STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

On September 25, 2008, a final hearing was held in this case by teleconference in Jacksonville and Tallahassee before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas M. Parham, pro se

7225 Arlet Drive

Jacksonville, Florida 32211

For Respondent: Karen Bishop, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUES

There are two issues in this case: whether the Petitioner, Thomas M. Parham, is maintaining an unpermitted stationary installation that is reasonably expected to be a source of air

or water pollution; and whether installations on Mr. Parham's property are discharging into groundwater, and whether he should therefore be required to obtain a groundwater monitoring permit and conduct groundwater monitoring as ordered in the Department's Final Order, DEP OGC File No. 08-0521 (the Order).

PRELIMINARY STATEMENT

The Department issued the Order on April 28, 2008. The Petitioner filed a Petition for Hearing, and the matter was referred to the Division of Administrative Hearings (DOAH) on June 3, 2008. The matter was scheduled for final hearing on August 26, 2008, but a Joint Motion for Continuance was granted, and the final hearing was rescheduled for September 25, 2008.

On August 18, 2008, the Department filed a Request for Official Recognition, which was not ruled on.

During the final hearing, the Department called: the Petitioner, Thomas M. Parham; Michael Fitzsimmons, the waste program administrator at the Department's Northeast District office (NED); Emerson Raulerson, the supervisor of the solid waste section at the NED; Gregory Kowalski, an environmental scientist with TN & Associates, who conducted field work on Petitioner's property and prepared an Expanded Site Inspection Report; and Richard Rachal, the waste cleanup supervisor at the NED. The Department's Exhibits R-1 through R-8 were admitted into evidence. Thomas M. Parham testified for himself. He also

called Sally Heuer, an environmental specialist at the NED. Petitioner did not move any exhibits into evidence during the hearing. In rebuttal, the Department re-called Mr. Rachal and Mr. Fitzsimmons.

After presentation of evidence, the parties requested a transcript of the final hearing and were given ten days from the filing of the transcript in which to file proposed recommended orders (PROs). The Transcript was filed on October 20, 2008.

On October 30, 2008, the Department filed a PRO. Instead of a PRO, Parham filed both a request for a 21-day extension of time to file his PRO and certified and uncertified copies of various documents relating to the Property. Because Parham's filings were not served, a Notice of Ex-Parte Communication was issued, giving the Department an opportunity to respond to and rebut the ex-parte communications. On November 17, 2008, the Department filed a Response, which agreed to the requested extension of time and objected to the submission of the certified documents as irrelevant.

On November 20, 2008, Parham filed his PRO and a reply to the Department's Response. At this time, the relevance objection is overruled, and the documents are received in evidence as composite Petitioner's Exhibit P-1. The parties' PROs have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Thomas Parham purchased the property at 5401 Pickettville Road, Jacksonville, Florida (the Property), in a tax sale on November 21, 2007. His intention was to use it to park and store trucks and heavy equipment.

2. At the time of purchase, there were no signs posted on the Property indicating that it was hazardous or toxic or otherwise compromised environmentally. At the time, there was no statute or rule requiring the Property to be posted to give the public notice of any of those conditions.

3. Parham drove past the Property before buying it, but it was fenced, and the gates were locked, and he was unable to get in to inspect it. From the fence, he saw no indication that the Property was hazardous or toxic or otherwise compromised environmentally. However, Parham knew that there was fill material on the Property. He states that he did not know the Property was toxic or hazardous, but he did no due diligence to determine what kind of fill was on the Property.

4. Parham has bought and sold property in tax sales for a living for the past 11 years. He owns 115 different properties, and has been involved in 795 property transactions. Once, he accidentally bought a contaminated property, which the City of Jacksonville bought back from him after the contamination was

   discovered. Based on his experience, Parham knew or should have known to conduct due diligence on the Property before buying it.

5. After purchasing the Property, Parham saw that part of it had a significant amount of a black material. He testified that he believed it was charcoal or bituminous coal, which he called "black beauty." Instead of determining what it was, Parham decided to cover it with dirt. He had 124 truckloads of fill delivered to the Property and covered all of the supposed "black beauty."

