subp.
2.
7.
The MPCA proved
by a preponderance of the evidence that Thein discharged sediment and
chemically-contaminated wastewater to waters of the state (Roberts Creek) and
that this discharge caused pollution of excessive suspended solids in violation
of Minn. R. 7050.0210, subp. 13.
8.
The MPCA proved
by a preponderance of the evidence that Thein failed to notify the MPCA that a
discharge of sediment-contaminated wastewater to waters of the state had
occurred and that Thein also failed to rapidly recover discharged material and
take actions to minimize and abate the pollution, in violation of Minn. Stat. §
115.061.
9.
Under Minn.
Stat. § 116.072, subd. 3, an Administrative Penalty Order must include “a
concise statement of the facts alleged to constitute a violation” and “a
reference to the section of the statute, rule, ordinance, variance, order,
stipulation agreement, or term or condition of a permit or license that has
been violated.” The MPCA provided adequate notice of violations under
this provision.
10.
The Commissioner
has the authority to assess penalties of up to $10,000 for violations of MPCA
regulations. Pursuant to Minn. Stat. § 116.072, subd. 2(b), the
Commissioner may consider the following factors in determining the amount of
the penalty:
(1) the willfulness of the violation;
(2) the gravity of the violation, including damage to humans, animals, air, water, land, or other natural resources of the state;
(3) the history of past violations;
(4 the number of violations;
(5) the economic benefit gained by the person by allowing or committing the violation; and
(6) other factors as justice may require.
11.
Thein’s prior
violations, for which it was issued an
12.
For a repeated
or serious violation, the Commissioner may issue an order with a penalty that will
not be forgiven after the corrective action is taken, in accordance with Minn.
Stat. § 116.072, subd. 5(b). The MPCA has shown that the present
violations were serious, and therefore a non-forgivable penalty is appropriate.
13.
Based upon a
consideration of all of the statutory factors, and for the reasons discussed in
the Memorandum, the $9,000 penalty assessed by the MPCA against Thein is
reasonable and supported by the record in this matter.
14.
Any Finding of
Fact more properly termed a Conclusion is adopted as such. Any Conclusion more properly termed a Finding
of Fact is adopted as such.
15.
These
Conclusions are reached for the reasons discussed in the following Memorandum,
which is hereby incorporated into these Conclusions.
Based upon the above Conclusions, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS HEREBY RECOMMENDED: That the Commissioner AFFIRM the violations and penalty set out in the Administrative Penalty Order issued on December 29, 2008, to Thein Well Company, Inc.
Dated: March 5, 2009.
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s/Raymond R. Krause |
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RAYMOND R. KRAUSE |
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Chief Administrative Law Judge
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Reported: Digitally Recorded; Not Transcribed.
NOTICE
This Report is a recommendation, not a final
decision. The Commissioner of the Minnesota Pollution Control
Agency will make the final decision after a
review of the record. The Commissioner may adopt, reject or
modify the Findings of Fact, Conclusions, and Recommendations contained herein.
Pursuant to
If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a. The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, or upon the expiration of the deadline for doing so. The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.
MEMORANDUM
On
Despite the fact that
Thein admitted the actual discharge to
Second, Thein argued that
the violation was unavoidable and that the suggested BMPs, such as a containing
basin or silt pit, were unrealistic.
Because of the vast amount of water that was required to drill the well
at the Akkerman site – approximately 240,000 gallons of water in eight hours –
Thein argues that no BMPs could be used to prevent the discharge into
Third, Thein argued that
the damage to the stream was negligible because the MPCA never tested the
discharge and because the drill foam it used at the Akkerman site has been
approved by the Minnesota Department of Health for use in potable wells. The statutes and rules preclude the discharge
of sediments and industrial waste into any waters of the state so as to cause
any pollution or nuisance conditions.
The evidence offered here was that discoloration, foaming and turbidity
were visible in
Finally, Thein argued that the assessed
penalty was excessive because Thein did not realize that the water entering the
stream was discolored; it did not gain economic benefit; it misunderstood the
previous
Likewise, the MPCA reasonably enhanced the
penalty because of Thein’s prior violations.
Thein violated the same rules and statute in 2002. Though Thein may have misunderstood the
corrective action outlined in the 2002
R. R. K.
[1] Testimony of Mark Thein; Ex. 4.
[2] Ex. 13.
[3] Exs. 2-3; Test. of William Buckley.
[4] Test. of W. Buckley.
[5] Test. of M. Thein; Ex. 22.
[6] Testimony of W. Buckley.
[7] Test. of W. Buckley; see also Exs. 2-4 (maps) and Ex. 5.
[8] Test. of W. Buckley.
[9] Test. of W. Buckley.
[10] Test. of W. Buckley; Ex. 13.
[11] Ex. 16; Test. of W. Buckley.
[12] Test. of W. Buckley.
[13] Test. of W. Buckley.
[14] Exs. 5-10.
[15] Ex. 11.
[16] Test. of W. Buckley; Test. of Nancy Christensen.
[17] Test. of W. Buckley.
[18] Test. of W. Buckley.
[19] Test. of W. Buckley.
[20] Test. of Ryan Swafford.
[21] Test. of. W. Buckley.
[22] Ex. 22.
[23] Test. of N Christensen.
[24] Ex. 13.
[25] Test. of M. Thein; Ex. 22.
[26] Ex. 17.
[27] Ex. 12.
[28] Ex. 13.
[29] Test. of R. Swafford; Ex. 15; Ex. 21.
[30] Exs. 20-21; Test. of K. Moon.
[31] Ex. 20-21.
[32] Exs. 15, 21; Test. of R. Swafford.
[33] Ex. 21; Test. of R. Swafford; Test. of Ken Moon.
[34] Ex. 21.
[35] Ex. 21; Test. of K. Moon.
[36] Ex. 21; Test. of K. Moon.
[37] Ex. 21; Test. of K. Moon.
[38]
This violation was previously found at Minn. R. 7050.0210, subp. 2. It was renumbered after the
[39] Ex. 18.
[40] Notice of and Order for Hearing.
[41] Notice of and Order for Hearing.
[42] Test. of M. Thein.
[43] Notice of and Order for Hearing.
[44] Minn. Stat. § 116.072, subd. 6(c).