Findings Of Fact Petitioner is the owner of the site known as Union 76 #702 or as Taylor's 76, Inc., located at 9700 East Indigo Street, Perrine, Dade County, Florida. The prior owner of that site was Lawrence Oil Company. There appears to be a commonality of principals between Petitioner TYU, Inc., and its predecessor in title, Lawrence Oil Company. In 1986 the Legislature created the Early Detection Incentive Program (hereinafter "EDI") to encourage early detection, reporting, and cleanup of contamination from leaking petroleum storage systems. Essentially, the Legislature created a 30-month grace period ending on December 31, 1988, for owners of sites with contamination from petroleum storage systems to apply for reimbursement for cleanup expenses due to the contamination, without retribution from the State. The statute also provided several bases for which an applicant would be deemed ineligible. Prior to the December 31, 1988, deadline Petitioner checked the various sites owned by it, including the site which is the subject of this proceeding, to determine whether contamination was present. The subject site had been a service station, selling gasoline for 30 to 35 years. From 1986 forward, however, gasoline was no longer being dispensed at the site although the underground gasoline tanks were still present. It is unknown whether the tanks were emptied at the time that they were taken out of service. Automobile repairs were still performed at the site. By 1989, the site was also occupied by a lawn maintenance company and a pool company. In 1988 and 1989 a 55-gallon drum of used oil was located on the site. The lawn company employees used that oil to lubricate their chain saws. The remainder of the used oil and the solvents from the small parts washer were picked up from that site for recycling. In November or December of 1988, Harry Barkett, president of Lawrence Oil Company, personally visited the site. He sampled the monitoring wells. Because he smelled gasoline in the monitoring wells, he retained Seyfried & Associates, Inc., an environmental consultant, to prepare a report to be submitted to the Department. That report is dated December 15, 1988. Petitioner's application for participation in the EDI program, together with the report of Seyfried & Associates, Inc., was submitted to the Department prior to the December 31, 1988, deadline. At the time, Metropolitan Dade County's Department of Environmental Resources Management (hereinafter "DERM") was performing EDI inspections for the Department pursuant to a contract. On March 22, 1989, a DERM employee who performed only industrial waste inspections went to the subject site. He specifically was not there to inspect the petroleum storage systems, and he did not do so. That employee went into the service bays where the routine auto repair and maintenance services were performed. He noticed the floor drains going from the service bays to the oil/water separator. He then inspected the oil/water separator. He noted that a hole had been cut at the top of the effluent pipe, which breached the system and which might allow oil to flow into either a drain field or a septic tank system. He did not check further to ascertain which. He took three samples from inside the oil/water separator, one for oil and grease, one for phenols, and one for metals, specifically cadmium, chromium, and lead. Not surprisingly, the laboratory analysis of those samples indicated the presence of phenols, oil, and grease. The only sampling done by that employee was of the contents of the oil/water separator. No investigation was made of, and no samples were taken from, the soil or groundwater anywhere on the site. Such sampling was not part of that employee's authority or responsibility. On October 11, 1989, Dade County DERM sent a different employee to perform the EDI inspection at the subject site. To determine the presence of contamination from petroleum or petroleum products, that employee dipped an acrylic bailer into each of the monitoring wells and then "sniffed the bailer" to ascertain if the odor of gasoline could be detected. He did not dip the bailer lower than the top foot of water since he did not wish to bring the bailer up through a column of water before sniffing. Dade County DERM employees no longer "sniff the bailer" due to the health risk involved in such a procedure. In 1989, however, it was the common practice for DERM employees to "sniff the bailer," albeit cautiously. That employee failed to detect the odor of gasoline and did not see any petroleum contamination in the monitoring wells. He issued a report to that effect. He took no samples from the soil or groundwater to determine if there were contamination from petroleum or petroleum products at the site. Based upon the second report indicating the absence of gasoline odor and based upon the first report indicating the presence of oil, grease, and phenols inside the oil/water separator, Dade County DERM recommended to the Department that Petitioner's application for participation in the EDI program be denied. Based upon that recommendation, the Department sent Petitioner a letter dated May 23, 1990, denying Petitioner's application for participation in the EDI program. That letter stated as the two reasons for denial the following: Contamination is not the result of a discharge from a petroleum storage facility as defined in Section 376.301(11), Florida Statutes. Waste oil contamination found on the ground and groundwater was the result of poor maintenance practices by site owner/ operator. Participation in the Early Detection Incentive Program is restricted to contamination from such storage facilities pursuant to 376.3071(9), Florida Statutes. Contamination is a mixture of waste oil, grease and phenolic compounds. Participation in the Early Detection Incentive Program is limited to petroleum or petroleum products as defined in Section 37.301 [sic] (9) and (10), Florida Statutes. That letter further advised Petitioner of its right to request a hearing regarding that determination and advised Petitioner that its failure to timely request an administrative hearing would render that correspondence to be a final Order of Determination of Ineligibility. When Petitioner received that correspondence, one of its employees interpreted the letter to mean that the Department had determined that the site did not have contamination from petroleum or a petroleum product. Viewing that as good news, that employee merely put the letter in a file. No request for an administrative hearing was made by Petitioner, and the correspondence became a final Order of Determination of Ineligibility by its own terms. In 1990 the Legislature determined that all sites which had been declared ineligible by the Department would be re-determined for eligibility. The Legislature established March 31, 1991, as the new deadline by which owners or operators could request the Department to reevaluate eligibility for sites for which a timely EDI application had been filed but which had been deemed ineligible by the Department. The new legislation set forth several circumstances under which the Department would not redetermine the eligibility of a previously denied site. One of those exceptions related to the reason for which a site had initially been denied. Petitioner had remained convinced that the subject site was contaminated by petroleum or petroleum products prior to the original deadline for filing EDI applications. Petitioner was aware of the new legislation and new deadline by which sites determined ineligible could have their eligibility redetermined. Petitioner therefore retained Kiefer-Block Environmental Services, Inc., to do a site analysis to verify Petitioner's belief that the site had a petroleum contamination. That company issued a report indicating that was the case. Petitioner timely filed its application for redetermination before the March 31, 1991, deadline and submitted to the Department the information obtained from Kiefer-Block, the second environmental consultant to verify the presence of petroleum contamination. In reviewing applications for redetermination, the Department established a procedure whereby it simply looked at its original letter denying eligibility to ascertain the reason for denial. If that reason matched one of the exclusions under the new legislation, the Department advised the applicant that it was not eligible to have its site redetermined. The Department did not review the Department's files relating to a site and did no additional inspection. In 1991 the Legislature again amended the statute, this time carving out an exception to those sites excluded from redetermination of eligibility by directing that sites excluded due to an absence of contamination be redetermined for eligibility if contamination had in fact existed. That amendment went into effect July 1, 1991. Accordingly, that amendment was part of the law in effect when the Department made its decision as to whether it would redetermine Petitioner's eligibility. By letter dated September 3, 1991, the Department advised Petitioner that it was not eligible to participate in the redetermination process. That letter specifically provided as follows: This Order is to inform you that this site is not eligible to participate in the eligibility redetermination process pursuant to Section 376.3071(9)(b), F.S., because the original reasons for ineligibility were: Contamination is not the result of a discharge from a petroleum storage facility as defined in Section 376.301(11), Florida Statutes [definition in Section 376.301(15), F.S., current revision]. Waste oil contamination found on the ground and groundwater was the result of poor maintenance practices by site owner/ operator. Participation in the Early Detection Incentive Program is restricted to contamination from such storage facilities pursuant to 376.3071(9), F.S. Contamination is a mixture of waste oil, grease and phenolic compounds. Participation in the Early Detection Incentive Program is limited to petroleum or petroleum products as defined in Section 376.301(9) and (10), Florida Statutes [definitions in Section 376.301(13) and (14), F.S., current revision]. Section 376.3071(9)(b)3.c., F.S., states that redetermination of eligibility is not available to facilities that were denied eligibility due to contamination from substances that were not petroleum or a petroleum product, or contamination that was not from a petroleum storage system. Petitioner timely filed its request for an administrative hearing regarding that letter, contesting the Department's refusal to redetermine Petitioner's eligibility to participate in the EDI program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: (1) granting Petitioner's application for redetermination of eligibility and (2) finding Petitioner ineligible to participate in the Early Detection Incentive Program. DONE and ENTERED this 26th day of August, 1992, at Tallahassee, Florida. LINDA M. RIGOT 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 26th day of August, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-0678 Petitioner's three unnumbered paragraphs contained in its post-hearing submittal have been rejected as not constituting findings of fact but rather as constituting conclusions of law or argument. Respondent's proposed findings of fact numbered 1-3, 5-18, and 20 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 4 has been rejected as being unnecessary to the issues involved herein. Respondent's proposed finding of fact numbered 19 has been rejected as not being supported by the weight of the competent evidence in this cause. COPIES FURNISHED: C. Vittorino Special Projects Manager TYU, Inc. 1601 McCloskey Boulevard Tampa, Florida 33605-6710 Brigette A. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether or not the agency may, pursuant to Section 525.06, F.S. enter an assessment for sale of substandard product due to a violation of the petroleum inspection laws and also set off that amount against Respondent's bond.