6. Someone saw the activity on the Property and contacted the Department of Environmental Protection (DEP). DEP inspected and entered a Final Order, DEP OGC File No. 08-0521 (the Order) to require Parham to install monitoring wells and implement a monitoring program to determine whether the Property was causing pollution and contamination offsite. Parham challenged the Order, which resulted in this proceeding.

7. Actually, the black material on the Property was not charcoal or bituminous coal. It was sandblasting grit material used by Jacksonville Shipyards, Inc. (Jacksonville Shipyards), in its shipyard operations to sandblast old paint coatings and rust from ships before re-painting. It would be expected that the used grit would be contaminated with metals and volatile organic compounds (VOCs). The used grit was trucked to and

   deposited on the Property when it was owned by Jacksonville Shipyards in the 1970's and early 1980's.

8. Prior to Jacksonville Shipyards' purchase of the Property in 1972, it was used as a sand mine. In the process, two large pits, each 20 to 25 feet deep, were excavated on the Property. Later, waste was dumped into the pits, including concrete, asphalt, metal pipes, wire, and wooden demolition material. When Jacksonville Shipyards purchased the Property in 1972, sandblasting grit was added to the waste placed into the pits. Initially, these activities were not regulated, and the pits were not lined before being used for waste disposal.

9. By July 1980, leachate generated when waste material (including the sandblasting grit, which was being delivered to the Property daily) came in contact with water was running off the Property towards Six Mile Creek, which flows east to where it is joined by Little Six Mile Creek, from which the combined flow towards the east becomes the headwater of the tidal Ribault River. In addition, leachate was entering the groundwater on the Property, which also flowed generally to the north towards Six Mile Creek.

10. When DEP's predecessor, the Department of Environmental Regulation (DER) began to regulate land fills, it required Jacksonville Shipyards to submit a groundwater monitoring plan, which DER approved. Monitoring wells were

    installed, and the groundwater on the Property was sampled once in 1984 and showed groundwater contamination. DER groundwater standards and criteria for arsenic, barium, chromium, lead, chlorides, copper, iron, manganese, total dissolved solids (TDS), and zinc were exceeded. DER attempted to negotiate a consent order with Jacksonville Shipyards to address the contamination, but those efforts failed, and then Jacksonville Shipyards and related business entities went into bankruptcy proceedings.

11. After the bankruptcy proceeding was initiated, Jacksonville Shipyards conducted no further groundwater monitoring at the Property. Neither DER nor DEP issued a solid waste permit or a groundwater monitoring permit for the Property. No waste has been removed the Property, and no liner has been installed. Leachate has continued to run off the Property and infiltrate the groundwater on the Property and flowed towards Six Mile Creek.

12. After bankruptcy proceedings were initiated, representatives of DER and DEP checked from time to time to see if overdue property taxes had been paid, reasoning that payment of the taxes would be an indication that the bankruptcy proceedings had progressed to the point that a financially viable owner of the Property could be required to implement an appropriate monitoring program for the Property. In fact,

    unbeknownst to DEP, title to the Property was conveyed to Picketsville Realty Holdings, LLC, in 1998.

13. In 1998 DEP contracted with a consultant to conduct sampling at the Property to identify the source of the groundwater contamination detected in the onsite monitoring wells in 1984. Groundwater, soil, and surface water samples were collected and analyzed, as were reports on assessments conducted at the Pickettville Road Landfill, a federal Superfund site located across Pickettville Road from the Property. The consultant reported in 1999 that lead in groundwater samples exceeded the maximum contaminant level (MCL) in shallow well 11 and in deep well 2. In shallow well 9, N-nitrosodiphenylamine also exceeded the MCL. Lead was detected in all twelve soil samples collected in areas where sandblasting grit was found on the surface although none of the soil samples exceeded DEP's residential direct exposure Soil Cleanup Target Level (SCTL) of

    400 mg/kg. The report concluded that the Property was the source of most if not all of the contamination detected in the monitoring wells on the Property. The Pickettville Road Superfund site was not considered to be contributing to the groundwater contamination on the Property because groundwater data indicated that the Superfund site is not up-gradient of the Property. Groundwater flow from the Property was found to be generally westerly towards Six Mile Creek.

