STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA DEPARTMENT OF )
ENVIRONMENTAL PROTECTION, )
)
Petitioner, )
)
vs. ) Case No. 98-0691
)
VER-MAR, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to a notice, a hearing was held in this case on May 12, 1998, by video teleconference between Tampa and
Tallahassee, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Kisha Pruitt
Assistant General Counsel
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
For Respondent: Humberto Garcia, pro se
Secretary, Ver-Mar, Inc. 5005 North Lois Avenue Post Office Box 15834 Tampa, Florida 33684
STATEMENT OF THE ISSUES
Whether the costs incurred by the Florida Department of Environmental Protection for the removal and disposal of certain hazardous substances may be recovered from Respondent pursuant to
Chapters 376 and 403, Florida Statutes.
PRELIMINARY STATEMENT
By letter dated June 27, 1997, Petitioner, the Florida Department of Environmental Protection (Department), sought reimbursement from Respondent, Ver-Mar, Inc. (Ver-Mar), in the amount of $11,907.89, the total clean-up costs in connection with Incident No. 96-SW-0619. Ver-Mar timely challenged the assessment and requested a hearing. The Department forwarded the matter to the Division of Administrative Hearings (Division) on February 6, 1998, for assignment of an Administrative Law Judge to conduct a formal hearing.
At final hearing, the Department called four witnesses: Jeff Tobergte; Glenn Byer; Arlene Demmi-Blanton; and Zacarias Guiterrez. The Department offered eight exhibits, all of which were received into evidence. Ver-Mar called two witnesses, Humberto Garcia and Robert Ward, and had three exhibits admitted into evidence. A copy of the transcript was filed with the Division on May 29, 1998.
At the request of the parties, the time for filing recommended orders was set for more than ten days after the transcript was filed. Prior to the date set for filing post hearing submissions, the Department requested and was granted an extension beyond the time originally scheduled for filing proposed recommended orders. The Department timely filed proposed findings of fact and conclusions of law under the extended timeframe. Respondent did not file a proposed
recommended order.
FINDINGS OF FACT
The Department is the administrative agency of the State of Florida charged with the responsibility of administering and enforcing the provisions of Chapters 376 and 403, Florida Statutes.
Ver-Mar is a company incorporated under the laws of the State of Florida. Since 1966, Ver-Mar has engaged in several different businesses, including the following: plating, boat building, and electro-plating.
At all times material hereto, the activities of Ver-Mar were directed by Humberto Garcia. Mr. Garcia's father and uncle are partners in the business although both have retired and are not actively involved in the day-to-day operations of Ver-Mar.
At all times material hereto, Ver-Mar's address was 5005 North Lois Avenue, Tampa, Florida (Lois Avenue property).
Mr. Garcia's family purchased the Lois Avenue property in 1966, and has owned the property since that time.
When the Garcia's purchased the Lois Avenue property in 1966, there was an existing plating business on the site.
Mr. Garcia and/or his family continued to operate the plating business until the late 70's. After the Garcia's closed the plating business, all of the plating equipment and solutions were sold and removed from the Lois Avenue property.
In late 70's Ver-Mar's focus shifted from plating to building boats. Ver-Mar was actively involved in building
commercial boats from the late 70's to 1991. In 1986 or 1987, while still engaged in boat building, Ver-Mar decided to also engage in electro-polishing. To accomplish this, Ver-Mar had electro-polishing tanks installed on the Lois Avenue property. Ver-Mar engaged in electro-polishing of certain fabricated equipment, namely rudders and struts, to put on the boats built by Ver-Mar. Electro-polishing is a process that involves the removal of ferrous metal from the surface of the stainless steel.
In 1991, Ver-Mar ceased to operate its boat building and electro-polishing businesses. At about this time, Humberto Garcia became involved in another company that he owned, "Fresh Off the Boat," a seafood company that received seafood from St. Vincent, West Indies and Venezuela. As a result of Mr. Garcia's involvement and responsibilities related to this company,
Mr. Garcia was not in the United States most of the time between 1991 and 1996. During the time Mr. Garcia was out of the country, the facilities and some of the equipment for building boats and electro-polishing remained on the Lois Avenue property, but no boats were being built on that property.
On November 24, 1996, shortly after midnight, the Department was notified by the Hillsborough County Sheriff's Office that eight drums had been discovered abandoned in Shimberg Park (the park) in Tampa, Florida. The park is located near a residential neighborhood and school.
At about 8:30 a.m. on November 24, 1996, Jeff Tobergte,
of the Department's Bureau of Emergency Response, responded to the call. When he arrived at the park, Mr. Tobergte observed eight 55-gallon drums on the ground in a wooded area of the park. The drums were in fair to poor condition and approximately 10-15 gallons of oil, sludge, and oily soil from two of the drums had leaked on the ground.
