The State of New Hampshire

Department of Environmental Services

Thomas S. Burack, Commissioner

Celebrating 25 Years of Protecting

N ew Hantpshire's Environment

Derry Well Company, Inc.

NoTIcn oF PRoPoSED
Arvu¡.IlsrRAtrvn FrNr
259 F,ast Deering Road
Deering, NH 03244
No. AF 12-008

February 7,2012
Re: Water Well Contractor License No. 1723

I. INrnoouCTIoN

This Notice of Proposed Administrative Fine is issued by the Department of Environmental

Services, Water Division to Derry Well Company, Inc. pursuant to RSA 482-B'.16. The Water
Division is proposingthat fines totaling $11,200 be imposed against Derry Well Company, Inc.
for the violations alleged below. This notice contains important procedural information.
Please read the entire notice carefully.

II. Plnrras

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, Deering Road, Deering, NH 03244

Iil. STATEMENT oF FACT AND LAw SupponTTNG CLAIM

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
Cooe Altr¿nq. RULES We 100 to 1000 (the "Water Well Board Rules"). Pursuant to RSA 482-B:8,
II, and RSA 482-B'.16, the New Hampshire Department of Environmental Services ("DES") has
concurrent authority with the Board to enforce RSA 482-8 and the Water Well Board Rules.

2. RSA 482-8.16, II authorizes the Commissioner of DES to impose administrative fines of up to

$2,000 for each offense for violations of RSA 4s2-B or of any rule adopted or license issued under
RSA 482-8. Each day of a continuing violation under RSA 482-8 constitutes a separate offense.

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

www.des.nh.gov
29 Hazen Drive " PO Box 95 . Concord, NH 03302-0095
(603) 271-3503 n TDD Access: Relay NH t-800-735-2964
Notice of Proposed Administrative Fine No. AF 12-008 Page 2 of 6
Derry Well Company, Inc.

4. RSA 482-B:10 and We 801 03(c) require awater 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.

5. 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 to RSA 482-B'.T6.

6. Pursuant to We 801.03(Ð, 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.

7.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 of
RSA 482-B:10 and shall subject the licensee to potential administrative fines pursuant to RSA
482-B:16.

8. 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.

9. On November 10, 2008, DES sent a letter to Derry Well, notingthat the 19 well completion
reports had not been returned to the Board. DES requested that the reports be completed and
returned within 14 days.

10 The 19 incomplete reports were not completed and returned to the Board by Derry Well
within 14 days.

11. On November 28,2008, DES returned 80 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.

12. The 80 incomplete reports were not completed and returned to the Board within 14 days.

13. 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.

14. On March 23,2009, representatives from Derry Well hand-delivered to DES 83 of the
overdue well completion reports.

15. OnIMay26,2009,DESreceivedanadditional 16wellcompletionreportsfromDerryWell.

16. on lune 2,2009, DES issued aLetter of Compliance for LoD #WELL 09-004.

17. On May 3, 2010, Derry Well submitted 0t well completion reports for wells constructed by
Notice of Proposed Administral'ive Fine No. AF 12-008 Page 3 of6
l)erry Well Compøny, Inc.

Derry Well in 2009.

18. On }/.ay 4,2070, 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 }i4ay 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.

19. On May I 1,2010, 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.

20. On June 1I,2010, a representative from Derry Well hand-delivered to DES 39 of the overdue
well completion reports.

21 . 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 482-8.I0.

22. On June 30, 2010, DES received 12 past due well completion reports.

23. On April 13, 20ll

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 frling period.

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

25. On January 3, 2012 Derry Well submitted to the Board 68 well completion reports for wells
constructed during the period ofNovember 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.

26. Derry Well violated RSA 482-B:10 and We 801.03(c) by failing to submit 99 well completion
reports to the Board, within 90 days of completion, for the wells constructed in New Hampshire
prior to 2009.

27. Derry V/ell violated RSA 482-B:10 and We 801 03(c) by failing to submit 61 well completion
reports to the Board, within 90 days of completion, for the wells constructed in New Hampshire in
2009.

