96-004161 Southwest Florida Water Management District vs. Edward Tanner
 Status: Closed
Recommended Order on Wednesday, January 29, 1997.


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Summary: Well contractor filled only a portion of an abandoned well and failed to timely file closure report. Contractor is guilty of misconduct.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8SOUTHWEST FLORIDA WATER )

12MANAGEMENT DISTRICT, )

15)

16Petitioner, )

18)

19vs. ) CASE NO. 96-4161

24)

25EDWARD TANNER, )

28)

29Respondent. )

31___________________________________)

32RECOMMENDED ORDER

34A hearing was held in this case in Bartow, Florida on

45December 19, 1996, before Arnold H. Pollock, an Administrative

54Law Judge with the Division of Administrative Hearings.

62APPEARANCES

63For Petitioner: Margaret M. Lytle, Esquire

69Southwest Florida Water

72Management District

742379 Broad Street

77Brooksville, Florida 34609-6899

80For Respondent: Edward Tanner, pro se

861137 Saint Anne Shrine Road

91Lake Wales, Florida 33853

95STATEMENT OF THE ISSUE

99The issue for consideration in this case is whether the

109Department should impose administrative penalties in the form of

118fines, costs and points assessment because of the matters alleged

128in the Administrative Complaint and Order entered herein.

136PRELIMINARY STATEMENT

138By Administrative Complaint and Order dated August 9, 1996,

147the Southwest Florida Water Management District, (SWFWMD), seeks

155to assess administrative penalties against the Respondent herein,

163for his alleged failure to comply with the conditions for

173abandonment outlined in the permit issued to him on January 16,

1841996, and his failure to file a completion report for the well

196within the time required by District rules 40D-3.531 and 40D-

2063.411(1)(a), Florida Administrative Code . Respondent thereafter

213requested formal hearing and this hearing ensued.

220At the hearing, Petitioner presented the testimony of Brian

229Starford, a water use requirements manager for the District;

238Jerry W. McCrimmon, a property owner who has used Respondent’s

248services in the past; Michael L. Phillippi, a hydrologist with

258the District; Bradley J. Wheless, a well construction permitting

267coordinator for the District; and Jim B. Calandra, a field

277services coordinator for the District. Petitioner also

284introduced Petitioner’s Exhibits One through Sixteen. Respondent

291testified in his own behalf, presented the testimony of his son,

302Eric Parrish; William E. Lee and Mark Alford. The undersigned

312also officially recognized Chapter 373, Florida Statutes , and

320Chapters 40D-3, 62-524, 62-531, and 62-532, Florida

327Administrative Code .

330A transcript of the proceedings was furnished. Subsequent

338to the receipt thereof, only counsel for Petitioner submitted

347Proposed Findings of Fact which have been considered in the

357preparation of this Recommended Order.

362FINDINGS OF FACT

3651. At All times pertinent to the issued herein, the

375Petitioner, SWFWMD, was the governmental agency responsible for

383the licensing of well contractors and the permitting of well

393drilling and abandonment within its jurisdictional area.

400Respondent, Edward Tanner, was a licensed water well contractor,

409holding license Number 2276 issued on July 21, 1982.

4182. On January 16, 1996, SWFWMD issued Well Construction

427permit 575267.01 to Respondent for the abandonment of a four-inch

437diameter water well on property owned by Mr. McCrimmon located at

448Five Tera Lane in Winter Haven. The well, a domestic water well,

460had failed and Respondent applied for a permit to construct a new

472well at the site and abandon the failed well.

4813. Stipulation Number Four of the permit issued to the

491Respondent provided that the well must be examined for debris or

502obstructions from the land surface to the original depth of

512construction, and further required that any debris or obstruction

521discovered be removed from the well prior to the commencement of

532abandonment. In addition, the stipulation called for the well to

542be plugged from bottom to top by an approved method of grouting.

554According to the permit, if any other method of abandonment was

565to be used, it must be approved in advance by specifically

576denoted District personnel.

5794. Though Respondent did not utilize the approved method of

589abandonment in this project, he did not apply for a variance from

601the District. Had he done so, he would have been required to

613show some emergency or hardship which would have prevented him

623from properly filling the abandoned well with cement from top to

634bottom and justified an alternative method of abandonment.

