The Issue The issue is whether a permit should be issued to Respondent, Lake Environmental Resources, LLC (LER), authorizing the construction and operation of a construction and demolition debris disposal facility in unincorporated Lake County, Florida.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties LER, whose mailing address is Post Office Box 2872, Windermere, Florida, is a limited liability company authorized to do business in the State. LER's principals are Linwood Brannon and Richard Bazinet, both of whom have had at least ten years' experience in the operation and construction of demolition debris disposal facilities. The Department is an agency of the State that is authorized under Chapter 403, Florida Statutes (2005)2, to evaluate applications and issue permits for construction and demolition debris disposal and recycling facilities. The permit in issue here was processed, reviewed, and approved for issuance by the Department's Central District Office in Orlando, Florida. Petitioners Miriam Resto and Jim Taylor did not appear at the final hearing or otherwise present any evidence as to where they resided or how their substantial interests would be determined by the issuance of a permit. Petitioner Timothy L. McCormack resides at 11321 Valley View Road, Howey-in-the-Hills, Florida. Mr. McCormack's home is "a little over a mile" north-northwest of the proposed facility. His concern with the proposed facility is generally over contamination from the landfill, and not contamination occurring at the property. Petitioner John A. Mapp, Jr., resides at 21307 County Road 561, Clermont, Florida, which is approximately one-half mile from the proposed facility. Mr. Mapp's home is upgradient from the facility and consequently he has no "individual concerns" as to how the proposed facility would affect his home. He is concerned, however, with potential groundwater contamination from the facility. Petitioners David and Lisa Cimini did not testify at the final hearing or otherwise present any evidence as to where they resided or how their substantial interests would be determined by this proceeding. According to the Partial Pre- Hearing Stipulation filed by Respondents, however, they reside at 21423 County Road 455, Clermont, Florida, which is near the proposed facility. Background On July 26, 2005, LER filed an application with the Department for a permit authorizing it to construct and operate a facility for construction and demolition debris disposal and recycling in an unincorporated area of the County. A lengthy definition of construction and demolition debris is found in Florida Administrative Code Rule 62-701.200(27), which reads as follows: discarded materials generally considered to be not water soluble and non-hazardous in nature, including but not limited to steel, glass, brick, concrete, asphalt material, pipe gypsum wallboard, and lumber, from the construction or destruction of a structure as part of a construction or demolition project or from the renovation of a structure, including such debris from construction of structures at a site remote from the construction or demolition project site. The term includes rocks, soils, tree remains, trees, and other vegetative matter which normally results from land clearing or land development operations for a construction project; clean cardboard, paper, plastic, wood, and metal scraps from a construction project; effective January 1, 1997, except as provided in Section 403.707(12)(j), F.S., unpainted, non-treated wood scraps from the facilities manufacturing materials used for construction of structures or their components and unpainted, non-treated wood pallets provided the wood scraps and pallets are separated from other solid waste where generated and the generator of such wood scraps or pallets implements reasonable practices of the generating industry to minimize the commingling of wood scraps or pallets with other solid waste; and de minimus amounts of other non-hazardous wastes that are generated at construction and demolition projects, provided such amounts are consistent with best management practices of the construction and demolition industries. Mixing of construction and demolition debris with other types of solid waste will cause it to be classified as other than construction and demolition debris. The facility will be located on a 44.33-acre site one- half mile west of State Road 561, off County Road 455, in an unincorporated part of Lake County. Based on this description, it appears that the facility will be located east of Howey-in- the Hills, west of Tavares, and approximately half-way between Astatula and where State Road 561 crosses the Florida Turnpike to the southwest. The site presently has an active sand mine (borrow pit) that covers an area of approximately twenty-two acres. The facility intends to recycle metal, concrete, asphalt, wood chips, and PVC (polyvinyl chloride) and will serve areas in Lake County and nearby communities. In response to LER's initial application, the Central District Office submitted a Request for Additional Information dated August 22, 2005, asking for additional well and site information, operations plan details, and financial assurance clarification. On October 20, 200, LER submitted its Response to Request for Additional Information. While the application was being processed, Mr. Cimini advised the Department that two additional wells surrounded the property, including one that had recently been installed on property owned by Mr. Gary Sprauer that lies within five hundred feet of the limits of waste disposal of the facility. On November 18, 2005, the Department submitted an additional Request for Additional Information, in which it brought up the fact that Mr. Cimini had advised the Department of the existence of these wells. On November 28, 2005, LER submitted its Response to Request for Additional Information, in which it stated that only one well, which belonged to a Mr. Sprauer, had been drilled within five hundred feet of the proposed facility; that there was no electricity to the well; that the nearest residence was approximately seven hundred feet away; and that the well was not approved or being used as a potable water well. Therefore, LER asserted that the Department should not treat the Sprauer well as a potable water well subject to the five-hundred-foot setback from potable water wells for landfills established in Florida Administrative Code Rule 62-701.300(2)(b). LER's submittal provided additional information on the geology and operational aspects of its proposed facility. On December 6, 2005, LER submitted additional information in response to items discussed at a meeting held between the Department and LER on December 2, 2005. The submittal contained further information about potential drinking water wells around the proposed facility, and LER reasserted that the Sprauer well should not be treated by the Department as a potable drinking water well. Based upon its own investigation, however, the Department concluded that the Sprauer well "was a bona fide drinking water well for domestic supply." On January 6, 2006, Mr. Bradner, a Department solid and hazardous waste program manager who was assisting in the processing and review of the application, wrote a memorandum to the file confirming that the Department considered the application complete as of December 6, 2005. On February 10, 2006, LER provided additional hydrologic and operational information in order to try to convince the Department not to apply the five-hundred-foot setback to the Sprauer well. This information showed that the Sprauer well would be upgradient from the proposed facility. The Department allows waste to be placed within five hundred feet of an existing potable water well based upon site-specific conditions as demonstrated by an applicant. See Fla. Admin. Code R. 62-701.300(2)(b). On March 27, 2006, in response to the Department's comments on its submittal of this additional information, LER submitted further hydrologic and modeling information to support its contention that groundwater flowed away from the well belonging to Mr. Sprauer. On April 27, 2006, LER provided the Department with further refinement of its groundwater model to demonstrate that there would be no impact to the Sprauer well. On May 4, 2006, the Central District Office issued notice of its intent to approve the application and issue a permit to LER. Of significance here is the fact that the Department did not require LER to install a liner and leachate collection system. This was consistent with the terms of Florida Administrative Code Rule 62-701.730(4)(a), which does not require a liner unless the Department demonstrates that the facility is "reasonably expected to result in violations of ground water standards and criteria." On May 17, 2006, Petitioners filed their Petition challenging the issuance of the permit. As grounds, Petitioners alleged that there is a substantial risk that the surrounding groundwater will be contaminated by leachates from the facility, and that the Department should accordingly require LER to (a) install a liner and associated leachate recovery system in their facility and (b) post a surety bond necessary to maintain the system in good working order and to fund a toxic cleanup should it become necessary. The Proposed Project Among other things, the application included an engineering report, an operations plan, a geotechnical evaluation of the stability of the site, a hydrological investigation, a stormwater management plan, a reclamation and closure plan, and financial assurance documentation. These elements are required by Florida Administrative Code Rule 62- 701.730, which governs this type of application. The proposed facility is to be located on a 44.33-acre parcel in a rural area that has been the site of a sand and clay borrow pit. The pit has been mined for the last thirty years, has been permitted by Lake County as a mine since 1986, and before being used as a mine was the site of an orange grove. As explained by Mr. Golden, the proposed facility's project manager, the site is "high and dry" and "a good site for a landfill." The water table is at least one hundred feet below the ground surface. There is a confining layer of clays and sandy clays approximately one hundred fifty feet below the ground surface at the site of the proposed facility, and the layer has very low hydrologic conductivity, that is, 1,000 to 10,000 times less permeable than the surface sands. The Floridan Aquifer is approximately two hundred feet below ground surface. The horizontal velocity of the groundwater at the site is approximately two feet per year, and the vertical velocity about 1.3 inches per year. As a result, the groundwater monitoring system at the proposed facility would detect any contamination that might be emitted. In addition, approximately twenty feet of dry soils underlying