Hampshire

Department of Environmental Services

The State of New

Thomas S. Burack, Commissioner

CELEBRATING

Celebrating 25 Years of Protecting

New Hampshire's Environment

roe?

April 12,2013

Kerry D. Barnsley, Esq.

Compliance Attorney
New Hampshire Department of Environmental Services
29 Hazen Drive
P.O. Box 95
Concord, NH 03302-0095
Derry Well Company, Inc.
Attn: Robert Machain
PO Box 1312
Londonderry, NH 03053

Re:

Administrative Fine No. AF 12-008- Derry Well Company, Inc.

Dear Attorney Barnsley and Derry Well Company, Inc.:

Enclosed, please find the Decision of the Department of Environmental Services in the
above referenced matter. As indicated therein, any party aggrieved by this Decision may file a
motion for reconsideration within 30 days of the date thereof in accordance with NH RSA 541-A
and Env-C 206. I have enclosed a copy of Env-C 206 for your convenience.

COPY
Encl.

ec:

Thomas S. Burack, Commissioner

Vicki V. Quiram, Assistant Commissioner
Harry Stewart, Director, Water Division
GretchenR. Hamel, Administrator, Legal Unit
Leah McKenna, Water Division
DES Public Information Office
www.des.nh.gov
29 Hazen Drive

{603) 271-3503

PO Box 95

Concord, NH 03302-0095

TDD Access: Relay NH 1-800-735-2964

NEW HAMPSHIRE DEPARTMENT OF

ENVIRONMENTAL SERVICES
IN THE MATTER OF DERRY WELL COMPANY, INC.
ADMINISTRATIVE FINE

No. AF 12-008

Respondent

DECISION

Presiding Officer:

Peter Demas, Commissioner's Designee

Appearances:

Kerry D. Bamsley, Compliance Attorney, appearing on behalf of the New

Hampshire Department of Environmental Services, Water Division
Robert Machain and Hugh McKissick, directors/officers appearing on behalf
ofRespondent
I. INTRODUCTION

By Notice of Proposed Administrative Fine No. AF 12-008, issued on February 7, 2012,

("NPF") the New Hampshire Department of Environmental Services, Water Division ("Division"),
seeks to impose administrative fines against Derry Well Company, Inc. in the amount of $11,200 for
alleged violations ofRSA 482-B:lO and We 801.03(c) by failing to submit well completion reports to
the Water Well Board,within 90 days of completion.
Robert Machain entered an appearance and request for hearing on February 9, 2012.

The

Division entered an appearance on February 23, 2012. By notice dated March 14, 2012, a hearing
was scheduled for April 23, 2012.

In accordance with the New Hampshire Administrative

Procedures Act,RSA 541-A, a formal adjudicative hearing was held on April 23, 2012. Robert
Machain and Hugh McKissick appeared at the hearing on behalf theRespondent,Derry Well.
Based on the evidence and testimony presented at the hearing, the Department concludes that a
fine of $11,200 is justified and that $4,200 shall be suspended as set forth in the Findings of Fact and
Conclusions of Law below.
II. APPLICABLE STATUTES AND RULES

1.

RSA 482-B regulates water well contractors and pump installers and establishes the New

Hampshire Water Well Board (the "Board").

Pursuant to rulemaking authority conferred by RSA

482-B:4,the Board has adopted administrative rules to implement this regulatory program, NH CODE
ADMIN.RULES We 100 to 1000 (the "Water Well Board Rules"). Pursuant toRSA 482-B:8, II, and
RSA 482-B:16, the New Hampshire Department of Environmental Services ("DES") has concurrent
authority with the Board to enforceRSA 482-B and the Water Well BoardRules.

Page 2 of5

Derry Well Company, Inc.

Docket No. AF 12-008
Decision

2. RSA 482-B:16, II authorizes the Commissioner of DES to impose administrative fines of up to

$2,000 for each offense for violations of RSA 482-8 or of any rule adopted or license issued under
RSA 482-B. Each day of a continuing violation under RSA 482-B constitutes a separate offense.
3. Pursuant to We 801.03(f), well completion reports filed later than 90 days following completion of
construction of a water well shall be accompanied by a written statement, signed by the licensee,
explaining why the reports were submitted late.
4.