Findings Of Fact Frank Hampton, d/b/a Hampton's Gulf Station, has operated at 2610 North Myrtle Avenue, Jacksonville, for many years and has had no prior complaints against it by the Petitioner. Respondent is in the business of selling kerosene, among other petroleum products. The facts in this case are largely undisputed. On November 28, 1990, Bill Ford, an inspector employed with the Department of Agriculture and Consumer Services, visited the Respondent's premises to conduct an inspection of the petroleum products being offered for sale to the public. Ford drew a sample of "1-K" kerosene being offered for sale, sealed it, and forwarded it to the agency laboratory in Tallahassee where John Anderson, under the supervision of Nancy Fischer, an agency chemist, tested it to determine whether the sample met agency standards. The testing revealed that the sampled kerosene contained .21% by weight of sulfur. This in excess of the percentage by weight permitted by Rule 5F- 2.001(2) F.A.C. for this product, but it would qualify as "2-K" kerosene. A "Stop Sale Notice" was issued, and on the date of that notice (November 30, 1990) the tank from which the test sample had been drawn contained 3887 gallons of product. It was determined from Respondent's records that 4392 gallons had been sold to the public since the last delivery of 5500 gallons on November 16, 1990. The product was sold at $1.58 per gallon. The calculated retail value of the product sold was determined to be in excess of $1,000.00, and the agency permitted the seller to post a bond for $1,000.00 (the maximum legal penalty/bond) on December 3, 1990. The assessment is reasonable and conforms to the amount of assessments imposed in similar cases. On this occasion, Respondent had purchased the kerosene in question from a supplier which is not its usual wholesale supplier. This was the first time Respondent had ever ordered from this supplier and it is possible there was some miscommunication in the order, but Respondent intended to order pure "1-K" kerosene. Respondent only purchased from this supplier due to the desperate need in the community for kerosene during the unusually cold weather that occurred during the fall of 1990. Respondent ordered "1-K" kerosene and believed that "1-K" had been delivered to it by the new wholesale supplier up until the agency inspector sampled Respondent's tank. After posting bond, Respondent originally intended to send the unused portion of "2-K" kerosene back to its supplier, but instead was granted permission by the agency to relabel the remaining product so that the label would correctly reflect that the product was "2-K." Respondent accordingly charged only the lesser rate appropriate to "2-K" kerosene for sale of the remaining 3887 gallons.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Cnsumer Services enter a final order approving the $1,000.00 maximum penalty and offsetting the bond against it. DONE and ENTERED this 20th day of June, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 20th day of June, 1991. COPIES FURNISHED TO: FRANK HAMPTON HAMPTON VILLA APARTMENTS 3190 WEST EDGEWOOD AVENUE JACKSONVILLE, FL 32209 CLINTON COULTER, JR. ESQUIRE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES (LEGAL) MAYO BUILDING, ROOM 510 TALLAHASSEE, FL 32399-0800 HONORABLE BOB CRAWFORD COMMISSIONER OF AGRICULTURE THE CAPITOL, PL-10 TALLAHASSEE, FL 32399-0810 RICHARD TRITSCHLER, GENERAL COUNSEL DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 515 MAYO BUILDING TALLAHASSEE, FL 32399-0800
Findings Of Fact Respondent, Big "S" Oil Company, operates a gasoline station at 4002 North Pace Boulevard, Pensacola, Florida. The station sells gasoline products to the general public. On or about December 9, 1981, a petroleum inspector of Petitioner, Department of Agriculture and Consumer Services, took a gasoline sample for analysis of regular gasoline from the Respondent's storage tanks during the course of a routine inspection. This sample was tested in Petitioner's mobile laboratory and was found to have an elevated End Point of 494 degrees Fahrenheit 1/ Department regulations provide that the End Point for leaded gasoline offered for sale in Florida shall not exceed 446 degrees Fahrenheit. A second test conducted in a private laboratory confirmed the initial testing results. On the basis of this information, a stop sale notice on the tank that dispensed the gasoline was issued on December 9, 1981. (Petitioner's Exhibit 2). Petitioner determined that prior to the issuance of the notice, approximately 1,900 gallons of contaminated gasoline had been sold to the public. A bond of $1,000 was paid by Respondent to Petitioner in lieu of confiscation of the remaining leaded or regular gasoline in the storage tanks (Petitioner's Exhibit 1). The hearing was requested to contest the forfeiture of the bond.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be required to forfeit the $1,000 bond posted with Petitioner. DONE and ENTERED this 24th day of February, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675
The Issue The issues to be determined in this case are whether the Department of Environmental Protection ("DEP") should approve Lockheed Martin Corporation’s Site Assessment Report Addendum 3 (“SARA 3”) and Remedial Action Plan Addendum (“RAP 3”) to assess and remediate soil and groundwater contamination associated with property owned by Lockheed Martin Corporation in Tallevast, Manatee County, Florida.
