The Issue The issue presented for decision herein is whether or not Petitioner's Antiknock (octane) Index number of its petroleum product was below the Index number displayed on its dispensing pumps.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compile herein, I make the following relevant factual finding. Rafael Ruiz is the owner/operator of Coral Way Mobil, an automobile gasoline station, situated at 3201 Coral Way in Coral Gables, Florida. Ruiz has operated that station in excess of ten (10) years. On or about May 13, 1987, Respondent, Department of Agriculture and Consumer Services, received a customer complaint alleging that the fuel obtained from Petitioner's station made her automobile engine ping. Respondent dispatched one of its petroleum inspectors to Petitioner's station at 3201 Coral Way on May 14, and obtained a sample of Respondent's unleaded gasoline. Inspector Bill Munoz obtained the sample and an analysis of the sample revealed that the produce had an octane rating of 86.9 octane, whereas the octane rating posted on the dispenser indicated that the octane rating of the product was 89 octane. On that date, May 14, 1987, Respondent issued a "stop sale notice" for all of the unleaded product which was determined to be 213 gallons. Petitioner was advised by Inspector Munoz that the unleaded produce should be held until he received further instructions from the Respondent respecting any proposed penalty. On May 15, 1987, Petitioner was advised by John Whittier, Chief, Bureau of Petroleum Inspection, Florida Department of Agriculture and Consumer Services, that the Antiknock Index number of the sampled product was 2.1 percent below the octane rating displayed on the dispenser and that an administrative fine would be levied in the amount of $200 based on the number of gallons multiplied times by the price at which the product was being sold, i.e., 213 gallons times 93.9 cents per gallon. Petitioner did not dispute Respondent's analysis of the product sample, but instead reported that he had been advised that three of the five tanks at his station were leaking and that this is the first incident that he was aware of wherein the product tested below the octane rating displayed on the dispenser.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondent, Department of Agriculture and Consumer Services, enter a Final Order imposing an administrative fine in the amount of $200 payable by Petitioner to Respondent within thirty (30) days after entry of the Respondent's Final Order entered herein. RECOMMENDED this 7th day of October, 1987, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 1987. COPIES FURNISHED: Rafael E. Ruiz c/o Coral Way Mobil 3201 Coral Way Miami, Florida 33145 Clinton H. Coulter, Jr., Esquire Senior Attorney Office of General Counsel Department of Agriculture and Consumer Services Room 514, Mayo Building Tallahassee, Florida 32399-0800 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Robert Chastain, Esquire General Counsel Department of Agriculture, and Consumer Services Room 513, Mayo Building Tallahassee, Florida 2399-0800
Findings Of Fact On February 10, 1978, a petroleum inspector, David Potter, in carrying out his routine inspection, took a gasoline sample for analysis of unleaded gasoline from the Easy Shopper Store located on U. S. 41 South, Brooksville, Florida. This sample was tested by the state laboratory at Tallahassee, Florida, and on February 17, 1978, the Tallahassee laboratory notified Mr. Potter that the unleaded gasoline was illegal in that in contained .240 grams of lead per gallon, which is in excess of .05 grams per gallon allowable under the Respondent Department's regulation. On the basis of this information, Potter went to the Easy Shopper Store and placed a stop-sale notice on the tank that dispensed unleaded gasoline. On this same date, February 17, 1978, the Petitioner was allowed to deliver 1200 gallons of unleaded gasoline in an effort to reduce the lead content already existing in the tank. Another sample was taken from the tank after the 1200 gallons was added, and it was dispatched for analysis. On February 20, 1978, Potter was notified by Tallahassee laboratory that the lead content in subject tank contained .520 grams per gallon and was therefore illegal. On the basis of this, the Petitioner, James R. Wilkes, was allowed to post a bond in the amount of $507.91 for the value of 834 gallons that was sold by Easy Shopper Store from the last delivery before the first sample and the stop-sale. The Petitioner was then allowed to pump out the illegal unleaded gasoline and put it in a regular tank to be sold as regular gasoline. On March 13, 1973, Mr. Potter sampled the Petitioner's unleaded product at Huey's Service Station located at U. S. 19 South, Inverness, Florida. The unleaded gasoline sample was dispatched to the Tallahassee Laboratory, and the analysis indicated that the lead content was .069 grams per gallon established by the Respondent's Department's regulations. As a result of the analysis of the gasoline