Findings Of Fact On February 16, 1981, John Flanagan, a Graduate Chemist and Inspector for the Petitioner, Department of Agriculture and Consumer Services, (hereafter "Department") took a gasoline sample (R-247) from an unleaded pump identified as 45321" at the June Avenue Service Station, 1109 West U.S. 98, Panama City, Florida. This sample was field tested and then forwarded to the lab in Tallahassee where it was again tested on February 20, 1981 and found to be contaminated with leaded gasoline. (Testimony of Whitton, Flanagan, Petitioner's Composite Exhibit 1). As a result of the field test the Department issued a stop sale notice to Mr. Al Barry on February 16, 1981. The laboratory analysis showed that the unleaded gasoline sample exceeded the standards established by the American Society of Testing and Materials ("ASTN") for unleaded fuel which were adopted by the Department as Rule 5F-2.01, Florida Administrative Code. The sample in question contained 0.088 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. 4 The Respondent was permitted to post a $1,000 cash bond in lieu of confiscation in order to secure the release of the remaining 1,600 gallons of illegal gasoline for sale as leaded regular. The Respondent has no knowledge as to how the unleaded gasoline was contaminated. The gasoline was purchased from the Hill Petroleum Company and supplied by the Respondent to the June Avenue Service Station as unleaded gasoline.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order denying Respondent's request for the return of its 1,000 bond which was required to be posted in lieu of confiscation of approximately 1,600 gallons of contaminated unleaded gasoline. DONE and ORDERED this 21st day of September, 1981, in Tallahassee, Florida. SHARYN L. SMITH 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 21st day of September, 1981. COPIES FURNISHED: Les McLeod, Esquire Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301 William D. Dickens Dickens Oil Company 1706 Maple Avenue Panama City, Florida 32405 John Whitton, Chief Bureau of Petroleum Inspection Division of Standards Mayo Building Tallahassee, Florida 32301
Findings Of Fact On June 19, 1990, samples of leaded regular gasoline were taken from Chiefland Oil Company, a/k/a Grandma's Pantry ("Grandma's"), at two different locations in Chiefland, Florida. Analysis of these samples revealed that there was less than .01 percent lead additive in the product. In each instance, the Respondent accepted a $1,000.00 bond in lieu of confiscation of the product. Grandma's subsequently was cited for violation of the product labeling laws and noticed that the Respondent intended to assess a fine on this case for the lesser of the amount of the product sold at retail or $1,000.00. The notice of violation advised Grandma's of its right to a formal hearing on the allegations. Grandma's made a timely request for hearing and these cases resulted. At hearing, the Respondent admitted the allegations but stated in explanation that the offense arose during the changeover by manufacturers from leaded to unleaded regular gasoline. The dealer had attempted to contact the Respondent's local representative without success in an effort to determine how to handle this problem, which was common to all dealers at this time. In locations where it could, the dealer pumped the leaded gasoline out of the storage tanks and consolidated it in one tank at one station where it sold the product as leaded until the tank was almost empty and then added unleaded to the leaded gasoline until it met unleaded standards and then changed the labeling. The dealer was attempting to dilute leaded with unleaded gasoline but had not yet replaced the leaded labels with unleaded labels when the sample was taken. The dealer could not pump these tanks dry because of the nature of their construction. The gasoline tested met the octane requirements but did not contain the lead additives. The lead additives lubricate the valves of older cars designed to burn leaded fuels. Modern unleaded fuels do not provide such additives. The law prohibits the sale of leaded products as unleaded products imposing sizeable fines for this violation.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Respondent exercise discretion as requested by the dealer and return the two bonds in the amount of $1,000.00 each. DONE AND ENTERED this 5th day of December, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 5th day of December, 1990. COPIES FURNISHED: The Honorable Doyle Conner Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol Tallahassee, FL 32399-0810 Mallory Horne, Esq. General Counsel Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, FL 32399-0800 Charles E. Lineberger Grandma's Pantry of Florida, Inc. P.O. Box 8189 Lakeland, FL 33802 Clinton H. Coulter, Jr., Esq. Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, FL 32399-0800
The Issue The issue is whether the application of Petroleum Products Corporation for reimbursement of the cost of assessment and clean-up of soil and groundwater contamination at its site in Broward County, Florida, under the State Underground Petroleum Environmental Response Act of 1986 should be granted.
Findings Of Fact The Legislature provided a system for the clean-up of sites contaminated as the result of the storage of petroleum or petroleum products in the State Underground Petroleum Environmental Response Act of 1986 (Super Act), Chapter 86-159, Laws of Florida, codified primarily as Section 376.3071, Florida Statutes. The Super Act contains a reimbursement program funded by the Inland Protection Trust Fund. Section 376.3071(12), Florida Statutes, permits reimbursement of allowable costs for the rehabilitation of sites contaminated from discharges related to the storage of petroleum or petroleum products. Petroleum Products Corporation owns a parcel of land located at 3130 Southwest 17th Street, Pembroke Park, Florida. From 1959 to 1970 Petroleum Products Corporation operated a facility on that land which collected used oil from service stations and automobile dealerships, processed it, and sold it either as fuel oil or lubricating oil. About 90% of 150,000 gallons of used oil processed monthly at the facility was sold as fuel; the remaining oil was sold as lubricating oil, but even when sold as lubricating oil, it was sometimes burned as fuel because re-refined oil makes good fuel. The storage tanks were located on the southeastern portion of the property, near Carolina Road. The facility used a two-phase distillation process. Used oil was distilled to remove water, after which it could be sold as fuel oil. If processed in the second phase, for sale as lubricating oil, it was distilled further, and treated with sulfuric acid and clay to remove additives and residue, and change color. This phase produced a waste consisting of acid/clay sludge. This sludge is generally very black, and has a pH of approximately 3. It is very viscous, and has the consistency of roofing cement; laymen would describe it as tar. It does not flow easily, but is liquid enough to be pumped. This processing also occurred in the southeast part of the property. While the recycling facility produced lubricating oil using the acid/clay treatment from 1959 to 1970, the acid sludge was hauled to a municipal dump, or placed in pits dug into the ground on the north and east of the plant site. When the pits were dug, they were dug below the water level, and there was water in the pits before the sludge was dumped in them. The disposal of sludge in pits on the recycling site was a prevailing industry practice, and violated no regulatory requirements at the time. Operators considered on-site disposal of sludge preferable to hauling sludge to a landfill. During periods of heavy rain, some of the sludge may have overflown the pits and spread to nearby land, where it would become mixed with the surface soil. Petroleum Products Corporation ceased making lubricating oil in 1970, but continued to process used oil into fuel oil. The local Broward County Pollution Control Agency asked Petroleum Products Corporation to remove the acid/clay sludge from its property, and to refill the pits with other fill material. Petroleum Products Corporation acceeded to this request, and a great volume of sludge, perhaps hundreds of thousands of gallons, was removed from the pits, which were then refilled under the supervision of the Broward County Pollution Authority. Receipts Petroleum Products Corporation produced at the hearing, or thereafter from the custody of the U. S. Environmental Protection Agency, show that more than 150 truck loads of sludge were removed and hauled to landfills operated by Metropolitan Dade County or by the City of Surfside. Some pockets of the sludge remain at the site of the pits because they were not completely emptied. The backfill was clean fill, and the area was then bulldozed so that warehouses could be constructed in the area. This filling and bulldozing changed the contour of the land from what it had been in the past. The Department contends that much of the sludge was spread out over an extended area of the site, and not removed to landfills. The evidence is persuasive that almost all of the sludge from the pits was removed to landfills. The testimony of Mr. Blair denying that the sludge was spread was credible. In addition, on-site spreading of the sludge would have been impracticable. As a tar-like substance, if spread out, it would have been tracked everywhere. It would stick to the tracks or wheels of any vehicles operating on the surface, and was so acidic it would burn or irritate the skin of anyone who came in contact with it. It would be extremely difficult to perform maintenance on equipment used to spread the sludge because of the need to clean the sludge off, so that the mechanic would not be burned. In addition, there are a large number of receipts evidencing the systematic hauling of the sludge to landfills. The logic of Mr. McDonnell's testimony is persuasive: If you have the alternate, which they obviously did, of hauling it away and simply dumping it, no one would go out and deliberately choose to do a very difficult job [spreading the sludge over the property] where there is an easy alternative available to them. (Tr. 285) Although the facility ceased its re-refining of