10-001249EF Department Of Environmental Protection vs. Premier Construction Group, Inc. Status: Closed DOAH Final Order on Tuesday, March 8, 2011.

Summary: Maximum penalty, plus costs and expenses, imposed on Respondent for water supply system violations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 10 - 1249EF

)

PREMIER CONSTRUCTION GROUP, )

INC., )

)

Respondent. )

)

FINAL ORDER

On January 20, 2011 , a final administrative hearing was

held in this case in Inverness before J. Lawrence Johnston,

Administrative Law Judge (ALJ) , Division of Administrative

Hearings (DOAH) .

APPEARANCES

For Petitioner: Howard Evan Fox, Esq uire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

For Respondent: Rick A. Suggs

Premier Construction Group

2315 Highway 41, North

Inverness, Florida 34453

STATEMENT OF THE ISSUE S

The issue s in this case are whether penalties should be

imposed and investigative costs and expense s assessed against

Respondent for water supply system violations ; and, if so, the

amount of the penalties and assessments .

PRELIMINARY STATEMENT

DEP filed and served on Respondent a Notice of Violation,

Orders for Corrective Action, and Administrative Pe nalty

Assessment, DEP OGC File No. 09 - 3847 - 09 - PW, alleging several

water treatment plant violations (the NOV) . Respondent disputed

most of the charges and requested an administrative hearing.

DEP referred the matter to DOAH for assignment to an ALJ.

Th e matter was heard in Inverness on January 20, 2011. At

the hearing, DEP called Emily Wakley, formerly an environmental

specialist in water treatment plant regulation, and Rick Suggs,

who is RespondentÓs owner, president, and registered agent. DEP

also h ad its Exhibits 1 - 14 admitted in evidence. Mr. Suggs also

testified in RespondentÓs case - in - chief. Mr. Suggs admitted the

alleged violations but requested a smaller penalty and cost

assessment.

A Transcript of the final hearing was filed, and DEP filed

a proposed final order (P F O), which has been considered.

(Respondent did not file a P F O.)

FINDINGS OF FACT

1. Respondent, Premier Construction Group, Inc., owns and

operates a water treatment plant and associated piping in a

commercial building it owns an d leases at 2315 Highway 41 North

in Inverness. The water tr eatment plant consists of a 500 -

gallon tank that holds groundwater pumped from a well. The

water in the tank is treated with chlorine and distributed

throughout the building for potable water us e. The water system

serves 25 or more people daily for at least 60 days a year and

serves the same people for over six months a year.

2. Respondent owned and operated the water system for 18

and a half years with no violations. Respondent hired a

licensed water treatment plant operator to monitor and ensure

compliance with applicable DEP rules.

3. In August 2009, RespondentÓs licensed operator

increased his price substantially. Rick Suggs , as RespondentÓs

owner and president, disputed the increase and aske d the

licensed operator to reconsider. Family obligations then

required Mr. Suggs to travel to South Carolina for an extended

period of time , and Respondent did not attend to the matter

further .

4. By the end of August 2009, RespondentÓs licensed

operator notified DEP that he would no longer be servicing

RespondentÓs water system as of the end of the month. On

August 24, 2009, DEP mailed Respondent a letter relaying this

information and putting Respondent on notice that a new licensed

operator would have t o be hired for September.

5. Notwithstanding RespondentÓs communications with its

licensed operator and DEP in August, Respondent did not hire a

new licensed operator. Mr. Suggs testified that Respondent did

not know its licensed operator actually quit un til later in

September. When this was brought to Mr. Suggs Ó attention, he

instructed his office manager to hire a replacement. Respondent

thought the matter was resolved, but t he supposed replacement

did not proceed with the work.

6. While Respondent was without a licensed operator, the

residual chlorine in the system dropped to zero when tested by

DEP on September 17, 24, and 30 and on October 7 and 13, 2009.

As a result, the water system did not comply with disinfection

requiremen ts during September and October 2009.

7. Respondent did not notify DEP of its failure to comply

with disinfection requirements in September and October 2009.

8. No monthly operation reports were submitted to DEP for

RespondentÓs water system for September or October 2009.

9. N o bac teriological samples were collected from

RespondentÓs water system for the months of September and

October 2009.

10. Respondent did no t notify DEP of its failure to

collect bacteriological samples in September and October 2009.

11. While without a licensed operator, Respondent did not

provide public notification of its failure to collect

bacteriological samples in September and October 2009.

