the state of new hampshire department ... - des.state.nh.us

The State of New Hampshire

DEPARTMENT OF ENVIRONMENTAL SERVICES ES

Thomas S. Burack, Commissioner

April 27,2009

Kerry D. Barnsley, Esq. Compliance Attorney New Hampshire Department of Environmental Services 29 Hazen Drive P.O. Box 95 Concord, NH 03302-0095

James Ransom 32 Sargent Road Alexandria, NH 03222

Re: Administrative Fine No. AFLA 07-017

Dear Attorney Barnsley and Mr. Ransom:

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.

rdinator Legal unit,,'''

ec: Thomas S. Burack, Commissioner Michael J. Walls, Assistant Commissioner Harry T. Stewart, P.E. Director, Water Division Gretchen R. Hamel, Administrator, Legal Unit Richard DeSeve, Compliance Supervisor, Subsurface Bureau DES Public Information Office

DES Web site: www.des.nh.gov P.O. Box 95,29 Hazen Drive, Concord, New Hampshire 03302-0095

Telephone: (603) 271-3503 Fax: (603) 271-2867 TDD Access: Relay NH 1-800-735-2964

IN THE MATTER OF JAMES RANSOM

Respondent ADMINISTRATIVE FINE AND LICENSE ACTION NO. AFLA 07-017

Presiding Officer: Peter Demas, Commissioner's Designee

Appearances: Kerry D. Barnsley, Compliance Attorney, appearing on behalf of the New Hampshire Department of Environmental Services, Water Division

James Ransom, Respondent, pro se

By Notice of Proposed Administrative Fine and License Action No. AFLA 07-017, issued on August 22, 2007, the New Hampshire Department of Environmental Services, Water Division ("Division"), seeks to impose administrative fines against James Ransom in the amount of $3,500 for alleged violations of RSA 485-A:29, I. Specifically, the Division alleges that Mr. Ransom violated the above statute by installing a septic system that had not received construction approval from the Division and by backfilling and covering an individual septic system without waiting for the Division to inspect the system and issue operational approval. The Division also seeks to revoke Mr. Ransom's septic installer permit for willful disregard of state law, evidenced by his alleged continued failure to correct the violations.

In addition, by way of Motion to Amend the Proposed Administrative Fine and License Action, filed on January 9, 2009, the Division seeks to impose additional fines, for similar violations, in the amount of $2,000.

James Ransom entered an appearance on September 10, 2007, requesting a formal hearing. The Division entered an appearance on April 17, 2008. In accordance with the New Hampshire Administrative Procedures Act, RSA 541-A, a formal adjudicatory hearing was held on February 2, 2009. At the hearing, the Division also sought increases to the proposed fines pursuant to Env- C 60 1.1 1. Mr. Ransom failed to appear at the hearing.

Pursuant to RSA 485-A:29, I, and based on my review of the evidence and testimony presented at the hearing, I have concluded that a fine of $7,250 is justified and Mr. Ransom's septic installer's permit no. 4132 should be revoked, for the reasons set forth below:

Dan Ransom, Jr. Docket No. AF 07-01 7 Decision

11. STATUTES AND RULES AT ISSUE

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1. Pursuant to RSA 485-A:29-44, the Department of Environmental Services ("DES") regulates the subdivision of land and the construction, maintenance, and repairlreplacement of individual sewage disposal systems ("septic systems"). Pursuant to RSA 485-A:41, IVY the Commissioner of DES ("Commissioner") has adopted NH Admin. Code of Rules Env-Wq 1000 (formerly Env-Ws 1000) to implement this program.

2. Pursuant to RSA 485-A:43, V, the Commissioner is authorized to impose fines of up to $2,000 for violations of RSA 485-A:29-44, including any rule adopted thereunder.

3. RSA 485-A:29, I, requires that a septic system be installed in strict accordance with approved plans, and that the facility shall not be covered or placed in operation without final inspection and approval by an authorized agent of the Division.

