The Issue The issues to be resolved in this proceeding concerns whether the Respondent installed a septic system without a permit; whether a permit was required for the installation; whether the installation was of inadequate size; whether the Respondent caused the disconnection of an existing system without a permit, and whether that system was improperly abandoned. A related issue is whether the proposed $1,500.00 fine should be imposed if the violations are proven or what, if any, fine is warranted.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, in pertinent part, by its organic statutes and rules, with regulating the practice of septic tank contracting and the installation and repair of septic tank and drainfield waste disposal systems and with licensure of such contractors pursuant to Rule Chapter 64E, Florida Administrative Code. The Respondent, Trammel Fowler (Fowler), is a licensed septic tank contractor regulated by the statutes and rules cited herein. Fowler has never been issued any citations or been subjected to discipline under the relevant statutes and rules enforced by the Petitioner with regard to septic system design, construction, installation and repair. He has worked in the septic tank installation business for 19 years. The Respondent installed a septic tank and drainfield system at 5642 Old Bethel Road, Crestview, Florida, a residential construction project (home) in 1993. The original septic tank system installed by the Respondent was finally approved on June 11, 1993. The home site at issue was originally designed to have the septic tank and drainfield system located in the backyard of the residence. Plumbing errors by the general contractor and the plumbing sub-contractor caused the plumbing system to be "stubbed-out" to the front of the house so that the septic tank and drainfield system was installed in the front of the house rather than in the backyard as originally designed and approved by the Petitioner. Additional excavation work was required at the site, which caused the soil type to change in the front of the house where the septic tank and drainfield were to be installed. This in turn required the Okaloosa County Health Department to require additional drainfield square footage to be added to the previously approved 600 square feet of drainfield, so that the drainfield installed in the front of the house by the Respondent ultimately encompassed 800 square feet. Thus, although the original site plans approved by the Okaloosa County Health Department were not followed, subsequent modifications to the system resulted in the septic tank system being fully approved by the Petitioner (through the Okaloosa County Health Department), on June 11, 1993. In the ensuing months, landscaping problems at the site caused surface water to collect around and above the drainfield area. This, coupled with a continuous water flow from the residence caused by leaking appliances, and particularly the commode, resulted in raw or partially treated wastewater becoming exposed on the surface of the ground, as a sanitary nuisance. This was caused as the septic tank and drainfield system became saturated by the excess water from the two referenced sources. This caused the failure of that septic tank and drainfield system within nine months of its original installation, as was noted on March 4, 1994, by the Department's representative Mr. Sims. It is undisputed that the Respondent, Mr. Fowler, did not cause or contribute to this septic tank system failure. He constructed the system as designed and approved by the Department (or as re- approved by the Department in June 1993 with the relocation of the system to the front yard of the residence and with the augmentation of the drainfield referenced above). The Department was aware of the failure of the original system in the front yard of the residence as early as March 1994. There is no evidence that an actual permit for repair of that system was ever issued. Mr. Fowler maintains that the Department had a policy at that time of authorizing repairs to systems that failed within one year of original installation, as this one did, without a written, formal permit process, but rather by informal approval and inspection of the repair work. The Petitioner disagrees and Mr. Sims, the Petitioner's representative, states that a permit was required, although no fee was charged. Indeed in 1994 a rule was enacted authorizing issuance of a permit for repair work for systems that failed within one year of original installation without being accompanied by the charging of a fee for that permit. In any event, prior to the rule change, repairs were authorized for failures within one year by the Department without a permit, but were required to be inspected and a notation made in the permit file or in some cases on a "nuisance complaint card," so authorization and inspection was supposed to be documented. When by the time the repair was effected by the installation of the backyard septic tank and drainfield system or "overflow-system" in February 1995, the rule change requiring issuance of a repair permit without fee had become effective. There is evidence that the Respondent was aware of this since, sometime in 1994, he had obtained a permit authorizing repair of a septic tank and drainfield site on "Windsor Circle" as shown by the Petitioner's Exhibits 6 and 7 in evidence. Be that as it may, the Respondent contends that Mr. Brown, the environmental specialist and inspector for the Department, met with him at the repair site in question and at least verbally authorized the repair of the system by installation of the septic tank and drainfield in the backyard of the residence; to be connected to the sewer line which also was connected with the malfunctioning system in the front yard of that residence. Mr. Brown in his testimony purports to have no memory of authorizing the repair work or inspecting it and seems confused as to whether he met with the Respondent at the site. The Petitioner acknowledges, as does Mr. Brown, that he has had problems since that time with memory lapses, attendant to two life-threatening injuries, which have apparently caused problems with memory loss. He purportedly suffers from post-traumatic stress syndrome and is taking medication with regard thereto. There is no dispute that he has problems with recall. Moreover, there is evidence that Mr. Brown met with the Respondent at an address on Old Bethel Road for some reason, as shown by a notation in Department records in February 1995. Consequently, while there is no doubt that the repair work in question was done without a written permit, there is evidence to corroborate Mr. Fowler's testimony to the effect that Mr. Brown inspected and reviewed the repair system while it was actually being installed by Fowler and approved it. Thus, it is possible that Mr. Fowler was under a good faith impression that the Department had a policy of inspecting and approving repair work without there being a permit related to it at the time when he installed the secondary "overflow" system at the Old Bethel Road site in February of 1995, even though that impression may have been legally mistaken, because the rule requiring a permit at no fee for repair work was already in effect. In any event, Mr. Fowler installed the so-called "repair system" in February 1995, which he has termed an "overflow" system designed to augment the treatment capability of the previously-approved system installed in the front yard at that residence. That system, as found above, consisted of 800 square feet of drainfield. The "overflow" system installed in the backyard by Mr. Fowler in February 1995 without the permit, has only 300 square feet of drainfield. This is clearly well below the minimum required for such a system and tends to support Mr. Fowler's testimony that it was intended really as a repair job in the form of a overflow system to handle extra flow that the original system in the front yard would not be able to handle in performing the intended treatment function. It is unlikely that Mr. Fowler, with or without a permit, would have installed a system he clearly would know to be of only one-half (or less) of the adequate size and treatment capability for the residence, if it had been intended to be a separately functioning independent treatment system for the residence. In fact, the "overflow" system was connected through a "T" or "Y" fitting in the sewer line outfall pipe from the house with the original septic tank and drainfield system in the front yard of the residence, so that flow could go to both systems simultaneously from the residential sewer line. There is conflicting testimony as to whether such a dually draining system could work properly. One septic tank contractor testified that it could and could adequately split the flow between the two septic tank and drainfield systems so as to perform adequate treatment without backups or overflows, while a witness for the Department testified that such a split-fitting could cause stoppages and therefore sewage backups. Be that as it may, the installation of the system in a connected fashion to the original system supports Mr. Fowler's testimony and contention that the system installed in the backyard, with 300 square feet of drainfield, was intended as a repair system merely to augment the treatment function being provided by the poorly functioning original system in the front yard. In fact, the preponderant evidence shows that, with the elimination of leakage from the appliances in the house and the correction of the water-pooling problem caused by improper landscaping, that the system would function adequately thus connected. Indeed, when the plumber or the general contractor for the residence disconnected the original front-yard septic tank system from the overflow system, so that all of the sewage in the house went to the overflow system with the smaller drainfield, that system still functioned adequately for one and one-half years until failure in approximately August 1997. It is undisputed that the Respondent had no part in the unreported and unapproved disconnection of the original front system from the overflow tank and drainfield system in the backyard. The evidence shows a preponderant likelihood that the total system would have functioned adequately indefinitely had the two remained connected so that sewage could flow to the front yard system with the 800 square feet of drainfield, with the excess water flow problems referenced above already corrected. Mr. Brown, the Department environmental specialist and inspector, did not recall specifically whether he had been at the Old Bethel Road site at issue, but testified that it was definitely possible. He testified that the time entry notation he made admitted into evidence as Exhibit No. 3, may have reflected an inspection for a repair job at the Old Bethel Road site. Mr. Brown admitted that he was present on Old Bethel Road in February 1995, but did not recall his purpose of being there. His testimony thus did not contradict the testimony of Trammel Fowler. Mr. Brown also testified that he was aware of problems at the Old Bethel Road site and testified that Mr. Wykle of the Department and Mr. Sims were also aware of problems at the Old Bethel Road site. Douglas Sims of the Department testified that the two systems, the original front tank and drainfield and the overflow tank and drainfield installed in the backyard by Mr. Fowler could not work together if they were connected. This is belied by testimony of a septic tank contractor, Ken Arnett, who was a rebuttal witness called by the Department. Mr. Arnett testified that he would expect a system of the type contemplated by Mr. Fowler and Mr. Brown to function properly. It thus seems from the preponderant weight of the evidence that the reason the Old Bethel Road residential system quit functioning properly, in approximately August 1997, is that the plumbing contractor, at the behest of the residential building contractor for the residence constructed there, disconnected the overflow system from the original front yard system, so that all the house effluent was going to the overflow system, which was never intended to have a complete, standard-sized drainfield for such a dwelling, prevalent soil conditions, elevations and the like. Mr. Brown, a long time employee of the Department was familiar with the statewide rules affecting septic tank contractors and installation and familiar with local department rules and policies relating to repairs. He testified that for a period of time in the early 1990's, there was an unwritten policy