12. Well into October 2009, Respondent became aware that

the supposed replacement licensed operator was not doing work

for Respondent . Mr. Suggs hired a replacement licensed operator

named Mike Watson, who began servicing RespondentÓs water system

on November 17, 2009. Public notification of RespondentÓs

failure to collect bacteriological samples in September and

Octobe r 2009 was given on November 25, 2009.

13. On December 11, 2009, Respondent submit ted a completed

DEP Form 62 - 555.900(22), Certification of Delivery of Public

Notice, as to its failure to notify the public of its failure to

collect bacteriological samples i n September and October 2009 .

14. By not having a licensed operator in September and

October 2009, Respondent saved $332.

15. By not having bacteriological samples collected and

tested in September and October 2009, Respondent saved $60.

16. There was evidence that DEP spent approximately $678

investigating and enforcing the violations. More may have been

spent, but no evidence of any additional costs or expenses was

presented.

17. There was no evidence of any other water treatment

violations by Respondent afte r October 2009.

18. Although there was a potential that the violations

could have posed a health threat, there was no evidence that the

publicÓs health actually was threatened by RespondentÓs

violations. T he water system was tested on November 18, 2009,

an d did not have any coliform bacteria.

19. The NOV includes corrective actions (essentially

coming into and staying in compliance), which Respondent already

has taken.

20. The NOV requests that penalties be paid within 30 days

by cashierÓs check or money orde r made payable to the ÐState of

Florida Department of Environmental ProtectionÑ and including

the notations OGC File No. 09 - 3847 - 09 - PW and Ð Ecosystem

Management and Restoration Trust Fund Ñ to be mailed to DEPÓs

Southwest District office at 13051 North Tele com Parkway, Temple

Terrace , Florida 33637.

21. Respondent believes the penalties sought by DEP in

this case are excessive. Mr. Suggs cited RespondentÓs clean

record for 18 and a half years, his personal and financial

difficulties during the two months whe n the violations occurred,

and his responsiveness in correcting violations beginning in

November 2009. Mr. Suggs testified that, during mediation, DEP

informed him that the penalties could have totaled $115,000 if

a n unexplained Ð matrix Ñ had been used to calculate the

penalties . Mr. Suggs thought $115,000 was Ðludicrous.Ñ

Mr. Suggs also requests that the lesser penalties sought in the

NOV be further reduced, especially considering that Respondent

paid a lawyer $2,800 for representation earlier in the

pro ceeding, until the lawyer withdrew from the case.

CONCLUSIONS OF LAW

22. This is an administrative proceeding under section

403.121(2), Florida Statutes, 1/ to impose penalties and require

corrective actions. The burden of proof is on DEP. See

§ 403.121(2) (d), Fla. Stat. DOAH has final order authority.

Id.

23. Respondent is a Ðsupplier of waterÑ under section

403.852(8) . RespondentÓs water system is a Ðpublic water

systemÑ and a Ðnontransient non - community water systemÑ as

defined by section 403.852(2) and (4). RespondentÓs water

system is a Ðground water systemÑ as that term is used in

Florida Administrative Code C hapters 62 - 550 and 62 - 555.

24. DEP proved Count I of the NOV, which alleged a

violation of rule 62 - 555.350(8) for RespondentÓs failure to

employ operation personnel under c hapters 62 - 602 and 62 - 699 in

September and October 2009 .

25. DEP proved Counts II through VI of the NOV, which

alleged violations of rules 62 - 555.320(12)(d) and 62 - 555.350(6)

for RespondentÓs failure to maintain at least 0.2 milli gram of

free chlorine residual in its water system on five occasions in

September and October 2009.

26. Count VII of the NOV alleged a violation of rule 62 -

555.350(10)(b)2., and therefore section 403.161, for

RespondentÓs failure to notify DEP of its failur e to comply with

disinfection requirements in September and October 2009. The

rule requires notification by noon of the next business day, but

the evidence was that Respondent did not know there was no

residual chlorine in the system. The $1,000 penalty for this

violation should not be added to the penalties for Counts I

through VI.

27. DEP proved Count VIII of the NOV, which alleged a

violation of rules 62 - 555.350(12)(b) and 62 - 550.730(1)(d), and

therefore section 403.161, for RespondentÓs failure to time ly

submit operation reports for September and October 2009, as

required by rule 62 - 555.900(2) - (4).

28. DEP proved Counts IX and X of the NOV, which alleged a

violation of rule 62 - 555.518(2), and therefore section 403.161,

fo r RespondentÓs failure to take mont hly total coliform samples

from the water distribution system during the months of

September and October 2009, as required for suppliers of water

for nontransient non - community water systems.

