Accordingly, I conclude that for the relevant period at issue in this case, Windmill Hill Estates Water System was a "public water system," specifically a "communi ty water system," as defined under the Act. Consequently, in accordance with the SDWA, Mr. Durham, as the owner/operator of the system, was legally required, on a monthly basis, to gather and submit water samples from the system for total coliform laboratory analysis and to report the results of the analysis to the designated officials. Mr. Durham has stipulated to the fact that in April 1993, May 1993, June 1993, October 1993, November 1993, December 1993, January 1994, June 1994 and July 1994: (a) he failed to have analyzed any water samples drawn from the system; and (b) he failed to submit reports of such analysis to EPA. As to February and March 1994, it is undisputed that he failed to submit the requisite number of samples for analysis and, therefore, an insufficient number of reports were submitted in connection therewith. Tr. 75-79 and Exhibit 1. Therefore, I find that the Respondent Paul Durham committed a total of twenty-two (22) violations of the Act, i.e., 11 months of failing to submit the requisite number of water samples for analysis and 11 months of not submitting the results of such analysis to regulatory authorities.

B. IS THE PROPOSED PENALTY OF $5,000 APPROPRIATE?

The next step in the decision involves determining the appropriate penalty for the violations. Section§300g-3 (g) (3) (A) , 42 U.S.C. provides that any person found violating an administrative order shall be liable for a civil penalty of "not more than $25,000 per day of violation." Section 300g-3(g)(3)(B) authorizes the assessment of a civil penalty of up to $5, 000 in administrative actions. The Complainant is seeking to impose a $5, 000 administrative penalty on Mr. Durham for his twenty-two (22) violations of the Act.

Section §300g-3 (b) of the Act provides that when imposing penalties for violations, a United States district court must consider "the seriousness of the violation, the population at risk and other appropriate factors." Although the Act only specifies that United States district courts are to consider these factors in imposing penalties, it is appropriate to consider the same factors in administrative actions.

Furthermore, the EPA' s Rules require administrative penalty assessments to take into consideration any civil penalty guidelines "issued under the Act," and require that specific reasons for deviating from the amount of the penalty recommended in the Complaint be stated. See, EPA Rule §22.27 (b) . At the hearing, the Complainant stated that it relied principally on a "draft" public water system penalty calculation policy to determine the appropriate penalty. Mr. Davis specifically testified that the draft used was created in the Spring of 1994, and was the latest of several drafts proposed by the staff at the EPA headquarters and regional offices. He acknowledged that no policy had ever been finally "issued under the Act." Tr. 206. Although Mr. Davis testified as to how the penalty would be calculated under the draft policy, the EPA did not offer a copy of the draft policy in evidence. The EPA's Rules do not suggest that "draft" penalty policies need be considered in penalty assessments and I am not bound to follow "draft" policies. See, In the Matter of Employers Ins. of Wausau, TSCA Appeal No. 95-6, _ E.A.D._, (Final Decision, February 11, 1997); 1997 TSCA LEXIS 1. However, I find the criteria used in the draft policy to be consistent with that set forth in the Act and, thus, will consider many of the same issues raised in the draft policy to determine an appropriate penalty. Mr. Davis indicated that in calculating the penalty to be imposed in this case, the EPA took into account the two factors specifically delineated in the statute -- the seriousness of the violation (the gravity component) as well as the population at risk. The EPA further took into account other factors it deemed "appropriate," as provided for by the Act, such as the economic benefit derived by the violator from non-compliance with the law ("the benefit component"), the degree of the Respondent's willfulness or negligence, his history of non-compliance, his ability to pay, the degree of his cooperation or lack thereof and any other factors unique to the Respondent's case.

