BEFORE THE WATER RESOURCES DEPARTMENT STATE OF OREGON
In the Matter of Notice of Violation and FINAL ORDER
Assessment of Civil Penalty for
Daniel Merrill, Water Well Constructor,
License Number 728,
Appellant
HISTORY OF THE PROCEEDING
This proceeding was initiated following a Notice of Violation and Assessment of Civil Penalty
dated May 19, 2003, served on Daniel Merrill. The Notice of Violation proposed to assess civil
penalties for failure to submit start cards and well reports within the required timelines and for
material misstatement of fact on well reports. On June 6, 2003, Mr. Merrill filed a request for
hearing. On December 4, 2003, a Prehearing Order was served, identifying issues and setting a
schedule to culminate in a hearing on March 9, 2004.
An in-person hearing was held on March 9, 2004 at the Department’s offices in Salem, Oregon
before Administrative Law Judge Daina Upite of the Office of Administrative Hearings. Mr.
Merrill was present, represented himself, and testified on his own behalf. The Department was
represented by Juno Pandian, Agency Representative. Tracy Eichenlaub, Well Construction
Specialist, appeared as a witness for the Department. The record closed at the conclusion of the
hearing on March 9, 2004.
In the hearing, Mr. Merrill stipulated that he did not disagree with and did not appeal that portion
of the Notice of Violation that (1) assessed a civil penalty in the amount of $300 for 12 violations
of ORS 537.762(1) and OAR 690-205-0070 for failing to submit start cards prior to the
beginning of construction, alteration, abandonment or conversion of a well; and (2) assessed a
civil penalty in the amount of $375 for 15 violations of ORS 537.765 and OAR 690-205-0080
for failing to furnish a certified copy of a well report within 30 days after completion of
construction, alteration, abandonment or conversion of a well. Therefore, the only issue for
hearing was whether Dan Merrill made a material misstatement of fact on two water well reports
(CLAC 54770 and CLAC 57719) by failing to identify an aquifer.
On May 21, 2004, ALJ Upite issued a proposed order. ALJ Upite determined that in the record
there was insufficient evidence to establish that Mr. Merrill failed to identify an aquifer that
existed in two separate instances (CLAC 54770 and CLAC 57719). Therefore, the evidence
presented by the Department does not establish that there were material misstatements of fact on
the subject well reports. No exceptions were filed and the Department issues this final order
concurring with the Administrative Law Judge’s proposed order.
Final Order In the Matter of Notice of Violation and Assessment of Civil Penalty for
Daniel Merrill, water well constructor
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ISSUES
Whether the claimant made two material misstatements of fact on two water well reports (CLAC
54770 and CLAC 57719) by failing to identify an aquifer? If so, should civil penalties in the
amount of $1,000 and a 60-day license suspension be assessed?
EVIDENTIARY RULINGS
Exhibits 1-11, submitted by the Department, were admitted into evidence without objection.
Exhibits 5 and 9 include videotapes. Exhibits 12 and 13, submitted by the Department, were
excluded as not relevant. Exhibits 100-135, submitted by Mr. Merrill, were admitted into
evidence without objection.
FINDINGS OF FACT
Daniel Merrill is a licensed well constructor, under license #728. He has been in the business of
drilling wells since 1978. (Testimony of Merrill.) On December 2-6, 1998, Mr. Merrill
constructed a well for Janet Peterson at 37243 S. Wilhoit Rd. in Molalla, Oregon. The well was
located in Tax Lot 800, SW ¼ NW ¼, Section 8, Township 6 South, Range 2 East, Clackamas
County, Oregon, on property owned by Tom Walsh. (Exs. 3 at 4; 4; 7.) Mr. Merrill completed a
well report for start card #73445 indicating that the static water level was 205 feet below land
surface, and that water was first found at 468 feet below land surface. Well depth was 473 feet.
(Ex. 4 at 1.)