4. Env-Wq 1004.06(a) (formerly Env-Ws 1004.06(a)) provides that the Division shall inspect the septic system before it is covered and placed in operation.

5. Pursuant to RSA 485-A:36, I(b) an installer's permit may be suspended, revoked or not renewed for just cause, including but not limited to, the installation of waste disposal systems in violation of the subdivision or the refusal of permit holder to correct defective work.

111. BACKGROUND AND FACTUAL ALLEGATIONS

Respondent, James Ransom, filed an appearance on September 10, 2007, but failed to appear at the hearing held on February 2, 2009. I note that there is nothing in the record to indicate that notice was not duly served or that Mr. Ransom did not have actual notice of the hearing. Mr. Ransom maintained regular communication with Attorney Barnsley after issuance of the proposed Administrative Fine and License Action. A hearing was originally scheduled for June 9, 2008, but continued with Mr. Ransom's consent in order to pursue possible resolution of the matter. Notice of the February 2, 2009 hearing was issued on December 17, 2009. On January 9,2009, Attorney Barnsley filed a Motion to Amend, copied to Mr. Ransom. On January 14, 2009, the Hearings Clerk sent an Address Information Request to the Postmaster at ZIP code 03222, seeking confirmation of Mr. Ransom's address. The Address Information Request was returned by the Postmaster, indicating "MAIL IS DELIVERED TO ADDRESS GIVEN". On January 23, 2009, Attorney Barnsley submitted the Division's witness and exhibit list, also copied to Mr. Ransom, which made specific reference to the February 2,2009 hearing date.

Because Mr. Ransom has failed to appear or to advise me or the Hearings Clerk of his non- appearance in advance, the hearing was held in his absence pursuant to Env-C 204.19. Mr. Ransom did not file a motion to reconvene the hearing within 10 days thereof, pursuant to Env-C 204.20. Because of Mr. Ransom's failure to appear and the lack of any evidence to contrary, I am constrained to rely on the following statement of facts, alleged by the Division, which I find are duly supported by the evidence in the record:


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The Alexandria Violations:

1. The Division issued septic system installer permit # 4132, dated April 29, 2003 ("Permit"), to James Ransom, authorizing him to install septic systems in New Hampshire.

2. On September 21, 2005, the Division received information from Michelle Bramanthe, the present owner of property located on Morrison Street in Alexandria, NH (the "Alexandria Property"), that a septic system ("System") had been installed on the Property and covered without having been inspected by DES.

3. On September 21, 2005, Division personnel contacted Mr. Ransom, the previous owner of the Property, by telephone.

4. During the telephone conversation with Division personnel, Mr. Ransom admitted to installing and covering the System on the Alexandria Property without having it inspected by Division personnel.

5. Mr. Ransom further admitted that the System installed on the Alexandria Property was not the same as the septic system that had been approved by the Division for the Alexandria Property under Construction Approval #CA200 1035027.

6.. By letter dated September 21, 2005 to Mr. Ransom, the Division clarified its understanding of the situation on the Property and requested that Mr. Ransom contact the Division concerning his actions to remedy the situation.

7. By letters dated November 17, 2005 and November 30, 2005 to Mr. Ransom, the Division reiterated the violations that the Division believed Mr. Ransom had committed on the Alexandria Property and requested that Mr. Ransom contact Ms. Bramanthe to arrange to have a new septic plan drawn and approved for the Alexandria Property.

8. On June 13, 2006, DES issued a Letter of Deficiency WD SS 06-007 ("LOD") to James Ransom, licensed septic installer #4 132, concerning the unauthorized installation and covering of the System on the Alexandria Property.

9. The LOD requested that Mr. Ransom engage a permitted septic system designer to design a new plan for an authorized septic system for the Alexandria Property. The new plan was either to be an entirely new plan or be a representation of the unauthorized System Mr. Ransom had installed on the Alexandria Property.

10. Following issuance of the LOD, Mr. Ransom engaged in further discussions with Division personnel. Mr. Ransom promised to have an entirely new design prepared and submitted for the Alexandria Property.