Findings Of Fact Background The Former Facility and Property The Lockheed Martin property is located at 1600 Tallevast Road. The property is slightly larger than five acres. It is bounded by Tallevast Road to the north; 17th Street Court East to the east; a golf course, undeveloped and residential areas to the south; and an abandoned industrial facility to the west. From 1961 to 1996 the American Beryllium Company operated an ultra-precision, beryllium parts machine shop on the property where metals were milled, lathed, and drilled into various finished components. Some of the components were finished by electroplating, anodizing, and ultrasonic cleaning. The facility once included five buildings, but the buildings have been removed. The facility and property were acquired by Lockheed Martin in 1996 and the machining operations were terminated. B. Contamination Discovery and Assessment Although the details are unknown, it appears that over a number of years, leaks or discharges occurred at a series of "sumps" associated with the American Beryllium Company's on-site wastewater treatment system. The leaks or discharges allowed contaminants, primarily chlorinated solvents, to enter the soil and groundwater beneath the facility. The contamination migrated laterally in all directions away from the facility, as well as downward. The hearsay report that a "dry well" (a gravel-filled pit) existed on the property and was used to dispose of acid baths is not supported by the non-hearsay evidence. Environmental assessments performed by Lockheed Martin after purchasing the site, and a later assessment by a prospective purchaser, found contamination. In 2000, Lockheed Martin informed DEP that contamination had been discovered at the facility. In that same year, Lockheed Martin removed the sumps and some soil around the sumps. Various contamination assessment activities were conducted by Lockheed Martin between 2001 and 2004. Contaminant concentrations exceeding Groundwater Cleanup Target Levels ("GCTLs") were found at various depths. In 2001, Lockheed Martin excavated and removed over 500 tons of contaminated soil in the area where the sumps had been located. At the time the contamination was discovered, public water supply lines served most residences in Tallevast, but not the residences along 16th Street, 18th Street, 19th Street, and parts of Tallevast Road. On these streets, residents continued to use water from their wells for drinking, bathing, and other household uses. These private water wells were tested in 2004 and many were found to be contaminated. Petitioners contend that Lockheed Martin was late in notifying Tallevast residents of the contamination, but it was beyond the scope of this proceeding to determine whether Lockheed Martin failed to timely notify the area residents of health threats known to Lockheed Martin. In 2004, Lockheed Martin and DEP entered into a Consent Order that required Lockheed Martin to conduct additional site assessment and, ultimately, to prepare a remedial action plan to remediate the site in conformance with DEP rules. Lockheed Martin submitted site assessment report addendums to DEP in 2004 and 2005. In April 2006, DEP approved an Interim Remedial Action Plan (“IRAP”) for a groundwater extraction and treatment ("pump and treat") system. Extraction wells were constructed in the source area on the site to reduce the mass of contaminants and hydraulically control the plume so it would not spread. The treatment system has been in continuous operation since August 2006. Lockheed Martin submitted a third site assessment report addendum, SARA 3, in April 2006 and it was approved by DEP on September 25, 2006. Lockheed Martin submitted a RAP in May 2007. A revised RAP ("RAP 2") was submitted in August 2008. A third addendum ("RAP 3") was submitted in July 2009 and was approved by DEP on November 5, 2010. C. Standing The individual Petitioners, Wanda Robinson, Marvin Washington, Clifford Ward, Laura Ward, Brenda Pinkney, and Melissa Williams Robinson, reside or own property within the area established as the Temporary Point of Compliance (“TPOC”) by DEP. The TPOC encompasses the land overlying areas of groundwater contamination. Groundwater contamination exceeding GCTLs lies beneath the private properties of these individual Petitioners. The Tallevast Community Association, Inc., operates a community center located at 7727 17th Street Court East, which is adjacent to the Lockheed Martin site. The community center property is within the TPOC. In 2008, the IRAP system failed and spilled contaminated water onto the community center property. FOCUS is a Florida nonprofit corporation formed in 2003. The parties stipulated that "FOCUS' stated mission is to protect the health, environment, and quality of life of the Tallevast Community."1 At least 25 of its members are residents of Manatee County. SARA 3 Groundwater Contamination 1. Contaminants of Concern Lockheed Martin tested for and assessed all of the contaminants in groundwater that were reasonably implicated by the site history and test data. Lockheed Martin incurred substantial costs for the assessment activities. The contamination assessment was not dictated by a motive to avoid costs. Petitioners contend that every chemical listed on the Material Safety Data Sheet ("MSDS") for the American Beryllium Company should have been tested for in the soil and groundwater. It is not the practice of DEP to require that every chemical on a MSDS be tested for in the environment. The groundwater beneath the Lockheed Martin property and surrounding area is contaminated with a variety of pollutants, but the designated "contaminants of concern"--the contaminants which occur in concentrations that exceed GCTLs-- are 1,4-dioxane, tetrachloroethene (PCE), trichloroethene (TCE), cis-1,2-dichloroethene, 1,1-dichloroethene, 1,1-dichloroethane, vinyl chloride, methylene chloride, bromodichloromethane, dibromochloromethane, and 1,1,1-trichloroethane. TCE is the contaminant that occurs in the highest concentrations. It is estimated that 220 pounds of TCE is in the contamination plume. The 1,4-dioxane is the most frequently detected contaminant. It is estimated that 160 pounds of 1,4- dioxanne are in the contamination plume. Area Geology and Hydrogeology Lockheed Martin's geologic and hydrogeologic assessment to determine the water-bearing zones, the confining or semi-confining units, the potentiometric levels, and the hydraulic gradients in the area of contamination was thorough and produced a reliable characterization of the regional geology and hydrogeology. Groundwater beneath the Lockheed Martin property and surrounding lands occupies three aquifer systems: the Surficial Aquifer System, the Intermediate Aquifer System, and the Floridan Aquifer System. The Surficial Aquifer System ("SAS") is divided into an upper and lower zone. The upper SAS begins at 2 to 5 feet below ground surface ("bgs") and extends to about 30 feet bgs. It is separated from the lower SAS by a confining unit referred to by the expert witnesses as the "hard streak." The lower SAS extends to about 45 feet bgs, where it intercepts a thick layer of Venice clay. Beneath the Venice Clay begins the Intermediate Aquifer System, which is comprised of four water-bearing zones: the Upper Arcadia Formation ("AF") Gravels, the Upper AF Salt and Pepper ("S&P") Sands, the Lower AF Gravels, and the Lower AF Sands, extending to 290 feet bgs. Separated from the Lower AF Sands by a thick clay layer, the Floridan Aquifer, consisting of limestone, begins at about 320 feet bgs. Plume Delineation Lockheed Martin used the “step-out” method to delineate the groundwater contamination plume for contaminants originating on the Lockheed Martin property, starting at a point of high groundwater concentration and then working outward horizontally and vertically until monitoring wells showed no contamination above GCTLs. This step-out method is the generally-accepted practice for delineating a plume of groundwater contamination. A contamination plume is delineated, both horizontally and vertically, by “clean” monitoring wells-- wells that show contamination at concentrations below the GCTLs. Lockheed Martin installed 245 monitoring wells to define the horizontal and vertical extent of the contamination. A data set consisting of about 5,500 groundwater samples was compiled. The amount of site assessment data collected by Lockheed Martin was described by several experts as much more data than is usually developed for comparable sites and the most that several of the experts had ever seen. Lockheed Martin established the horizontal boundaries of the individual contaminant plumes by identifying a ring of clean wells beyond each layer (aquifer zone) of the plume. Lockheed Martin used the same method to determine the vertical extent of the plume. It tested the aquifers at deeper and deeper depths until the contamination was below the GCTLs, indicating that the plume had not descended farther. The maximum horizontal extent (for all contaminants above GCTLs in every groundwater-bearing zone) is approximately 1,200 feet north, 2,800 feet east, 1,600 feet south, and 800 feet west of the facility. The total horizontal area of the composite plume is over 200 acres. The upper and lower SAS, the upper AF Gravels, and the upper AF S&P Sands are contaminated with site-related chemicals. The deepest extent of groundwater contamination is approximately 200 feet below ground surface. Petitioners claim that the contamination plume was not adequately delineated, but their evidence was not persuasive. Petitioners did not prove that there are areas of the plume that extend outside the boundary of clean wells established by Lockheed Martin. Petitioners contend that groundwater contamination in the residential area south of the Lockheed Martin property is not adequately delineated, but Lockheed Martin and the DEP proved otherwise. In their presentation on this issue, Petitioners failed to account for the fact that monitoring well data represent contaminant levels in an area of influence around each well. Groundwater contamination in this area was adequately assessed by Lockheed Martin. Petitioners' objection is more about form than substance, because Lockheed Martin acknowledges that groundwater contaminants were detected in the area. However, the plume delineation is based on standard practices regarding the selection of sampling data and the computational mapping of the data. Petitioners also object to Lockheed Martin's assessment near the airport. The assessment in this area is adequate and reasonable under the circumstances. There are obvious limitations encountered in accessing airport property because of the possibility of interference with aircraft landings and takeoffs. The residential area south of the Lockheed Martin property and the area near the airport which Petitioners