Specifically, Mr. Davis testified that in calculating the proposed penalty, the EPA took into account the gravity of the violation, that is, Mr. Durham's failure to monitor and submit samples for analysis and report the results thereof, despite the outstanding Administrative Order, the number of people exposed (37), and the duration of the exposure, i.e., 11 months of violations or 330 days. Based upon mathematical factors attributed to the risk, the EPA calculated the "gravity component" to be less then $1,000, but because of the default provisions in the draft policy, a figure of $1,000 was used in the calculations. The economic benefit of the violations to Mr. Durham was determined by the EPA to be $309. The EPA then doubled the gravity component for the degree of negligence and willfulness of the Respondent, taking into account his education and knowledge of the violation. It also increased the amount eightfold because of Mr. Durham's violation history, which revealed that since 1991/92 there were issued to Mr. Durham d/b/a Windmill Hill Estates Water System a total of six (6) administrative orders, one notice of violation, two proposed administrative orders, a final administrative order and two complaints for penalty (the initial and First Amended Complaint). Mr. Davis testified that a reduction for an inability to pay was not made in the EPA's calculations because Mr. Durham had failed to proffer evidence as to an inability to pay, despite being requested to do so. The sum finally reached was more than three times the amount sought herein, but in an effort to resolve the matter administratively, the Complainant pursued only the administrative limit of $5,000. Tr. 208-16.

While I believe all the factors considered by the EPA in assessing the penalty are lawful and appropriate, I am not convinced that the EPA correctly evaluated and applied each of those factors to determine an appropriate penalty to be assessed in this case.

First, I believe the EPA's calculations understate the seriousness of the violations. Expert testimony at the hearing indicated that coliform analysis involves testing for the presence of coliform bacteria, which are bacteria which come from the gastrointestinal tracts of warm-blooded animals. Such bacteria also exist in the environment. Mr. Davis indicated that some coliform organisms can, by themselves, be very dangerous to the health of persons with compromised immune systems. Tr. 129. However, coliform is mainly used as a secondary pathogen, to suggest the presence of other organisms dangerous to the health of humans. Tr. 51-52. Exposure to such organisms can result in gastrointestinal diseases, nausea, vomiting, dizziness, and convey illnesses like hepatitis, typhoid, giardiasis and cryptosporidiosis. Tr. 129-32. Mr. Durham's failure to have the water analyzed for months at a time left the health of men, women and children drinking it exposed to these conditions. This threat was not theoretical. Testimony and evidence submitted at the hearing indicated that Windm ill Hill Estates had been cited for a coliform violation in each of the years of 1985, 1986 and 1987. More importantly, fecal coliform was detected in samples submitted in September and October, 1994, only two and three months after July, 1994, the end of period at issue here during which no sampling was done at all. Tr. 74, 130, 185-86, 222; EX. 1. ²⁶ While there was no evidence introduced at the hearing to the effect that anyone ever complained that they became ill from drinking the water, I find this fact to be of little solace. Tr. 130, 230. It simply may be that the persons who imbibed the water did not think to attribute any illness they suffered to it. Further, even if no one actually became ill from the water, such a positive result is attributable more to the good fortune of the residents, rather than any prophylactic measures taken by Mr. Durham. Mr. Durham was also fortunate in this regard since, undoubtably, the penalty sought in this case is insignificant next to any award which might have been given in a legal action instituted against him, had someone become seriously ill, or worse yet, died, from imbibing water from his unmonitored system.

In addition, Mr. Durham' s 22 violations of the Act can be more broadly seen as directly undermining the purpose of the SDWA enforcement program, which is the foundation of the EPA's ability to generally protect human health by maintaining water potability. Without the results of periodic water analysis the Agency cannot effectively exercise its power under the Act to take measures to prevent the consumption of contaminated water and demand water improvement efforts.

On the other hand, the figure of "37" used by the EPA as the population exposed appears to be unsupported by the record. That figure can only be attributed to Exhibit 1, a document which the EPA itself acknowledges was created a number of years after the period at issue or the testimony of Mr. Harrell as to what the computer records showed as of the day before the hearing. Tr. 168. For the purposes of determining a penalty for violations committed in 1993-94, all that can be concluded is at least 25 persons would potentially be exposed to the risk.