11. On July 7, 2006, Mr. Ransom submitted a new septic system design plan for the Alexandria Property, prepared by New Hampshire licensed septic system designer Bruce Barnard. The new plan was approved by the Division on ' July 10, 2007 under Construction Approval

Dan Ransom, Jr. Dockel No. AF 07-017 Decision

Page 4 of 9

12. Mr. Ransom agreed, by telephone, to install the new septic system for the present owners and obtain operational approval for the system.

13. By letter dated October 16,2006 to Mr. Ransom, the Division notified Mr. Ransom that the Division was still waiting for Mr. Ransom to contact Ms. Brarnanthe to arrange for installation of the new septic system and to obtain operational approval of the system. The letter was sent certified mail, return receipt requested. The letter was returned to the Division as unclaimed.

14. As a licensed septic system installer, Mr. Ransom is aware of the requirements to install a septic system according to a design plan that has been approved by the Division and to contact the Division to inspect the system before it is covered with fill material.

15. On or about April 25,2007, Ms. Bramanthe confirmed that Mr. Ransom has failed to install the new system or have it installed, and has failed to obtain operational approval for the system.

The Groton Violations:

On January 9, 2009, the Division filed a Motion to Amend the Proposed Administrative Fine and License Action to include the following allegations. Having received no opposition from Mr. Ransom, I granted the motion on January 20,2009.

16. Subsequent to the hearing request dated April 17, 2008, Attorney Barnsley contacted Mr. Ransom to discuss settlement options on behalf of the Division. The Division filed a consent motion to continue the hearing to allow more time to review possible avenues of resolution of the issues raised in the Notice on May 15,2008.

17. According to records maintained by DES, Administrative Order No. WD 07-018 dated July 3, 2007 was issued to Thomas Cannon regarding the alleged violations of RSA 485-A:32, at the real property located at 1639 North Groton Road in Groton, New Hampshire (the "Groton Property"). The Order was not appealed.

18. On April 29, 2008 Attorney Barnsley wrote to Mr. Cannon about compliance with the Order. After subsequent discussions with Mr. Cannon and his attorney at the New Hampshire Legal Assistance Office, Attorney Barnsley proposed to Mr. Ransom that he install the Cannon system, pro bono, as part of a proposed offer to settle the issues raised in the Notice.

19. Mr. Ransom commenced installation of the septic system for Mr. Cannon in Groton, New Hampshire on August 29, 2008. Mr. Cannon was expecting the work to be completed by September 5,2008. Mr. Cannon was under a court order from Plymouth District Court to have the system installed and approved for use by September 15,2008.

20. Mr. Ransom did not complete the proper installation of the Cannon septic system by September 15, 2008. He was absent from the job for several days reporting personal issues and then stated that he would need more money for materials in order to complete the job. Attorney


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Barnsley received voice mail from Mr. Ransom on September 18,2008, in which he stated that he was leaving the jobsite and could not complete the job without more money for materials.

21. Subsequently, Attorney Chris Wellington of the New Hampshire Legal Assistance Office ("NHLA") notified the Division that $4,000 had been disbursed to Mr. Ransom in August, 2008 for materials to be used in the installation of the Cannon septic system.

22. Upon request for an accounting of the disbursed funds for materials Mr. Ransom provided NHLA with a receipt showing that he purchased 20 loads of various types of fill and gravel were from Central NH Aggregates, LLC at a cost of $3,520. The receipt is dated September 18,2008.

23. On September 25,2008 Attorney Wellington reported the following to Attorney Barnsley:

"Ransom has removed his equipment from the property. He apparently tried to take client's Jeep as payment for his work, he damaged some property on his way out with his equipment. My client does not want to call the police because he fears that Ransom will retaliate.

I understand from my client that Mr. Berg inspected the work and could not approve it."