On November 20 to December 3, 2001, Mr. Merrill deepened the same well located on Tax Lot
800. Mr. Merrill completed a well report for start card #137098 on March 26, 2002 and
indicated that static water level was 50 feet below land surface, and that water was first found at
859 feet below land surface. Mr. Merrill deepened the well to 972 feet. (Ex. 6.)
Tracy Eichenlaub, Well Construction Specialist for the Department, inspected the well on
February 13, May 7, and May 30, 2002. On February 13, 2002, the static water level was
measured at 22 feet below land surface. On May 7, 2002, the static water level was 11.5 feet.
On May 30, 2002, Ms. Eichenlaub conducted a video examination of the well. The static water
level could not be established on May 30, 2002 because another well driller was working on the
well, so the water level in the well was not at rest. On May 30, 2002, Ms. Eichenlaub first
observed water at a depth of 129 feet. Water was spraying in the sides of the well at that level.
(Testimony of Eichenlaub; Ex. 5, including video.). The Department did not provide evidence
that water was present at a depth of 129 feet in December 1998 when Mr. Merrill constructed the
well. (Testimony of Eichenlaub.)
On March 4 to March 14, 2002, Mr. Merrill constructed a well in Tax Lot 705, NW ¼ NW ¼,
Section 2, Township 4 South, Range 2 East, in Clackamas County for property owner Maria
Gonzales. Mr. Merrill completed water well report for start card #137098 on March 18, 2002,
indicating that the water-bearing zone was from 135 to 136 feet below land surface with an
estimated flow rate of four gallons per minute (gpm). The static water level was at a depth of 60
feet. (Ex. 10 at 1.)
Final Order In the Matter of Notice of Violation and Assessment of Civil Penalty for
Daniel Merrill, water well constructor
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Ms. Eichenlaub performed a video inspection of the well in Tax Lot 705 on July 8, 2002, which
revealed water dripping from the bottom of the 60-feet-deep well casing at a rate of
approximately six drops per second. Water was dripping from the outside of the well casing, not
from within the casing. The static water level was at 91.5 feet below land surface. (Ex. 9,
including video; testimony of Eichenlaub, Merrill.) In December 2002, when the well was
abandoned, the rate of dripping was approximately two drops per second. (Testimony of Merrill;
Ex. 11.)
On May 19, 2003, the Department issued a Notice of Violation and Assessment of Civil Penalty
to Mr. Merrill, alleging that Mr. Merrill made a material misstatement of fact on two well reports
by failing to identify an aquifer on the Walsh/Peterson and Gonzales wells. The Department
proposed to assess a civil penalty in the amount of $500 and a 30-day license suspension for each
material misstatement of fact. (Ex. 3.)
CONCLUSIONS OF LAW
1. The Department failed to provide sufficient evidence to support the claim that Mr. Merrill
made material misstatements of fact on well reports CLAC 54770 (start card #73445) and CLAC
57719 (start card #137098).
2. There is no basis for assessing civil penalties or license suspension for material
misstatement of fact.
OPINION
The Water Resources Commission is authorized to regulate construction and maintenance of
wells, pursuant to ORS 537.505 to 537.795. Pursuant to ORS 537.747(1), anyone who enters
into a contract to construct or alter a well must possess a water well constructor’s license issued
by the Water Resources Department. The Department may suspend such license if, after notice
and opportunity to be heard, it appears to the satisfaction of the Department that the licensee has
made a material misstatement of fact on a well log. ORS 537.747(7).
Any person licensed as a water well constructor is required to keep a log of each well
constructed, altered, converted, or abandoned. ORS 537.765(1). The well log (also referred to
as a well report) must show, among other things, “[t]he kind and nature of the material in each
stratum penetrated, with at least one entry for each change of formation, and the thickness of
aquifers.” ORS 537.765(3)(h). OAR 690-200-0050(9) defines “aquifer” as follows:
Aquifer means a geologic formation, group of formations, or part of a
formation that contains saturated and permeable material capable of
transmitting water in sufficient quantity to supply wells or springs and
that contains water that is similar throughout in characteristics such as
potentiometric head, chemistry, and temperature (see Figure 200-2).