However, I find the EPA's determination that Mr. Durham derived only $309 in economic benefit from the violations, to be far too low. While the actual cost of analyzing the 11 months of samples would probably have been no more than that figure, and probably far less, considering the testimony revealed a cost of $5-15 per sample analyzed, the cost of obtaining and submitting the samples for analysis would be far higher. Tr. 132-33. Mr. Durham would either have to hire and pay an operator to draw and submit the water samples on his behalf, at what he represented was a cost of $80-$600 per month, or he, himself, would have had to become an operator and travel to the system from his home or law office to draw the required samples. ²⁷ Tr. 16, 26, 28-29, 138-39, 228. There was testimony at the hearing clearly evidencing that Mr. Durham always hired an operator to draw and submit the samples and never became an operator and travelled to the water system to performing the sampling himself, even when he knew he had no operator in place to perform such sampling on his behalf. Tr. 23-24. Thus, 11 months of not paying a competent operator to sample the water potentially resulted in a cost savings to Mr. Durham of $880 to $6, 600. At the very least, it saved him the cost, time and inconvenience of becoming an operator and traveling each month 80 miles to the water system and 80 miles back to sample the water.

In addition, while the EPA doubled the subtotal it had then reached in its calculations due to the fact that Mr. Durham was capable of and did, in fact, understand the legal requirements imposed upon him, I think that this factor is far more significant than even such an increase suggests. As indicated above, Mr. Durham is a licensed attorney and sophisticated businessman. He built and maintained ownership of the water system, selling rights of access thereto to residents of his residential development. Tr. 13. Thus, Mr. Durham had both the ability and impetus to familiarize himself with the water system regulations. Therefore, I find Mr. Durham's claims that he did not understand what the law required of him and was confused in regard thereto by letters he received from enforcing agencies (tr. 11), to be simply not credible.

As to the issue of Mr. Durham's prior history of violations, I note that Mr. Durham did not challenge Mr. Davis' recital of a litany of federal administrative actions instituted against him in regard to his water system. Tr. 223. The only contention he challenged was the assertion that a state action with regard to the system was still pending. Tr. 183-84. Testimony and Exhibits 1 and 2 reveal that even after the time period at issue in this case, Mr. Durham continued to fail to sample, test and report bn the water for months at a time, the last month of violation being as recent as February of 1996. Tr. 184-185. ²⁸

At the hearing, Mr. Durham alleged an inability to pay the proposed penalty. Tr. 17-24. However, during the course of this proceeding, he has never proffered a single document in support of this assertion. To the contrary, at the hearing Mr. Durham admitted that, because of his assertion of an inability to pay, a number of months earlier the EPA had requested that he submit his tax returns to it for review. Mr. Durham further acknowledged that he had refused to submit such records to the EPA and did not proffer any records whatsoever regarding his financial status at any time in connection with this action. Tr. 216-217, 230-232. Thus, there is simply no credible evidence in the record supporting Mr. Durham's claim of an inability to pay the penalty.

Mr. Durham also alleged at the hearing that the failure to monitor and submit the analysis to officials was beyond his control, such that he should not be penalized for this failure. Specifically, he alleged that he had hired a number of operators, many of whom were derelict in their duty to draw and submit water samples for analysis. Tr. 16. He also asserted that he had attempted to hire others to perform the work, but was unable to do so. Tr. 24. Again, however, there is no evidence in the record to support these assertions. Moreover, I find that even if true, these assertions cannot justify Mr. Durham's persistent failure to adequately supervise his water system to assure regulatory compliance. Perhaps, an omission in a single month or even two months could be attributed to unknown and unknowable operator negligence. However, this case involves 11 months of violations. Further, Mr. Durham certainly was aware that, during those months when he did not employ an operator, that no person would be undertaking the sampling on his behalf. Nevertheless, even in those months, he did not undertake to personally draw and submit the samples for analysis, even though doing so would have involved comparatively minimal expense and inconvenience on his part. It is simply not appropriate to excuse or significantly reduce the penalty for the failure to monitor based on the misfeasance of his agents or the lack of an agent, when the circumstances indicate that Mr. Durham had no basis for believing in good faith that he could reasonably rely on the actions of others to fulfill the regulatory requirements. Cf., In the Matter of Red Fox Park Homeowners Ass'n, Docket No. SDWA-VII-8-PWS-91-06 (Initial Decision, March 23, 1993); 1993 SDWA LEXIS 1,8.