Mr. Tobergte immediately called Laidlaw Environmental Services (Laidlaw), the Department's emergency response contractor in the Tampa region, to properly dispose of the drums and their contents. When Laidlaw personnel arrived at the park later that day, they stabilized the drums to prevent further leakage. After stabilizing the drums, the drums were numbered one through eight for the purpose of identification and samples were collected from the drums for analysis. Laidlaw also excavated soil contaminated by the two leaking drums and placed the soil in two additional drums. Laidlaw personnel then overpacked the drums, removed them from the park, and took them to Transfer Service and Disposal Facility (TSDF), an off-site hazardous waste storage facility, for further analysis of the samples.
Based on initial observations, it was determined that Drum No. 1 contained waste oil, water and oily sludge; Drum No. 2 contained waste oil and water; Drum No. 3 contained oil, water and sludge; Drum No. 4 contained a bright green acidic liquid, oil, and tannish colored sludge; Drum No. 5 contained a dull
green acidic liquid and sludge; Drum No. 6 contained waste oil, water and sludge; and Drum Nos. 7 and 8 contained oily soil, sludge and oily leaves.
Drum No. 1 contained the marking for Reichold, but there was no obvious lot number marked on the drum. Drum No. 2 was marked "Reichold" with "Lot No. 91-045-1036." Drum No. 3 contained the marking, "PolyGard, Inc., 5010 Coolidge Avenue, Tampa, Florida," and "#G1000 CCE Product and Lot # 91-023-0205," and had a label marked, "flammable liquid." Drum Nos. 4 and 5 were marked with the name "Vigo." Drum No. 6, a blue poly drum, was marked "DOT 34-55." Drum Nos. 7 and 8 were red poly drums marked "Greek Golden Peppers in Brine."
The laboratory analysis concluded that Drum Nos. 1, 2, and 3 had flash points of less than 140 decrees Fahrenheit.
Drum Nos. 4 and 5 had a pH of 1.4 and 1.9, respectively. Also, the sulfate levels in Drum Nos. 4 and 5 indicated the presence of sulfuric acid. Chlorides were detected, but it was not known if they were from salt originally in food products. The waste codes D007 (chromium) and D008 (lead) were added to Drums Nos. 4 an 5 based on the total levels found in the samples.
At the storage facility, personnel placed Drum No. 5 in a stainless steel salvage drum. At some point after November 24, 1996, and while Drum No. 5 was still at TSDF, the green acid mixture in Drum No. 5 corroded the stainless steel drum in which
it was overpacked and the acid mixture leaked onto the floor of the storage facility. The mixture crystallized as it dried on the floor of the storage facility. This process indicated that a salt was mixed in with the acid. The green color of the mixture indicated that the salt was probably mixed with nickel, rather than ethylene glycol (antifreeze) as was suspected initially.
Thereafter, Tobergte requested that Laidlaw analyze the samples for the presence of nickel and copper, which are common in plating solutions. The results of the analysis showed that the drums contained nickel and copper.
Tobergte contacted Reichold and Polygard in an attempt to trace the drums through the lot numbers listed on the drums. Through his investigation, Tobergte learned that Reichold, the name on Drum Nos. 1 and 2, is a company that manufactures resin, a substance used in building boats. Moreover, Torbergte learned that Reichold sold Lot No. 91-045-1036, the lot number on Drum No. 2, to Polygard, a company located in Tampa, that distributes and sells resin in the Tampa Bay area. Thereafter, Tobergte requested that PolyGard prepare a list of its customers in the Tampa area, including adjoining cities, who had purchased resin from PolyGard that had lot numbers and product numbers that corresponded to the numbers on Drum Nos. 2 and 3. PolyGard agreed to provide Mr. Tobergte with the requested customer list as soon as it was compiled.
Next, Tobergte contacted Vigo, a food importer in
Tampa, Florida, whose name appeared on two of the abandoned drums found at the park. Tobergte asked for a list of customers to whom it had sold 55-gallon Vigo drums. The Vigo representative indicated that the company handles many drums every month and sells empty drums to a large number of people, including other drum dealers. Although the Vigo representative gave Tobergte a customer list, Vigo indicated that the list was not "necessarily" complete.
Prior to his receiving the PolyGard customer list, Tobergte drove in a four-mile area near the park looking for an automotive shop that had on it premises both resin drums and Vigo food drums. Mr. Tobergte established the parameters of his initial search on three factors. First, based on his initial observation and analysis, Mr. Tobergte believed the contents in the abandoned drums in the park may have been generated by an automotive shop. Second, Mr. Tobergte's opinion was that the use of both resin drums and Vigo drums was unusual. Third, the decision to limit the search to a four-mile area near the park was based on Mr. Tobergte's experience that abandoned drums are typically generated in the area near the place of abandonment.