Final Order In the Matter of Notice of Violation and Assessment of Civil Penalty for
Daniel Merrill, water well constructor
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ORS 183.450 states that “the burden of presenting evidence in support of a fact or position in a
contested case rests on the proponent of the fact or position.” In this case, the Department has
the burden of establishing, by a preponderance of the evidence, that there were aquifers that Mr.
Merrill failed to identify on the well logs for the Walsh/Peterson and Gonzales wells, and that the
omission constituted a material misstatement of fact on the well logs.
Walsh/Peterson Well – CLAC 54770, Start Card #73445
On May 30, 2002, water was first encountered in this well at 129 feet below land surface. Water
was spraying in the sides of the well with some force at this level. The Department made the
reasonable inference that there was an aquifer at that depth. When Mr. Merrill constructed the
well in December 1998, he had a statutory obligation to indicate on the well log the thickness of
aquifers encountered in the course of drilling. On the well log completed December 2, 1998, Mr.
Merrill did not identify an aquifer at a depth of 129 feet below land surface.
The Department presented insufficient evidence to support a reasonable inference that the aquifer
was present at a depth of 129 feet in December 1998. Therefore, the Department failed to
establish, by a preponderance of the evidence that an aquifer existed at a depth of 129 feet in
December 1998. Consequently, the Department failed to establish that Mr. Merrill made a
material misstatement of fact on the well log by not identifying an aquifer at a depth of 129 feet.
Gonzales Well – CLAC 57719, Start Card #137098
When Mr. Merrill constructed the Gonzales well in March 2002, he indicated on the well log that
the water-bearing zone was at a depth of 135 to 136 feet below land surface. On July 2, 2002,
however, when Ms. Eichenlaub examined the well, water was dripping from the bottom of the
60-feet-deep well casing.
Although the dripping water indicates the presence of water above a depth of 60 feet, the
Department provided insufficient evidence to establish the presence of an aquifer.
Consequently, the Department failed to establish that it is more likely than not that an aquifer
existed at or above a depth of 60 feet that Mr. Merrill failed to identify in March 2002.
Penalty
The Department proposed to impose sanctions for two material misstatements of fact. However,
the preponderance of evidence does not establish that aquifers existed that Mr. Merrill failed to
identify on the Walsh/Peterson and Gonzales well reports. Therefore, the evidence does not
establish that there were material misstatements of fact on the well reports.
FINAL ORDER
It is HEREBY ORDERED that the May 19, 2003 Notice of Violation and Assessment of Civil
Penalty is reversed with respect to the allegations of material misstatements of fact on two well
reports (CLAC 54770 and CLAC 57719).
Final Order In the Matter of Notice of Violation and Assessment of Civil Penalty for
Daniel Merrill, water well constructor
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The remainder of the Notice of Violation and Assessment of Civil Penalty is affirmed.
For 12 violations of ORS 537.762(1) and OAR 690-205-0070, a civil penalty in the amount of
$300.00 is assessed.
For 15 violations of ORS 537.765 and OAR 690-205-0080, a civil penalty in the amount of
$375.00 is assessed.
Civil penalties are due and payable within 10 days of service of this Final Order. Failure to pay
the civil penalty within 10 days of service of this Final Order may result in referral for collection
to the Oregon Department of Revenue or to a private collection agency.
Dated September ________________, 2004
_______________________________________
Phillip C. Ward, Acting Director
Water Resources Department
Appeal Rights
You are entitled to judicial review of this order. Judicial review may be obtained by filing a
petition for review within 60 days from the date of service of this Order. If this Order was
personally delivered to you, the date of service is the day you received the Order. If this Order
was mailed to you, the date of service is the date it was mailed. Judicial review, pursuant to the
provisions of ORS 536.075, is to the Oregon Court of Appeals. If you do not file a petition for
judicial review within the 60-day time period, you will lose your right to appeal.
Final Order In the Matter of Notice of Violation and Assessment of Civil Penalty for
Daniel Merrill, water well constructor
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