Therefore, after careful consideration of all the relevant factors referred to above, I conclude that a penalty of $5,000, equating to approximately $450.00 per month of violation or $227 per violation, is entirely warranted in this case.

I find that Respondent, Paul Durham, is a "person" who is a "supplier of water," specifically he is the owner and/or operator of Windmill Hill Estates Water System, which is a "public water system," more specifically a "community water system," as those phrases are used in the Act. As such, he is subject to the requirements of the Act (42 U.S.C. §§300g-3 et seq.) and the regulatory requirements set forth in 40 C.F.R. Part 141, requiring him to both monitor and report on total coliform in the water system on a monthly basis. A Final Administrative Order was issued pursuant to Section 300g-3(g)(1) to Mr. Durham on August 26, 1992 requiring that he comply with those statutory and regulatory requirements. Nevertheless, in violation of the Order, for a period of 11 months during April 1993 until July 1994, Mr. Durham failed to (a) monitor the water in the system for total coliform bacteria pursuant to 40 C. F. R. § 141.21 (a) and 141.21 (b) (5) ; and (b)submit the laboratory analysis of the same to the EPA and/or state authorities pursuant to 40 C.F.R. §141.21(f) (3) . As a result, I find the imposition of a civil penalty in the amount of $5,000 is appropriate in light of all the factors in this case.

1 1. Respondent is assessed a civil penalty of $5,000.

2. Payment of the full amount of this civil penalty shall be made within 60 days of the service date of this Order by submitting a certified or cashier's check in the amount of $5,000, payable to the Treasurer, United States of America, and mailed to:

3 . A transmittal letter identifying the subject case and the EPA docket number, as well as Respondent's name and address must accompany the check.

4 . If Respondent fails to pay the penalties within the prescribed statutory period after entry of the Order, interest on the penalty may be assessed.

5 . Pursuant to 40 C.F.R. §22.27(c) this Initial Decision shall become the Final Order of the Agency, unless an appeal is taken pursuant to 40 C.F.R. §22.30 or the Environmental Appeals Board elects, sua sponte, to review this decision.

Susan L. Biro

Administrative Law Judge

Date: 4/15/97

Washington, D.C.

¹ The Division Director' s authority to institute the action was delegated to him by the Regional Administrator of the EPA Region 6, who, in turn, had been delegated such authority by The Administrator of the Environmental Protection Agency. See, EPA Delegations Manual, Chapter 9, Section 9-33-A (April 3, 1989).

² "The Safe Drinking Water Act" ("SDWA") was initially enacted in 1974 as Title XIV of the "Public Health Service Act," 42 U.S.C. §§300f to 300j-26. The provisions therein were amended and added to in 1986 and 1988 under Acts which were authorized to be cited as the "Safe Drinking Water Act Amendments of 1986" and the "Lead Contamination Control Act of 1988," respectively. For the sake of clarity, further citations to the statutory provisions will be to the United States Code section only.

³ Administrative Order No. F920155, upon which the Complaint was based, was issued on August 26, 1992, after opportunity for public hearing. The Order was prompted by Mr. Durham's failure to submit monthly laboratory analysis of total coliform in water samples drawn from the water system for the months of September 1991, October 1991, December 1991 and January 1992. The Order required Mr. Durham, thereafter, to submit to the EPA monthly copies of total coliform laboratory analysis pursuant to 40 C.F.R. §141.21 so compliance with maximum contaminant levels could be assessed. Tr. 217-218.