While it is typical for abandoned drums to have been generated by persons or businesses in relatively close proximity to the site of abandonment, this is not always the case. There have been cases where abandoned drums have been generated from nearby cities.
In the initial search for possible "suspects,"
Mr. Tobergte found no automotive shops in Tampa and within four miles of the park that had resin drums and Vigo food drums.
On December 16, 1996, Polygard provided the requested customer list to the Department. According to the list, between January 1993 and March 1993, and April 1995 and June 1995, inclusive, PolyGard sold resin to twenty-two customers located in Florida. Of the twenty-two customers, five were in Tampa; two in St. Petersburg; two in Hudson; two in Lakeland; and two in New Port Richey and/or Port Richey. PolyGard also listed one customer each in the following Florida cities: Tarpon Springs, Hudson, Lakeland, Lake Wales, Chiefland, Hernando and Fern Park. There were two customers listed for whom cities were not listed. However, based on other identifying information provided by PolyGard, these customers appeared to be in or near the Tampa area.
Ver-Mar was on the customer list provided to the Department by PolyGard. Printed next to Ver-Mar was the name Jose Garcia.
After receiving the PolyGard list, Mr. Tobergte drove by or visited several of the Tampa businesses on the PolyGard list searching for a location that had both resin drums and Vigo food drums and waste materials similar to those found in the abandoned drums. None of the businesses that Tobergte drove by or visited appeared to have resin drums and Vigo drums on the
property. However, when Mr. Tobergte went to the Lois Avenue property, he saw resin drums on the property. Though the business was closed, the drums were visible through a locked fence that enclosed the property. The only business sign located on the Lois Avenue property was one which read, "Santo Domingo Garage."
After leaving the Lois Avenue property, Mr. Tobergte reviewed the Florida Secretary of State's computer corporate records related to Ver-Mar. These records revealed that at one time, Ver-Mar was listed as "Ver-Mar Plating" and the address of record was the Lois Avenue property. Moreover, the corporate records revealed that Mr. Garcia "has been involved with numerous businesses throughout the years, many of which are seafood companies, including an active company called 'Fresh Off the Boat,'" with the same address as Ver-Mar's, 5005 North Lois Avenue.
After Mr. Tobergte made several trips to the Lois Avenue property, on March 17, 1998, he eventually found the Santa Domingo Garage open. While there, he met with Zacharias Guiterrez, owner of the garage. Mr. Guiterrez told Mr. Torbergte that he leased the space that his business occupied from Ver-Mar and had rented the property for the previous eight years.
While at the Santo Domingo Garage, Mr. Torbergte observed both Reichold drums and PolyGard drums that contained waste oil. Mr. Torbergte asked Mr. Guiterrez how he disposed of
the waste oil produced by his garage. In response to this inquiry, Mr. Guiterrez stated that Mr. Garcia was responsible for waste disposal.
However, at hearing Mr. Guiterrez testified that he is responsible for the disposal of any waste oil generated by his business. Moreover, Mr. Guiterrez testified that neither Mr. Garcia nor anyone connected with Ver-Mar ever arranged for the disposal of waste oil generated by Santo Domingo Garage.
Mr. Guiterrez stated that he was to "take care of everything." Moreover, Mr. Guiterrez stated that he uses Tim Oil Recovery to dispose of waste oil generated by his garage. Notwithstanding, this claim, Mr. Guiterrez produced no receipts evidencing such disposal.
Though Ver-Mar had no visible business signs on the Lois Avenue property, Ver-Mar was located next to Santo Domingo Garage on another part of the Lois Avenue property. On Ver-Mar's part of the property, there were two tanks which
Mr. Tobergte believed were plating tanks.
During Mr. Tobergte's March 17, 1997, visit to the Lois Avenue property, he interviewed Humberto Garcia regarding the investigation of the eight abandoned drums. Mr. Garcia explained that the two tanks were for electropolishing. According to
Mr. Garcia, one of the tanks was the electro-polishing rinse bath and the other one was the electro-polishing bath.
Plating and electro-polishing do not involve the same
processes. In electro-polishing, the lead liner on the tank is the cathode and is the receiver of the ions; this process requires the use of low voltage and high amperage. Tanks used for plating are different from tanks for electro-polishing.
Tanks for elecro-polishing are fiberglass with lead liners and react well with acid. Plating tanks are made of steel and are usually lead lined. Also, the electro-polishing baths are different in chemical composition from plating baths.