6425. In this case, Respondent plugged the well in issue,

652which was 210 feet in depth, from the land surface down to fifty

665five feet, utilizing six bags of portland cement. Deviation from

675the 210 foot plug required a variance to be granted by the

687District. Respondent did not seek this variance. Well

695abandonment is a regulated practice because, inter alia , improper

704abandonment may result in contamination of the aquifer. The well

714in question here is located in an area susceptible to

724contamination by ethylene dibromide, (EDB), recognized as a human

733carcinogen, which is known to be present in the area.

7437. In addition to failing to properly abandon the well,

753Respondent also failed to file a well completion report within

763thirty days of completion of his abandonment effort. The

772required report was submitted on June 10, 1996, nearly four

782months after it was due.

7878. Respondent relates that in January 1996, after he had

797worked on a well “commonly known” to be the subject of

808litigation, he was asked to try to fix the well in issue. When

821he saw the problem, he contends he repeatedly advised the

831authorities that the well was leaking sand and could not be

842cleaned out to the bottom as the District required. Therefore,

852to preserve the integrity of the well, he plugged it at a point

865below the break in the well lining. At that time, he told Mr.

878McCrimmon what the situation was and advised him the well needed

889to be abandoned, but he, Tanner, did not do that type of work.

9029. Respondent contends, supported by his son, that on

911January 16, 1996, while he was at Mr. McCrimmon’s property, he

922was told by Mr. Wheelus and Mr. Lee, both District officials,

933that Mr. Calandra, also a District official had said he, Tanner,

944had to pull a well abandonment permit or Calandra would not sign

956off on the new well.

96110. At that point, Respondent claims, he went to the

971District’s Bartow office to argue with Mr. Calandra, and asked

981Mr. Calandra to show him the law which supported Calandra’s

991position. Calandra persisted in his position and even, according

1000to Respondent, bet with another District employees that

1008Respondent had to do what he was told. This other employee does

1020not recall any such bet.

102511. Therefore, under protest and only so he could get paid

1036for the work he had done on the new well, Respondent agreed to

1049pull the abandonment permit. At that time, he claims, he asked

1060the District personnel in charge how many bags of concrete would

1071be required to abandon the well and was told, “six”.

108112. When the time came to do the actual work, Respondent

1092called for the required observer to be present from the District

1103office, but because no one was available at the time, he was

1115granted permission to do it without observation. He did the job

1126as he felt it had to be done, and thirty days to the day after

1141that, was served with the notice of violation.

114913. Respondent contends either that the witnesses for the

1158District are lying in their denials of the coercive statements he

1169alleges, or the situation is a conspiracy to deprive him of his

1181civil rights. He does not believe a well contractor should be

1192required to stay current regarding all the District rules

1201regarding well construction and abandonment because the rules

1209change so often.

121214. Respondent admits, however, that the rules in existence

1221at the time in question required the filling of a well all the

1234way down and that he did not do that nor did he seek a variance.,

1249He knew he was required to comply with the conditions of a

1261permit. He also admits that a completion report was due within

1272thirty days of work completion. In that regard, however, he

1282contends that when the issue went into litigation, he felt the

1293district would advise him of what he had to do. In this he was

1307mistaken, but he was not misled into believing so by anything

1318done or said by District personnel.

132415. Taken together, the evidence does not demonstrate that

1333anyone from the District staff coerced Respondent into abandoning

1342the well. He was issued a permit to drill the new well for Mr.

1356McCrimmon with no conditions thereon. By the same token, the

1366abandonment permit he obtained did require the complete clearing

1375and total plugging of the abandoned well, and this was not done.

138716. The costs incurred by the District in the investigation

1397and enforcement of this alleged violation totaled in excess of

1407$500.00.

1408CONCLUSIONS OF LAW

141117. The Division of Administrative Hearings has

1418jurisdiction over the parties and the subject matter in this

1428case. Section 120.57(1), Florida Statutes .

143418. The Southwest Florida Water Management District has

1442been granted the authority to regulate water well contractor and

1452water well construction under a delegation agreement with the

1461Department of Environmental Protection authorized by Chapter 373,

1469part III, Florida Statutes , and Rules 40D-3.524,.531 and .532,

1479Florida Administrative Code .

148319. Consistent with the terms of Rule 40D-3.301(2), Florida

1492Administrative Code , the SWFWMD may impose conditions on permits

1501issued by it under such reasonable conditions as are necessary to

1512protect the water resources in issue and insure the permitted

1522activity will conform to District objectives. In that regard,

1531Rule 40D-3.531 requires all abandoned and incomplete wells be

1540plugged with grout from top to bottom. In addition Rule 40D-

15513.411(1)(a) requires that a completed well report be submitted to

1561the District within thirty days of completion of the work

1571authorized by the permit.

