ALJDEC

98A-F121-DEQ-TAP-RHG · Department of Environmental Quality · 1999-11-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

REHEARING: October 5, 1999 at 9:00 a.m. APPEARANCES: The Sally L. and George Ghiz Trust, which owns former John’s Super Service (hereafter ”the Appellant”), appeared through its attorney, Karen E. Errant, Esq., Fennemore Craig; the Arizona Department of Environmental Quality (hereafter “the Department”) appeared through its attorney, Joan Card, Esq., Arizona Attorney General’s Office TECHNICAL APPEALS PANEL MEMBERS: Michael E. Beasley, Gail Clement, and Phillip A. Schneider. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The parties presented evidence on the issue of whether Appellant’s decision to install casing in groundwater monitor well no. 10 (hereafter “MW-10") was technically reasonable under A.R.S. § 49-1054(C) at the time of installation, entitling Appellant to reimbursement of the cost thereof, because either (1) installation of casing was appropriate in view of the factors enumerated in applicable administrative regulations; or (2) the Department had preapproved installation of casing in MW-10. Applicable Law The Department must “provide coverage from the assurance account for ninety per cent of the reasonable and necessary costs of corrective action pertaining to soil and groundwater remediation.” A.R.S. § 49-1054(A). “Corrective action costs that are preapproved by the [D]epartment or corrective actions performed at the written request or written instruction of the [D]epartment are deemed reasonable, necessary, and reimbursable.” A.R.S. § 49-1054(C). If the corrective action is not preapproved, the Department shall reimburse costs that it determines are “reasonable and necessary, taking into account . . . the technical . . . reasonableness of the work [and t]he objectives and contingencies of the preapproved work plan.” A.A.C. R18-12- 607.01(P)(1) and (2). The Department’s “determination of technical reasonableness shall consider facts available to the claimant at the time technical decisions were made” and be based on “the appropriateness of the utilized technology in view of the site specific conditions and the adequacy of the corrective action in addressing the contamination of the site.” A.A.C. R18-12-605(F). ADMINISTRATIVE LAW JUDGE’S FINDINGS OF FACT Procedure and Background This matter originally was heard on January 8, 1999, without the participation of the Technical Appeals Panel. The undersigned recommended and the Director of the Department (hereafter “the Director”) accepted the recommendation that the Department’s determination that the $17,782.14 Appellant spent boring and installing casing in MW-10 was ineligible for reimbursement from the assurance account of the underground storage tank revolving fund because these corrective actions were not technically reasonable in that (a) MW-10 was not drilled in the exact location that had been approved; and (b) MW-10 did not contribute to the corrective action because it did not encounter water. On April 16, 1999, the Director granted Appellant’s motion for a de novo rehearing to allow participation by the Technical Appeals Panel. Several weeks before the rehearing, the Department abandoned the position that the boring and casing costs Appellant had incurred for MW-10 were not eligible for reimbursement because Appellant had bored it in a location different from where the Department had approved. The Department also agreed to make eligible for reimbursement Appellant’s claim for the costs of boring MW-10. The Department assumed that boring was the most labor-intensive aspect of construction of MW-10 and, therefore, agreed to pay three quarters of the personnel costs claimed across-the-board, for a total cost of $9,701.50 for labor and materials, more than half of the amount originally at issue. The parties presented evidence and argument during the morning of October 5, 1999. Following the lunch break, the Panel deliberated during the afternoon. The undersigned, the parties, and their attorneys were present during the Panel’s public deliberations. A Summary of the Evidence Presented at the Rehearing on the Issue of Whether Appellant’s Costs in Installing Casing in MW-10 Is Reimbursable