28. Derry Well has a history of non-compliance with RSA 482-8.10 and We 801 03

IV. VIolarroNs Ar,r,ncnn; Pnoposrn Atnrnrsrnarlvc FINES

1. Derry Well Company, Inc. violated RSA 482-B:10 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.
Notice of Proposed Administralive Fine No. AF I2-008 Page 4 of6
Derry Well Company, Inc.

2. Derry Well Company, Inc. violated RSA 482-8. 10 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 Novemb er 2010 and September 201 1 .

3 .
For violating RSA 482-B : 1 0 and We 801 .03 (c) by failing to submit well completion reports to
the Board, within 90 days of completion, for the wells constructed in New Hampshire RSA 482-
B:16, II authorizes a fine of up to $2,000 for each well completion report not timely filed.
Consistent with Env-C 616.02(e) fexpired rule], the Division proposes a fïne of $100 for each
water well completion report not timely submitted by Derry Well for all wells constructed since
January T,2010.

4.The Water Division reserves the right to amend this Notice to include additional violations of
RSA 482-B:10 and We 801 03(c) by Derry Well, if discovered.

The total fine being sought is $11,200.

V. RrqurnrD RESIoNSE, OppoRTUrvlTy FoR Hn¿,nrNc

Pursuant to Env-C 601.06, Derry \ilell is required to respond to this notice no later than
March 12. 2012, using the enclosed colored form as follows:

1. If Derry Well wishes to have a hearing, an authorized representative must check the
appropriate line (frrst section of the form) and return it to the DES Legal Unit as noted on the
form. If Derry \ilell requests a hearing, Derry Well may still discuss a possible
settlement of the case with Division personnel.

2. If Derry Well chooses to waive the hearing and pay the proposed fine, an authorized
representative must check the appropriate line (second section of the form) and return it with
a certified check or money order in the amount of $11,200 to the DES Legal Unit, as
noted on the form.

Derry Well is not required to be represented by an attorney. NH RSA 541-A:31, III(e)

provides that Derry Well has the right to be represented by an attorney, at its own expense.
If Derry Well chooses to be represented by an attorney, the attorney must fìle an appearance
in accordance with Env-C 204,07 and otherwise comply with NH CooB Anvtnv. Rut-s Env-C
200 relative to representatives.

VI. DnrnnvrINATIoN oF LIÄBILITy FoR Ann¡rrvrsrurlvr FINES

Pursuant to Env-C 601.09, in order for any fine to be imposed after a hearing, the Division
must prove,by a preponderance of the evidence, that Derry Well committed the violations alleged
and that the total amount of fines sought is the appropriate amount under the applicable statute and
rules. Proving something by a preponderance of the evidence means that it is more likely than
not that the thing sought to be proved is true.
Notice of Proposed Administrative Fine No. AF I2-008 Page 5 of6
Derry \4rell Conpany, Inc.

If the Division proves that Derry Well committed the violations and that the total amount of
fines sought is the appropriate amount under the applicable statute and rules, then the fine sought
will be imposed, subject to any reductions under Env-C 601 10.
:k * x :k :TCJMPORTANT NOTICE2T ¡r :r :r rr

An administrative fine hearing is a formal hearing. All hearings are recorded, and
all witnesses testiÛr under oath or affirmation. At a hearing, the Division presents
testimony and evidence to try to prove that Derry Well commiued the violation(s) atleged
above and that the fine(s) should be imposed. The hearins is an opportunity for Derrv
Well to present testimony and evidence that Derry Well did not commit the
that the fi
should be reduced. If Deny Well has any evidence, such as photographs, business
records, or other documents that may show that Derry Well did not commit the violations
or that otherwise support Deny Well's position, Derry Well should bring the evidence to
the hearing. Deny Well may also bring wiûresses to the hearing to testi$r on its behalf.