the landfill would absorb whatever comes out of the landfill to begin with, just like a septic tank. The confining layer would be approximately one hundred to one hundred twenty feet below the landfill base and would be anywhere from twenty to forty feet deep. As a result, it is highly unlikely that any potential contaminants that hypothetically might be emitted from the facility would ever reach the Floridan Aquifer. The Proposed Permit On May 4, 2006, the Central District Office issued its intent to issue the permit. Attached to that intent to issue was a Draft Permit. The Draft Permit restricts disposal of solid waste exclusively to construction and demolition debris (as defined in the rule cited above) and requires LER to comply with an Operations Plan developed by LER. Among other things, the Operations Plan provides for operators trained in spotting and turning away unacceptable waste and other screening procedures to ensure nondisposal of unacceptable waste. The Operations Plan exceeds minimum Department rule requirements. The Operations Plan prohibits disposal of CCA (chromated copper arsenate) pressure treated wood and has a special screening procedure to ensure that these wood products do not come into the facility. The Draft Permit requires LER to install a system of groundwater monitoring wells that surround the property at both shallow and deep depths to detect any potential contaminants coming off of the site. Thus, LER will be required to monitor the surficial aquifer, the Floridan Aquifer, and adjacent wells to ensure protection of area groundwater. The wells will act as a form of early warning indicator so that corrective action can be undertaken in the event the wells show a potential threat to drinking water beyond the property boundary of the proposed facility. The Draft Permit requires two wells to be installed immediately to the north of the Sprauer well, even though it is upgradient from the site. To be conservative and prudent, the Department is requiring that the number of wells that LER must install be substantially greater than the minimum required under Department rules. Based upon the hydrologic evaluation and the proposed permit conditions, Mr. Golden concluded that LER has provided reasonable assurance that the proposed facility will not discharge pollutants in contravention of Department standards or rules. Mr. Bradner agreed with this conclusion and likewise concluded that LER had provided reasonable assurance that the proposed facility will comply with all of the required statutes and rules. The weight of the evidence supports these conclusions. The weight of the evidence also supports Mr. Golden's conclusion that based upon the hydrologic evaluation and the proposed permit conditions, the proposed facility will not be a source of contamination for wells within or greater than five hundred feet of the proposed facility. In the same vein, Mr. Bradner determined that the Sprauer well was the only existing potable drinking water well within five hundred feet. Both experts concluded that the Sprauer well would not be adversely impacted based upon the Department's review of the groundwater modeling data provided to it by LER. Finally, the weight of the evidence supports Mr. Golden's conclusion that, based upon the hydrologic evaluation and the proposed permit conditions, the Department should not require LER to install a landfill liner at the proposed facility. Mr. Bradner agreed with that conclusion. Petitioners' Objections In their Petition, Petitioners have raised the following objections to the issuance of a permit: That because the proposed facility would have no liner, the local environment and drinking water supplies would not be adequately protected from contamination; That the application significantly underestimates the amount of recharge to local aquifers; That the application ignores or underestimates the ecological fragility of the area; and That the location of the Sprauer well should require a reconfiguration of the footprint of the proposed facility. As relief, the Petition asks that the Department require a liner and associated leachate recovery system and adequate financial assurance to ensure proper operation and cleanup if necessary. During opening argument, Petitioners raised one more issue not previously raised in their Petition — - the potential cumulative impacts of the proposed facility in conjunction with two other landfills in the area. This allegation was not timely raised, however, and has been disregarded. The positions taken by Petitioners (other than cumulative impacts) appear to be interrelated, that is, the Department should require a liner because the area is ecologically fragile and recharge is greater than calculated by LER. In support of their position, Petitioners first presented the testimony of Mr. McCormack, who is engaged in the commercial nursery and landscaping business. Mr. McCormack identified the presence of CCA treated wood as his main concern from a contamination standpoint. His concern is that a possible spread of leachate will result from mingling the wood with rainwater or groundwater and that the surrounding groundwater (which ultimately flows into Double Run Springs, the Harris Chain of Lakes, and the Floridan Aquifer) would be adversely impacted. Mr. McCormack estimated that the edge of the Double Run Springs system was approximately 2,500 feet, or around one- half mile, from the site. He expressed the opinion that it was physically impossible to remove such wood prior to its being landfilled. Mr. McCormack conceded, however, that he was not an expert on landfill management or hydrology and had no personal experience with the operation of a landfill. There is specific language in LER's Operations Plan prohibiting the disposal of CCA treated wood and requiring best management practices to enforce the prohibition against the disposal of CCA treated wood. This requirement is mandatory, and not voluntary, and provides reasonable assurance that CCA treated wood would not be a potential source of contamination. The testimony of expert witnesses Bradner and Golden, who expressed this view, is accepted as being more credible on this issue. Petitioners also presented the testimony of Mr. Mapp, who critiqued the hydrological investigation performed by LER by asserting that the recharge to the Floridan Aquifer is four or five times the amount stated in the application. He also opined that LER's evapotranspiration rates were understated.3 Mr. Mapp is a systems analyst for Lockheed Martin Missiles and has a master's degree in business and an undergraduate degree in physics. While highly educated, Mr. Mapp has no prior experience in any kind of hydrologic, geologic, chemical, or similar types of analyses, or any analyses of the rate of transport of chemicals in the environment. The knowledge and opinions rendered in this case by Mr. Mapp were obtained through personal research after the permit application was filed. Mr. Mapp opined that LER's recharge calculations constitute a "significant discrepancy." He acknowledged, however, that his estimate of the true speed of downward flow of water at the site of the proposed facility was "just off the cuff" and did not factor in the effects of applying cover to, and the filling and capping of, the landfill. He did not know how fast particular contaminants may migrate through the groundwater or what volume of waste might be necessary to cause a violation of groundwater quality standards. He also could not give a specific calculation of where a contaminant might be located after a set period of years. Unlike the other experts in this case, the witness had not calculated Floridan Aquifer recharge rates or otherwise used Darcy's Law.4 Even if the permit application underestimated the recharge rate, the thickness of the confining layer below the base of the proposed facility, which was conservatively estimated, would cause groundwater to flow horizontally, not vertically, once the confining layer is reached. As explained by Mr. Golden, LER did not rely exclusively on the recharge calculations that Mr. Mapp relied upon in determining recharge rates. Separate information regarding the permeability of the confining layer provides additional support for the recharge calculations. Mr. Mapp also opined that LER's evapotranspiration rate calculations were underestimated, based upon his review of a study of a deforested site elsewhere in the Lake Wales Ridge. He assumed the evapotranspiration rate in that study (for a site located fifteen miles away) would be applicable to the site of the proposed facility, and he then assumed that the evapotranspiration rate identified in the permit application for the proposed facility would be applicable only to the properties adjacent to the proposed facility. There is, however, no scientific basis for drawing an analogy between the borrow pit that is the location of the proposed facility and the deforested site with different geological characteristics about which Mr. Mapp read in the study he relied upon for his conclusions. Furthermore, LER undertook site-specific analyses of the permeability of the soils underlying the site of the proposed facility, whereas Mr. Mapp's calculations were based upon assumptions drawn from a study of a site fifteen miles away. The testimony of Mr. Golden is found to be credible and persuasive on this issue. Finally, there was no evidence concerning Petitioners' contention that LER should post a surety bond necessary to maintain the system in good working order and to fund a toxic cleanup should it become necessary. Therefore, no modification to the permit in this respect is required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application of Lake Environmental Resources, LLC, for a permit authorizing the construction and operation of a construction and demolition debris disposal and recycling facility in unincorporated lake County. DONE AND ENTERED this 8th day of November, 2006, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2006.