⁴ The Motion was ruled upon by the Regional Judicial Officer because an Administrative Law Judge had not yet been assigned to the case. Although the case was at issue in August 1993, it was apparently not transmitted by the Regional Hearing Clerk to the Office of Administrative Law Judges until May 5, 1995.

⁵ In response to his failure to submit a prehearing exchange, Mr. Durham was advised in writing prior to the hearing, that he was considered to have waived his right to introduce testimony or exhibits into evidence at the hearing, as provided for by EPA Rule 22.19. See, Order Scheduling Hearing dated December 12, 1996. Mr. Durham never objected to or moved for reconsideration of this determination. Nevertheless, immediately prior to the initiation of the hearing, Mr. Durham was offered yet another opportunity to proffer to the EPA any exhibits he wished to introduce into evidence. Mr. Durham also failed to take advantage of this opportunity and thus was not permitted to introduce any exhibits into evidence. Tr. 34-39. However, Mr. Durham was allowed at the hearing to conduct extensive cross-examination of the EPA's witnesses. During the hearing, Mr. Durham claimed that he had not submitted his prehearing exchange because the Order establishing the date for the exchange was sent to his law offices rather than his preferred home address, and he had only recently discovered the Order when preparing for the hearing. Tr. 11-12. However, the pleading file reflects that, prior to the hearing, Mr. Durham received numerous other documents which notified him either of his need to submit a prehearing exchange or his failure to do so, and that, he, himself, used the law firm address as his return address on pleadings he filed in this case prior to the hearing. See e.g., Respondent's Petition to Request Hearing Date (December 31, 1996).

⁶ The Respondent's Briefs were submitted in the form of Affidavits. In his Affidavits, Mr. Durham made additional factual allegations, requested discovery, and requested an opportunity to submit unspecified evidence in support of his defenses. To the extent that the Affidavits can be considered to be either a Motion for Discovery under EPA Rule 22.19 (f) and/or a Motion to Reopen the Hearing under EPA Rule 22.28, such Motions are denied. As indicated, infra, the Respondent is a licensed attorney who has represented himself and others in legal matters. He had an extensive opportunity in the three years prior to the hearing to request discovery, but never did. He was given an opportunity to present evidence at the hearing in support of his allegations, but he chose not to do so. Respondent has not proffered any explanation of good cause as to why the unspecified evidence he now wishes to proffer was not adduced at the hearing. Granting discovery or reopening the hearing at this time will only serve to reward Mr. Durham's dilatory tactics and further unjustifiably delay resolution of the case. Similarly, it is noted that the Complainant also attached to its Reply Brief an Affidavit containing facts not adduced at the hearing and also did not move to reopen the hearing for the purpose of admitting the document into evidence. For the same reasons stated above, this Affidavit is not being considered as part of the evidentiary record.

⁷ The Regulations (40 C.F.R. §142.2) define a "public water system" slightly differently from the Act. A "public water system" is defined in the Regulations as a water system that "has at least fifteen service connections or regularly serves an average of at least twenty-five individuals daily at least 60 days out of the year (emphasis added)." In J. Gordon Arbuckle et al., Environmental Law Handbook (12th ed. 1993) it is noted that the EPA gave no explanation as to why it added the clarification to the regulatory definition that the system serve an "average" of 25 individuals daily. However, the author surmises that:

...EPA was seeking to interpret the statutory definition of [a public water system] as broadly as possible. In the absence of such a clarification, there would be systems that regularly serve very large numbers of people that could escape regulation simply by showing that there are days when they do not serve 25 people. EPA added the clarification that 60 days of service per year would constitute regular service in order to insure that the act would apply to public accommodations that are only open seasonally.

Id. at 251.

⁸ Section 300j-4(a)(1) provides as follows:

Every person who is a supplier of water... shall... make such reports, conduct such monitoring, and provide such information as the Administrator may reasonably require by regulation... (emphasis added).

