14-003013EF Department Of Environmental Protection vs. Jeffrey M. Hill Status: Closed DOAH Final Order on Tuesday, December 2, 2014.

Summary: Respondent is liable under ten counts for violations of rules related to the operation of a community water system.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Petitioner,

vs. Case No. 14 - 3013EF

JEFFREY M. HILL,

Respondent.

_______________________________/

SUMMARY FINAL ORDER

Petitioner moved f or issuance of a summary final order by

Bram D.E. Canter, an Administrative Law Judge of the Division of

Administrative Hearings (ÐDOAHÑ), based on PetitionerÓs assertion

that there is no issue as to any material fact. No response to

the motion was submit ted by Respondent, nor did Respondent

respond to a subsequent Order to Show Cause w hy a summary final

order should not be issued.

APEARANCES

For Petitioner: Janet M. Tashner, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

For Respondent: Jeffrey M. Hill

908 Southeast Country Club Road

Lake City , Florida 32025

STATEMENT OF THE ISSUE S

The issues for determination in this case are whether

Respondent Jeffrey Hill should pay the administrative penalty and

investigative costs, and should undertake the corrective actions

that are demanded by the Fl orida Department of Environmental

Protection (ÐDepartmentÑ) in its Notice of Violation, Orders for

Corrective Action, and Civil Penalty Assessment (ÐNOVÑ).

PRELIMINARY STATEMENT

On or about April 25, 2014, the Department issued the NOV

against Jeffrey Hil l, Lance Hill, and their business entity known

as Lance Water, charging them with violatin g law s related to the

operation of a Ðcommunity water systemÑ located in Lake City,

Florida. When the Department referred the matter to DOAH, it

only named Jeffrey H ill as Respondent. All references hereafter

to ÐRespondentÑ refer only to Jeffrey Hill.

In a letter to the Department dated June 2, 2014, and

received by the Department on June 4, 2014, Respondent did not

allege any factual or legal grounds to rebut the a llegations and

charges in the NOV, but only referred to telephone conversations

with a Department employee and RespondentÓs willingness to meet

to discuss the matter. Attached to his June 2 letter, is a

letter from Respondent to the Secretary of the Depar tment, dated

May 16, 2014, in which Respondent claims that the Suwannee River

Water Management District (ÐSRWMDÑ) should be held responsible

for any problems with the community water system after it

obtained title to the real property.

On August 20, 2014, the Department moved to deem admitted

the requested admissions that Respondent had failed to respond

to. Respondent did not file a response to the motion and it was

granted. The Department requested official recognition of

certain documents filed in a c ircuit court action between SRWMD

and Respondent. The request is granted.

On October 28, 2014, the Department moved for summary final

order based on the pleadings, admissions of Respondent, and a

supporting affidavit, which the Department contends shows t here

is no issue as to any material fact. No response to the motion

was filed by Respondent. An Order to Show Cause was issued on

November 14, 2014, requiring Respondent to show cause why a

disputed issue of fact remained to be determined. The Order

war ned Respondent that, ÐThe failure to file a timely response to

this Order that shows good cause to hold an evidentiary hearing

will result in the immediate issuance of a summary final order

against Respondent.Ñ Respondent did not file a response to the

Or der to Show Cause.

FINDINGS OF FACT

1. Respondent is the owner and operator of a community

water system and its associated piping, designated PWS No.

2124409, located on parcel ID No. 03 - 4S - 17 - 07486 - 001 on Country

Club Road, in Lake City, Columbia County, Florida (Ðthe

propertyÑ).

2. Respondent is a ÐpersonÑ as defined in section

403.852(5) , Florida Statutes .

3. Respondent is a Ðsupplier of waterÑ as defined in

section 403.852(8).

4. The water system is a Ðpublic water systemÑ and a

Ðcommunity water sys temÑ as defined in section s 403.852(2) and

(3), respectively.

5. The community water system is a Category V, Class D

water system with a capacity of 28,800 gallons per day that

supplies between 25 and 3,300 people, using groundwater as its

source.

Count I

6. Count I of the NOV charges Respondent with failure to

sample for nitrate and nitrite in 2012 and 2013, which was

admitted by Respondent.

Count II

7. Count II of the NOV charges Respondent with failure to

sample for primary inorganic contaminants fo r the 2011 - 2013

compliance period, which was admitted by Respondent.

Count III

8. Count III of the NOV charges Respondent with failure to

analyze for secondary contaminants in the 2011 - 2013 compliance

period, which was admitted by Respondent.

Count IV

9. Count IV of the NOV charges Respondent with failure to

sample for volatile organic contaminants in the 2011 - 2013

compliance period, which was admitted by Respondent.

Count V

10. Count V of the NOV charges Respondent with failure to

sample for synthet ic organic contaminants in the 2011 - 2013

compliance period, which was admitted by Respondent.

Count VI

11. Count VI of the NOV charges Respondent with failure to

sample for total coliform from June 2013 to date, which was

admitted by Respondent.

Count VI I

12. Count VII of the NOV charges Respondent with failure to

employ an operator for the system since May 2013, which was

admitted by Respondent.

Count VIII

13. Count VIII of the NOV charges Respondent with failure

to submit test results required by Fl orida Administrative Code

Chapter 62 - 550, and failure to file a monthly operation report

since April 2013, which was admitted by Respondent.

Count IX

14. Count IX of the NOV charges Respondent with failure to

issue Tier 3 notices in May 2013 and March 20 14, advising

customers of the failure to monitor for certain contaminants,

which Respondent admitted.