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Wayne Cassity, was a certified building contractor having been issued license C-6620. Respondent was the qualifying contractor for Cassity Construction, 5000 Rena Street North, St. Petersburg, Florida. On or about December 19, 1995, Respondent contracted with Mr. and Mrs. Ralph Thomas to build an addition to the back of their home located at 1537 Carson Circle Northeast, St. Petersburg, Florida. The contract provided that the construction project was to be completed in forty (40) working days, or about two months. The contract was later modified by agreement of the parties on January 26, 1995. Except for an increase in the cost of the project, the amended contract was substantially the same as the original contract. Under the terms of the modified agreement, the cost increased from $14,400.00 to $15,900.00 The increased cost resulted from changes in the plans that were necessary to comply with certain FEMA regulations. Under the terms of the agreement, payment for the work performed was to be made at various intervals during the construction project. The contract required that Mr. and Mrs. Thomas pay Respondent $3,300.00 upon execution of the contract; $5,040.00 after masonry work was completed; $5,040.00 after completion of framing; and $2,520.00 upon completion of the contract. In regard to Respondent's obligations, the contract provided in pertinent part the following: Furnish drawing to owner for approval. Obtain a building permit from the City of St. Petersburg. Remove and dispose of existing grass where the new addition is to be built. Remove and dispose of existing walls in spare room on east side of the new addition. Remove and dispose of existing 12'-0" sliding glass door. Furnish and install all material to con- struct a new concrete slab, approximately 19'-0' x 12' -0' made up of 3000 PSI con- crete, 16" x 16" footing with two no. 5 rebar continuous and 4" thick slab with 6" x 6" x 10 wire mesh on 6 mil visqueen. Furnish and install all material to con- struct exterior block wall for new addition Furnish and install all material to con- struct a new roof over new addition made up of 2" X 8" rafters 24" on center with 3/3" plywood. Overhangs to match existing house as close as possible. Furnish and install 90 lb. torch down roll roofing, for new room of new addition. (Entire flat room) Frame interior walls of new addition. Apply 1/2" drywall to interior of all walls and prepare for paint. Install electricity to new addition to include seven receptacles, four light switches and three overhead lights. Install rough plumbing for new bath to supply shower, toilet and sink. Install two new A/C ducts to new addi- tion tapping into existing trunk line. Under the terms of the contract, Mr. and Mrs. Thomas were to supply and install the following: toilet; sink; vanity; all doors; base trim; door trim; interior paint; exterior paint; carpet; bath floor tile; shower fixtures, exterior stucco; and exterior soffit. Notwithstanding the written contract terms, at some point prior to completing the project, the parties verbally agreed that the owners, not Respondent, would remove and dispose of the existing walls in the spare room and the sliding glass door. Additionally, the parties verbally agreed to reduce the price to be paid under the contract from $15,900.00 to $15,780.00. Although the written contract provided for increases and reductions pursuant to authorized change orders, no evidence was presented regarding the specific reason for the decrease in the construction cost. The Pinellas County Building Office issued the building permit to Respondent on December 18, 1994 and Respondent began work on the Thomas' project several days later. The Pinellas County Building Code requires contractors to call for inspection at various intervals during construction. This allows any code violations to be identified and corrected prior to completion of a given project. Although contractors are required to call for inspections, building inspectors sometimes make unrequested inspections. On January 10, 1995, an initial unrequested inspection was made of the Thomas construction project. Respondent's slab/footer work on the project was rejected by the inspector because it did not meet FEMA requirements. Another unrequested inspection was made by a Pinellas County inspector on January 25, 1995, and again the footer work was rejected. Respondent called for an inspection of the project on January 29, 1995. Pursuant to Respondent's request, an inspection of the work was made on February 17, 1995, by a Pinellas County building inspector. At the time of the February inspection, the footer work was in progress but not yet complete. Two or three days later, after the footer and slab were completed, the work passed inspection. The Thomas' made the first three payments to Respondent in accordance with the terms of the contract, but never made the final payment. On December 28, 1994, Respondent was paid $3,300.00 by Mr. and Mrs. Thomas. The second and third payments of $5,040.00 each were made on January 26, 1995 and February 10, 1995, respectively. The total payment paid to Respondent by the Thomas' was $13,380.00, and represents 85 percent of the total contract price. The percentage corresponds to the 85 percent of work completed by Respondent on the Thomas construction project. On March 28, 1995, Mr. and Mrs. Thomas notified Respondent in writing of their general dissatisfaction with his work. Specifically, the owners expressed a concern that Respondent had failed to complete his designated responsibilities under the contract. Mr. and Mrs. Thomas further indicated that Respondent failed to do a quality job. While several items were of concern to the owners, their primary concern was that the floor level of the new addition was not even with the existing structure. In order to placate the owners, Respondent agreed to return to the Thomas' home and perform the work which the Thomas' believed should have been done by Respondent. Respondent's attempts to comply with the Thomas' request were unsuccessful and attempts to satisfy the owners were futile. Despite the owners' personal dissatisfaction with Respondent's work, no competent and substantial evidence was presented regarding whether the actual work completed by Respondent was consistent with the approved plans and the actual contract. The contract between Respondent and Mr. and Mrs. Thomas contained a dispute resolution clause. According to that provision, "all disputes hereunder shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association." Mr. and Mrs. Thomas have failed to utilize the dispute resolution method prescribed in the contract. An investigative inspection was performed by a Pinellas County inspector on March 19, 1996, approximately one year after Respondent initially completed his work on the Thomas home. Typically, three types of inspections are conducted: construction, electrical, and roofing. However, the March 19, 1996 inspection was limited to a construction inspection, and did not include a roofing or electrical inspection. The construction inspection revealed three code violations: the framing for the roof was improperly anchored; the air flow duct was blocked by the insulation; and the window frames were not sealed. The Code violations discovered as a result of the March 19, 1996, inspection were not included in the Administrative Complaint filed against Respondent. On or about March 24, 1995, Respondent entered into a contract with B. G. Diehl to convert an apartment building to an Assisted Living Facility. The first payment under the contract was made on or about March 28, 1995. Work on the remodeling project began on March 28, 1995, although the permit was not obtained until the first week of May 1995. Respondent's failure to obtain the building permit was based on his belief that Ms. Diehl had verbal assurance from county or city officials that prior problems with permitting for this project had been resolved and that the permit would be issued. The Pinellas County Building Code requires that building permits be obtained by contractors prior to beginning a project. This requirement is directed to licensed contractors, and it is the responsibility of the contractor, not the property owner, to ensure that proper permits were obtained prior to beginning the Diehl construction project. The contract provided that the job would be complete on August 15, 1995, and also included a "time is of the essence" provision. The work was substantially complete by August 15, 1995, and certified for occupancy in October 1995. One of the reasons for the delay was the issuance of a Stop Work Order issued in April 1995. Ms. Diehl's dissatisfaction with Respondent was affected by and escalated when Respondent placed a lien against her property. Though Ms. Diehl indicated she was generally not satisfied with Respondent's work, no competent and substantial evidence was presented demonstrating that the work was not completed or performed in a workmanlike manner. During the course of the construction project there were numerous disputes between Ms. Diehl and Respondent. The primary dispute involved a work order which would have required Ms. Diehl to pay an additional $10,000-$20,000. The change was deemed necessary by Respondent after he consulted with the civil engineer employed by Ms. Diehl for this project. The civil engineer informed Respondent that the plans initially drawn by the engineer and which had been relied upon by Respondent in his bid would not work. Similarly, additional changes were required after Respondent conferred with the structural engineer retained by Ms. Diehl. These changes, at least in part, required a modification of the location of bathroom fixtures. The essence of Ms. Diehl's complaints regarding the work performed by Respondent involve changes that were made to the plans without her approval. However, Ms. Diehl met with Respondent, the civil engineer and the structural engineer, and was aware that the engineers knew and agreed that the changes were necessary. Ms. Diehl was responsible for the electrical work involved in this project, and approved Randy's Electric as the company to perform the electrical work required by the contract. Respondent subcontracted with Rainbow Gas Company to install the gas piping which was required for this remodeling project. The total contract amount for the Diehl construction project was $158,750.00. Ms. Diehl paid Respondent all payments except the last one and employed another contractor to complete the job. No evidence was presented indicating the amount of money Ms. Diehl paid to Respondent or the amount of money, if any, paid to the contractor who completed the work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner Pinellas County Construction Licensing Board enter a final order that finds that: Respondent did not violate the provisions of Chapter 89-504, Section 24(2)(d), (h)2., and (d), Laws of Florida, as alleged in Counts One, Two, and Four of the Administrative Complaint. Respondent violated the provisions of Chapter 89-504, Section 24(2)(n), Laws of Florida, as alleged in Count Five of the Administrative Complaint, and which assesses an administrative fine against Respondent in the amount of $100.00 for that violation. Respondent did not violate the provisions of Chapter 89-504, Section 24(2)(g) and (n), as alleged in Counts Six, Seven and Eight of the Administrative Complaint. Respondent did not violate Rule 2-15.003, Florida Administrative Code, as alleged in Count Nine of the Administrative Complaint. DONE and ENTERED this 4th day of June, 1996, in Tallahassee, Florida. CARLOYN S. HOLIFIELD, 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 June, 1996.