The term "supplier of water" is defined as "any person who owns or operates a public water system.'' 42 U.S.C. §300f (5) . Thus, the regulatory requirements to monitor and report apply to both owners and operators of water systems. 40 C.F.R. §141.31. Therefore, Mr. Durham could not absolve himself of liability for violating the regulatory requirements by shifting the blame for such violations to his operators. However, the actions of others in causing the violations could be a factor in determining an appropriate penalty to be imposed upon Mr. Durham. See, In the Matter of Red Fox Park Homeowners Assn, Docket No. SDWA-VII-8-PWS-91-06 (Initial Decision, March 23, 1993); 1993 SDWA LEXIS 1,8.

⁹ The Regulations further divide non-community water systems into ''transient" and "non-transient" systems, with a transient system being one that does not regularly serve at least 25 of the same persons over 6 months of the year, and a non-transient system as all others. 40 C.F.R. §141.2.

¹⁰ The regulations (40 C. F. R. §141.21 (a) (1) ) provide that public water systems must collect total coliform samples at sites which are representative of water throughout the distributive system according to a written sample siting plan. The standard sample volume is 100 ml. and the time from sample collection to initiation of analysis may not exceed 30 hours. The samples are required to be analyzed according to one of 5 alternative methods specified by regulation. 40 C.F.R. §141.21(f) (3). Section 141.31(a) requires that the results of the analyses be reported to the state within 10 days either directly by the laboratory or the supplier of water. The supplier is also required to report within 48 hours the failure to monitor.

¹¹ While Mr. Durham did allege that some of the users of his system were part-time residents (tr. 89), he never specifically argued that his water system was a "non-community" type of public water system which used only ground water and thus, he was only required to monitor quarterly. To the contrary, Mr. Durham challenged the EPA' s classification of his system as one which used only ground water, and affirmatively represented that his system used or was influenced by surface water. Tr. 136-37. However, Mr. Durham offered no proof of this, or that any of his users were part-time residents. Of course, if Mr. Durham is correct, and his system uses or is influenced by surface water, then it would make no difference if Windmill Hills served was a "non-community" system, since it would be required to monitor to the same extent as a "community" water system, that is, monthly.

¹² Subsection 141.21(b)(1), 40 C.F.R. provides that:

If a routine sample is total coliform-positive, the public water system must collect a set of repeat samples within 24 hours of being notified of the positive result.

¹³ Section 300g-3 (a) (1) (B) , 42 U.S.C. provides that if the EPA finds that a public water system has not complied with any national primary drinking water regulation in effect under the Act and the State has not commenced proceedings within thirty days, it may issue an Order requiring the system to comply with such regulation. Subsection 300g-3 (g) (2) provides that any such Order shall not take effect until notice and opportunity for public hearing and, where applicable, consultation with state enforcement authorities. Oklahoma authorities, however, also enforce state drinking water regulations, which grant them broader jurisdiction over state water systems than the Federal enforcement authorities have. Specifically, the witnesses testified that Oklahoma drinking water regulations cover water systems with as few as two (2) connections. Tr. 167-68. Thus, Mr. Durham probably would have been obligated to have his system's water periodically sampled and analyzed pursuant to state regulation, even if he were not required to do so by Federal Regulation, an obligation he acknowledged being aware of at the hearing. Tr. 25.

¹⁴ Mr. Davis indicated that a "connection" is the place where the water system ends and the user's tap begins, often at a meter going into a home. An "individual" is defined as a person of any age, including children and adults. Tr. 120.

¹⁵ The Complainant did not introduce into evidence the August 1992 Final Administrative Order. The issuance of such an Order is a jurisdictional prerequisite to instituting a judicial or administrative proceeding for enforcement of the Safe Drinking Water Act. See, EPA Rule 22.42 (c) ; 42 U.S.C. §300g-3 (a) and In the Matter of HABSCO, Inc., Docket No. C8905, (R.J.0. Region 6, July 26, 1993) . While establishing the jurisdiction of the Court is the burden of the Complainant and it failed to submit as evidence a copy of the Order, there was uncontroverted testimony as to its terms, and that the Order was issued. Tr. 46-47. The Complainant's citation in its post-hearing brief to the proposed order or to various certified mail receipts relating to the orders, none of which were introduced into evidence, is completely inappropriate and is not being considered in this decision. Complainant's brief at 4-5

¹⁶ Mr. Davis stated that he was the enforcement agent assigned to the case for the first year after it was referred to his office, then it was transferred to another agent, Craig Lutz. The case was transferred back to him from Mr. Lutz two years ago and Mr. Lutz advised Mr. Davis regarding the interim progress of the case upon transfer. Tr. 112-14.