by the Okaloosa County Health Department that some repair permits would be waived for certain repairs provided a final inspection by the Department was made. He stated that if the septic tank system failed within one year under certain circumstances, a repair permit would be waived as long as the Department was aware of the repair. Mr. Brown could not recall when the policy ended, but estimated it to be sometime between 1995 and 1997. He called the discontinuation of the local policy to waive repair permits a "gradual phase out." Mr. Brown also recalled that the Okaloosa County Health Department's unwritten, local policy concerning waiver of repair permits was known and relied upon by septic tank contractors in certain situations. Cecil Rogers, a long-time septic tank contractor who dealt with the Okaloosa County Health Department regularly, testified that there was a standard policy to allow repairs to be made to septic tank systems that failed within one year without requiring a permit. There thus seems to have been an unwritten policy or practice among septic tank contractors and the Okaloosa County Health Department to the effect that if a system failed within one year and the contractor was willing to repair the system without cost to the homeowner, that the permit would be waived as long as the system or repair could be inspected by the Department. The system originally installed which failed appears to have been installed before the effective date of the rule requiring that a no-charge permit be obtained for repair work. The repair work in question, the installation of the overflow system, appears to have been effected after the effective date of the new rule. It also appears that Mr. Fowler knew of the new rule because of his obtaining a permit for repair work at the Windsor Circle repair site in 1994. It also would appear that Mr. Brown likely verbally approved and inspected the repair work at the subject site, giving Mr. Fowler the impression that he was authorized to go ahead and make the repair by installing the overflow system. Thus, although he may have technically violated the rule requiring a no-charge permit for repair work, it does not appear that he had any intent to circumvent the authority of the Department, since the preponderant evidence shows that Mr. Brown knew of and approved the installation. Thus, in this regard, a minimal penalty would be warranted. Moreover, after the original septic system at the Old Bethel Road site failed in March of 1994, through no fault of Fowler, Fowler paid to make the repair by installing the overflow system at his own expense. The original new home purchaser at that site, and Mr. Fowler's customer, Mr. Wayne Aaberg, thus did not sustain any personal expenses for the repair work performed by Fowler. The Petitioner did not present any evidence to establish that the repairs made by Fowler caused the septic tank system at Old Bethel Road to fail. The Petitioner, through the testimony of environmental manager Douglas Sims, itself established that the plumbing contractor actually disconnected the front system from the overflow system and made a physical connection only to the rear system installed by Mr. Fowler, rather than Fowler, and without Mr. Fowler's knowledge. The Petitioner, apparently through Douglas Sims, failed to conduct an investigation to determine which party actually was responsible for physically abandoning or disconnecting the original front system from the home and from the overflow system prior to the charges being filed against Mr. Fowler. Mr. Fowler did not cause the physical disconnection of the two systems and the residence and is not a licensed plumber. He did not, during the course of his contracting business for septic tanks and drainfields make physical connections or disconnections to dwelling units, but instead left that to the responsibility of the general contractor and/or the plumbing contractor. The Petitioner presented no evidence establishing any monetary harm to any customer of the Respondent. The disconnection of the systems which caused the failure was not shown to have been the responsibility nor fault of Mr. Fowler. Rather, any monetary harm to the homeowner who owned the residence when the failure occurred in August 1997, after the original repair installation had been paid for by Mr. Fowler was caused by the plumbing contractor and/or the general contractor, Kemp Brothers, who directed the plumbing contractor to disconnect the original front system from the overflow system. Consequently, any monetary damage caused by fixing the failure which occurred in August 1997, and which engendered the subject dispute, was not caused by Mr. Fowler. Finally, Mr. Douglas Sims of the Department, testified that he knew of two other un-permitted repairs by septic tank contractors which were known to the Department. In both of those cases, the contractors were only issued a Letter of Warning. Mr. Sims testified that if the Respondent herein had made repairs to the existing system at his own cost after the failure occurring in August of 1997, then the Department would have only issued a Letter of Warning. Mr. Fowler paid to fix the original system in February 1995, but felt that monetary responsibility for the August 1997 failure was not his fault and thus did not offer to pay for that.
Recommendation Accordingly, 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 a final order be entered finding that the Respondent effected repair work to a septic tank and drainfield system without the required written permit but that, in view of the above-found and concluded extenuating circumstances, that a minimal penalty of a letter of warning be issued to the Respondent by the Department and that the citation for violation, in all other respects, be dismissed. DONE AND ENTERED this 19th day of January, 2000, 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 19th day of January, 2000. COPIES FURNISHED: Rodney M. Johnson, Esquire Department of Health Northwest Law Office 1295 West Fairfield Drive Pensacola, Florida 32501 Matthew D. Bordelon, Esquire 2721 Gulf Breeze Parkway Gulf Breeze, Florida 32561 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health Bin A00 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
Findings Of Fact Kyle Brothers Land Company, Inc. filed its application with the Department of Environmental Regulation to excavate four canals and to unplug two canals which they had already dug within its development in Port Pine Heights located on Big Pine Key, Monroe County, Florida. The application of Kyle Brothers Land Company, Inc. was introduced as Composite Exhibit No. 1 and a plat of the proposed development was introduced as Exhibit 9. The proposed activity would be constructed on Class 3 waters as defined in Chapter 17-3, F.A.C. Test data submitted shows that the water quality of the water in the existing canals meets or exceeds the standards established in Section 17-3.09, F.A.C. The proposed canals, as well as the existing canals, are being developed as residential home sites. Two potential threats exist to the maintenance of water quality standards within the canals. The first threat is the short-term effect of increased turbidity of the waters due to the construction of the proposed activity. The second threat is the long-term effect of the increased pollution of the waters resulting from waste disposal through proposed septic tank systems to be used in the residential home sites adjoining the proposed and existing canals. The permit application appraisal, Exhibit 2, indicates that the short- term effects of increased turbidity could be controlled by the use of plugs, screens, and daily testing for turbidity and dissolved oxygen. The evidence further shows a variance in the depth of the existing canals and the two plugged canals. The two plugged canals and several of the existing canals have a depth greater than the central canal. The variance in depth permits the accumulation of debris and silt in the finger canals which under certain conditions could be stirred up and become suspended in the waters of the canals increasing the turbidity of the canals and violating the water quality standards. To prevent this from occurring these canals would have to be filled to bring them to the depth of the central canal. The long-term threat to water quality in the canals is the introduction into the canals of nutrients and chemicals attributable to surface water runoff and the proposed septic tank systems to be utilized on the residential home sites. Control of surface water runoff can be obtained by backs loping the uplands away from the canals. The control of nutrient loading associated with the septic tank systems is more complex. The Declaration of Restrictions for Port Pine Heights, Exhibit 7, recites that sewage disposal shall be by septic tank or central disposal plant. However, the plans submitted by the Applicant do not indicate any provision for establishment of a central disposal plant. Further, under the provisions of the deed restrictions there is no requirement that a resident of Port Pine Heights use a central disposal plant even if such a system were available. The current residents of Port Pine Heights currently use septic tank waste disposal systems; however, the number of current residents is substantially less than the number of residents that Port Pine Heights is designed to accommodate. The disposal of sewage by septic tanks will result in the introduction in the canal waters of partially treated effluent through exchange with subsurface waters in the porous limestone substrata present in the area. To maintain the water quality at the required level, the waste effluent from the residential development must be prevented from entering into the canal. Because of the substantial difference in the level of development existing in Port Pine Heights currently and the potential level of development, the test data and the projections based upon that data do not give reasonable assurances that the increased pollutions attributable to the use of septic tanks would not violate water-quality standards.
Recommendation Until the Applicant makes a reasonable, affirmative showing that the long- term effect of the activity will not violate the water-quality standards, the application should be denied. DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION KYLE BROTHERS LAND COMPANY, INC. Petitioner, vs. CASE NO. 76-607 DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact David D. Boak, Petitioner, owns a 3/4 acre lot at 9602 East Flora Street on which he proposes to put a two-bedroom house trailer. The area is rural in nature. There is no sewage service to the area and none is currently planned. Soil samples taken at the site show that from 9 inches to 48 inches below the surface the soil is a mixture of Manatee and Pompano fine sands which have poor percolation qualities. Soil Survey for Hillsborough County (Exhibit 1) describes the limitations of these soils for septic tank use as severe with wetness. Petitioner contends that he has lived on this property for 21 years and has had his septic tank pumped out once, 11 years ago; that he has never seen this property flooded; nor has he seen water standing on the property more than minutes following a heavy rain. Respondent's witnesses testified the water table at this site is 13 inches below the surface and septic tanks will not work properly in this area. When Petitioner's initial application for a permit was denied, he applied for a waiver. The application for waiver was presented to the review group pursuant to the provisions of Rule 10D-6.45(1), Florida Administrative Code, and the review group recommended the waiver be granted. However, the Staff Director, Health Program Office, denied the waiver and this appeal followed. The Hillsborough County Aviation Authority has condemned the land in this area, including that owned by Petitioner, for use as a county airport site. That condemnation proceeding is currently in litigation. If this property is ultimately taken for airport purposes, Petitioner will have no use for the variance here sought. Testimony was presented that the soil conditions plus the wetness factor make the site unsuitable for the installation of a septic tank. No evidence was presented regarding the pollution of surface waters by a septic tank in this area or whether public health will or will not be impaired if a septic tank is installed.
The Issue The issue presented is whether Respondent Seanic Corporation's application for an operating permit for a domestic wastewater treatment facility should be granted.