The Issue At issue is an agency decision which concluded that proposed alterations to the Florida Sun bulk cement transfer facility to be located in Ft. Pierce, St. Lucie County, Florida, do not constitute "modifications" or "substantial modifications" as those terms are defined by rule.
Findings Of Fact Mr. Benyon's letter of May 25, 1989, to counsel for Tuxedo provided, in pertinent part: The alterations are as follows: The plans delete the construction of the packhouse and rail unloading facilities. . . This change completely eliminates particulate discharges previously approved under the 1984 permit for the above mentioned facilities totaling 0.47 tons per year. The truck loadout facility has been moved from outside the silos, where it was exposed to the ambiant air, to inside the silos where it is fully enclosed. This change has eliminated the bin atop the truck loadout as a source of ambient emissions. Emissions from the bin were projected as 05 tons per year on the 1984 applications. As a result of this change, silo configuration and location has changed slightly to accommodate the trucks. . . There will be no emission points from the moved silo. * * * The model of the Fuller baghouse unit atop the silos has changed from Fuller Plenum 48-7-3500 to Fuller Jet 196 CI0FM. The outlet emissions of the unit remains the same (i.e. 0.02 gr/acf). Convey lines from ship to silo will now be 12" and 14" vis a vis a uniform 12", with the 12" portions being those located over water on floats or on the barge. This change has no effect on environmental efficiency of the system. * * * Although it is the Department's determination that the changes in design are not modifications that give rise to a point of entry because they decrease the emissions from the facility and provide improved air pollution controls, if you wish to contest that finding, a petition must be filed (received) in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400 within 14 days of your receipt of this notice. Upon receipt of the Benyon letter, Tuxedo timely filed the petition challenging the Department's determination which is the subject of this case. Official recognition has been taken of the record in DOAH case No. 89- 1121. In DOAH case No. 89-1121, Tuxedo challenged the Intent to Issue a permit for a barge-mounted unloading device for the same Florida Sun facility. The petition in DOAH case No. 89-1121 was filed with the Department on February 21, 1989. The permit challenged in DOAH case No. 89-1121 related to the unloading system which Florida Sun intended to utilize for the facility permitted in 1984. On April 12, 1989, the undersigned ruled on a motion to dismiss in DOAH case No. 89-1121, and found: Florida Sun and the Department have correctly concluded that Petitioner may not challenge the permits issued to Florida Sun in 1984. The point of entry for a challenge to those permits is long past. In denying the motion to dismiss, the petition has been considered only as a challenge to the permit for the barge-mounted unloader and the potential damages which may result from that installation. It is anticipated that discovery will clarify issues of fact regarding how the present permit conflicts, if at all, to the previously approved permits. (e.s.) Paragraph 11 of the petition filed in case No. 89- 1121 alleged that Florida Sun's proposed cement terminal "has materially and substantially changed and in fact has been drastically modified to be different from what was permitted in 1984." Tuxedo then itemized examples of the differences between the proposed facility and the one permitted in 1984. The examples itemized included, in pertinent part: The proposed location of the 1984 permitted facilities is ambiguous; placing the facilities on a 4.78 acre lot, closer to where the facilities are now proposed. However, Florida Sun now states that the lot is less than one acre. The proposed silos are different from those presented in 1984, and are at different locations in relation to one another and in relation to Tuxedo Fruit Company. The immense silos will be only 15 feet from the property line and right-of-way along Port Avenue The proposed truck loadout facility is completely different than originally proposed ... Moreover, the truck loadout has been relocated to areas beneath each silo. Air pollution control devices and some control methods have changed. Air pollutants will be released at different heights and at different locations than originally permitted. There will be a dramatic increase in airborne contaminants emitted over that which was originally permitted and reviewed by DER in 1984. The facilities as now proposed will offload, store, and load onto trucks almost twice as much cement as was contemplated by Manatee Cement Co.'s 1984 permit application as reviewed by DER. The vastly increased product throughput, physical changes, process changes, truck unloading, truck traffic, and operating hours will result in more emissions of pollutants from point sources, more pollutant emissions from unconfined sources of particulate matter, fugitive particulate, increased secondary emissions of particulate matter, and increased nuisance dust all of which will occur near or right next to Tuxedo Fruit. It is apparent from these allegations that Tuxedo considered the changes in the intended operation of the Florida Sun facility to be "modifications" as defined by the rule. During the hearing of DOAH case No. 89-1121, evidence was offered regarding the planned operation of the Florida Sun facility, the emissions which may be expected to result from its operation, and the impact on Tuxedo and others which may be expected. Specific alterations to the facility as permitted in 1984, with the resulting ramifications, were included in the evidence presented. Whether the alterations constitute "modifications" or "substantial modifications" as those terms are defined was implicit since the emissions resulting from the facility, as altered, were included in the presentation. Paragraph 13 of the petition filed in DOAH case 89-3309 set forth the differences between the facility to be built by Florida Sun and the one permitted in 1984. Those differences included: The parcel size is reduced from over four acres to less than one acre. The two silos are now located in east/west direction along Port Avenue and are both within 15 feet of the right-of-way. A provision is made for constructing a third silo. A different baghouse has been specified for the top silo, a Fuller Jet Pulse Dust Collector Model Size 196C10, to be located on the top of the western most silo. Separate structures no longer exist for the truck loadout operation or the bagging operation. The silo height has been increased to 178 feet in order to install a truck load-out operation underneath each silo. Thus, there are now two truck load out facilities. Each loadout spout would be controlled by Fuller Jet Pulse Dust Collector, Model 36DS8. Both the loading spout and bag house are of different design than originally proposed. The detailed plans no longer show a packing facility to be built at the site now as a 1,750 square foot two story office building. There will be an increase in ship unloading rates from 264 tons per hour in the 1984 permits to 400 tons per hour in the 1988 application. This would result in an increased through-put of 220,160 tons per year. The increase in either the hourly or annual through-put would result in increase in actual omissions (sic) from the side bag house. The bag house specified in the building plans are different than those specified in the permits granted by the Department in 1984, thus affecting the emission characteristics of the stack discharge. The increase in annual through-put would require additional truck loading. The 1984 permits would require 933 trucks per month or 11,198 trucks per year. The 1988 through-put requires 1,667 trucks per month for 20,004 trucks per year. This would be an increase of 734 trucks per month or 8,808 trucks per year. This increase would result in increased actual emissions from both' the truck load-out bag houses and the silo' bag house. Increase in truck traffic would increase the amount of fugitive and nuisance dust. There would be an increase in fugitive and nuisance dust due to the increase in number of trucks being loaded. From a review of the foregoing, the similarity in the allegations in DOAH case No. 89-1121 and DOAH case No. 89-3309 is obvious. Since the evidence related to the facility has been offered in DOAH case No. 89-1121, additional evidentiary hearing would appear unnecessary. More specific to the questions regarding emissions expected from this facility are the following findings of fact made in DOAH case No. 89-1121: The potential sources of air pollutant emissions associated with the Florida Sun cement facility are as follows: unconfined and unquantifiable particulate matter emitted from the hold of the ship during the unloading process; the emissions from the Cyclonaire unit (the venting required to separate the dust-laden air in order to pass the cement into the conveyor line); emissions from two diesel engines which generate energy for the extraction and conveying unit; `the baghouse which vents the silos as they are being loaded; the truck spout venting units; and the unconfined but quantifiable particulate matter generated by truck traffic. The total of the quantifiable emissions for the Florida Sun facility will be 19 tons per year. The Florida Sun facility will not contain the 240 ton cement storage bin authorized by the 1984 permits. Based upon Florida Sun's stipulation to that effect, potential emissions from that source have not been considered. The Florida Sun facility will not contain the packhouse authorized by the 1984 permits. Based upon Florida Sun's stipulation to that effect, potential emissions from that source have not been considered. The stipulated Florida Sun annual throughput of cement for this facility will be 279,000 tons per year, plus or minus 10 percent. In addition to the equipment to be utilized to limit the expected emissions, Florida Sun intends to pave or grass its entire facility. Regular maintenance of this area will provide reasonable precautions that unconfined particulate matter will not be released into the atmosphere. Further, training of personnel will aid in the proper operation and maintenance of the equipment. Operation of the Cyclonaire should not occur during wind conditions exceeding 35 miles per hour.