The solutions in Ver-Mar's electro-polishing baths are sulfuric acid, phosphoric acid, and Electro-Glo, a patented premixed compound. Due to the limited use of the electro- polishing bath, as of March 17, 1997, the electro-polishing bath had never been refilled or refurbished. Some time after 1991 and while Mr. Garcia was out of the country, someone got rid of the rectifier, the energy source used for the electro-polishing bath.
Although the Ver-Mar electro-polishing baths had not been in use since 1991, they contained the chemical solutions necessary for that process. The electro-polishing bath was in a covered area. However, the electro-polishing rinse bath at Ver- Mar is only partially protected from rain. Consequently, it is possible for rainwater to fall into the rinse bath. Nonetheless, because of the evaporation rate and the size of the tank, the electro-polishing rinse bath has not overflowed. The rinse tank is twice as large as it appears because it is partially buried in the ground.
White resin drums from Reichold and Polygard as well as two Vigo food product drums were on the Ver-Mar part of the Lois Avenue property, but none contained waste material. Ver-Mar purchases the resin to use in the boat building process.
Humberto Garcia has purchased hundreds of Vigo food drums over the years. Mr. Garcia uses these Vigo drums in his fishing business and either sells or gives the drums to other fishermen. Mr. Garcia found these drums useful because they did not rust. At the time Mr. Tobergte visited the Lois Avenue property, there were only two Vigo drums at Ver-Mar's shop, both of which were being used as garbage receptacles.
With Mr. Garcia's permission, the Department took samples from the electro-polishing bath and from the electro- polishing rinse bath. The laboratory tests indicated that the electro-polishing bath had a pH of about 0, using pH paper and that the electro-polishing rinse bath had a pH of 4-5, using pH paper.
On March 18, 1997, another sample was taken from Drum No. 5 and compared to the samples taken from the electro- polishing bath and the electro polishing-rinse bath.
Tobergte believed that the mixture in Drum No. 5 was a mixture of a plating bath solution and plating rinse water. Furthermore, he believed that the mixtures in Drum Nos. 4 and 5 were not the result of a single-event simple dilution event, but resulted from adding to the mixture several times. Consequently,
Tobergte expected the results to show that the concentrations of the chemicals and metals in Drum No. 5 were in between the concentrations in the electro-polishing bath and the electro- polishing rinse bath.
The concentrations of chemicals found in the electro- polish rinse bath, Drum No. 5, and the electro-polishing bath are summarized below. Except for the pH category, the numbers in the report represent particles per million.
(Electro Polishing | (Drum No. | 5) | (Electro | |
Rinse Bath) | Polishing | |||
Bath) | ||||
PH (units) | 5.9 units | 1.9 units | 0.1 units | |
chromium (Cr) | 0.0405 | 95.5 | 5200 | |
copper (Cu) | 0.05 | 5200 | 2090 | |
nickel (Ni) | 0.08 | 190 | 2750 | |
lead (Pb) | 0.0156 | 57.5 | 3.04 | |
molybdenum (Mo) | ND (<0.05) | 3.5 | 100 | |
phosphate (PO) | 10.2 | 3600 | 57,000 | |
sulfate (SO) | 49.6 | 14,100 | 258,000 | |
chloride (CI) | 4.74 | 1830 | ND (<1000) | |
According to the Department, the data in paragraph 38 above "shows that there is an excellent correlation" between the plating solutions and Drum No. 5, notwithstanding the fact that the concentrations of lead and copper were higher in Drum No. 5 than in the electro-polishing bath.
In regard to the increased concentration of lead, the Department's report stated that the lead concentration was "likely due to the fact that the lead concentration will tend to
increase from the continued use of lead as an anode." The report also indicated that the lead concentration "would increase as time goes on and that a waste or used solution would be expected to show an elevated level of lead."
The Department indicated at hearing that the increased concentration of lead was the result of the use of lead as a cathode. Furthermore, the Department acknowledged that the electro-polishing bath is highly acidic because phosphoric and sulfuric acids are used in the electro-polishing solution. Consequently, in the Department's view, when the metal is placed in the acidic solution, the metals dissolve into the solution. Moreover, it is the Department's opinion that because the lead liner on the electro-polishing bath is immersed in acid, some of the lead dissolves in the solution, and that this dissolution increases the concentration of the metal in the solution. According to the Department, this is the reason that the waste solution would contain more lead and copper than a fresh solution.
