vs. ) CASE NO. 89-5523
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled cause on March 29, 1990, at Sarasota, Florida.
For Petitioner: James B. Weeks, Jr., pro se
For Respondent: Janet D. Bowman, Esquire
Whether Petitioner's service station site known as Siesta Key Exxon Village, at 5201 Ocean Boulevard, Sarasota, Florida, is eligible for state administered cleanup pursuant to Section 376.3071(9), Florida Statutes.
By letter dated September 5, 1989, Weeks Oil Co., Inc. (Weeks), Petitioner, requested an administrative hearing to challenge the determination made in the Department of Environmental Regulation (DER), Respondent, letter dated August 22, 1989, that its service station site at Siesta Key Exxon Village was not eligible for state administered cleanup funds because Weeks was grossly negligent in the maintenance of a petroleum storage facility.
At the commencement of the hearing, Mr. Weeks stated that he had anticipated an informal round table discussion of the actions he had taken, of what he was led to believe by DER agents, and why he felt his company qualified for reimbursement for the cleanup. Mr. Weeks was advised that this was a formal proceeding in which all testimony was under oath and that this was a judicial type proceeding rather than a town hall type proceeding. Thereafter, Mr. Weeks
testified in behalf of Petitioner, Respondent called two witnesses and six exhibits were admitted into evidence.
Proposed findings submitted by Respondent are generally adopted.
Weeks Oil Company, Inc., owns and operates a service station, Siesta Key Exxon, located at 5201 Ocean Boulevard, Sarasota, Florida.
On December 21, 1988, Petitioner applied, pursuant to the Early Detection Incentive Program (EDI), for state assistance due to a suspected discharge of gasoline at the facility. The application indicated that a manual test of a monitoring well, conducted on December 16, 1988, detected contamination.
After free product was discovered in the monitoring wells in December, 1988, subsequent monitoring well reports for the months of January - May, 1989, indicated the presence of free petroleum product. The January, 1989, monitoring report indicates six inches of free product; the February, 1989, monitoring report indicates twelve inches of free product; the March, 1989, report failed to indicate the presence of free product; and both the April and May, 1989, monitoring reports indicate the presence of sixteen inches of free product.
Purity Well Company, the monitoring well contractor retained by Weeks Oil, bailed free product out of the monitoring wells once a month during the period January through May, 1989.
On May 23, 1989, Richard Steele of the Sarasota County Pollution Control Division conducted an Early Detection Incentive Program Inspection at Siesta Key Exxon, 5201 Ocean Boulevard, Sarasota, Florida, DER Facility #588521170.
During the inspection, Mr. Steele examined the monitoring well reports for Siesta Key Exxon for the months of January through May, 1989. Evidence of contamination was indicated by each month's monitoring well report, and the amount of free product indicated by the monitoring well reports increased over time.
During the May 22, 1989, inspection, Mr. Steele observed a minimum of two feet of free product in monitoring well number three.
As part of the Early Detection Incentive Program inspection, Mr. Steele requested inventory records for Siesta Key Exxon, which records were provided on June 7, 1989.
Inventory records for January, February, March and April, 1989, indicated a total shortage of 441 gallons of gasoline.
Mr. Steele's inspection report of May 22, 1989, indicates that no initial remedial action other than the bailing of monitoring wells occurred subsequent to the December, 1988, EDI application.
During the May 22, 1989, inspection, Mr. Steele was neither provided with any evidence of repairs to the petroleum storage system made for the purpose of acting upon monitoring well reports, nor did he visually observe any evidence of repair.
By letter dated May 24, 1989, from Richard Steele to Weeks Oil Company, Mr. Weeks was informed of the presence of two feet of free product in monitoring well number three and specifically requested a tank tightness test.
The May 24, 1987, letter requested Mr. Weeks to send the results of the tank tightness test to the Sarasota County Pollution Control Office or the Department of Environmental Regulation district office.
Mr. Weeks discussed with Steele the fact that the contaminants appeared to come from tanks no longer in service, which tanks were scheduled for relining. Mr. Weeks did not consider it practicable to test tanks scheduled for relining and thought Steele agreed that he could delay the testing until the tanks were refitted. Mr. Steele never made such a commitment, and the tank test was never conducted.
On October 20, 1989, the tanks at Siesta Key Exxon were excavated and fiberglass coated.
The August 22, 1989 ineligibility determination cites as the reason for denial, the failure of Weeks Oil to conduct a tank tightness test as requested by Sarasota County or otherwise immediately investigate and repair the contamination source as required by Chapter 17-61, Florida Administrative Code, The ineligibility letter concludes that failure to immediately investigate and repair the contamination source as required by Chapter 17-61, Florida Administrative Code, shall be construed as gross negligence in the maintenance of a petroleum storage system, which precludes participation in the Early Detection Incentive Program.
A tank tightness test should be performed by the owner or operator of a petroleum storage system where there are any discrepancies in inventory records or monthly monitoring system checks. Rule 17-61.050(4)(c) 3., Florida Administrative Code, requires upon discovery of an inventory discrepancy that investigation of the system "shall not stop until the source of the discrepancy has been found, the tank has been tested, repaired, or replaced, or the entire procedure has been completed."
