STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3195

)

) ANTHONY VIGNA and AVA HAZARDOUS ) WASTE REMOVAL AND DISPOSAL, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, in Miami, Florida, on September 25, 1991.

APPEARANCES

For Petitioner: Agusta P. Posner, Esquire

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

For Respondents: Steven N. Rosenthal, Esquire

Suite 1040

City National Bank Building

25 West Flagler Street Miami, Florida 33130

STATEMENT OF THE ISSUES

The issue is whether Dr. Vigna and his corporation, AVA Hazardous Waste Removal and Disposal, Inc., should be disciplined for the improper disposal of hazardous waste.

PRELIMINARY STATEMENT

During the final hearing the Department called five witnesses to testify, Courtney Warrenfeltz, Carlos Alayon, Mike Webb, Dr. Solon Cole and Jeff Tobergte; four exhibits were admitted into evidence. The Respondents called Arthur Luongo and Dr. Anthony Vigna as witnesses, and six exhibits were offered into evidence. After the hearing, the record was left open in order to permit the parties to take the deposition of Ben Martin, which was done. The deposition was admitted in evidence and an order closing the record was entered on December 16, 1991. No transcript of the hearing was filed. The parties filed their proposed recommended orders by February 3, 1992.

FINDINGS OF FACT

1. Lyn-Rand, Inc., was a corporation in the metal fabrication and painting business in Dade County, Florida, during April and May of 1989. The industrial processes used by Lyn-Rand required the use of solvents, cutting oils, and other chemicals. Lyn-Rand employed Courtney Warrenfeltz as its quality control director. Mr. Warrenfeltz had met Dr. Anthony Vigna, who held himself out as a transporter of hazardous waste. Dr. Vigna offered to dispose of 55-gallon drums of waste which had accumulated at the Lyn-Rand facility. Dr. Vigna took samples of the waste, offered to use his federal EPA identification number in connection with the disposal, and do all the paper work involved with the disposal. Mr. Warrenfeltz believed, based upon his conversations with Dr. Vigna, that Dr. Vigna was knowledgable about hazardous waste disposal. Mr. Warrenfeltz made arrangements for Dr. Vigna to pick up nine drums of cutting oils and cleaning solvents on Saturday, April 29, 1989. Dr. Vigna was paid $500 per drum. Those drums had been marked with "x's" on the tops and sides. An employee of Lyn- Rand, Carlos Alayon, had been left instructions to expect Dr. Vigna, and had been given a check to give Dr. Vigna when the drums were picked up. While Dr. Vigna was at the Lyn-Rand site to pick the drums up, he asked Alayon for some black paint which Dr. Vigna used to paint over the labels on the drums. Alayon then helped Dr. Vigna load the drums into a rental truck.

   
   

2. Dr. Vigna gave Mr. Alayon no paperwork, such as a manifest, receipt, or shipping papers. Mr. Warrenfeltz never received any paperwork from Mr. Alayon or from Dr. Vigna.

   
   

3. The drums Dr. Vigna took from Lyn-Rand were discovered later, Saturday, April 29, 1989, at the business premises of Compliance Technology, Inc., a corporation located in Broward County, which is licensed to act as a broker for hazardous waste. Compliance Technology, Inc., does not, however, act as a transporter of hazardous waste. The employee of Compliance Technology who found the drums near the back loading dock, Mike Webb, was concerned, because their labels had been obliterated with black paint and the only marks on the drums were the "x's." The obliteration of the labels was a cause for concern and the bungs appeared to be leaking around the tops of two of the drums. The drums had been abandoned near a storm drain. The drums were not fenced or secured; if someone had driven into them due to their placement on the ground near the loading dock, the drums could have ruptured and the contents flowed into the storm drain and eventually into the Biscayne Aquifer. Mr. Webb notified the founder of Compliance Technology, Dr. Solon Cole, of the discovery of the drums, and the matter was reported on or about May 1, 1989, to the Broward County Environmental Quality Control Board and the City of Hollywood Police Department. Compliance Technology moved the drums away from the storm drain, barricaded them, and replaced bungs in two of the drums.