According to Mr. Garcia, in the electro-polishing process, lead is a cathode. Ver-Mar used a fiberglass tank with a lead liner in the electro-polishing process. In electro- polishing, a positive load is put on the part to be polished and a negative load is put on the lead liner. The lead is negatively charged from an outside energy source. In Ver-Mar's case, the outside energy source was a rectifier. The ions from the
stainless steel part to be polished travel through the solution in the electro-polishing bath and is deposited on the lead. As a result, the lead liner is plated with the nickel and chromium and whatever other metal that was on the stainless steel part that was being polished. This protects the lead from the acid and when the current is turned off, the chromium and nickel remain bonded to the lead and is not easily removed in a .1 pH acid.
Ver-Mar's electro-polishing bath tank has a copper rod on top that serves as a conductor of electricity. The rod is held in place by a small copper wire that is about one-fourth of an inch thick. This copper wire makes contact with the rod and the part that is being polished. Thus, some of the acid in the bath solution touches the copper. This is reflected in the data in paragraph 38 above which shows that the concentration of copper in the electro-polishing bath was 2090 ppm. However, the increased concentration of copper in Drum No. 5 was 5200 ppm. This data does not appear to be consistent with the assumption that Drum No. 5 contained a dilution of the electro-polishing rinse bath that had a copper concentration .05 and the electro- polishing bath solution that had a copper concentration of 2090 ppm.
With regard to the fact that the concentration of copper is higher in Drum No. 5 than in the electro-polishing bath or the rinse bath, the Department attributes this increase to the
copper wire being inserted into the solution and to copper being a component of the solution. Based on these assumptions, the Department concludes that the concentration of copper can vary.
The Department determined that the presence of chloride in the Drum No. 5, though the amount in the electro-polishing bath was negligible, was "likely due to salt from the food product residue in the Vigo drums" or could have been from sea water residue from Garcia's fishing business.
As a part of his investigation, Mr. Tobergte called plating and electro-polishing businesses located in the Tampa- St. Petersburg area to find out if they used molybdenum in their plating baths. All of the businesses contacted by Tobergte indicated that they did not use this chemical in their baths.
According to Mr. Garcia, the presence of molybdenum is not unusual, and in a "lot of plating businesses," tanks are made of stainless steel and the tank is a cathode. First, certain kinds of steel contain molybdenum. Thus, if the stainless steel part containing molybdenum is placed in the bath, small amounts of molybdenum may be in the bath solution. Finally, as to Ver- Mar, there is a possibility that molybdenum may have been in the Electo-Glo, the free-mixed compound which was part of electro- polishing bath solution.
During his years as a hazardous waste inspector in south Florida, Mr. Tobergte visited between fifteen and twenty plating shops in that area. However, he does not recall visiting
shops or businesses engaged in electro-polishing or that had electro-polishing tanks.
Ver-Mar does not typically generate waste oil in its boat building business. The only exception was an instance when Ver-Mar was refitting an older boat at the Ver-Mar yard. As part of that job, waste oil and fuel had to be removed and disposed of properly. On March 17, 1997, the day of the interview with
Mr. Tobergte, Mr. Garcia provided the Department with a copy of a May 11, 1995, manifest showing that on May 11, 1995, Florida Waste Environmental Services was paid to remove and dispose of 602 gallons of petroleum.
Beginning in 1991, Humberto Garcia became very involved in the fishing business. The nature of this enterprise required Mr. Garcia to be out of the country most of the time. Consequently, between 1991 and most of 1996, except for brief periods of time, Mr. Garcia was not in the United States. While Humberto Garcia was out of the country and working in the fishing business, Ver-Mar was not engaged in building boats or electro- polishing.
In November 1996, Mr. Garcia returned to Tampa for an extended period after he secured a contract to build four ferries for the Phillipines.
There was a hole behind the garage which appeared to be about the size of the amount of dirt in Drums Nos. 7 and 8. Dogs are often on the property; however, the hole behind the garage
did not appear to be caused by the dogs in that the dirt from the hole was not piled up around the hole.
As part of his investigation Tobergte requested invoices from PolyGard for products purchased by Ver-Mar. In response to this request, PolyGard provided an invoice and bills of lading that corresponded to resin purchases that appeared to be connected to Ver-Mar. One invoice and bill of lading provided by PolyGard reflect that Ver-mar purchased resin on April 3, 1995. The same invoice indicated that the products listed on the invoice, including resin, were shipped to "Ver-[M]ar, P. O. Box 15834, Tampa, Florida." However, the bill of lading that corresponded with the invoice indicated that the products, including the resin, were shipped to the Tampa Port Authority and sold to Carribean Fisheries in St. Vincent, West Indies. In fact, the products were taken to the Port Authority and shipped to St. Vincent.