lubricating oil in 1970, it continued to collect, process, and sell used oil as a fuel until 1984. About 150,000 gallons per month of used oil were processed and sold as fuel. The oil was typically crank case engine oil which contained the substances normally found in used oil of that type. There is no persuasive evidence that Petroleum Product Corporation ever received any hazardous waste, or mixed used oil with any hazardous waste. Used oil is not listed as a hazardous waste by the U.S. Environmental Protection Agency or by the Department. The used oil collected and recycled at Petroleum Product's facility was pumped into and stored in above-ground storage tanks. There were, over time, from 10 to 25 tanks, which ranged in size from 12,000 to 20,000 gallons. Normally, the facility stored between 400,000 and 500,000 gallons of used oil. Occasionally, the facility also received virgin oil, but it was processed quickly or sold because of its higher value. At the peak of its operation, the facility had 25 to 35 storage tanks. Recycling operations had slim profit margins and were small operations. Storage tanks, pumps, and other equipment were bought used, often from other businesses dealing in virgin petroleum products. That used equipment was often rusty or deteriorating. Tank bottoms could have holes in them as the result of rust from standing water; tanks were sometimes riveted, and would have side or bottom leaks. The tanks had virtually no overfill protection. When oil was pumped in, it would overflow from the top and run down the sides. Operators were typically not careful with the oil, because it had a very low value, about 2 to 5 cents a gallon. A spill of a few thousand gallons was regarded as an inconsequential matter. The pumps used in storing oil often had leaks in packing seals, or had screw joints which would leak. Tank valves, also usually bought as used equipment, were often installed without new stem packing, and also would leak during operation. Almost no preventive maintenance was done, because it was not cost-effective to do so. Equipment was repaired only if its current state of repair interfered with operations, which usually meant that leaks were not repaired until they created a fire hazard. Leaks and spills from used oil storage tanks, including their pumps, valves, and piping, were common. A great volume of used oil leaked or spilled from Petroleum Products Corporation's tanks, pumps, and piping over its 25 year operation. There were also large oil spills resulting from four or five major fires at the facility in the 1960s. The fire in 1963, which may have been the result of vandalism, caused 40,000 to 60,000 gallons of use oil to spill from storage tanks; 8 or 10 tanks were destroyed. There were no dikes, so that the oil flowed freely. When firemen used water on the fire, the oil was absorbed into the soil. Another major fire occurred in October, 1966 in which three oil storage tanks collapsed spilling about 50,000 gallons of oil. Another 25 foot high oil tank collapsed on a firetruck. There is no way to know, with certainty, the volume of used oil, virgin oil, and lubricating oil which spilled or leaked into the ground on the site. It is reasonable to believe that 9 to 12 gallons of oil would have leaked or spilled each day at the facility, which would have resulted in spill of over 100,000 gallons of oil. This estimate, made by Mr. McDonnell, is credible and is conservative, given the volume of oil also spilled during the fires. Petroleum Products Corporation does not contend that the leaks and spills from process tanks, rather than from storage tanks, are eligible for reimbursement of site assessment and cleanup costs. Oil leaked from both, however, and once in the ground, the oils are indistinguishable. Due to the capacity of the tanks and the years they were in use, however, it is reasonable to assume that 15% or less of the leaks and spills were attributable to process tanks. After processing, most of the oil was burned as fuel. Some was used as a lubricant. The only difference between used oil sold as fuel or lubricant was that the lubricating oil had the additives removed and the color changed. Both burn well. There is an insufficient basis in this record to justify the Department's interpretation excluding this site from eligibility for cleanup because oil processing ocurred at the site to produce lubricating oil. Section 376.3071 does not disqualify all or part of a site from eligibility for cleanup reimbursement because a portion of the used oil stored there was ultimately used as lubricants. In 1984 a Department investigator asked Petroleum Products Corporation to install exploratory wells to determine whether there was contamination at the site. Petroleum Products engaged the firm of Dames & Moore to undertake a preliminary investigation, which revealed that there was groundwater contamination in the form of floating hydrocarbons. On April 1, 1985, the United States Environmental Protection Agency and Petroleum Products Corporation entered into a consent order agreement which required the removal of 17 above-ground tanks leaking used oil into the ground, which constituted a continuing source of contamination. Petroleum Products Corporation contracted with Conversion Technology Corporation to recover and recycle the oil and wastes, with Waldron's tank cleaning services to clean the empty tanks and drum the sludge, with Cuyahoga Wrecking Service to make the tanks inoperable, and with Seven & Seven Transporters to remove the waste to a disposal facility. The employee of the U.S. Environmental Protection Agency who was in charge of the site commended Petroleum Products Corporation for its cleanup effort, and wrote as the OSC [on- scene coordinator] for this EPA-monitored cleanup I may say that [Petroleum Products Corporation] exemplified industrial cooperation and responsibility in combating the vexing problem of hazardous waste management. (Petitioner's Exhibit 9) Petroleum Products Corporation cooperated with the Environmental Protection Agency and with the Department in determining how to deal with the contamination. It has already spent approximately $150,000 to perform remedial action. Contamination at the site is of three types: oil floating in the groundwater, soil contamination, and groundwater contamination. It is not possible to clean any individual phase of the contamination without affecting the other phases. Attempts at remediation must be monitored to prevent an influx of organic contaminants into the aquifer. Similarly, the cost related to the cleanup of an individual phase of contamination cannot be isolated because of the inter-related nature of the cleanup phases. The creation of a cone of groundwater depression is necessary for any recovery of the free or floating oil. The cost of recovery of the free product cannot be separated from groundwater cleanup because it is necessary to treat large quantities of groundwater involved in creating a cone of depression. To the extent that a proportion of the cost might be estimated, the cost associated with the recovery of free product would be a minor portion of the overall cleanup. There is currently a free product recovery effort in place at the site, which is intended to prevent further migration of the product off-site. This ongoing action is not considered an element of the site cleanup. The most feasible method of cleanup for the free product will involve the excavation of the soils to create a trench. The free product and ground water will be recovered as they flow into the trench. During October and November of 1984, Environmental Science and Engineering, Inc., a consulting firm working under contract with the Department, assessed the extent of free floating oil in the groundwater under the Petroleum Product Corporation's site. Those consultants found a free floating layer of oil from 5" to 30" thick under approximately one-half of the one acre site Petitioner still owns. The free product generally mirrors the location of the former recycling facility and its storage tanks. The viscosity of the free product is comparable to about 40-weight engine oil. Environmental Science and Engineering estimates that the floating layer of oil contains 20,000 to 60,000 gallons of recoverable petroleum product. The direction of ground water flow and the migration of contaminants off-site is to the east or southeast. The soil above the oil layer has been saturated with oil because of the fluctuations of the layer with movement of the water table as the area experiences heavy rains or dry spells. Wells drilled in the location of the former sludge lagoons to the north and east of the plant site reveal a heavy slightly liquid type of sludge. The oil in the lagoon sites is immobile, and no free product collects in the wells after 24 hours. One sample collected in the mason jar shows a slight degree of oil separation after 24 hours. This anecdotal evidence of separation is not very informative, and is not persuasive that oil separates from the remaining sludge on-site. See, Finding 32, below. A second assessment of soil and groundwater contamination was done by another consulting firm under contract with the Department, Ecology and Environment, Inc. That study showed free floating product at the site. The only calculation of the amount of free floating oil was that done by Environmental Science and Engineering, Inc., see, Finding 29, estimating that there would be 20,000 to 60,000 gallons of recoverable oil. That calculation understates the amount of oil in the ground. The estimate given by George McDonnell of 103,000 gallons is more persuasive. It is consistent that the large amounts of oil which leaked or spilled at the site over a 25 year period. It is unlikely that any appreciable portion of the approximately 103,000 gallons of floating oil has its genesis in the separation of oil from the acid/clay sludge which had been disposed in the two lagoons for the following reasons: Oil associated with acid/sludge would be quite acidic, and have a pH between 2 and 4. The pH scale is not a linear scale, so differences in pH are quite dramatic as the pH values change. Samples of free product shows a uniform pH of approximately 6 or 7. In almost all 31 monitoring or observation wells the pH is consistent with the characteristics of