STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MOHAMMAD'S SUPERMARKET, ) DEP FACILITY NO. 298628197, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1739

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on July 14, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Francisco J. Amram, P.E.

Qualified Representative

9942 Currie Davis Drive, Suite H Tampa, Florida 33619

For Respondent: W. Douglas Beason, Esquire

Department of Environmental Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUES

The issue for consideration in this hearing is whether the Petitioner is entitled to reimbursement for clean up costs associated with the Initial Remedial Action, (IRA), activities of the Abandoned Tank Restoration Program performed at his facility, and if so, in what amount.

PRELIMINARY MATTER

By letter dated August 5, 1994, the Department of Environmental Protection notified the Petitioner that it had completed its review of his application for reimbursement and had awarded him twenty-five percent of the claimed costs because only that equivalent percentage of the project related to eligible clean up. Thereafter, Petitioner requested formal hearing and this hearing ensued.

At the hearing, Petitioner presented the testimony of Francisco J. Amram, a professional engineer, and Mohammad Daemi, owner of the facility in question. Petitioner also introduced Petitioner's Exhibit A. Respondent presented the testimony of Bawo E. Okome, an environmental manager for the Department's Bureau of Waste Cleanup, and introduced Respondent's Exhibits 1 through 4.

No transcript of the proceedings was furnished. Subsequent to the hearing, counsel for Respondent submitted Proposed Findings of Fact which have been accepted and are incorporated in this Recommended Order. Petitioner's Qualified Representative submitted a Proposed Reimbursement Order which contains the Petitioner's statement of position as to each disputed issue of fact and a proposed resolution of that issue. The Proposed Order has been carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times the Respondent, Department of Environmental Protection, (Department), has been the state agency in Florida responsible for the administration of the state's Abandoned Tanks Restoration Program. Petitioner is the owner and operator of Mohammad's Supermarket, Department facility No. 29-8628197, a food market and gasoline station located at 3320 Hillsborough Avenue in Tampa. Petitioner has owned and operated the facility for approximately the last ten years.

   
   

2. The facility in question included three 5,000 gallon gasoline underground storage tanks and one 5,000 diesel underground storage tank. The diesel tank has not been used for the storage of diesel product for the entire time the Petitioner has owned the facility, at least ten years, but the three gasoline tanks were in use after March 1, 1990. Gasoline tanks were reinstalled at the facility and are still in use.

3. In March, 1993, Petitioner removed all four underground storage tanks from the facility and performed initial remedial action. The field and laboratory reports of the soil and groundwater samples taken at the site at the time the tanks were removed showed both gasoline and diesel contamination.

   
   

4. In October, 1993, the Petitioner submitted an application for reimbursement of certain costs associated with the IRA program task to the Department. Thereafter, by letter dated August 5, 1994, the Department notified Petitioner that it had completed its review of the reimbursement application and had allowed Petitioner 25% of the total amount eligible for reimbursement. This was because since the Petitioner continued to use the gasoline tanks after March 1, 1990, the Petitioner's ATRP eligibility is limited to clean up of only the diesel contamination. Petitioner's application for reimbursement covered the entire cost of the tank removal, both gasoline and diesel, and did not differentiate between the costs associated with the remediation of the gasoline contamination and those associated with the diesel contamination. The 25% allowance was for the one tank, (diesel fuel), which was eligible for ATRP clean up reimbursement.

   
   

5. The Department subtracted from the personnel costs in the amount of $5,996.25, claimed in Section 2A of the claims form, the sum of $45.00 for costs associated with ATRP eligibility status; $497.50 claimed as a cost associated with the preparation of a Tank Closure Report, and $3,508.75 claimed as costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR). These deductions were made because costs associated with ascertaining ATRP eligibility status, the preparation of a Tank Closure report, and the preparation of a preliminary CAR are all costs ineligible for reimbursement. These three ineligible costs total $4,051.25. When this sum is deducted from the amount claimed, the remainder is $1,944.50. The Department then reduced this figure by prorating it at 25% for the diesel tank and 75% for the gasoline tanks, disallowing the gasoline portion. With that, the total reimbursement for Section 2A, personnel, costs is $486.25.

   
   

6. Petitioner claimed $1,765.00 for rental costs, (Section 2C), associated with soil removal, from which the Department deducted the sum of $1,550.00 which represents costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR), which is not eligible for reimbursement. The balance of $215.00 was reduced by the 75%, ($161.27), which related to the three gasoline tanks, leaving a balance of $53.75

   to be reimbursed for rental costs attributable to the diesel contamination.

   
   

7. Petitioner also claimed $12,865.75 for miscellaneous costs associated with soil removal. This is listed under Section 2I of the application. From that figure the Department deducted the sum of $9,455.99 as costs attributable to the three gasoline tanks. In addition, $2,017.43 was disallowed because it related to the preliminary CAR, and $3,151.99 was deducted because the tank was removed after July 1, 1992. The applicable rule requires justification in the Remedial Action Plan, (RAP), for removal of tanks after that date. Such costs, when justified, can be reimbursed as a part of a RAP application. A further sum of $1,759.66 was deducted from the 2I cost reimbursement since the applicant got that much as a discount on what it paid. Together the deductions amounted to $16,385.07, and when that amount is deducted from the amount claimed, a negative balance results.

   
   

8. Section 3 of the application deals with soil treatment. Subsection 3I pertains to such miscellaneous items as loading, transport and treatment of soil. The total amount claimed by Petitioner in this category was $13,973.44. Of that amount,

   $10,480.00 was deducted because it related to the three gasoline tanks. The amount allowed was $3,493.44, which represents 25% of the total claimed.