In another bill of lading issued by PolyGard, dated March 9, 1993, resin with Lot No. 91-023-0205 PolyGard was among several products listed on the form. According to the bill of lading, the merchandise was to be shipped to "Jose Garcia [at] Ver-Mar." No address was listed on the form and it is unknown if, where, and to whom the products were delivered. A corresponding invoice was not presented at hearing.
Mr. Humberto Garcia has an uncle named Jose Garcia, but does not know if this uncle actually purchased the materials or
what he did with them if he did purchase them. Also, it is not known whether Jose Garcia was in Tampa when products were purchased from PolyGard on March 9, 1993, because at various times, he stays in Okeechobee, Miami, and Tampa. Although this uncle "tinkers" with boats, Jose Garcia has no key to the Lois Avenue property and is not authorized to work on boats at that property. Furthermore, no boats were built on the Lois Avenue property while Humberto Garcia was out of the country.
Mr. Humberto Garcia neither authorized the purchase of nor paid for the materials listed on the March 9, 1993, bill of lading.
During the time Humberto Garcia was working out of the country, there was at least one instance where an unauthorized purchase was made on the Ver-Mar account. A PolyGard invoice dated June 3, 1993, shows that materials, including resin, were purchased at PolyGard and billed to Ver-Mar at P. O. Box 15834, Tampa, Florida 33614. However, the invoice notes that the materials were to be shipped to Brac Aquatics, Del Metro Stevadors, 200 AE Port Drive, Tampa, Florida. This charge was not authorized by Mr. Garcia.
Ver-Mar has authorized the purchase of products on its account to be shipped places other than the Lois Avenue property. There were times when Ver-Mar purchased resins and other products for export. On these occasions, PolyGard would deliver the materials to the Tampa Port Authority to be shipped to the West Indies.
Laidlaw submitted a certificate of disposal to the Department, showing that the drums had been disposed of properly.
Laidlaw sent a bill to the Department for $10,665 for the response of Laidlaw to the incident.
The Department incurred total costs of $11,907.84 from the Water Quality Assurance Trust Fund for the removal and proper disposal of the drums and their contents.
Prior to Humberto Garcia's receiving a letter from the Department seeking reimbursement for the costs incurred for the removal and disposal of the eight abandoned drums, he was unaware that the drums had been moved to the park.
Humberto Garcia attended the University of South Florida where he majored in chemistry. In early 70's, Mr. Garcia started an industrial waste program for the City of Winter Park. As a result of his working in an environmental program, Mr. Garcia believes that he has a good rapport with members of the environmental community and would not hesitate to call for assistance in the removal and disposal of hazardous wastes.
Prior to the incident which is the subject of this case, neither Mr. Garcia nor Ver-Mar has been the subject of any action involving a violation of Chapters 376 and 403, Florida Statutes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.
The Department is the state regulatory agency charged with the responsibility of administering and enforcing the provisions of Chapters 376 and 403, Florida Statutes.
Section 376.30, Florida Statutes, describes the "legislative intent" behind the enactment of
Sections 376.30-376.319, Florida Statutes, and provides, in
pertinent part, as follows:
The Legislature intends by the enactment of ss. 376.30-376.319 to excercise the police power of the state by conferring upon the Department of Environmental Protection the power to:
Deal with the environmental and health hazards and threats of danger and damage posed by such storage, transportation, disposal, and related activities;
Require the prompt containment and removal of products occasioned thereby. .
. .
The Department is authorized, by Section 376.307(1)(a), Florida Statutes, to use monies from the Water Quality Assurance Trust Fund (Fund) "[t]o carry out the provisions of ss. 376.30- 376.319, relating to assessment, cleanup, restoration, monitoring, and maintenance of any site involving spills, discharges, or escapes of pollutants or hazardous substances which occur as a result of procedures taken by private and governmental entities involving the storage, transportation, and disposal of such products."
Subsections (5) and (7) of Section 376.307, Florida Statutes, which provide as follows, authorize the Department to seek the recovery of these monies:
(5) Except as otherwise provided by law, the department shall recover to the use of the fund from a person or persons at any time causing or having caused the discharge or from the Federal Government, jointly and severally, all sums owed or expended from the fund, pursuant to s.
376.308, except that the department may decline to pursue such recovery if it finds the amount involved too small or the likelihood of recovery too uncertain.
. . . Any request for reimbursement to the fund for such costs, if not paid within 30 days of demand, shall be turned over to the department for collection.
(7) Except as otherwise provided by law, the department, in administering the fund, shall diligently pursue the reimbursement to the fund of any sum expended from the fund in accordance with this section for cleanup and abatement, unless the department finds the amount involved too small or the likelihood of recovery too uncertain. . . .
Any action initiated by the Department to recover these monies is governed by the provisions of Section 373.308, Florida Statutes, which provides, in pertinent part, as follows:
376.308-Liabilities and defenses of facilities.