14. In approximately 2003, the federal Environmental Protection Agency (EPA) contracted with a consultant to perform an Expanded Site Inspection (ESI) on the Property to determine whether it should be placed on the federal National Priorities List (NPL) of sites at which a release, or potential release, of hazardous substances poses a serious enough risk to the public health or the environment to warrant further investigation and possible remediation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 and the Superfund Amendments and Reauthorization Act of 1986. In this assessment, surface and subsurface soils and groundwater were collected from the Property, sampled, and analyzed. In addition, surface water and sediment samples from Six Mile Creek and from the Ribault River were collected, sampled, and analyzed.

15. The federal ESI report was issued in 2004. It found arsenic, copper, benzo(a)pyrene equivalents in the surface soil samples that exceeded the default levels of concern for direct exposure, as provided in Florida Administrative Code Rule Chapter 62-777. It also found arsenic, copper, iron, lead, polychlorinated biphenyls (PCBs), and benzo(a)pyrene equivalents in the subsurface soil samples that exceeded the default levels of concern for direct exposure, as provided in Rule Chapter 62- 777. It also found chromium, iron, and lead in one groundwater

    sample at concentrations exceeding DEP's groundwater standards. Aluminum, arsenic, barium, chromium, copper, nickel, vanadium, acenaphthene, fluorine, and phenanthrene levels in various groundwater samples were elevated but did not exceed DEP's groundwater standards. It also found that surface water samples from Six Mile Creek contained barium, copper, manganese, and vanadium at elevated concentrations. Sediment samples from Six Mile Creek and the Ribault River contained numerous metals, bis(2-ethylhexyl)phthalate, several polyaromatic hydrocarbons (PAHs), and PCB-1260 at concentrations exceeding EPA Region 4 guidance values. It was concluded that from the elevated concentrations in the surface water samples that contamination of the surface water pathways continues to occur from inorganic contaminants from the Property.

16. The number of impacted groundwater monitoring wells decreased from 1984 to 2004. However, arsenic concentrations increased in shallow well 9, and barium concentrations increased in shallow well 8, during that time. Also, acenapthene, which is a semi-volatile compound associated with PAHs, was reported in two wells in the 2004 ESI report but no detection was reported in the 1985 report.

17. The 1985, 1999, and 2004 reports indicate that the waste-filled pits on the Property are discharging to groundwater. This is not surprising since there is no liner

    beneath the waste that has been placed in the pits. Rain and runoff on the Property would percolate through the waste and leaches contaminants out of the waste. The leachate enters the groundwater on the Property.

18. Parham contends that contamination found on the Property is from the 53-acre Pickettville Landfill, which was operated by the City of Jacksonville. He contends that a large number of lead batteries were placed in the Pickettville Landfill from extensive lead battery disposal. The evidence proved that the Pickettville Landfill is a Superfund site but did not prove composition or amount of the waste placed in the Pickettville Landfill over the years. Even if the Pickettville Landfill was used extensively for lead battery disposal over the years, the evidence was that little or none of the contamination on the Property is attributable to the Pickettville Landfill. Besides groundwater flow from the Pickettville Landfill likely being away from the Property, lead contamination was found in the surface and subsurface soils of the Property, making it very unlikely that the contamination on the Property came from the Pickettville Landfill.

19. Parham also questions the estimate in the three contamination reports on the Property that 200,000 cubic yards of sandblasting grit were dumped on the property. He estimated that would amount to 13,000 truckloads, which would not fit on

    the 4-acre Property. But a witness for DEP estimated that two- acres of 20-25 foot deep pits would hold that quantity of sandblasting grit. Even if the actual quantity of sandblasting grit dumped on the Property was less, the evidence was that it was the likely source of the metal contamination found in the soils and groundwater on and under the Property.

