The Issue The issue for determination is whether Rule 17 Administrative Code (1991), constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact The parties stipulated to findings of fact set forth in paragraphs 1.-8., below. Stipulated Facts Respondent has documented contamination from the abandoned petroleum storage system. The abandoned petroleum storage system has been properly closed. Petitioner submitted an application to Respondent on Respondent's forms 17-769.900(3) and (4), Florida Administrative Code, which was postmarked on or before June 30, 1992. The site is not eligible for cleanup pursuant to Section 376.3071(9) and (12), Florida Statutes, the Early Detection Incentive Program, or the Florida Petroleum Liability and Restoration Insurance Program pursuant to Section 376.3072, Florida Statutes. This site is not owned or operated by the federal government. This site did not have leaking tanks that stored pollutants that are not petroleum products as defined in Section 376.301, Florida Statutes. Respondent was not denied access to this site. Petroleum contamination was not discovered after the application deadline of June 30, 1992. Additional Facts Petitioner, a Florida corporation, is in the business of owning and leasing property. Petitioner is the fee simple owner of property located at 2022 Wahnish Way in Tallahassee, Florida. The property located on Wahnish Way was leased to James T. "Pete" Thomas by Petitioner's predecessor in title. Thomas operated a gasoline station and automobile repair garage on the property. The lease with Thomas was continued by Petitioner without change upon Petitioner's assumption of the legal title to the property in 1985. Prior to Petitioner's assumption of title to the property in the early 1970's, Thomas had installed four petroleum storage systems in a four tank pit on the property. Thomas later registered all four of the tanks with Respondent by the statutory deadline of December 31, 1984, as required by Florida law. Although Thomas signed the registration documents as an agent of Petitioner, he was not such an authorized agent and the registration occurred without the knowledge or approval of Petitioner. Sometime in the early 1980's, Thomas and his wholesale gasoline distributor determined that one of the four underground tanks was losing product. In 1982, Thomas ceased using the southernmost tank in the pit for the storage of petroleum products for subsequent consumption, use or sale. The distributor ceased placing gasoline in the southernmost tank. Petitioner, unaware that Thomas had experienced any product loss problems or that the tanks on the property had been registered by Thomas with Respondent, became aware of both matters following receipt of a letter from government officials of Leon County, Florida, on November 20, 1990. As set forth in that letter, Petitioner was apprised that the tanks were not in compliance with State of Florida standards and would have to be closed or retrofitted to bring the tanks into compliance. Following receipt of the letter, Petitioner informed Thomas that selling of gasoline at the site was to be discontinued immediately. Closure of the tanks, performed in early 1991, by contractors retained by Petitioner, consisted of excavation and removal of the petroleum storage systems from the property. All four tanks were in the tank pit side by side, from the northernmost end of the pit to the southern end of the pit fronting on Osceola Street in Tallahassee, Florida. When the removal was completed, a Closure Assessment form was prepared by one of the contractors, Jim Stidham and Associates, in accordance with requirements of Florida law. During that process, excessive contamination from petroleum product of the soils in the extreme south end of the tank pit was discovered. Excessive contamination, defined as anything more than 500 parts per million, was located beneath the southernmost pump on the southern end of the pump island and in the southern end of the pit. A 20 foot soil boring as near as possible to the site of the southernmost tank revealed that unacceptable levels of contamination extended to that depth. As supported by the testimony of James A. Stidham, Petitioner's expert in the assessment of contamination caused by underground petroleum storage tanks, the location of contamination in the pit area establishes that the tank causing the contamination was the southernmost tank. The hole discovered in one of the tanks at the time of removal was likely located in the southernmost tank. The excessive contamination located at the shallow depth of two feet under the southernmost pump resulted from the improper disconnection of piping attached to the pump and is not attributable to the leak in the tank. Each tank was connected by piping on the eastern end of each tank to the corresponding pump. The southernmost pump was not used after 1982 and was missing integral parts by the time the tanks were closed. In the course of exploring options for clean up of the property, Petitioner filed for assistance from Respondent in the form of participation in the ATRP. Unaware of the true date of the cessation of use of the southernmost tank, Petitioner gave the date of last use for all tanks in the pit by stating that the "tanks were taken out of service between December 15, 1990 and January 15, 1991." Petitioner provided this response to Respondent's July 30, 1991 request for further information on August 6, 1991. Although Respondent made an initial determination to deny Petitioner's application in the middle of August, 1991, that action was not communicated to Petitioner. Instead, Petitioner's application was held by Respondent, pending possible amendment to Section 376.305(7), Florida Statutes (1991). Respondent held Petitioner's application for a total of almost nineteen months before issuance of a formal decision to deny the application on February 26, 1993. Respondent's denial of Petitioner's application was based upon the eligibility requirement restricting ATRP participants to those situations where the petroleum storage system has not stored petroleum products for consumption, use or sale after March 1, 1990, and the belief of Respondent's personnel that all storage systems on Petitioner's property had stored products beyond that date. Specifically, Respondent eventually gave notice that it intended to deny Petitioner's application for participation in the ATRP for the following reason: Eligibility in the Abandoned Tank Restoration Program is restricted to those petroleum storage systems that have not stored petroleum products for consumption, use or sale after March 1, 1990, pursuant to Section 17-769.800(3)(a), Florida Administrative Code.
The Issue Whether Petitioner, Department of Community Affairs (the Department), is legally precluded in this proceeding from taking agency action to enforce the reporting and fee provisions required pursuant to Chapter 252, Part II, Florida Statutes, against Respondent, Goodson Paving, Inc., for the reporting years of 1989 through 1994, inclusive, by operation and application of Section 95.011 and Section 95.11(3)(f), Florida Statutes (statute of limitations); and, Whether the Department is legally and equitably precluded in this proceeding from taking agency action to enforce the reporting and fee provisions required pursuant to Chapter 252, Part II, Florida Statutes, against Respondent for the reporting years of 1989 through 1994, inclusive, by operation and application of Section 95.11(6), Florida Statutes (doctrine of laches).
Findings Of Fact The Florida Hazardous Materials Emergency Response and Community Right to Know Act (the Act), Part II, Chapter 252, Florida Statutes, was first passed in 1988. The purpose of Act is to provide information to response personnel in an emergency regarding the type of chemicals and substances that might be present at a facility. The outreach program conducted by the Department of disseminating information to facilities which potentially may be required to report was initiated in 1988 and continued into 1989. It included mass mailings to over 100,000 facilities; conduct of regional seminars, which were advertised in newspapers; establishment of an Internet site; publishing a how-to-comply handbook; and working with local communities and other state agencies. There are approximately 15,000 to 16,000 active facilities reporting under various sections of the Act. The Department did not contact Respondent during the outreach program. Respondent has been located at 5855 Industrial Drive, Cocoa, Florida, since April 1989. Respondent reported the following number of employees to the Florida Department of Labor and Employment Security for unemployment compensation tax purposes for the last month of each year, from 1989 through 1998: 1989 24 1990 22 1991 25 1992 30 1993 31 1994 35 1995 37 1996 40 1997 44 1998 45 Respondent is in the business of site contracting and road building/construction and uses diesel fuel which it stores on-site for fueling its trucks and construction equipment. Respondent does not distribute the diesel fuel or offer it for retail sale. The site located at 5855 Industrial Drive, Cocoa, Florida, has been an asphalt plant and road construction office since approximately 1949. Respondent stores on-road diesel fuel and off-road diesel fuel at the site for self-use for completion of contracted projects. The Brevard County Fire and Rescue Department performs annual inspection of Respondent's site at 5855 Industrial Drive, Cocoa, Florida, as well as inspection of the shop, the office, and the storage tanks. Respondent has completed and filed the State of Florida Department of Environmental Protection Storage Tank Registration forms and the State of Florida Environmental Protection Plant Storage Tank System Inspection Report for every year of operation since at least 1991. Respondent completed and filed the State of Florida Department of Environmental Protection Storage Tank Facility Compliance Inspection Report for the year 1999 on September 8, 1999. Respondent received the State of Florida Department of Environmental Protection Storage Tank Placard issued in July of 1999 with an expiration date on June 30, 2000. Respondent is in possession of the requisite State of Florida Storage Tank Third Party Liability and Corrective Action Policy Declarations with an effective date of January 1, 1999. Respondent has maintained uninterrupted insurance for the on-site tanks since 1989. Respondent pays a State of Florida Pollutant Tax on each gallon of diesel fuel purchased through its supplier, Coastal Refining and Marketing, Inc. The tax is collected by the supplier and remitted to the State of Florida. The State of Florida Department of Environmental Protection Storage Tank Facility Compliance Inspection Reports are filed with the State of Florida Department of Environmental Protection in Tallahassee, Florida. The Brevard County Fire and Rescue Department is aware and informed of the chemicals and type of operation located at Respondent's site at 5855 Industrial Drive, Cocoa, Florida. The only chemicals possessed by Respondent at the site at 5855 Industrial Drive, Cocoa, Florida, are the aforementioned diesel fuel tanks, motor oil, hydraulic oil, and four one-gallon cans of paint. Respondent does not manufacture asphalt or maintain liquid asphalt at the site at 5855 Industrial Drive, Cocoa, Florida. Prior to receiving the April 2, 1999, Notice of Violation and Intent to Assess Late Fee, Respondent had not had contact with The Department. Respondent has filed the requisite monthly reports to the State of Florida Department of Revenue and has paid the requisite road and fuel tax to the State of Florida Department of Revenue since incorporation. Respondent, Goodson Paving, Inc., does have a current, valid Occupational License issued by Brevard County, Florida. Respondent's diesel fuel storage containment system is built to the code issued by Brevard County and is approved by the Brevard County Inspectors each year. Prior to receiving the April 2, 1999, Notice of Violation and Intent to Assess a Late Fee from the Department, Respondent, in the previous ten or eleven years, has had annual inspections conducted by the Brevard County Fire and Rescue Department and the other county inspectors; has paid taxes to the State of Florida Department of Revenue; and has had a valid Occupational License. Respondent was not informed of the obligation to report under Part II of Chapter 252, Florida Statutes. On April 8, 1999, Respondent received the Department's Notice of Violation and Intent to Assess a Late Fee dated April 2, 1999. Respondent timely requested an administrative hearing regarding the Department's April 2, 1999, Notice of Violation and Intent to Assess Late Fee, pursuant to Section 120.569, Florida Statutes, and implementing rules. The staff of the Department's Division of Emergency Management Compliance Planning Section who administer the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Act of 1988 are also responsible for assisting the Division's Emergency Operations Center during activations for disasters such as hurricanes or fires. During activations, the routine hazardous materials program duties are subservient to other Division of Emergency Management duties. Respondent suffered no prejudice from the timing of the Department's April 1999 Notice of Violation and Intent to Assess a Late Fee since: (1) the annual inventory forms are required by federal law; (2) Respondent was able to complete the forms based upon available information; and (3) no interest, late fee, or other adverse financial impact will result if the annual fees are timely paid in response to the notice. Respondent is responsible for the fee obligations under the statutes and rules for the years 1989-1998, in the total amount of $832.50.
