STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HELEN V. PIERCE, ET AL., )

)

Petitioners, )

)

vs. ) CASE NOS. 89-5010-

) 89-5020

SEABOARD/MARION WASTE OIL, )

INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a consolidated hearing was held on December 21, 1989, in Ocala, Marion County, Florida. Stephen F. Dean served as the Hearing Officer. The issues for consideration concerned a consent agreement between the Petitioner, Department of Environmental Regulation, and Respondent, Seaboard/Marion Waste Oil, Inc.

APPEARANCES

FOR PETITIONER, State of Francine M. Ffolkes, Esq. Florida, Department of Assistant General Counsel Environmental Regulation: Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

FOR REMAINING PETITIONERS: Otis Ted Holly

Route 4, Box 851

Silver Springs, Florida 32688

FOR RESPONDENT: Elbert Gray

Route 1, Box 1293A Oklawaha, FL 32679

STATEMENT OF THE ISSUES

The issues in this case concern the question of whether implementation of the consent agreement threatens the substantial interests of Petitioners in the surface waters and ground water resources at and around Seaboard's used oil facility located off Route 314A in Oklawaha, Marion County, Florida.

Petitioner, State of Florida, Department of Environmental Regulation, gave public notice of its intent to implement a consent agreement with Respondent. The other Petitioners opposed the agreement asserting that the waters of the State were threatened by the agreement and requested a final hearing.

PRELIMINARY STATEMENT

Petitioner, State of Florida, Department of Environmental Regulation ("DER"), presented the testimony of Jim Jarmolowski, expert, and admitted into evidence DER's Exhibit 1. Petitioners' qualified representative, Otis Ted Holly, presented the testimony of Maurice Warner, William E. Hartman, and Otis Ted Holly, expert, and admitted into evidence Petitioner's Exhibits 1 and 2 and Composite Exhibit 4 without objection. Petitioner's Exhibit 3 was admitted into evidence over objection. Respondent, Seaboard/Marion Waste Oil, Inc. ("Seaboard"), presented the testimony of Frank McAdams, expert. Elbert Gray, President of Seaboard/Marion Waste Oil, Inc., made a statement and presented no exhibits.

The depositions of Elbert Gray and William E. Hartman were filed.

References to depositions will be made using (name of deponent, D-page of deposition transcript).

FINDINGS OF FACT

1. On March 7, 1988, Seaboard's used oil facility located off Route 314A in Oklawaha, Marion County, Florida, on Little Lake Bryant was inspected by a DER representative. At the time of the inspection pools of used oil were observed on the ground. Four 4,000 gallon above-ground tanks were being used to store used oil. Additionally, several old tank-truck bodies were used to store petroleum produces. These tanks did not have an impervious containment area to prevent used oil from spilling directly onto the ground and to prevent free runoff of precipitation.

   
   

2. An underground tank (made from a septic tank) was being used to temporarily store water contaminated with used oil, which was gravity drained from the bottom of the used oil transport trucks. No impervious containment existed around the opening of the underground tank to prevent any spillage during transfer from directly reaching the ground. The underground tank was plugged and has no connection to a drain field. This tank is located in a flood plain.

   
   

3. A 2,000 gallon above-ground tank and a 3,000 gallon above-ground tank were used to store water contaminated with used oil from the pumped underground tank.

   
   

4. DER, in response to the March 7, 1988 inspection and subsequent site visits, negotiated a consent agreement with Seaboard. The consent agreement was executed on March 30, 1989 by Seaboard and filed with DER's Clerk on April 12, 1989. A copy of the consent agreement may be found as DER's Exhibit 1 admitted into evidence. The consent agreement specifies corrective actions to be taken by Seaboard, subject to DER approval, in order to address the problems identified at Seaboard's used oil facility.

   
   

5. Paragraph 10 of the consent agreement addresses protection against spills directly reaching the ground. Impervious containment is required by the agreement for all above-ground used oil storage tanks but not the old truck bodies. Impervious containment is required for product transfer areas where transport trucks, pumps and hoses would operate, but not in the vicinity of the old truck bodies. A concrete containment dike surrounding the above-ground tanks is required to control drainage of rain, snow, sleet, fog, etc., but not

   around the truck bodies. (DER's Exhibit 1). The concrete pads already poured by Respondent are not impervious and the sides of these containment areas are not high enough to contain a major tank failure.

   
   

6. Paragraph 11 of the consent agreement addresses operation of the underground tank in order to prevent leaks. Seaboard is required to provide protection against spillage during product transfer between transport trucks and the underground tank and provide for cleanup of spilled material. Nothing addresses the problems of the tank lying in a flood plain. (DER's Exhibit 1).