contend are un-assessed or under-assessed are within the capture zone of the pump and treat system proposed in RAP 3. The contamination in these areas will be cleaned up. If the rumored dry well actually existed on the Lockheed Martin property and was a source of contamination, the contamination is part of the delineated plume and will be remediated. The 2010 groundwater sampling indicated some movement of the plume. Petitioners contend that the new data contradicts the earlier results and, therefore, Lockheed Martin is required to conduct additional site assessment. However, some variability and fluctuation around the edges of the plume are expected due to heterogeneities in the geology and in lab analyses. It does not necessarily mean the plume is moving. It is the practice of DEP when more recent sampling data indicates small changes to a plume that do not reach perimeter clean wells, to accept the plume as sufficiently delineated. Groundwater monitoring data developed since SARA 3 was approved indicate that the plume has been relatively stable within all four affected aquifer zones. The 2010 data do not contradict the plume delineation. Lockheed Martin showed that the deepest layer in which groundwater contamination was detected is the Upper AF S&P Sands, about 140 to 160 feet bgs and about 200 feet above the Floridan aquifer. Petitioners claim that the plume should be shown as extending deeper, but their evidence was not persuasive. The detections in the Clay/Sand Zones 3 & 4 were shown to be caused by a mis-labeled monitor well. There were only a few detections, and no exceedances, in 25 groundwater samples taken from the Lower AF Sands. Lockheed Martin installed a sufficient number of monitoring wells in the Floridan Aquifer to demonstrate that the plume (above GCTLs) has not reached it. Early exceedances detected in the Floridan Aquifer were likely due to “dragdown,” which can occur when a well is drilled through contaminated soil and drags down some of the contamination to deeper zones. A report that an on-site production well was drilled to the Floridan was hearsay and is not supported by the record evidence. However, if a pathway exists through the confining layers to the Floridan Aquifer, the upwardly-directed, potentiometric water pressure of the Floridan Aquifer should prevent the contamination from moving down the pathway. Vinyl Chloride There were numerous instances when laboratory detection limits were reported as being above GCTLs for vinyl chloride. Detection limits above GCTLs can occur when a groundwater sample contains high levels of another compound and must first be diluted by the laboratory with de-ionized water before it can be analyzed, which has the effect of raising the detection level for other contaminants in the sample. Petitioners assert that these samples could have been above GCTLs. These samples are unreliable, but there are a sufficient number of uncompromised water samples to assess the vinyl chloride contamination. Lockheed Martin did not delineate a separate plume for vinyl chloride. It could not draw an isoconcentration plume map for vinyl chloride because the detections were sporadic in space and time. Vinyl chloride is a breakdown product of PCE and TCE and would be expected to be detected where PCE and TCE concentrations are highest. The vinyl chloride contamination is tied to the plumes for the parent compounds and is within the mapped plumes in each aquifer zone. Lab Contaminants Four compounds detected in groundwater samples at the Tallevast site–-methlyene chloride, carbon disulfide, acetone, and methyl ethyl ketone–-are common laboratory and sampling contaminants. Because of the large number of wells and sampling events, it is likely that these compounds appeared in the data as artifacts of the sampling procedures. These contaminants appeared infrequently, in scattered zones, and sporadically over time, often coming up "non-detect" in subsequent samplings. The lack of a pattern of detections indicates that these contaminants are not part of the contamination plume originating at the Lockheed Martin property. There is no evidence that bromodichloromethane and dibromochloromethane were released from the facility. Detections of bromodichloromethane and dibromochloromethane are sporadic and transitory across the plume. There is no pattern connecting them to the site. These compounds are known to be byproducts of the chlorination of drinking water. They can also appear when people use chlorination products to treat wells themselves, for example to treat sulfur smells or disinfect the well. In the most recent sampling event, bromodichloromethane and dibromochloromethane were not detected in any wells. NAPL Lockheed Martin looked for non-aqueous phase liquid, or “NAPL,” but it was not found. Lockheed Martin had an incentive to locate and remove any NAPL to reduce its long-term remediation costs. Lockheed Martin used several accepted techniques and technologies to search for NAPL. NAPL is either not present or is isolated in small amounts. If NAPL is present, it is not migrating away from the property. Soil Contamination Lockheed Martin removed contaminated soil from the sump area in 2000 and 2001. No other "hot spots" of soil contamination were found on the Lockheed Martin property. Samples of on-site soil also exceeded soil cleanup target levels (“SCTLs”) specified in Florida Administrative Code Chapter 62-777 for arsenic, beryllium, copper, chromium, benzo(a)pyrene, and PCE. These contaminants were scattered about the Lockheed Martin property. The off-site detection of these same contaminants in scattered locations and at relatively low concentrations is consistent with urban and former agricultural areas. There are industrial land uses near the Lockheed Martin property. Petitioners did not rebut the evidence presented that these soil contaminants are ubiquitous in the human environment at these concentrations. Lockheed Martin and DEP investigated a report that soil might have been obtained from the Lockheed Martin property and used as fill on some nearby private properties. The record evidence is insufficient to establish when, where, or how this movement of soil occurred. Numerous soil samples were taken from areas where residents said fill was placed, but no contamination was found that was consistent with the proposition that it was contaminated soil from the Lockheed Martin property. The soil sampling showed exceedances of SCTLs for some contaminants, but their distribution was random. The types of contaminants, the concentrations, and the sporadic and inconsistent findings indicate that the contamination is unlikely to be associated with a discharge or release from the Lockheed Martin property. Petitioners contend that Lockheed Martin's assessment of this possible soil contamination was inadequate. However, Petitioners were in a better position to describe the location and other details associated with this alleged fill. Petitioners produced no details regarding the alleged fill and conducted no soil sampling of their own to show that contaminated soil was placed on their properties. Petitioners contend that some of the off-site soil sampling conducted by DEP’s Site Investigation Section in 2004 was unreliable because the samples were taken to a depth of 3 inches, which is not consistent with the applicable DEP rule. However, the referenced DEP rule was not in effect at the time. In addition, the shallower samples taken by DEP are more conservative for estimating risk from human contact with soil contaminants. The data was properly included in the assessment. Lockheed Martin's assessment to determine whether contaminated soil was transported from the Lockheed Martin property to nearby private properties was reasonable and adequate under the circumstances. DEP determined that the off-site soil data and historical information were insufficient to conclude that operations at the American Beryllium Company were the source of the off-site soil contamination. Petitioners did not show that the Lockheed Martin facility was the source of the contaminants found off-site. The more persuasive record evidence supports DEP's determination. Petitioners contend that Tallevast residents may be at risk from soil contamination caused when they watered their lawns with contaminated well water, but Lockheed Martin showed that this contention was implausible. Volatile Organic Compounds ("VOCs") sprayed through the air and onto the ground would quickly volatilize. Moreover, the soils in the area are sandy, allowing water to readily penetrate below the soil surface so that a large accumulation of contaminants necessary to cause a threat to humans from direct exposure is unlikely. When a pipe broke in the IRAP system in 2008, spilling 5,000 gallons of contaminated water onto the ground, the soil sampling conducted three weeks later showed that contaminant concentrations were orders of magnitude below the SCTLs for direct exposure. The concentrations that would be caused by watering a lawn with contaminated well water would be even lower. Petitioners conducted no soil sampling of their own to support their contention that the application of groundwater to lawns and gardens resulted in the contamination of the their soil. Soil Vapor Intrusion Intrusion into buildings by contaminated vapor is possible if groundwater contamination is near the top of the water table. Volatile contaminants can then move into a gas or vapor phase and rise through the unsaturated soil where the vapor may enter buildings through various pathways. Lockheed Martin assessed the area for potential vapor intrusion, using multiple lines of analysis. Soil gas levels should have been the highest on the Lockheed Martin property where contaminant concentrations in the plume are generally the highest, but on-site soil gas levels were below applicable risk levels. No off-site soil gas levels exceeded soil vapor regional screening levels. Soil gas levels are generally higher than indoor levels because only a fraction of the soil gas will find a pathway into a dwelling. In this case, soil gas levels for the site-related contaminants were lower than detected indoor air concentrations, indicating that the source of the indoor contaminants probably was not soil gas. The concentrations of contaminants in the indoor air samples were within the range of typical background levels attributable to the products commonly found in residences, such as household cleaning products and dry cleaning. The volatile groundwater contaminants are in groundwater at about 20 feet bgs, or about 15 feet below the water table. The clean water layer between the groundwater contamination and the top of the water table prevents vapors from being created. Petitioners did not produce competent evidence to rebut Lockheed Martin's showing that soil vapor intrusion is not a real risk associated