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OAH 2-2200-21481-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA POLLUTION CONTROL AGENCY
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In the Matter of the Administrative Penalty Order Issued to Thein Well Rochester, Inc. |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came before Chief
Administrative Law Judge Raymond R. Krause pursuant to a Notice and Order for
Hearing dated September 7, 2010, and signed by Paul Eger, Commissioner of the
Minnesota Pollution Control Agency (MPCA). A hearing was held on September 22, 2010, at
the Office of Administrative Hearings,
Lawrence W. Fry, Assistant Attorney General appeared on behalf of the MPCA. Mark Thein, Vice President, Thein Well Rochester, Inc., appeared on behalf of the Respondent.
Chelsea Domeier, Pollution Control Specialist with the MPCA, was the only witness. MPCA exhibits 1 through 31F were admitted into evidence. The OAH record closed upon the conclusion of the hearing.
Whether the issuance of an Administrative Penalty Order (APO) to
Respondent under Minn. Stat. § 116.072 was reasonable. The Administrative Law Judge finds that the
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1. Mark Thein is the Vice President of Thein Well Rochester, Inc.[1] Thein Well Rochester, Inc., is a recently formed company. Thein Well Company of which Mark Thein was the owner was the subject of two past Administrative Penalty Orders.[2]
2. On July 23, 2009, a member of the public reported seeing a well drilling operation discharging “foamy liquid” into a nearby creek. The complaint was recorded on a Minnesota Duty Officer form and forwarded to the MPCA.[3]
3. Investigators of the MPCA and the Minnesota Department of Health (MDH) investigated the complaint. They found Thein Well Rochester employees on the site. The Thein employees were finishing up a well drilling operation for a new home recently constructed nearby. The MPCA and MDH investigators determined that drilling mud and/or foam were being discharged from a pipe at the drilling site onto a grassy area and eventually into Salem Creek. They also took several photographs of the site and the creek.[4] A trench had been cut by Thein employees that diverted waste to a pipe that then led to a grassy area between the drill site and the creek.[5]
4.
Salem Creek is a tributary of the South Fork of
the
5. MPCA investigator Dave Morrison took samples of the water at the discharge site, at a point upstream of the discharge site and a point equidistant below the discharge site. The samples were sent to the MDH for analysis.[7]
6. The analysis of the samples by MDH revealed that the water above the discharge site had a turbidity level of 2.3 NTU and a suspended solids level of 3.6 mg/L. At the discharge site, the turbidity was measured at 29 NTU and suspended solids at 110 mg/L. Downstream from the discharge site, the turbidity measured 130 NTU and the suspended solids measured 160 mg/L.[8] No tests were made to determine the nature of the suspended solids in the sample waters.[9]
7. The standards for Salem Creek are .20 NTU for turbidity, and 1.0 mg/L for suspended solids.[10]
8. Other preventative or mitigating measures were available that may have been more effective than simply spreading the effluent over a grassy area above the creek.[11]
9. On October 29, 2009, the MPCA sent Mr. Thein a letter notifying him of alleged violations of Minn. R. 7050.0210, General Standards for Discharges to Waters of the State and Minn. Stat. § 115.061, Duty to Notify and Avoid Water Pollution. The notice also offered him the opportunity to submit information related to the alleged violations.[12]
10. On November 11, 2009, Mr. Thein responded in a letter outlining the measures taken by his crew to avoid discharges into Salem Creek. He also stated that Thein Well Rochester did not notify the MPCA of the discharge because it was not aware of any discharge. In the letter, Mr. Thein noted that the MPCA letter was addressed to Thein Well Company, while he now operates a completely different company entitled Thein Well Rochester.[13]
11. The MPCA uses a forum process in cases that may involve a non-forgivable penalty. Ms. Domeier 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.[14]
12. 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.[15]
13. 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.[16]
14. The MPCA held a forum discussion on the alleged violations by Thein Well Rochester. The forum considered the information presented in the Case Development Form and determined that two 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 (RP) failed to minimize, recover or abate the discharges to waters of the state and; exacerbated negatively the already impaired water. Failure to notify the State Duty Officer and the MPCA by a discharger is serious as it prevents the MPCA from being able to respond to a discharge in a timely manner.[17]
15.
The MPCA determined that the violations were
repeat violations based on the previous APO issued to Thein in 2002 and the
16. The MPCA determined that the Potential for Harm factor was Major and that the Deviation from Compliance factor was Major. The MPCA reasoned that the potential for harm was realized and is Major because: 1) there was a direct discharge of industrial waste water to waters of the state; 2) the water discharged is very high in TSS [Total Suspended Solids], and negatively exacerbates this impaired water; and 3) Salem Creek is already impaired for fecal coliform and the Zumbro River is impaired for Turbidity.[19]
17. The deviation from compliance is considered Major because: 1) the regulated party failed to notify the MPCA, and 2) did not use effective best management practices (BMP’s) 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 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.[20]
18. The MPCA determined the base penalty range for a major potential for harm and a major deviation from compliance was $5,000 to $10,000. The MPCA set the base penalty amount at $5,000. The MPCA matrix for calculating the base penalty is shown below:[21]
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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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19. 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 40 percent enhancement was appropriate because of Thein’s prior violations in 2002 and 2008. The penalty was also enhanced 10 percent for willfulness/culpability.[22]
20. The forum determined that the penalty was non-forgivable because the violations were serious.[23]
21.
On February 12, 2010, the MPCA issued an
22. On March 10, 2010, Thein Well Rochester timely requested an administrative hearing.[25]
23. Thein Well Rochester waived the requirement of an expedited hearing.[26]
Based on these Findings of Fact, the Administrative Law Judge makes the following:
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 proper.