used oil, (a pH of 6 or 7), not the pH of sludge (a pH of 2 to 4). The only sample which disclosed a low pH was that taken in monitoring well number 3 which was located in the former sludge lagoon site. The groundwater flows to the east or southeast. This does not explain the presence of free product to the west and southwest of the sludge pits nor the absence of free product to the east of the pits. The viscosity of the oil is similar to that of 40-weight engine oil and not highly viscous, as the tar-like sludge would be. The oil in the sludge pits is basically immobile and no free product surfaced in the monitoring well after waiting 24 hours. The pH of the free product is nearly neutral. The Department believes that the sludge was mixed with lime rock or fill and spread over the site to increase the pH of the oil. This is unpersuasive. Mixing with lime rock would increase the pH of the sludge (tend to bring it towards neutral) but it would not cause the dramatic lowering of acidity which would bring the sludge to a pH of 6 or 7. In addition, the viscosity of the sludge would not be so changed by mixing the sludge with fill that its viscosity would become similar to that of 40-weight engine oil. To believe that the free product results from sludge disposal rather than leaks ignores the normal operating practice of used oil recovery facilities in the late 50s and 60s where spills from storage tanks, pumps, and piping were very common. Little of the free product has been recovered through the current remediation efforts. If not recovered, over time the approximately 103,000 gallons of floating oil will spread to adjacent property. To recover this oil by conventional trench or well recovery operations will probably cost $250,000 or more. The capital cost of the groundwater recovery/discharge system, with monitoring wells, will be about $85,000; cost of operating and maintenance are approximately $180,000. The firm of Ecology & Environment, Inc., collected soil samples at 56 locations in two phases in its remedial investigation. Forty-six of the samples were taken at shallow depths (27 at 8 inches, 19 at approximately 10 inches); 10 more samples were taken in the old disposal pit sites at depths between 0 and 35 feet). The two primary classes of contaminants found in the soil were lead and organics (hydrocarbons associated with petroleum products). Both contaminants are found in used oil. The lead and organic contaminants were found in the shallow soils over the southern half of the site. Very little contamination was found beyond the main area of site activity. The soil contamination was concentrated in the plant and former disposal pit areas. Samples with high lead concentrations were found in the former disposal pit sites. Contamination extended to a depth of 25 feet in one soil sample from a former pit, where oily plastic sludge was found with fine sand or clay. The two former pit sites are the only places with documented contamination below a 10 foot depth. Although the organic contamination extended laterally further than the lead contamination, Environment & Ecology concluded that the wider distribution did not reflect contamination from Petroleum Product Corporation's activities. The general area has long been the site of commercial and industrial activities, and there are many other possible sources for contamination including a firing range, which would have been disposing of lead bullets fired at the range, a generator plant, and a former spray-painting facility. Solvents and other chemicals used in these activities would contribute to soil and groundwater contamination. The consultants had been told by area businesses that small scale dumping of industrial chemicals in the vicinity has been common. Soil samples revealed a "great deal of heterogeneity." There was no uniform distribution of soils in the shallow zone. This probably occurs because after the reprocessing operations ended in 1970, the land was cleared and filled, so that many of the warehouses now in the area could be constructed. Most of the upper 8 to 10 feet is fill material. The ground water was monitored by installing 38 wells on the site, most of which were screened at depths of 10 to 12 feet. Five intermediate wells with depths of 50 feet and two deep wells of 100 to 200 feet were also installed. Every sample exhibited a pH of between 6.4 and 7.4. The primary contaminants were lead, organics, and chromium. The evidence does not indicate the source of the chromium. It is unrelated to Petroleum Product Corporation's activities. The groundwater contamination, both metal and organic, was only in the shallow zone. It extends laterally roughly to the same extent of the shallow contamination found in the soil. This suggests that the contaminants in the soil migrated due to seepage from rainfall or fluctuation in the water table into the groundwater. The water table is about five feet below the land surface. The Department has argued that the contaminants in the soil and groundwater were caused by mixing and spreading of the sludge material during the early 1970s over the surface of the area. This hypothesis has already been rejected for the reason stated in Findings 7 and 8, above. It is more likely that the soil contamination resulted from frequent spills and leaks of oil from storage tanks years ago. The soil contaminants are those found in used oil. The area generally is flat. There was no impediment to oil spills flowing over a large surface area, following the contour of the land at that time. Depending on the method used to clean up the site, the cost of rehabilitating the area will range between two and forty-six million dollars. It will cost over one million dollars to recover and treat contaminated groundwater. Approximately 110,000 cubic yards of contaminated soil must be removed and treated, the majority of that coming from the area outside the former sludge pits. The presence of contamination at the site is to be expected, given the site's former use. All of the 8 turnpike facilities and 8 maintenance yards operated by the Florida Department of Transportation report petroleum contamination from tanks, and the Department of Transportation has estimated cleanup cost will range from $20 to $30 million, although DER believes the cost may be $5 million. The cleanup will be funded by the Inland Protection Trust Fund, as would the reimbursement in this case. The cost of rehabilitation is in the range of estimates that the Department has received for other petroleum contamination sites. In summary, the Petitioner's site is contaminated primarily from leak and spills of used and virgin oils processed or unprocessed and from storage tanks, pumps and integral piping. Small spills were continuous and some associated with fires were massive. The only portion of the site not contaminated due to leaks and spills is the residual soil and groundwater contamination from the sludge disposal pits, which is a small part of the overall contamination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Petroleum Products Corporation fo eligibility to participate in the cleanup program funded by the Inland Protection Trust Fund be granted. DONE and ENTERED this 9th day of July, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1990. APPENDIX Rulings on Findings of Fact proposed the Petitioner: As will be obvious, the proposed order submitted by Petroleum Products Corporation comported closely with the Hearing Officer's view of the evidence, and with some modification was essentially adopted as proposed. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 6. Adopted in Findings of Fact 7 and 8. Adopted in Finding of Fact 8. Adopted in Findings of Fact 9 and 10. Adopted in Finding of Fact 10, to the extent necessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Generally adopted in Finding of Fact 16. Rejected as subordinate. Rejected as unnecessary and subordinate. Adopted in Finding of Fact 17. Adopted in Finding of Fact 18. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20. Generally adopted in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Findings of Fact 31 and 32. Adopted in Finding of Fact 33 Rejected as repetitious of Finding of Fact 6. Rejected, see Findings of Fact 25 and 26. Adopted in Finding of Fact 24. Adopted in Finding of Fact 34. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 37. Adopted in Finding of Fact 38. Adopted in Finding of Fact 39. Adopted in Finding of Fact 40. Adopted in Finding of Fact 41. The spreading theory is rejected in Findings of Fact 7 and 8. Rejected as unnecessary. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. See also the stipulation of the parties entered as Exhibit 22. Rejected as unnecessary. Rulings on Findings of Fact proposed by the Department. Adopted in Finding of Fact 1. Adopted as modified in Finding of Fact 2. Discussed in the Conclusions of Law, see page 20. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3. Implicit in Findings of Fact 3 and 6. Adopted in Finding of Fact 6. Adopted in Finding of Fact 5. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Rejected as unsupported by the transcript references given. Adopted in Finding of Fact 5. Adopted in Finding of Fact 5. Adopted in Finding of Fact 5 Rejected as unnecessary. Generally rejected; see Finding of Fact 6 concerning the filling of the disposal pits. While some pockets of sludge remain at the site of the pits, the volume is difficult to determine. In an absolute sense, those pockets may contain a substantial amount of sludge, but on a comparative basis, by far the greatest part of the sludge was removed. Rejected as unnecessary. Generally adopted in Finding of Fact 32(1), but see the final sentence of (1). Generally adopted in Findings of Fact 25, 28, and 34. Generally adopted in Finding of Fact 28, since the recycling facility and storage tanks were on the southern part of the property. Rejected as unnecessary. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 3. Implicit in Finding of Fact 11. Adopted in Finding of Fact 11. Adopted in Finding of Fact 4. Rejected because the process tanks necessarily store the product being processed, serving as a vessel to contain the product. Rejected, see Finding of Fact 3 with respect to the turnover in the volume of used oil processed at the facility. Only about 10 percent of the oil was reprocessed as lubricating oil. This is more significant than the volume of the tanks. See also Tr. 24 with respect to the storage capacity, and Finding of Fact 11. Rejected as unnecessary. Rejected because the surficial drainage has probably been changed by the filling and regrading of the property in preparation for building the warehouses. See Finding of Fact 6. The current surficial flow says little about the flow when the facility operated in the late 1950's and throughout the 1960's. Adopted in Findings of Fact 15 through 19. Adopted in Findings of Fact 17 and 18. Adopted in Finding of Fact 17. Generally rejected, the evidence is persuasive that about 50,000 gallons of oil were lost in the 1966 fire. (See Tr. 36-37.) Adopted in Finding of Fact 25. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Rejected as unnecessary. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Rejected, the free product covers approximately one-half acre. Rejected, the more persuasive evidence is the 103,000 gallons estimated by Mr. McDonnell. See Finding of Fact 31. Rejected as unnecessary. Rejected as unnecessary. See Findings of Fact 28 and 34. Rejected because it is unlikely that sludges are separating in the former sludge lagoon. See Finding of Fact 30. The source of the oil is more likely the substantial loss of oil which occurred from the fires and from leaks over the years which is now floating above the ground water. Generally adopted in Finding of Fact 28. Generally adopted in Finding of Fact 28. Rejected as unpersuasive. Rejected, the source of the free product is not leaching from the disposal pit, but the oil from over flows and leaks during operation as well as large inundations during fires. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Rejected, see Finding of Fact 30. Rejected because oil does not separate from the sludge. Rejected for the reason given for rejecting Finding of Fact 63. Rejected, the seepage is not the result of separation in the disposal pits, but from the plume of free product in the ground above the ground water. Rejected as unnecessary, but the similarity of the oil seeping from the sludge pit area to waste oil is consistent with its source as leaks and spills inicident to fires. Rejected because the sludge does not separate. Rejected because the sludge does not separate. Rejected because the sludge does not separate, see Finding of Fact 30. Rejected as unnecessary; obviously as there is no more storage, so there is no more source for leaks or spills. 71-73. Discussed in Finding of Fact 30. Rejected because liquid product will not accumulate. Rejected because the sludge does not separate. Adopted in Finding of Fact 32(1). Adopted in Finding of Fact 32(5). Adopted in Finding of Fact 32(1). Rejected for the reason stated in Finding of Fact 32(5). Rejected for the reason stated in Finding of Fact 32(5). Rejected as unnecessary and for the reason stated in Finding of Fact 32(5). Adopted in Finding of Fact 32(1), which is consistent with the source of the free product being used oil rather than separation from sludge remaining onsite. 83-84. Rejected as unnecessary. Rejected as unnecessary. Rejected because the testimony of Mr. McDonnell has been accepted. Rejected as unnecessary. Adopted in Finding of Fact 27. Rejected as redundant. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Implicit in the finding that lead is a contaminant found in used oil. See Finding of Fact 34. Adopted in Finding of Fact 4. Rejected as unnecessary. Generally adopted in Finding of Fact 34. Generally adopted in Finding of Fact 34. Adopted in Finding of Fact 35. Rejected as unnecessary. Rejected as unnecessary; see also, Finding of Fact 6. Adopted in Finding of Fact 32(1). Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary, although there were disposal pits in the north and eastern parts of the property. Adopted in Finding of Fact 34 with respect to location, but the testimony with respect to spreading of the sludge is rejected. See Finding of Fact 7. It is unlikely that sludge was spread over the site. The more likely explanation for the appearance of sludge in the lithologic logs for the southern end of the site is that the disposal lagoons periodically overflowed after heavy rains and provided a mechanism for the active transport of sludge out of the disposal pits into some areas on the southern end of the site. Apparently the northern area now occupied by the warehouses was higher, because no sludge was found in observation wells 4, 5 and 19. Rejected, page 41 of DER's Exhibit 3 shows no sludge at observation well 5, which the proposed finding implies. 107-112. Generally rejected because the testimony with respect to the surface flow from the tank area being to the south is rejected because the grading of the property as the warehouses were built likely changed the contour of the land. Mr. Levin's testimony was not particularly strong; for example, at page 25 of his prefiled direct testimony he states, "And for the shallow soil contamination I would still have to lean towards the fact that the materials were mixed and spread." 113-114. The sludge contamination is not the predominant or source of contamination. Rather, it is the oils which floated across the land and were carried into the soil and resulted from the leaks and spills. 115-120. Generally accepted in Finding of Fact 36, although subordinate to that finding. 121. Generally accepted, although the soil contamination by lead is attributable to leaks and spills from the used oil. 122-124. Rejected as unnecessary. Accepted in Finding of Fact 25. Accepted in Finding of Fact 38. 127-128. Subordinate to Findings of Fact 36, especially the last sentence, and 38. Subordinate to Finding of Fact 39. Subordinate to Finding of Fact 39, especially the last sentence. Rejected as unnecessary. 132-134. Accepted in Finding of Fact 39. 135. Rejected because the soil contamination is the result of leaks and spills of oil. 136-137. Rejected, it is more likely that the neutral pH of the ground water is the result of the essentially neutral contaminant, the used oil. Rejected as unnecessary. Rejected as unnecessary, although consistent with Finding of Fact 39 that the lateral extent of ground water contamination mirrors the soil contamination which has resulted from leaks and spills. 140-141. The predominant source of contamination is leaks and spills. 142. Rejected, the area affected by the leaks and spills is large, due especially to the fires and consequent loss of large amounts of oil from tanks. See Finding of Fact 41. 143-144. Rejected as irrelevant and unnecessary. 145. Although true, not relevant. 146-148. Rejected, whether the Environmental Protection Agency is correct or not in its assessment is not at issue here. This site was contaminated by used oil. 149-150. Although true, not relevant. Implicitly accepted in that no finding with respect to "bias" has been made. Rejected as legal argument. Rejected because the predominate source of contamination is an eligible source. Rejected, but the source here falls within the statutory directive. Rejected. The site here is predominantly contaminated by used oil, which is eligible. The eligible portion is not a minor part of the entire of the contamination. COPIES FURNISHED: R. L. Caleen, Jr., Esquire OERTEL, HOFFMAN, FERNANDEZ & COLE Post Office Box 6507 Tallahassee, Florida 32314-6507 Gary Early, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
Findings Of Fact At all times pertinent to the allegations contained herein, Pioneer Oil Company was a licensed distributor of petroleum products in Florida, and the Department was the state agency responsible for overseeing and regulating the sale of petroleum products in this state. On May 9, 1990, the owner of Port Stop #4 in Duette, Florida, a seller of Pioneer's petroleum products at retail, requested Pioneer, as its supplier, to change over a storage tank, previously used for the storage of diesel fuel, to storage for gasoline and vice versa. Petitioner agreed but waited until the customer was nearly out of product to make the switch, and when that had happened, sent its pump truck to the facility to pump the remaining fuel out of the tankss. Pioneer's employee did pump out what he believed was all the fuel remaining in the tanks. However, because unknown to him or to anyone else, the tanks were tilted in the ground, the pumping operations left some of each fuel in its respective tank. When the fresh fuel was then placed into these new tanks, it was contaminated by that previous stock remaining therein after the pumping. On May 29, 1990, an inspector from the Department took samples of the diesel fuel, suppled from Petitioner, from the underground tank. When this sample was tested, it was found to be contaminated by the gasoline remaining in the tank after pumping. That diesel fuel did not meet state standards and was illegal. Because the unleaded pump was not working that day, that product could not be sampled. Therefore, a second sample, this time of unleaded gasoline, was taken on May 31, 1990, and it, too, was found to be contaminated by the diesel fuel which remained in that tank after pump out. This fuel did not meet state standards, either, and also was illegal. The diesel fuel sold at retail for $1.159 per gallon, and 1,359 gallons of the product had been sold. The unleaded gasoline sold at retail for $1.099 per gallon, and 4,997 gallons of that product had been sold. The Department is authorized to assess a penalty of up to $1,000 for each illegal product sold, depending on the amount sold. Since more than 1,000 gallons of each product was sold, the maximum penalty was assessed in each case. Mr. McGary claims that since the station where the incident took place was not owned by Pioneer, which is merely the product supplier, it was not legally obligated to pay the assessment. However, he admits that as a matter of business practice, since the products in issue were Pioneer products, since Port Stop #4 was a customer, and since it was a Pioneer employee who made the swap, it agreed to do so. Had it not made the swap, the dealer, (Port Stop #4) would have had to hire someone else to do it and Pioneer would have felt no obligation to assume the financial burden. He also claims that had the unleaded gasoline pump been working on May 29, 1990, the contamination of that product would have been found at the same time the other was found, and there would have been only one violation. This does not necessarily follow, however.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Department of Agriculture and Consumer Services affirming the imposition of bond and assessment against the bond posted by Petitioner, Pioneer Oil Company, in each of the incidents of illegal product discovered at Port Stop #4 in Duette, Florida, on May 29 and 13, 1990. RECOMMENDED this 31 day of October, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 31 day of October, 1990. COPIES FURNISHED: Larry McGary General Manager Pioneer Oil Company 878 12th Street East P.O. Box 9046 Bradenton, Florida 34206 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Hon. Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, FL 32399-0810 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800