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order dismissing the petition filed in DOAH case No. 89-3309 as that case has been rendered moot since the disputed issues were addressed in DOAH case No. 89-1121. DONE AND ENTERED this 4th day of October, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. 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 4th day of October, 1989. COPIES FURNISHED: Bram D.E. Canter Haben & Culpepper, P.A. 306 North Monroe Street Tallahassee, Florida 32301 Sylvia M. Alderman Paul R. Ezatoff Katz, Kutter, Haigler, Alderman, Eaton, Davis and Marks, P.A. 215 South Monroe Street, Suite 400 Tallahassee, Florida 32301 Paul H. Amundsen Blank, Hauser, & Amundsen 204-B South Monroe Street Tallahassee, Florida 32301 Carol A. Forthman Deputy General Counsel Office of General Counsel 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 Respondent, Hulett Environmental Services, Inc. (Hulett), is engaged in the business of general structural pest control, including the application of termiticide to the soil of pre-construction sites for the prevention of subterranean termites. Hulett is licensed by Petitioner, Department of Agriculture and Consumer Services (Department), under Chapter 482, Florida Statutes, as a pest control business and maintains its primary place of business at 1959 West 9 Street, Riviera Beach, Florida. Respondent Edward West (West) is employed by Hulett as a pesticide applicator technician. On May 20, 1993, West performed termiticide treatments to two pre- construction sites located at Lot 4 of Block 13, Willow Bend, Coconut Creek, Florida (site one); and Lot 3 of Block 13, Willow Bend, Coconut Creek, Florida (site two) where he applied the chemical pesticide "Prevail Termiticide" to the soil for the prevention of subterranean termites. The labels of "Prevail Termiticide" provide for a specific amount and concentration of the pesticide to be applied to soil for the prevention of subterranean termites. From May 17-21, 1993, the Department was conducting a surveillance investigation of pre-construction termiticide applications to determine if there were violations of Chapter 482, Florida Statutes. This investigation was known as Operation Spray Right. Frederick Hassut (Hassut), Frank Valdes (Valdes), and Michael McDaniel were Department employees working on Operation Spray Right. On the morning of May 20, 1993, Hassut and Valdes went to the construction site of Willow Bend Development. They parked their van about one block from sites one and two where West was working. West tamped the soil on the first site to compact the soil. After tamping the soil, he sprayed the site for five minutes and thirty-two seconds as timed by Hassut and Valdes, resulting in 29 percent of the pesticide required by the termiticide label being applied during that application. West went to site two, which was adjacent to site one, and tamped the soil. After tamping, he sprayed the soil for six minutes and forty seconds, resulting in 24 percent of the pesticide required by the termiticide label being applied during that application. After he sprayed site two, West returned to his truck. Using the radio in his truck, he called the Hulett office and told Timothy Mark Hulett, the president of Hulett, that he thought that inspectors were in the area but he had not completed the job. Mr. Hulett advised West that he was coming out to the site. Mr. Hulett asked his operations manager, Scott Armand, to accompany him to the site. The Hulett office is located approximately 45 minutes from the site. West began to roll up his hose, when Valdes approached him and introduced himself to West. Hassut parked the van near West's truck, came to West, introduced himself, gave him his business card, and served him with a Notice of Inspection. West advised both Hassut and Valdes that he had not completed spraying the two sites. Hassut and Valdes performed a calibration test to measure the flow rate of the chemicals. No tests were performed to determine the amount of the pressure used in the spraying. Hassut showed West affidavit forms and filled in the blanks. West wrote on the affidavit forms, "Job not done at time of inspc," and signed the affidavits in the presence of Hassut and Valdes. West would not sign the affidavits unless he could be provided copies of the affidavits; thus, Hassut and Vales left the site in search of a copying machine. When they returned West was spraying another lot nearby. When Mr. Hulett and Mr. Armand reached the site, they found West spraying and Hassut standing near the Hulett truck. Mr. Hulett went to West, who told Mr. Hulett that the site was not ready. The bathroom areas were not dug out properly and some form boards were down. West told Mr. Hulett he had told the construction workers to come back and dig out the site in the bathroom areas. Mr. Hulett advised him to tell the construction company personnel again. There were construction workers who were sitting and watching at a nearby lot. Mr. Hulett went to talk with Hassut, whom he had known for several years. Hassut advised Mr. Hulett that West had sprayed improperly to which Hulett responded that West had not finished the job. There was a general discussion between them concerning problems in the pest control industry, particularly since the use of Chlordane had been banned. Construction workers came and worked on sites one and two. Mr. Hulett requested Hassut to come look at sites one and two and to watch West finish the spraying. Hassut declined to do so, and he and Valdes left the site. A notice is required to be placed on the site after a termite treatment is completed. It is Hulett's policy that the applicator post a termite sticker on the permit board at the site once the application is complete. The termite sticker indicates the company and technician who performed the treatment, the location where the treatment was performed, the chemical used and the date of treatment. After Valdes and Hassut left the sites, West finished spraying sites one and two and posted a termite sticker at each site, indicating the site had been treated. When Valdes and Hassut inspected the sites, West had not posted termite stickers nor had he made any attempt to post termite stickers at sites one and two. Valdes and Hassut did observe that there were Hulett termite stickers posted at other sites in the West Bend Development where Hulett had applied termiticide. When Hassut and Valdes inspected sites one and two, West had not completed spraying the sites. West applied the "Prevail Termiticide" to sites one and two in accordance with the label requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing all counts in the Administrative Complaint against Hulett Environmental Services, Inc., and Edward West. DONE AND ENTERED this 5th day of April 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 April 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6525 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Rejected as unnecessary detail. Paragraph 3: Accepted. Paragraph 4: The first three sentences are accepted in substance. Paragraph 5: Rejected as subordinate to the facts actually found. Paragraph 6: The first sentence is rejected as recitation of testimony. The second, third and fourth sentences are accepted in substance. The last sentence is rejected as subordinate to the facts actually found. Paragraph 7: The first, second, fourth, and fifth sentences are rejected as subordinate to the facts actually found. The third sentence is rejected as constituting argument. Paragraph 8: The first sentence is rejected as not supported by the greater weight of the evidence. The last sentence is rejected as constituting a conclusion of law. All of Respondent's Proposed Findings of Fact are not numbered. The following rulings are numbered to correspond to the order in which the paragraphs appear in Respondent's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraphs 2-6: Accepted in substance. Paragraphs 7-12: Rejected as argument. COPIES FURNISHED: Robert G. Worley, Esquire Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 George P. Ord Alley, Maass, Rogers & Lindsay, P.A. 321 Royal Poinciana Plaza, So. Palm Beach, Florida 33480 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issues to be determined in this case are whether Respondents, Richard H. League and Nancy A. League, violated a Department of Environmental Protection ("Department") rule that prohibits filling in wetlands and surface waters without a Department permit; and if so, whether Respondents should pay the administrative penalty and investigative costs and undertake the corrective actions that are demanded by the Department.