The Approved Revised Workplan for the site provided that “[t]he investigation will consist of installing one monitor well [MW-10] to collect groundwater samples.” Appellant’s Exhibit 2 at 5-1. The Workplan also provided that “[t]he screened interval [for MW-10] will be from 5 feet above the highest known level for water table to 10-15 feet below the lowest known level of the water table. Based on the groundwater gradient between MW-1 and MW-6, depth to groundwater is expected to be approximately 190-210 feet bgs [below ground surface].” Id. at 5-4. Appellant began drilling MW-10 at 7:20 a.m. on August 9, 1997. The driller’s boring logs for MW-10 show that “silt, sand, moist” conditions were encountered below 110', that “silty sand, wet-moist . . . clayey” conditions were encountered at 175', and that “silty sand: Moist” conditions were encountered below 175’. The well reached 175' at 10:48 a.m., 190' at 11:25 a.m., 200' at 11:35 a.m., and 210' at 11:46 a.m., when boring was terminated to avoid contaminating the aquifer. Casing was then installed in MW-10. Appellant did not stop drilling at any point to allow for recharge or to use a bailer or a water level indicator. Appellant did not stop drilling and wait overnight to see if groundwater would flow back into the well before installing casing in it. Appellant explained at the hearing that it had to expedite completion of MW- because it was drilled on property belonging to Salt River Project and Appellant was concerned about whether SRP would allow access to the site over a more extended period of time. The consultant who prepared the Approved Revised Workplan was the second consultant Appellant retained to perform remediation at the site; MW-10 was the first groundwater monitor well that this second consultant drilled. The first consultant installed 6 groundwater monitor wells and 16 boring wells (“BW’s”). After MW-10 was bored and cased, the second consultant drilled 2 additional wells, BW-22 (MW-11) and BW-23 (MW-12). Neither of these borings encountered groundwater and in neither was casing installed. Both were allowed to remain open to allow time for recharge. MW-10 has not encountered groundwater to date. The Department has used the fact that MW-10 did not encounter groundwater to determine the extent of groundwater contamination. The site has now been fully characterized under A.R.S. § 49-1005(E)(4). Although termination of MW-10 after boring would have shown whether groundwater was present, by casing the well Appellant provided the means to determine in the future the possible groundwater contamination because the flow of groundwater changes over time and a well that is dry, like MW-10, may produce groundwater and a well that produces groundwater may become dry. In addition to the evidence that the parties expressly presented and called to the attention of the administrative law judge and the Technical Appeals Panel, the Panel gleaned additional information from the extensive documents that the parties offered into evidence and provided to the Panel, which are referenced below in the Panel’s Findings of Fact. TECHNICAL APPEALS PANEL’S FINDINGS OF FACT ISSUE NO. 1: 1a. The installation [of casing in] MW-10 was not reasonable or necessary at the time of installation, based on the following facts: 1a.1. The intended purpose of MW-10 was to monitor groundwater; it did not. 1a.2. The industry practice for well installation with a percussion hammer drilling technique in this location near the North Indian Bend Wash Superfund site history and site data would indicate that a sufficient time be allowed for groundwater recharge in the boring to determine whether saturated sediments had been encountered. 1a.3. The previous consultant left boring B-19 open for a period of time to determine if saturated sediments were encountered and a monitoring well was not installed because the hole remained dry. 1b. MW-10 was utilized for completion of the groundwater site characterization, however, based on the following facts: 1b.1. It helped identify the northern limit of the saturated Upper Alluvial Unit (“UAU”) aquifer. 1b.2. Because the aquifer is limited to the north, the groundwater contamination is limited and, therefore, defined in the northern direction. 1b.3. A well gives long-term monitoring of whether or not you have water in the unsaturated zone of the UAU aquifer. ISSUE NO. 2: 2. The approved work plan required the following: 2a. The groundwater well must be designed around the depth that groundwater is encountered. 2b. The installation of MW-10 was consistent with the work plan, assuming that groundwater was encountered at 175 feet below the ground surface. CONCLUSIONS OF LAW The Director has authority to enter an appropriate order in this appeal. A.R.S. §§ 49-104 and 49-1014. In this administrative proceeding, Appellant bears the burden of proof and must establish statutory violations by a preponderance of the evidence. See A.A.C. R2-19-119; see also 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). The Panel was properly empaneled and employed in this matter. More than the minimum number of required members participated, and the panel’s deliberations were public. Laws 1998, Ch. 181, § 11, particularly subsections (D) and (E). The Panel’s technical findings of fact are not technically invalid. Laws 1998, Ch. 181, § 11(G). The Department did not preapprove installation of casing in MW-10 unless it encountered groundwater. The parties and the Panel agreed that MW-10 did not in fact encounter groundwater. Had Appellant left the boring open long enough for it to recharge, determined that groundwater had not been encountered, and decided not to incur the cost of installing casing, no less information would have been provided to the Department regarding the extent of contamination than Appellant has provided to date after incurring the expense of installing the casing.[1] Although, at some date in the future, additional information potentially may be obtained from MW-10 that has some value to the Department, at the present time, such potential value is speculative is not responsive to the objectives or contingencies of the preapproved work plan. The Panel expressly determined that installation of casing in MW-10 was not technically reasonable. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director of the Department deny as ineligible Appellant’s claim for reimbursement of costs incurred in installing casing in MW-10.

Done this day, November 5, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

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

Department of Environmental Quality Jacqueline E. Schafer, Director 3033 North Central Avenue ATTN: Lavonne Watkins Phoenix, AZ 85012

By ___________________________

----------------------- [1] The Department apparently acknowledged the benefit of boring MW-10 by agreeing to pay the costs associated with such remedial action prior to the rehearing.

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