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 July 10, 1980, Respondent's fuel inspector took a sample of gasoline being sold as unleaded from Respondent's service station in Mascotte, Florida. This sample was subsequently analyzed at Petitioner's mobile laboratory in Mineola and at its permanent facility in Tallahassee. Both tests indicated a lead content in excess of .084 grams per gallon, which exceeds the maximum permissible lead content of .05 grams per gallon established by Rule 5F- 2.01(1)(j), Florida Administrative Code. Petitioner's inspector then returned to Respondent's service station where he issued a stop-sale order on the substandard gasoline. The inspector offered the station manager the option of losing the 1,500 gallons of remaining fuel through confiscation or the posting of a $1,000 cash bond. The $1,000 figure was based on station records which indicated that over $1,000 of the substandard fuel had been sold. Respondent's station manager elected to post the $1,000 cash bond and retain the substandard fuel, which was subsequently pumped into another tank and sold as leaded regular gasoline.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner enter its order declaring forfeiture of Respondent's $1,000 bond posted in lieu of confiscation of substandard gasoline. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of October, 1980. R. T. CARPENTER Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1980. COPIES FURNISHED: Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 M. H. McNeilly, President Saveway Oil, Inc. 2605 N. 50th Street Tampa, Florida 33619 John Whitton, Chief Gasoline and Oil Section Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301
Findings Of Fact On October 6, 1987, a petroleum inspector from the Department of Agriculture and Consumer Services conducted a routine inspection of the gas pumps at Balm Grocery at Balm, Florida. When a sample was taken from the Chevron unleaded, the inspector immediately noticed an unusual color for unleaded gasoline. A subsequent analysis of this sample showed the sample contained 3.3 grams of lead per gallon. Upon receipt of the lab report, the inspector placed a stop sale order on the pump and locked the pump. Shortly thereafter, the owner of Balm Grocery posted a bond of $1000 to get the stop sale lifted and commenced selling gas from this tank as leaded gasoline. Prior to the stop sale posted on this pump, more than 1000 gallons of polluted gasoline had been sold by Respondent as unleaded plus gasoline.
The Issue There are three legal issues which remain for determination: (1) Whether Florida Petroleum has standing in this case; (2) Whether proposed rule 62-770.220(3)(b), requiring constructive notice to residents or business tenants of real property into which the temporary point of compliance is allowed to extend is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(c), Florida Statutes; and (3) Whether proposed rule 62-770.220(4), requiring additional constructive notice of the status of site rehabilitation is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(c), Florida Statutes.i
Findings Of Fact On December 23, 2004, the Department published a Notice of Proposed Rulemaking regarding amendments to Florida Administrative Code Chapter 62-770. In particular, proposed rule 62-770.220(3)(b) and (4), provides: Subsequent Notice of Contamination Beyond Source Property Boundaries for Establishment of a Temporary Point of Compliance (TPOC) - Prior to the Department authorizing a temporary extension of the point of compliance beyond the boundary of the source property (i.e., the location from which the contamination originates) in conjunction with Natural Attenuation Monitoring pursuant to Rule 62-770.690, F.A.C., or Active Remediation pursuant to Rule 62-770.700, F.A.C., the PRSP shall provide the following notices: * * * (b) Constructive notice to residents [if different from the real property owner(s) notified pursuant to paragraph 62- 770.220(3)(a), F.A.C.] and business tenants of any real property into which the point of compliance is allowed to extend. Such constructive notice, which shall include the same information as required in the actual notice, shall be provided by complying with the following: * * * Status Update 5-Year Notice - When utilizing a TPOC beyond the boundary of the source property to facilitate natural attenuation monitoring or active remediation, an additional notice concerning the status of the site rehabilitation shall be similarly provided every five years to [the classes of] those persons who received notice pursuant to subsection 62-770.220(3), F.A.C., unless in the intervening time, such persons have been informed that the contamination no longer affects the property into which the point of compliance was allowed to extend. * * * (The language in brackets was added pursuant to the Department's Notice of Change and "those" was deleted.) The proposed rule implements Section 376.3071, Florida Statutes. The specific authority for the proposed rule is Sections 376.303 and 376.3071, Florida Statutes. On February 2, 2005, the Environmental Regulation Commission held a public hearing on the proposed rules and approved the proposed rules with certain amendments. On February 14, 2005, Florida Petroleum filed a Petition for Determination of Invalidity of Proposed Rule (Petition) challenging the validity of proposed amendments to proposed rule 62-770.220(3)(b) and (4). The Petition was filed pursuant to Section 120.56(1) and (2), Florida Statutes, and in each instance, Florida Petroleum alleges that the proposed rule violates Section 120.52(8)(c), Florida Statutes. On March 4, 2005, the Department published a Notice of Change regarding the above-referenced Notice of Proposed Rulemaking. With respect to the pending proceeding, the Notice of Change reflects revisions to language of proposed rule 62- 770.220(4), which are not subject to challenge. See Finding of Fact 1. On May 16, 2005, without objection, official recognition was taken of the Department's Notice of Proposed Rulemaking and Notice of Change. Florida Petroleum is a Florida voluntary, non-profit trade association, which comprise, in part, approximately 194 Marketer Members who own and/or operate petroleum storage system facilities in Florida. Florida Petroleum’s purposes include providing representation on behalf of its members in legislative and regulatory matters before the Florida legislature and agencies. Florida Petroleum routinely represents its members in rule development proceeding and other regulatory matters before the Department of Environmental Protection, Department of Revenue, and Department of Agriculture and Consumer Services. Florida Petroleum’s By-Laws state that its purposes include advancing the business concerns of its members, pooling the energy and resources of its members, and communicating with elected officials at the national, state, and local levels of government. Towards those ends, Florida Petroleum has represented it members before the Florida Legislature in matters relating to the regulation of petroleum facilities under Chapter 376, Florida Statutes, and has appeared before the Department in rulemaking proceedings involving the regulation of petroleum cleanups, and the various state restoration funding assistance programs. The subject matter of the rule at issue is within the general scope of interest and activity of Florida Petroleum, in particular, its marketer members, who own or operate facilities that store petroleum products for consumption, use, or sale. Florida Petroleum submitted oral and written comments, recommendations, objections, and proposed amendments to the Department and the Environmental Regulation Commission in connection with the rules at issue in this case. A substantial number of Florida Petroleum marketer members are "persons responsible" for assessment and remediation of one or more petroleum-contaminated sites. Florida Administrative Code Chapter 62-770, governs the remediation of petroleum-contaminated sites. A substantial number of Florida Petroleum’s marketer members are "persons responsible" for assessment and remediation of sites identified by the Department as "confirmed" or "suspected" sources of contamination beyond the boundary of the facility (i.e., "off-site contamination"). In certain instances, the Department's rules allow for the use of No Further Action with Conditions procedures in cases of petroleum contamination where applicable regulatory requirements are met because the use of conditions, such as institutional and engineering controls, may be more cost- effective than active remediation. As of February 2005, the Department estimated that it had reports of approximately 23,000 petroleum-contaminated sites. In 2004, the Department received an estimated 539 Discharge Report Forms in connection with petroleum storage facilities. As of March 2005, the Department had information indicating that approximately 2,000 "off-site" properties have been affected by contamination. Assessment Reports filed with the Department indicate that a substantial number of these sites may have been affected by discharges of petroleum or petroleum products. Petroleum discharges will in all likelihood continue to occur in the future at petroleum facilities. Petroleum discharges will in all likelihood continue to affect off-site properties in the future.
