STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CJC PROPERTIES LTD., | ) | |
) | ||
Petitioner, | ) | |
) | ||
vs. | ) ) | Case Nos. 06-2006 06-2007 |
DEPARTMENT OF ENVIRONMENTAL | ) | |
PROTECTION, | ) | |
) | ||
Respondent. | ) | |
) |
RECOMMENDED ORDER
The final hearing in this case was held on May 29, 2008, in Tallahassee, Florida, before Administrative Law Judge Bram D.E. Canter of the Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner: Robert D. Fingar, Esquire
Grambling & Fingar, LLP
1607 Village Square Boulevard, Suite 1
Tallahassee, Florida 32309
For Respondent: Jack Chisolm, Esquire
Department of Environmental Protection 3900 Commonwealth Blvd., Mail Station 35
Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE
The issue to be determined in this case is whether CJC Properties, Ltd. (CJC), is eligible for state restoration funding assistance under the Petroleum Contamination Participation Program or the Florida Petroleum Liability and
Restoration Insurance Program for one or more discharges of gasoline at DEP Facility No. 378943938 (“the facility”).
PRELIMINARY STATEMENT
In 1996, the former owner of the facility applied to participate in the Florida Petroleum Liability and Restoration Insurance Program (FPLRIP) for a petroleum discharge reported in 1995. The Department of Environmental Protection (Department) determined that the discharge was eligible for state restoration funding under FPLRIP. In September 2003, CJC, the new owner of the facility, sought funding under the Petroleum Contamination Participation Program (PCPP) for the contamination reported in 1995. In October 2003, the Department denied CJC eligibility under PCPP, stating that a cleanup funded under FPLRIP could not also be funded under PCPP.
In September 2005, CJC submitted an affidavit of its consultant in support of a claim that more than one discharge had occurred at the facility and sought PCPP funding for a second discharge. On March 30, 2006, the Department issued an Amended Order of Ineligibility, again stating that a discharge funded under FPLRIP could not be funded under PCPP, and adding a second ground of ineligibility that the reporting requirements had not been met. CJC filed a petition challenging the Department’s determination, which was referred to DOAH and assigned DOAH case number 06-2006.
CJC also requested FPLRIP funding for the second petroleum discharge at the facility. On March 23, 2006, the Department denied eligibility, stating that the evidence presented by CJC was insufficient to show that a second discharge had occurred. CJC filed a petition for hearing to challenge the order, and the petition was referred to DOAH and assigned DOAH case number 06- 2007. The two cases were consolidated for hearing.
At the final hearing, the parties’ Joint Exhibits 1 through
13 were admitted into evidence. CJC presented the testimony of Glenn R. MacGraw, who was accepted as an expert in the assessment of petroleum-contaminated sites, and Lewis J. Cornman, Jr. an employee of the Department. Petitioner’s Exhibits 1, 10, 11, 12, and 17 were admitted into evidence.
Petitioner’s Exhibits 2 through 5 were conditionally admitted into evidence over the Department’s relevance objection, subject to the Administrative Law Judge’s review of the controlling law. Based on that subsequent review, the Administrative Law Judge has ruled that Petitioner’s Exhibits 2 through 5 are irrelevant for the purpose determining whether a discharge was reported before the statutory deadline for state funding assistance. However, they remain in evidence because they are relevant to issues raised about the characteristics of the timely-reported discharge, and the need for and cost of future remediation at the facility.
The Department presented testimony of Lewis J. Cornman, Jr., and Michael J. Bland, who was accepted as an expert in geology and petroleum site assessment. The Department’s Exhibits 4 and 7 were admitted into evidence.
Following the final hearing, the Administrative Law Judge granted the Department’s unopposed motion to reopen the record for the purpose of taking official recognition of Chapter 2008- 127, Laws of Florida.
The two-volume transcript of the final hearing was prepared and filed with DOAH. Both parties filed proposed recommended orders which were carefully considered in the preparation of this Recommended Order.
FINDINGS OF FACT
The Facility
CJC is a Florida Limited Partnership. It is the current owner of property located at 5691 U.S. Highway 27 North, in Tallahassee. Prior to CJC’s acquisition of the property, the property was owned by Carolyn J. Chapman, John W. Chapman, Jane Chapman Latina, and Carolyn Chapman Landrum (“the Chapmans”).