Pursuant to We 801.03(h), well completion reports received without the information required in

We 801.01 and We 801.02 shall be returned to the licensee, shall not satisfy the requirements ofRSA
482-B:10 and shall subject the licensee to potential administrative fines pursuant toRSA 482-B: 16.
5. RSA 482-B:10 and We 801.03(c) require a water well contractor to file a well completion report
with the Board no later than 90 days following completion of construction of a water well in New
Hampshire.
6. Pursuant to We 801.03(e), the failure to submit a well completion report to the Board no later than
90 days following completion of construction of a water well shall subject the licensee to the
possibility of an administrative fine pursuant toRSA 482-8:16.
Ill. BACKGROUND AND FACTUAL ALLEGATIONS

The Division asserts the following allegations, which are not materially in dispute:
1.

The Department of Environmental Services, Water Division ("DES") is a duly-constituted

administrative agency of the State of New Hampshire, having its main office at 29 Hazen Drive in
Concord, New Hampshire.
2.

Derry Well Company, Inc. ("Derry Well") is a New Hampshire corporation having a mailing

address of 259 E. DeeringRoad, Deering, NH 03244.

3. Derry Well is a licensed water well contractor in the state of New Hampshire, holding license No.
1723.
4.

On January 2, 2008, DES returned 19 incomplete well completion reports to Derry Well and

requested that missing information be provided and completed reports be returned to the Board
within 14 days.
5.

On November I 0, 2008, DES sent a letter to Derry Well, noting that the 19 well completion

reports had not been returned to the Board. DES requested that the reports be completed and returned
within 14 days.
6. The 19 incomplete reports were not completed and returned to the Board by Derry Well within 14
days.
7. On November 28, 2008, DES returned 80 incomplete well completion reports to Derry Well and

Derry Well Company, Inc.

Page 3 of5

Docket No. AF I 2-008

Decision

requested that missing information be provided and completed reports be returned to the Board
within 14 days.
8. The 80 incomplete reports were not completed and returned to the Board within 14 days.
9.

On February 26, 2009, DES issued Letter of Deficiency ("LOD") No. WELL 09-004 to Derry

Well.

In LOD #WELL 09-004, DES cited the failure of Derry Well to resubmit the 99 well

completion reports returned as incomplete by DES in 2008. DES requested that the completed well
completion reports be returned to the Board within 14 days.
10. On March 23, 2009, representatives from Derry Well hand-delivered to DES 83 of the overdue
well completion reports.
11. On May 26, 2009, DES received an additional 16 well completion reports from Derry Well.
12. On June 2, 2009, DES issued a Letter of Compliance for LOD #WELL 09-004.
13.

On May 3, 2010, Derry Well submitted 61 well completion reports for wells constructed by

Derry Well in 2009.

14.

On May 4, 2010, DES sent a Notice of Findings ("NOF") to Derry Well.

In the NOF, DES

requested that Derry Well report to DES the number of wells it completed during the period of
September 18, 2008 through May 4, 2010, within 10 days of the date of the letter.

DES also

requested that Derry Well provide an explanation of why well completion reports were not filed, if
wells were constructed by Derry Well in New Hampshire during the period noted.
15.

On May 11, 2010, DES returned 51 incomplete well completion reports to Derry Well, along

with a Notice of Incomplete Reports, and requested that missing information be provided and
completed reports be returned to the Board within 14 days.
16. On June 11, 2010, a representative from Derry Well hand-delivered to DES 39 of the overdue
well completion reports.
17. On June 24,2010, DES sent correspondence to Derry Well regarding the Notice of Findings. In
the letter, DES noted the reporting requirements of RSA 482-B: 10.
18. On June 30, 2010, DES received 12 past due well completion reports.
19.

On April 13, 2011 Derry Well submitted to the Board 50 well completion reports for wells

constructed during the period of May 25, 2010, through November 16, 2010.

The reports were

submitted well beyond the 90-day filing period.

20. On December 27, 2011, DES sent a Notice of Findings ("NOF") to Derry Well requesting
information on wells drilled in New Hampshire in 2011.
21.

On January 3, 2012, Derry Well submitted to the Board 68 well completion reports for wells

Page 4 of5

Derry Well Company, Inc.

Docket No. AF 12-008
Decision

constructed during the period of November 2010 through September 2011.

Of the 68 reports

submitted by Derry Well on January 3, 2012, 62 were submitted beyond the 90-day filing period.

IV.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Derry Well does not materially dispute the factual allegations made by the Division.

Mr.

Machain made reference to a number of reports that were submitted by Derry Well in 2007 that were
apparently unprocessed by the Division after submission. The Division did not pursue fines for any
violations other than those alleged to have occurred between May 2010 and September 2011.

Mr.