Findings Of Fact This case was presented for hearing based upon the request for formal Subsection 120.57(1), Florida Statutes, hearing, made by Arnold S. Rogers, President, One Stop Oil Company. The matters to be considered are as generally indicated in the Issues statement to this Recommended Order. The hearing was conducted on March 10, 1982. The Petitioner, State of Florida, Department of Agriculture and Consumer Services, is an agency of State government which has the obligation to inspect petroleum products in keeping with the provisions of Chapter 525, Florida Statutes (1980). The Respondent is a corporation which sells petroleum products in the State of Florida at an outlet located at 1238 Broward Road, Jacksonville, Florida. On November 25, 1981, a sample of the petroleum product kerosene was taken at the aforementioned location operated by the Respondent, which is known as Station No. 10. A subsequent analysis on December 3, 1981, revealed a "flash point" of 78F. This reading was below the 100F minimum "flash point" as set forth in Rule Subsection 5F-2.01(2)(b), Florida Administrative Code. The results of the analysis were made known to the Respondent on December 3, 1981. Prior to that date, the Respondent was unaware of this reading below standard related to the "flash point." (A second kerosene sample was taken on December 3, 1981. That sample continued to reveal a "flash point" below 100F.) In view of the results of the November 25, 1981, test related to the kerosene at the Respondent's station, a "Stop Sale Notice" was issued to the Respondent. This was issued in keeping with Section 525.06, Florida Statutes (1980). In lieu of confiscation, a bond was posted in an approximate amount, $4,900.00. This bond amount had been prescribed by an employee for the Petitioner by mistake and subsequent to that time, all of the bond amount, with the exception of $1,000.00 was refunded to the Respondent. It is the $1,000.00 amount that remains in dispute at this time. In excess of 1,800 gallons of the contaminated kerosene had been sold prior to the discovery of this problem. The kerosene in the sample tank in question had been contaminated with gasoline and this combination lowered the "flash point." Kerosene with a low "flash point" is a hazardous substance, particularly when burned in kerosene stoves. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Rule Subsection 5F-2.01(2)(b), Florida Administrative Code, makes it a violation to offer for sale kerosene which has a "flash point" of less than 100F. The Respondent offered and in fact did sell kerosene whose "flash point" was established to be 780F, and in the face of such action, violated the aforementioned Rule. This violation would subject the Respondent to the confiscation of the kerosene remaining in the tank in accordance with the penalty provisions set forth in Rule Subsection 5F-2.02 (2)(c) , Florida Administrative Code. In lieu of such confiscation, the Petitioner could accept a bond, not to exceed $1,000.00 which could be converted into a fine, in the face of a finding of a violation of the petroleum standards law. Respondent posted the $1,000.00 bond and that bond amount can be taken as a fine levied against the Respondent for the violation as found. The Petitioner being found in violation, the only matter to be determined is the proper amount of fine to be imposed. The Petitioner is of the persuasion that the full fine should be levied in view of the clear violation; the hazard posed by offering for sale and selling kerosene with a substandard "flash point," and the cost of prosecution to include appearances by consul and witnesses in Jacksonville, Florida, when counsel and those officials were required to travel from Tallahassee, Florida. Respondent, through its representative, detailed the steps that were taken to ensure against a violation of the "flash point" standards related to kerosene. The rendition of facts establishes that the tank in which the subject kerosene had been placed had immediately prior to that placement, contained unleaded premium gasoline. That gasoline had been pumped out; the tank tilted to allow the residue to collect in one confined area and the tank flushed out by water. The delivery tanker, which belonged to the Respondent and which delivered the kerosene, had been used to transport gasoline before that delivery; however, that tanker had been subjected to a purging to remove the gasoline. Respondent was unsure about the condition of the kerosene which had been sold to the Respondent by an outside source and transported by the Respondent's tanker, as this relates to a "flash point" violation prior to delivery. Notwithstanding the efforts by the Respondent to protect against such a violation of "flash point," Respondent concedes that as much as one quarter inch of gasoline residue could have remained in the storage tank at the time kerosene was offered for sale and sold. While Respondent recognizes that the violation established herein is one which does not require proof of "intent" in order to be found responsible for such violation, Respondent, nonetheless, asks that the fine be less than the full $1,000.00, particularly so in the face of the depressed market conditions related to its business. Finally, Respondent, in answering Petitioner's argument related to the cost of prosecution, states that it would have attended a hearing in Tallahassee, Florida, if necessary. Based upon a full consideration of the facts, conclusions of law and matters in aggravation and mitigation, it is RECOMMENDED: That a final order be entered finding the Respondent in violation of Rule Subsection 5F-2.01(2)(b), Florida Administrative Code, and subjecting Respondent to the penalties set forth in Section 525.06, Florida Statutes (1980), and imposing a fine of $750.00, with $250.00 of the bond amount to be refunded to the Respondent. DONE and ENTERED this 19th day of March, 1982, in Tallahassee, Florida. CHARLES C. ADAMS 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 19th March, 1982.
The Issue Whether Petitioner is entitled to participate in the Reimbursement Program established under the State Underground Petroleum Environmental Response (SUPER) Act of 1986 for the petroleum terminal owned by Gulf Products Division of BP Oil Company at Port Everglades, Florida.