157520. In the instant case, the evidence clearly indicates,

1584and Respondent admits, that he did not properly abandon the well

1595in issue. Instead of filling it from top to bottom as required,

1607he plugged it down to a depth of only fifty five feet, claiming

1620he was prevented from plugging further by a sand leakage. This

1631partial closing might have been acceptable if Respondent had

1640sought and secured a variance from the requirements, but by his

1651own admission, he failed even to seek such a variance. His claim

1663that he sought and received advice as to how much cement would be

1676required to fill down to fifty five feet does not constitute the

1688necessary variance. Further, Respondent also admits he did not

1697file the necessary report in a timely manner.

170521. Respondent’s claim that he was coerced into taking on

1715the job of closing the well in issue is not supported by the

1728evidence of record. Not only does no one, save his son, confirm

1740his claim, the evidence also shows that a permit was issued to

1752Respondent to drill the new well, and that well was approved upon

1764completion notwithstanding the fact that the abandonment of the

1773other well was not accomplished properly.

1779RECOMMENDATION

1780Based on the foregoing Findings of Fact and Conclusions of

1790Law, it is recommended that the Southwest Florida Water

1799Management District enter a final order finding Respondent,

1807Edward Tanner, guilty of improperly abandoning the well in issue

1817and failing to file the required report in a timely manner, and

1829assessing enforcement costs in the amount of $500.00 in addition

1839to an administrative fine of $250.00.

1845DONE and ENTERED this 29th day of January, 1997, in

1855Tallahassee, Florida.

1857ARNOLD H. POLLOCK

1860Administrative Law Judge

1863Division of Administrative Hearings

1867The DeSoto Building

18701230 Apalachee Parkway

1873Tallahassee, Florida 32399-3060

1876(904) 488-9675 SUNCOM 278-9675

1880Fax Filing (904) 921-6947

1884Filed with the Clerk of the

1890Division of Administrative Hearings

1894this 29th day of January, 1997.

1900COPIES FURNISHED :

1903Margaret M. Lytle, Esquire

1907Southwest Florida Water

1910Management District

19122379 Broad Street

1915Brooksville, Florida 34609-6899

1918Edward Tanner

19201137 Saint Anne Shrine Road

1925Lake Wales, Florida 33853

1929Peter G. Hubbell

1932Executive Director

1934Southwest Florida Water

1937Management District

19392379 Broad Street

1942Brooksville, Florida 34609-6899

1945NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1951All parties have the right to submit written exceptions within 15

1962days from the date of this recommended order. Any exceptions to

1973this recommended order should be filed with the agency that will

1984issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
Date: 03/10/1997
Proceedings: Final Order filed.
PDF:
Date: 02/28/1997
Proceedings: Agency Final Order
PDF:
Date: 02/28/1997
Proceedings: Recommended Order
Date: 02/18/1997
Proceedings: (Respondent) Exceptions filed.
Date: 02/18/1997
Proceedings: Complainant`s Exceptions to Recommended Order filed.
PDF:
Date: 01/29/1997
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 12/19/96.
Date: 01/08/1997
Proceedings: Complainant`s Proposed Recommended Order; Complainant`s Argument; Complainant`s Exhibits ; Notice of Filing filed.
Date: 12/23/1996
Proceedings: Hearing Transcript filed.
Date: 12/19/1996
Proceedings: CASE STATUS: Hearing Held.
Date: 12/11/1996
Proceedings: Complainant`s Prehearing Statement; Cover Letter (filed via facsimile).
Date: 12/02/1996
Proceedings: (Petitioner) Prehearing Stipulation w/cover letter filed.
Date: 12/02/1996
Proceedings: Letter to M. Lytle from E. Tanner Re: Requesting certain people attend hearing filed.
Date: 09/27/1996
Proceedings: Notice of Hearing sent out. (hearing set for 12/19/96; 9:00am; Bartow)
Date: 09/19/1996
Proceedings: Joint Response to Initial Order filed.
Date: 09/11/1996
Proceedings: Initial Order issued.
Date: 09/03/1996
Proceedings: Agency referral letter; Notice of Referral; Administrative Complaint and Order; Request for Chapter 120 Hearing, letter form filed.

Case Information

Judge:
ARNOLD H. POLLOCK
Date Filed:
09/03/1996
Date Assignment:
12/12/1996
Last Docket Entry:
03/10/1997
Location:
Bartow, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

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