Findings Of Fact On January 20, 1994, Respondent Seanic Corporation submitted to Respondent Department of Environmental Protection an application to construct a wastewater treatment and disposal facility. The application requested approval to construct a facility with a design capacity of 15,000 gallons per day and to discharge its treated effluent to G-III groundwater through two Class V injection wells. Although the Department had no rules with specific depth requirements for such wells, the plans that accompanied the application contemplated wells with a total depth of 90 feet below land surface, which would be cased down to a depth of 60 feet below land surface. On February 23, 1994, the Department gave notice of its intent to issue the requested construction permit. Petitioners did not challenge the issuance of the construction permit, and the Department issued the permit on April 22, 1994, with an expiration date of five years after the issuance of the permit. On February 17, 1999, Seanic began construction of the permitted facility, including the construction of the two Class V injection wells. At the time the wells were first drilled, there were no statutes or rules regarding the appropriate depth of underground injection wells at a facility like Seanic's. Construction of the Seanic facility was completed before April 12, 1999, as reflected by the Certificate of Completion of Construction for the permitted facility. On April 21, 1999, Seanic filed with the Department its application to operate the facility. Chapter 99-395, Laws of Florida, became effective on June 18, 1999, approximately two months after the facility was constructed and the operating permit application was submitted. Section 5 of Chapter 99-395 defines the term "existing" to mean "permitted by the Department of Environmental Protection or the Department of Health as of the effective date of this act." Chapter 99-395 imposes different effluent limitations for "existing sewage facilities" than those that are applied to new facilities. For facilities that have a design capacity of less than 100,000 gallons per day, new facilities must provide treatment that will produce an effluent that contains no more, on a permitted annual basis, than the following concentrations: Biochemical Oxygen Demand (CBOD5) of 10 mg/L Suspended Solids of 10 mg/L Total Nitrogen of 10 mg/L Total Phosphorus of 1 mg/L These standards are frequently referred to as the "10-10-10-1 Standard." In accordance with Section 6(4) of Chapter 99-395, "existing sewage facilities" have until July 1, 2010, to comply with the 10-10-10-1 standard. Prior to that date, "existing sewage facilities" must meet effluent limitations of 20 mg/L for both CBOD5 and suspended solids and must monitor their effluent for concentrations of total nitrogen and total phosphorus. The Seanic facility is an "existing" facility, as that term is defined in Chapter 99-395, and, therefore, has until July 1, 2010, to comply with the 10-10-10-1 standard. Section 6(7)(a) of Chapter 99-395 requires Class V injection wells for facilities like Seanic's to be "at least 90 feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by Department of Environmental Protection rule." The Department has not promulgated any rules requiring Class V injection wells to be deeper than the depth prescribed in Chapter 99-395, Laws of Florida. As of January 26, 2000, the total depth of Seanic's injection wells measured 92 and 94.5 feet, respectively. On November 24, 1999, the Department entered its notice of intent to issue the operating permit applied for by Seanic and attached to the notice a "draft permit" with the conditions and effluent limitations that would be applied to the facility. In issuing the notice, the Department determined that Seanic had provided reasonable assurance that the facility will not discharge, emit, or cause pollution in contravention of applicable statutes or the Department's standards or rules. The draft permit included effluent limitations of 20 mg/L for both CBOD5 and suspended solids and required Seanic to monitor its effluent for total nitrogen and total phosphorus, in accordance with Chapter 99-395, Laws of Florida, and the Department's rules for existing sewage facilities. The draft permit notes that Seanic must comply with the 10-10-10-1 standard by July 1, 2010. Because Seanic's condominium development has not been completed and the wastewater treatment facility is not expected to go into operation for approximately one year, the draft permit also requires that the facility be re-inspected and re-certified immediately prior to going into operation. The Seanic facility was designed to create an effluent that is several times cleaner than required by Department rules. The facility uses an extended aeration process that is expected to reduce levels of both biological oxygen demand ("BOD") and total suspended solids ("TSS") to lower than 5 mg/L, concentrations that are 75 percent lower than the effluent limitations in the draft permit. Similar facilities in the Florida Keys have shown that they can achieve BOD and TSS concentrations of less than 5 mg/L. The Seanic facility has also been designed to provide a greater level of disinfection than required by law. While the draft permit requires only that the facility maintain a chlorine residual of 0.5 mg/L after fifteen minutes' contact time, the facility has been designed with larger chlorine contact tanks to provide a chlorine contact time of approximately one hour at anticipated flow rates. The facility operator can also increase residual chlorine concentrations. These facts, along with the reduced TSS levels at this facility, will provide considerably greater levels of disinfection than the law requires. Although the draft permit does not contain effluent limitations for total nitrogen or total phosphorus, the levels of these nutrients expected to be present in the Seanic facility's effluent are approximately 5 mg/L and 2-3 mg/L, respectively. Studies conducted on the rate of movement of phosphorus in the subsurface indicate that some of the phosphorus is rapidly immobilized through chemical reactions with the subsurface soil matrix. Specifically, studies conducted on injection wells in the Florida Keys report that 95 percent of the phosphorus is immobilized within a short time after entering the injection well. Studies conducted on the rate of movement of nitrates in the subsurface indicate that some nitrate migration is also retarded through chemical reactions with the subsurface soil matrix. More specifically, studies conducted with injection wells in the Florida Keys report that denitrification removes approximately 65 percent of the nitrates within a short time after the effluent enters the injection well. In addition to the chemical reduction of phosphorus and nitrogen levels in the groundwater, studies conducted on injection wells in the Florida Keys with a total depth of 90 feet and a cased depth of 60 feet have reported extremely high dilution rates by the time effluent injected into such wells would appear in surrounding surface waters. More specifically, studies using chemical and radioactive tracers have reported dilution rates on the range of seven orders of magnitude, i.e., 10 million times. After undergoing chemical reduction in the groundwater as well as extremely high dilution rates, the levels of nitrogen and phosphorus that would be expected to enter Captain's Cove and the adjacent canals will be infinitesimal, i.e., less than one part per trillion. Such levels would be several orders of magnitude below detection limits of currently available analytical methods. The surface waters in the artificial canals and in Captain's Cove surrounding the homes of Petitioners' members are classified by the Department as Class III waters that are predominantly marine. The permitted levels of fecal coliform bacteria in the facility's effluent (as restricted in the draft permit) are identical to the discharge limits for fecal coliform bacteria in Class III waters that are predominantly marine. The operation of Seanic's facility will not result in discharges of fecal coliform bacteria in excess of the applicable effluent limitations. Petitioners' expert witnesses agree that the facility, as designed, will comply with all of the conditions and effluent limitations in the draft permit. No Department rule or standard will be violated by this facility. The Department has not promulgated any effluent limitations or standards for viruses to be discharged to G-III groundwater or Class III surface waters that are predominantly marine. Petitioners' members use and enjoy the clear waters in their canals and in Captain's Cove. They have had the water quality tested four times a year since 1988. Captain's Cove, along with the adjacent canals, has remained a clear, oligotrophic water body with minimal algae growth. Petitioners' members fear that the introduction of viruses and other microorganisms through the facility's effluent will cause swimming in Captain's Cove and the adjacent canals to be harmful to their health. Their fear has been heightened by newspaper stories about viruses and a publicized study which erroneously claimed that Captain's Cove had high levels of harmful bacteria. Petitioner Port Antigua Property Owners Association ("PAPOA") received notice of the Department's intent to issue an operating permit to Seanic. The president discussed the permit with another resident, a microbiologist, who in turn discussed the facility with geologists and reviewed studies performed in the Florida Keys. Their serious concern over the depth of the injection wells and the possible release of viruses and bacteria harmful to the marine environment and to the public health was expressed throughout PAPOA's petition, and a copy of one of the tracer studies upon which they relied was attached to the petition. The president of Petitioner Port Antigua Townhouse Association, Inc. ("PATA"), who is also a member of PAPOA, discussed the Department's notice of intent with the president of PAPOA and the microbiologist. He also discussed the project with a member of PATA who oversees Broward County's wastewater treatment facility, which has the same effluent limitations as the Seanic facility. PATA members believed they should join with PAPOA and the Lower Matecumbe Key Association in requesting a hearing on Seanic's operating permit. PATA and others have also filed litigation in the Circuit Court against Seanic Corporation and others. That litigation is still pending. Petitioners were not able to cite any statute or rule that would be violated by the Seanic facility's discharge. They believe that since the facility is not yet operating, it should be required to adhere to the stricter effluent standards required for new facilities. They also believe that the Department should consider the harmful effects of viruses and bacteria on the marine environment and on the public health. Petitioners did not file their petitions for any improper purpose. They did not file their petitions for any frivolous purpose or to harass or to cause unnecessary delay or to increase Seanic's costs in obtaining an operating permit for its facility. They believed the language in the Department's notice of intent to issue the permit which advises substantially affected persons that they have a right to an administrative hearing and that the Department could change its preliminary agency action as an result of the administrative hearing process. They believe they are simply exercising a right that they have under the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Seanic's application for an operating permit for its domestic wastewater treatment facility but denying Seanic's Motion for Attorney's Fees and Costs. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 13th day of November, 2000. COPIES FURNISHED: Francine Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Evan Goldenberg, Esquire White & Case, LLP First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-5309 Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300
