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					BEFORE THE HEARING OFFICER PANEL OF THE STATE OF OREGON FOR THE ENVIRONMENTAL QUALITY COMMISSION

IN THE MATTER OF THE CIVIL PENALTY ASSESSMENT OF

ADRIAN MALO, Respondent

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PROPOSED ORDER Hearing Officer Panel Case No: G60559 Agency Case No: WQ/D-NWR-99-187 Clatsop County (DEQ)

HISTORY OF THE CASE On March 8, 2000, Respondent was served with a Notice of Assessment of Civil Penalty, assessed a penalty of $2,574, for allegedly violating OAR 340-71-130(3). On March 16, 2002, respondent requested a hearing through his attorney, Donn Bauske. A pre-hearing conference was held on December 11, 2001. Jeff Bachman of The Department of Environmental Quality(DEQ) and Donn Bauske appeared by telephone for the conference. The conference resolved the issues of the date and time of the hearing and an exchange of information. A hearing was held in Seaside, Oregon on February 26, 2002. Mr. Bachman again represented the DEQ, and Mr. Bauske represented the respondent. Adrian Malo, Dewey Darold and Cynthia McDowell testified. At the conclusion of the hearing the parties agreed to a briefing school, which would have resulted in the record closing on or about March 27, 2002. The parties requested a telephone conference, and Mr. Bauske, Mr. Bachman and the Hearings Officer met by telephone on March 20, 2002, to further clarify time lines for documents, and to discuss an extension of the time. The parties were advised of a new briefing schedule, with the record closing on April 26, 2002. The record closed on April 26, 2002, after the submission of Hearing Memorandum from both parties. Included in the “after hearing” documents was a transcript of Mr. Malo’s testimony on January 17, 2002, at another administrative hearing, and an affidavit of Mr. Malo dated April 2, 2002. All of the aforementioned documents have been made part of the record. ISSUES Shall the Department of Environmental Quality’s Notice of Assessment of Civil Penalty, dated March 8, 2000, be affirmed, modified or vacated? Did the respondent violate OAR 340-71-130(3). If so, what is the appropriate sanction?

EVIDENTIARY RULINGS Exhibits 1 through 9 were admitted into evidence without objection. See attached list of Exhibits. FINDINGS OF FACT

1. Forest Lake is a mobile home park located in Clatsop County, Oregon. The property had been owned by Caleb Siaw. During the course of Mr. Siaw’s ownership of the property the Department of Environmental Quality (DEQ) assessed fines of $375,000 for violations of Oregon law and regulation related to the sewage system on site. 2. In the spring of 1999, Adrian Malo took over management of the park, after a trust administered by his brother, as trustee, signed an earnest money agreement to purchase the property. 3. One of the residents of the park, Cynthia McDowell, had lived at the park beginning in July, 1998. Ms. McDowell had noticed bad odors around the park throughout her period of residence. There were particular areas which were more aromatic, including one around a tree across from her home. Ms. McDowell noticed these smells were more prominent on some days than others. 4. Ms. McDowell believed Mr. Malo had been pumping sewage illegally and dumping it inappropriately, and she called DEQ on several occasions, complaining. Ms. McDowell was advised to try to get some evidence to support her beliefs. Ms. McDowell had seen a honey wagon (a septic disposal truck) around the facility on many occasions, and had seen the truck pumping sewage from various locations around the park. In fact, the truck had been pumping at the site several times a week, thousands of gallons each time. 5. Directly across the road from Ms. McDowell’s home was a large tree with many exposed roots, and which had a concave well under the trunk base of the tree. Ms. McDowell had noticed over the years that there was sometimes a strong smell near the tree. Near the tree was a “dosing tank”, a part of the septic system which receives effluent from the septic tank after the solids have settled, and then moves the fluids, a clear liquid, to the drainfield, distributing the fluids underground. The dosing tank is a pumping system used when gravity prevents proper natural distribution of the effluent. On at least one occasion, Ms. McDowell had observed the honey wagon pumping near the dosing tank. The dosing tank has an alarm system which is supposed to go off if the system is flooded.

6. On or about July 20, or 21, 1999, Ms. McDowell observed the hose sitting on the roots of the tree, with one end of the hose between some roots, and the other end at the dosing tank. Ms. McDowell smelled the same “stenchy” smell which she had smelled in the past. 7. Ms. McDowell observed Mr. Malo with a hose working around the dosing tank. Ms. McDowell used her video-camera to record Mr. Malo’s actions. Later, Ms. McDowell recorded Mr. Malo moving the garden hose around, and ultimately putting it in his vehicle. She recorded some movement by Mr. Malo, around the dosing tank on two separate occasions during that time period, but her angle prevented any clear view of his activities at the tank. 8. Ms. McDowell telephoned DEQ and said she had made a video of Mr. Malo using a pump and a hose to remove sewage. 9. On July 22, 1999, Dewey Darold from DEQ went to the site to inspect the area. Mr. Darold smelled sewage near the tree. Mr. Darold placed a shovel, handle side down, at a slight angle, down between the roots of the tree. The handle went into the earth about 3 or 4 inches, although he had pushed it down until the shovel head was touching the roots. When he pulled the shovel handle out, Mr. Darold smelled sewage, but there was no moisture on the handle. Mr. Darold inspected the dosing tank and saw that the fluid levels in the tank were appropriate. Mr. Darold saw no evidence of a pump in the area. 10. Mr. McDowell was not at the site when Mr. Darold visited, and so he arranged to get the video-tape at a later date. Mr. Darold watched the tape and saw Mr. Malo moving the hose around, but saw no pump in the video. Mr. Darold could think of no explanation for the smell of sewage under the tree, other than someone dumping sewage effluent there, and so he turned the matter over to the Enforcement Section of the DEQ for review. APPLICABLE LAW OAR 340-071-0130(3) (previously numbered OAR 340-71-130) provides: Discharge of Sewage Prohibited. Discharge of untreated or partially treated sewage or septic tank effluent directly or indirectly onto the ground surface or into public waters constitutes a public health hazard and is prohibited. OAR 340-071-0100(133) defines sewage as: Water–carried human and animal wastes, including kitchen, bath and laundry wastes from residences, building, industrial establishments or other places, together with such groundwater infiltration surface waters, or industrial waste as may be present.