20. Similarly, Parham suggests that waste oil and other waste in the Pickettville Landfill could be the source of PAH or PCB contamination on the Property. Besides groundwater flow from the Pickettville Landfill likely being away from the Property, those contaminants move very slowly and do not move large distances, making it very unlikely that the contamination on the Property came from the Pickettville Landfill. Even if some did, the Pickettville Landfill would not account for much of the contamination on the Property.

21. Parham contends that, even if the Property is contaminated, his placement of 124 truckloads of dirt on the Property will prevent any further groundwater contamination. But dirt is not impervious and will not prevent rain and runoff from percolating through the waste on the Property and leaching

    contamination into the groundwater on the Property. Eventually, this groundwater leaves the Property and enters Six Mile Creek.

    CONCLUSIONS OF LAW

    
    

22. Section 403.061(8), Florida Statutes,1 grants the Department the power and duty to control and prohibit pollution of air and water in accordance with the law and rules adopted and promulgated by it, and, for this purpose, to issue such orders as are necessary to control air and water pollution and enforce the orders by appropriate administrative and judicial proceedings.

23. The Department has the burden of proving by a preponderance of the evidence that the allegations in the Order are true. § 120.57(1)(j), Fla. Stat.

24. The Order alleges that Petitioner violated Section 403.087(1), Florida Statutes, which provides, in part:

    A stationary installation that is reasonably expected to be a source of air or water pollution must not be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department, unless exempted by department rule.

    
    

25. The term "stationary" is not defined by statute or rule; therefore, the ordinary meaning of the word applies. Stationary means "not moving." American Heritage Dictionary,

    Fourth Edition. The evidence shows that the waste on the property is in a fixed location.

26. Section 403.031(4), Florida Statutes, defines installation as "any structure, equipment, or facility, or

    appurtenances thereto, or operation which may emit air or water contaminants in quantities prohibited by rules of the department."

27. The term "facility" is not defined by statute or rule; therefore, the ordinary meaning of the word applies. The definition of facility includes "something created to serve a specific function." American Heritage Dictionary, Fourth Edition. The evidence shows that this property was operated as a "solid waste management facility" and a "solid waste disposal facility," as defined in Florida Administrative Code Rule 62-

    701.200.2 Accordingly, the waste disposal areas on the property

    
    

    are a facility and an installation, as defined in Section 403.031(4), Florida Statutes, and Rule 62-520.200(4).

28. A violation of any groundwater criterion contained in Chapter 62-520 constitutes pollution. See Fla. Admin. Code R. 62-520.300(6).

29. Class G-2 groundwater is required to meet the minimum criteria provided in Rule 62-520.400 and the primary and secondary drinking water standards in Rule 62-520.420.

    30. Rule 62-520.400(1) provides:

    
    

    All ground water shall at all places and at all times be free from domestic, industrial, agricultural, or other man-induced non- thermal components of discharges in concentrations which, alone or in combinations with other substances, or

    components of discharges (whether thermal or non-thermal):

    
    

    1. Are harmful to plants, animals, or organisms that are native to the soil and responsible for treatment or stabilization of the discharge relied upon by Department permits; or

    2. Are carcinogenic, mutagenic, teratogenic, or toxic to human beings, unless specific criteria are established for such components in Rule 62-520.420, F.A.C.; or

    3. Are acutely toxic within surface waters affected by the ground water; or

    4. Pose a serious danger to the public health, safety, or welfare; or

    5. Create or constitute a nuisance; or

    6. Impair the reasonable and beneficial use of adjacent waters.

1. The Department's cleanup target levels (CTLs) for groundwater are based on the minimum criteria and are derived upon consideration of the following factors: "calculations using a lifetime excess cancer risk level 1.0E-6 and; a hazard quotient of 1 or less; and nuisance, organoleptic, and aesthetic considerations." See Fla. Admin. Code R. 62-777.170(1)(a).