24. On September 25, 2008 the Division's inspector Jim Berg inspected the Cannon septic system installation and issued a "Do Not Backfill" order. On September 29, 2008 he reported as follows regarding his visit to the Cannon property on the 25th:

"Mr. Cannon was on-site during the inspection and appreciative of the Department's efforts to help solve his septic problem. He briefly described Mr. Ransom's mood as he left the site and indicated he did not want Mr. Ransom back on his property. I explained to Mr. Cannon, I could not issue the Approval for Operation until the plans had been amended.

The opening over the septic tank baffles had puckered so the covers no longer fit. Mr. Cannon felt he would be able to correct this.

The plans called for a distribution box, which was not installed. Instead, a "T" was used to split the flow. Because of the pitch on the "T", the upper half of the individual sewage disposal system (ISDS) would not receive any effluent.

The plan called for the spacing between the rows of enviro-septic pipe to be 2.5 feet on- center because of the slope of the ISDS. The spacing between the rows was 1.5 feet on- center. The ISDS was not installed to allow for a change to 2.5 on-center spacing.

Mr. Ransom's equipment was no longer on-site and the backfilling of the system was to be the responsibility of Mr. Cannon.

I discussed the following options with Mr. Cannon with the understanding it would need to be approved by Concord and the attorneys:


Page 6 of 9

Reduce the size of the bed to a two bedroom to meet the spacing requires for the slope of the ISDS.

Bring in additional sand to raise the bed and reduce the slope of the ISDS so spacing could remain at 1.5 on-center.

Mr. Cannon, over time, felt he could raise the money and make the repairs, assuming he received help from family members.

I did allow Mr. Cannon to cover the pipe from the tank to the ISDS to prevent damage to the ISDS from a heavy rain. The septic tank was covered except for the access points for the baffles."

25. On October 9,2008, Attorney Wellington reported the following to the local police chief:

"In late September, I received a copy of a receipt fiom James Ransom presumably in response to my many telephonic and written requests for verification of his expenditures on this job. The receipt was from Central NH Aggregates, LLC and indicated an expenditure of 20 loads of various fill materials by James Ransom for a total of $3,520. Within the same timeframe, James Ransom stopped work on Mr. Cannon's septic system and has not been seen or heard from.

Earlier this week I contacted Central NH Aggregates, 61 Thompson St., P.O. Box 728, Ashland, NH 03217, and spoke to Cindy Drouin, the office manager. I faxed her a copy of the receipt I had received from Ransom and requested that she verify the accuracy of the document.

On 1018108, I received a call from Sue Wood. Ms. Wood is the fiancC and assistant of Mike LaTulippe who owns M.E. LaTulippe Construction and Central NH Aggregate which is a "baby company" of the construction firm. Ms. Wood researched my request. She also works at the "pit" where the gravel materials are picked up and has met Ransom. The pit is located in Rumney.

Ms. Wood stated that Ransom came in on several different days to pick up loads and he paid cash as he went. Near the end of their contact with Ransom, he asked an employee (name currently unknown to me) for a blank receipt, also known as a "load slip." He stated that he wanted to list his loads on one slip. The employee realized almost immediately that he had used poor judgment and he told LaTulippe and Wood about it the next day.

Ms. Wood reviewed the receipts and purchases made by Ransom. She reports that the slip that I sent her was not accurate and was not written by a company employee. She believes it was written by Ransom. She also reports discrepancies in dollar amounts and cost of products. She stated that Ransom purchased the following materials from her company:


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Fill 48 yds. @$4.00/yd. =

Bank Run Sand 84 yds. @$6.50/yd. =

Screened Sand 12 yds. @$7.50/yd. =

Total 144 yds. = $828.00

Ms. Wood sent me the receipts and a company price list, copies of which are included with this email and which support the figures listed above. Ms. Wood can be reached at 536- 2453. The company mailing address in Rumney is: P.O. Box 550, Rumney 03266.

At this point, I believe that Mr. Ransom has stolen charitable funds provided to him by New Hampshire Legal Assistance and Catholic Charities for the benefit of Thomas Cannon."

IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW

Based on the foregoing facts, which are supported by the documentary evidence submitted by the Division, there being no evidence or testimony to the contrary, I find that the Division has proven, by a preponderance of the evidence that:

1. James Ransom violated RSA 485-A:29, I, by installing a septic system at the Alexandria Property that had not received construction approval from the Division, therefore, the fine sought by the Division for this violation, in the amount of $1,500, is justified;

2. James Ransom violated RSA 485-A:29, I, by covering a septic system at the Alexandria Property that he installed without having the system inspected and approved by Division personnel, therefore, the fine sought by the Division for this violation, in the amount of $2,000, is justified;

3. James Ransom violated RSA 485-A:29, I, by failing to install the a septic system at the Groton Property in strict accordance with the approved plans, therefore, the fine sought by the Division for this violation, in the amount of $1,000, is justified;

4. James Ransom violated RSA 485-A:29, I, by refusing to correct the defective installation of the septic system at the Groton Property, therefore, the fine sought by the Division for this violation, in the amount of $1,000, is justified; and

5. The foregoing violations were willful and in disregard of state statutes and rules and constitute just cause for revocation of an installers permit, therefore, pursuant to RSA 485-A:36, I(b), James Ransom's septic installer's permit no. 4132, dated April 29,2003, should be, and is, hereby, revoked.

The Division also asserts that there are aggravating factors that warrant increasing the fine after the hearing, pursuant to Env-C 60 1.1 1. Env-C 60 1.1 1 provides that the amount of fine imposed for a specific violation shall be increased by 10% for each listed aggravating factor proven by the Division. Specifically, the Division argues that fine increases are warranted


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pursuant to:

Env-C 601.1 l(a)(l) because Mr. Ransom was aware of the applicable requirements at the time of the violation,

Env-C 601.11(a)(2) because Mr. Ransom failed to alleviate an environmental threat or harm,

Env-C 60 1.1 1 (a)(3) because Mr. Ransom may have derived an economic benefit by not expending money necessary to correct the violations and because he received money from third parties for the purpose of completing the installation on the Groton Property, but failed to do so,

Env-C 601.11(a)(4) because Mr. Ransom did not act in good faith to remedy the violations,

Env-C 60 1.1 1 (a)(5) because Mr. Ransom has a history of non-compliance, as evidenced by his repeated violations that remain uncorrected, and

Env-C 601.11(a)(6) based Mr. Ransom's overall course of conduct as a licensed installer in connection with this matter.

The $2,000 fine imposed for covering the septic system at the Alexandria Property without receiving operational approval (paragraph IV, 2. above) is the maximum fme authorized by RSA 485-A:43, V, therefore, it cannot be increased. Also, while it is possible that an environmental threat may exist, there is no evidence in the record that any environmental threat or harm does, in fact, exist as result of Mr. Ransom's violations. Therefore, none of the fines imposed herein shall be increased pursuant to Env-C 601.11(a)(2). I find, however, that the Division has proven, by a preponderance of the evidence, except as noted herein, that the five remaining aggravating factors set forth in Env-C 601.11(a) are present, therefore, the fines imposed herein shall be adjusted as follows:

The fine set forth in paragraph IV, I., above is increased fiom $1,500 to $2,250.

The fine set forth in paragraph IV, 2., above cannot be increased and remains at $2,000.

The fine set forth in paragraph IV, 3., above is increased from $1,000 to $1,500.

The fine set forth in paragraph IV, 4., above is increased fiom $1,000 to $1,500.

The total assessed fine of $7,250 shall be paid within 30 days of the date of this decision. 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.


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Any party aggrieved by this decision may file a motion for reconsideration within 30 days of the date of this decision, in accordance with NH RSA 541 -A and Env-C 206.

COMMISSIONER OF ENVIRONMENTAL SERVICES n

Date: April 27,2009 By:

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, ef3-25-07

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, eff3-25-07

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, ef3-25-07

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, eff3-25-07

Env-C 206.02 A~plicabilitv. 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.


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 weissued.


(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.


Env-C 206.05 Format and Content of Motion. 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.


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.


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