Recommendation That the Secretary of the Department of Community Affairs enter a final order which holds that: Respondent is responsible for reporting diesel fuel in excess of the threshold planning quantity pursuant to 42 U.S.C. Section 11022 and Sections 252.85 and 252.87, Florida Statutes, for the years 1989-1998 inclusive; and for the fee obligations under Section 252.85, Florida Statutes, and Rule 9G-14.003(3), Florida Administrative Code, for the reporting years 1989-1998, inclusive. Respondent owes the Department annual registration fees totaling $832.50 if the reports and fees are submitted within thirty days of the Department's final order in this matter. Respondent can be assessed additional late fees if all required reports, fees, and late fees are not timely paid, in accordance with Section 252.85(4)(b)3, Florida Statutes. DONE AND ENTERED this 1st day of December, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 1st day of December, 1999. COPIES FURNISHED: Ross Stafford Burnaman, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325A Tallahassee, Florida 32399-2100 Douglas W. Baker, Esquire John H. Evans, P.A. 1702 South Washington Avenue Titusville, Florida 32780 Jim Robinson, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
The Issue Are the Respondents legally liable for petroleum contamination of soil and groundwater at the Economy Tire Service Station, 1858 Main Street, Sarasota, Florida and, if so, should the Respondents be required to perform the Corrective Actions included in the Notice of Violation and Orders for Corrective Action issued on February 19, 1993, by Petitioner, Department of Environmental Protection?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the administrative agency charged with the responsibility of administering and enforcing the provisions of Chapter 376, Florida Statutes, and the rules promulgated thereunder in Title 17, Florida Administrative Code. Bryant A. Meeks, Trustee, is the owner of the property situated at 1858 Main Street, Sarasota, Florida (Property). Meeks is a person within the meaning of Section 376.301(12), Florida Statutes. Stanley M. Butler is the operator of Economy Tire Service (Business) on the Property, and has continually operated the Business on the property, beginning on November 26, 1980. The Property is specifically identified in a Quit-Claim Deed dated September 10, 1980, conveying all of the interest of O. M. Bailey in and to the Property, to Bryant A. Meeks and Jacqueline F. Meeks. The Property is legally described as: "the East one-half of Lot 3 and all of Lot 4, Subdivision of Lot 15, Block H, PLAT OF SARASOTA, as per plat thereof recorded in Plat Book 1, Page 166, Manatee County Records; and being the same property conveyed by Special Warranty Deed dated July 1, 1979, executed by BP Oil Corporation, a Delaware Corp., recorded in Deed Book 1012, Page 1905, Public Records of Sarasota County Florida." On December 1, 1977, SWT, Inc., purchased the Business from William E. Mitchell and Margaret G. Mitchell. Meeks was President of SWT, Inc. 6 After the acquisition of the Business by SWT, Inc., Meeks hired Butler to operate the Business. On July 17, 1979, Meeks, and his wife, Jacqueline F. Meeks, acquired an undivided one-half interest in the Property by Special warranty Deed from American Petrofina Company of Texas. O. M. Bailey acquired the remaining undivided one-half interest in the Property in the same deed. By Quit-Claim Deed dated September 10, 1980, O. M. Bailey conveyed all of his right, title and interest in the Property to Bryant A. Meeks and Jacqueline F. Meeks. On November 26, 1980, SWT, Inc. sold the Business, including fixed assets, inventory and accounts receivable to Butler. The sale included four underground petroleum storage tanks situated on the Property. On December 1, 1980, Stanley M. Butler and Dixie J. Butler leased the Property from Bryant A. Meeks and Jacqueline F. Meeks for a term of ten years, with an option to renew the lease and an option to purchase the Property. The lease was extended for ten years on January 4, 1991. The lease requires Butler to comply with "all statutes, ordinances, rules, orders, regulations and requirements of Federal, State and City Government and any and all their Departments and Bureaus applicable to said premises..." By Trust Deed dated September 23, 1983, Bryant A. Meeks and Jacqueline F. Meeks conveyed their right, title and interest in the Property to Bryant A. Meeks as Trustee, under the Bryant A. Meeks, Jr., Trust dated August 24, 1983. The Property remains under the ownership of Bryant A. Meeks, Trustee. At all times material to this proceeding, the Business on the Property has consisted of automobile service station, selling various grades of gasoline, diesel fuel, tires and automobile repairs. At all times material to this proceeding, there were four 3,000 gallon, carbon steel, underground petroleum storage tanks, one underground waste oil tank of unknown size (Tank Five) and two underground kerosene tanks of unknown size (Tank Six and Tank Seven) The four underground gasoline tanks shall be collectively referred to as "Gasoline Tanks" and individually as Tank One through Tank Four moving in a northerly direction, with Tank One being adjacent to the service bays on the Property and Tank Four being adjacent to Main Street. Tank Five is located just south of the office adjacent to the east side of the service bays. Tank Six and Tank Seven are located south of the pump island and just north of the office and service bays. The Gasoline Tanks have been continuously owned by Butler since Butler first acquired the Business on November 26, 1980. Butler did not purchase Tank Five, Tank Six and Tank Seven at the time he purchased the Business. At all times material to this proceeding, the Gasoline Tanks contained various grades of gasoline including regular leaded, unleaded and premium unleaded gasoline, as well as diesel fuel. At all times material to this proceeding, the Property was a facility within the meaning of Section 376.301(7), Florida Statutes. In the summer of 1978, it was determined that Tank Four was the source of water pumped into a customer's automobile gas tank. Tank Four was tested and found to be leaking. Tank Four was disconnected from service without removing all of the gasoline product. During this time, Butler advised Meeks that Tank Four was leaking, notwithstanding Meeks' testimony to the contrary. When Meeks purchased the undivided one-half interest in the Property in July 1979, Butler again advised Meeks that Tank Four had been disconnected due to a leakage, notwithstanding Meeks' testimony to the contrary. Meeks advised Butler that the Property had been purchased "as is". Since November 26, 1980, Butler has been an Operator of the Facility within the meaning of Section 376.301(10), Florida Statutes. Butler switched suppliers in 1981 and his new supplier, Amoco Oil, offered to fiberglass line Tank Four. The contractor hired by Amoco Oil pumped out the petroleum product left in the Tank Four when it had been disconnected. The contractor determined that Tank Four could not be fiberglass lined due to the holes in the tank. On May 21, 1984, there was a complaint by the Sarasota Fire Department of gasoline odors from the Facility. The gasoline vapors resulted from a leak in the underground air lines in conjunction with gasoline being discharged from Tank Four because of perforations in the tank before it was pumped out in 1981. The Department notified Butler of this finding and requested that Butler perform a hydrologic study to determine the extent of contamination. Apparently, Butler never had this hydrologic study performed. On October 12, 1984, Butler was given a warning notice by the Department that he was in violation of Chapter 403, Florida Statutes, and regulations promulgated thereunder. Additionally, the Department advised Butler to commence an contamination assessment which would require a Contamination Assessment Report to be submitted to the Department. The record does not reflect that a contamination assessment was commenced or that a Contamination Assessment Report was submitted to the Department. The Department has been aware of Meeks' ownership of the Property since October 1984. Butler registered the Gasoline Tanks and the Waste Oil Tank with the Department in March, 1986. In 1989, Butler installed four monitoring wells at the Facility adjacent to the Gasoline Tanks. On July 27, 1989, another complaint concerning gasoline odors was reported. On August 17, 1989, a written notice was mailed to Butler by the Department advising Butler that he was in violation of Chapters 403 and 376, Florida Statutes. There is no evidence that the Department sent Meeks a notice of such violation. During an inspection of the Facility in April 1990, the inspector found that: (a) the Gasoline Tanks had not been upgraded and retrofitted as required by Department rule; (b) the Gasoline Tanks did not have the requisite overfill and overspill protection as required by Department rule; (c) there was petroleum product in all four monitoring wells, with well no. 1 having a high petroleum odor and a detectable petroleum odor in wells nos. 2, 3, and 4; (d) the organic vapor analyzer readings taken in each of the monitoring wells indicated hydrocarbon vapors in excess of 5,000 parts per million and; (d) a tightness test had not been performed at the Facility in accordance with Department rules, and in response to the Discharge Notification Form filed by Butler on November 13, 1989. It was not until the fall of 1990 that Meeks received a notice from the Department concerning the contamination of the Property and that Meeks would be liable for cleaning up the contamination. However, Meeks failed to present sufficient evidence that he had been prejudiced by the Department's delay in notifying him of the contamination due to the unavailability of witnesses or records. There was no showing that Meeks had made any attempt, unsuccessful or otherwise, to secure witnesses and records concerning the condition of the Property before his acquisition in 1979 and 1980. During an inspection of the Facility in February 1991, the inspector found that: (a) one of the Gasoline Tanks was full of water; (b) the Gasoline Tanks had not been upgraded and retrofitted as required by Department rule and; (c) the Gasoline Tanks did not have the requisite overfill and overspill protection as required by Department rule. Amoco Oil removed all of the petroleum product from Tanks One, Two and Three in October 1991. Butler then contracted with Dickerhoof to inspect the Gasoline Tanks and reline them with fiberglass. After inspecting Tank One and Tank Two, Dickerhoof determined that these tanks could not be relined because of their condition. There were pin holes on the inside of the tanks in addition to split seams and perforations in the tops of the tanks. Butler decided not to inspect Tank Three since he could not operate with only one tank. Tank Four had been taken out of service earlier. On October 22, 1991, Eugene Cherno, Environmental Supervisor, Pollution Control Division, Sarasota County Government advised Butler not to return the Gasoline Tanks to service due to their poor condition. During an inspection of the Facility in May 1992, one-half inch of free product with a fairly strong petroleum odor was bailed from the southwest monitoring well. The color and condition of the free product indicated that the petroleum discharge had occurred within one to four years before the free product was removed. There was a slight petroleum odor in the remaining three monitoring wells. In July 1992 Butler contracted with James Nuwer to remove and replace the Gasoline Tanks and gas lines with new underground storage tanks and gas lines. Upon removing the Gasoline Tanks, Nuwer found small holes in Tanks One, Two and Three and somewhat larger holes in Tank Four. All of the Gasoline Tanks were corroded and had perforations on the welded seams. On July 10, 1992, when the Gasoline Tanks were excavated there was a strong petroleum odor permeating the entire area around the facility even though the petroleum product had previously been pumped out of the Gasoline Tanks. The soil removed in the process of excavating the Gasoline Tanks was a porous sand type soil. During the excavation and replacement of the Gasoline Tanks, Environmental Science and Engineering, Inc. (ESE), on behalf of Butler, prepared a UST Closure Environmental Assessment Report (Closure Assessment Report). During the excavation activities, ESE monitored the soils removed from the excavation using an organic vapor analyzer (OVA), equipped with flame ionization detector (FID). The OVA/FID measures total vapors, including methane, in the parts per million (ppm) range. An unfiltered and filtered screening was performed on each sample to evaluate the total organic vapor and methane concentration. The methane concentration was subtracted from the total organic vapor concentration to evaluate the soil for excess soil contamination. Soil vapor screening was performed in accordance with procedures defined in Rule 17-770.200(2), Florida Administrative Code. Twenty-one soil samples were collected for OVA/FID screening. The results of the OVA/FID screening show the total OVA reading in all 21 samples being greater than 1000 ppm. After subtracting the methane reading from total OVA reading, the samples ranged from a total OVA reading of 890 ppm to 1000 ppm. Pursuant to Rule 17-770.200(2), Florida Administrative Code, soils excessively contaminated by gasoline or diesel fuel will cause a total hydrocarbon reading of 500 