The property was leased to various entities and operated as a gas station. The tanks and dispensers remained in service until November, 1995. The last operator of the facility was Lake Jackson 76, Inc.
There were five underground petroleum storage tanks at the facility. Before 1991, one of the tanks at the facility was used for regular, leaded, gasoline. When leaded gasoline was phased out, the tank was used for unleaded gasoline.
Site Assessments and Sampling Data
On November 30, 1995, the Chapmans employed Petroleum Contractors, Inc., to remove the five storage tanks. During the tank removal, Environmental and Geotechnical Specialists, Inc. (“EGS”) performed an assessment to determine whether the facility was contaminated with petroleum or petroleum products.
The Underground Storage Tank Removal Report prepared by EGS noted that all five tanks appeared to be intact. Soils in the tank pit wall and bottom were not discolored. No significant contamination was observed directly below the tanks.
Soil from the tank pit was stockpiled on the site. EGS observed no significant signs of contamination of this soil.
The soil stockpile was also screened with a Flame Ionization Detector Organic Vapor Analyzer (OVA). No organic vapors were detected.
An OVA detects any organic vapor, but is used as a screening tool to find petroleum vapors. Department rules require that an OVA reading be performed both unfiltered and filtered. The filtered reading screens out everything but
methane and is “subtracted” from the unfiltered reading to determine the presence of petroleum vapors.
Twenty-four soil samples were taken from various depths at nine locations in the tank pit. These samples were tested using an OVA. Nine of the soil samples, taken from four locations, had corrected OVA readings indicative of petroleum contamination.
EGS concluded that “soil contamination detected in the tank pit is likely the result of a leak in the piping” between the dispensers and the tanks.
Soil samples were also taken from three borings in the vicinity of the dispenser island and OVA-tested. In boring D-2, organic vapors were detected from the surface to a depth of approximately seven feet. The OVA readings from D-2 declined with depth.
EGS reported that “some contamination was detected beneath a dispenser; however, it does not ‘appear’ to significantly extend below six (6) feet.”
EGS did not report both filtered and unfiltered OVA readings for the soil samples taken from the dispenser area, as it had done for soil samples taken from the tank pit and the stockpile. For the dispenser area soil samples, EGS reported a single OVA reading for each sample, without indicating whether
the reading was “corrected” after filtering. For this reason, the Department contends that these data are unreliable.
CJC points out that EGS stated in the text of its report that the soil samples were filtered. CJC also argues that, because the filtered OVA readings for soil samples taken from the tank pit area were not different from their unfiltered readings, the OVA readings for the soil samples from the dispenser area would not have changed after filtering.
The preponderance of the evidence is that the contamination in the dispenser area was petroleum.
Based on EGS’ findings during the tank removal in November 1995, Petroleum Contractors, Inc., filed a Discharge Reporting Form on December 1, 1995, stating that there had been a discharge of unleaded gasoline at the facility.
In January 1996, the Chapmans applied to participate in FPLRIP based on the discharge reported on December 1, 1995. By order dated January 26, 1996, the Department determined that the reported discharge was eligible for state-funded remediation assistance under FPLRIP.
In 1997, another consultant, Levine Fricke Recon (LFR) conducted a site assessment at the facility and submitted its Interim Site Assessment Report to the Department. As part of its own soil sampling at the site, LFR collected a “direct push” soil boring in the dispenser island area, near the place where
EGS had reported organic vapors. The boring data showed no petroleum vapors until the interval 16-to-20 feet below ground surface.
LFR also collected and analyzed groundwater samples from the site. It reported that a sample taken from beneath the former diesel dispenser contained lead.
Because lead occurs naturally in soils, its presence in a water sample does not confirm that a discharge of leaded gasoline occurred.
In 1998, LFR conducted a second assessment of the facility site. It installed and sampled four shallow monitoring wells, designated MW-1S through MW-4S, and three deep monitoring wells, designated MW-2D through MW-4D. Groundwater samples from MW-3S and MW-3D were analyzed for lead, ethylene dibromide (EDB), and 1,2-Dichloroethane. All three substances are usually detected in a groundwater sample contaminated with leaded gasoline.