Count X

15. Count X of the NOV charges Respondent with failure to

provide a consumer confidence report to his customers in 2012 and

2 013, which was admi tted by Respondent.

Count XI

16. In Count XI of the NOV, the Department states that it

incurred $530 in investigative costs related to this enforcement

matter, which is admitted by Respondent.

CONCLUSIONS OF LAW

17. The Department is the state agency w ith the power and

duty to regulate community water systems for the protection of

the public health pursuant to chapter 403, Part VI, Florida

Statutes, and the related rules in the Florida Administrative

Code.

18. If the Department has reason to believe a violation of

the law it administers has occurred, it may institute an

administrative proceeding to establish liability, recover

damages, impose administrative penalties that do not exceed

$10,000, and order the prevention, abatement, or control of the

cond itions creating the violation. See § 403.121(2)(a) and (b),

Fla. Stat. (2014).

19. Because the Department seeks to impose administrative

penalties, the Administrative Law Judge is to issue a final order

on all matters. See § 403.121(2)(d), Fla. Stat.

20 . Section 120.57(1)(h) provides that, in any proceeding

in which an administrative law judge has final order authority,

any party may move for a summary final order Ðwhen there is no

genuine issue as to any material fact.Ñ The pleadings,

officially recog nized materials, and admissions on file, together

with supporting affidavits, show there is no genuine issue as to

any material fact. Therefore, disposition of this case by

summary final order is appropriate.

21. All facts alleged in Counts I through XI of the NOV

have been admitted, and are further supported by record evidence.

Respondent is liable under all Counts.

22. Liability under Counts I through VI requires assessment

of an administrative penalty of $2,000 for each count, pursuant

to section 403 .121(4)(d), for failure to conduct required

monitoring and testing.

23. Liability under Count VII requires assessment of an

administrative penalty of $500 , pursuant to section 403.121(5) ,

for failure to comply with a Department rule. The rule violated

is rule 62 - 555.350(8).

24. Liability under Count VIII and X requires assessment of

an administrative penalty of $500 for each count, pursuant to

section 403.121(4)(f), for failure to submit required reports.

25. Liability under Count IX requires assessment of an

administrative penalty of $1,000 , pursuant to section

403.121(4)(e) , for failure to respond to emergencies.

26. The total penalties allowed to be assessed under the

statute for the violation s charged in Counts I through X are

$14,500. However, the Department cannot impose penalties that

exceed $10,000 in a notice of violation. See § 403.121(2)(b) ,

Fla. Stat . Therefore, Respondent is liable for a total penalty

assessment of $10,000.

27. In Count XI of the NOV, the Departments seeks to

recover $53 0 in investigative costs. Pursuant to section

403.121(4)(f), the prevailing party shall recover all costs.

Therefore, the Department is entitled to recover these costs.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

OR DERED that:

1. Respondent shall correct and redress all violations

within the time periods required below and shall comply with all

applicable rules in the Florida Administrative Code related to

community water systems. All payments, documents, reports, and

test results that are required to be submitted to the Department

shall be submitted to: Florida Department of Environmental

Protection, Northeast District, Potable Water Section, 8800

Baymeadows Way West, Suite 100, Jacksonville, Florida 32256 - 7590.

2. Within 10 days of the date of this Order, Respondent

shall obtain permission from the property owner for site access

to perform these corrective actions. Should the property owner

deny site access, Respondent shall inform the Department within

48 hou rs.

3. Within 14 days of the date of this order, Respondent

shall employ an operator to operate the community water system

and shall notify the Department of the operatorÓs name.

4. Within 30 days of the date of this Order, Respondent

shall comply with rule 62 - 555.350(6), which requires suppliers of

water to maintain a minimum 0.2 milligrams per liter of free

chlorine residual throughout the distribution system and shall

demonstrate such compliance to the Department.

5. Within 30 days of the date of t his Order, Respondent

shall collect samples and submit to the Department results for

total coliform, nitrate, nitrite, primary inorganics

contaminants, secondary contaminants, volatile organic

contaminants, and synthetic organic contaminants.

6. Within 3 0 days of the date of this Order, Respondent

shall submit to the Department monthly operation reports from

April 2013 to date.

7. Within 30 days of the date of this Order, Respondent

shall pay $10,000 to the Department for the assessed penalties.

Paymen t shall be made by cashierÓs check or money order payable

to ÐState of Florida Department of Environmental ProtectionÑ and

shall include thereon ÐOGC No. 13 - 1453Ñ and the notation

ÐEcosystem Management and Restoration Trust Fund.Ñ

8. Within 10 days of th e date of this Order, Respondent

shall pay $530 to the Department for its investigative costs.

Payment shall be made by cashierÓs check or money order payable

to ÐState of Florida Department of Environmental ProtectionÑ and

shall include thereon ÐOGC No. 13 - 1453Ñ and the notation

ÐEcosystem Management and Restoration Trust Fund.Ñ

DONE AND ORDERED this 2nd day of December , 2014 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 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 2nd day of December , 201 4 .

COPIES FURNISHED:

Jeffrey M. Hill

908 Southeast Country Club Road

Lake City, Florida 32025

Janet M. Tashner, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

(eServed)

Cliff ord D. Wilson, III, Interim Secretary

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

(eServed)

Matthew Z. Leopold, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Com monwealth Boulevard

Tallahassee, Florida 32399

(eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

(eServed)

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 Appellate

Procedure. Such proceedings are commenced by filing the original

not ice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the Distric t Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.