BEFORE THE POLLUTION CONTROL HEARINGS BOARD

STATE OF WASHINGTON

 

SHANNON & WILSON, Inc., PITCHER DRILLING, Inc., ROGER KOSTENKO and ROLAND MEDINA,

 

                        Appellants,

            v.

STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY,

 

                        Respondent.

PCHB No. 99-066

 

ORDER GRANTING SUMMARY JUDGMENT

 

            This matter comes to the Board on cross-motions for summary judgment on an appeal of two $5,000 penalties issued by Ecology to Roger Kostenko and Roland Medina.  On November 30, 1999, respondent Department of Ecology (Ecology) filed a motion for summary judgment and dismissal of the appeal.  On December 13, 1999 Appellants filed their opposition to Ecology’s motion for summary judgment and a cross motion for summary and declaratory judgment.

            The Board is composed of Ann Daley, Presiding, Robert V. Jensen, and James A. Tupper, Jr.  The Board's decision is based on a review of the written record, as follows:

1.      Ecology’s Motion for Summary Judgment

2.      Ecology’s Memorandum in Support of Motion for Summary Judgment

3.      Appellants’ Opposition to Respondent’s Motion for Summary Judgment and Cross-Motion for Summary and Declaratory Judgment, including as attachments:

a.       Transcript from the Deposition of Rod Thompson

b.      Transcript of the Deposition of Daniel L. Swenson

c.       Transcript of the Deposition of Karen Irby-Smith

 

4.      Ecology’s Response to Appellants’ Cross-Motion for Summary Judgment and Reply to Appellants’ Response to Ecology’s Motion for Summary Judgment

 

5.      Appellants’ Reply to Department of Ecology’s Response to Appellants’ Cross-Motion for Summary Judgment.

 

FACTUAL BACKGROUND

            The following facts are undisputed:

On March 24, 1999 Mr. Medina and Mr. Kostenko, employees of Pitcher Drilling, Inc., were drilling “Geotechnical Soil Borings,” as defined by RCW 18.104.020(7) and WAC 173-162-030(29).  Pitcher Drilling, Inc. was performing work as a subcontractor to Shannon & Wilson, Inc.  Shannon & Wilson, Inc. was, and is, authorized to practice engineering under Chapter 18.43 RCW as a corporation.  Shannon & Wilson, Inc. had a representative on each site at the time the soil borings were being drilled.  Mr. Medina, Mr. Kostenko, Pitcher Drilling, Inc., and the Shannon & Wilson, Inc. on-site representatives are not licensed as Professional Engineers, Water Well operators or Resource Protection Well operators.

            On March 24, 1999, Mr. Rod Thompson of Ecology issued Cease and Desist orders to Mr. Medina and Mr. Kostenko.  At the time these orders were issued, Mr. Thompson observed nothing at either site that caused him concern than any person was being placed in danger of death or bodily harm, or that environmental harm or physical damage to property was occurring.  He observed no improper construction techniques at either site.

            On April 21, 1999 Mr. Daniel Swenson of Ecology issued Mr. Medina and Mr. Kostenko notices of penalties in the amount of $5,000 each for operating a drilling rig and constructing a well without having an operator’s license and without the supervision of a licensed Well driller, or approved Professional Engineer on site.  Mr. Swenson also issued a Cease and Desist order forbidding Shannon & Wilson, Inc. from contracting with unlicensed operators to construct wells without the presence of a licensed Water Well operator or licensed Professional Engineer on site at all times during construction.

            None of the appellants (Mr. Medina, Mr. Kostenko, Pitcher Drilling, Inc. Shannon & Wilson, Inc. and the Shannon & Wilson on-site representatives) has ever received any notice of, or been subject to, any enforcement action for violation of any statute or rule relating to the construction or operation of a well.

DISCUSSION

               The parties have agreed to have this case decided as a matter of law based on the Board’s review of the written record.  Since the material facts are not in dispute, the matter is appropriate for summary judgment.  Jacobsen v. State, 89 Wn. 2d 104, 569 P.2d 1152 (1977); Brenner v. Recomp of Washington, Inc. et al., PCHB 98-225 (1999).  The legal questions for resolution are (1) whether appellants were required to have a license to drill a geotechnical soil boring, and (2) if a violation occurred, whether Ecology properly issued the penalties that are the subject of this appeal.

               We first address the question of whether appellants violated the licensing requirements of Chapter 18.104 RCW and Chapter 173-162 WAC.

Appellants question the validity of WAC 173-162-040(3), which provides “A resource protection well operator license is required for all operators engaged in constructing or decommissioning resource protection wells and geotechnical soil borings.”  We agree with Ecology that we do not have jurisdiction to consider a challenge to Ecology regulations.  City of Seattle v. Dept. of Ecology, 37 Wn. App. 819, 824, 683 P.2d 144 (1984); Friends of the Columbia v. Dept. of Ecology, PCHB No. 87-59 (1987).