sample, Mr. Potter placed a stop-sale against Huey's Service station's unleaded gasoline tank, and the Respondent posted a bond of $206.70 which was the value of the gasoline sold before the stop-sale. Upon the posting of the bond the Petitioner was allowed to pump out the remaining gasoline and refill the tank with a new product. The contaminated product that was recovered by the Petitioner from Huey's Service Station was delivered on February 15, 1978, in the amount of 500 gallons, and on March 1, 1978, in the amount of 300 gallons. On or about March 3, 1978, the Petitioner discovered the cause of the gasoline contamination. He found a leak from the No. 3 compartment to the No. 4 compartment on his delivery truck, which caused the regular gasoline to mix with the unleaded gasoline. Promptly upon discovery of the leaking compartment, the Petitioner had the tank compartments repaired by the Tank Welding & Service Company, Inc., located in Tampa, Florida. There is no dispute as to the facts, and the only connection on the part of Petitioner is that although the gasoline was contaminated it was not an intentional act of the Petitioner, and he feels he should not be penalized in the amount of $507.91 and $206.70 under the circumstances of this case. Respondent contends that Section 525.06, Florida Statutes. does not allow for any discretion on the part of the Respondent in its confiscation of the remaining contaminated gasoline, other than the agreement between participating parties which allowed the Petitioner to post bonds in the amount of $507.91 and $206.70, which is the value of the gasoline Petitioner dispensed to the public at Easy Shopper Store and Huey's Service Station. Respondent contends that most similar incidents are non-intentional.
Recommendation It is recommended that upon payment by the Petitioner of $507.91 and $206.70, respectively, the bond of the Petitioner be cancelled and this case be closed DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day of April 1979. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1979. COPIES FURNISHED: Robert A. Chastain, Esquire Florida Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32304 James R. Wilkes, Marketer American Petrofina Company Post Office Box 1042 Brooksville, Florida 33512 Mr. John Whitton Bureau of Petroleum Inspection Florida Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32304
The Issue The question presented here concerns the Petitioner, State of Florida, Department of Agriculture and Consumer Services' Stop Sale Notice placed against Respondent, Pinner Oil Company under the alleged authority of Section 525.06, Florida Statutes (1980), by the process of requiring a refundable bond in the amount of $471.34, pending the outcome of this dispute in which it is contended that the Respondent supplied gasoline for sale which failed to comply with Rule Subsection 5F-2.01(1)(j), Florida Administrative Code, dealing with the allowed lead content in gasoline.
Findings Of Fact The Petitioner, State of Florida, Department of Agriculture and Consumer Services is an agency of government which has, among other responsibilities, the requirement to establish and enforce standards related to maximum allowable lead content in unleaded gasoline offered for sale to the general public. This regulation is designed to avoid the destruction of catalytic devices found in the exhaust systems of certain cars, in which the destruction of a catalyst would bring about problems, with the exhaust system causing its replacement and more importantly, lead to adverse effects on the environment due to an increase in undesired emission from the exhaust system. The Respondent, Pinner Oil Company of Cross City, Florida, is a jobber which supplies gasoline to retail outlets who in turn sales the gasoline to members of the motoring public. The facts reveal that on October 6, 1980, an official with the Petitioner made a routine inspection of the unleaded gasoline reservoir at the B. F. Goodrich-Texaco at 210 Rogers Boulevard, Chiefland, Florida, a customer of Pinner Oil Company. This gasoline was subsequently analyzed and on October 7, 1989, a Stop Sale Notice was served based upon a determination that the unleaded gasoline found in the reservoir at that station contained more than 0.05 grams of lead per U.S. gallon. The gasoline in question was provided to the B. F. Goodrich outlet by an employee of Pinner Oil Company as a part of his duties with the Respondent. In lieu of the total confiscation of the gasoline found in the reservoir tank at the station In question, the Respondent was allowed to post a refundable bond in the amount of $471.34 which represented the price for the number of gallons sold at a retail price since the time of the prior delivery to that station. (By Stipulation entered into between the parties, it was agreed that a finding of fact would be made to the effect that the Respondent, during the course of the last two years, had not been cited for a violation of the Florida Statutes pertaining to contaminated fuels.)