In any suit instituted by the department under ss. 376.30-376.319, its is not necessary to plead or prove negligence in any form or matter. The department need only plead and prove that the prohibited discharge or other polluting condition has occurred. The following persons shall be liable to the department for any discharges or polluting condition:
Any person who caused a discharge or other polluting condition or who owned or operated the facility, or the stationary tanks or the nonresidential location which constituted the facility, at the time the discharge occurred.
In the case of a discharge of hazardous substances, all persons specified in s. 403.727(4). . . .
Section 376.301, Florida Statutes, contains "[d]efinitions of terms used in ss. 376.30-376.319." The following are among these definitions:
(9) "Discharge" includes, 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 waters of the state not regulated by ss. 376.011-376.21.
(17) "Hazardous substances" means those substances defined as hazardous substances in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, Pub. L. No. 96- 510, 94 Stat. 2767, as amended by the Superfund Amendments and Reauthorization Act of 1986.
(23) "Person" means any individual, partner, joint venture, or corporation; any group of the foregoing, organized or united for a business purpose; or any governmental entity,
(30) "Pollutants" includes any "product" as defined is s. 377.19(11), pesticides, ammonia, chlorine, and derivatives thereof, excluding liquefied petroleum gas.
Section 377.19(11), Florida Statutes, which is referenced in the definition of "pollutants" found in Section 376.301(30), Florida Statutes, defines "products" as follows:
(11) "Product" means any commodity made from oil or gas and includes refined crude oil, crude tops, topped crude, processed crude petroleum, cracking stock, uncracked fuel oil, fuel oil, treated crude oil, residuum, gas oil, casinghead gasoline, natural gas gasoline, naphtha, distillate,
condensate, gasoline, waste oil, kerosene, benzene, wash oil, blended gasoline, lubricating oil, blends or mixtures of oil with one or more liquid products or byproducts derived from oil or gas, and blends or mixtures or two or more liquid products or byproducts derived from oil or gas, whether hereinabove enumerated or not.
One of the definitions for "hazardous substances in the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) in 42 U.S.C. Subsection 9601(14) and incorporated by reference in Section 376.301(17), Florida Statutes, is "any hazardous waste having the characteristics identified under or listed pursuant to Section 3001 of the Solid Waste Disposal Act (42 U.S.C. Subsection 6921)." The United States Environmental Protection Agency has been delegated the authority to promulgate regulations identifying these characteristics of hazardous waste and listing particular hazardous wastes. These regulations have been adopted and are codified in 40 CFR Part 261.
Pertinent to the instant case are 40 CFR Sections
and 261.22. 40 CFR Section 261.21, provides as follows:
A solid waste exhibits the characteristic of ignitability if a representative sample of the waste has any of the following properties:
It is a liquid, other than an aqueous solution containing less than 24 percent alcohol by volume and has flash point less than 60 degrees C (140 degrees F). . . .
A solid waste that exhibits the characteristic of ignitability has the
EPA Hazardous Waste Number of D001.
Drums Nos. 1, 2, and 3 all had flash points less than
140 degrees F. 40 CFR Section 261.22, provides in material part as follows:
A solid waste exhibits the characteristic of corrosivity if a representative sample of the waste has either of the following properties:
It is aqueous and has a pH less than or equal to 2 or greater than or equal to 12.5, as determined by pH meter. . . .
* * *
A solid waste that exhibits the characteristics of corrosity has the EPA Hazardous Waste Number of D002.
Drums Nos. 4 and 5 both had a pH less than 2.
Among the hazardous wastes specifically listed in 40 CFR Section 261.24 is chromium (EPA Hazardous Waste Number D008).
Drums Nos. 4 and 5 both exceeded the regulatory levels for chromium and lead.
The Department incurred costs for the removal and abatement of a discharge of hazardous substances in the instant case. However, the Department may only recover its costs pursuant to Sections 403.727(4) and 376.308(1)(b), Florida Statutes.
Section 403.727(4), Florida Statutes, provides the Department with additional authority to recover response costs in the case of a "release or threatened release of a hazardous
substance." It provides as follows:
In addition to any other liability under this chapter, and subject only to the defenses set forth in subsections (5), (6), and (7):
The owner and operator of a facility;
Any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substance was disposed of;
Any person who, by contract, agreement, or otherwise, arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person or by any other party or entity at any facility owned or operated by another party or entity and containing such hazardous substances; and
Any person who accepts or has accepted any hazardous substances for transport to disposal or treatment facilities or sites selected by such person, is liable for all costs of removal or remedial action incurred by the department under this section and damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from the release or threatened release of a hazardous substance as defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub. L. No. 96-510.