ppm for gasoline and 50 ppm for diesel fuel using OVA/FID screening. Based on these results, the soil on the Property is excessively contaminated as that term is defined in Rule 17-770.200(2), Florida Administrative Code. ESE collected groundwater samples from monitoring wells nos. 1, 2, and The analytical results indicate the detection of both purgeable aromatic and polynuclear aromatic hydrocarbons in the groundwater samples from monitoring wells 1, 2, and 3. In each groundwater sample the benzene, total volatile organic aromatic (TVOA) and methy-tertiary-butyl-ether (MTBE) are reported in concentration presented as micrograms/liter (ug/L) as follows: MW1 MW2 MW3 Benzene 2,140 ug/L 737 ug/L 732 ug/L TVOA's 3,160 ug/L 2,080 ug/L 1,430 ug/L MTBE's 6,090 ug/L 5,980 ug/L 2,940 ug/L These levels exceed the Site Rehabilitation Levels (SRL's) for benzene, TVOA and MTBE of 1 ug/L, 50 ug/L and 50 ug/L, respectively, established in Rule 17- 770.730(5)(a), Florida Administrative Code. Monitoring well no. 4 was not sampled because free product was observed on the groundwater in the well, demonstrating contamination. ESE was unable to determine the extent of the excessively contaminated soils at the Facility due to limiting site conditions. The excavated excessively contaminated soils were transported to the Sarasota County Landfill for bio-treatment. Tank Five, Tank Six and Tank Seven are unmaintained underground storage tanks on the Property that have not been properly closed. On February 19, 1993, the Department issued a Notice Of Violation And Orders For Corrective Action against Meeks and Butler concerning the contamination of the Property on which the Facility is located. At a meeting on March 26, 1993, with Meeks, Butler and representatives of the Department present, the matter of the cost of cleaning up the contamination was discussed by those present. Meeks contends that at this meeting a Department representative advised those present that the Department would pay for the cleanup of the contamination but would not pay for the removal of the three underground storage tanks remaining on the Property. Meeks further contends, that in reliance on this commitment he did not pursue an eviction action against Butler. Meeks presented no evidence on how his not pursuing the eviction action against Butler was detrimental to him. A second meeting was held on July 14, 1993, where only Meeks and Department representatives were present. Meeks contends that another Department representative advised him that the Department could not honor the previous commitment to pay for the cleanup. There is insufficient evidence to show that a Department representative made a commitment for the Department to pay for the contamination cleanup on the Property. However, assuming that a commitment was made, there is insufficient evidence to show that Meeks' reliance on that commitment resulted in Meeks foregoing his eviction action against Butler. Furthermore, even if Meeks did rely on the commitment to forego his eviction action against Butler, there is insufficient evidence to show that his change in position was detrimental or that his reliance on the commitment for any reason resulted in a change of position that was detrimental to Meeks. There is sufficient evidence to show that a Contamination Assessment should be completed at the Facility to determine the extent of the petroleum contamination on the Property. There is sufficient evidence to show that one or more of the Gasoline Tanks have discharged gasoline or diesel fuel to the soils and groundwater on the Property. There is sufficient evidence to show that Tank One, Tank Two and Tank Three discharged either gasoline or diesel fuel to the soils and groundwater on the Property during the several years before the removal of the petroleum product from those tanks in October 1991. Likewise, there is sufficient evidence to show that Tank Four discharged gasoline to the soils and groundwater on the Property from the summer of 1978, when it was taken out of service, until the remaining gasoline was pumped out in 1981. The Respondents presented no evidence that some or all of the contamination was attributable to someone other than the Respondents. While it might be inferred that the Department incurred expenses and costs while investigating this matter, the Department presented no evidence to support any expenses or costs for its investigation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, Recommended that the Respondents shall take the following specific corrective actions to address the violations: Respondents shall, within 60 days of receipt of the Final Order, properly close the three unmaintained underground storage tank systems remaining on the Property in accordance with Rule 17-761.800(2), Florida Administrative Code Respondents shall, at time of the closure of the unmaintained underground storage tank systems, conduct a closure assessment in accordance with Rule 17.761.800(3), Florida Administrative Code, and shall submit the closure assessment report to the proper authority within 60 days of the date of the closure. Respondents shall, within 30 days of receipt of the Final Order, initiate a contamination assessment, as required in Rule 17-770.600(1), Florida Administrative Code. Respondents shall conduct a petroleum contamination cleanup in accordance with Rule 17-770, Florida Administrative Code, in the manner and within the time frames specified therein. DONE and ENTERED this 21st day of December, 1994, in Tallahassee, Florida. WILLIAM R. CAVE 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 21st day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 93-2020 AND 93-6637 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact; 1. Petitioner's proposed findings of fact 1 through 74 are adopted in substance as modified in Findings of Fact 1 through 50; otherwise they are not supported by the evidence in the record, or are unnecessary or subordinate, or are neither material nor relevant. Respondent Meeks' Proposed Findings of Fact: Respondent Meeks' proposed findings of fact 1 through 14, and 16 through 19 are adopted in substance as modified in Findings of Fact 1 through 50; otherwise they are not supported by the evidence in the record, or are unnecessary or subordinate, or are neither material nor relevant. Respondent Meeks' proposed finding of fact 16 is not supported by the evidence in the record. Respondent Meeks' proposed findings of fact 20 and 21 are not supported by the evidence in the record, but see Findings of Fact 43, 44 and 45. Respondent Butler's Proposed Findings of Fact: Respondent Butler did not file any proposed findings of fact. COPIES FURNISHED: Heidi Davis, Esquire Peter Fodor, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Michael S. Drews, Esquire Richard E. Nelson, Esquire 2070 Ringling Boulevard Sarasota, Florida 34237 Stanley M. Butler, Pro se c/o Economy Tire Service 1858 Main Street Sarasota, Florida 34236 Kenneth Plante, General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether Petitioner's service station site known as Siesta Key Exxon Village, at 5201 Ocean Boulevard, Sarasota, Florida, is eligible for state administered cleanup pursuant to Section 376.3071(9), Florida Statutes.
Findings Of Fact Weeks Oil Company, Inc., owns and operates a service station, Siesta Key Exxon, located at 5201 Ocean Boulevard, Sarasota, Florida. On December 21, 1988, Petitioner applied, pursuant to the Early Detection Incentive Program (EDI), for state assistance due to a suspected discharge of gasoline at the facility. The application indicated that a manual test of a monitoring well, conducted on December 16, 1988, detected contamination. After free product was discovered in the monitoring wells in December, 1988, subsequent monitoring well reports for the months of January - May, 1989, indicated the presence of free petroleum product. The January, 1989, monitoring report indicates six inches of free product; the February, 1989, monitoring report indicates twelve inches of free product; the March, 1989, report failed to indicate the presence of free product; and both the April and May, 1989, monitoring reports indicate the presence of sixteen inches of free product. Purity Well Company, the monitoring well contractor retained by Weeks Oil, bailed free product out of the monitoring wells once a month during the period January through May, 1989. On May 23, 1989, Richard Steele of the Sarasota County Pollution Control Division conducted an Early Detection Incentive Program Inspection at Siesta Key Exxon, 5201 Ocean Boulevard, Sarasota, Florida, DER Facility #588521170. During the inspection, Mr. Steele examined the monitoring well reports for Siesta Key Exxon for the months of January through May, 1989. Evidence of contamination was indicated by each month's monitoring well report, and the amount of free product indicated by the monitoring well reports increased over time. During the May 22, 1989, inspection, Mr. Steele observed a minimum of two feet of free product in monitoring well number three. As part of the Early Detection Incentive Program inspection, Mr. Steele requested inventory records for Siesta Key Exxon, which records were provided on June 7, 1989. Inventory records for January, February, March and April, 1989, indicated a total shortage of 441 gallons of gasoline. Mr. Steele's inspection report of May 22, 1989, indicates that no initial remedial action other than the bailing of monitoring wells occurred subsequent to the December, 1988, EDI application. During the May 22, 1989, inspection, Mr. Steele was neither provided with any evidence of repairs to the petroleum storage system made for the purpose of acting upon monitoring well reports, nor did he visually observe any evidence of repair. By letter dated May 24, 1989, from Richard Steele to Weeks Oil Company, Mr. Weeks was informed of the presence of two feet of free product in monitoring well number three and specifically requested a tank tightness test. The May 24, 1987, letter requested Mr. Weeks to send the results of the tank tightness test to the Sarasota County Pollution Control Office or the Department of Environmental Regulation district office. Mr. Weeks discussed with Steele the fact that the contaminants appeared to come from tanks no longer in service, which tanks were scheduled for relining. Mr. Weeks did not consider it practicable to test tanks scheduled for relining and thought Steele agreed that he could delay the testing until the tanks were refitted. Mr. Steele never made such a commitment, and the tank test was never conducted. On October 20, 1989, the tanks at Siesta Key Exxon were excavated and fiberglass coated. The August 22, 1989 ineligibility determination cites as the reason for denial, the failure of Weeks Oil to conduct a tank tightness test as requested by Sarasota County or otherwise immediately investigate and repair the contamination source as required by Chapter 17-61, Florida Administrative Code, The ineligibility letter concludes that failure to immediately investigate and repair the contamination source as required by Chapter 17-61, Florida Administrative Code, shall be construed as gross negligence in the maintenance of a petroleum storage system, which precludes participation in the Early Detection Incentive Program. A tank tightness test should be performed by the owner or operator of a petroleum storage system where there are any discrepancies in inventory records or monthly monitoring system checks. Rule 17-61.050(4)(c) 3., Florida Administrative Code, requires upon discovery of an inventory discrepancy that investigation of the system "shall not stop until the source of the discrepancy has been found, the tank has been tested, repaired, or replaced, or the entire procedure has been completed." Pursuant to Rule 17-61.050(6), Florida Administrative Code, the owner or operator of a storage system shall test the entire storage system whenever the Department has ordered that such a test is necessary to protect the lands, ground waters, or surface waters of the state. Specifically, the Department may order a tank test where a discharge detection device or monitoring well indicates that pollutant has been or is being discharged. Given the inventory record discrepancy and the amount of free product continually observed in the monitoring wells at Siesta Key Exxon, it was appropriate for Mr. Steele to request a tank tightness test. The bailing of a contaminated monitoring well is not an appropriate method of determining the source of petroleum contamination. The failure of Weeks Oil Company, Inc., to timely conduct a tank test as requested by Sarasota County, acting on behalf of the Department, creates a risk of or the potential for greater damage to the environment because a continual unchecked discharge leads to the release of more petroleum product into the environment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the application of Petitioner to participate in the Early Detection Incentive Program. ENTERED this 3rd day of May, 1990, in Tallahassee, Florida. K. N. AYERS, 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 3rd day of May, 1990. COPIES FURNISHED: Janet D. Bowman, Esquire Department of Environmental Regulation Twin Towers Office Building 2400 Blair Stone Road Tallahassee, FL 32399-2400 James B. Weeks, Jr. Weeks Oil Company Post Office Box 100 Sarasota, FL 34230 Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Whether Petitioner is eligible for Florida Petroleum Liability Insurance and Restoration Program (FPLIRP) coverage for petroleum discharges on March 10, 1992 and June 22, 1992.