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found. On January 15, 1980, Nick Pappas, a petroleum inspector with respondent's Division of Standards, took samples of regular and no lead gasoline from petitioner's station No. 582 located at 3130 Gulf to Bay Boulevard in Clearwater, Florida. An analysis of the samples was performed in the Tallahassee lab showing lead contents in the amount of 0.56 grams per gallon in the no lead gasoline sample. The standard for unleaded gasoline offered for sale in Florida is 0.05 gram of lead per gallon. A second sampling and analysis was performed approximately eleven days later because more gasoline had been dumped into the tank since the first sampling. Test results indicated essentially the same level of lead content in the unleaded gasoline. The respondent thereupon issued a "stop sale notice" on January 26, 1980, due to the high content of lead in the product. Tom Nestor, the station manager, was informed that he had several alternatives, including confiscation of the product, with the petitioner posting a bond in the amount of $1,000.00 for the release of the product to be sold as regular gasoline. Having elected this alternative, a "release notice or agreement" was entered into on January 28, 1980. Respondent received a bond in the amount of $1,000.00 from Petitioner, and this amount was deposited into the Gasoline Trust Fund. Tom Nestor admitted the truth of the above facts and admitted that he did not check the product after it was dumped into the tank. He stated that the driver of the delivery truck delivered the product to the wrong gasoline tank. According to Mr. Nestor, the tanks at his station were not properly marked at the time the delivery was made. The "premium" tank was being used to dispense "unleaded" gas, and the deliverer dumped "regular" gasoline into the "unleaded" tank.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petitioner's request for a return of the cash bond be DENIED. Respectfully submitted and entered this 28th day of July, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301
Findings Of Fact On September 16, 1981, an inspector employed by the Petitioner, Department of Agriculture and Consumer Services took gasoline samples from leaded and unleaded pumps identified as "Way 44547513" and "Way 445475A" respectively, at the Cigar City Auto/Truck Plaza, in Tampa, Florida. The samples were tested and found to contain suspicious substances. Specifically, the unleaded gasoline was found to be contaminated with leaded gasoline. As a result of test results, the Department issued a stop sale notice to Robert Lawson, Manager of Cigar City, on September 18, 1981. The test analysis showed that the unleaded gasoline sample exceeded the standards established by the American Society of Testing and Materials (ASTM) for unleaded fuel which were adopted by the Department as Rule 5F-2.01, Florida Administrative Code. The sample in question contained 1.41 gram of lead per gallon and, therefore, violated Rule 5F-2.01(1)(j), Florida Administrative Code, which states that unleaded gasoline may not contain more than 0.05 gram of lead per gallon. The Respondent was permitted to post a $1,000 cash bond in lieu of confiscation in order to secure the release of 4,230 gallons of illegal gasoline for sale as leaded regular. The contamination was caused by a delivery man for a gasoline supplier who unintentionally placed-leaded gasoline into an unleaded tank. When the Respondent became aware of the problem, immediate steps were taken which included color coding the tanks so that the problem would not reoccur. This is the first incident concerning the sale of illegal gasoline in which the Respondent has been involved. No complaints were filed by any consumers concerning the gasoline sold by the Respondent.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order returning $750 of the Respondent's cash bond which was required to be posted. DONE and ORDERED this 8th day of January, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1982. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Gerald Taylor, Esquire 3224 Bay to Bay Boulevard Tampa, Florida 33609
The Issue The parties stipulated that the quality of the gasoline was not at issue and that the sole issue was the reasonableness of the amount of the bond. The amount of the bond is based upon the price of the mislabeled gasoline sold or estimated to have been sold, not to exceed $1,000.00. The factual issue became how much gasoline had been sold since the tanks were mislabeled by IGS.