The Issue Based upon the evidence presented at the hearing, the primary factual issues are as follow: whether the application for a variance was a minor deviation from the standards established by Rule 10D-6.45(3), Florida Administrative Code; Whether the Petitioner clearly showed that the public health would not be impaired or that pollution of surface or groundwater would not result; and whether the petitioner would suffer a hardship if the variance were not granted. Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
Findings Of Fact On January 11, 1983, the petitioner, George F. Conley, applied for an individual sewage disposal system (septic tank) permit to the Hillsborough County Health Department, a part of the Respondent, Department of Health and Rehabilitative Services. This application appears to be for one of two adjoining lots owned by the Petitioner. By letter dated January 11, 1983, signed by William Dickson of the Hillsborough County Health Department, the petitioner's application was denied. The grounds for denial, as stated in Dickson's letter received as Joint Exhibit 1, were lack of sufficient soil depth and severely limited soil. The Petitioner applied for a variance as provided for in Joint Exhibit On January 24, 1983, a hearing was held before the Variance Board pursuant to Section 10D-6.45, Florida Administrative Code. The transcript of said proceeding reflects that the Board unanimously recommended approval of a "mound" septic tank system which would be elevated at least three feet above the existing grade and be oversized. The application for the variance was for one of the Petitioner's two lots; however, the Board's approval was for a variance on both lots. On or about February 1, 1983, Robert Roush, soil conservationist for the United States Department of Agriculture, conducted a soil identification at the Petitioner's proposed construction site. In Roush's letter of February 1, 1983, he reported that test borings indicated the soil at the test site was Bradenton fine sand, thin surface phase, as described in the Soil Survey for Hillsborough County, Florida, Series 1950, No. 3, of September 1958, USDA--Soil Conservation Service. Roush further reported that the Soil Survey Supplement of the USDA--Soil Conservation Service, Seffner, Florida, June 1981, indicated said soil constituted a severe hazard, with wetness being the chief limiting factor. By letter dated February 14, 1983 (Joint Exhibit 5), Stephen H. King, State Health Officer, denied the Petitioner's request for a variance for a septic tank system in relationship to both lots. Dr. King's letter stated in pertinent part as follows: granting of variances from established standards is for relieving or preventing excessive hardships and may be granted where minor deviations will not result in pollution of ground- water or impairment of public health. The Hillsborough County Health Unit has stated that a history of failing systems has been noted in the Ruskin area in soil conditions similar to those existing on your lots. Although the Review Group for Individual Sewage Disposal has recom- mended approval of your variance appli- cation, the site specific conditions on your lots, including soil, seasonal high water table and potential flooding conditions, do not appear suitable for the installation of onsite sewage dis- posal systems. Therefore, I must hereby disapprove your request for variance. The Petitioner timely requested a formal hearing on the denial of his application and request for a variance. In the manner by which the water table is computed under the Respondent's rules, the perched water table normally lies at six inches beneath the surface. C. K. Satyapriya was accepted as an expert in civil engineering and geo-technical engineering. Satyapriya described a mound septic tank system for treatment of gray water waste which met the minimum criteria for soil depth as provided in Rules 10D-6.42(12) and 10D-6.45(2), Florida Administrative Code, and could be installed on the site. See Hearing Officer's Exhibit 1. According to Satyapriya's plan, the existing soil would be excavated, a soil with good absorptive qualities would be used as fill in the area excavated, and additional material added to form a mound. Black water would be dealt with separately, retained onsite, and removed from the site for disposal. The pictures taken by the parties and the weather information presented by the Petitioner indicate that January/ February 1983 was a period of exceptionally high rainfall in the Tampa Bay area within which Ruskin is located. The system described by the Petitioner's expert would not have flooded for any significant period during these exceptional conditions. Dickson, a sanitarian with the Hillsborough County Health Department for 22 years and supervisor in the area of administration of septic tank applications, was called to rebut Satyapriya's testimony. Dickson had worked for many years in the area of Ruskin, Florida, where the Petitioner's lots are located. Many problems with septic tanks, including flooding and breakdown of the system, occur in this general area because of a layer of impermeable material near the ground surface. This impermeable layer prevents the waste water from dissipating within the drainfield and, when it rains, acts as a basin to retain rainwater above the impermeable layer. Any excavation into, but not through, this impermeable layer traps the water, creating a bathtub effect. The bathtub effect creates problems when the area floods during heavy rains and the replaced material within which the drainfield has been installed becomes saturated. When saturated with water, the septic tank system is unable to accept any more waste product, which in turn backs up sewage into the waste line of the home or business. These conditions constitute a health hazard to the public and a potential health hazard to ground and surface water. Dickson interpreted the rule to require digging through the impermeable layer to permit the water to move down into absorptive material below. The existing water tables in the area of concern are a result of the subsurface impermeable layer described above. This layer retains the water above the layer and prevents it from sinking deeper into the ground. It also forms a cap on top of the water beneath it, which water table may be restrained by it. The resultant water pressure causes artesian wells. Therefore, this impermeable layer causes two water tables in this area, one perched on top of the impermeable layer and another underneath the impermeable layer. It is the water table perched on top of the impermeable layer which lies close to the surface. However, the impermeable layer keeps this "surface" water from mixing with water beneath the layer. Drinking water is not obtained from the upper water table, but from the water table under the impermeable layer. The impermeable layer would not be penetrated by the proposed gray water system, which meets the Respondent's guidelines of 54 inches beneath the drainfield. According to Dickson, a mound made of absorptive materials would soak water up into the mound from the groundwater level. This would saturate the drainfield in the mound above the normal water table. Satyapriya testified that the use of course material would prevent this absorption through capillary action. Satyapriya's testimony is accepted as the most credible, and the gray water treated in the mound would not pollute the upper water table.
Recommendation Having found it is a minor deviation from the rules to install a septic tank system in an area of limited soil; having found the denial of the Petitioner's application is a substantial hardship; having found that a mound system can be installed within the physical limitations provided in the rules; and having found that a system separating gray and black water properly installed would not endanger public health or pollute water, it is recommended that the Respondent approve an alternate system for one of the Petitioner's lots, constructed in accordance with plans certified by a Florida engineer to be installed in accordance with the approved design and installation requirements to provide for onsite treatment of gray water waste and retention and removal of black water waste from the site for disposal. DONE and RECOMMENDED this 13th day of January, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1984. COPIES FURNISHED: DAMON C. GLISSON, ESQUIRE 5908 FORTUNE PLACE APOLLO BEACH, FLORIDA 33570 AMELIA PARK, ESQUIRE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 4000 WEST BUFFALO AVENUE TAMPA, FLORIDA 33614 DAVID H. PINGREE, SECRETARY DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD TALLAHASSEE, FLORIDA 32301 =================================================================
Findings Of Fact Sapp is the owner of Lot 24, Tara Farms Subdivision, located at Doctor's Inlet, Clay County, Florida. Sapp's request for septic tank permit was denied by HRS in its letter of November 28, 1978, for the following reasons: Soils of unsatisfactory quality beginning at ground level and con- tinuing to entire depth of soil log. Impervious soils as identified under the "Unified Soil Classification System" as inorganic clays of high plasticity, fat clays, inorganic clays of low to medium plasticity, gravelly clays, sandy clays, silty clays, lean clays. Percolation test rate exceeds fifteen (15) minutes per inch run-off. History of septic tank failures in this subdivision. In its letter, HRS contends that the foregoing reasons for denial constitute a failure to meet the requirements of Chapter 10D-6, Florida Administrative Code, standards for individual sewage disposal facilities. Understanding that the soil was unacceptable in its natural condition, Sapp employed a consulting engineer, Mr. H. C. Stone, to design a plan that would conform to state regulations. Mr. Stone recommended that a 40' X 70' X 3' compacted free-draining sand fill be employed to provide an adequate filter bed for the septic tank. Mr. Stone further recommended that the drain field consist of not less than 300 feet of drain pipe (perforated or open joint) installed in the middle of the fill area. Stone further recommended that the laundry facilities be discharged through a separate 225 gallon tank with a separate drain field consisting of 75 feet of drain tile and a 15' x 40' X 3' compacted free draining sand fill. The depth of the water table during the wettest season of the year from the surface is 20 inches. Installation of the sandfill to a depth of 3 feet would create soils of satisfactory quality and characteristics from the surface to the water table at the wettest season of the year and would eliminate objectionable impervious soils from the system. The percolation test rate for the natural soils exceeds 15 minutes per inch run-off, but the proposed drain field would have a percolation rate of only 1.2 minutes per inch. While evidence of septic tank systems failures in the same subdivision was introduced, none of the examples of failure occurred in systems with the same specifications as those proposed by Sapp for use on his property. Of the three examples given, all contained a significantly lesser depth of free- draining sand fill.