Findings Of Fact Realadyne is a Florida corporation. The current president of Realadyne is Mary J. Martin. Realadyne was the owner and operator of a facility located at 4846 4th Street North, St. Petersburg, Florida (Save-A-Step Food Store #7) (the "Facility"). The Facility was registered with the Department and was assigned DER Facility No. 52-8624627. The underground petroleum storage system located at the Facility included five underground petroleum storage tanks - four 4,000 gallon tanks and one 10,000 gallon tank. The date(s) that the tanks were installed at the Facility is unknown. At all times material, the Department has delegated to Pinellas County the authority to perform certain types of inspections with regard to underground petroleum storage systems. These inspections are performed by the Pinellas County Public Health Unit ("PCPHU"). Realadyne filed three (3) individual applications for eligibility for restoration coverage under FPLIRP for the Facility for petroleum discharges reported July 30, 1990, March 10, 1992, and June 22, 1992. The applications were all denied by the Department, for reasons articulated by the Department in individual responses to each application all dated September 3, 1993. Realadyne applied for FPLIRP coverage on or about July 25, 1991. Realadyne obtained FPLIRP coverage for the Facility for the period of October 7, 1991 to October 7, 1992. The July 30, 1990 discharge is not eligible for restoration coverage since it occurred outside the FPLIRP coverage period (prior to October 7, 1991). The parties have reviewed the grounds for FPLIRP restoration coverage ineligibility. The parties stipulate and agree that the sole remaining basis for a determination of ineligibility is the following: Failure to upgrade petroleum storage system in accordance to the schedule required by Section 17-761.510(6), F.A.C. The parties also stipulate and agree that if either discharge from the Facility shall be determined eligible for FPLIRP restoration coverage, then the Facility shall be eligible for reimbursement under the restoration program. Under the aforementioned regulations, the petroleum storage system at the Facility was required to be retrofitted on or before December 31, 1989. On July 13, 1990, a PCPHU Inspector (Arthur Caden) performed a compliance inspection at the Facility. A Pollutant Storage Tank System Inspection Report Form was prepared by the Inspector and a copy of the report was provided to Ms. Martin. On July 19, 1990, Ms. Martin had a phone conversation with Moghadam regarding the Facility. As noted, Moghadam's job duties included review of alternative procedure requests under Rule 17-761.850, Florida Administrative Code. As a result of the phone conversation, Martin sent correspondence to John Svec, an employee with the Department's Bureau of Waste Cleanup. The referenced letter requested the Department to grant an "alternate technical proceedings to be able to apply for FDER/FPLIRP" (the "Proceeding"). The July 19, 1990 letter signed by Martin provided in part: The above facility has not been in compliance for over a year, due to company not being able to afford or support a loan for the removal of and replacement of the tanks. By correspondence dated July 25, 1990, the PCPHU directed Petitioner to file a Discharge Notification Form (DNF) concerning a potential discharge of petroleum product. On August 1, 1990, Ms. Martin met with the PCPHU inspector concerning the results of the compliance inspection conducted on July 13, 1990. At that time, PCPHU informed Ms. Martin that "she had to . . . line/replace the old tanks which are unknown as to date of installation." On August 1, 1990, Petitioner filed a DNF with the PCHPU concerning a potential discharge of petroleum product. On or about September 12, 1990, the PCHPU sent Petitioner a Warning Letter concerning the issue of whether Petitioner intended to reline or replace the underground storage tanks. On September 25, 1990, Petitioner provided PCPHU with a copy of a contract proposal for removal and replacement of the underground storage tanks. The contract proposal was from Adams Tank and Lift dated September 4, 1990. Attached to the proposal was a "SNAP-A-GRAM" signed by Ms. Martin which provides in part: Regarding the above facility please be advised that I should be able to give you a date as to when the work will be started the first week of October. I am enclosing a copy of a proposal from Adams Tank and Lift of work to be done at this location. The work contemplated under the proposal from Adams Tank was never performed. On June 5, 1991, a PCPHU Inspector (Joyce Welch) performed a compliance inspection at the facility. A Pollutant Storage Tank Inspection Report Form was prepared by the Inspector and a copy of the report was provided to Ms. Martin. On or about July 8, 1991, the PCPHU sent Petitioner a Warning Notice concerning the DNF that Petitioner filed on July 30, 1990. On July 8, 1991, PCPHU sent Petitioner another warning letter concerning the DNF which Petitioner filed on August 1, 1990. The warning letter provided in part: On August 1, 1990, this agency received a discharge notification form with a discovery date of June 1990. The discovery was based upon the manual sampling of a monitor well. A routine compliance inspection on July 13, 1990 verified the presence of free product in well number 3. Said free products present in the groundwater confirms your site has excessively contaminated as defined in . . . Chapter 17-770. You are instructed to initiate a contamination assessment report (CAR) in accordance with . . . Chapter 17-770 within thirty days of receipt of this letter to determine the extent of contamination. On or about July 19, 1991, Ms. Martin had a phone conversation with Mr. Moghadam. The July 19 letter, which was received by the Department on or around July 22, 1991, requested that the Department grant "alternate technical proceedings to be able to apply for FDER/FPLIRP." (the "Proceeding") Petitioner requested the Proceeding in an effort to bring the Facility into compliance with applicable underground storage tank regulations. After filing the Proceeding, Petitioner applied for FPLIRP coverage on July 25, 1991. The Department never responded, in writing, to the request for the "Proceeding". On February 11, 1992, PCPHU performed another compliance inspection at the facility. On February 17, 1992, PCPHU sent Petitioner a Final Non- Compliance letter concerning the results of the inspection conducted on February 11, 1992. The above-referenced PCPHU noncompliance letter provides in part: Storage tanks do not meet storage tank standards. Please upgrade tanks to meet applicable storage tank standards. On March 10, 1992, Petitioner filed a second DNF for the Facility, based upon evidence of a discharge discovered while inspecting and repairing a portion of the storage tank system. On June 22, 1992, Petitioner began closure activities with regard to removal of the underground petroleum system. On that date, Petitioner filed a third DNF based on evidence of a discharge discovered during its closure activities. On June 23, 1992, Petitioner concluded closure activities with regard to removal of the underground petroleum storage system. Petitioner was not required to obtain the Department's approval of an alternate procedure as a condition precedent to the removal of the underground storage tanks. Removal of the tanks would have brought Petitioner into compliance with the requirements of Rule 17-761, Florida Administrative Code. On or about September 12, 1992, after the tanks were removed, PCPHU sent Petitioner a warning letter concerning the issue of whether Petitioner intended to reline or replace the underground storage tanks. The warning letter provided in part: . . . Chapter 17-61.061(1)(b)2, requires all tanks to be lined or replaced before certain dates. In the case of your facility, since the installation date is unknown, you are required to have the tanks relined or replaced by December 31, 1989. You were previously advised of this violation during an inspection by one of our staff, Arthur L. Caden, on July 13, 1990, and by letter dated July 25, 1990. You requested and obtained a meeting with our staff on August 1, 1990 at which time you were directed to submit a discharge notification form (DNF), and to advise this office whether you would reline or replace the tanks. The DNF had been filed, but staff has not been formally advised of your decision regarding the tanks. Therefore, since you have not responded formally to this office, we have no alternative than to advise you that we will proceed with an appropriate enforcement action if you ignore this letter of warning. Please be advised that the subject tanks shall be relined or replaced no later than November 30, 1992. Petitioner's request for the "proceeding" seeks an after-the-fact "exception" to the retrofit requirements of Rule 17-761.510, Florida Administrative Code. The basis for Petitioner's request for an exception is "financial inability". When Petitioner's request for a "proceeding" was filed, the Department had a policy of not proceeding with the review of any request for an alternative technical procedure if the facility submitting the request was then out of compliance with the retrofitting requirements of Chapter 17-761, Florida Administrative Code. The request for a "proceeding" was not a viable procedure to extend the December 31, 1989 retrofitting deadline even assuming the request otherwise complied with Rule 17-761.850, Florida Administrative Code. Likewise, the Department lacked authority to extend the December 1989 retrofitting deadline. The Department received Petitioner's application for FLIRP coverage on July 29, 1991, approximately three days after the Department received Petitioner's request for the "Proceeding". 1/ On July 26, 1991, Ms. Martin executed a FLIRP affidavit on behalf of Petitioner as part of its application for coverage under FLIRP. The introductory portion of the FLIRP affidavit provides in part: In order to be eligible for the. . . restoration program, a facility owner or operator must sign this affidavit to affirm that the facility is in compliance with the Department's storage tank rules. . . and Chapter 376, Florida Statutes, and that he/she has read and is familiar with these rules and statutes. The attestation portion of Petitioner's FLIRP affidavit, as executed by Ms. Martin, provides in part: The petroleum storage systems, as defined under Chapter 376.301, Florida Statutes, located at the facilities listed on the application, are now in compliance and shall maintain compliance with the applicable provisions of Chapter 376.303, Florida Statutes, and Florida Administrative Code Rule 17-761. . . including, but not limited to, those provisions: * * * (b) The installation, maintenance and repair of new and existing underground petroleum storage system; * * * (e) Notification of sale, abandonment, replacement or upgrading of petroleum storage systems. The attestation portion of Petitioner's FLIRP affidavit, as executed by Martin, also provides in part: I, Realadyne, Inc. have read Chapter 376, Florida Statutes, and Florida Administrative Rule 17-761 and the facility or facilities listed on the attached application meet the requirements for the participa- tion in the Florida Petroleum liability insurance and restoration program as described in Chapter 376.3072, Florida Statutes. In executing the affidavit, Ms. Martin knew, or should have known, that the facility was not in compliance with the Department's applicable storage tank regulations. On December 4, 1991, Petitioner contacted the Department, via telecommunique, concerning its request for the "proceeding" to apply for FDER/FPLIPA. At that time, the Department informed Petitioner that the Department would not proceed with the review of the request of an alternate technical proceeding because the facility was already out of compliance with applicable retrofitting requirements. On that day, Petitioner informed the Department that it could not afford to have the underground storage tanks removed. At that time, the Department requested that Petitioner take the tank out of service, pending a decision by it as to whether the tanks would be removed and/or replaced. Also, the