Machain otherwise acknowledged that the reports were late as alleged by the Division and stated that
he never thought late reports were a significant issue, that he thought Derry Well had resolved any
problems with prior late submissions, and that Derry Well had never received a complaint from a
customer.

Mr. Machain further stated that submission of the completion reports was not a top

priority. Mr. McKissick testified that he did not know that submission of the completion reports was
"paramount" and that 90 days is insufficient time to complete and submit the well completion reports.
The Department finds that Derry Well's testimony does nothing to refute the facts as alleged by
the Division. Moreover, the Department notes that while the Division is pursuing fines for the 112
reports that were submitted beyond the statutory 90-day deadline between May 2010 and September
2011, the Division has not pursued fines for the additional 160 reports that were also filed late in
2009 and earlier, for which an additional $16,000 in fines could have been proposed by the Division.
The Department is mindful of Derry Well's objection to the 90-day reporting requirement and of the
administrative burden that Derry Well alleges that such a requirement creates.

However, the

requirement that completion reports be submitted within 90 days is statutory and cannot be
disregarded by either the Department, the Water Well Board, or by Derry Well. The propriety of the
90-day deadline is a matter of legislative discretion and is not at issue in this proceeding.
Based on the foregoing the Department finds that the Division has proven by a preponderance
of the evidence that:
1. Derry Well Company, Inc. violated RSA 482-B:lO and We 801.03(c) by failing
to submit 50 well completion reports to the Board, within 90 days of completion, for
the wells constructed in New Hampshire between May 25,2010 and November 16,
2010.
2. Derry Well Company, Inc. violated RSA 482-B:lO and We 801.03(c) by failing
to submit 62 well completion reports to the Board, within 90 days of completion, for
the wells constructed in New Hampshire between November 2010 and September
2011.
For these violations RSA 482-B:16, II authorizes a fine of up to $2,000 for each well
completion report not timely filed. The Commissioner has previously adopted Env-C 602-616, which
set forth a schedule of administrative fines applicable to various categories of violations. Env-C 602616 are currently expired, however, the Division is seeking fines consistent with the administrative
fine schedule set forth therein. Although the fine schedule rules are expired, it is appropriate for the
Division to rely on the schedule as guidance in determinii).g the appropriate fine within the statutory

Derry Well Company, Inc.

Page 5 of5

Docket No. AF 12-008

Decision

limit. Although the General Court has authorized fines of $2,000 for violations of this nature, the
Commissioner has taken a more constrained approach by limiting the fine to $100 per report not
timely filed, which is consistent with Env-C 616.02(e).
Accordingly, a total fine of $11,200 is justified and supported by the evidence presented. It is
undisputed that the violations occurred and the Department is constrained to impose fines, as directed
by the Legislature, for such violations. Therefore, the fine shall be imposed as follows. A fine in the
amount of $7,000 is hereby immediately assessed against Derry Well.

An initial installment of

$2,000 shall be paid within 60 days of the date of this decision. Thereafter, a monthly installment of
$1000 shall be paid on or before the first day of each calendar month, beginning on August 1, 2013,
until such time as a total payment of $7,000 has been made.
The remainder of the fine, in the amount of $4,200 shall be suspended, provided that Derry
Well:
1.

Pays the immediately assessed portion of the fine, in the amount of $7,000 in accordance

with the installment schedule set forth above;

2. Submits any currently outstanding late completion reports within 30 days of the date of this
decision; and
3. For a period of 3 years from the date of this decision does not violate any provision ofRSA
482-B or Env-We 800.
If Derry Well fails to make timely payment or comply with the foregoing terms and conditions
the suspended portion of the fine, in the amount of $4,200 shall be imposed and, together with any
unpaid installments set forth above, shall become immediately due and payable with no further
motions or filings required by the Division. If Derry Well satisfies the foregoing requirements, the
suspended portion of the fine shall be dismissed.
Fine payments shall be made by certified check or money order payable to "Treasurer- State of
NH" and sent to the attention of the Legal Unit, DES, Office of the Commissioner, P.O. Box 95,
Concord, NH 03302-0095.
Any party aggrieved by this decision may appeal to the Water Well Board within 30 days of the
date of this decision, in accordance with NHRSA 482-B:16, II.
COM1-GNER.QF
EN

Date:

April 12, 2013

By:

ONMENT ALSE VICES

COPY

NEW HAMPSHIRE CODE OF ADMINISTRATIVE RULES

(d) The presiding officer shall terminate any comments, questions, or discussions that are not relevant
to the subject of the hearing.
Source. #6960, eff 3-25-99; ss by #8851-A,

ff 3-25-07

Env-C 205.08 Closing the Hearing and the Record.