with the groundwater contamination. Conclusion Lockheed Martin employed consultants who had extensive expertise in the contamination assessment sciences. Those experts who testified at the final hearing were highly competent and they were credible witnesses. There was no evidence presented to suggest that their efforts on behalf of Lockheed Martin had any purposes other than to comprehensively assess the contamination and develop an effective means to clean it up as quickly and as efficiently as practicable. Site assessment involves a considerable amount of professional judgment. The significance of the sampling data, for example, is largely a matter of professional judgment. Petitioners' objections to Lockheed Martin's site assessment are, in most respects, based on different professional judgments (offered by Petitioners' expert witnesses) or the critique of professional judgments (by Petitioners' counsel during cross- examination of Lockheed Martin's expert witnesses) regarding the significance of sampling data and other technical analyses. Petitioners failed to demonstrate that the professional judgments exercised by Lockheed Martin's experts were unsound or that they resulted in a contamination assessment that was inadequate to enable an effective plan for remediation. RAP 3 Lockheed Martin considered numerous alternative remedies. Remedial alternatives were scored by a large consultant team that considered long-term and short-term human health and environmental effects, implementability, operation and maintenance, reliability, feasibility, estimated time to achieve cleanup, and cost. RAP 3 is designed to achieve five remedial action objectives: (1) reduce potential for human exposure to site contaminants found in soil, (2) reduce potential for human exposure to site contaminants found in groundwater; (3) hydraulically control contaminated groundwater; (4) extract and treat contaminated groundwater, and (5) minimize disturbance to the community and natural resources. The evidence demonstrates that RAP 3 will achieve each of these objectives. Groundwater With respect to groundwater contamination, the objective of RAP 3 is to meet the active remediation requirements of rule 62-780.700(1) and to demonstrate at the end of the remediation that the cleanup qualifies for Risk Management Option Level I -- No Further Action, without institutional and engineering controls. Lockheed Martin reduced human exposure to contaminated groundwater by locating and abandoning (plugging) private wells that were affected by the groundwater contamination. To hydraulically control contaminated groundwater and remove it, Lockheed Martin proposes a “pump and treat” groundwater extraction and treatment system. This is a well- known and proven-effective remediation approach for the kind of groundwater contamination involved here and was determined to be the only effective remediation alternative. This remedy was developed using groundwater flow and contaminant transport models. The models that were used and the modeling that was performed by Lockheed Martin were appropriate for the selection and design of the remediation system. The models incorporated all appropriate geologic, hydrologic, and contaminant data. Lockheed Martin chose TCE and 1,4-dioxane as representative contaminants for modeling purposes. The selection of these contaminants was technically sound because TCE has similar transport characteristics as the other chlorinated solvents at the site that adsorb to soil and degrade in the natural environment, while 1,4-dioxane would represent the more mobile contaminants that do not degrade significantly. The modeled remedy for TCE and 1,4-dioxane will effectively remedy all the groundwater contaminants, including vinyl chloride and the other breakdown products of the site- related chemicals. Petitioners did not present competent expert testimony to rebut the soundness of the groundwater modeling effort. The final remedial design comprises 77 extraction wells and four trenches pumping about 200 gallons of contaminated water per minute. The extraction wells would withdraw groundwater from four aquifer zones: the upper SAS, the lower SAS, the Upper AF Gravels, and the Upper S&P Sands. An array of closely-spaced extraction and injection wells will be installed in the on-site areas of highest contamination for focused "flushing" and extraction of contaminants. Lockheed Martin minimized adverse impacts to private properties in its proposed location of well, trenches, and piping. RAP 3 calls for directional drilling for the installation of the majority of the conveyance piping. The modeling showed that cleanup time could be optimized by placing the extraction wells along the “spine” of the plume rather than spreading them out over the whole footprint of the plume and by selectively shutting off wells and trenches over time. Lockheed Martin created a "capture zone" large enough to recover all site-related contamination in a reasonable time. In each affected aquifer layer, the modeled capture zone extends at least 100 feet beyond the GCTL line for the composite plume. Any groundwater contaminant within the capture zone will be removed by the groundwater extraction system. The estimated cleanup time is 48 years because that is the time needed to complete the cleanup for the most persistent contaminant--1,4-dioxane in the lower SAS. However, more than half of the mass of TCE and 1,4-dioxane would be removed within the first five years of operation. In ten years, 85 percent of the TCE and 71 percent of the 1,4-dioxane is projected to be removed and treated. The proposed treatment system includes: (1) settling and filtration of iron and other metals in the ground water that would interfere with the treatment process; (2) advanced oxidation of VOCs followed by carbon adsorption to trap those compounds not treated by ultra violet light; and (3) discharge to the sewer for further treatment by the Manatee County treatment works. A portion of the treated groundwater will be treated again with reverse osmosis to produce water of high quality and then re-injected near surface waters in order to prevent lowering of water levels. The proposed remedy is flexible and adaptable to future conditions and changes in technology. RAP 3 includes a schedule for performance monitoring. The remedy can be adjusted if the monitoring data indicates an adjustment is needed. Some of the former employees of the American Beryllium Company stated that there was a production well at the facility. The significance of the well is that, if it remained as an open bore hole, it could be a conduit for contaminants to move between aquifer zones and interfere with the remedial action plan. Before the production well was found, while groundwater flow and contaminant transport modeling was being conducted, the models evaluated potential effects of an open borehole on the Lockheed Martin site. Sensitivity analysis of the model showed that the open borehole would have an insignificant effect on the output. After conducting five separate searches for the production well using remote sensing, ground-penetrating radar, and downhole side scan sonar, a well was found and properly abandoned. The well was similar in size and casing material to the twenty other wells that had already been geophysically logged at the site. It is reasonable to conclude, therefore, that, like the other wells, the discovered well probably had an open borehole to the Upper AF Gravels. The hearsay report that the production well was a 6-inch well drilled into the Floridan was not supported by the non-hearsay evidence. Lockheed Martin obtained 13 of the 14 access agreements necessary to implement RAP 3. The only outstanding agreement is one for access to a railroad property. The property owner has agreed to provide access as soon as final design plans are provided. Lockheed Martin rejected remediation technologies that required extensive access to install, operate, and maintain. In its selection of recovery well locations near the Sarasota-Bradenton International Airport, Lockheed Martin located them along 15th Street, as opposed to farther west, because it would be difficult to get access to install, operate, and maintain extraction wells at the end of an active runway. In reviewing whether a RAP is implementable, it is the practice of DEP not to require the person responsible for cleanup to first obtain any permits needed from other agencies before DEP will approve the RAP. With regard to the probable need for Lockheed Martin to obtain a water use permit from the water management district, the criteria for obtaining the permit were taken into account by Lockheed Martin in the design of RAP 3. Petitioners presented no competent evidence indicating that Lockheed Martin will not be able to obtain the water use permit. Soil Lockheed Martin chose Risk Management Option Level II (“no further action” with conditions) to reduce potential exposure to soil contamination. Lockheed Martin will use institutional and engineering controls that prevent direct exposure and infiltration of contaminants into groundwater. The engineering controls will include building pads or pavement on portions of the Lockheed Martin property to prevent exposure and infiltration of rain. The institutional controls include restricting access to the facility through fencing and on-site security. Deed restrictions will mandate soil management practices to protect against human exposure and prohibit inappropriate modifications to the property. It is the practice of DEP to treat engineering and institutional controls as remediation measures to reduce human exposure risk. Off-site soil excavation by Lockheed Martin is not required because (1) the off-site soil contamination was not shown to be attributable to on-site activities; (2) the soil contaminants are randomly distributed over a large area; and (3) excavation would be costly and disruptive for little or no gain in terms of reduced human health risk. Temporary Point of Compliance The TPOC established as part of RAP is appropriate and adequate to protect human health, public safety, and the environment during remediation. Conclusion The more persuasive evidence shows that RAP 3 would be effective in remediating the soil and groundwater contamination at the Tallevast site in a reasonable manner and timeframe and, if implemented, would advance the substantial interests of Petitioners and all other persons affected by the contamination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that a final order be entered by the Department of Environmental Protection that approves SARA 3, as supplemented by the assessment and groundwater monitoring data and other information entered into evidence at the final hearing; and approves RAP 3. DONE AND ENTERED this 6th day of October, 2011, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 2011.