29. DEP proved Count XI of the NOV, which alleged a

violation of rule 62 - 555.518(11)(b), and therefore section

403.161, for RespondentÓs failure to report its coliform

monitoring violation to DEP within 48 hours of discovery of the

violation, as required for public water systems.

30. DEP proved Count XII of the NOV, whic h alleged a

violation of rule 62 - 560.410(3)(d), and therefore section

403.161, for RespondentÓs failure to notify the public of the

total coliform monitoring violations in September 2009 as soon

as possible and not more than 30 days after discovery of the

violations. 2/

31. DEP proved Count XIII of the NOV, which alleged a

violation of rule s 62 - 560.410(10) and 62 - 550.730(1)(b) , and

therefore section 403.161, for RespondentÓs failure to submit a

completed Form 62 - 555.900(22), Certification of Delivery of

Publi c Notice, to DEP within ten days after notifying the public

of the total coliform monitoring violation s in September and

October 2009, as required for suppliers of public water. 3/

32. DEP proved $678 of investigative costs and expenses

under Count XIV of th e NOV, which are recoverable under section

403.141(1).

33. Even without the $1,000 penalty sought in Count VII of

the NOV, t he penalties for Counts I through XIII far exceed

$10,000, which is the maximum for an NOV. See § 403.121(2)(b) ,

(4), (5), and (8), Fla. Stat.

34. Section 403.121(10) allows the ALJ to receive evidence

in mitigation and reduce t he penalties in subsection s (3), (4),

and (5) to 50 percent for mitigating circumstances, including

good faith efforts to comply prior to or after discovery of the

violations by the department. Even without the $1,000 penalty

sought in Count VII of the NOV, if those penalties were cut in

half, the total still would exceed the $10,000 maximum.

35. Section 403.121(10) also allows the ALJ to further

reduce penalties u pon an affirmative finding that the violation

was caused by circumstances beyond the reasonable control of the

R espondent and could not have been prevented by R espondent's due

diligence . No such affirmative find ing has been made.

36. Section 403.121(11) provides that p enalties Ð shall be

deposited in the Ecosystem Management and Restoration Trust Fund

( or an other trust fund if designated by statute ) and shall be

used to fund the restoration of ecosystems, or polluted areas of

the state, as defined by the d epartment, to their condition

before pollution occurred.

DISPOSITION

Based upon the foregoing Findings of Fact and Conclusions

of Law, Respondent shall pay a $10,000 administrative penalty

within 30 days, by cashierÓs check or money order made payable

t o the ÐState of Florida Department of Environmental ProtectionÑ

and including the notations OGC File No. 09 - 3847 - 09 - PW and

Ð Ecosystem Management and Restoration Trust Fund Ñ to be mailed

to DEPÓs Southwest District office at 13051 North Telecom

Parkway, Tem ple Terrace, Florida 33637.

DONE AND ORDERED this 8th day of March, 2011, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

12 30 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of March, 2011.

ENDNOTES

1/ C itations to sections refer to the Florida Statutes (2010);

citations to rules are to the version of the Florida

Administrative Code in effect at the time of the final hearing;

chapters will be specified as either Florida Statutes or Florida

Administrative Code chapters.

2/ In its Prehearing Statement filed on January 12, 2011, DEP

conceded that the public notification was timely as to the

October 2009 sampling violation .

3/ In its Prehearing Statement filed on January 12, 2011, DEP

conceded that the filing was untimely only as to the September

2009 monitoring violation; however, in its P F O, DEP contended

that the filing was untimely as to both the September and the

October 2009 monitoring violations , which was proven by the

evidence. The discrepancy has no effect on the penalty s ought

by DEP under County XIII.

COPIES FURNISHED:

Rick A. Suggs

Premier Construction Group

2315 Highway 41, North

Inverness, Florida 34453

Howard Evan Fox, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Ta llahassee, Florida 32399 - 3000

Rick A. Suggs

502 Turner Camp Road

Inverness, Florida 34453

Herschel T. Vinyard, Jr., Se cretary

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Tom Beaso n, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahasse e, Florida 32399 - 3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appella te

Procedure. Such proceedings are commenced by filing the original

Notice of Appeal with the agency clerk of the Division of

Administrative Hearings and a copy, accompanied by filing fees

prescribed by law, with the District Court of Appeal, First

Distri ct, or with the District Court of Appeal in the Appellate

District where the party resides. The notice of appeal must be

filed within 30 days of rendition of the order to be reviewed.