(a)

The presiding officer shall close the oral public hearing when slhe determines that no one has

further questions or comments that are relevant to the subject of the hearing.
(b) At an oral public hearing other than a rulemaking hearing, if additional time is requested to submit
written testimony as specified in Env-C 205.07(b) or supplemental information which the presiding officer
determines to be relevant to the subject of the hearing, the presiding officer shall designate a specific time
period for the record to remain open to receive such information.
(c)

For rulemaking hearings, the record shall remain open until the date specified in the notice

published pursuant to Env-C 205.04(a).

Source. #6960, eff 3-25-99; ss by #8851-A,

ff 3-25-07

Env-C 205.09 Continuances.

(a) Hearings on proposed rules shall be continued only in accordance with RSA 541-A.
(b) At any oral public hearing other than a hearing on proposed rules, if anyone requests a continuance
and the presiding officer determines that the public will be best served by continuing the hearing and that any
prejudice caused to any person as a result of the continuance is outweighed by the benefit to the public of
granting the continuance, the presiding officer shall order that the hearing be continued to a later date, time,
and place.
(c) If such later date, time, and place are known at the time of the hearing that is being continued, the
presiding officer shall state the date, time, and place on the record.
(d) If such later date, time, and place are not known at the time of the hearing that is being continued,
the presiding officer shall state how notice will be given of the date, time, and place of the continued hearing.
Source. #8851-A,

ff3-25-07

PART Env-C 206 MOTIONS FOR RECONSIDERATION

Env-C 206.01

Purpose.

The rules in this part are intended to supplement any statutory provisions,

such as RSA 541, that require or allow a person to request reconsideration of a decision of the department
prior to appealing the decision. These rules do not create the right to request reconsideration of a decision
where it does not otherwise exist under law.
Source. #6960, eff 3-25-99; ss by #8851-A,

f 3-25-07

ef

Env-C 206.02 Applicability. The rules in this part shall apply whenever any person has a right under
applicable law to request a reconsideration of a decision prior to filing an appeal of the decision with the
applicable court or council having appellate jurisdiction.
Source. #6960, eff 3-25-99; ss by #8851-A,

21

ff 3-25-07

Env-C 200

NEW HAMPSHIRE CODE OF ADMINISTRATIVE RULES

Env-C 206.03 Time for Filing.

Any motion for reconsideration shall be filed no later than 30 days

after the date the decision that is the subject of the motion was issued.
Source. #6960, eff 3-25-99; ss by #8851-A,

e.

ff3-25-07

Env-C 206.04 Filing.

(a) Any person wishing to request reconsideration of a department decision shall file the original and 2
copies of a motion for reconsideration at the following address:
Office of the Commissioner, Legal Unit
Department of Environmental Services
29 Hazen Drive
P.O. Box 95
Concord, NH 03302-0095
(b)

For purposes of this section, a "department decision" means a decision that is signed by the

commissioner, by the assistant commissioner on behalf of the commissioner, or by a division director, alone
or in any combination.
Source. #6960, eff 3-25-99; ss by #8851-A,
Env-C 206.05

Format and Content of Motion.

.ff 3-25-07

The person filing a motion for reconsideration shall

provide the following information:

(a)

The exact legal name of each person requesting reconsideration and the mailing address of the

person and, if available, a fax number and e-mail address for the person;
(b)

If the person making the request is other than an individual, the name and daytime telephone

number of the individual who can be contacted regarding the motion and, if available, a fax number and e
mail address for that individual;
(c) A clear and concise statement of the reason(s) why the person believes the decision to be in error;
(d)

A clear and concise statement of the facts upon which the department is expected to rely in

granting relief;
(e) A clear and concise statement of the specific relief or ruling requested;
(f) A copy of the decision that is the subject of the motion; and
(g)

Such other information as the party filing the motion deems pertinent and relevant, including

sworn written testimony and other evidence that was not available for the hearing.
Source. #6960, eff 3-25-99; ss by #8851-A,

e.ff 3-25-07

PART Env-C 207 RULEMAKING PETITIONS

Env-C 207.01

Applicability.

The rules in this part shall apply to any petition submitted to the

department pursuant to RSA 541-A:4.

Source. #6960, eff 3-25-99; ss by #8851-A,

22

.ff 3-25-07

Env-C 200