Findings Of Fact On June 4, 1985, a regular sampling inspection was conducted by staff of the Department of Agriculture at the Lil General Food Store, 2099 S. Goldenrod Road, Orlando, Florida. This inspection revealed that the regular unleaded gasoline had a 10.3 percent alcohol content but was not properly labeled, as required by law, as containing alcohol. The inspector accepted a $1,000.00 bond in the absence of any evidence by the vendor that less than 1,000 gallons at a price of $1.00 per gallon of mislabeled gasoline had been sold. On June 5, 1985, a regular sampling inspection was conducted by staff of the Department of Agriculture at the Circle K Store, 29495 S.W. 152nd Avenue, Homestead, Florida. This inspection revealed that the regular unleaded gasoline had a 9.6 percent alcohol content but was not properly labeled, as required by law, as containing alcohol. The inspector accepted a $1,000.00 bond in the absence of any evidence by the vendor that less than 1,000 gallons at a price of $1.00 per gallon of mislabeled gasoline had been sold. IGS refurbishes gasoline pumps, painting and replacing the labels on the pumps. IGS was engaged in this activity for Circle K in May 1985 and during that month refurbished both of the pumps subsequently cited by the Department of Agriculture. The Respondent was given the opportunity to present evidence regarding the date the signs on the pumps were refurbished and the amount of gasoline pumped after that date. The Respondent was unable to present evidence on the amount of gasoline actually pumped. The pumps in question had been refurbished nearly a month before the inspections.
Recommendation The bonds of $1,000.00 in the two instances above were reasonable and justified, given the violations of Section 5F-2.03(7), Florida Administrative Code (1875 Supp.) and Section 525.06, Florida Statutes. DONE AND ORDERED this 10th day of December 1985 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1985. COPIES FURNISHED: Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Robert Chastain, Esquire General Counsel Mayo Building - Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Patrick J. Donnelly, President IGS - Identification and Graphic Services Company, Inc. 3331 W. Main Tampa, Florida 33607
Findings Of Fact Frank Gish operates Gish's Exxon service station, which is located at 400 Ridgewood Avenue, Holly Hill, Florida. Gish's Exxon service station purchases all of its gasoline from the Respondent, Widmaier Oil Company. On or about February 17, 1982, one of the Department's employees performed a routine inspection at Gish's Exxon service station. Samples were taken from each of the station's gasoline pumps and forwarded to a mobile laboratory. One of the samples taken was from the pump labeled "Exxon Unleaded." An examination of this sample was performed on the same date. The lead content of the sample was found to be .09 grams per gallon. After this analysis was performed, the remainder of the sample was forwarded to the Department's laboratory in Tallahassee for more detailed examination. Personnel at the Department's laboratory in Tallahassee performed a precise X-ray examination of the sample. American Society for Testing Materials standards were applied in conducting the examination. The lead content of the sample was found to be .098 grams per gallon. The Department's rules require that gasoline sold as unleaded gasoline may not contain more than .05 grams of lead per gallon Rule 5F-2.01(1)(j), Florida Administrative Code. The Department's testing techniques have a "reproducibility factor" or error factor of up to .034 grams per gallon. Thus, the Department does not take action based upon tests that it runs unless the tests reveal a lead content of more than .084 grams per gallon. The samples taken from Gish's Exxon service station exceeded this amount, and a "Stop Sale" order was issued. Widmaier Oil Company posted a bond in the amount of one thousand dollars ($1,000) with the Department, so that the gasoline could be sold as "leaded gasoline." Widmaier Oil Company has agreed to accept responsibility for the selling of any illegal product as might be determined in this proceeding. No evidence was offered at the hearing from which it could be determined how the unleaded gasoline being sold at Gish's Exxon service station came to have an excessive lead content. Respondent contended that the gasoline may have been contaminated by the Petitioner's agents wrongly placing samples of gasoline that had been taken from a leaded pump into the unleaded tank. This contention is not supported by any evidence, and it appears that the samples taken by the Respondent's agents were not sufficient in volume to have raised the lead content in the unleaded tank to a level that would have violated the Department's standards.