   
   

9. Category 7 on the application form deals with tank removal and replacement. Section 7A relates to personnel costs and Petitioner claimed $4,187.00 for these costs. Of this,

   $3,140.25 was deducted as relating to the three gasoline tanks and amounted to 75% of the claimed cost. In addition, $1,046.75 was deducted because the diesel tank was removed after July 1, 1992 and there was no justification given for the removal at that time. This cost might be reimbursed through another program, however. In summary, all personnel costs were denied, but so much thereof as relates to the diesel tank may be reimbursed under another program.

   
   

10. Section 7C of the application form relates to rental costs for such items as loaders, trucks and saws. The total claimed was $2,176.00. Of this amount, $1,632.00 was deducted as relating to the three gasoline tanks, and an additional

    $544.00 was deducted as being associated with the non-justified removal of the diesel tank after July 1, 1992. As a result, all costs claimed in this section were denied.

11. In Section 7D, relating to mileage, a total of $12.80 was approved, and for 7G, relating to permits, a total of $28.60 was approved. In each case, the approved amount constituted 25% of the amount claimed with the 75% disallowed relating to the three gasoline tanks.

    
    

12. Section 7I deals with miscellaneous expenses relating to tank removal and replacement. The total claimed in this section was $2,262.30. A deduction of $1,697.11 was taken as relating to the three gasoline tanks, and $565.69 was deducted because the removal after July 1, 1992 was not justified in the application. This cost may be reimbursed under a separate program, but in this instant action, the total claim under this section was denied.

    
    

13. Petitioner asserts that the Department's allocation of 75` of the claimed costs to the ineligible gasoline tanks is unjustified and inappropriate. It claims the majority of the costs where incurred to remove the eligible diesel fuel contamination and the incidental removal of overlapping gasoline related contamination does not justify denial of the costs to address the diesel contamination.

    
    

14. To be sure, diesel contamination was detected throughout the site and beyond the extend of the IRA excavation. The soil removed to make room for the new tanks was contaminated and could not be put back in the ground. It had to be removed. The groundwater analysis shows both gasoline and diesel contamination at the north end of the property furthest from the site. The sample taken at that point, however, contains much more gasoline contaminant than diesel.

    
    

15. Petitioner contends that the costs denied by the Department as relating to gasoline contamination were required in order to remove the diesel contamination and Petitioner should be reimbursed beyond 25%. It contends that the diesel contamination could not have been removed without removing all four tanks.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

17. Petitioner seeks to be reimbursed all costs relating to the cleanup of contamination which escaped from four tanks on

    his property - one which contained diesel fuel and three which contained gasoline. The burden of proof in this proceeding is on the Petitioner to establish entitlement to reimbursement by a preponderance of the evidence.

    
    

18. Section 376.305(7), Florida Statutes, provides in pertinent part:

    
    

    The Legislature created the Abandoned Tank Restoration Program in response to the need to provide financial assistance for cleanup of sites that have abandoned petroleum storage systems. For the purposes of this subsection the term "abandoned petroleum storage system" shall mean any petroleum storage system that has not stored petroleum products for consumption, use, or sale since march 1, 1990. The department shall establish the Abandoned Tank Restoration Program to facilitate the restoration of sites contaminated by abandoned petroleum storage systems.

    
    

    1. To be included in the program:

       
       

       1. An application must be submitted to the department by June 30, 1992, certifying that the system has not stored petroleum products for consumption, use, or sale at the facility since March 1, 1990.

          
          

       2. The owner or operator of the petroleum storage system when it was in service decided not to continue in business for consumption, use, or sale of petroleum products at that facility.

          
          

       3. The site is not otherwise eligible for the cleanup pursuant to s. 376.3071 or 376.3072.

       
       

19. Petitioner does not contest the Department's determination that ATRP eligibility is limited to diesel contamination, nor does it contest the Department's determination that many of the costs claimed in its application for reimbursement are not eligible for reimbursement even if all tanks qualified for participation in the program. Petitioner asserts only that the Department should not have prorated the

    payment of eligible costs of the entire cleanup between that portion of costs attributable to diesel contamination and that portion attributable to the gasoline contamination.

    
    

20. The evidence establishes that the original four tanks, one for diesel and three for gasoline, were removed, the contaminated soil disposed of, and three gasoline tanks replaced for continuing use with gasoline. Notwithstanding diesel contamination was found to some degree throughout the entire cleanup project, only the diesel storage was discontinued and only the cost of cleanup of the diesel contamination is reimbursable. Since the Petitioner failed to meet its burden to establish what costs were attributable specifically to the diesel contamination, the Department could have denied the entire claim for reimbursement. However, an apportionment of the costs was made strictly on a percentage basis, and an award of one fourth the entire eligible cost was allocated to diesel contamination. Petitioner is entitled to no further reimbursement.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be entered denying Petitioner request for additional reimbursement of $27,653.82 and affirming the award of $6,629.07.

RECOMMENDED this 25th day of September, 1995, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1995.

COPIES FURNISHED:

W. Douglas Beason, Esquire Department of Environmental

Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Francisco J. Amram, P.E. Qualified Representative

9942 Currie Davis Drive, Suite H Tampa, Florida 33619

Virginia B. Wetherell Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-1000

Kenneth Plante General Counsel

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-1000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 95-001739

Orders for Case No: 95-001739