   
   

4. On or about May 5, 1989, Dr. Cole notified Jeff Tobergte, of the Department of Environmental Regulation office in West Palm Beach, about the drums. Mr. Tobergte went to Compliance Technology the next day, and photographed the drums and sampled their contents. He found that the drums contained various solvents, including methylene chloride, ethylbenzene, toluene, xylene and phenol. The samples had a pH of less than 2 and a flash point of less than 60 degrees centigrade, and therefore were hazardous wastes.

   
   

5. Dr. Cole and Mr. Tobergte were able to determine that one of the drums had a label which stated "Spray Iron Phosphatizer and Cleaner" "SC-283" from Novamax Tech in Atlanta, Georgia. After contacting Novamax Tech, Mr. Tobergte

   learned that SC-283 is an unusual product with only four buyers in Florida, three of them in Dade County, including Lyn-Rand. Mr. Tobergte then drove to all three locations in Dade County which were customers of Novamax Tech, and determined that the most likely source of the drums at Compliance Technology was Lyn-Rand.

   
   

6. Mr. Tobergte visited Lyn-Rand on May 8, 1989, and verified that the drums he had photographed were drums which originated at Lyn-Rand. The verification was made by comparing the photographs of the drums left at Compliance Technology with drums at Lyn-Rand which still had labels. Mr. Warrenfeltz recognized the markings on the photos of the drums left at Compliance Technology. The pine needles found on the drums were also significant, since drums were stored in a manner at Lyn-Rand which lead to pine needles falling upon them.

   
   

7. Mr. Warrenfeltz told Mr. Tobergte that Lyn-Rand had recently shipped nine drums and recognized the drums from the photographs as those delivered to Dr. Vigna.

   
   

8. Lyn-Rand removed the drums from Compliance Technology's property and arranged for their proper disposal.

   
   

9. Neither Dr. Anthony Vigna nor AVA Hazardous Waste Removal and Disposal, Inc., has any EPA identification number.

   
   

10. After the discovery of the abandoned drums, Mr. Vigna mailed a letter to Compliance Technology on May 10, 1989. The letter was backdated to April 28, 1989, and states in part that it was sent to Dr. Solon Cole, the President of Compliance Technology, "to make you aware of a delivery of nine drums that my driver will be leaving off at your plant." The letter was an after-the-fact attempt by Dr. Vigna to cover himself, which is foiled by the postmark date the letter bears. The content of the letter itself, however, leaves the impression that Dr. Cole and Compliance Technology had no prior awareness of the delivery, which is consistent with the testimony of Dr. Cole, that he had not agreed to any delivery of hazardous waste by Dr. Vigna, because Compliance Technology is not a hazardous waste storage facility, or a transporter of hazardous waste. It had acted as a broker for entities needing to dispose of hazardous waste. Dr. Vigna had visited Compliance Technology, and should have known that it did not store hazardous waste.

    
    

11. This after-the-fact letter is also inadequate to constitute a shipping manifest for the hazardous waste delivered by Dr. Vigna, for there is no designation of the source of the material, or explanation of the contents of the drums. It does not approximate the kinds of documents used by legitimate hazardous waste transporters.

    
    

12. Perhaps most significantly, Dr. Vigna and his company never contacted Dr. Cole after the drums were dropped at the Compliance Technology site to make arrangements to pay Compliance Technology for handling the drums, as the letter of May 10, 1989, suggests.

    
    

13. Dr. Vigna maintains that his delivery of the drums to Compliance Technology was the result of a misunderstanding he had with Dr. Solon Cole. Dr. Vigna maintained that he and Dr. Cole had discussions concerning possible business ventures and he told Dr. Cole that he would be delivering nine drums of cutting oils and cleaning solvents to Compliance Technology, Inc. This testimony is rejected as much less credible than that of Dr. Cole, and because

    of the rather significant problems with the letter Dr. Vigna mailed on May 10, 1989, which was designed to cover himself, not to notify Compliance Technology of a delivery before the delivery was to be made.