Findings Of Fact Sunshine Jr. Stores, Inc., #214 is a service station in the business of selling regular leaded, regular unleaded, and unleaded premium gasoline to the public. Store # 214's place of business is located at the intersection of East Avenue and U.S. Highway 98 in Panama City, Florida. On August 6, 1990, James Wood, the Department's inspector, visited the station to conduct an inspection of the gasoline Respondent was offering for sale to the consuming public from its tanks and related gasoline pumps. Mr. Wood took samples of all three types of gasoline offered for sale by Respondent. The samples were forwarded to the Department's laboratory in Tallahassee and were tested to determine whether they met departmental standards for each type of gasoline. The Departmental testing revealed that the regular-leaded gasoline did not contain any lead. The pumps had been mislabeled at the station and the station was in fact selling regular leaded gasoline as regular-unleaded gasoline. Since the leaded gasoline did not contain any lead, it fell below Departmental standards for leaded gasoline. The store had sold 2467 gallons of the mislabeled product. In light of the above facts, the Department elected to allow the Sunshine-Jr. Store, #214, to post a $1,000 bond in lieu of confiscation of the gasoline. The bond was posted on August 9, 1990. The Department assessed Sunshine-Jr. Stores, Inc., #214 the retail value of the product sold, which is equal to the posted bond. The assessment is reasonable and conforms to the amount of assessments imposed by the Department in similar cases.
Recommendation It is accordingly, RECOMMENDED: That the request of Sunshine Jr. Food Stores, #214 for refund of the bond posted be DENIED and that the assessment by the Department of Agriculture and Consumer Services in the amount of $1,000 be sustained. DONE and ORDERED this 16th day of March, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1991. COPIES FURNISHED: Milton Lawrence P. O. Box 2498 Panama City, Florida 32402 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel 515 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
The Issue The issue in this case is whether or not Petitioner is entitled to a refund of the bond it posted in lieu of confiscation of allegedly mislabelled gasoline products.
Findings Of Fact Petitioner, AGI Service Corporation, owns and operates a Citgo service station located at 1599 West Flagler Street in Miami, Florida. The service station sells regular unleaded, unleaded plus and unleaded premium gasoline to the public. On February 18, 1991, James Carpinelli, the Respondent's inspector, visited the station to conduct an inspection and obtain samples of the gasoline Petitioner was offering for sale to the consuming public from its tanks and related gasoline pumps. Mr. Carpinelli took samples of all three types of gasoline offered for sale by Petitioner. The samples were forwarded to the Respondent's laboratory and were tested to determine whether they met Departmental standards for each type of gasoline. The Petitioner's "premium unleaded" pump indicated the octane or Anti Knock Index of the gasoline was 93. The "regular unleaded" pump indicated that the octane level was 87. The laboratory analysis of the samples revealed that the octane level of the gasoline taken from the "premium unleaded" pump was 87.4. The octane level of the gasoline taken from the "regular unleaded" pump was 93.0. Upon discovering the discrepancy in the octane levels, the Respondent seized the gasoline and immediately allowed the Petitioner to post a bond in the amount of $1,000. Upon the posting of the bond, the product was released back to the possession of the Petitioner and was allowed to be sold after the pumps were relabelled. Petitioner acquired ownership of the service station four days prior to the time of the inspection. At the time they opened the station, the new owners labelled the pumps based upon the information provided to them by the prior owners. The new owners had limited experience in the petroleum business and followed the guidance of the prior owners regarding labelling the pumps. It is clear that the pumps were inadvertently mislabelled based upon the information provided by the prior owners. The new owners sold "premium unleaded" at the price of "regular unleaded" and visa versa. Because more "premium unleaded" was sold at the price for regular, Petitioner lost money as a result of the mislabelling. The Department seeks to assess the full amount of the bond against the Petitioner in this proceeding. Respondent calculated the number of gallons of mislabelled gasoline that was sold based upon a delivery date of February 13, 1991. Those calculations indicate that 2,498 gallons were sold at a price of $1.259 per gallon. However, Respondent's calculations appear to begin at a time prior to Petitioner's ownership of the station. No evidence was presented as to how many gallons were sold while Petitioner owned the station. In addition, it is not clear when the mislabeling was done. Thus, no clear evidence was presented as to how many mislabeled gallons were sold by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Department of Agriculture and Consumer Services enter a Final Order granting the request of the Respondent for a refund of the bond posted and that the Department rescind its assessment in this case. DONE and ENTERED this 4th day of October, 1991, at Tallahassee, Florida. J. STEPHEN MENTON 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 4th day of October, 1991. COPIES FURNISHED: LOUIS PASCALI AND DONATO PASCALI QUALIFIED REPRESENTATIVES AGI SERVICE CORPORATION 1599 WEST FLAGLER STREET MIAMI, FL 33147 JAMES R. KELLY, ESQUIRE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES ROOM 514, MAYO BUILDING TALLAHASSEE, FL 32399-0800 HONORABLE BOB CRAWFORD COMMISSIONER OF AGRICULTURE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES THE CAPITOL, PL-10 TALLAHASSEE, FL 32399-0810 RICHARD TRITSCHLER, GENERAL COUNSEL DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 515 MAYO BUILDING TALLAHASSEE, FL 32399-0800 BRENDA HYATT, CHIEF BUREAU OF LICENSING & BOND DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 508 MAYO BUILDING TALLAHASSEE, FL 32399-0800
The Issue The issue in this case is whether the Petitioner is eligible for reimbursement for allowable costs pursuant to Section 376.3071(12), Florida Statutes, related to the cleanup of certain contamination at the Petitioner's ground transportation facility.