Moreover, even if WAC 173-104-040(3) was to be challenged in the courts, we believe the question has been clearly addressed by the legislature in RCW 18.104.030.  Subsection (6) of that section makes it unlawful “(e)xcept as provided in RCW 18.104.180, for any person to contract to engage in the construction of a well or to act as a well operator without first obtaining a license pursuant to this chapter” (emphasis added).  RCW 18.104.010 defines “operator” as a person who “…operates well construction equipment.”  This language appears to us to be sufficient authority for the regulation in question, and, in any event, is a clear statement indicating the legislature fully intended that the act of operating well construction equipment requires that the operator be licensed.  The exceptions provided in RCW 18.104.180 only apply if the unlicensed operator is working “at the direction of and under the supervision and control of a licensed operator who is present at the construction site (emphasis added), or the person is a licensed architect under the provisions of Chapter 18.08 or a professional engineer under the provisions of Chapter 18.43 RCW.

Appellants argue the term “person” should be construed to mean their corporation and because Shannon & Wilson, Inc., a registered professional engineering firm, was the overall supervisor of the geotechnical soil borings, a license was not required.  We disagree.  We read the term person in this statute to mean the person who is actually operating the well construction equipment.  If the “person” is not exempt from a license under subsection (3), on-site supervision is clearly required.  No one at the construction site was a licensed well driller or a professional engineer.  Shannon and Wilson had subcontracted the work to Pitcher Drilling.  Kostenko and Medina were employed by Pitcher Drilling.  Neither was licensed.  And employees of Shannon and Wilson who were neither licensed well-drillers nor licensed architects or engineers provided the on-site supervision.  For us to read the language of this exemption to allow unlicensed persons to drill wells with such distant supervision would significantly broaden the exemption and contradict the basic policy of the statute.

We hold that by drilling geotechnical soil borings without a license or without the on-site supervision of a licensed operator or professional engineer, Medina and Kostenko violated WAC 173-160-420 and RCW 18.104.030.  Accordingly, we GRANT summary judgment to Ecology that a violation occurred at each site.  The Cease and Desist Order issued to Shannon & Wilson, Inc. is AFFIRMED. 

            We now turn to the question of the penalties.  Appellants argue that Ecology did not properly issue the two $5,000 penalties because it did not first issue a notice of correction pursuant to RCW 43.05.070.  Ecology argues that (1) drilling without a license constitutes a major violation of Chapter 18.104 RCW which (2) requires a penalty of not less than five thousand dollars…” and (3) a notice of correction was not required.

            RCW 18.104.155 authorizes Ecology “except as provided in RCW 43.05.060 through 43.05.080 and 43.05.150” to issue civil penalties for violations of the well-drilling law or regulations, and establishes three categories of violations: minor, serious and major.  We agree that the legislature clearly intended that a “major” violation, which is defined, in part, as the construction of a well by a person without a license, carries with it a minimum penalty of $5,000.  RCW 18.104.155(2) and (3).  However, in this case, the critical first question is whether a notice of correction should have been issued instead.

                Ecology’s authority to issue penalties for violations of the well-drilling law or rules without first issuing a notice of correction is limited by the extent to which RCW 43.05.060 through 43.05.080 and 43.05.150 apply to the case at hand.  RCW 43.05.060 requires Ecology to issue a notice of correction and provide technical assistance when in the course of any site inspection or visit that is not a technical assistance visit it finds conditions that violate the applicable laws and regulations.  If a notice of correction is issued, civil penalties are precluded unless the corrective actions specified in the notice of correction are not performed.

The exception to this requirement is contained in RCW 43.05.070, which provides,

 in pertinent part:

The department of ecology may issue a civil penalty provided for by law without first issuing a notice of correction if:

****

(3) the violation has a probability of placing a person in danger of death or bodily harm, has a probability of causing more than minor environmental harm, or has a probability of causing physical damage to the property of another in an amount exceeding one thousand dollars.

 

Ecology argues that the mere fact that the well operators, Medina and Kostenko, were unlicensed is sufficient evidence to prove the probability of placing a person in danger of death or bodily harm, causing more than minor environmental harm or causing physical damage to another’s property exceeding one thousand dollars.  The burden of proof rests with Ecology. WAC 371-08-475(2).  We are not persuaded, based on the facts of this case, that Ecology has met its burden.  No evidence beyond the assertion that an unlicensed operator may not follow proper procedures was offered.  Rod Thompson, the Ecology inspector who visited the two sites, confirmed in his deposition that the lack of a license was the sole basis for the enforcement action. Mr. Thompson observed no improper procedures and no indication of unsafe operations.

Were this case scheduled for hearing, we would be inclined to deny summary judgment to either side and decide this question after hearing the testimony and examining the evidence.  It is not clear to us that drilling without a license is, by itself, sufficient evidence for Ecology to avoid issuing a notice of correction under the provisions of RCW 43.05.070 and to impose the penalty for a “major” violation.  Here, the parties have agreed to decide this case on the written record.  Presumably, each side has submitted all the evidence necessary for its case.  There is simply not enough evidence in this record for us to conclude that the exception provided by RCW 43.05.070 applies.  Therefore, a notice of correction should have been issued in this case. Summary judgment for the appellants is GRANTED, and the penalties imposed on Kostenko and Medina by Ecology are DENIED.

            DONE this 27th day of March 2000.

                                                                        POLLUTION CONTROL HEARINGS BOARD

                                                                        ANN DALEY, Presiding

 

                                                                        ROBERT V. JENSEN, Member

 

                                                                        JAMES A. TUPPER, JR., Member