   
   

7. Paragraph 12 of the consent agreement requires Seaboard to implement "Preliminary Contamination Assessment Actions". These actions provide the framework for determining if the problems identified at Seaboard's used oil facility have resulted in contamination of the soil, surface waters and ground water. The actions required are subject to prior DER approval. The actions represent standard conduct in these and similar types of cases. (DER's Exhibit 1).

   
   

8. If the surveys and tests required by the agreement indicate soil, sediment, surface water or ground water contamination, DER can pursue any or all of the following: (1) institute an administrative proceeding requiring further assessment and cleanup; (2) institute a civil action in circuit court; or (3) perform the necessary corrective actions at the facility and recover the costs of such actions from Respondent, Seaboard. (DER's Exhibit 1).

   
   

9. Notice was given of DER's proposed consent agreement with Seaboard by publication in the Ocala Star Banner of August 10, 1989. The Petitioners live around Little Lake Bryant, Oklawaha, Florida, where Seaboard's used oil facility is located. The Petitioners timely filed the petitions leading to the present hearing. The Petitioners are Helen V. Pierce, Mr. and Mrs. Marvin Pierce, Mr. and Mrs. Maurice Warner, Mr. and Mrs. Robert J. Painter, Sr., Mr. and Mrs. William E. Hartman, Mr. and Mrs. Bruce Hallman, Mr. Robert J. Painter, Jr., Mr. and Mrs. Elmer Weinheimer, Mr. and Mrs. Henry Allan Gwin, Mr. and Mrs. Edwin Jones, and Mr. and Mrs. Daryl N. Driscoll.

   
   

10. Mr. and Mrs. Elmer Weinheimer and Mr. and Mrs. Marvin Pierce, Petitioners in this case, did not attend the hearing. The other Petitioners attended the hearing.

    
    

11. Introduction of waste oil into the waters of Little Lake Bryant would endanger the waters of the lake around which all of the Petitioners live. They use this lake for recreational purposes.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

13. Enforcement jurisdiction is conferred on the DER through Section 403, Florida Statutes, and Sections 17-3 and 17- 710, Florida Administrative Code.

    
    

14. The Petitioners who did not attend the hearing have failed to show standing and should be dismissed from this case, as described in the foregoing Findings of Fact. The Petitioners who attended the hearing established their standing to challenge the intended agency action.

15. Petitioners have met the requirement of showing that they are in danger of sustaining some direct injury as a result of the challenged agency action.

    
    

16. Petitioners have met the requirement of showing disputed issues of material fact exist in the terms of the consent agreement. The agreement does not address the storage of used oil in the old truck bodies, the location of the underground tank in the flood plain, nor the impervious containment not being impervious.

    
    

17. Since the consent agreement is a result of negotiation between DER and Seaboard, DER cannot unilaterally vary its terms in response to a third-party challenge. Rule 17-103.110, Florida Administrative Code. The only result of a successful challenge to a consent agreement is to void it. DER would have to renegotiate additional terms which address the matters raised by Petitioner or to institute enforcement proceedings.

    
    

18. The majority of the suggested solutions of the Petitioners, as contained in their post-hearing brief, are very realistic. These suggestions include:

    
    

    1. installation of impervious areas with high enough walls to retard a spill under all tanks;

    2. removal of the underground tank from the flood plain;

    3. installation of monitoring wells in sufficient quantity in new and old areas; and

    4. frequent inspection.

    
    

    RECOMMENDATION

    
    

    Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore

    
    

    RECOMMENDED that the DER enter a Final Order approving a consent agreement incorporating the following four recommendations:

    
    

    1. installation of impervious areas with high enough walls to retard a spill under all tanks;

    2. removal of the underground tank from the flood plain;

    3. installation of monitoring wells in sufficient quantity in new and old areas; and

    4. frequent inspection.

    DONE AND ORDERED this 24th day of January, 1990, in Tallahassee, Leon County, Florida.

    
    

    
    

    STEPHEN F. DEAN

    Hearing Officer

    Division of Administrative Hearings The DeSoto Building

    1230 Apalachee Parkway

    Tallahassee, FL 32399-1550

    (904) 488-9675

    
    

    Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1990.

    
    

    
    

    COPIES FURNISHED:

    
    

    Mr. Dale H. Twachtmann Secretary

    Department of Environmental Regulation

    Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

    
    

    Daniel H. Thompson, Esq. General Counsel

    Department of Environmental Regulation

    Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

    
    

    Otis Ted Holly Route 4, Box 851

    Silver Springs, FL 32688

    
    

    Francine M. Ffolkes, Esq. Assistant General Counsel Department of Environmental

    Regulation

    2600 Blair Stone Road Tallahassee, FL 32399-2400

    
    

    Elbert Gray

    Route 1, Box 1293A Oklawaha, FL 32679

    =================================================================

    AGENCY FINAL ORDER

    =================================================================

    
    

    STATE OF FLORIDA

    DEPARTMENT OF ENVIRONMENTAL REGULATION

    
    