Findings Of Fact On May 4, 1979, the Department received from Hudson an Application for Variance from Rules 1704.244(1)(f), 1704.244(1)(h)(1), 1704.244(1)(i)(1) and 1704.4244(4), Florida Administrative Code. The request was for a period of twenty four months and was prompted by Hudsons alleged inability to meet the standards set forth in the rules at a secondary waste water treatment facility which is operated in conjunction with a pulp and paper plant in Palatka, Florida. The wastewater is discharged from the plant into Rice Creek and from the creek into the St. Johns River. Hudson stated in its request for a variance that no technology exists, now or in the foreseeable future, which would enable Hudson to meet the rule standards. Hudson further stated that it is presently utilizing the best available technology economically feasible at its Palatka plant. After reviewing the Application for Variance, the Department requested additional information concerning Hudson's application which involved: Hudson's inability to meet applicable water quality standards within the 800 meter mixing zone set forth in Rule 1704.244(1)(f), Florida Administrative Code. Hudson's inability to meet water quality standards within 10 percent of the total length of Rice Creek as required by Rule 1704.244(1)(h)(1), Florida Administrative Code. Hudson's inability to meet a dissolved oxygen level of not less than 4 mg/1 as required by Rule 17-4.244(1)(i)(1), Florida Administrative Code. and Hudson's inability to meet a minimum dissolved oxygen level of 1.5 mg/1 at any time or place. Due to its alleged inability to meet the applicable standards, Hudson proposed that the zone of mixing be extended into the St. Johns River and that average and minimum dissolved oxygen levels be inapplicable in the extended mixing zone. Hudson clarified its request on July 11, 1979, to include in the mixing zone that portion of Rice Creek between Hudson's point of discharge and Rice Creek's confluence with the St. Johns River and 2000 feet beyond the confluence into the river. Additionally, Hudson clarified its request for average and minimum dissolved oxygen levels 0.0 mg/1, respectively, within the modified mixing zone. On August 24, 1979, the Department issued a Notice of Intent to approve the variance subject to the following conditions: That the variance be in effect for a period of not ore than 24 months. That Hudson study alternative discharge and monitoring systems with details and scope of the studies to be approved prior to the effective date of the variance. That Hudson utilize its treatment facilities to the maximum extent to minimize BOD5 loading into Rice Creek and maximize dissolved oxygen levels. Within two months of the effective date of the variance, Hudson is to provide the Department a report outlining how the company will meet this requirement. That Hudson continue to apply new technology as it becomes available and conduct ongoing studies in this area and submit the same to the Department upon completion and That Hudson continue to study, stress and utilize water reuse conservation techniques to reduce the amount of water consumed per ton of product produced. Subsequently, the Department received from Hudson a technical program for continued water quality studies at Rice Creek. Following further communications and discussions, Hudson and the Department agreed on a six month study to replace the two month requirement concerning dissolved oxygen levels in the effluent. Eventually, the Respondents agreed on a study to encompass conditions 5(b) and (c) set forth, supra. Following receipt of a letter to the Department from the Florida Game and Fresh Water Fish Commission, Hudson agreed to incorporate into its study the issues raised by that agency. At the formal hearing the Petitioner and Intervenor, an adjoining property owner, pressed their objections to the Department's intent to issue a variance to Hudson. Hudson demonstrated that its wastewater treatment system at its Palatka facility utilizes the most effective and technologically advanced treatment system available. Hudson has made a major commitment towards upgrading its treatment facilities as new and practicable treatment technologies become available. Hudson's Palatka plant has the highest quality of effluent of any paper mill operating in the state. Hudson is unable to meet the present standards for discharge due primarily to the classification of Rice Creek as a Class III water body. Although classified as a Class III water, Rice Creek, even in the absence of the Hudson discharge, would be unable to meet the standards of the Florida Administrative Code for such waters at all places and times. There is no practicable technology currently available which would enable Hudson to meet Class III water standards. Hudson's annual average for discharge of Biochemical Oxygen Demand ("BOD") and Total Suspended Solids ("TSS") exceeded the Best Available Technology ("BAT") standard proposed by the Federal Environmental Protection Agency by 47% and 22% respectively. Hudson's permit levels only require the standards to be exceeded by 20% and 19%, respectively. Despite Hudson's good faith efforts to meet water quality standards, it is not presently possible to meet Class III criteria for discharge into the St. Johns River. Accordingly, a variance is required from the mixing zone and dissolved oxygen provisions of Chapter 17-4 Florida Administrative Code, if Hudson is to continue in operation. In the intended mixing zone proposed by Hudson, dissolved oxygen levels of 0.0 mg/1 could be expected at certain times of the year and under certain conditions. The variance does not authorize Hudson to discharge at levels in excess of its present permits. If the Palatka plant were to close, Putnam County and a surrounding area would experience severe economic harm due to the tremendous impact the plant has on the local economy. The water quality of the St. Johns River is not significantly affected by the discharge into Rice Creek.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner violated Florida Administrative Code Rules 64E-6.022(1)(b)2, 64E-6.022(1)(d), and 64E-6.022(1)(p) by making repairs to an on-site sewage disposal system without a permit, and by missing required inspections of the system, as outlined in the citation issued by the Respondent Agency dated August 29, 2005.
Findings Of Fact The State of Florida, Department of Health and Duval County Health Department (Department) is an Agency of the State of Florida, charged with enforcing the statutory and regulatory provisions regarding septic tank and drain field installations and repairs, in Florida, in accordance with Section 381.0065, Florida Statutes, and Florida Administrative Code Rule Chapter 64E-6. The Petitioner is the qualifying registered septic tank contractor for All Florida Septic Tank Service, Inc. (All Florida). He holds registration number SR00011389. He has 15 years of experience in the field of septic tank system construction and repair. All repairs of on-site sewage treatment and disposal systems (septic systems), are required to be performed under the supervision and control of a registered septic tank contractor. Mr. David Adeeb is president of United Properties of North Florida, Inc. He owned property (a residence) at 375 North Cahoon Road, in Duval County Florida. He was informed by his tenants at that residence that the septic tank and drain field were malfunctioning and needed to be repaired or replaced, sometime in April 2004. He therefore contacted All Florida, asking them to inspect the septic system at that residence and advise what repairs might be needed. He was advised by some representative of All Florida that the drain field needed to be replaced and was quoted a price of $2,000.00. All Florida requested that payment be made before the work was performed. Since Mr. Adeeb was out-of-town at the time he asked his tenant to temporarily pay All Florida for the cost of the repairs and/or installation, which they agreed to do. All Florida then issued a contract/proposal to United Properties on April 12, 2004. It was signed by a representative of All Florida, Michael Carver. Mr. Carver was an employee of All Florida. The contract/proposal indicated that a 360 square foot drain field would be installed at 375 Cahoon Road, for a price of $2,000.00, to be paid in cash. The contract/proposal was on All Florida letterhead and included a warranty. Mr. Adeeb was told by his tenant that the Petitioner, who is personally known to that tenant, was on the property while the work was being performed. No one applied for a permit to make any repairs to the septic system and the work was completed without a permit being obtained. Some five months later the system began leaking sewage from the new drain field. It had malfunctioned. Mr. Adeeb therefore again called All Florida to demand that they repair any malfunctions pursuant to the warranty. All Florida informed Mr. Adeeb that a new drain field with a mounded system and pump was needed. When Mr. Adeeb told a representative of All Florida that they had just replaced the drain field in April of that year, he was told that another $2,000.00 would be required to correct the drain field problem. Mr. Adeeb had just recently entered into a contract to sell the property at 375 Cahoon Road so, time being of the essence in closing the sale of the property, he felt he had no choice but to ask All Florida to go ahead with the repair work on the system which All Florida had been asked by him to repair five months previously in April of 2004. After the new system was installed Mr. Adeeb found that a permit had never been obtained for the first drain field work which he had requested from All Florida and that All Florida had done the work incorrectly. Mr. Adeeb objected to paying another $2,000.00 for the second repair job, performed in approximately September of 2004 and after much discussion with All Florida's representatives agreed to pay $1,000.00 dollars for the second stint of repair work. He made the payment and he received a warranty from All Florida for one year, good through September 22, 2005. The warranty was signed by Mr. Wayne Joyner, operations manager for All Florida. Mr. Joyner is also the qualifying registered septic tank contractor for AA Septic Tank Service, Inc., apparently a second corporation domiciled at the same facility and address as All Florida Septic Service, Inc. In May of 2005 Mr. Adeeb was again contacted by the now former tenant who had purchased the property from Mr. Adeeb. He was thus informed that the system had failed again and sewage was leaking onto the surface of the property from the drain field. Mr. Adeeb again contacted All Florida on May 23, 2005. A representative of All Florida informed him that he should fax a copy of the paid receipt and the warranty to them and that they would take care of the problem. On June 20, 2005, the home owner again contacted Mr. Adeeb and told him that no one from All Florida had repaired the drain field as yet. A faxed copy of the paid receipt and warranty was requested once again by All Florida. After numerous phone calls with representatives of All Florida, Mr. Adeeb was told that the problem was not due to All Florida's repair work and that Mr. Adeeb would need to get someone else to repair the system. The Petitioner, James L. Smith, the registered qualifying septic tank contractor for All Florida, testified that Michael Carver had performed the initial repair job in April of 2004 for Mr. Adeeb without the knowledge of the Petitioner or All Florida. He claims that Michael Carver never worked for All Florida. He introduced into evidence a letter purported to be from Michael Carver which was dated September 30, 2005, but signed on October 5, 2005. That letter states that Mr. Carver performed the first drain field repair job without the knowledge of All Florida and that he had created the receipt form which was apparently given to either the tenants at the residence in question, or to Mr. Adeeb, on All Florida letterhead without the knowledge of any officer, employee, or representative of All Florida. That letter, however, was not authenticated because Mr. Carver was not present at the hearing and could not be examined concerning it, or the details of Mr. Carver's involvement with the initial repair project. Moreover, the Petitioner was unable to explain how Mr. Carver would have known about the job at all if he had never worked for All Florida. This is because Mr. Adeeb established that in obtaining all of the repair work during 2004-2005 he had only contacted representatives of All Florida. He had never had contact with Mr. Carver. The Petitioner denied ever telling counsel for the Department in a telephone conversation that Michael Carver had worked for him during the week (i.e. All Florida) but that he let Mr. Carver do "side jobs" on his own on weekends. He claimed that Mr. Carver did the job in question in April of 2004 because the tenants knew him personally and arranged for him to do the work. The testimony of Mr. Adeeb and the Department's evidence in the form of its composite exhibit, is accepted as more credible than the self-serving testimony of the Petitioner, and it is found that All Florida and the Petitioner were responsible for the repair jobs at issue in this case because Mr. Adeeb contracted with All Florida for the work in question. Even if the initial job was performed by Mr. Carver, it is determined that he did so as employee or agent of All Florida and the Petitioner. Under the authority cited herein the Petitioner was responsible, as the qualifying, registered septic system contractor for All Florida, with performance and supervision of the work in question.