On August 28, 1998, LFR submitted its Interim Site Assessment II to the Department, which shows lead and EDB were found in a sample taken from MW-3S, but not 1,2-Dichloroethane.
LFR did not conclude or express a suspicion in either of its two assessment reports that leaded gasoline had been discharged at the facility.
The deadline for submitting a Discharge Reporting Form or written report of contamination was December 31, 1998. A site assessment report received by the Department before January 1, 1999, which contained evidence of a petroleum discharge, was accepted by the Department as a “report of contamination.”
The petroleum discharge information received by the Department before January 1, 1999, consisted of the Underground Storage Tank Removal Report, the FPLRIP claim, the Interim Site Assessment Report, and the Interim Site Assessment Report II.
Post Deadline Site Assessment Data
After the statutory deadline, LFR submitted its Interim Site Assessment III. This report includes January 1999 groundwater sampling data from four monitoring wells which show the presence of low levels of EDB.
When EDB is found in a groundwater sample, it is a common practice to re-sample the well from which the sample was taken. Of the wells that showed the presence of EDB, only MW- 10D was re-sampled, after January 1, 1999. There was no EDB present in the groundwater when MS-10D was re-sampled.
In June 2000, as part of the remediation of the contamination at the facility, an area of contaminated soil was removed to a depth of 14 feet. The area of soil removed included the former dispenser area.
In January 2003, the Department notified CJC that the
$300,000 FPLRIP funding cap would soon be reached. In March 2003, CJC signed a Funding Cap Transition Agreement, acknowledging that “At no time will the DEP be obligated to pay for cleanup of this discharge any amount that exceeds the funding cap.” CJC further acknowledged that it “is responsible for completing the remediation of the discharge in accordance with Chapter 62-770, F.A.C.”
In 2005, CJC re-sampled one of the monitoring wells for lead and EDB. Neither substance was present.
The site is not currently being actively remediated.
Periodic groundwater sampling indicates that concentrations of contaminants are dropping. No further active remediation has been proposed.
The cost to complete remediation is a matter of speculation. The record evidence is insufficient to make a finding about future remediation costs.
Eligibility Determinations
On September 2, 2003, CJC submitted a PCPP Affidavit to the Department, seeking state funding under PCPP. On
October 30, 2003, the Department denied CJC eligibility for PCPP funding on the basis that the contamination was covered under FPLRIP and, therefore, was excluded from funding under PCPP.
The Department has never granted PCPP eligibility for the cleanup of a discharge previously being funded under FPLRIP.
Apparently, in 2005, CJC hired Glenn R. MacGraw, an expert in the assessment of petroleum-contaminated sites, to review the EGS and LFR assessments. In a letter to CJC’s attorney dated August 19, 2005, MacGraw expressed the opinion that “at least 2 discharges have occurred on this site, one in the former tank area, and one in the former dispenser area.” MacGraw’s opinion that there had been a discharge of leaded gasoline was based on the detection of EDB and lead in the groundwater. He also thought the presence of methyl tetra-butyl ether (MTBE) in groundwater samples taken from the tank pit area showed a tank leak of unleaded gasoline.
CJC requested FPLRIP funding for the other alleged discharges at the facility. On March 23, 2006, the Department issued a letter formally stating its disagreement that there were other reported discharges and denying eligibility for FPLRIP funding.
On March 30, 2006, the Department issued an Amended Order of Ineligibility under PCPP. The amended order added a second ground for denial, that the reported discharge was not shown to have occurred before January 1, 1995.
Whether There Was A Second Discharge Eligible for Funding
CJC argues that the presence of lead and EDB in the groundwater sample taken from MW-3S shows that there was a discharge of leaded gasoline at the facility. However, LFR reported that the well screen for MW-3S had probably been damaged during installation, because a significant amount of filter sand was observed in the purge water. The Department contends, therefore, that the source of the lead detected in the groundwater sample from MW-3S could have been (naturally) in the soil that entered the well.
The Department also discounts the detection of EDB in the groundwater sample because EDB is an ingredient of some pesticides and can show up in groundwater when pesticide has been applied to the overlying land. Furthermore, EDB was not detected in the groundwater sample taken from MW-3D, a deeper well located near MW-3S.
