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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4161

)

EDWARD TANNER, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

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

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

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Margaret M. Lytle, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

For Respondent: Edward Tanner, pro se

1137 Saint Anne Shrine Road

Lake Wales, Florida 33853

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether the

Department should impose administrative penalties in the form of

fines, costs and points assessment because of the matters alleged

in the Administrative Complaint and Order entered herein.

PRELIMINARY STATEMENT

By Administrative Complaint and Order dated August 9, 1996,

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

to assess administrative penalties against the Respondent herein,

for his alleged failure to comply with the conditions for

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

1996, and his failure to file a completion report for the well

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

3.411(1)(a), Florida Administrative Code . Respondent thereafter

requested formal hearing and this hearing ensued.

At the hearing, Petitioner presented the testimony of Brian

Starford, a water use requirements manager for the District;

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

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

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

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

services coordinator for the District. Petitioner also

introduced Petitioner’s Exhibits One through Sixteen. Respondent

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

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

also officially recognized Chapter 373, Florida Statutes , and

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

Administrative Code .

A transcript of the proceedings was furnished. Subsequent

to the receipt thereof, only counsel for Petitioner submitted

Proposed Findings of Fact which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

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

Petitioner, SWFWMD, was the governmental agency responsible for

the licensing of well contractors and the permitting of well

drilling and abandonment within its jurisdictional area.

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

holding license Number 2276 issued on July 21, 1982.

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

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

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

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

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

well at the site and abandon the failed well.

3. Stipulation Number Four of the permit issued to the

Respondent provided that the well must be examined for debris or

obstructions from the land surface to the original depth of

construction, and further required that any debris or obstruction

discovered be removed from the well prior to the commencement of

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

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

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

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

denoted District personnel.

4. Though Respondent did not utilize the approved method of

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

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

show some emergency or hardship which would have prevented him

from properly filling the abandoned well with cement from top to

bottom and justified an alternative method of abandonment.

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

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

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

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

District. Respondent did not seek this variance. Well

abandonment is a regulated practice because, inter alia , improper

abandonment may result in contamination of the aquifer. The well

in question here is located in an area susceptible to

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

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

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

Respondent also failed to file a well completion report within

thirty days of completion of his abandonment effort. The

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

months after it was due.

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

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

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

he saw the problem, he contends he repeatedly advised the

authorities that the well was leaking sand and could not be

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

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

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

McCrimmon what the situation was and advised him the well needed

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

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

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

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

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

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

off on the new well.

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

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

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

position. Calandra persisted in his position and even, according

to Respondent, bet with another District employees that

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

not recall any such bet.

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

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

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

the District personnel in charge how many bags of concrete would

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

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

called for the required observer to be present from the District

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

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

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

that, was served with the notice of violation.

13. Respondent contends either that the witnesses for the

District are lying in their denials of the coercive statements he

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

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

required to stay current regarding all the District rules

regarding well construction and abandonment because the rules

change so often.

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

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

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

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

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

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

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

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

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

done or said by District personnel.

15. Taken together, the evidence does not demonstrate that

anyone from the District staff coerced Respondent into abandoning

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

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

abandonment permit he obtained did require the complete clearing

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

16. The costs incurred by the District in the investigation

and enforcement of this alleged violation totaled in excess of

$500.00.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case. Section 120.57(1), Florida Statutes .

18. The Southwest Florida Water Management District has

been granted the authority to regulate water well contractor and

water well construction under a delegation agreement with the

Department of Environmental Protection authorized by Chapter 373,

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

Florida Administrative Code .

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

Administrative Code , the SWFWMD may impose conditions on permits

issued by it under such reasonable conditions as are necessary to

protect the water resources in issue and insure the permitted

activity will conform to District objectives. In that regard,

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

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

3.411(1)(a) requires that a completed well report be submitted to

the District within thirty days of completion of the work

authorized by the permit.

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

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

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

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

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

partial closing might have been acceptable if Respondent had

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

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

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

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

necessary variance. Further, Respondent also admits he did not

file the necessary report in a timely manner.

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

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

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

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

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

completion notwithstanding the fact that the abandonment of the

other well was not accomplished properly.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Southwest Florida Water

Management District enter a final order finding Respondent,

Edward Tanner, guilty of improperly abandoning the well in issue

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

assessing enforcement costs in the amount of $500.00 in addition

to an administrative fine of $250.00.

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

Tallahassee, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of January, 1997.

COPIES FURNISHED :

Margaret M. Lytle, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

Edward Tanner

1137 Saint Anne Shrine Road

Lake Wales, Florida 33853

Peter G. Hubbell

Executive Director

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this recommended order should be filed with the agency that will

issue the final order in this case.