Findings Of Fact The State Underground Petroleum Environmental Response (SUPER) Act of 1986 provides for the expeditious cleanup of sites contaminated as the result of storage of petroleum or petroleum products. The Reimbursement Program, found in Section 376.3071(12), Florida Statutes, provides for reimbursement of the allowable costs of site rehabilitation contaminated as a result of a discharge related to the storage of petroleum or petroleum products from a storage tank, or its integral piping or dispensing system. The Reimbursement Program does not provide for reimbursement of cleanup costs for discharges related to the transportation or disposal of petroleum or petroleum products. The site at issue in this proceeding is a terminal facility used for the storage of petroleum and petroleum product located at 1500 Southeast 26th Street, Port Everglades, Florida. This facility is referred to as Gulf Facility No. 46888 and DER Facility No. 068732278 (Gulf Terminal). The subject terminal facility is one of fourteen petroleum storage terminals located at Port Everglades, Florida. Petroleum and petroleum products come to the terminal by ship and are pumped from the ship through permanent pipelines to the large aboveground storage tanks located at the facility. The petroleum and petroleum products are stored in these large tanks until it is time for the product to be distributed to the end user. The Gulf Terminal contains eighteen storage tanks whose total capacity is 650,000 barrels of petroleum or petroleum products. These tanks vary in size, with the smallest having a capacity of 10,000 barrels and the largest having a capacity of 80,000 barrels. One barrel equals 42 gallons. The primary activity of the terminals at Port Everglades is to store petroleum or petroleum products. None of the terminals at Port Everglades, including the Gulf Terminal, refines or produces petroleum or petroleum products. Operation of this facility began in 1946. Petitioner, as the successor to the Gulf Oil Corporation, owned and operated the facility until February 1, 1985, when it sold the facility to BP Oil, Inc. As the previous owner of the facility, Petitioner performed an environmental audit which revealed petroleum hydrocarbon contamination at the site. Petitioner is responsible for the cleanup and is entitled to reimbursement of the allowable costs of the cleanup if the site is eligible to participate in the reimbursement program. Any contamination of the soil and groundwater at the site was caused by discharges of petroleum or petroleum products, water contaminated with petroleum or petroleum product or sludges which consist predominately of petroleum or petroleum product constituents. Based on hydrogeological assessment information, Petitioner determined that response action, including ground water cleanup activities, was required at the site. Petitioner hired independent contractors to conduct the response action. In 1986, Petitioner designed a recovery system for petroleum and petroleum product and a ground water treatment system at the site. Through February, 1989, the recovery system had recovered over 12,000 gallons of petroleum or petroleum products, which constitutes the recovery of between 60%- 70% of the total amount in the ground. Through November 1989, Petitioner had expended in excess of $560,000 on its response action at the Gulf Terminal. Petitioner advised Respondent of its response action at the site by letter dated January 6, 1988. Petitioner submitted documentation to Respondent concerning hydrogeological assessment at the site which included field and laboratory work and investigation performed for the site from 1984 to the present. Pursuant to the requirements of SUPER Act, Petitioner notified Respondent of its intention to seek reimbursement for money spent conducting response action in accordance with Chapter 17-70, Florida Administrative Code, with regard to petroleum and petroleum product contamination at the site. Petitioner's notice to Respondent was timely and was procedurally correct. On July 13, 1989, Respondent issued its Order of Determination of Ineligibility concerning Petitioner's request for reimbursement. As stated in this order the initial basis for Respondent's denial of eligibility was: The determination is based on the fact that the contamination was not related to the storage of petroleum or petroleum products. Sources of contamination at this site include tanker trucks, an oil/water separator, a holding pond, and crude oil and tank-bottom sludge disposal pit. These items are not petroleum storage systems as defined in Section 376.301 F.S. therefore (sic), this site is not eligible for reimbursement under the SUPER Act. ... Respondent clarified its Order of Ineligibility by a Notice to Amend and Clarify dated November 14, 1989, which provides, in pertinent part, as follows: The notice of denial provides that the site is being denied due to the fact that the disclosed sources of contamination are not petroleum storage systems. One of the criteria for being a petroleum storage system is that it be used or intended to be used for storage of petroleum or petroleum product. It is the criteria that the Department contends is not met in this case; i.e., that the discharges were not intended for storage. Section 376.3071(4), Florida Statutes, specifically limits the use of the Environmental Protection Trust Fund to incidents of inland contamination related to storage of petroleum or petroleum product. * * * The Department recently became aware that prior to 1983, contaminated water was disposed of directly from tanks at the site with no pretreatment by an oil/water separator. As with the disposal of oil and sludge to a pit, the act of intentionally disposing of contaminants to the ground is not "related to storage" as required by Chapter 376, Florida Statutes. * * * Wherefore, The State of Florida Department of Environmental Regulation hereby requests that the Hearing Officer allow for the amendment of the notice of denial of eligibility to include the following basis for denial: Contamination at the site is related to the disposal of petroleum or petroleum product, or water contaminated with petroleum or petroleum products. Disposal activities including the intentional discharge and disposal of contaminated water and/or fuel from tanks, oil water separators and sump areas, the intentional discharge and disposal of contaminated water to a percolation pond, the intentional discharge and disposal of oil and sludge to a disposal pit, and the intentional discharge and disposal of fuel to the ground at the loading rack. Among the causes of contamination of the Gulf Terminal are accidental overfills of tanks and leaks from an integral pipeline. Absent any other source of contamination, the discharges that occurred at the Gulf Terminal due to these causes would be eligible for the reimbursement. Respondent has determined, however, that the following additional sources of contamination render the entire response action ineligible for reimbursement: Discharges of dissolved hydrocarbon molecules contained in water which accumulated in storage tanks; Discharges of petroleum or petroleum products at the loading rack at the terminal; and The discharge of crude oil and of crude oil tank bottoms. TANK OVERFILL During the operation of the Gulf Terminal, petroleum and petroleum products have been accidentally discharged onto the ground. In 1955, an unknown quantity of petroleum or petroleum products was accidentally discharged onto the ground in the areas of tanks 104 and 105 as a result of these tanks being over- filled. Following this massive spill, between 5,000 - 10,000 barrels of product was recovered, while an unknown quantity could not be recovered. PIPELINE LEAK Since 1955, approximately 15,000 additional barrels of petroleum or petroleum products were leaked from an underground pipeline that is integral to the storage system in an area between the loading rack and tank 101, extending toward the west to between tanks 110 and 102. This is the vicinity where the heaviest free floating petroleum contamination exists. DISCHARGE OF CONTAMINATED WATER Florida has adopted the standard code for the design of aboveground storage tanks prepared by the American Petroleum Institute (API-650). The tanks at the Gulf Terminal are in compliance with API-650. The accumulation of water in storage tanks is a problem associated with the storage of petroleum or petroleum products in the storage tanks at the Gulf Terminal and at the other terminals at Port Everglades. Water accumulates in the storage tanks from rainfall and from condensation. The records of the US Department of Commerce, National Oceanic and Atmospheric Administration for Station 08063163 (Fort Lauderdale, Florida) accurately depict the rainfall levels at the terminal facility. The total annual rainfall levels are as follows: 1980, 69.67 inches; 1981, 57.9 inches; 1982, 82.92 inches; 1983 75.16 inches; 1984, 59.4 inches; 1985, 63.74 inches; 1986, 64.14 inches, 1987, 58.50 inches; 1988 40.66 inches. Because water is heavier than petroleum and petroleum products, the water accumulates at the bottom of the tanks. It is essential to the proper storage of the petroleum or petroleum products that the water be removed for at least three reasons. First, if the water is not removed, the tanks would eventually become filled with water instead of product. Second, the product contaminated by water, particularly fuel for motor vehicles and aircraft, would not meet specifications. Third, water in the tanks speeds the corrosion of the tank. In order to remove this water that accumulates at the bottom of the storage tanks, a water draw-off mechanism located at the bottom of the tank is a design feature of API-650. When water accumulates in the bottom of the tank, the water is drained out through the water draw-off mechanism. The storage tanks located at the Gulf Terminal are equipped with such a water draw-off mechanism. Throughout the existence of the facility, accumulated water in the tanks has been controlled by discharging the water through the water draw-off mechanism. From 1948 to 1980, water was drained out of the tanks through the water draw-off mechanism and on to the ground. Beginning in 1980, the water was taken from the tanks through the water draw-off mechanism and piped to a catch basin where an effort was made to recover petroleum product by skimming the water before the water was discharged into the ground. Since 1985, the water taken from the tanks through the water draw-off mechanism has been treated by an oil/water separator which effectively removes all petroleum product before the water is discharged. The purpose of the oil/water separator is to separate petroleum product from water so that the petroleum product can be returned to the storage tank and the water can be discharged. This process serves to prevent the discharge of petroleum product. Up to 1988, the discharges to the ground from the oil/water separator at the Gulf Terminal accumulated in a holding pond. In 1988, the holding pond was eliminated and the water discharges from the oil/water separator were routed to a holding tank prior to treatment by an air stripper and subsequent discharge into the canal adjacent to the property. At all times since 1983, the water drawn out of the tanks has been the subject of permits issued by Respondent which approve the use of the oil/water separator. While it is necessary for the operation of the storage tanks that water be drawn from the tanks, it is not necessary for the operation of the storage tanks for the contaminated water to be discharged onto the