Department requested that Petitioner provide it with an updated storage tanks registration form reflecting that the tanks had been taken from service. Petitioner informed the Department that the underground storage tanks would be taken out of service, pending its decision whether it would remove or replace the tanks. Petitioner also agreed, at that time, to provide the Department with an updated storage tank registration form reflecting that the tanks had, in fact, been removed or taken out of service. The Department requested that the tanks be taken out of service to minimize the potential for a discharge of a petroleum product. If Petitioner had taken the underground tanks out of service as requested (and as agreed), the facility would have been in compliance with the requirements of Rule 17-761.510, Florida Administrative Code. On September 11, 1991, PCPHU sent Petitioner another warning letter concerning its failure to comply with the retrofitting requirement. The above-referenced warning notice provides in part: On July 13, 1990, agency personnel inspected your storage tank facility for compliance with Florida's tank regulations and violations were noted. Then on July 25, 1990, this office sent you a letter requesting that you provide the Division with a written explanation of your failure to comply with F.A.C. Chapter 17-61, and to proceed with certain steps. This agency has received no response from your company. On September 25, 1991, the Department contacted Petitioner, by phone, concerning the request for an alternate technical proceeding. During the course of the conversation, Petitioner indicated that it had scheduled a meeting with PCPHU concerning the removal and/or replacement of the tanks. On September 25, 1991, the Department requested that Petitioner provide it with an updated registration form reflecting that the tanks had been taken out of service. On that date, Petitioner agreed to provide the registration form reflecting that the tanks had been taken out of service. On September 30, 1991, the Department again contacted Petitioner concerning its request for an alternate proceeding. At that time, the Department again requested the updated registration form reflecting the tanks had been taken out of service. On that date, Petitioner telecopied the Department a letter and a copy of a contract proposal from UST Engineering for the relining of the underground storage tanks. The contract was dated June 28, 1991, and was signed by Martin on behalf of Petitioner. Petitioner's letter dated September 30, 1991, to the Department was also signed by Martin. The above-referenced letter provides in part: "UST has assured me they will be able to complete the work before the first of the year." The document submitted by Petitioner to the Department on September 30, 1991, included a copy of a check issued by Petitioner made payable to UST Corrosion Engineering. The work contemplated under the UST contract proposal was never performed. Petitioner did not inform the Department of its decision not to have the work performed. A release of petroleum product occurred prior to removal of the petroleum storage system. Petitioner failed to comply with the retrofitting requirements set forth under Rule 17-761.510, Florida Administrative Code. Petitioner continued to sell petroleum products until mid June, 1992.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Environmental Protection enter a final order denying Petitioner's application for restoration coverage under the Florida Petroleum Liability Insurance and Restoration Program. RECOMMENDED in Tallahassee, Leon County, Florida, this 7th day of December, 1994. JAMES E. BRADWELL 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 7th day of December, 1994.
The Issue Whether respondent should grant petitioner's application for eligibility for restoration coverage under the abandoned tank restoration program?
Findings Of Fact For decades the Hamilton County Road Department has stored refined petroleum products (gasoline and diesel fuel) in underground tanks at its maintenance yard off Highway 249. Testimony of Cox; Petitioner's Exhibit No. 8. On September 25, 1991, the three oldest storage tanks were dug up and removed from the yard. Remaining nearby were the four 5,000-plus-gallon underground tanks the County installed in the early 1980s, see Petitioner's Exhibit No. 7, which are still in use (or were at the time of the hearing.) After the newer tanks were put in service, Hamilton County never refilled any of the three older tanks. "Approximately three to four feet" (T.22) separate the pit which yielded the three older tanks from the "remaining [newer underground storage tank] area," id., to the northwest. In dealings with DER, Hamilton County has used the same "facility number" for both sets of tanks. Immediately after they removed the last of the old tanks, Chris Brockmeier took soil samples. Every sample he took southerly of the tanks left in the ground he found (with the use of a flame ionized detector) to contain in excess of a thousand parts of volatile hydrocarbons per million, undoubtedly a remnant of gasoline or diesel fuel. The soil samples he took from the area on the other side of the remaining tanks contained from 460 to 700 parts of volatile hydrocarbons per million. The contamination may well have come from the old, not the new, storage tanks, but the evidence did not reliably establish its source, Mr. Brockmeier's opinion notwithstanding.
Recommendation It is, accordingly, RECOMMENDED: That DER deny petitioner's application for restoration coverage for Facility No. 248518525 under the abandoned tank restoration program. DONE and ENTERED this 14th day of January, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II 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 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2682 Petitioner's proposed findings of fact Nos. 1-5 and 7-15 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, the proof did not eliminate the possibility that leakage or spillage since the old tanks' removal also contributed. Petitioner's proposed findings of fact Nos. 16 and 17 are treated in the section on conclusions of law. Respondent's proposed findings of fact Nos. 2, 3, 4 and 6-13 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 1, the route number was different. With respect to respondent's proposed finding of fact No. 5, Petitioner's Exhibit No. 7 and Cox's testimony suggest they were last used between 1981 and 1986. COPIES FURNISHED: John H. McCormick, Esquire Post Office Drawer O Jasper, Florida 32052 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
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Handy Food Stores, Inc. (HFS), is a small, family owned corporation that owns and operates a chain of thirty-four convenience stores in Florida, thirty two of which sell gasoline. At issue in this proceeding is Store No. 82 (Store 82 or the store) located on State Road 378 in LaBelle, Florida. The facility has also been identified by respondent, Department of Environmental Regulation (DER), as DER facility number 268520172. This controversy concerns an application by HFS for reimbursement of costs and expenses related to cleanup activities at Store 82 incurred after that store site became contaminated with petroleum and petroleum products. The application was preliminarily denied by DER on the ground HFS was "grossly negligent" in the maintenance of the petroleum storage system at Store 82. Because the average clean-up cost per site is $330,000, and HFS denied that it was grossly negligent in its operation and management of the system, HFS requested a formal hearing to contest the agency's proposed decision. The facts in this case are not complicated, and with certain exceptions, are relatively free of dispute. Until February 1988 HFS's director of operations was Ray Collier. On February 2, 1988 Collier ordered the installation of four monitoring wells at Store 82 to determine if any leaks were occurring in two underground storage tanks located on the site. Such wells were required to be installed by DER for monitoring purposes no later than December 31, 1988. The parties have stipulated that the wells were properly installed in accordance with agency rules. When the wells were installed on February 2, the contractor's report reflected no contamination was present. Collier also contracted with Purity Well Testing, Inc. (PWT) to conduct monthly monitor system checks at the store. Such checks are required by DER to determine if any discharges of product are occurring in the storage system. On February 10, 1988 Collier resigned as director of operations to accept a position in Saudi Arabia. Prior to his resignation Collier was replaced by David A. Laughner, who still remains in that position. According to Laughner, he and Collier spent only two weeks together prior to Collier's departure, and Collier did not advise him of the details concerning the monitoring program. Thus, he had no immediate knowledge of the existence of the monitoring wells or the tests being conducted by PWT. HFS's corporate offices are located in an office building at 9330 Adams Drive, Tampa, Florida. Besides three corporate officers and the director of operations, the corporation had only three office employees who worked at the corporate headquarters. The building is owned by B & B Cash Grocery Stores, Inc. (B & B), which operates a chain of grocery stores in southwest Florida. HFS's offices are on the second floor while B & B's corporate offices are located on the first floor. Although the two corporations are legally separate entities, they have certain common directors and shareholders, and the two corporations once utilized a centralized bookkeeping and billing department which was controlled and staffed by B & B. Under that arrangement, bills sent to HFS were actually processed by B & B's accounting department which paid the invoice on behalf of HFS. In addition, the two corporations once shared the same post office box. Under that arrangement, which existed in February 1988 and continued until at least August 1988, all mail sent to HFS at the post office box was initially processed by B & B's mail room rather than being sent directly upstairs to HFS. On April 24, 1988 PWT conducted its first monthly monitor well inspection at the store. That report indicated that three inches of free product was present in monitoring well three. A second monthly monitoring well inspection was conducted on May 10, 1988 reflecting the presence of two inches of free product in well number three and twelve inches in well number four. Free product was defined by a DER witness as "material (such as a petroleum product) that will be left on the water table." The presence of a free product, including a refined petroleum product, in a monitoring well is an indication that a discharge or release of the product from a storage tank has and may be continuing to occur. If free product is observed, it is the responsibility of the tank owner to determine the cause of the discharge, and if it is determined that the discharge is coming from the tank, he must empty the tank so that the system can be repaired or replaced. Also, the owner is obliged to notify DER within three working days of discovery of the discharge. The purpose behind these reporting and investigating requirements is to try to decrease the size of the petroleum plume and the area of contamination. The results of the two tests, and the invoices for the charges, were sent by PWT to HFS's post office box. Consistent with existing procedure, B & B's mail room received the reports and invoices and forwarded both to B & B's billing department for processing and payment of the invoices. Rather than forwarding the test reports upstairs to HFS, B & B filed the reports with the invoices in B & B's billing department. The parties have stipulated that no one in the billing department knew or had reason to know of the potential significance of the monitor well inspection reports. Because the bills had been paid, PWT did not contact HFS to determine whether the reports had been received. Consequently, neither Laughner nor any other HFS corporate employee had knowledge that monitor well inspections had been conducted at Store 82 or that inspection reports had been forwarded by PWT. However, it is found that copies of such reports were either forwarded to Store 82 by someone in Tampa or by PWT because they were available for inspection by DER representatives at a store inspection that took place in late June 1988. As the result of an unconfirmed telephonic report received in early February 1988 concerning possible contamination at Store 82, on June 17, 1988 a DER inspector, Jeffrey Gould, sent a letter to Laughner at HFS's corporate post office box advising that Gould would be conducting a stationary tanks compliance inspection at Store 82 during the week of June 27, 1988. The letter also requested that all records associated with the storage tank system be available at the facility for inspection. This inspection is commonly referred to as a "17-61 compliance inspection", meaning that the storage tanks would be checked to see if they met the requirements of Chapter 17-61, Florida Administrative Code (1987). Although the letter was addressed to Laughner, it was forwarded by an undisclosed person to a Store 82 employee, Betty Smith, whose title is area supervisor, and Laughner denies having seen the letter until several months later. 