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 a final order be entered by the Respondent Department finding that the violations charged have been established and that a fine of $2,500.00 dollars be imposed for the violations. DONE AND ENTERED this 30th day of March, 2006, in Tallahassee, Leon County, Florida. S 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 Clerk of the Division of Administrative Hearings this 30th day of March, 2006. COPIES FURNISHED: James L. Smith 8300 West Beaver Street Jacksonville, Florida 32220 Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact The Respondent, Hance B. Jones, is a registered septic tank contractor. The Petitioner is charged with regulating septic tanks, and may initiate charges against septic tank contractors which fail to comply with the statutes and rules regulating septic tanks. The Department's local inspector, Mr. Land, was asked by a representative of Best Septic Tank Contracting to meet with the Best representative and Ms. Inez Quiett at Ms. Quiett's home and confer about a proposed septic tank repair. On March 5, 1992, Mr. Land visited the site, observed water standing around an area which he was advised was the existing septic tank and drain field, and was asked what would have to be done. Mr. Land advised that they would have to obtain a permit, and that the new drain field would have to be separated by at least 24 inches from the wet season water table, and that this would entail placing the drain field in a mound. Mr. Land left the site expecting to have a representative of Best pick up a permit for the repairs within a few days. When Mr. Land did not see anyone come in about the permit, he drove by Quiett's, and observed disturbed soil in the area of the drain field. He stopped, went to the Quiett's house, and spoke with Ms. Quiett's son. The son advised that they had repaired the drain field. Mr. Land asked who had repaired the field, and the son advised him that Mr. Jones had repaired it. On April 22, 1992, Mr. Land then wrote a letter to the Respondent and advised Jones that he had violated the law by repairing Quiett's septic tank and not obtaining a permit for the repair. Mr. Jones spoke with Land at Land's office, and denied that he had repaired the septic tank. Mr. Jones stated he had provided the materials and equipment used to repair the tank. On April 22, 1992, Ms. Quiett called Mr. Land on the telephone, and told Land that Mr. Jones had helped her with the tank, but denied that Jones had been her contractor. The Respondent denied that he was the contractor of the job; denied he was on the site; denied he supervised the work; and denied he received any compensation from Quiett. He indicated that he knew Ms. Quiett's brothers, who were contractors, and admitted that he had provided the materials used on the job and had loaned them his backhoe. Ms. Quiett was asked about the repairs to the system and invoked her privilege against self-incrimination.
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 Administrative Complaint against the Respondent be DISMISSED. DONE AND ENTERED this 26th day of August, 1992, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1992. COPIES FURNISHED: David West, Esquire District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609 Bobby Kirby, Esquire Route 2, Box 219 Lake Butler, FL 32054 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact Petitioner, SuperAmerica of Florida, Inc. (SuperAmerica) is affiliated with SuperAmerica Group, Inc., a corporation with headquarters in Lexington, Kentucky. SuperAmerica markets petroleum products from convenience store facilities in an eleven-state area concentrated in the Ohio Valley and upper Midwest. In 1985, SuperAmerica began constructing convenience store facilities in Florida, and opened its first stores in 1986. It installed state-of-the-art petroleum storage tanks, lines, dispensers and leak detection equipment at each new site. Casey McKenzie became SuperAmerica's administrative manager for its Florida facilities in October 1990. At that time there were approximately thirty-seven SuperAmerica convenience store facilities in Florida. Mr. McKenzie's duties included monthly reporting to corporate headquarters, environmental compliance, and emergency petroleum discharge response at the Florida sites. Mr. McKenzie left Florida in June 1993, after SuperAmerica completed its sale to Shell Oil Company of what was then over fifty sites. Virtually all of SuperAmerica's Florida sites had three separate tanks for different grades of gasoline, plus one tank for diesel fuel. The tanks were either 12,000 or 8,000 gallons in volume. Each site had between twelve and sixteen dispensers, and each dispenser had up to six nozzles for dispensing different grades of gasoline and diesel fuel. The Florida sites, including the sites at issue, experienced high volume sales as they were open twenty-four hours a day and were located in areas of heavy private and commercial traffic. The volume of sales required frequent storage tank refilling, sometimes daily or every other day. The volume of sales and frequent refillings made petroleum discharges in the form of spills, splashes and drips caused by human error a common occurrence. Customer overfill incidents involving small quantities of fuel were the most common occurrence. Other spills resulted when the underground storage tanks were being filled. SuperAmerica had procedures to minimize the risk of spills and to detect the spills or discharges. The tanks were all fitted with Gilbarco automatic tank gauging devices which computed volume of fuel and water in the tanks, the inches of fuel and water and the temperatures inside the tanks. Operators or staff also used long sticks to manually measure volume of fuel and water in the tanks. And a third method of measure was a daily sales inventory. Mr. McKenzie received the reports of these inventories on a periodic basis and store operators were instructed to watch for, and report unexplained discrepancies. To his knowledge, during his tenure as administrative manager, there were no unexplained discrepancies nor discrepancies in those inventories resulting from leaking tanks. At each site, including the sites at issue, there were six groundwater monitoring wells. The wells were generally installed during installation of the underground storage tanks in the same excavation pit. The monitoring wells were accessible through manhole covers on the surface of the concrete pad. Locked caps below the manhole covers were intended to maintain the environmental integrity of the wells. Water entered the wells through slots in the pipes which lined the well, from about a foot below the pad surface and extending below the water table. Prior to June 1991, the SuperAmerica area managers took water samples from the wells each month, performed sight and smell tests and recorded the results on an inspection report. Beginning in June 1991, SuperAmerica hired National Environmental Services and Testing (NEST) to perform the monthly groundwater sampling from the monitoring wells. NEST used a vapor monitoring device (organic vapor analyzer - OVA) in the monitoring wells to detect the pressure of organic vapors in addition to performing groundwater sampling. The monitoring wells at the seven sites at issue contained groundwater. At various times, as more specifically addressed below, NEST's monitoring reports for the sites at issue noted elevated organic vapor readings, odor present, and product in the form of skim, light skim, or sheen. Mr. McKenzie had procedures in place and carried out those procedures to respond to large volume spills or accidents above ground, as well as catastrophic leaks of underground tanks. These were his primary concerns. He did not expect a catastrophic leak in the relatively new equipment, and none occurred. Mr. McKenzie did not attribute any of the reports of elevated vapor readings, odor or presence of petroleum or diesel product in the form of skim or sheen, as evidence of tank or line failure. There are other rational explanations for the readings. Specifically, rainfall could easily dissolve and wash spilled fuel, antifreeze, oil or road grease into cracks in the pad, into manhole covers and onto the ground where it could easily seep into the monitoring wells. As conceded by counsel for SuperAmerica, there was a discharge at each of the seven sites, for purposes of the FPLRIP program. Printed text on the top of the Discharge Reporting Forms advises facilities of their obligation to report discharges or suspected releases within one day of discovery. For each site at issue, monitoring well records contained evidence of odor, product or elevated vapor readings more than one day prior to SuperAmerica's filing Discharge Reporting Forms. After filing Discharge Reporting Forms with DEP, Mr. McKenzie contacted Tanknology Corporation to schedule testing of the tanks and lines. The company was busy and was not able to complete the tests until some time (more than three days) after Mr. McKenzie filed the Discharge Reporting Forms. SuperAmerica did not intentionally cause a discharge at any of the sites, nor intentionally disable leak detection devices. When the Discharge Reporting Forms were filed, Mr. McKenzie was not aware of any spill or other discharge in excess of 25 gallons for which he had failed to file a reporting form within twenty-four hours. As of the date of the hearing there was no conclusive evidence of what caused the odor, product and elevated OVA readings in the monitoring wells. SuperAmerica's expert conjectures that they were caused by surface water runoff, sloppy transport deliveries, customer overfills and other routine problems of the high-volume facilities. In determining whether SuperAmerica was eligible under FPLRIP with regard to the sites at issue, DEP's program administrator, William Truman, considered only whether SuperAmerica properly reported suspected releases and whether it timely tested the storage systems. Those were appropriate considerations. The basis for denial as to each site is more specifically described below. On January 19, 1993, counsel for the parties executed a joint stipulation relating to an eighth facility site. In that stipulation, the agency recited its agreement that failure to report suspected releases within one working day of discovery could no longer, standing alone, serve as a basis for denial of restoration coverage eligibility under 1992 amendments to Chapter 376, Florida Statutes, governing FPLRIP. The stipulation also recited: Nothing in this Joint Stipulation shall be construed to mean that violation of the discharge response requirements contained in section 376.3072(2)(d), F.S. (1992) , and implemented in rules 17-769, 17-769.600(15) and (16), Florida Administrative Code is no longer a valid basis for denial of eligibility for restoration coverage on an incident by incident basis under FPLRIP. (Petitioner's Exhibit No. G) Hudson-DEP Facility No. 51-8837646 DOAH Case 92-6871 (Site 8023) At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system located at 9508 SR 52, Hudson, Pasco County, Florida. The facility consisted of four underground storage tanks (USTs): two 12,000 gallon gasoline USTS; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about March 1988. On August 21, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well five was 3800 ppm, while the OVA reading for monitor well six was 2800 ppm. On September 16, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four and six. The OVA reading for