2. The evidence shows that, as of 2004, the groundwater on the Property was contaminated with chromium, iron and lead, exceeding the Department's groundwater standards. This constitutes pollution under Rule 62.520.300(6). Additionally, arsenic, copper, iron, lead, PCBs, and benzo-a-pyrene equivalents exceeded the Department's soil CTLs. Because rainfall and/or surface water continue to come in contact with

   the soil and with the waste that was placed on the property, and because there is no liner, the installation may reasonably be expected to be a source of water pollution.

3. By a preponderance of evidence, the Department has established that contaminants in the groundwater on Petitioner's property may currently exceed the Department's groundwater standards. Therefore, Petitioner is maintaining a stationary installation that is reasonably expected to be a source of water pollution.

4. Petitioner is required to establish a groundwater monitoring program under Rule 62-520.600(1), which provides, in part:

   Unless otherwise exempted by the Department, any installation discharging into ground water shall establish a monitoring program as described in (3) below and shall meet the quality assurance requirements in category 2c described in subsection 62-160.300(7), F.A.C., and the Department's reference, "Standard Operating Procedures for Laboratory Operations and Sample Collection Activities, " DER-QA-001/92, September 30, 1992, hereby incorporated and adopted as a reference.

   
   

5. Rule 62-520.200, includes the following definitions:

   
   

   1. "Ground Water" means water beneath the surface of the ground within a zone of saturation, whether or not flowing through known and definite channels.

      
      

   2. "Installation" means any structure, equipment, or facility, or appurtenances

      thereto, operation or activity which may be a source of pollution.

      
      

      * * *

      
      

      (23) "Zone of Discharge" means a volume underlying or surrounding the site and extending to the base of a specifically designated aquifer or aquifers, within which an opportunity for the treatment, mixture, or dispersion of wastes into receiving ground water is afforded.

      
      

6. As of July 1, 1982, owners of installations discharging pollutants to groundwater have been required to comply with the minimum criteria set forth in Rule 62-520.400. See Fla. Admin. Code. R. 62-520.300(10).

7. The groundwater on Petitioner's Property is groundwater as defined in Rule 62-520.200(10).

8. The evidence shows that, as of 2004, the waste disposal areas on the Property were discharging to the groundwater, and the groundwater was contaminated with chromium, iron and lead in excess of the Department's groundwater standards. Further, the landfill and grit blast installations on the Property are reasonably expected to discharge to groundwater today because rainfall and/or surface water continue come in contact with the waste, generating leachate. Because there is no liner to protect the groundwater, that leachate moves into the groundwater.

9. By a preponderance of evidence, the Department has established that installations on Petitioner's Property are discharging into groundwater, and that these discharges may be a source of pollution.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department enter a final order requiring Thomas Parham to:

1. Submit a complete application for monitoring plan approval on Form 62-520.900(1) to the Department of Environmental Protection, Northeast District, 7825 Baymeadows Way, Suite B200, Jacksonville, Florida 32256-7590 within 90 days of entry of the Final Order;

2. Implement the approved monitoring program within 90 days after Department approval; and

3. Install monitoring wells in accordance with the approved monitoring program and Rule 62-520.600(6).

DONE AND ENTERED this 9th day of December, 2008, in Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 2008.

ENDNOTES

1/ Statutory references are to the 2007 codification of the Florida Statutes unless otherwise noted.

2/ Rule references are to the version of the Florida Administrative Code in effect at the time of the hearing unless otherwise noted.

COPIES FURNISHED:

Thomas M. Parham 7225 Arlet Drive

Jacksonville, Florida 32211

Karen Bishop, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Stop 35

Tallahassee, Florida 32399-3000

Lea Crandall, Agency Clerk

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Stop 35

Tallahassee, Florida 32399-3000

Michael W. Sole, Secretary

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Stop 35

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Stop 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.

Docket for Case No: 08-002636

Orders for Case No: 08-002636