Section 403.703, Florida Statutes, contains the following definitions of terms used in Chapter 403, Florida Statutes. The following definitions are pertinent in this case:
(4) "Person" means any and all persons, natural or artificial including any individual, firm, or association; any municipal or private corporation organized or existing under the laws of this state or any other state; any county of this state; and any governmental agency of this state or the Federal Government.
"Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste of hazardous waste into or upon any land or water so that such solid waste or hazardous waste or any constituent thereof may enter other lands or be emitted into the air or discharged into any waters, including groundwaters, or otherwise enter the environment.
"Generation" means the act or process of producing solid or hazardous waste.
"Hazardous Waste" means solid waste, or combination of solid wastes which because of its quantity, concentration, or physical, chemical, or infectious characteristics, may cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible or incapacitating reversible illness or may pose a substantial present or potential hazard to human health or the environment when improperly transported, disposed of, stored, treated, or otherwise managed. The terms does not include human remains that are disposed of by persons licensed under chapter 470.
(27) "Transport" means the movement of hazardous waste from the point of generation or point of entry into the state to any offsite intermediate points and to the point of offsite ultimate disposal, storage, treatment, or exit from the state.
(29) "Hazardous substance" means any substance which is defined as a hazardous substance in the United States Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 94 Stat. 2767.
In the instant case, the Department has failed to meet its burden of proof. The Department has proven that a prohibited discharge of hazardous substances occurred. However, the Department failed to prove that Ver-Mar caused the discharge, or that Ver-Mar owned or operated the facility or stationary tanks which constituted the facility, at the time of the discharge as required by Section 376.308, Florida Statutes.
Moreover, the Department failed to prove that Ver-Mar arranged for the disposal of hazardous substances which caused the release pursuant to Section 403.727(4), Florida Statutes. Therefore, the Department is not entitled to recover from Ver-Mar the costs that the Department incurred in properly removing and disposing of the hazardous substances which caused a release.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order finding that Respondent is not liable for reimbursing the Department for costs incurred in removing and properly disposing of the abandoned drums and their contents which are the subject of Incident No. 96-SW-0619.
DONE AND ENTERED this 12th day of August, 1998, in Tallahassee, Leon County, Florida.
CAROLYN S. HOLIFIELD
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1998.
COPIES FURNISHED:
Kisha Pruitt
Assistant General Counsel
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
Humberto Garcia, pro se Secretary, Ver-Mar, Inc. 5005 North Lois Avenue Post Office Box 15834 Tampa, Florida 33684
Kathy Carter, Agency Clerk
Department of Environmental Protection Office of General Counsel
3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
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 | Proceedings |
|---|---|
| Oct. 30, 1998 | Final Order filed. |
| Aug. 12, 1998 | Recommended Order sent out. CASE CLOSED. Hearing held 05/12/98. |
| Jun. 15, 1998 | (Petitioner) Proposed Recommended Order filed. |
| Jun. 12, 1998 | Order sent out. (PRO`s due by 6/15/98) |
| Jun. 08, 1998 | Department`s Motion for Extension of Time to File Proposed Recommended Order (filed via facsimile). |
| May 29, 1998 | Notice of Filing Transcript of Final Hearing; Transcript filed. |
| May 18, 1998 | (Petitioner) Notice of Filing Returns of Service; (3) Affidavit of Service; (2) Subpoena Duces; Subpoena Ad Testificandum Tecum; (2) Invoice filed. |
| May 12, 1998 | CASE STATUS: Hearing Held. |
| Apr. 30, 1998 | (Joint) Prehearing Stipulation filed. |
| Apr. 03, 1998 | Department of Environmental Protection`s First Request for Production of Documents filed. |
| Mar. 25, 1998 | Notice of Video Hearing sent out. (Video Final Hearing set for 5/12/98; 10:00am; Tampa & Tallahassee) |
| Mar. 25, 1998 | Prehearing Order for Video Hearing sent out. |
| Feb. 23, 1998 | Joint Response to Initial Order filed. |
| Feb. 16, 1998 | Initial Order issued. |
| Feb. 06, 1998 | Notice And Certificate Of Service Of Department Of Environmental Protection`s First Interrogatories; Petition For Administrative Hearing; Agency Referral Letter; Request for Assignment of Administrative Law Judge and Notice of Preservation of Record rec`d |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 29, 1998 | Agency Final Order | |
| Aug. 12, 1998 | Recommended Order | Dept. failed to prove that Resp. owned or operated facility that caused the discharge of hazardous substances. Resp. was out of the country and its business was not operating at the time of the alleged generation or disposal of hazardous substances. |