Findings Of Fact The Department is the state agency having the power and duty to protect Florida’s air and water resources and to administer and enforce the provisions of chapters 373 and 403, Florida Statutes, and the rules promulgated pursuant thereto in Florida Administrative Code Title 62. Respondents own property located at 1160 River Road, Orange Park, Clay County, Florida. The property is adjacent to the St. Johns River. Sometime before 1995, pieces of concrete were placed in the water along the bank of the St. Johns River in an area that includes the shoreline of the League property, in an apparent effort to prevent or reduce shoreline erosion. On August 14, 1995, the Department issued Permit No. 102752932 to Richard League to construct a dock and replace a stormwater ditch with a covered culvert. The 1995 permit did not authorize a seawall, riprap, or other erosion control structure. A drawing attached to the 1995 permit shows the “typical concrete fill pieces at water’s edge,” which are the concrete pieces that had been placed along shoreline before 1995. The Department referred to the existing concrete pieces as a riprap revetment. Following the issuance of the permit, Mr. League discussed with Michael Eaton, Environmental Manager for the Submerged Lands and Environmental Resources Program for the Department's Northeast District Office, Mr. League's desire to restore the riprap material along his shoreline because, according to Mr. League, the concrete pieces had been displaced by storm waves and were no longer protecting his shoreline from erosion. On October 27, 1995, Mr. Eaton sent a letter to Mr. League regarding the "Existing Riprap Revetment," stating that "movement and rearranging of the riprap material along the revetment will not require a permit from the Department." The letter did not authorize the construction of a seawall or the placement of new material along Respondents' shoreline. In May 2005, the Department received an anonymous complaint that Respondents were constructing an unauthorized dock at their property. An investigation was conducted, but no major violation was found. Mr. League claims that, at the time of the 2005 investigation, he had completed 60 percent of the wall structure that is the subject of this proceeding. Mr. League also claims that the Department investigators saw the structure, but expressed no objection to the structure. However, there is no photographic or other evidence to support Mr. League's claim that the structure was observable in May 2005. No mention was made in the Department's investigative report that a seawall or similar structure was under construction at the League property. The normal practice of the Department is to describe such structures and activities in the investigative report. The aerial photographs in evidence support the Department's claim that the structure did not exist in May 2005. In April 2009, the Department received another anonymous complaint that Respondents were constructing an unauthorized structure at the shoreline. The investigation of the complaint revealed that Respondents were constructing a wall of pre-existing concrete pieces and new concrete pieces. The wall or seawall was not located at the bank, but was 12 to 21 feet waterward of the bank. It was apparently Respondents' intent to place fill behind the seawall to extend the upland property waterward. When Department employees conducted another inspection in January 2010, they found that wetlands and surface waters which had previously been observed behind (landward of) the seawall had been partially filled. At the hearing Respondents claimed that the structure qualifies as riprap. However, in their post-hearing submittal, Respondents alternately claimed that the structure was a seawall, an upland retaining wall, or riprap, depending on what rule or statute Respondents perceived as helpful in arguing that the structure did not require a permit. Florida Administrative Code Rule 62-341.021(15) defines "riprap" as "a sloping retaining or stabilizing structure made to reduce the force of waves and to protect the shore from erosion, and consists of unconsolidated boulders, rocks, or clean concrete rubble with no exposed reinforcing rods or similar protrusions." Respondents' structure is a consolidated wall, made by stacking relatively flat pieces of concrete. It has virtually no slope. It is not an unconsolidated, sloping pile of material. In addition, Respondents' structure is not placed at the bank for the purpose of retaining the existing bank. The Department contends that Respondents' structure is a seawall, which is defined in rule 62-341.021(16) as "a man- made wall or encroachment, except riprap, which is made to break the force of waves and to protect the shore from erosion." The waters of the St. Johns River reach and extend landward of the seawall constructed by Respondents. Photographs of the seawall show water stains and rafted debris at the base deposited by the waters of the St. Johns River. There was wetland vegetation behind the seawall. Mr. League admitted at the hearing that the waters of the St. Johns River sometimes move through the porous wall and fill the void between the wall and the bank. The landward extent of the St. Johns River is landward of Respondents' structure. The Department showed that the value of the time spent by Jim Maher, Matthew Kershner, and Heather Anthony to investigate this matter exceeded $1,000. However, the Department is only seeking $1,000 from Respondents for the Department's investigative costs.
Findings Of Fact Triton is a Florida corporation located in Brooksville Florida, which performs land development and construction work for Gulf Coast Diversified Corporation, owned by the same people who own Triton. Triton owns an asphalt "hatching" plant which mixes sand and aggregate with liquid asphalt which is then used as paving material. All asphalt so mixed was used by Triton and no outside sales were made. Gulf Coast Diversified Corporation contracted with Triton for site development of certain realty. The contract included the construction of roads and parking lots. The contract price was computed on a lineal foot basis for the roads and on a square yard basis for parking lots. Triton, using the asphalt mixed in its batching plant, completed the work contracted for. In addition, Triton contracted with Gulf Coast Diversified Corporation for sewer construction which included the construction of manholes fabricated from concrete batched by Triton. No concrete was ever sold to any other outsiders. The cost of the concrete was included in the overall contract price and was not separately itemized. Triton's books of account show concrete sales in the amount of $168,569.36 during the audit period. This figure reflects a $20.00 per yard "market" value of concrete which Triton picked up in its books for its own internal accounting purposes. The figure represents some 8,428 yards of concrete actually sold. For sales tax purposes, Triton valued the concrete at about $13.74 per yard, a figure established by DOR in a previous audit, and remitted 4 percent of the total value of $115,835.25 of the State of Florida. During the audit, DOR noted that 4 percent of the bookkeeping entry for concrete sales was $6,742.77, while only $4,633.41 was received as sales tax. Consequently DOR assessed Triton an additional $2,109.36 plus penalties and interest. The difference, however, reflects only differential per yard valuation of the concrete and not additional concrete yardage.
