ALJDEC

98A-F121-DEQ · Department of Environmental Quality · 1999-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 8, 1999 APPEARANCES: Former John’s Super Service appeared through Patrick Murphy, a principal in the Sally L. and George Ghiz Trust, which owns Former John’s Super Service; the Arizona Department of Environmental Quality appeared through its attorney, Joan Card, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The owner of Former John’s Super Service (“Ghiz”) and the Arizona Department of Environmental Quality (“the Department”) presented evidence and testimony and, based upon the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT Ghiz appeals the Department’s determination that $17,782.14 of Ghiz’ application is not eligible for supplemental reimbursement from the assurance account of the underground storage tank revolving fund under A.R.S. § 49-1051 et seq. in LUST (“Leaking Underground Storage Tank”) No. 2170.01-07. The Department determined that this amount was not eligible for reimbursement because it was incurred drilling a groundwater monitor well (“MW-10”) which (1) was not drilled in the location that the Department had approved and (2) did not contribute to the corrective action. The purposes of a groundwater monitor well such as MW-10 are (1) to measure the distance from the surface to the groundwater level to calculate the groundwater’s elevation above sea level; (2) to collect groundwater samples to measure the level of contamination, if any; and (3) to treat the groundwater if necessary. Location of MW-10 On April 26, 1996, the parties entered into a consent order regarding this LUST that, among other things, required Ghiz to submit a work plan to the Department for its approval. The consent order required that “[a]ny proposed changes by [Ghiz] to the approved Work Plan or schedule shall be submitted to [the Department] in writing and, shall not be implemented without prior written approval from [the Department].” The text of Ghiz’ proposed work plan, which the Department approved, required MW-10 to be located downgradient and “approximately 240 feet north of” an existing groundwater monitor well, MW-6. “Downgradient” refers to the direction of movement of subsurface water. This direction may change over time. The site plan that accompanied the revised work plan that Ghiz submitted to the Department on or about November 18, 1996 showed the proposed location of MW-10 in the southwest corner of landscaping surrounding the Salt River Project building, mostly to the north but slightly to the west of MW-6. The Department subsequently approved this aspect of the work plan. The site plan that accompanied the revised work plan that Ghiz submitted to the Department on or about April 17, 1997 showed the proposed location of MW-10 east of the southwest corner of landscaping surrounding the Salt River Project building, almost due north of MW-6. The Department also subsequently approved this aspect of the work plan. Presumably, the proposed locations of MW-10 on the November 18, 1996 and April 17, 1997 site plans incorporated information available at those times regarding the direction of movement of subsurface water and marked the spot the requisite distance downgradient from MW-6. MW-10 actually was drilled considerably east of the proposed locations shown on the approved site plans and northeast of MW-6. Ghiz selected the actual location of MW-10 based on information regarding the range of apparent downgradient flow obtained on August 8, 1997 from eight other groundwater monitor wells that had been drilled in the area. This information indicated, to be downgradient from MW-6, MW-10 should be drilled 20’1” east of the location shown on the April 17, 1997 site plan. Ghiz neither requested nor obtained the Department’s approval prior to drilling MW-10 in the location that its information showed was downgradient of MW-6. The Efficacy of MW-10 Ghiz anticipated MW-10 would intersect water at approximately 180’ below grade based on the varying depths at which the nine existing monitor wells had intersected water. Drilling was terminated in MW-10 at 210’ to avoid possibly drilling through the bottom of the aquifer and exposing it to contamination.[1] Although MW-10 was drilled to a total depth of 210’ and cased to a depth of 200’ from the surface, no measurable water has entered the casing to date. As a result, MW-10 cannot be used to calculate the groundwater’s elevation above sea level, to determine whether groundwater is contaminated at that location, or to treat the groundwater contamination, if any exists.

CONCLUSIONS OF LAW In this administrative proceeding, Ghiz bears the burden of proof and must establish by a preponderance of the evidence that the Department should have reimbursed the cost of drilling MW-10. See Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary at page 1064 (6th ed. 1990). A.R.S. § 49-1052(A) requires the Department to “provide from the assurance account partial coverage of the costs incurred . . . of a corrective action [for a LUST under A.R.S. § 49-1005].” The Department need not provide such coverage, however, if the owner of the LUST has not notified the Department of the proposed corrective action prior to commencement of the action. See A.R.S. § 49-1052(A) and (O). A.R.S. § 49-1054(A) requires the Department to “provide coverage from the assurance account for ninety per cent of the reasonable and necessary costs of corrective actions pertaining to soil and groundwater remediation.” A.R.S. § 49-1054(C) provides that “[c]orrective action costs that are preapproved by the department . . . are deemed reasonable, necessary and reimbursable. . . .” MW-10 may have been drilled downgradient of MW-6, but it was northeast of MW-6, not north as approved, nor in either of the proposed locations shown on the approved site plans. Although the Department possibly or even probably should have approved this deviation from the approved plans in the location of MW-10 had Ghiz sought such approval, since it did not, Ghiz has not established presumptive entitlement to reimbursement of the costs incurred in drilling MW-10 under A.R.S. § 49-1054(C). “For costs of all corrective action work conducted outside the scope of the pre-approved work plan the Department shall determine if those costs were reasonable and necessary, taking into consideration . . . the technical . . . reasonableness of the work.” A.A.C. R18-12-607.01(P)(1). In determining whether the location or depth of MW-10 was technically reasonable, the Department must consider “the adequacy of the corrective action in addressing the contamination of the site.” See A.A.C. R18-12-605(F). Because MW-10 did not further the corrective action undertaken by Ghiz to comply with the consent order, Ghiz has not established that the drilling was technically reasonable or that that the costs Ghiz incurred in drilling MW-10 should be eligible for supplemental reimbursement from the assurance account of the underground storage tank revolving fund.

RECOMMENDED ORDER Based on the foregoing, it is recommended that the Department’s October 27, 1998 final determination be affirmed.

Done this day, January 26, 1999.

_________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of January, 1999, to:

John Hagen, Acting Director Department of Environmental Quality 3033 North Central Avenue Phoenix, AZ 85012 ATTN: Lavonne Watkins

By _______________________________

----------------------- [1] The Department conceded at the hearing that this is a reasonable concern. Cf. A.A.C. R18-12-607.01(F)(4)(b) (Providing that “[b]orings shall not be drilled deeper than . . . 10 feet deeper than the last field detectable evidence of contamination.”).

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