Findings Of Fact Based on the evidence received at the hearing, I make the following findings of fact: Facts stipulated to by the parties The subject facility is a bus, limousine and van storage, dispatch, and service area for a ground transportation company serving Miami International Airport which contains a parking lot, fuel storage tanks, an administration building, and a maintenance shop. The Department of Environmental Regulation is the agency charged with responsibility for administering the provisions of Section 376.3071, Florida Statutes. Red Top Sedan, Inc., through its agents, notified the Department of possible ground and ground water contamination on or about September 10, 1986. The Department received said notification and on September 19, 1986, advised Red Top that the notice was adequate and requested further information. Following various correspondence and requests for information, the Department determined that it had sufficient information and, on February 1, 1988, issued its Notice of Intent regarding the eligibility of the subject sites for participation in the program. One area, adjacent to and surrounding the diesel fuel pumps, was found to be eligible. Another area, east and west of the maintenance shop (Exhibit "2" to the Notice) was found to be ineligible. Red Top filed a Petition for Administrative Determination which was received by the Department on February 23, 1988. The Petition was subsequently referred to the Division of Administrative Hearings and a Hearing Officer assigned. Facts Established at Hearing General Information About The Facility The subject facility also contains a parking area for approximately 95 buses, 40 to 45 vans, two dozen mini-buses, and 15 or 16 limousines and Lincoln towncars. There is also employee parking on the site. To the east of the Red Top office building there is a fuel island used for fueling Red Top's vehicles. The tanks associated with that fuel island have discharged diesel fuel. That petroleum contamination site is entirely separate from the one involved in this proceeding and has been found to be eligible for reimbursement. When the subject facility was constructed, Red Top employed an engineering company. It also employed a company named Service Station Aid. Service Station Aid is in the business of servicing tanks and other equipment used in connection with the handling of oil, gasoline, diesel fuel, and other similar products. Among other things, Service Station Aid installed underground waste oil tanks and tanks to hold automatic transmission fluid and new motor oil in the area of the maintenance facility. A drainage system servicing the asphalt parking areas and driveways surrounding the various buildings was also installed on the subject site. That system contained various grease traps which conformed to accepted practice at the time of their construction. Facts Regarding The East Side of the Maintenance Building Two underground waste oil tanks are on the east side of the maintenance building. The two waste oil tanks have been in operation since 1976, when the facility was built. Each of these two tanks has a capacity of 560 gallons. Employees of Red Top regularly pour used motor oil into the two waste oil tanks on the east side of the maintenance facility. The used oil is periodically removed by an EPA approved company. That company removes the waste oil to a fuel recycling facility in the Port Everglades area where it is made into recycled fuel. It is possible, even probable, that used oil has been spilled from time to time both while being poured into the waste oil tanks and while being removed from the waste oil tanks. However, there is no persuasive competent substantial evidence that any such spillage was a significant contribution to the contamination at the site. .1/ It is possible that one or both of the waste oil tanks has leaked. However, there is no persuasive competent substantial evidence that any such leakage was a significant contribution to the contamination at the site. In this regard it is noted that Red Top has not tested either of the waste oil tanks to determine whether they are leaking. Approximately 70 feet to the east of the maintenance building there are three storm drains. The storm drains are attached by way of a catch basin to soakage pits. Soakage pits are specifically designed to allow materials entering the soakage pit to be discharged directly to the earth. Storm drains are designed to catch stormwater runoff rather than large amounts of pollutants. The area to the east of the maintenance facility is paved with asphalt. That paved area is sloped so that any discharge of pollutants in that area of the site will flow to the storm drains. On numerous occasions waste oil has been observed in the storm drains. Instances of direct discharges of waste