    HELEN V. PIERCE, MARVIN C. PIERCE,
    MARY SUSAN PIERCE, MAURICE WARNER,
    EDNA A. WARNER, ROBERT J. PAINTER,
    SR., PATRICIA K. PAINTER, THELMA M.	OGC File No.	88-0665
    HARTMAN, WILLIAM E. HARTMAN, BRUCE	DOAH Case Nos.	89-5010-
    HALLMAN, BONNIE HALLMAN, ROBERT J.		89-5020
    PAINTER, JR., ELMER J. WEINHEIMER,
    FRANCES WEINHEIMER, HENRY ALAN GWIN,
    JUDITH ANNE GWIN, EDWIN M. JONES,
    SANDRA A. JONES, DARYL N. DRISCOLL,
    EDNA H. DRISCOLL, and STATE OF FLORIDA
    DEPARTMENT OF ENVIRONMENTAL REGULATION,

    
    

    Petitioners,

    vs.

    
    

    SEABOARD/MARION WASTE OIL, INC.,

    
    

    Respondent.

    /

    
    

    FINAL ORDER

    
    

    On January 24, 1990, a hearing officer from the Division of Administrative Hearings ("DOAH") submitted to me his Recommended Order in the above-styled case for final agency action. A copy is attached as Exhibit A. On February 7 the Department of Environmental Regulation ("Department") filed timely exceptions to the Recommended Order. Thereafter the Recommended Order came before me as Secretary of the Department for final agency action.

    
    

    BACKGROUND

    
    

    This matter originated with a petition by Helen V. Pierce and others ("Petitioners") that challenged a Consent Agreement executed between the Department and Respondent, Seaboard/Marion Waste Oil, Inc. ("Seaboard"). The petition, in essence, charged that the Consent Agreement did not adequately protect the substantial interests of Petitioners in the surface waters and ground water resources at and around Seaboard's used oil facility, which is located in Oklawaha, Marion County, Florida. In the Consent Agreement Seaboard acknowledged that oil and used oil had not been properly handled at the waste oil recovery facility, resulting in spills and leaks at the facility. The agreement indicated, however, that there was no evidence of gross soil

    contamination or serious surface oil spillage. To address the contamination Seaboard agreed among other things to undertake the following corrective actions:

    
    

    1. Within 90 days of the effective date of this Consent Order, Respondent [shall] install impervious containment for all aboveground waste oil storage tanks and also for all loading/unloading product transfer areas, such that if product spillage does occur, it will be prevented from reaching the ground surface. Also within 90 days of the effective date, the waste oil storage tank area must have a concrete containment dike such that all the tanks are enclosed within the diked area. Drainage of precipitation from within the diked area shall be controlled in a manner that will prevent pollutants from entering the environment.

    2. Upon the effective date of this Consent Order, Respondent shall operate the inground concrete tank which is used to store oil-contaminated water, in a manner such that no product spillage occurs from product transfer operations, and that the tank is structurally sound and not discharging oil contaminated water into the environment.

    3. Respondent shall implement corrective actions as set forth in the document entitled "Preliminary Contamination Assessment Actions", attached hereto as Exhibit II, within the time frames set forth therein.

A hearing was held on the Consent Agreement on December 21, 1989. As a result of the hearing, the hearing officer recommended that I enter a Final Order

approving a consent agreement incorporating the following four recommendations:

1. installation of impervious areas with high enough walls to retard a spill under all tanks;

2. removal of the underground tank from the flood plain;

3. installation of monitoring wells in sufficient quantity in new and old areas; and

4. frequent inspections.

RULING ON EXCEPTIONS

The essence of the Department's first two exceptions is that the four recommendations already are addressed in the Consent Agreement, and that the hearing officer at any rate lacked the legal authority to amend the agreement to add those recommendations. I shall not address a final Department exception, that the hearing officer failed to make specific rulings on all proposed findings of facts and conclusions of law, because a ruling on that exception is not material to the outcome of this case.

The hearing officer recommended the addition of the four recommendations notwithstanding his earlier observation in his Conclusions of Law that "Since the consent agreement is a result of negotiation between [the Department] and Seaboard, [the Department] cannot unilaterally vary its terms in response to a third-party challenge." In other words, the hearing officer seems to be recommending that I enter a final order that he has already concluded I have no legal authority to enter if I add his four recommendations. However, because of my rulings below, it is unnecessary to resolve the apparent legal dilemma presented by the hearing officer's recommendations.