    
    

14. There is some slight corroboration of Dr. Vigna's version of the facts which arises from the decision of Compliance Technology not to press criminal charges against Dr. Vigna. The lawyer for Compliance Technology, Arthur Luongo, wrote to the Assistant State Attorney on June 7, 1989, and said:

    
    

    I have a great concern that Compliance Technology may be liable for a malicious prosecution action should they [the employees of Compliance Technology] testify in a criminal proceeding against Mr. Vigna. I see the case as one of simple civil negligence arising out of an honest, though admittedly stupid, mistake. It is the intention of Compliance Technology to become a public corporation within a year, and being the defendant in such a suit could seriously effect the value of their stock. They do, however, intend to recover civil restitution for their time, efforts and energy in locating Mr. Vigna.

    
    

15. At best, this letter demonstrates that Compliance Technology had its own reasons for not wanting to press any criminal proceedings, but does not show that Dr. Vigna's actions were proper. Dr. Vigna's position would have been much more persuasive if the letter sent to Compliance Technology had actually been sent near the time it was dated (April 28), or if he had made contact with Dr. Cole to discuss pricing for what Dr. Vigna contends would have been Compliance Technology's efforts in arranging for final disposal of the Lyn-Rand material. It is strange that Dr. Vigna arrived at a price to charge Lyn-Rand without knowing what his price for disposal would be from Compliance Technology. That cost to Dr. Vigna was not relevant if Dr. Vigna intended merely to dump the material. The Department's characterization of the material as abandoned by Dr. Vigna is sustained by the evidence. Dr. Vigna acted as a transporter of hazardous waste. Because the drums were rusted, two bungs had to be replaced, and were leaking, Dr. Vigna is properly regarded as having caused pollution in transporting and leaving them at Compliance Technology.

    
    

16. The Department incurred $2,936.58 as costs and expenses in tracing the pollution back to Dr. Vigna and arranging for its proper disposal.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1991).

   
   

2. The Department has adopted by reference in Chapter 17-730, Florida Administrative Code, provisions of the Code of Federal Regulations, found at 40

   C.F.R. Parts 260 and 266. 40 C.F.R. Part 261 defines hazardous waste: A waste which is a liquid and has a flash point of less than 60 degrees centigrade is an ignitable hazardous waste under 40 C.F.R. Section 261.21(a)(1). Aqueous waste having a pH less than or equal to 2 is a corrosive hazardous waste. 40 C.F.R. Section 261.22(a)(1). Benzene (U019), methylene chloride (U080), phenol (188),

   toluene (U220), and xylene (U239) are hazardous waste when they are discharged, because they are listed in 40 C.F.R. Section 261.33(f).

   
   

3. Dr. Vigna disposed of the hazardous waste when he transported the nine drums from Lyn-Rand to Compliance Technology in a rental truck. The rental truck became a "hazardous waste facility" as that has been defined in Section 403.703(23), Florida Statutes (1989), and Dr. Vigna's activities constitute an "operation" of a hazardous waste facility and the "transport" of hazardous waste as those terms are defined in Section 403.703(27) and (29), Florida Statutes (1989).

   
   

4. Dr. Vigna and his corporation have transported hazardous waste and operated a hazardous waste facility without a permit, and without demonstrating financial responsibility. These actions violate Sections 403.161(1)(b), 403.722(1), 403.724(1) and (7), and 403.727(1)(b), Florida Statutes (1989).

   
   

5. Dr. Vigna and his corporation have transported hazardous waste and have operated a hazardous facility without notifying the Florida Department of Environmental Regulation, and without obtaining an EPA identification number. They failed to comply with the standards and procedures applicable to operators and transporters of hazardous waste as set forth in 40 C.F.R. Parts 263 and 264, all of which are violations of Sections 403.161(1)(b), 403.722(1), 403.724(1), and 403.727(1)(a) and (f), Florida Statutes (1989).

   
   

6. The failure to ensure the proper delivery of hazardous waste to a permitted treatment, storage or disposal facility, and the disposal of hazardous waste in a manner not authorized by the Department violated Sections 403.726 and 403.727, Florida Statutes (1989).