oil onto the ground or into the storm drains have been observed. Oil stains around the storm drains and observations by Dade County inspectors indicate that such direct discharges have been regular, if not frequent. Other sources of contamination at the Red Top facility include leaking drums of oil, oil leaking from stored or discarded equipment, oil discharged to the ground, disposal of contaminated waters from the maintenance building, and engine washing water discharged on the site. In the ground to the east of the maintenance building there is a large plume of dissolved oil and grease. This plume includes a plume of free product in the vicinity of the southernmost of the two waste oil tanks. Extending beyond the identified plume there are additional areas contaminated by constituents of waste oil. The primary cause of the contamination on the east side of the maintenance building is the direct discharge of contaminants. Discharge from the two waste oil tanks constitutes, at most, only a very minor cause of the overall contamination. .2/ Facts Regarding the West Side of the Maintenance Building On the west side of the maintenance building there are two underground tanks that are used to hold new motor oil and new transmission fluid. Motor oil and transmission fluid are lubricants used to lubricate engines and transmissions. They are not fuels. Pollutants which were discharged onto the floor of the maintenance building during maintenance work have been washed directly into the storm drains on the northwest side of the maintenance facility. There are two small areas of contamination on the west side of the maintenance facility. One such area is around a storm drain at the northwest side of the maintenance facility. The other is around the two tanks that contain new motor oil and transmission fluid. The contamination in the area of the storm drain includes lead, cadmium, and chromium. Motor oil and transmission fluid do not contain lead, nor do they contain levels of cadmium or chromium in amounts sufficient to be detected in groundwater. There is also an area of free product near the storm drain. There is no storage tank adjacent to the storm drain on the northwest side of the maintenance facility that could account for the lead, cadmium, and chromium contamination or that could account for the area of free product. The contamination at the storm drain on the west side of the maintenance facility resulted from direct discharges of contaminants to the storm drain and catch basin and was not a result of a discharge from a storage tank. The contamination in the area of the two tanks used for new motor oil and transmission fluid also contains lead, cadmium, and chromium. The metals contamination at this area is a result of discharge to the storm drain, and is not the result of discharge of new motor oil or transmission fluid from the two tanks. The groundwater in the area around these two tanks is also contaminated by dissolved oil and grease. The dissolved oil and grease plume is consistent in terms of substance and concentration with the dissolved waste oil to the east of the building. Within that plume of dissolved oil and grease there is also a small plume of free product. There is no waste oil tank on the west side of the maintenance facility that could account for waste oil contamination at that location. The dissolved oil and grease plume on the west side of the maintenance facility is most likely the result of waste oil discharge to the catch basin. The tanks containing new motor oil and transmission fluid may have contributed to the small free product plume in that area as a result of overfilling, but any such contribution was only a minor part of the overall contamination. In reviewing an application for eligibility for reimbursement, the Department looks at the relative importance of eligible and ineligible portions of a contaminated site. In cases where a potentially eligible source is minor in comparison to an overall otherwise ineligible contamination site, the Department's policy is to treat the entire site as ineligible. This policy is based on the fact that as a practical matter it is not possible to clean up one part of a contaminated site without affecting any adjacent contaminated areas. For the same reason, if the majority of a contaminated site is eligible, but it contains minor ineligible sources, the Department's policy is to treat the entire site as eligible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation issue a final order in this case concluding that the contamination area at issue in this proceeding is not eligible for reimbursement under Section 376.3071(12), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of June 1989. MICHAEL M. PARRISH 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 15th day of June 1989.