OAR 340-012-0060 (1)(d) makes disposal of septic tank, holding tank, chemical toilet, privy or other treatment facility contents in a manner or location not authorized by the Department (DEQ), a Class One violation, subjecting the violator to fines.

CONCLUSIONS OF LAW DEQ offered testimony from Ms. McDowell and Mr. Darold, and assert that the testimony offered, as well as the video-tape prove that Mr. Malo dumped effluent from the dosing tank into the tree well on July 20, and 21, 1999. The party asserting the fact has the burden of proving the fact, by a preponderance of the evidence. Although Ms. McDowell said she saw a pump, there is no evidence of a pump at the site of the dosing tank while Ms. McDowell was filming. She told Mr. Darold she had seen a pump when she notified him of the “evidence”. Mr. Darold saw no evidence of a pump. Neither do I. Mr. Malo was seen in the area of the dosing tank on two separate occasions, and he moved the garden hose around during those events. He never removed any item from the dosing tank which appeared to be a pump, and although he placed the hose in his vehicle, he did not place any item which could have been a pump in the vehicle. The parties agree that one could not remove effluent with the hose without a pumping mechanism. A hose casually draped over the roots of a tree trunk is not proof that the garden hose held any effluent, or was used to drain the dosing tank. The video shows no such activity, and the testimony of the eye-witness, Ms. McDowell was so vague to be given any independent weight. Ms. McDowell indicated that there had always been a smell near the tree, even before Mr. Malo took over the management of the park. Mr. Darold argues that there would be no odor on his shovel handle unless effluent had been drained under the tree. He saw no evidence of “fresh” effluent drainage, as the soil he examined was dry. Mr. Siaw had apparently been accused of a variety of violations related to the sewage in the park. While it may be likely that at some time there was some effluent drained into the tree’s hollow, nothing in the record shows that the respondent was responsible for the problem on the dates alleged. The record was kept open for DEQ to present evidence which would arguably impute the credibility of Mr. Malo. Mr. Malo testified that he had heard noises in the dosing tank, and found that there was a severed connection. Ms. McDowell confirmed there had been noises near the tank at some point. He testified that he could not repair the connection without having the tank drained; that he called the sewage company to drain the tank, and then to repair it. Ms. McDowell stated she had seen the sewage truck at that site at some point, but could not say when. Mr. Malo testified that he used the garden hose to clean out the pipes so he could glue it securely. Mr. Malo’s testimony was somewhat evasive in regard to the ownership in the park, but his evasion is irrelevant to this determination. The Department has the burden or proving a violation. Mr. Malo’s testimony would be important if DEQ had presented a prima facie case. The agency has failed to meet its burden.

Because of the ongoing nature of the sewage problems at the park, and the persistent smell of effluent under the tree, finding that odor on a day when Mr. Malo had been near the tree is not indicative of whether he acted improperly. The agency has failed to demonstrate Mr. Malo violated the administrative rules, and he is not subject to a penalty. PROPOSED ORDER The Notice of Assessment of Civil Penalty is set aside. As explained above, DEQ has failed to demonstrate a violation of OAR 340-071-0130(3) No civil penalty can be imposed against respondent, Malo.

Dated this ____ day of______ 2002.

______________________________________ W. Lewis, Administrative Law Judge Hearing Officer Panel

APPEAL RIGHTS If you are not satisfied with this decision, you have the right to have the decision reviewed by the Oregon Environmental Quality Commission. To have the decision reviewed, you must file a "Petition for Review" within 30 days of the date this order is served on you as provided in Oregon Administrative Rule (OAR) 340-011-0132(1) and (2). The Petition for Review must be filed with: Environmental Quality Commission c/o Stephanie Hallock, Director, DEQ 811 SW SIXTH AVENUE Portland, OR 97204. Within 30 days of filing the Petition for Review, you must also file exceptions and a brief as in provided in OAR 340-011-0132(3). If the petition, exceptions and brief are filed in a timely manner, the Commission will set the matter for oral argument and notify you of the time and place of the Commission's meeting. The requirements for filing a petition, exceptions and briefs are set out in OAR 340-011-0132.

Unless you timely and appropriately file a Petition for Review as set forth above, this Proposed Order becomes the Final Order of the Environmental Quality Commission 30 days from the date of service on you of this Proposed Order. If you wish to appeal the Final Order, you have 60 days from the date the Proposed Order becomes the Final Order to file a petition for review with the Oregon Court of Appeals. See ORS 183.400 et. seq.

EXHIBIT LIST-ADRIAN MALO Description Notice of Assessment of Civil Penalty, including Findings Of Respondent’s Civil Penalty Respondent’s Request for Hearing Notices of Hearing Receipts from Ed’s Septic Tank Cleaning Service Map of Forest Lake Resort Sketch of dosing tank and Septic System Sketch of Tree Trunk Video Tape Memorandum of February 14, 2002 Number

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