   
   

7. When Dr. Vigna left the nine unlabeled drums of hazardous waste in an unsecured commercial driveway, near a storm drain, he and his corporation created an "imminent hazard" within the meaning of Section 403.726, Florida Statutes (1989), and those actions violated that section.

   
   

8. The disposal of solid waste on land in a manner not approved by the Department violates the Department's Rule 17-701.040, Florida Administrative Code, and Section 403.708(1)(a), Florida Statutes (1989).

   
   

9. The Department's costs incurred in the investigation of this matter are reasonable expenses which resulted from the Department's response to an imminent hazard and are recoverable from Dr. Vigna and his corporation under Sections 403.141(1) and 403.727(4)(d), Florida Statutes (1989).

   
   

   Penalty

   
   

10. The penalty sought by the Department is the entry of an order requiring Dr. Vigna to refrain from transporting hazardous waste without notifying the Department, obtaining an EPA identification number, demonstrating financial security and complying with the standards and procedures required by Section 40 C.F.R. Part 263, all of which are appropriate. No fine is sought, but the Department also requests that Dr. Vigna and his corporation be required to reimburse the Department $2,936.58, which is also appropriate.

RECOMMENDATION

It is RECOMMENDED that Dr. Vigna and AVA Hazardous Waste Removal and Disposal, Inc., be found guilty of the violations alleged in the Administrative

Complaint, that a final order be entered directing them to refrain from the transportation of hazardous waste unless they first notify the Florida Department of Environmental Regulation, obtain an EPA identification number, demonstrate their financial security, and comply with all standards and procedures required by rules of the Department and applicable federal regulations; it is also RECOMMENDED that they be required, jointly and severally, to reimburse the Department $2,936.58.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of April 1992.

WILLIAM R. DORSEY, JR.

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 1st day of April 1992.

APPENDIX TO RECOMMENDED ORDER

The Petitioner's proposed findings of fact are addressed as follows:

1. Adopted in Finding 1.

2. Generally adopted in Finding 1.

3. Adopted in Finding 1.

4. Adopted in Findings 1 and 2.

5. Adopted in Finding 2.

6. Adopted in Finding 3.

7. Adopted in Finding 3.

8. Adopted in Finding 3.

9. Adopted in Finding 3.

10. Adopted in Finding 4.

11. Adopted in Finding 4.

12. Adopted in Finding 5.

13. Adopted in Finding 6.

14. Adopted in Finding 7.

15. Adopted in Finding 8.

16. Adopted in Finding 9.

17. Adopted in Finding 10.

18. Adopted in Finding 10.

19. Adopted in Finding 10.

20. Adopted in Finding 11.

21. Adopted in Finding 12.

22. Rejected as redundant of Finding 1.

23. Adopted in Finding 16.

The Respondent's proposed findings of fact are addressed as follows:

1. Adopted in Finding 1.

2. Adopted in Finding 3.

3. Adopted in Finding 10.

4. Rejected, see Finding 13.

5. Rejected as unnecessary.

6. Adopted in Finding 14.

7. Adopted in Finding 15.

8. Adopted in Finding 4.

9. Rejected for the reasons stated in Findings 10-15.

10. Rejected, see Finding 11. It is in the nature of a manifest that it needs to be delivered with the material it is designed to accompany. A "manifest" which Dr. Vigna maintained as his own record is no manifest.

11. Rejected because the material was left unsecured near a loading dock. Its location near the storm drain, and the obliteration of the labels lead to the conclusion that the way was it was left did constitute an imminent hazard.

12. Rejected, see Finding 3.

13. Rejected because the leakage from the bungs, while not severe, did present the risk of pollution through contamination of the Biscayne Aquifer if any of the contents of the nine drums had been introduced into the storm drain.

14. Rejected, see Finding 3.

COPIES FURNISHED:

Agusta P. Posner, Esquire Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Steven N. Rosenthal, Esquire Suite 1040

City National Bank Building

25 West Flagler Street Miami, Florida 33130

Carol Browner, Secretary

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel H. Thompson General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

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 contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-003195

Orders for Case No: 91-003195