The Issue There are three legal issues which remain for determination: (1) Whether Florida Petroleum has standing in this case; (2) Whether proposed rule 62-770.220(3)(b), requiring constructive notice to residents or business tenants of real property into which the temporary point of compliance is allowed to extend is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(c), Florida Statutes; and (3) Whether proposed rule 62-770.220(4), requiring additional constructive notice of the status of site rehabilitation is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(c), Florida Statutes.i
Findings Of Fact On December 23, 2004, the Department published a Notice of Proposed Rulemaking regarding amendments to Florida Administrative Code Chapter 62-770. In particular, proposed rule 62-770.220(3)(b) and (4), provides: Subsequent Notice of Contamination Beyond Source Property Boundaries for Establishment of a Temporary Point of Compliance (TPOC) - Prior to the Department authorizing a temporary extension of the point of compliance beyond the boundary of the source property (i.e., the location from which the contamination originates) in conjunction with Natural Attenuation Monitoring pursuant to Rule 62-770.690, F.A.C., or Active Remediation pursuant to Rule 62-770.700, F.A.C., the PRSP shall provide the following notices: * * * (b) Constructive notice to residents [if different from the real property owner(s) notified pursuant to paragraph 62- 770.220(3)(a), F.A.C.] and business tenants of any real property into which the point of compliance is allowed to extend. Such constructive notice, which shall include the same information as required in the actual notice, shall be provided by complying with the following: * * * Status Update 5-Year Notice - When utilizing a TPOC beyond the boundary of the source property to facilitate natural attenuation monitoring or active remediation, an additional notice concerning the status of the site rehabilitation shall be similarly provided every five years to [the classes of] those persons who received notice pursuant to subsection 62-770.220(3), F.A.C., unless in the intervening time, such persons have been informed that the contamination no longer affects the property into which the point of compliance was allowed to extend. * * * (The language in brackets was added pursuant to the Department's Notice of Change and "those" was deleted.) The proposed rule implements Section 376.3071, Florida Statutes. The specific authority for the proposed rule is Sections 376.303 and 376.3071, Florida Statutes. On February 2, 2005, the Environmental Regulation Commission held a public hearing on the proposed rules and approved the proposed rules with certain amendments. On February 14, 2005, Florida Petroleum filed a Petition for Determination of Invalidity of Proposed Rule (Petition) challenging the validity of proposed amendments to proposed rule 62-770.220(3)(b) and (4). The Petition was filed pursuant to Section 120.56(1) and (2), Florida Statutes, and in each instance, Florida Petroleum alleges that the proposed rule violates Section 120.52(8)(c), Florida Statutes. On March 4, 2005, the Department published a Notice of Change regarding the above-referenced Notice of Proposed Rulemaking. With respect to the pending proceeding, the Notice of Change reflects revisions to language of proposed rule 62- 770.220(4), which are not subject to challenge. See Finding of Fact 1. On May 16, 2005, without objection, official recognition was taken of the Department's Notice of Proposed Rulemaking and Notice of Change. Florida Petroleum is a Florida voluntary, non-profit trade association, which comprise, in part, approximately 194 Marketer Members who own and/or operate petroleum storage system facilities in Florida. Florida Petroleum’s purposes include providing representation on behalf of its members in legislative and regulatory matters before the Florida legislature and agencies. Florida Petroleum routinely represents its members in rule development proceeding and other regulatory matters before the Department of Environmental Protection, Department of Revenue, and Department of Agriculture and Consumer Services. Florida Petroleum’s By-Laws state that its purposes include advancing the business concerns of its members, pooling the energy and resources of its members, and communicating with elected officials at the national, state, and local levels of government. Towards those ends, Florida Petroleum has represented it members before the Florida Legislature in matters relating to the regulation of petroleum facilities under Chapter 376, Florida Statutes, and has appeared before the Department in rulemaking proceedings involving the regulation of petroleum cleanups, and the various state restoration funding assistance programs. The subject matter of the rule at issue is within the general scope of interest and activity of Florida Petroleum, in particular, its marketer members, who own or operate facilities that store petroleum products for consumption, use, or sale. Florida Petroleum submitted oral and written comments, recommendations, objections, and proposed amendments to the Department and the Environmental Regulation Commission in connection with the rules at issue in this case. A substantial number of Florida Petroleum marketer members are "persons responsible" for assessment and remediation of one or more petroleum-contaminated sites. Florida Administrative Code Chapter 62-770, governs the remediation of petroleum-contaminated sites. A substantial number of Florida Petroleum’s marketer members are "persons responsible" for assessment and remediation of sites identified by the Department as "confirmed" or "suspected" sources of contamination beyond the boundary of the facility (i.e., "off-site contamination"). In certain instances, the Department's rules allow for the use of No Further Action with Conditions procedures in cases of petroleum contamination where applicable regulatory requirements are met because the use of conditions, such as institutional and engineering controls, may be more cost- effective than active remediation. As of February 2005, the Department estimated that it had reports of approximately 23,000 petroleum-contaminated sites. In 2004, the Department received an estimated 539 Discharge Report Forms in connection with petroleum storage facilities. As of March 2005, the Department had information indicating that approximately 2,000 "off-site" properties have been affected by contamination. Assessment Reports filed with the Department indicate that a substantial number of these sites may have been affected by discharges of petroleum or petroleum products. Petroleum discharges will in all likelihood continue to occur in the future at petroleum facilities. Petroleum discharges will in all likelihood continue to affect off-site properties in the future.
Findings Of Fact On September 16, 1981, an inspector employed by the Petitioner, Department of Agriculture and Consumer Services took gasoline samples from leaded and unleaded pumps identified as "Way 44547513" and "Way 445475A" respectively, at the Cigar City Auto/Truck Plaza, in Tampa, Florida. The samples were tested and found to contain suspicious substances. Specifically, the unleaded gasoline was found to be contaminated with leaded gasoline. As a result of test results, the Department issued a stop sale notice to Robert Lawson, Manager of Cigar City, on September 18, 1981. The test analysis showed that the unleaded gasoline sample exceeded the standards established by the American Society of Testing and Materials (ASTM) for unleaded fuel which were adopted by the Department as Rule 5F-2.01, Florida Administrative Code. The sample in question contained 1.41 gram of lead per gallon and, therefore, violated Rule 5F-2.01(1)(j), Florida Administrative Code, which states that unleaded gasoline may not contain more than 0.05 gram of lead per gallon. The Respondent was permitted to post a $1,000 cash bond in lieu of confiscation in order to secure the release of 4,230 gallons of illegal gasoline for sale as leaded regular. The contamination was caused by a delivery man for a gasoline supplier who unintentionally placed-leaded gasoline into an unleaded tank. When the Respondent became aware of the problem, immediate steps were taken which included color coding the tanks so that the problem would not reoccur. This is the first incident concerning the sale of illegal gasoline in which the Respondent has been involved. No complaints were filed by any consumers concerning the gasoline sold by the Respondent.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order returning $750 of the Respondent's cash bond which was required to be posted. DONE and ORDERED this 8th day of January, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1982. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Gerald Taylor, Esquire 3224 Bay to Bay Boulevard Tampa, Florida 33609
The Issue The issue in this case is whether the Petitioner is eligible for reimbursement for allowable costs pursuant to Section 376.3071(12), Florida Statutes, related to the cleanup of certain contamination at the Petitioner's ground transportation facility.