3. 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.
4.
The MPCA has the
burden to establish by a preponderance of the evidence that Thein Well
Rochester 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).[27]
5.
The MPCA proved
by a preponderance of the evidence that Thein Well Rochester discharged
industrial wastewater to waters of the state (Salem 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.
6.
The MPCA proved
by a preponderance of the evidence that Thein Well Rochester discharged
wastewater to waters of the state (Salem Creek) and that this discharge caused
pollution of excessive suspended solids in violation of Minn. R. 7050.0210,
subp. 13.
7.
The MPCA proved
by a preponderance of the evidence that Thein Well Rochester failed to notify
the MPCA that a discharge of wastewater to waters of the state had occurred,
that Thein Well Rochester also failed to rapidly recover discharged material
and take actions to minimize and abate the pollution, in violation of Minn.
Stat. § 115.061.
8.
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.
9.
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.
10.
Thein’s prior
violations, for which it was issued an
11.
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.
12.
Based upon a
consideration of all of the statutory factors, and for the reasons discussed in
the Memorandum, the $7,500 penalty assessed by the MPCA against Thein Well
Rochester is not unreasonable and is supported by the record in this matter.
13.
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.
14.
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 February 12, 2010, to Thein Well Rochester, Inc.
Dated: September 30, 2010
s/Raymond R. Krause
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RAYMOND
R. KRAUSE Chief
Administrative Law Judge |
Reported: Digitally
recorded
This report is a recommendation, not a final
decision. The Commissioner of the
Minnesota Pollution Control Agency (the MPCA) will make the final decision
after a review of the record. The
Commissioner may adopt, reject or modify these Findings of Fact, Conclusions,
and Recommendations. The parties have 10
calendar days after receiving this report to file Exceptions to the
report. At the end of the exceptions
period, the record will close. The
Commissioner then has 90 working days to issue his final decision. Parties should contact Paul Eger,
Commissioner of the Minnesota Pollution Control Agency, Commissioner, Minnesota
Pollution Control Agency,
Under Minn. Stat. §
14.62, subd. 1, the agency is required to serve its final decision upon each
party and the Administrative Law Judge by first class mail or as otherwise
provided by law.
Mr. Thein chose
not to testify as a witness in this matter. No evidence was introduced by Respondent to
contradict the evidence produced by the MPCA. Mr. Thein, in his closing argument,
suggests that the sample methodology taken in this case was flawed because the
sampler chose a clear spot in the creek above the discharge site and a polluted
spot downstream of the discharge. He
argues that the sample sites were not random but chosen to make worst case
examples. He believes his enterprises
have been unfairly singled out for enforcement actions over the years. He alleges that he did use exemplary methods
to protect the site and that there was no practical way to recover the
pollutants once they entered the creek. Finally,
he argues that the
The MPCA has clearly and convincingly proven that contaminants from the well drilling site entered the waters of Salem Creek. Whether the contaminants were drilling mud, drilling foam, or limestone cuttings is irrelevant. Any of these substances are considered pollutants under the statute encompassing this violation. Whatever the substance was, there was enough of it to render samples that were over five times the standards set for Salem Creek. In addition, the discoloration was so significant that it was first reported by a pilot flying an airplane above the site. Even if one were to completely disregard the water samples and the analysis done by MDH, it is incontrovertible that the water of Salem Creek was discolored by discharges from the Thein well site. Discoloration alone is sufficient to violate Minn. R. 7050.0210, subps. 2 and13.
Mr. Thein does not dispute that the pollution emanated from his drilling operation. Also he does not dispute that neither he nor anyone from his company reported the spill. His argument that there was no notification because no one was aware of the spill is belied by the fact that they knew the creek was nearby and that their discharge would run down hill toward the creek.
Thein’s employees did use a “best management practice” by spreading the effluent over a grassy area. Unfortunately, the best management practices that were used were ineffective to prevent the spill. Since the grassy area was on a slope leading down to the creek it was not reasonable to believe that spreading the waste there as the only BMP would be an effective preventative measure. A regulated party is not absolved from responsibility for a spill simply because it used one BMP that was ineffective under the circumstances in that particular situation. Other preventative or corrective measures were available to the drilling team in this situation.[28]
The MPCA did not
err when it considered the previous
Finally, Mr. Thein’s argument that he is being unfairly singled out for enforcement action is not an issue over which this tribunal has authority. In this case the violations were proven and the consequences were reasonable.
R. R. K.
[1] Ex. 3.
[2] Ex. 30 B.
[3] Exs.
16 and 24A-AA. Test. of
[4] Exs. 17, and 24A-AA. Test. of C. Domeier.
[5] Test. of C. Domeier.
[6]
[7] Exs. 22 and 23.
[8] Ex. 25.
[9] Test. of C. Domeier.
[10] Ex. 25 and Test of C. Domeier.
[11] Test. of C. Domeier.
[12] Ex. 26.
[13] Ex. 27.
[14] Test. of C. Domeier.
[15] Exs. 7-15; Test. of C. Domeier.
[16] Ex. 12 and 13.
[17] Ex. 14; Test. of C. Domeier.
[18] Exs. 30A, and 31A; Test. of C. Domeier.
[19] Ex. 14.
[20]
[21] Ex. 14; Test. of C. Domeier.
[22]
[23]
[24] Exs. 1 and 2.
[25] Ex. 3.
[26] Ex. 6.
[27] Minn. Stat. § 116.072, subd. 6(c).
[28] Test. of C. Domeier.
[29] See Ex. 12, p. 2.