MacGraw does not think the EDB came from a pesticide application, because the EDB contamination at the site occurs in an elongated “plume,” in the former dispenser area, whereas one would expect to see EDB distributed evenly over the site if the source was a pesticide application. MacGraw mapped the plume of EDB by using data obtained after the discharge reporting deadline.
Michael J. Bland, a Department employee and expert in geology and petroleum site assessment, believes the data from the facility are insufficient to confirm the presence of EDB or its distribution.
LFR reported in its Interim Site Assessment that no significant soil contamination was found near the dispenser island. Groundwater samples from MW-3D, a deep monitoring well near MW-S3, showed no EDB, lead, or 1,2-dichlorothane. Bland opined that, if the detection of EDB in the shallow well was reliable, EDB would have been detected in the deep well, too, because EDB is a “sinker.”
EDB is persistent in groundwater, so when it is not detected when a well is re-sampled, reasonable doubt arises about the detection in the first sample. Of all the wells sampled in 1999 that showed EDB, only MW-10D was re-sampled in 2003. When the well was re-sampled, there was no EDB.
CJC contends that EDB was not found in the re-sampling of MW-10D because of the soil removal in 2000, but the Department contends that the soil removal would not have affected the presence of EDB in MW-10D, because the well is significantly down-gradient of the area of soil removal.
It was undisputed that the presence of 1,2- dichoroethane in MW-S3 was not reliably determined.
There is insufficient evidence in the record to establish that the contamination reported in the dispenser area is the source of contamination which persists at the facility. The reported contamination only affected the top six feet of soil. The soil removal to a depth of 14 feet in that area in 2000 should have fully remediated the reported contamination.
The data upon which CJC relies in claiming eligibility under FPLRIP or PCPP for a second discharge are, at best, incomplete and ambiguous. CJC failed to prove by a preponderance of the evidence that a discharge of leaded gasoline occurred. CJC also failed to prove that the reported contamination in the dispenser is associated with a discharge that still exists to be remediated with state assistance.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2007).
CJC has standing to initiate these proceedings because the Department’s proposed actions affect its substantial interests.
The Inland Protection Trust Fund was created in 1986 to encourage the restoration of groundwaters and surface waters polluted by the discharge of petroleum and related products from
underground storage systems. Environmental Trust v. Dept. of Environmental Protection, 714 So. 2d 493, 495 (Fla. 1st DCA 1998); § 376.3071(2)(a), Fla. Stat.
To achieve this purpose, the Florida Legislature created a number of petroleum clean-up programs that are administered by the Department. These include the Early Detection Incentive Program (Section 376.3071(9)), the Florida Petroleum Liability and Restoration Insurance Program (Section 376.3072), the Abandoned Tank Restoration Program (Section 376. 305(6)), the Petroleum Cleanup Participation Program (Section 376.3071(13)), and the Innocent Victim Petroleum Storage System Restoration Program (Section 376.30715).
Statutes establishing economic grants or entitlements are strictly construed in favor of the government and against the grantee. Environmental Trust, 714 So. 2d at 497.
CJC, as the Petitioner, bears the burden of going forward with the evidence and the ultimate burden of proving by a preponderance of the evidence that it is entitled to participate in the FPLRIP or PCPP. Dept. of Transp. v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981).
PCPP Coverage
In order to participate in PCPP, an applicant must have submitted to the Department a Discharge Reporting Form prior to January 1, 1995, or a written report of contamination
to the Department prior to January 1, 1999. § 376.3071(13)(a), Fla. Stat.
The Department interprets Section 376.3071(13)(g), Florida Statutes, as barring participation in PCPP for the cleanup of a discharge previously funded under FPLRIP. This section states:
(g) The following shall be excluded from participation in the program:
* * *
4. The contamination is covered with the . . Petroleum Liability and Restoration Insurance Program, in which case site rehabilitation funding assistance shall continue under the respective program.
CJC argues that the word “covered” in the statute should be given the same meaning that it has in an insurance policy and, when the FPLRIP funding cap has been reached, the contamination is no longer “covered” by FPLRIP.