Findings Of Fact Based on the evidence received at the hearing, I make the following findings of fact: Facts stipulated to by the parties The subject facility is a bus, limousine and van storage, dispatch, and service area for a ground transportation company serving Miami International Airport which contains a parking lot, fuel storage tanks, an administration building, and a maintenance shop. The Department of Environmental Regulation is the agency charged with responsibility for administering the provisions of Section 376.3071, Florida Statutes. Red Top Sedan, Inc., through its agents, notified the Department of possible ground and ground water contamination on or about September 10, 1986. The Department received said notification and on September 19, 1986, advised Red Top that the notice was adequate and requested further information. Following various correspondence and requests for information, the Department determined that it had sufficient information and, on February 1, 1988, issued its Notice of Intent regarding the eligibility of the subject sites for participation in the program. One area, adjacent to and surrounding the diesel fuel pumps, was found to be eligible. Another area, east and west of the maintenance shop (Exhibit "2" to the Notice) was found to be ineligible. Red Top filed a Petition for Administrative Determination which was received by the Department on February 23, 1988. The Petition was subsequently referred to the Division of Administrative Hearings and a Hearing Officer assigned. Facts Established at Hearing General Information About The Facility The subject facility also contains a parking area for approximately 95 buses, 40 to 45 vans, two dozen mini-buses, and 15 or 16 limousines and Lincoln towncars. There is also employee parking on the site. To the east of the Red Top office building there is a fuel island used for fueling Red Top's vehicles. The tanks associated with that fuel island have discharged diesel fuel. That petroleum contamination site is entirely separate from the one involved in this proceeding and has been found to be eligible for reimbursement. When the subject facility was constructed, Red Top employed an engineering company. It also employed a company named Service Station Aid. Service Station Aid is in the business of servicing tanks and other equipment used in connection with the handling of oil, gasoline, diesel fuel, and other similar products. Among other things, Service Station Aid installed underground waste oil tanks and tanks to hold automatic transmission fluid and new motor oil in the area of the maintenance facility. A drainage system servicing the asphalt parking areas and driveways surrounding the various buildings was also installed on the subject site. That system contained various grease traps which conformed to accepted practice at the time of their construction. Facts Regarding The East Side of the Maintenance Building Two underground waste oil tanks are on the east side of the maintenance building. The two waste oil tanks have been in operation since 1976, when the facility was built. Each of these two tanks has a capacity of 560 gallons. Employees of Red Top regularly pour used motor oil into the two waste oil tanks on the east side of the maintenance facility. The used oil is periodically removed by an EPA approved company. That company removes the waste oil to a fuel recycling facility in the Port Everglades area where it is made into recycled fuel. It is possible, even probable, that used oil has been spilled from time to time both while being poured into the waste oil tanks and while being removed from the waste oil tanks. However, there is no persuasive competent substantial evidence that any such spillage was a significant contribution to the contamination at the site. .1/ It is possible that one or both of the waste oil tanks has leaked. However, there is no persuasive competent substantial evidence that any such leakage was a significant contribution to the contamination at the site. In this regard it is noted that Red Top has not tested either of the waste oil tanks to determine whether they are leaking. Approximately 70 feet to the east of the maintenance building there are three storm drains. The storm drains are attached by way of a catch basin to soakage pits. Soakage pits are specifically designed to allow materials entering the soakage pit to be discharged directly to the earth. Storm drains are designed to catch stormwater runoff rather than large amounts of pollutants. The area to the east of the maintenance facility is paved with asphalt. That paved area is sloped so that any discharge of pollutants in that area of the site will flow to the storm drains. On numerous occasions waste oil has been observed in the storm drains. Instances of direct discharges of waste oil onto the ground or into the storm drains have been observed. Oil stains around the storm drains and observations by Dade County inspectors indicate that such direct discharges have been regular, if not frequent. Other sources of contamination at the Red Top facility include leaking drums of oil, oil leaking from stored or discarded equipment, oil discharged to the ground, disposal of contaminated waters from the maintenance building, and engine washing water discharged on the site. In the ground to the east of the maintenance building there is a large plume of dissolved oil and grease. This plume includes a plume of free product in the vicinity of the southernmost of the two waste oil tanks. Extending beyond the identified plume there are additional areas contaminated by constituents of waste oil. The primary cause of the contamination on the east side of the maintenance building is the direct discharge of contaminants. Discharge from the two waste oil tanks constitutes, at most, only a very minor cause of the overall contamination. .2/ Facts Regarding the West Side of the Maintenance Building On the west side of the maintenance building there are two underground tanks that are used to hold new motor oil and new transmission fluid. Motor oil and transmission fluid are lubricants used to lubricate engines and transmissions. They are not fuels. Pollutants which were discharged onto the floor of the maintenance building during maintenance work have been washed directly into the storm drains on the northwest side of the maintenance facility. There are two small areas of contamination on the west side of the maintenance facility. One such area is around a storm drain at the northwest side of the maintenance facility. The other is around the two tanks that contain new motor oil and transmission fluid. The contamination in the area of the storm drain includes lead, cadmium, and chromium. Motor oil and transmission fluid do not contain lead, nor do they contain levels of cadmium or chromium in amounts sufficient to be detected in groundwater. There is also an area of free product near the storm drain. There is no storage tank adjacent to the storm drain on the northwest side of the maintenance facility that could account for the lead, cadmium, and chromium contamination or that could account for the area of free product. The contamination at the storm drain on the west side of the maintenance facility resulted from direct discharges of contaminants to the storm drain and catch basin and was not a result of a discharge from a storage tank. The contamination in the area of the two tanks used for new motor oil and transmission fluid also contains lead, cadmium, and chromium. The metals contamination at this area is a result of discharge to the storm drain, and is not the result of discharge of new motor oil or transmission fluid from the two tanks. The groundwater in the area around these two tanks is also contaminated by dissolved oil and grease. The dissolved oil and grease plume is consistent in terms of substance and concentration with the dissolved waste oil to the east of the building. Within that plume of dissolved oil and grease there is also a small plume of free product. There is no waste oil tank on the west side of the maintenance facility that could account for waste oil contamination at that location. The dissolved oil and grease plume on the west side of the maintenance facility is most likely the result of waste oil discharge to the catch basin. The tanks containing new motor oil and transmission fluid may have contributed to the small free product plume in that area as a result of overfilling, but any such contribution was only a minor part of the overall contamination. In reviewing an application for eligibility for reimbursement, the Department looks at the relative importance of eligible and ineligible portions of a contaminated site. In cases where a potentially eligible source is minor in comparison to an overall otherwise ineligible contamination site, the Department's policy is to treat the entire site as ineligible. This policy is based on the fact that as a practical matter it is not possible to clean up one part of a contaminated site without affecting any adjacent contaminated areas. For the same reason, if the majority of a contaminated site is eligible, but it contains minor ineligible sources, the Department's policy is to treat the entire site as eligible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation issue a final order in this case concluding that the contamination area at issue in this proceeding is not eligible for reimbursement under Section 376.3071(12), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of June 1989. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June 1989.