Information regarding this proposed fine may be made available to the public via the DES
Web page (www.des.nh.gov). If you have any questions about this matter, please contact the DES
Compliance Attorney at (603) 271-7509

COPY ?ìrt, P.E., Di

DES Legal Unit

Public Information Officer, DES PIP Offrce

K. Allen Brooks, Chief AGO-Environmental Protection Bureau
Peter Demas, DES Hearings Offrcer
New Hampshire Water Well Board
 Onbehalf of DerryWell,Compa4y,,Inc.,,I,requesttô.have,a,formal hearing scheduled in this
matter, (If you requést a,hearing, yoù may still disc.ussi4 possible settlement òf the case with Division

Signature Date

T...:..........::........,i.'.,...i.]..
' ' On behalf of Derrr¡ Well Company, Inc , I certify. that I understand the right to. a.hearrng regarding
ad,ltnistrative,fine á¡d that l hereb5r,waive those rlghts, The fine paymurt:,
]h.ejmoosition,a^tJl9,qlolos9f . ,,
in the amount of $11;200 paid,tò:lTreàsurer,ìStáte of New Hampshire" is enclosed.**
... . . .:
,

:' :

** If payment is rnade'b¡1 chteck;'draft¡ or monql order that is returned due :to insufficie'nt funds, pursuant to
¡WlnSlO:II ø,DESmaychargeafeeintheamounî,of5NòftheTaceqmtountofthe:originaliheckd*ft,
amount'of the originøl check draft, or money order. I , ' ,, ' ì " '

Signature Date

Pursuant,to Env-C 203,030'you must provide the following information:

Name: Title:
, (plçase prinf or 0æe) (please print or type)
.ì....
Complete,Mailing Address :

(plçase print or type)

Phone: Fax,*d<* E-mail:**+

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Administrative Fines of the Department of Environmental Services

'I'he Colnnlissionel'of thc Department of Envilonmcutal Scrvices (DfìS) is authorizccl by

scvcral statutes to
intltose acllllitrisll'afivc fincs 1'ot'ccttaìn violations oi'thosc statutes ancl anlrtules aclolltecl orpermits issuecl
lltlrsuant to tltose statutes, In orcler to implenleut this authority, the Commissionel has adoptecl NFI Coon
ADN/lN. Iìul-ijs Bnv-Cl 600 to specify the ploccdures fbr notilyiug people that a fine is being ploposed ancì
thc 1ìnc auroturt fbl any givcn violation, An aclministlativc lìnc ploceccling is an acljuclicative proc;ecciiug,
r¡'irichisgoverucclbyIìSA541 z\anclNI-lCoDEADN4tN.I{ur-EsEriv-C200.These lulesaleavailablcon-
lilc at l¡¡1¡:://wwwlc-5.st.ate.nh.us/r'ules/clesadmin_list.htm#cl'ctss.

Administlative liue proceedings follow a defined path, The first step is fol a clivision of DES to issue a
Noticc ol Ploposcd lìille , The Notioe will inlblll yt-ru of tirc violal.ions thc divisiou bclicvcs yoLr iravc
coururittecl, together with the clollar amr¡uut of tlie fine that is being ploposecl, z\t this point, a lìual
clecisio¡l as to whethel to impose tlte fine has not bcen lnacle - lhe Notice simply initiatcs the proceecling.
Tlic Noticc also will infblur you that you have an oppoltunity 1o have a healing before a final clecision will
trc urade, anrl rla1, givc a clate and time fol the hearing.
'l'he Noftce you tecetve will include a oolol'ed
fbml orl rvhich you can inclicate whethel'yor"t will attencì a
ItcaliLtg or wltcther yoì.t al'c waivitrg your opllortunity fol a healirig ancl paying the fine that has been
proPosecl. yOU MUST' COMPLETE AND RETUIìN TI"IIS FOllM. The worst tliing you can clo if you
Leceit,e a Notice is to iguore it! Ullcler the rules that have been acloptecl, the casc can ploceecl even if yoLr
don't t'csltoucl. In ol'cler'1o achir:ve thc ircst rcsult, you must llarticiltatc in thc pt'ooess.