ground. The purpose of discharging the water was to dispose of it. There was no intent to recover the contaminated water after it was discharged. Any water coming out of a storage tank is contaminated with dissolved petroleum. It may have solids in it and floating residue or product on it. Between 1946 and 1980, when this water from the storage tanks was discharged to the ground, any contaminates in the water would be discharged along with it. Water has been drained from tanks numbered 101, 106, 109, 110, 111, 112 113, and 114 on a daily basis. The other tanks are drained after a rainfall. An average of one or two inches of water was drained off each time it rained. Following a rainfall, in excess of 30 barrels of water would be drained from the smaller tanks, while approximately 300 barrels of water would be drained from the larger tanks. The discharge of the water drawn from the storage tanks contributed to the contamination of the groundwater at the Gulf Terminal. This type contamination exists in almost all areas of the site. Petitioner was unable to distinguish the contamination to the groundwater caused by the discharge of contaminated water drawn from the storage tanks from contamination to the groundwater which resulted from other causes. Petitioner failed to establish that the contribution to this contamination to the groundwater by the discharge of the contaminated water drawn from the storage tanks was insignificant. THE LOADING RACK The loading rack at the Gulf Terminal is the apparatus by which the petroleum in the storage tanks is dispensed to tanker truck for distribution to consumers. The loading rack is a series of dispensers which operate much like at a service station except that it fuels tanker trucks rather than automobiles. The loading rack is connected by permanent integral piping to the storage tanks. The purpose of the loading rack is to load the transport trucks. Without the storage tanks at the terminal, there would be no need for a loading rack. Over the years, discharges have occurred in the loading rack, usually as the result of human error. Occasional overfills in the 10-15 gallon range have occurred while a truck was being filled. This type discharge is analogous to a spill which occurs at a service station when an automobile is being fueled and the fuel splashes back or overfills the automobile's fuel tank. The supervisor of Respondent's Reimbursement Section testified that this type discharge, absent other causes, would probably be eligible for reimbursement. This testimony conflicts with the official position taken by Respondent in this proceeding that the cleanup caused by the operation of the loading rack is ineligible for reimbursement. In other incidents, small amounts of product ranging from a teacup to less than a gallon, were occasionally discharged while a truck was being drained of one type of product so that the truck could transport another type of product. The loading rack is an integral part of the storage system because without a means of moving the product out of storage and into the distribution system, the storage tanks could not provide a meaningful function. The discharges which occurred at the loading rack during the course of both loading and unloading trucks are insignificant when compared with the other sources of contamination at the site. TANK BOTTOMS In 1956, a storage tank was emptied for the purpose of switching product from crude oil to diesel fuel. At the time the change in product was made, approximately 1000 barrels of sludge and crude oil were disposed of in a pit adjacent to tank 101. Also disposed of was the tank bottom, a hard tar residue which formed at the bottom of the tank. Oil occasionally oozes to the surface in the vicinity of the pit adjacent to tank 101, but the area around the sludge pit has not been found to be contaminated, and the tank bottom has remained a hardened mass. Each tank on the site also had a pit alongside the tank where a tank bottom was disposed. Although it was necessary to remove the sludge and the tank bottoms to be able to properly operate the storage tanks, it was not necessary for the operation of the storage tanks to dump the sludge and the tank bottoms onto the ground or into the pits. The purpose of discharging the crude oil sludge and the tank bottoms was to dispose of them. There was no intent to recover the crude oil sludge or the tank bottoms water after they were discharged. CONTAMINATION PHASES The contamination at the site exists in three phases, floating petroleum product contamination, dissolved petroleum groundwater contamination, and sludge contamination. The contamination in the form of floating petroleum was caused by discharges of petroleum or petroleum products following the tank overfills, the pipeline leaks, and spills at the loading rack. The dissolved groundwater contamination was caused by two primary sources. First, the dissolved groundwater contamination was caused by floating petroleum product coming into contact with groundwater. Upon such contact, molecules from the floating petroleum would dissolve into the water, causing contamination. Second, the dissolved groundwater contamination was caused by the discharge of the contaminated water that had been drawn off from the storage tanks. Petitioner was unable to distinguish the dissolved groundwater contamination that was caused by accidental discharges of product from the contamination caused by the discharge of the contaminated water. Petitioner was also unable to establish that the dissolved groundwater contamination caused by the contaminated water was insignificant. The sludge contamination was caused by the discharge of crude oil and crude oil tank bottoms. CLEANUP The sludge contamination is capable of being cleaned up separately from the free floating petroleum contamination and the groundwater contamination at the site. The sludge contamination is separate and distinct from the other contamination at the site both as to the location of the contamination and as to the methods that would be employed to clean up that type of contamination. Free floating petroleum contamination is recovered by drawing down the water level in a well by use of a pump so that a cone of depression is created. The cone of depression is a funnel shaped depression that causes the surface of the underground water table to bend down towards the well in all directions. The free floating petroleum which flows on top of the underground water surface is then recovered by use of a second pump. The free floating petroleum is then pumped into a holding tank where the recovery of free floating petroleum is completed. The recovery of free floating petroleum contamination is usually more expensive to accomplish than groundwater cleanup because more equipment is required. Groundwater cleanup usually takes a longer period of time to accomplish than does free floating product cleanup. The same or a similar well used to recover the free floating petroleum can also be used for the cleanup of contaminated groundwater. The contaminated groundwater is pumped from the well into an oil/water separator where the water and dissolved petroleum is separated, water is taken off the bottom, put through an air stripper, and is returned to the ground through an infiltration unit. Respondent has previously found sites eligible for the reimbursement program even though those sites experienced discharges which alone would render a site ineligible for the reimbursement program. The basis for finding these sites eligible was that the ineligible discharges had become indistinguishable from the eligible discharges and were insignificant by comparison. Petitioner has complied with all procedural requirements for seeking eligibility contained in Section 376.3701, Florida Statutes. Respondent has not been denied access to the Gulf Terminal. Respondent has made no determination that there has been gross negligence in the maintenance of the petroleum storage system locate at the Gulf Terminal. Petitioner has not willfully concealed the existence of a serious discharge at the Gulf Terminal. Petitioner has not falsified any inventory records maintained with respect to the Gulf Terminal. Petitioner has not caused any intentional damage to the Gulf Terminal. The Gulf Terminal is not owned by the federal government. Petitioner's challenge to Respondent's order of ineligibility was filed in a timely manner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is Recommended that Respondent enter a final order which determines that the subject site is eligible to participate in the reimbursement program for the cleanup of the free floating petroleum contamination, but that the subject site is ineligible to participate in the reimbursement program for the cleanup of the sludge contamination and for the cleanup of the groundwater contamination. RECOMMENDED this 20th day of July, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1990. APPENDIX TO RECOMMENDED ORDER, CASE 89-4521 The following rulings are made on the proposed findings of fact submitted by Petitioner in its Supplemental Proposed Recommended Order. The proposed findings contained in paragraphs 1-16, 18-25, 27-30, 33, 36-42, 44, 47-50, and 53-54 of the Supplemental Proposed Recommended Order are adopted in material part by the Recommended Order. The proposed findings contained in paragraphs 17, 31-32, 46, and 51-52 of the Supplemental Proposed Recommended Order are rejected as being contrary to the findings made and to the conclusions reached. The proposed findings contained in paragraph 26 of the Supplemental Proposed Recommended Order are adopted in part and are rejected in part as being unnecessary to the conclusions reached. The proposed findings contained in paragraph 34 of the Supplemental Proposed Recommended Order are rejected as not being established by the greater weight of the evidence. The testimony cited by Petitioner in support of these proposed findings do not establish the proposed findings. The proposed findings conflict with the contents of the Report of Ground-Water Quality Assessment accepted into evidence as Respondent's Exhibit 1. The proposed findings contained in paragraphs 35 , 43, and 45 of the Supplemental Proposed Recommended Order are rejected to the extent the proposed findings conflict with the findings made and the conclusions reached. The following rulings are made on the proposed findings of fact contained in Respondent's Proposed Recommended Order and in Respondent's Supplemental Proposed Recommended Order. The proposed findings of fact in paragraphs 1-5, 7-19, 23, 25-31, 33-34, 39- 52, 55-68, and 70-72 of Respondent's Proposed Recommended Order are adopted in material part. The proposed findings of fact in paragraphs 6, 20-22, 24, 32, 35-38, and 69 of Respondent's Proposed Recommended Order are rejected as being subordinate to the findings made or to the conclusions reached. The proposed findings of fact in paragraphs 53 and 54 of Respondent's Proposed Recommended Order are rejected because the testimony referred to by Respondent in support of the proposed findings relates to amounts discharged following rainfalls, not amounts discharged daily. The proposed findings of fact in paragraphs 1-14 of Respondent's Supplemental Proposed Recommended Order are rejected as being subordinate to the findings made or to the conclusions reached. COPIES FURNISHED: E. Gray Early, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert W. Wells, Esquire Ignacio E. Sanchez, Esquire KELLEY, DRYE & WARREN 2400 Miami Center 201 South Biscayne Boulevard Miami, Florida 33131 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