1/ Gould and another DER employee, Alicia Andersen, met with Betty Smith at the store on June 29, 1989. It may be inferred that Smith had copies of the PWT monitoring reports for she produced copies of the same for Gould, who then hand-copied and reviewed the two reports. Gould also made a physical inspection of the four monitoring wells on the site. He noted the presence of free product in two of the four monitoring wells. One had 7/8 of an inch of free product (gasoline) while a second well had fourteen inches of free product. Gould also detected a strong odor and observed sheen in the northeast monitoring well and a strong odor in the southeast monitoring well. These findings are memorialized in a written compliance inspection report received in evidence as respondent's exhibit 2. After the inspection was completed, Gould discussed generally the results with Smith, had her sign the report and gave her a copy. Since Smith was not present at final hearing, Gould's version of their conversation is the only competent evidence of record on the subject. According to Gould, he told Smith that he "had found product and that it is a problem." Gould acknowledged that he did not go into too much detail with Smith concerning the report since she was only an employee, but he specifically recalled advising her "there was a definite problem at this facility" and that he "spent a long time" with her. Finally, after giving Smith a copy of the report, Gould told Smith to "return it to her office." However, Smith did not do so. Gould's version of the events was not credibly contradicted and it is hereby accepted. On July 11, 1988 Gould, over the district manager's signature, sent Laughner by certified mail a "warning" letter and copy of the June 29 inspection report. The documents were sent to the post office box in Tampa. The return receipt was signed on July 15 by one Patty Jackson, whose relationship, if any, to HFS was not disclosed. The letter provided in pertinent part as follows: Free gasoline product was found in two of the compliance monitoring wells. Product thickness in one well exceeded the bailer limitation of fourteen inches. The presence of free product was also noted on monitor well records by Purity Well Testing Company for April 24, 1988 and May 10, 1988. A maximum thickness of twelve inches was measured. Such discharges are in violation of Chapter 376, Florida Statutes and Florida Administrative Code Rule 17-3. It is required that the discharges be stopped and the integrity of the storage system verified. Records available onsite indicate the 4000 gallon tank failed a tightness test with a leak rate of -0.1057 gallons per hour (gph) on September 26, 1986. The tank however passed the test on October 7, 1986 at +0.027 gph. Please describe all repairs, if any, to the storage system after the initial failure. The Department requests a meeting to discuss entry into a Consent Order to resolve the violations. Please contact Jeff Gould at 813/332-2667 or write the letterhead address within ten (10) days of receipt of this letter to schedule a meeting. Your cooperation is appreciated. (Emphasis added) As noted in the previous finding, the letter and report were received on July 15, 1988 but were not forwarded upstairs to Laughner or any other corporate employee. When Gould received no oral or written response - to his letter, Gould eventually telephoned Laughner on August 26, 1988. During the course of the telephone call, for the first time Laughner became aware of the existence of the contamination problem at Store 82 and the nature of the tests that had been performed that spring by PWT. It is also noted that during the telephone call, Laughner acknowledged that Gould's letter of July 11 had just been routed to his desk. The two agreed to meet at DER's Fort Myers district office on September 1, 1988 to discuss the violations. On August 29, 1988, or three days after Laughner spoke with Gould, HFS filed its incentive program application for Store 82. The application, which noted that the date of discovery of a petroleum discharge at Store 82 was on June 29, 1988, was received by DER on September 6, 1988. On September 1, 1988, Laughner met with DER representatives to discuss Store 82. Laughner was told that certain specific measures should be taken to insure the integrity of the storage tank system. That same day, in a letter to DER, HFS informed DER that a tank integrity test had been scheduled for Store 82 and that HFS was implementing initial remedial action (IRA) to remove any petroleum product and excessively contaminated soils and that an enviromental consultant had been contracted to conduct IRA, site contamination assessment and any necessary remedial action. Until that time, and dating back to June 29, 1988, HFS had only conducted a stick test at Store 82 to monitor the presence of petroleum product. Also, HFS personnel had not reviewed any repair records, monitoring well records, or inventory records during this same period of time. On September 7, 1988, HFS conducted a tank integrity test at Store 82. The integrity test passed under the criteria set by the National Fire Protection Association, which is the acceptable standard under Chapter 17-61, Florida Administrative Code. However, DER did not consider the testing to be a timely response since it considered no more than a week to be a reasonable period of time for testing once a discharge is discovered. On October 7, 1988, DER, through its inspector Gould, conducted an incentive program compliance inspection at Store 82. Although Gould observed two and one-eighth inches of free product in one well and a sheen in another well, the compliance inspection checklist noted that Store 82 was in compliance with Section 376.3071, Florida Statutes. Question 3 on the verification checklist asked if there was "evidence of gross negligence." Gould checked "yes" and made the following notations: See penalty worksheets (draft CO to OGC for review). Major violations failed tank test (enclosed) showed leaks Sept. 1986! - D.E.R. not notified, free product in well treated as a discharge and D.E.R. not notified of product in wells to take action. Gould responded in the above fashion because he concluded that nothing had been done for long periods of time to insure the integrity of the petroleum storage system at Store 82. It should be noted, however, that nothing in the checklist indicated that damages of any kind were caused by HFS's failure to take remedial action until September 1988, and DER representatives admitted they had no proof of such damages. On September 14, 1989, or approximately one year later, DER issued its proposed agency action denying Store 82's eligibility for reimbursement under the incentive program. As later amended on March 16, 1990, the agency's letter recited the following reason for denying the application: Monitor well reports dated April 24, 1988 and May 10, 1988 listed free product in monitoring wells. No report of discharge discovery was made to the Department by Handy Foods as required by Chapter 17-61, F.A.C. On June 29, 1988, an inspector from the Department discovered free product in Petitioner's monitoring wells. Petitioners were sent a warning letter by the Department on July 11, 1988, requesting that Petitioner stop any discharges and verify the integrity of its storage system. Petitioner conducted such tank tightness tests on September 7, 1988, or approximately five months after the monitoring well reports indicated the discovery of free product. Failure to report, investigate and abate where there is evidence of a discharge shall be construed to be gross negligence in the maintenance of a petroleum storage system. In other words, DER contended that HFS was "grossly negligent" within the meaning of the law by failing to "report, investigate and abate" the discharge until almost five months after the leaks were first detected by PWT. DER admits that it has no information to support a contention that, as to Store 82, HFS failed to maintain or falsified inventory or reconciliation records, intentionally damaged the petroleum storage system, failed to make monthly monitoring system checks, or failed to meet monitoring and retrofitting requirements in accordance with chapter 17-61 procedures. Although the incentive and reimbursement programs under section 376.3071 were enacted by the legislature in 1986, the agency has not promulgated formal rules that define or identify "gross negligence" or the criteria for determining eligibility under the incentive reimbursement program. Through the introduction of various agency records received in evidence as petitioner's composite exhibit 6, HFS sought to establish the fact that DER, in at least four prior cases, reached a result inconsistent with that reached in its proposed agency action regarding HFS. However, DER has processed thousands of applications of this nature, and the presence of four contrary results does not establish any binding precedent. Moreover, DER's administrator acknowledged that the agency had either erred in the cited cases or the facts were distinguishable from those presented herein. The parties disagree on the meaning of the words "gross negigence" as it is used in Subsection 376.3071(12(b), Florida Statutes (1987). Both parties presented expert testimony concerning what they perceived to be a proper interpretation of the statute. According to HFS's expert, Howard Ledbetter, he construed the term to mean a willful and reckless disregard for agency regulations that were known and understood by the alleged offender. Ledbetter established that in the spring of 1988 there was no firm understanding by the industry of what was required by DER's underground storage tank rules. Finally, he recalled receiving several different interpretations of the rules from DER personnel. In contrast, a DER expert, John Svek, opined that gross negligence occurs whenever an owner/operator commits a major violation of chapter 17-61. However, Svek conceded that chapter 17-61 does not distinguish or define major or minor violations, and nothing in chapter 17-61 equates a failure to immediately investigate a discharge to gross negligence. Further, he admitted that a lack of knowledge of a discharge is a factor to consider in determining whether gross negligence is present. A second DER expert, Patricia Dugan, acknowledged that not only is there no written document setting forth guidelines for determining when gross negligence occurs but that the term "gross negligence" does not appear in chapter 17-61. However, Dugan maintained that if notices are received by a corporation but are misfiled, as was alleged to have been done here, that conduct equates to gross negligence on the part of HFS.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Handy Food Stores, Inc. for participation in the petroleum contamination clean-up program be approved. DONE and ORDERED this 23rd day of May, 1990, in Tallahassee, Leon County, Florida. DON ALEXANDER 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 23rd day of May, 1990.