Pursuant to Rule 17-61.050(6), Florida Administrative Code, the owner or operator of a storage system shall test the entire storage system whenever the Department has ordered that such a test is necessary to protect the lands, ground waters, or surface waters of the state. Specifically, the Department may order a tank test where a discharge detection device or monitoring well indicates that pollutant has been or is being discharged. Given the inventory record discrepancy and the amount of free product continually observed in the monitoring wells at Siesta Key Exxon, it was appropriate for Mr. Steele to request a tank tightness test.
The bailing of a contaminated monitoring well is not an appropriate method of determining the source of petroleum contamination.
The failure of Weeks Oil Company, Inc., to timely conduct a tank test as requested by Sarasota County, acting on behalf of the Department, creates a risk of or the potential for greater damage to the environment because a continual unchecked discharge leads to the release of more petroleum product into the environment.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.
Respondent Department of Environmental Regulation has the responsibility and statutory authority to implement and administer the provisions of the Early Detection Incentive Program. Section 376.307(9), Florida Statutes. The Early Detection Incentive Program provides for state- sponsored cleanup of sites contaminated as a result of a discharge of petroleum products from a petroleum storage system.
Petitioner's facility, Siesta Key Exxon, contains underground storage tanks which satisfy the definition of a "petroleum storage system," as set forth in Section 376.301(11), Florida Statutes.
The presence of free product in a monitoring well is indicative of a discharge as defined in Section 376.301(3), Florida Statutes. Pursuant to Section 376.301(3), Florida Statutes:
"Discharge" includes, but is not limited to, any spilling, leaking, seeping, pouring, misapplying, emitting, emptying, or dumping of any pollutant which occurs and which affects lands and the surface and ground water of the state . . .
Rule 17-61.050(5)(c), Florida Administrative Code, states that the positive response of a detection device, the presence of a layer or odor of pollutant, or the positive report of a laboratory that the sample contains pollutant shall be treated as a discharge unless the owner or operator affirmatively demonstrates that no discharge has occurred. Moreover, Rule 17- 61.050(4)(6), Florida Administrative Code, requires that any person discharging pollutants from a facility to "immediately undertake to contain, remove, and abate the discharge."
The presence of free product in Petitioner's monitoring wells from December, 1988, through May, 1989, is indicative of a discharge and should be treated as such until the owner or operator affirmatively demonstrates that no discharge has occurred. One method of affirmatively demonstrating that no discharge is occurring is the performance of a tank tightness test. While Mr. Weeks was requested to conduct a tank test on May 24, 1989, a tank test was never performed until Petitioner removed and relined its tanks in October, 1989. Hence, over ten months elapsed between discovery of the discharge and abatement of the source of discharge.
Section 376.3071(9)(b)3., Florida Statutes, provides that a site shall be declared ineligible for the program when:
the owner or operator of a petroleum storage system has been grossly negligent in the maintenance of such petroleum storage system
For the purposes of this paragraph, willful failure to maintain inventory and reconciliation records, willful failure to make monthly monitoring system checks where such systems are
in place, and failure to meet monitoring and retrofitting requirements within the schedules established under Chapter 17-61, Florida Administrative Code . . . shall be construed to be gross negligence in
the maintenance of a petroleum storage system.
Section 376.305(1), Florida Statutes, provides that any person discharging a pollutant shall immediately abate the discharge. Although Petitioner knew of evidence of a discharge as early as December, 1988, Petitioner failed to investigate the source of such discharge in a timely fashion. Although Petitioner was requested to conduct a tank test for the purpose of determining the source of the discharge in May, 1989, the test had yet to be conducted as of the date of the Respondent's ineligibility determination.
Accordingly, Petitioner's failure to respond to its known discharge constitutes gross negligence. Nana's Petroleum, Inc. v. State of Florida, Department of Environmental Regulation, DOAH Case NO. 89-5912, Final Order issued March 29, 1990.
Gross negligence is the "omission or commission of an act with a conscious indifference to consequences so far as other persons are concerned. " Faircloth v. Hill, 85 So. 2d 870, 872 (Fla. 1956).
In Glaab v. Caudill, 236 So. 2d 180, 184 (Fla. 2nd DCA 1970), the Court defined "conscious disregard of consequences," as:
We equate "conscious disregard of consequences" with a voluntary act
or omission in the face of conditions toward which reasonable prudence requires a particularly keen alertness or caution when such act
or omission is dangerous and well- calculated to result in grave injury.
In the instant case, the failure of Petitioner to immediately investigate the source of the discharge and to conduct a requested tank test after the repeated presence of free produce in one of the monitoring wells constitutes gross negligence. The results of a tank test would have determined whether any of the tanks at the site was the source of the pollution or
potential source of the pollution. Failure to conduct a tank test created a risk of or the potential for greater damage to the environment.
Accordingly, the failure of Petitioner to investigate and abate a known discharge constitutes gross negligence in the maintenance of a petroleum storage system rendering Petitioner ineligible for participation in the Early Detection Incentive Program.
RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the application of Petitioner to participate in the Early Detection Incentive Program.
ENTERED this 3rd day of May, 1990, in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings The Desoto Building
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1990.
Janet D. Bowman, Esquire Department of Environmental
James B. Weeks, Jr. Weeks Oil Company Post Office Box 100 Sarasota, FL 34230
Dale H. Twachtmann Secretary
Daniel H. Thompson General Counsel