The Issue The issue to be resolved in this proceeding concerns whether the above-named Respondents applied pesticide chemicals to a pre-construction application site for pre-treatment for termites and wood-destroying organisms, which was contrary to label instructions, by not applying the specific amount (volume) and concentration designated by the label in alleged violation of Section 482.051(5), Florida Statutes, and Rule 5E-14.106(6), Florida Administrative Code.
Findings Of Fact The Respondents are certified operators and applicators employed by pest control companies in the Panama City area. Stephen W. Daniels holds License No. 43026. Earl G. Pettijohn holds License No. 92006. Mr. Pettijohn is an applicator at Killingsworth Environmental, Inc., and Mr. Daniels is a certified operator for Environmental Security of Panama City. The Petitioner is an agency of the State of Florida charged with regulating the licensure, operations, and practices of pest control operators, applicators, and licensed pest control businesses in the State of Florida. The pre-construction termite treatment in question occurred on October 16, 2001. The treatment or job site was at the new construction of the Northwest Florida Community Hospital at 1360 Brickyard Road, in Chipley, Florida. Two trucks were used on the October 16, 2001, job: one was a truck marked "Killingsworth Environmental," driven by Mr. Pettijohn; the other truck was marked "Atlas" and was driven by Mr. Daniels. The chemical used in the pre-treatment for termites at the job site was a soil pesticide known as "Cyren-TC." The label for Cyren-TC indicates a requirement of 0.50 percent to 1.0 percent concentration, with an aqueous emulsion used for pre-treatment for termites. The laboratory report and analysis of the pesticide sample taken from Mr. Daniels' truck tank, at the hose end, was found to contain 0.38 percent chlorphyrifos (active ingredient), which represents a 24 percent deficiency from the minimal required rate of 0.50 percent per the Cyren-TC label. The Respondents, Mr. Daniels and Mr. Pettijohn, were called by the contractor of the job in Chipley on the evening of October 15, 2001, with his request that they perform a pre-treatment termite treatment the next morning for a monolithic slab described as being of an area of 12,000 square feet. The Respondents, therefore, filled their trucks, mixing the pesticide, based upon that measurement on the evening of October 15, 2001. They arrived at the job site the following morning at 7:15 a.m. They did not use the two trucks to treat any other sites between the filling of the trucks and their arrival on the job site in question on the morning of October 16, 2001. Upon inspecting the job site, Mr. Daniels measured the slab and determined the actual square footage to be approximately 9,300 square feet. That figure is not disputed. The truck Mr. Daniels was driving had a tank and spray capacity of 700 gallons. The 700 gallons was represented by a 500-gallon tank and by an additional 200-gallon tank. The truck was completely filled when it arrived on the job site. The truck Mr. Pettijohn was driving contained a capacity of 600 gallons in two tanks of 300 gallons each. It was completely full when it arrived at the job site. Mr. Owens, the Department's field inspector who testified in support of the Administrative Complaint, did not inspect either truck to determine or estimate their total capacities. He was not aware of how much either truck employed on the job in question actually held in total volume. He also did not observe how much chemical was left over still in the tanks in each truck when the first treatment application effort had concluded, on or shortly before 9:00 a.m., on October 16, 2001. The Respondents applied an aqueous emulsion of Cyren-TC to the 9,300 square foot monolithic slab by spraying a volume from each truck. Mr. Daniels' truck pumped five to seven gallons per minute, and Mr. Pettijohn's truck pumped seven to nine gallons per minute. Both trucks were fitted with gravity-fed pumps. The pumps on each truck would pump a higher volume, closer to seven gallons per minute or nine gallons per minute respectively, as to Mr. Daniels' and Mr. Pettijohn's trucks when the tanks were more nearly full because of the higher pressure feeding the gravity-fed pump. The volume per minute pumping rate would gradually decrease as the level in the tank became lower. Both Mr. Daniels and Mr. Pettijohn started pumping at essentially the same time or within one minute of each other. Mr. Daniels testified that he and Mr. Pettijohn applied the pesticide for 73 minutes measured by the digital clock on his radio. Mr. Daniels determined the amount of time necessary to pump the pesticide on the site from both trucks by taking an average of the output volume of the pumps on each truck. He began timing the application when he pulled the hose to the far end of the slab and turned it on. When the treatment application was complete, Mr. Daniels had approximately 50 gallons of chemical remaining in the 500-gallon tank on his truck. He had not yet used any of the 200-gallon tank on his truck. Mr. Pettijohn had approximately 55 to 60 gallons of chemical left from the two tanks totaling 600 gallons on his truck when he started the application. The testimony as to the amount of chemicals left in the tanks after this first application is unrefuted and is accepted. Mr. Daniels established that, although when the tanks were approaching empty (when the calibration was made by Mr. Owens), at which time Mr. Daniels' tank would only pump at a rate of five gallons per minute, that the pumps would pump at a higher rate, approaching seven gallons per minute as to Mr. Daniels' truck and nine gallons per minute as to Mr. Pettijohn's truck, when the tanks were full. Consequently, if one takes an average of the output volume for each truck of slightly over six gallons per minute for Mr. Daniels' truck and slightly over seven gallons per minute for Mr. Pettijohn's truck, one arrives at an application volume for Mr. Daniels' truck of 438 to 450 gallons of chemical applied. One also arrives at a volume applied for Mr. Pettijohn's truck of approximately 547 gallons if one uses an average application rate of 7.5 gallons per minute. Since the testimony as to the remaining product in the tanks is unrefuted because Mr. Owens did not observe the amount of product left in the tanks on the two trucks, and if one uses an average application rate of 7.5 gallons per minute for Mr. Pettijohn's truck and six gallons per minute or slightly more for Mr. Daniels' truck, one arrives at a figure of between 50 and 60 gallons of product remaining in Mr. Pettijohn's truck, and approximately 50 to 60 gallons remaining in Mr. Daniels' truck if one uses Mr. Daniels' factor of 73 minutes to multiply times that average application per minute rate. Thus, the approximate amount of product remaining in the tanks of both trucks being unrefuted, it is thus established that Mr. Daniels' figure of 73 minutes as the application time is most nearly correct. While the pre-treatment application was being performed, Investigator Owens was parked at a nearby parking area observing the application procedure and timing it with a stopwatch. Mr. Owens determined that Mr. Daniels had pumped for 45 minutes and 30 seconds and Mr. Pettijohn pumped for 45 minutes. Using Mr. Owens' figure of seven gallons per minute for Mr. Pettijohn's truck and five gallons per minute for Mr. Daniels' truck (the lowest pumping rates) for the entire pumping operation (which for the reasons found above is not accurate), Mr. Owens came up with an approximate application volume for Mr. Daniels' truck of 228 gallons and approximately 315 gallons for Mr. Pettijohn's truck. This figure is not realistic when one considers the amount of product left in the tanks of the two trucks at the end of the first application operation. There certainly was not an excess of 250 gallons of product left in the 500-gallon tank of Mr. Daniels' truck and 285 gallons of product left in the tank of Mr. Pettijohn's truck at the end of that first pumping operation on or before 9:00 a.m., on October 16, 2001. It cannot be determined from the testimony and evidence why there is such a great disparity in the time period Mr. Owens postulated for the treatment operation he observed, versus the most accurate 73-minute period established from Mr. Daniels' testimony. After confirming that the Respondents had completed their application effort, Mr. Owens conducted an inspection with regard to both trucks, obtaining information, and filling out necessary paperwork. Mr. Owens then took a sample from Mr. Daniels' truck only when he completed the calibrations of the trucks. That calibration, as found above, noted an application rate of five gallons per minute for Mr. Daniels' truck at a point when there was only approximately 50 gallons of product left in the 500-gallon tank to feed the gravity-supplied pump on Mr. Daniels' truck. Mr. Owens took a sample of the pesticide from the hose-end of the pump on Mr. Daniels' truck and placed it in a 32-ounce jar covered with a lid. The jar was not pre-labeled with a sample number. Mr. Owens taped the lid of the jar, and initialed it, so that the tape seal could not be broken without disturbing his initials and put the jar in the trunk of his car in an ice chest with ice. As a matter of practice, Mr. Owens does not offer a duplicate sample to an operator