Whott you t'eccive a Noticc of Prcryosecl lrine, if you al'c intclcstccl in tlying Lo settle the casc witlioLtt going
to a lormal hcat'itrg yott sltoulcl contact fhc pelson iclentifìed in the Noticc. Many line cases arc settlecl in
this way, of terl u,itli a lor.vel l'tlrc, a llaylnel'ìl sclrech.rle, ancl/ol a suspcnsìon of sorne poltion ol'thc fìnc.'lhe
ttcl-¡otiatiorts uccd to start sooll after the Notice is lcc;civccl, thougtr. Don't wait Lullil tho clay sohcclulecl for.
the hcaling to asl< about scttling thc case.

Il'the oase pt'occccls to a heat'it-tg, llie healiug proocss will bc govcmecl by linv-C 204. Thosc lrlcs co¡tai¡
t'eqttitetrrettts f'crr lilirtg clooulleuts aud selviug theur on thc other parties to the llroceeditrg, aucl also r.equirc
Yotr to st¡bmil celtain ilrforuratiou in aclvance of thc healing, inclucling a list of witncsses yoì.I cxpect to oall,
a Iist of'cxliibils yoLr cxilcct to present, aucl any lequests lÌll changes to ol waivers of the stanclar.cl
¡rloceclLtt'cs als s¡tcoilÌccl in the lLtles or othcl rìratl.crs ooncelning thc conduol of'l.hc hcaling.
 The Comutissioner will designate a pel'son to serve as a hearing officer to pleside at the formal hearing.
The irealing officel will lorow about the case only as a lesult olleading the same Notice you received, and
will be nelttral insofar as the outcome of the case is conceured, At the hearing, the Division will be
required to prove that the violation(s) ooot¡rrccl and that the ploposcd filic is warranted, You will have an
oppoLtunity to asl< questions of'(cross-examine) the Division staff, aud also present your owlt evidence,
inciuding tcstimotry of witnesses if you wish, to show why the fure shoulcl no1 ìre irnposed.

After the liealing is over, the hearing officer will compile the record (i.e., all of the notices that were sent to
you and all information that was received at the hearing) and will nrake a recommendation to the
Cotnmissioner as to whefhel'or not the fìne should be imposed, The Commissionel'will make a decision
basecl on the evidence and testimony, and the decision issued by the Conrmissioner will specifically state
the reasons for the decision,

The rules adopted by the Commissioner require the proposed fine to l¡e reduced in certain circumstances,
whjch are listecl at Env-C 601. 10. These include that you have not previousiy violatecl a law or rule
implemented by DES, or that the violation(s) occurred despite your good faith efforts to compiy with the
applicable requirements. The Commissioner also has the discretion to allow you to pay a fine on a paynrent
schedule, and/or to suspend all or a portion of the fiue conditional upon remedying the underlying violation
or stayiug in conrpliance with DES requirements for a specified period of time,

Sometimes people are concelïed that the findings and rulings made by the Commissioner might bc used
against them in a separate proceeding (for instance, if their neighbor sues them for damages arising out of
the same violation(s) for which they ale being fined). In such cases, DES has been willing to oraft a
settlernent agreement whioh specif,rcally recites that any admission of liability cannot be used in a third-
palty case.

Tlùsfact slteet is inlendecl as a basic source of infornntion concerning DES ødnùnistrativefines. It is not
intended to replace the statules and rules regarding adntinistrative fi.nes or adjudicative proceedings, but
merely to provicle a. sLujutxat)) of some of tlte pertinent i.çsue.t.

For more infolmation contact the DES Legai Unit, PO Box 95, Concord, NI-I 03302-0095, (603) 271-
6072; appealsf@des.state.rrh.us,

+ Please note thc website

to view NH CODE
ADMIN.RULES Env-C 200 has changed to
!:11p.4!ç¡.ulea!/qr ænizati a.dcqrruris-s_iqlro/þg!]1Lulçi 1dsçu
tUqXÊ&llrc20.q!çlf'. The e-maìl address to contact thc DES
Lcgal Unit has also changed to appqÈ1.s.(@d9S¡[gqv

http ://www. des. state.nh. us