Findings Of Fact At all times pertinent to the allegations contained herein, Pioneer Oil Company was a licensed distributor of petroleum products in Florida, and the Department was the state agency responsible for overseeing and regulating the sale of petroleum products in this state. On May 9, 1990, the owner of Port Stop #4 in Duette, Florida, a seller of Pioneer's petroleum products at retail, requested Pioneer, as its supplier, to change over a storage tank, previously used for the storage of diesel fuel, to storage for gasoline and vice versa. Petitioner agreed but waited until the customer was nearly out of product to make the switch, and when that had happened, sent its pump truck to the facility to pump the remaining fuel out of the tankss. Pioneer's employee did pump out what he believed was all the fuel remaining in the tanks. However, because unknown to him or to anyone else, the tanks were tilted in the ground, the pumping operations left some of each fuel in its respective tank. When the fresh fuel was then placed into these new tanks, it was contaminated by that previous stock remaining therein after the pumping. On May 29, 1990, an inspector from the Department took samples of the diesel fuel, suppled from Petitioner, from the underground tank. When this sample was tested, it was found to be contaminated by the gasoline remaining in the tank after pumping. That diesel fuel did not meet state standards and was illegal. Because the unleaded pump was not working that day, that product could not be sampled. Therefore, a second sample, this time of unleaded gasoline, was taken on May 31, 1990, and it, too, was found to be contaminated by the diesel fuel which remained in that tank after pump out. This fuel did not meet state standards, either, and also was illegal. The diesel fuel sold at retail for $1.159 per gallon, and 1,359 gallons of the product had been sold. The unleaded gasoline sold at retail for $1.099 per gallon, and 4,997 gallons of that product had been sold. The Department is authorized to assess a penalty of up to $1,000 for each illegal product sold, depending on the amount sold. Since more than 1,000 gallons of each product was sold, the maximum penalty was assessed in each case. Mr. McGary claims that since the station where the incident took place was not owned by Pioneer, which is merely the product supplier, it was not legally obligated to pay the assessment. However, he admits that as a matter of business practice, since the products in issue were Pioneer products, since Port Stop #4 was a customer, and since it was a Pioneer employee who made the swap, it agreed to do so. Had it not made the swap, the dealer, (Port Stop #4) would have had to hire someone else to do it and Pioneer would have felt no obligation to assume the financial burden. He also claims that had the unleaded gasoline pump been working on May 29, 1990, the contamination of that product would have been found at the same time the other was found, and there would have been only one violation. This does not necessarily follow, however.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Department of Agriculture and Consumer Services affirming the imposition of bond and assessment against the bond posted by Petitioner, Pioneer Oil Company, in each of the incidents of illegal product discovered at Port Stop #4 in Duette, Florida, on May 29 and 13, 1990. RECOMMENDED this 31 day of October, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31 day of October, 1990. COPIES FURNISHED: Larry McGary General Manager Pioneer Oil Company 878 12th Street East P.O. Box 9046 Bradenton, Florida 34206 Clinton H. Coulter, Jr., Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Hon. Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, FL 32399-0810 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800
The Issue The issue here presented concerns an alleged violation of Rule Subsection 5F-2.01(1)(c)1, Florida Administrative Code, related to the permissible ten percent (10 percent) evaporated temperature for which gasoline shall not exceed 140F, and penalties to be imposed for such violations, in keeping with Section 525.06, Florida Statutes (1980), and Rule Subsection 5F-2.01(1)(c)1, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. The Petitioner, State of Florida, Department of Agriculture and Consumer Services, is an agency of State government which has the obligation to inspect petroleum products in keeping with the provisions of Chapter 525, Florida Statutes (1980). The Respondent is a corporation which sells petroleum products in the State of Florida at an outlet located at 3411 U.S. 19 North, Pasco County, Tarpon Springs, Florida. On November 23, 1981, a sample of the petroleum product, super unleaded gasoline (which was offered for sale) was taken from the Respondent's facility as indicated above. A subsequent analysis of that product by Petitioner's mobile laboratory revealed that the ten percent (10 percent) evaporated temperature was 153F. This reading exceeded the ten percent (10 percent) evaporated temperature of 140F as set forth in Rule Subsection 5F-2.01(1)(c)1, Florida Administrative Code. Petitioner's inspector, Jamie Gillespie, advised Respondent's agent that the premium unleaded gasoline was illegal due to its "stale" condition and the Respondent was given an option of either confiscation of the product or posting of a bond. The product is presently under a Stop Sale Notice and is under seal. (Petitioner's Composite Exhibit No. 1.) A subsequent analysis by Petitioner's laboratory in Tallahassee revealed that the evaporation level of the product was found to be approximately 163F. Ben Bowen, Petitioner's Assistant Bureau Chief in charge of petroleum inspection, indicates that the discrepancy in the evaporation levels as analyzed by the two laboratories was most probably due to the seal which was on the product and the approximate seven (7) day delay in the transfer of the product from Tarpon Springs to the laboratory in Tallahassee. Respondent's supervisor, Mark Ordway, 1/ was shown how the product could possibly become stale due to a "venting" problem from the roof of the storage tank where the product was stored. Sam Puleo, a lab technologist employed in Petitioner's mobile laboratory, analyzed the sample of the product taken from Respondent's facility. According to Mr. Puleo, "stale" products such as that taken from Respondent's tanks would make it difficult to start an automobile engine.
The Issue Whether or not the agency may, pursuant to Section 525.06 F.S., assess $390.04 for sale of substandard product due to a violation of the petroleum inspection laws and also set off that amount against Petitioner's bond.
Findings Of Fact Coleman Oil Co., Inc. d/b/a Shell Oil Co. at I-75 and SR 26 Gainesville, Florida, is in the business of selling kerosene, among other petroleum products. On November 15, 1990, Randy Herring, an inspector employed with the Department of Agriculture and Consumer Services and who works under the direction of John Whitton, Chief of its Bureau of Petroleum, visited the seller to conduct an inspection of the petroleum products being offered for sale to the public. Mr. Herring drew a sample of "1-K" kerosene being offered for sale, sealed it, and forwarded it to the agency laboratory in Tallahassee where Nancy Fisher, an agency chemist, tested it to determine whether it met agency standards. The testing revealed that the sampled kerosene contained .22% by weight of sulfur. This is in excess of the percentage by weight permitted by Rule 5F- 2.001(2) F.A.C. for this product. A "Stop Sale Notice" was issued, and on the date of that notice (November 20, 1990) the inspector's comparison of the seller's delivery sheets and the kerosene physically remaining in his tanks resulted in the determination that 196 gallons of kerosene had been sold to the public. Based on a posted price of $1.99 per gallon, the retail value of the product sold was determined, and the agency accordingly assessed a $390.04 penalty. The agency also permitted the seller to post a bond for the $390.04 on November 21, 1990. The assessment is reasonable and conforms to the amount of assessments imposed in similar cases.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the $390.04 assessment and offsetting the bond against it. DONE and ENTERED this 25th day of April, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 25th day of April, 1991. COPIES FURNISHED TO: CLINTON H. COULTER, JR., ESQUIRE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 510 MAYO BUILDING TALLAHASSEE, FL 32399-0800 MR. RANDAL W. COLEMAN COLEMAN OIL COMPANY POST OFFICE BOX 248 GAINESVILLE, FL 32602 HONORABLE BOB CRAWFORD COMMISSIONER OF AGRICULTURE THE CAPITOL, PL-10 TALLAHASSEE, FL 32399-0810 RICHARD TRITSCHLER, GENERAL COUNSEL DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 515 MAYO BUILDING TALLAHASSEE, FL 32399-0800