As I observed in West Coast Regional Water Supply Authority v. Central Phosphate, Inc., and the Department of Environmental Regulation, 11 FALR 1917 (Final Order dated April 11, 1988), delay in implementation of a cleanup through a third party challenge to a consent order can create the very harm that the third party seeks to prevent. As a result, the Department has distinguished between consent orders that are substitutes for licensing and those that are "pure enforcement" in nature. While third parties have a right to challenge either type of consent order, the Department must scrutinize challenges to enforcement consent orders very carefully to ensure that corrective actions are not delayed, while recognizing the rights of third parties whose interests are substantially affected by the entry of such consent orders. As in West Coast, the instant case is pure enforcement in nature, and careful scrutiny is therefore necessary.

The Department's exceptions correctly note that the Consent Agreement already ensures that corrective measures will be undertaken without undue delay, while still addressing the concerns of the Petitioners. At least three of the hearing officer's recommendations are already addressed in the Consent Agreement. The first recommendation, the installation of impervious areas to retard spills, is addressed by paragraph 10 of the Consent Agreement, which requires installation of impervious containment. This requirement is applicable as well to the old tank truck bodies that are used as waste oil storage tanks. The third recommendation, installation of monitoring wells, is addressed in paragraph 12, both through implementation of the "Preliminary Contamination Assessment Actions" and implementation of corrective actions pursuant to the results of the assessment. The fourth suggestion, frequent inspections, is vague in that it does not indicate how often the inspections should be, or who should be doing them. The Department is authorized to inspect, however, under both the Preliminary Contamination Assessment Actions and paragraph 21 of the Consent Agreement, as well as by existing law (see, e.g., Section 403.091, Florida Statutes), all of which require Seaboard to allow inspections by the Department of the property at reasonable times to determine whether there has been compliance with the agreement.

The hearing officer's second recommendation, that the underground tank be removed from the flood plain, is not specifically contained in the Consent Agreement, but the Department may require it upon a determination that the tank is leaking. Then removal could be necessary to comply with the requirement in paragraph 11 of the Consent Agreement that no spillage occur.

In the event that leaking is discovered as a result of implementation of the contamination assessment actions required by paragraph 12, then removal could be required as part of the corrective actions authorized by paragraph 10 of the assessment action requirements. Since the hearing officer made no specific finding that the tank was leaking, since the Consent Agreement requires impervious containment to protect against further spills from transfers into and out of the underground tank, and since no legal authority has been cited that would allow me to require removal of a non-leaking tank simply because of its location in the flood plain, I find that it is premature at this time to require tank removal, absent the further knowledge of the site that will be developed from implementation of the Consent Agreement.

I find, therefore, that the Consent Agreement adequately addresses the four recommendations of the hearing officer in its present form. Therefore, I accept the exceptions of the Department. This ruling ensures that corrective measures can commence pursuant to the original agreement, without Seaboard's objecting to the Final Order as being beyond the scope of the original agreement, thereby raising the possibility of further delay in completion of the corrective actions. Likewise, the concerns of the Petitioners can still be addressed in the following manner. As in West Coast, this Consent Agreement contemplates the implementation of corrective measures that establish "a framework for future action," and acts as "a procedural vehicle for assuring remedial action at the site by the responsible party without resorting to litigation." Id. at 1933.

There is also the similarity that in both cases the agreements contain dispute resolution clauses that authorize respondent to challenge any Department determination as to what may be necessary to implement the corrective measures in a more specific manner. The interests of third parties can be protected here as in West Coast by giving Petitioners similar rights to challenge such determinations, when made, if the Petitioners can demonstrate that their substantial interests will be adversely affected by such determinations. In order to make sure that Petitioners here have such an opportunity, I am hereby directing the Department's Central Florida District Office to notify Petitioners in this case of any such determinations, so that Petitioners can have the opportunity to review those determinations with the Department and challenge any determination that may be necessary and appropriate to challenge. Notification can be accomplished by furnishing it to Petitioners' qualified representative, Otis Ted Holly.

Therefore, it is ORDERED:

1. The Consent Agreement previously executed in this case is hereby adopted in its entirety as final agency action of the Department, without the additional recommendations of the hearing officer.

   
   

2. The hearing officer's Recommended Order is adopted by the Department except as provided herein.

   
   

3. The Department's Central District Office is directed to notify Petitioners through their qualified representative, Otis Ted Holly, of any determination made by the Department pursuant to paragraph 14 of the Consent Agreement.

Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.

DONE AND ORDERED this 23 day of April, 1990, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

DALE TWACHTMANN

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Telephone: (904)488-4805

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by hand-delivery to Stephen F. Dean, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550; and to Francine M. Ffolkes, Assistant General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by

U.S. Mail to Otis Ted Holly, Route 4, Box 851, Silver Springs, Florida 32688; Elbert Gray, Seaboard/Marion Waste Oil, Inc., Route 1, Box 1293A, Oklawaha, Florida 32679 on this 23 day of April, 1990.

DANIEL H. THOMPSON

General Counsel

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

Telephone: (904)488-9730

Docket for Case No: 89-005010

Orders for Case No: 89-005010