The interpretation of the exclusion urged by CJC, which would allow a person who has exhausted state funding under FPLRIP to obtain supplemental funding under PCPP, would be inconsistent with the plain meaning of the statute and the intent of FPLRIP to impose financial responsibility on the facility owner for cleanup costs beyond the funding cap.
The Department’s interpretation of the statute should be accepted unless clearly erroneous. See Pan Am World Airways
v. Fla. Public Service Commission, 427 So. 2d 716, 719 (Fla. 1983); see also Brown v. State Commission on Ethics, 969 So. 2d 553, 557 (Fla. 1st DCA 2007). The Department’s interpretation of the exclusion in Section 376.3071(13)(g)4, Florida Statutes, is a reasonable interpretation.
The Department also contends that CJC is ineligible for PCPP funding for a discharge of leaded gasoline at the facility because CJC failed to prove that any such discharge occurred before January 1, 1995. CJC did not demonstrate by a preponderance of the evidence that a discharge of leaded gasoline occurred. CJC also failed to show that any other discharge occurred before the statutory deadline.
CJC is not eligible to participate in PCPP for the contamination reported on December 1, 1995.
FPLRIP Coverage
At the time of the Department’s actions under review in these consolidated cases, FPLRIP had a $300,000 funding cap on the amount the State will pay toward cleanup. During the 2008 Session, the Legislature adopted HB 961, which increased the funding cap to $400,000. s. 3, Ch. 2008-127, Laws of Florida. The bill became effective on July 1, 2008. The Department does not dispute that the new funding cap applies to discharge reported on December 1, 1995.
CJC did not demonstrate by a preponderance of the evidence that there was another eligible discharge at the facility.
CJC did not demonstrate by a preponderance of the evidence that there was a discharge of gasoline at the dispenser island that is eligible for separate funding under FPLRIP. The discharge in the dispenser area was part of the same “incident of contamination” for which FPLRIP Department eligibility was granted in 1996. It was not a second discharge subject to separate funding under either PCPP or FPLRIP. Furthermore, the evidence does not show that the contamination in the dispenser area was not fully remediated.
CJC contends that it is eligible for funding under FPLRIP beyond the new $400,000 cap, based on the need for active remediation of EDB. However, CJC failed to demonstrate that there is a need for active remediation of EDB. To the extent CJC has the right to make such a showing in the future, the issue is not ripe for review.
As the administrator of the PCPP and FPLRIP programs and trustee of the Inland Protection Trust Fund, the Department has a duty to require a better demonstration of eligibility for state funding assistance than was made here.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Florida Department of Environmental Protection enter a final order determining that CJC is ineligible to participate in the Petroleum Cleanup Participation Program for the discharge reported to the Department on
December 1, 1995, and that CJC has not demonstrated eligibility to participate in the Petroleum Cleanup Participation Program or the Florida Petroleum Liability and Restoration Program for any other discharges.
DONE AND ENTERED this 9th day of July, 2008, in Tallahassee, Leon County, Florida.
BRAM D. E. CANTER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2008.
ENDNOTE
1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2007 codification.
COPIES FURNISHED:
Lea Crandall, Agency Clerk
Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Tom Beason, General Counsel
Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Michael W. Sole, Secretary
Department of Environmental Protection 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Jack Chisolm, Esquire
Department of Environmental Protection
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399-3000
L. Lee Williams, Jr., Esquire
Williams, Gautier, Gwynn & DeLoach, P.A. 2010 Delta Boulevard
Post Office Box 4128 Tallahassee, Florida 32315-4128
Robert D. Fingar, Esquire Gramling & Fingar, LLP
1607 Village Square Boulevard, Suite 1
Tallahassee, Florida 32309
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 06, 2008 | Agency Final Order | |
| Jul. 09, 2008 | Recommended Order | Petitioner failed to demonstrate the existence of a second petroleum discharge eligible for state funding under the Florida Petroleum Liability Restoration Insurance Program or the Petroleum Contamination Participation Program. |
CJC PROPERTIES LTD. vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 06-002007 (2006)
PETROLEUM PRODUCTS CORP. vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 06-002007 (2006)
ENVIRONMENTAL TRUST (FINA-NORTHSIDE) vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 06-002007 (2006)
ENVIRONMENTAL TRUST (FINA-NORTHSIDE) vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 06-002007 (2006)