¹⁷ Mr. Davis also testified that information as to the number of persons served by a system is obtained by the inspector during the sanitary survey either from a statement made by the system's representative on site or by the inspector independently counting the connections and people being regularly served. Tr. 55.

¹⁸ The Complainant's third witness, Mr. Ted Witten, the Supervisor of the Microbiological Section of ODEQ's laboratory, testified regarding the procedures for entering, tracking and extracting data in the computerized database regarding water sample analysis. Tr. 140-161.

¹⁹ However, the EPA did introduce into evidence, as Exhibit 1, a copy of an undated computer printout containing information on Windmill Hill Estates Water System, which Mr. Davis testified he personally generated from the national database in September or December 1996. Tr. 65-66, 239. Exhibit 1 indicates, under the category title "POPULATION SERVED," the number "37." The printout does not reflect when the number "37" was entered into the system, nor does it indicate whether the number was changed at any point. Tr. 239-241. Further, it does not identify whether the population served are year-round residents, or in any other way identify the system as a "community" water system. Therefore, I find this Exhibit to be of little probative value as to the year-round population served by Windmill Hill Estates Water System in 1993-94, when the violations allegedly occurred.

²⁰ The Answer to the First Amended Complaint, f iled in April of 1995, put the EPA on notice that Mr. Durham was contesting the characterization of Windmill Hill Estates Water System as being a "public water system." Thus, it is unfortunate that EPA was unable to proffer at the hearing in January 1997 better evidence on this issue such as the testimony of the inspector who had personally visited the site, sanitary surveys from 1993-94 (such as the one proposed as an exhibit but not admitted into evidence due to EPA's failure to submit it with its prehearing exchange) , Respondent's business records such as water bills, the testimony of one of the numerous operators hired by the Respondent, Affidavits from users of the system, etc.

²¹ In a recent Environmental Appeals Board (E.A.B.) decision, In the Matter of Green Thumb Nursery, Inc., FIFRA Appeal No. 95-4a, _E.A.D._ (Final Decision, March 6, 1997) ; 1997 FIFRA LEXIS 1, the Respondent also contested the reliability of information EPA provided from its computerized FIFRA database rather than a search of paper files to determine that Respondent's pesticide product was not registered. The Board indicated that Respondent's objection was meritless, stating that a search of a database where such data is normally recorded can be relied upon as proof of the nonoccurrence (or, presumably, conversely, the occurrence) of an event.

²² There is a well known rule that where a matter is particularly within the knowledge of one of the parties, the burden is on him to prove it. See, In the Matter of Lamar and Frances Thumm, et al., Docket No. TSCA-V-C-222, (Initial Decision, April 26, 1985) ; 1985 TSCA LEXIS 50, and numerous citations therein. However, as indicated in those cases, this generally is held to mean the burden of production, going forward with evidence, rather than a shifting of burden of proof. In this case, the government's opportunity to inspect the water system suggests that it had such sufficient access to information regarding the number of persons using the system and that this information could not be deemed to be "particularly" within the knowledge of the Respondent. Of course, if such information was determined to be "particularly" within the knowledge of the Respondent, such that the rule relating thereto applied, it is clear that the Respondent would not have met his burden in this case.