monitor well four was 1000 ppm, while the OVA reading for monitor well six was 2000 ppm. On October 15, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well four was 2400, five was 2900 ppm, and the OVA reading for monitor well six was 2200 ppm. On November 20, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well four was 3600, five was 3000 ppm, and the OVA reading for monitor well six was 6900 ppm. On December 4, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well four was 3100, five was 2800 ppm, and the OVA reading for monitor well six was 5100 ppm. On January 4, 1992, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well four was 1100, five was 2400 ppm, and the OVA reading for monitor well six was 2900 ppm. On March 6, 1992, NEST sampled the monitor wells at the facility. There was product in monitor wells four, five and six. The report also indicates there was an odor in monitor wells five and six. The OVA reading for monitor well six exceeded 10,000 ppm. Elevated readings and odor persisted in well six in April and June. On July 14, 1992, NEST sampled the monitor wells at the facility. There was an odor in monitor wells five and six. The OVA reading for monitor well four was 1400 ppm, while the OVA reading for monitor well six was 2600 ppm. On or about July 24, 1992, SuperAmerica filed a Discharge Notification Form with the Department. The form was signed by Casey McKenzie. The form indicates the date of discovery was July 14, 1992 (the most recent date on which NEST sampled the monitor wells). The method of initial discovery was a Vapor Reading Report from Monitoring Company. The Type of pollutant discharged was Unleaded gasoline. The Cause of leak and Estimated number of gallons lost were both Unknown. On or about August 26, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a certificate of tightness. The test report commented that one dispenser had leaks at the nozzle when pumping and the tester had the store put an Out of Order sign on the nozzle. On or about September 1, 1992, the Department issued an order declaring SuperAmerica site no. 8023 eligible for FPLRIP restoration coverage for the reported discharge. On October 6, 1992, and again on October 21, 1993, the Department issued its amended orders of ineligibility for FPLRIP restoration coverage for the discharge reported. Melbourne-DEP Facility No. 05-8840685 DOAH Case 93-4402 (Site 8024) At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8024) located at 700 West New Haven Avenue, Melbourne, Brevard County, Florida. The facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about August 1988. On December 13, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product and an odor in all six wells. The OVA readings for the monitor wells ranged from 4200 ppm to 8500 ppm. On January 16, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product and an odor in all six wells. The OVA readings for the monitor wells ranged from 1200 ppm to 8000 ppm. On February 19, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product present in wells one, two, five and six. There was an odor in all six wells. The OVA readings for the monitor wells ranged from 2100 ppm to an excess of 10,000 ppm. On March 19, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product and an order in monitor wells one and five. The OVA readings for wells one and five both exceeded 10,000 ppm. Odor and elevated readings persisted in April. On June 20, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well six exceeded 10,000 ppm. There was odor in wells one, five and six. The report contains the notation Charlie will check early July. If readings have not declined, he will file DNF. On July 9, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA readings for the wells ranged from 220 ppm to 7100 ppm. There was odor in wells three, four, five and six. On July 17, 1992, Brevard County conducted an inspection of the facility. The Natural Resources Management Division of Brevard County is DEP's designated local program for purposes of the FPLRIP. The report noted the excess OVA readings since December. It required a tightness test and investigation into the source of the discharge, and it required a contamination assessment. It also noted that administrative action will be taken on this facility for major violation of 17-761, Florida Administrative Code . . . (Respondent's Exhibit No. 1) On or about July 21, 1992, SuperAmerica filed a Discharge Notification Form with the Department. The DNF indicates the date of discovery was July 9, 1992 - the date on which NEST sampled the monitor wells. The method of initial discovery was Vapor Readings. The Type of pollutant discharged was Unleaded gasoline. The Cause of leak and the "Estimated number of gallons lost were both Unknown. On or about July 28, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a certificate of tightness. On or about July 1, 1993, the Department issued its Order of Ineligibility for FPLRIP restoration coverage for the reported discharge. Cocoa-DEP Facility No. 05-8841566 DOAH Case 93-4402 and 93-4403 (Site 8034) At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8034) located at 1600 Clear Lake Road, Cocoa, Brevard County, Florida. The facility consisted of three underground storage tanks: two 12,000 gallon gasoline USTs; and one 8,000 gallon UST. The USTs were installed in or about January 1989. On December 13, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product present in well number five. There was an odor present in all of the wells. The OVA readings for wells one, two, three, four and six all exceeded 10,000 ppm. On January 16, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells one through four and well six. With the exception of well three, the OVA readings for all of the wells exceeded 10,000 ppm. On February 16, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in all of the wells. The OVA readings for the wells ranged from 2100 ppm to an excess of 10,000 ppm. On March 19, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in all of the wells. The OVA readings for the wells ranged from 4100 ppm to an excess of 10,000 ppm. On or about March 31, 1992, Brevard County conducted an inspection at site no. 8034. The Pollutant Storage Tank System Inspection Report Form cover sheet prepared by the Brevard County Inspector noted in part: From 12/31/91, OVA readings in all wells have exceeded reportable quantity (>500 ppm); in some instances, 5 wells >10,000 ppm. (Respondent's Exhibit No. 2) The Inspection form also noted the facility failed to report Suspected releases within one working day of discovery. The above-referenced Underground Storage Tank Compliance Inspection Form also noted the facility failed to report Confirmed releases (positive response of a release detection device) within one working day of discovery (Respondent's Exhibit No. 2). The form requires a DRF within one day and a tightness test ASAP. On or about March 31, 1992, SuperAmerica filed a Discharge Notification Form with the Department. The DNF was signed by Mr. Casey McKenzie. The DNF indicated the date of test or discovery was March 30, 1992. The method of initial discovery was a DER Compliance Audit. The DNF does not contain information concerning the estimated number of gallons lost. The Cause of leak and the Type of pollutant discharged were both Unknown. On or about April 5, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a tightness certificate. The test report noted no product visible in the monitoring wells, but odor was present. On July 1, 1993 and again on October 21, 1993, the Department issued its order and amended order of ineligibility for FPLRIP restoration coverage for the reported discharge. Sarasota-DEP Facility No. 58-8840985 DOAH Case 93-5734 (Site 8035) At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8035) located at 4405 North Washington Boulevard, Sarasota, Sarasota County, Florida. The facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about August 1988. On September 17, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product present in well six. There was an odor in all six wells. The OVA reading for wells one, two, three and five all exceeded 1500 ppm. On October 18, 1991, NEST sampled the monitor wells at the above- referenced facility. Both product and an odor were present in all six wells. The OVA readings for wells one through five exceeded 700 ppm. On November 22, 1991, NEST sampled the monitor wells at the above- referenced facility. Both product and an odor were present in all six wells. The OVA readings for wells one, two and five were 2200 ppm, 1200 ppm and 4000 ppm. On December 10, 1991, NEST sampled the monitor wells at the above- referenced facility. Product and odor were present in all six wells. The OVA reading for well five was 3100 ppm. On January 20, 1992, NEST sampled the monitor wells at the above- referenced facility. There was both product and an odor present in all six wells. The OVA reading for well five was 3200 ppm. On February 12, 1992, NEST sampled the monitor wells at the above- referenced facility. There was both product and an odor present in all six wells. The OVA reading for well two was 900 ppm. On March 11, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product in all six wells and odor present in wells one, two and five. The OVA reading for well two was 900 ppm. On April 12, 1992, NEST sampled the monitor wells at the above- referenced facility. There was both product and an odor present in wells one, two and three. On or about April 16, 1992, Sarasota County conducted a routine inspection at the above-referenced facility. The Sarasota County Pollution Control Division is DEP's designated local program agency for purposes of FPLRIP. On the Pollutant Storage Tank System Inspection Report Form the Sarasota County Inspector noted: Monitor wells 1, 2, 3 and 5 had OVA readings exceeding 5000 ppm. - High readings and product in wells has been recorded in monthly report by the facility since October, 1991. (Respondent's Exhibit 4) The inspector also noted the facility Has recorded high OVA readings in several MW's but not filed DRF. The County Inspector also noted the facility failed to report Any spill, overfill, or other discharge within one working day of discovery and that the facility failed to report Suspected releases within one working day of discovery. The County Inspector made the following notations on the back of the report: Monitoring well log indicates excessive contamination free product in all wells high OVA readings as [far] back as October '91 no records of any tightness testing in regards to the increase of contamination levels found in wells. DRF on file? (Respondent's Exhibit 4) A letter from Sarasota County dated April 22, 1992, required laboratory analysis of monitor well water within 45 days. The analysis was done by NEST and was provided to Sarasota County on June 29, 1992. On July 7, 1992, Sarasota County received the report and requested that SuperAmerica file a Discharge Reporting Form due to the appearance of excessive contamination. On or about July 15, 1992, SuperAmerica filed a DNF with the Department. The DNF indicates July 14, 1992 as the Date of receipt of test results or discovery. On or about August 29, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a certificate of tightness. On or about September 17, 1993, the Department issued its order declaring SuperAmerica ineligible for FPLRIP restoration coverage for the reported discharge. Clearwater DEP Facility No. 52-8944446 DOAH