The Issue Whether the Petitioners are eligible for restoration coverage under the Abandoned Tank Restoration Program (ATRP) with regard to the remediation of petroleum contamination at DEP Facility No. 588631316, located in Venice, Florida.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Petitioners are the operators of Gulf Car Care (DEP Facility No. 588631316) located at 207 South Tamiami Trail, Venice, Florida. The Department is the agency charged with the responsibility of administering the Abandoned Tank Restoration Program. The Petitioners' ATRP Application was dated May 17, 1992 and received by the Department on June 17, 1992. The Petitioners' ATRP Application indicates that two 2,000-gallon underground storage tanks (UST's) were located at the facility and that one of those tanks was utilized for the storage of diesel fuel while the other tank was utilized for the storage of gasoline. Petitioners' ATRP Application indicates that two 4,000-gallon UST's and two 6,000-gallon UST's were also located at the facility and were utilized for the storage of gasoline. At least some, if not all, of the UST's identified in Petitioners' ATRP Application continued to store petroleum products for consumption, use or sale after March 1, 1990, and in fact, continued to store petroleum products for consumption, use or sale until some time in April, 1990. Petitioner Parr was operated on for colon cancer in late 1989 and Petitioner Homer suffered a heart attack on March 3, 1990. Petitioners contend that because of Petitioner Parr's illness the Petitioners were unable to make a decision to remove the petroleum storage system from service until after March 1, 1990. The petroleum storage system at the facility has been closed in accordance with Department's applicable rules.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order denying the Petitioners' application for eligibility or restoration coverage under the Abandoned Tank Restoration Program. RECOMMENDED this day 21st of April, 1994, at Tallahassee, Florida. WILLIAM R. CAVE 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 21st day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6555 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioners, Harold R, Parr and George H, Homer, Sr. Petitioners did not submit any proposed findings of fact per se. However, based on the record, including the testimony of the Petitioners, it does not appear that the Petitioners would disagree with any of the Findings of Fact presented in this Recommended Order. Respondent, Department's Proposed Findings of Fact. 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(3); 3-4(4); 5-6(5); 7- 9(6); 10-11(7) and 12(8). COPIES FURNISHED: Harold R. Parr 913 E. Shanon Court Venice, Florida 34293 George H. Homer, Sr. 3674 Roslyn Road Venice, Florida 34293 W. Douglas Beason, Esquire Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact The parties stipulated to findings of fact set forth in paragraphs 1.- 8.,below. Stipulated Facts Respondent has documented contamination from the abandoned petroleum storage system. The abandoned petroleum storage system has been properly closed. Petitioner submitted an application to Respondent on Respondent's forms 17-769.900(3) and (4), F.A.C., which was postmarked on or before June 30, 1992. The site is not eligible for cleanup pursuant to Section 376.3071(9) and (12), Florida Statutes, the Early Detection Incentive Program, or the Florida Petroleum Liability and Restoration Insurance Program pursuant to Section 376.3072, Florida Statutes. This site is not owned or operated by the federal government. This site did not have leaking tanks that stored pollutants that are not petroleum products as defined in Section 376.301, Florida Statutes. Respondent was not denied access to this site. Petroleum contamination was not discovered after the application deadline of June 30, 1992. Additional Facts Petitioner, a Florida corporation with its principal place of business in Leon County, Florida, is in the business of owning and leasing property. Petitioner is the fee simple owner of property located at 2022 Wahnish Way in Tallahassee, Florida. The property located on Wahnish Way was leased to James T. "Pete" Thomas by Petitioner's predecessor in title. Thomas operated a gasoline station and automobile repair garage on the property. The lease with Thomas was continued by Petitioner without change upon Petitioner's assumption of the legal title to the property in 1985. Prior to Petitioner's assumption of title to the property, Thomas had installed four petroleum storage systems in a four tank pit on the property in the early 1970's. Each tank and its integral piping is a petroleum storage system, as defined by Section 376.301(15), Florida Statutes (1991). In the early 1980's, Thomas and his wholesale gasoline distributor determined that one of the four underground tanks was losing petroleum product. In 1982, Thomas ceased using the southernmost tank in the pit for the storage of petroleum products for subsequent consumption, use or sale. The distributor ceased placing gasoline in the southernmost tank. Later, in compliance with subsequent statutory enactments, Thomas registered all of the tanks, including the abandoned southernmost tank with Respondent by the statutory deadline of December 31, 1984. Although Thomas signed the registration documents as an agent of Petitioner, he was not such an authorized agent and the registration occurred without the knowledge or approval of Petitioner. As a result, Petitioner cannot be viewed as having filed the registration. Petitioner, unaware that Thomas had experienced any product loss problems or that the tanks on the property had been registered by Thomas with Respondent, became aware of both matters following receipt of a letter from government officials of Leon County, Florida, on November 20, 1990. As set forth in that letter, Petitioner was apprised that the tanks were not in compliance with State of Florida standards and would have to be closed or retrofitted to bring the tanks into compliance. Following receipt of the letter, Petitioner informed Thomas that selling of gasoline at the site was to be discontinued immediately. Closure of the tanks, performed in early 1991 by contractors retained by Petitioner, consisted of excavation and removal of the petroleum storage systems from the property. All four tanks were in the tank pit side by side, from the northernmost end of the pit to the southern end of the pit fronting on Osceola Street in Tallahassee, Florida. When the removal was completed, a Closure Assessment form was prepared by one of the contractors, Jim Stidham and Associates, in accordance with requirements of Florida law. During that process, excessive contamination from petroleum product of the soils in the extreme south end of the tank pit was discovered. Excessive contamination, defined as anything more than 500 parts per million, was located beneath the southernmost pump on the southern end of the pump island and in the southern end of the pit. Both soil sample seven in the southernmost end of the pit and soil sample 11 under the southernmost pump document these unacceptable high levels of contamination. A 20 foot soil boring as near as possible to the southernmost tank on the site revealed the unacceptable levels of contamination extended to that depth. As supported by the testimony of James A. Stidham, Petitioner's expert in the assessment of contamination caused by underground petroleum storage tanks, the location of contamination in the pit area establishes that the tank causing the contamination was the southernmost tank. In view of the location of the contamination in the pit area, the tank discovered to have a hole in it at the time of removal was the southernmost tank. The excessive contamination located at the shallow depth of two feet under the southernmost pump resulted from the improper disconnection of piping attached to the pump and is not attributable to the leak in the tank. Each tank was connected by piping on the eastern end of each tank to the corresponding pump. The southernmost pump was not used after 1982 and was missing integral parts by the time the tanks were closed. In the course of exploring options for clean up of the property, Petitioner filed for assistance from Respondent in the form of participation in the ATRP. Unaware of the true date of the cessation of use of the southernmost tank, Petitioner gave the date of last use for all tanks in the pit by stating that the "tanks were taken out of service between December 15, 1990 and January 15, 1991." Petitioner provided this response to Respondent's July 30, 1991 request for further information on August 6, 1991. Although Respondent made an initial determination to deny Petitioner's application in the middle of August, 1991, that action was not communicated to Petitioner. Instead, Petitioner's application was held by Respondent, pending possible amendment to Section 376.305(7), Florida Statutes (1991), the law controlling admission to the ATRP. Respondent held Petitioner's application for a total of 19 months before issuance of a formal decision to deny the application on February 26, 1993. Such delay by Respondent is unreasonable. Respondent's denial of Petitioner's application was based upon the eligibility requirement restricting ATRP participants to those situations where the petroleum storage system has not stored petroleum products for consumption, use or sale after March 1, 1990, and the belief of Respondent's personnel that all storage systems on Petitioner's property had stored products beyond that date. Specifically, Respondent eventually gave notice that it intended to deny Petitioner's application for participation in the ATRP for the following reason: Eligibility in the Abandoned Tank Restoration Program is restricted to those petroleum storage systems that have not stored petroleum products for consumption, use or sale after March 1, 1990, pursuant to Section 17-769.800(3)(a), Florida Administrative Code. Respondent utilized provisions of Subsection 376.305(7)(f), Florida Statutes (1991), to permit entry of some applicants into the ATRP, demonstrating that Respondent did not consider the March 1, 1990 deadline contained in provisions of Subsection 376.305(7)(b), Florida Statutes (1991), to be absolute. As attested at the final hearing by Respondent's employee, Respondent considered "variables" when determining whether to enforce the March 1, 1990, deadline. Those variables comprise the criteria listed in Subsection 376.305(7)(f), Florida Statutes (1991). By use of those variables, Respondent effectively applied provisions of Subsection 376.305(7)(f), Florida Statutes (1991), to some program applicants other than Petitioner and permitted their participation while choosing to refrain from final agency action under that same criteria with regard to Petitioner's application pending subsequent legislative enactment. Petitioner's southernmost tank is an abandoned petroleum storage system that was not required to be registered with Respondent when it was in service; the system came into the possession of Petitioner following its abandonment; was never returned to service; and is not otherwise eligible for cleanup pursuant to Subsection 376.3071(9), Florida Statutes, or Section 376.3072, Florida Statutes.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered granting Petitioner's application for participation in the ATRP with regard to contamination resulting from Petitioner's southernmost petroleum storage system. DONE AND ENTERED this 1st day of February, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 1st day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2658 The following constitutes my rulings, pursuant to Section 120.59, Florida Statutes, upon proposed findings of fact submitted by the parties: Petitioner's Proposed Findings. 1.-23. Adopted, though not verbatim. Respondent's Proposed Findings. 1.-2. Rejected, not supported by weight of the evidence. 3.-4. Rejected, subordinate to HO findings on this point. 5.-11. Accepted. Rejected, relevance. A mischaracterization of the evidence in that the testimony establishes that an existing lease agreement was continued. Accepted to the extent that the evidence establishes that there were four tanks in the pit. Rejected, credibility, weight of the evidence as to the accuracy of the registration form in the face of conflicting evidence. 16.-18. Rejected, weight of the evidence. 19.-20. Accepted. 21.-22. Rejected, subordinate. Accepted. Rejected, relevance. 25.-26. Accepted. 27.-29. Rejected, subordinate. Rejected, relevance. Rejected, argumentative. Accepted. Rejected, legal conclusion, argumentative. COPIES FURNISHED: Melissa Fletcher Allaman Attorney at Law Post Office Drawer 1170 Tallahassee, Florida 32302 Jefferson M. Braswell Lisa M. Duchene W. Douglas Beason Assistant General Counsels Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue is whether the application of Petroleum Products Corporation for reimbursement of the cost of assessment and clean-up of soil and groundwater contamination at its site in Broward County, Florida, under the State Underground Petroleum Environmental Response Act of 1986 should be granted.