unless he asked for one and he did not ask Mr. Daniels to sign the tape on the jar. Mr. Owens did not take a chemical sample from Mr. Pettijohn's truck and there is no evidence as to what concentration of pesticide was in the tank on Mr. Pettijohn's truck. In the two pesticide applications on the morning of October 16, 2001, Mr. Pettijohn's truck pumped a total of 600 gallons of product on the site. It is not possible to make a factual determination as to the chemical concentration of the volume of product in Mr. Pettijohn's truck. The water used to mix the chemical for application at the job site was obtained from the water plant in Panama City. It had been, at some point, chemically treated with chlorine. There is no evidence as to any chlorine content in the water, which is chemically treated with chlorine, at least in the potable water stage and possibly in the waste water treatment stage. The sample was collected, as noted above, on October 16, 2001, but was not delivered to the laboratory to be analyzed as to the pesticide concentration until October 26, 2001. There is no indication on the laboratory report of the actual date of processing by the lab, but the final report was issued on November 14, 2001. There was at least a lapse of ten days from collection to analyzation by the laboratory. Testimony was presented concerning a study done by a Clemson University scientist which indicated that chlorine in municipal tap water was enough to degrade pesticides like that involved in this case by a factor of 32 percent in three hours. It has not been established that that occurred here, although logically some chlorine content may have been in the water that was used to mix the chemical. It is also well-known in the pesticide industry that an appropriate reaction and safeguard for a chemical spill of Chlorpyrofos is the application of bleach or chlorine to neutralize or degrade the chemical. It is not clear whether the deficient concentration pumped from the Daniels'-operated truck resulted from only chlorine content in the mix water or by the lapse of time caused by mixing the chemical the evening before it was to be used the following morning (in the interest of arriving at the job site early that morning per the instructions of the contractor). It may have been simply operator error in the proportions of water to chemical which were mixed when the tanks were filled or a combination of these three factors. Moreover, it cannot be determined precisely what concentration was actually deposited on the surface at the job site because Mr. Pettijohn's truck pumped approximately 600 gallons of total volume on the site in two applications and Mr. Daniels' truck pumped approximately 438 to 450 gallons in the first application and approximately 220 gallons in the second application, and the concentration of the chemicals pumped from Mr. Pettijohn's truck is unknown in so far as the evidential record in the case is concerned. Thus, it cannot be definitively determined what concentration of chemical actually was deposited on the surface of the job site. In any event, after Mr. Owens had calibrated the pump on Mr. Daniels' truck and taken his sample, both Mr. Daniels and Mr. Pettijohn rolled up their hoses, got in their trucks, and left the job site. After they left the job site, Mr. Owens notified the builder that the pre-treatment had been inadequate in terms of the volume of pesticide applied and so the builder requested that Mr. Daniels and Mr. Pettijohn return and apply more chemical. They arrived at the job site some 15 to 20 minutes after they had initially left and began spraying the additional chemical in the second application that morning. When Mr. Daniels and Mr. Pettijohn returned to the site, Mr. Daniels told Mr. Owens that he disagreed with Mr. Owens' volume calculations. In any event, Mr. Owens directed both Mr. Daniels and Mr. Pettijohn to pump additional volume onto the site. Thus, at Mr. Owens' direction, they pumped the volumes remaining in their trucks onto the site (with the exception of approximately 30 gallons, which was finally remaining in Mr. Daniels' truck), for a total of approximately 1,280 to 1,300 gallons being pumped on the job site. Thus, in light of the above calculations and findings, the site actually received approximately 280 to 300 gallons more than the prescribed labeled rate.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered assessing a fine against Respondent Stephen W. Daniels in the amount of $350.00, and it is further recommended that the Administrative Complaint as to Respondents Earl G. Pettijohn and Environmental Security of Panama City be dismissed. DONE AND ENTERED this 3rd day of January, 2003, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2003. COPIES FURNISHED: Robert O. Beasley, Esquire Litvak & Beasley, LLP 220 West Garden Street, Suite 205 Post Office Box 13503 Pensacola, Florida 32591-3503 Jack W. Crooks, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street Room 520, Mayo Building Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street Mail Stop 38 Tallahassee, Florida 32399-0800
Findings Of Fact The Petitioner is the Department of Professional Regulation. The Respondent is John W. Hammel, holder at all times pertinent to these proceedings of certified general contractor license number CG-CA16780 issued by the Petitioner. His address of record is Dania, Florida. On or about June 17, 1986, the Respondent entered into a contract with a property owner named Vance Lee. The Respondent agreed to remodel Lee's duplex housing unit for the total sum of $15,200 and, in effect, turn the duplex into a four unit complex. The parties agreed the total sum would be paid in four installments. The owner was originally assured by the Respondent that all construction could be completed within six weeks of contract execution. Shortly after August 4, 1986, and after receipt from the owners of all amounts to be paid under the contract, except the final payment due upon project completion of $1,500, the Respondent left the construction site. At that time, approximately thirty percent of the required construction remained uncompleted. As a result of pressure by the owner and the filing of the administrative complaint in this cause, he has worked there since that time on a "spasmodic" basis. One day of work every two months reflects the average record of the Respondent's efforts to complete construction activities. At the hearing held in this cause, the Respondent admitted he had not completed the construction job in a timely and reasonable manner and that twenty to twenty-five percent of the construction job was still uncompleted. Among the tasks, at time of hearing, yet to be completed were some plumbing installations (including a missing hot water heater), a fire wall between two units, an uncompleted ceiling in one of the units, and certain landscaping requirements related to the front drive of the building. The Respondent's explanation, offered in mitigation of his failure to complete the construction job in a timely and reasonable manner, is that his business partner quit and left Respondent with the sole responsibility for completion of eight other jobs. Due to financial problems, he has been working his way through those jobs in chronological order. The job which is the subject of this proceeding was the last job taken before the partner departed and hence is the last to be completed. As a result of the Respondent's failure to timely complete the project, the building permit expired, resulting in the issuance of a violation citation by the local city government. At hearing, Respondent represented that he would complete the contract at issue, and requested leave to submit a post hearing mitigation exhibit to demonstrate completion of the project. With Petitioner's agreement, Respondent was granted leave until May 2, 1988 to file his exhibit. The exhibit was untimely, mailed approximately three days after the required date for filing, but the Petitioner waived objection to the late filing. The exhibit established that Respondent completed construction on the project to the satisfaction of the property owner after the hearing had in this cause. Further, the exhibit established that a certificate of occupancy for the premises, denoting completion in accordance with local governmental building requirements, had been issued by the City of Fort Lauderdale. As an additional mitigation gesture, the Respondent waived his right to receipt of the remaining payment of $1,500 from the property owners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered assessing the Respondent an administrative penalty of $500 in accordance with disciplinary guidelines set forth in section 21E-17.001(19), Florida Administrative Code. DONE AND RECOMMENDED this 27th day of May, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 27th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 5310 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Included in finding number 2. Included in finding number 3. Included in finding number 4. Included in finding number 4. Included in finding number 7. Included in findings 4, 5, 6, 8, 9 and 10. Rejected as a conclusion of law. Rejected as a conclusion of law. COPIES FURNISHED: Michael J. Cohen, Esquire 517 South West First Avenue Ft. Lauderdale, Florida 33301 Mary E. Hammel, Esquire 501 South East 12 Street Ft. Lauderdale, Florida 33316 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