Case No. 93-4406 (Site 8036) At all times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8036) located at 4450 Easy Bay Drive, Clearwater, Pinellas County, Florida. The above- referenced facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about August 1989. On September 16, 1991, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 8000 ppm while the OVA reading for monitor well six was 3000 ppm. On October 17, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product and an odor present in well five. The OVA reading for well five was 8500 ppm. On January 1, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for wells four and five was 1100 ppm. On February 6, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product present in well five. The OVA reading for well five was 400 ppm. On March 11, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 2800 ppm. On April 7, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 650 ppm. On July 13, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 1100 ppm. Casey McKenzie prepared a Discharge Notification Form but did not file it because he believed the local agency had instructed him to hold it pending further investigation. On or about August 28, 1992, Tanknology Corporation performed tank and line tests at the site and issued a Certificate of Tightness. On October 12, 1992, Pinellas County conducted a routine inspection at the above-referenced facility. The HRS Pinellas County Health Unit is the agency's designated local agency for FPLRIP. The County Inspector made the following notation on the Inspection Report Form Cover Page: What actions were taken in response to positive responses in one or more monitor wells for the following months - 10/91; 9/91; 11/91; 1/92; 2/92; 3/92; 4/92; 7/92 - provide copy of monitor these monitor reports - take appropriate actions at this time. (Respondent's Exhibit 5) On or about October 27, 1992, SuperAmerica filed the July 13, 1992 DNF with the Department. The DNF reflected a discovery date of July 13, 1992. The DNF indicated the method of initial discovery was a vapor reading from monitor well testing company. On or about July 1, 1993, the Department issued its order declaring SuperAmerica ineligible for FPLRIP restoration coverage for the reported discharge. Englewood-DEP Facility No. 08-8945143 DOAH Case 93-2710 (Site 8038) At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8038) located at 2710 South McCall Road, Englewood, Charlotte County, Florida. The facility consisted of four USTs: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about September 1989. On December 10, 1991, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 6200 ppm while the OVA reading for monitor well five was 9800 ppm. On January 20, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 2000 ppm while the OVA reading for monitor well five was 1100 ppm. On February 13, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 1500 ppm. On April 10, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 1100 ppm while the OVA reading for monitor well five was 5900 ppm. An Interoffice Memo dated April 24, 1992, from Mr. McKenzie to the manager of store no. 8038 provided in part: The monthly test of your store's monitor wells revealed the following results which need to be addressed: Monitor well number 5 showed vapor readings exceeding 5900 PPM. This is a reportable quantity to the DER. No previous results have show [sic] levels this high. (Petitioner's Exhibit 38C) This latter assertion is obviously in error given the fact that in December, 1991, the OVA reading for well four was 6200 ppm while the OVA reading for well five was 9800 ppm. On May 12, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 2100 ppm while the OVA reading for monitor well five was 3000 ppm. On June 15, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 2500 ppm. On July 20, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 1100 ppm. On or about July 24, 1992, SuperAmerica filed a Discharge Notification Form with DEP. The DNF was signed by Casey McKenzie. The DNF indicated the Date of Test or discovery was July 20, 1992. The method of initial discovery was Vapor Reading Report from Monitoring Reports. The estimated number of gallons lost and the cause of leak were both unknown. On or about September 1, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a certificate of tightness. On September 4, 1992, Casey McKenzie wrote to DEP's South District Office with regard to the DNFs filed for Englewood Facility and the Punta Gorda Facility. With regard to SuperAmerica's failure to timely report the releases, the letter provided in part: In your letter, you refer to the elevated OVA readings recorded several months ago but not reported. This was simply an error on my part. SuperAmerica began utilizing an outside contractor to perform monitor well sampling at these locations in December. Prior to that, we performed the monthly sampling ourselves using the sight and smell method appropriate for ground water well monitoring... I was not aware of the thresholds for reporting of vapor levels. I was aware we had no sheen or odor present. When our contractor and I finally discussed the importance of the vapor readings and the ramifications involved, we immediately filed Discharge Notification Forms for suspected releases. . . Any errors made in reporting were due to lack of knowledge on my part, ... (Respondent's Exhibit 3) Mr. McKenzie's assertion of ignorance cannot be reconciled with the statements set forth in his Interoffice Memo dated April 24, 1992. See paragraph 85, above. On or about April 23, 1993, and again on October 20, 1993, DEP issued its order and amended order declaring SuperAmerica ineligible for FPLRIP restoration coverage for the reported discharge. Punta Gorda-DEP Facility No. 08-9045849 DOAH Case 93-2711 (Site 8039) At all material times, SuperAmerica was the owner/operator of its petroleum storage tank system (site no. 8039) located at 3035 Tamiami Trail, Punta Gorda, Charlotte County, Florida. The facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about January 1990. On December 10, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product in well four. There was an odor in all of the wells. The OVA readings for wells one, three, four, five and six all exceeded 10,000 ppm. On January 20, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well two was 600 ppm; well three was 4500 ppm; well four was 900 ppm; and well five was 2500 ppm. On February 20, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two, three and five. The OVA reading for well one was 6000 ppm; wells two and three were in excess of 10,000 ppm; well four was 4100 ppm; and well five was 3800 ppm. On March 9, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two, three and five. The OVA reading for well two was in excess of 10,000 ppm; well three was 2000 ppm; and well four was 3000 ppm. 26 On April 10, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two and three. The OVA reading for well two was 1500 ppm while the OVA reading for well three was 550 ppm. On May 14, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two and three. The OVA reading for well two was 2200 ppm while the OVA reading for well three was 1100 ppm. On June 15, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in well two. The OVA reading for well two was 7300 ppm; well three was 1500 ppm; and well four was 1100 ppm. On July 20, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two and three. The OVA reading for well one was in excess of 10,000 ppm; well three was 2000 ppm; and well four was 3100 ppm. On or about July 24, 1992, SuperAmerica filed a Discharge Notification Form with the Department. The DNF was signed by Casey McKenzie. The DNF was dated July 24, 1992. However, the DNF did not include the information as to the date of test or discovery of the discharge. The cause of the leak and the estimated number of gallons lost were both unknown. The DNF indicated the method of discovery was a Vapor Reading Report from Monitoring Company. On or about August 27, 1992, the agency conducted an inspection at Site 8039. During the inspection, no obvious odors were detected in the monitoring wells, indicating that there may have been errors in the original OVA readings. The agency directed SuperAmerica to have groundwater samples analyzed. The analysis was provided to the agency on October 27, 1992. On or about August 27 and September 4, 1992, Tanknology Corporation International performed tank and line tests at the sight and issued certificates of tightness. On or about April 23, 1993, and again on October 20, 1993, DEP issued its order and amended order declaring SuperAmerica ineligible for FPLRIP restoration coverage for the reported discharge. North Ft. Myers-DEP Facility No. 36-8631544 DOAH Case 93-4405 (Site 8006) At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8006) located at 4600 Bayline Drive, North Ft. Myers, Lee County, Florida. The facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gasoline UST; and one 8,000 gallon diesel UST. The tanks were installed on or about April 1987. In or about November 1992, SuperAmerica hired Environmental Science and Engineering, Inc. (ESE) to perform an environmental audit in conjunction with SuperAmerica's planned sale of the property. On January 7, 1993, ESE was performing soil borings in the tank farm and pump island areas. Soil samples were being analyzed for the presence of excessive contamination, if any. Those borings were made with a four-inch diameter hand auger. At boring SB-2, near the easternmost fuel island, the ESE employee cracked the fiberglass midgrade unleaded product line with the hand auger causing an underground discharge. SuperAmerica discovered the discharge on January 16, 1992 and filed a Discharge Reporting Form on that same date. On July 1, 1993, DEP issued its Order denying SuperAmerica eligibility for restoration coverage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Environmental Protection enter its final order denying eligibility to SuperAmerica in cases nos. 92-6871, 93-2710, 93- 2711, 93-4402, 93-4403/93-4404, 93-4406 and 93-5734; granting eligibility in case no. 93-4405; and dismissing case no. 93-2712 (voluntary dismissal). DONE and ENTERED this 6th day of March, 1996, in Tallahassee, Florida. MARY CLARK 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 6th day of March, 1996. APPENDIX TO RECOMMENDED ORDER The findings of fact proposed by both parties, or stipulated by the parties, have been adopted in whole or in substance, except for the following: SuperAmerica's Proposed Findings of Fact. Rejected as unnecessary or immaterial: 11-17, 20-23, 26-29, 39-40, 48-52, 59-66, 72-75, 79-87, 90- 92, 94-96, 98, 101, 104, 106-107, 109-147, 166, 173, 181,183, 203, 211-212, and 220. Rejected as contrary to the weight of evidence or unsupported by credible evidence: 97, 108, 149-155. DEP's Proposed Findings of Fact. These findings have all been adopted in substance. Additional findings have been made however, to explain the background and include facts common to all of the sites. COPIES FURNISHED: Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road, Suite 654 Tallahassee, Florida 32399 Kenneth Plante General Counsel 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Gary M. Pappas, Esquire POPHAM, HAIK, SCNOBRICH and KAUFMAN, LTD. 4000 International Place 100 Southeast Second Street Miami, Florida 33138 James M. Ellerbe, Esquire SuperAmerica Group Law Department 3499 Dabney Drive Lexington, Kentucky 40509