²³ For example, without submitting any evidence in support thereof at the hearing, Mr. Durham alleged that some unspecified number of the persons served by his water system during the relevant period were "part-time," not "year-round" residents. If proven true, this fact might have undermined the validity of the Administrative Order and this action. As indicated in the text above, the pertinent regulations provide that a system using only ground water and serving less than 25 year-round residents, need only monitor quarterly. EPA's records (Exhibit 1) reflect that it has classified Windmill Hill Water System as one using only ground water. If 25 "year-round" residents were not being served by the system during the period at issue here, then it would be classified as a "non-community" public water system, only be required to conduct quarterly monitoring. See, 40 C. F.R. §141.21 (a) (3) (i) . Mr. Durham did apparently submit laboratory analysis for the water for four (4) months out of the sixteen (16) month period at issue in this case, and, therefore, may have met the quarterly testing criteria. However, Mr. Durham never took advantage of the numerous opportunities given to him to show that this was, in fact, the case. Rather, he chose to take the position that the total number of individuals served by the system never exceeded 25, and to allege that, therefore, he was exempt from the obligations imposed on water systems by the Act and its regulations.

²⁴ I find it extraordinary that Mr. Durham would suggest in his Post-Hearing Brief/Affidavit, that "[i]f given an opportunity, I can prove I had fewer than 15/25 connections and users." Mr. Durham has had more than one such opportunity and has consistently failed to use them.

²⁵ For example, Mr. Durham elicited from Complainant's witnesses testimony indicating that, in determining the number of persons "regularly" served by a water system, the inspector counts those persons who unlawfully tap into the system, without the owner or operator's knowledge, and those using it unlawfully because they are not paying f or the water. Tr. 192. Further, Mr. Davis testified that the state inspectors have adopted the policy of counting the actual number of connections and estimating the potential number of people using the system, because of the difficulty of determining the actual number of people served on a particular day by a small water system. Tr. 110. Mr. Durham suggested, but did not prove, that these facts and/or assumptions were responsible for the EPA's conclusion that his system was serving more than the 22 persons purportedly reflected in his accounting books. Tr. 13-14, 190-91, 187. However, Mr. Durham also suggested that the figure "37" for the number of persons actually using his system was given to the inspector by one of Mr. Durham's operators, a person clearly in a position to have accurate personal knowledge as to the correct number of users and a person cloaked with apparent authority to make such a statement against interest to the inspector. Tr. 13.

²⁶ Mr. Davis testified that in order to be cited for a "coliform" violation, a system has to test positive, twice, for coliform, i.e. both during initial and follow-up testing. It a system fails to perform the follow-up tests after initially obtaining a positive result, then it is given a 'monitoring" violation, rather than a "coliform" violation, because the finding of coliform is considered to be "unconfirmed." Tr. 123-124. However a "boil order" goes into effect upon receipt of the initial sample testing positive for coliform, and is lifted only when confirmation of non-contamination is received. Tr. 221. Mr. Durham received such monitoring violations, for failing to submit the requisite follow-up samples, in February and March of 1994. (Exhibit 1 and Tr. 77). Thus, Mr. Durham's system may have been contaminated with coliform in those months as well.

²⁷ Mr. Davis testified at the hearing that the state requires that the person submitting the water samples be a "certified operator." However, he stated that "anybody can apply to become an operator." Upon applying, applicants are automatically given a class D license, which lasts for 12 months. During that period, the operator can collect samples and perform all the other tasks required of an operator. At some point before the expiration of the 12 months, the applicant is required to pass a basic test. Mr. Davis stated that the test requires no more than an llth grade education. Tr. 134-135. Thus, Mr. Durham, who has a law degree, was certainly capable of becoming a "certified operator." Mr. Davis, in fact, testified that he had suggested to Mr. Durham that he or his wife could become a certified operator and thus, avoid the costs associated with hiring an operator. Tr. 139

²⁸ I note, however, that while admitting that the record reflected that Mr. Durham must have notified the users of his system of his failure to analyze, or at least the record did not indicate that Mr. Durham had failed to issue such notices, Mr. Davis did not consider that positive factor in calculating the penalty. Tr. 220-21..