Findings Of Fact The Legislature provided a system for the clean-up of sites contaminated as the result of the storage of petroleum or petroleum products in the State Underground Petroleum Environmental Response Act of 1986 (Super Act), Chapter 86-159, Laws of Florida, codified primarily as Section 376.3071, Florida Statutes. The Super Act contains a reimbursement program funded by the Inland Protection Trust Fund. Section 376.3071(12), Florida Statutes, permits reimbursement of allowable costs for the rehabilitation of sites contaminated from discharges related to the storage of petroleum or petroleum products. Petroleum Products Corporation owns a parcel of land located at 3130 Southwest 17th Street, Pembroke Park, Florida. From 1959 to 1970 Petroleum Products Corporation operated a facility on that land which collected used oil from service stations and automobile dealerships, processed it, and sold it either as fuel oil or lubricating oil. About 90% of 150,000 gallons of used oil processed monthly at the facility was sold as fuel; the remaining oil was sold as lubricating oil, but even when sold as lubricating oil, it was sometimes burned as fuel because re-refined oil makes good fuel. The storage tanks were located on the southeastern portion of the property, near Carolina Road. The facility used a two-phase distillation process. Used oil was distilled to remove water, after which it could be sold as fuel oil. If processed in the second phase, for sale as lubricating oil, it was distilled further, and treated with sulfuric acid and clay to remove additives and residue, and change color. This phase produced a waste consisting of acid/clay sludge. This sludge is generally very black, and has a pH of approximately 3. It is very viscous, and has the consistency of roofing cement; laymen would describe it as tar. It does not flow easily, but is liquid enough to be pumped. This processing also occurred in the southeast part of the property. While the recycling facility produced lubricating oil using the acid/clay treatment from 1959 to 1970, the acid sludge was hauled to a municipal dump, or placed in pits dug into the ground on the north and east of the plant site. When the pits were dug, they were dug below the water level, and there was water in the pits before the sludge was dumped in them. The disposal of sludge in pits on the recycling site was a prevailing industry practice, and violated no regulatory requirements at the time. Operators considered on-site disposal of sludge preferable to hauling sludge to a landfill. During periods of heavy rain, some of the sludge may have overflown the pits and spread to nearby land, where it would become mixed with the surface soil. Petroleum Products Corporation ceased making lubricating oil in 1970, but continued to process used oil into fuel oil. The local Broward County Pollution Control Agency asked Petroleum Products Corporation to remove the acid/clay sludge from its property, and to refill the pits with other fill material. Petroleum Products Corporation acceeded to this request, and a great volume of sludge, perhaps hundreds of thousands of gallons, was removed from the pits, which were then refilled under the supervision of the Broward County Pollution Authority. Receipts Petroleum Products Corporation produced at the hearing, or thereafter from the custody of the U. S. Environmental Protection Agency, show that more than 150 truck loads of sludge were removed and hauled to landfills operated by Metropolitan Dade County or by the City of Surfside. Some pockets of the sludge remain at the site of the pits because they were not completely emptied. The backfill was clean fill, and the area was then bulldozed so that warehouses could be constructed in the area. This filling and bulldozing changed the contour of the land from what it had been in the past. The Department contends that much of the sludge was spread out over an extended area of the site, and not removed to landfills. The evidence is persuasive that almost all of the sludge from the pits was removed to landfills. The testimony of Mr. Blair denying that the sludge was spread was credible. In addition, on-site spreading of the sludge would have been impracticable. As a tar-like substance, if spread out, it would have been tracked everywhere. It would stick to the tracks or wheels of any vehicles operating on the surface, and was so acidic it would burn or irritate the skin of anyone who came in contact with it. It would be extremely difficult to perform maintenance on equipment used to spread the sludge because of the need to clean the sludge off, so that the mechanic would not be burned. In addition, there are a large number of receipts evidencing the systematic hauling of the sludge to landfills. The logic of Mr. McDonnell's testimony is persuasive: If you have the alternate, which they obviously did, of hauling it away and simply dumping it, no one would go out and deliberately choose to do a very difficult job [spreading the sludge over the property] where there is an easy alternative available to them. (Tr. 285) Although the facility ceased its re-refining of lubricating oil in 1970, it continued to collect, process, and sell used oil as a fuel until 1984. About 150,000 gallons per month of used oil were processed and sold as fuel. The oil was typically crank case engine oil which contained the substances normally found in used oil of that type. There is no persuasive evidence that Petroleum Product Corporation ever received any hazardous waste, or mixed used oil with any hazardous waste. Used oil is not listed as a hazardous waste by the U.S. Environmental Protection Agency or by the Department. The used oil collected and recycled at Petroleum Product's facility was pumped into and stored in above-ground storage tanks. There were, over time, from 10 to 25 tanks, which ranged in size from 12,000 to 20,000 gallons. Normally, the facility stored between 400,000 and 500,000 gallons of used oil. Occasionally, the facility also received virgin oil, but it was processed quickly or sold because of its higher value. At the peak of its operation, the facility had 25 to 35 storage tanks. Recycling operations had slim profit margins and were small operations. Storage tanks, pumps, and other equipment were bought used, often from other businesses dealing in virgin petroleum products. That used equipment was often rusty or deteriorating. Tank bottoms could have holes in them as the result of rust from standing water; tanks were sometimes riveted, and would have side or bottom leaks. The tanks had virtually no overfill protection. When oil was pumped in, it would overflow from the top and run down the sides. Operators were typically not careful with the oil, because it had a very low value, about 2 to 5 cents a gallon. A spill of a few thousand gallons was regarded as an inconsequential matter. The pumps used in storing oil often had leaks in packing seals, or had screw joints which would leak. Tank valves, also usually bought as used equipment, were often installed without new stem packing, and also would leak during operation. Almost no preventive maintenance was done, because it was not cost-effective to do so. Equipment was repaired only if its current state of repair interfered with operations, which usually meant that leaks were not repaired until they created a fire hazard. Leaks and spills from used oil storage tanks, including their pumps, valves, and piping, were common. A great volume of used oil leaked or spilled from Petroleum Products Corporation's tanks, pumps, and piping over its 25 year operation. There were also large oil spills resulting from four or five major fires at the facility in the 1960s. The fire in 1963, which may have been the result of vandalism, caused 40,000 to 60,000 gallons of use oil to spill from storage tanks; 8 or 10 tanks were destroyed. There were no dikes, so that the oil flowed freely. When firemen used water on the fire, the oil was absorbed into the soil. Another major fire occurred in October, 1966 in which three oil storage tanks collapsed spilling about 50,000 gallons of oil. Another 25 foot high oil tank collapsed on a firetruck. There is no way to know, with certainty, the volume of used oil, virgin oil, and lubricating oil which spilled or leaked into the ground on the site. It is reasonable to believe that 9 to 12 gallons of oil would have leaked or spilled each day at the facility, which would have resulted in spill of over 100,000 gallons of oil. This estimate, made by Mr. McDonnell, is credible and is conservative, given the volume of oil also spilled during the fires. Petroleum Products Corporation does not contend that the leaks and spills from process tanks, rather than from storage tanks, are eligible for reimbursement of site assessment and cleanup costs. Oil leaked from both, however, and once in the ground, the oils are indistinguishable. Due to the capacity of the tanks and the years they were in use, however, it is reasonable to assume that 15% or less of the leaks and spills were attributable to process tanks. After processing, most of the oil was burned as fuel. Some was used as a lubricant. The only difference between used oil sold as fuel or lubricant was that the lubricating oil had the additives removed and the color changed. Both burn well. There is an insufficient basis in this record to justify the Department's interpretation excluding this site from eligibility for cleanup because oil processing ocurred at the site to produce lubricating oil. Section 376.3071 does not disqualify all or part of a site from eligibility for cleanup reimbursement because a portion of the used oil stored there was ultimately used as lubricants. In 1984 a Department investigator asked Petroleum Products Corporation to install exploratory wells to determine whether there was contamination at the site. Petroleum Products engaged the firm of Dames & Moore to undertake a preliminary investigation, which revealed that there was groundwater contamination in the form of floating hydrocarbons. On April 1, 1985, the United States Environmental Protection Agency and Petroleum Products Corporation entered into a consent order agreement which required the removal of 17 above-ground tanks leaking used oil into the ground, which constituted a continuing source of contamination. Petroleum Products Corporation contracted with Conversion Technology Corporation to recover and recycle the oil and wastes, with Waldron's tank cleaning services to clean the empty tanks and drum the sludge, with Cuyahoga Wrecking Service to make the tanks inoperable, and with Seven & Seven Transporters to remove the waste to a disposal facility. The employee of the U.S. Environmental Protection Agency who was in charge of the site commended Petroleum Products Corporation for its cleanup effort, and wrote as the OSC [on- scene coordinator] for this EPA-monitored cleanup I may say that [Petroleum Products Corporation] exemplified industrial cooperation and responsibility in combating the vexing problem of hazardous waste management. (Petitioner's Exhibit 9) Petroleum Products Corporation cooperated with the Environmental Protection Agency and with the Department in determining how to deal with the contamination. It has already spent approximately $150,000 to perform remedial action. Contamination at the site is of three types: oil floating in the groundwater, soil contamination, and groundwater contamination. It is not possible to clean any individual phase of the contamination without affecting the other phases. Attempts at remediation must be monitored to prevent an influx of organic contaminants into the aquifer. Similarly, the cost related to the cleanup of an individual phase of contamination cannot be isolated because of the inter-related nature of the cleanup phases. The creation of a cone of groundwater depression is necessary for any recovery of the free or floating oil. The cost of recovery of the free product cannot be separated from groundwater cleanup because it is necessary to treat large quantities of groundwater involved in creating a cone of depression. To the extent that a proportion of the cost might be estimated, the cost associated with the recovery of free product would be a minor portion of the overall cleanup. There is currently a free product recovery effort in place at the site, which is intended to prevent further migration of the product off-site. This ongoing action is not considered an element of the site cleanup. The most feasible method of cleanup for the free product will involve the excavation of the soils to create a trench. The free product and ground water will be recovered as they flow into the trench. During October and November of 1984, Environmental Science and Engineering, Inc., a consulting firm working under contract with the Department, assessed the extent of free floating oil in the groundwater under the Petroleum Product Corporation's site. Those consultants found a free floating layer of oil from 5" to 30" thick under approximately one-half of the one acre site Petitioner still owns. The free product generally mirrors the location of the former recycling facility and its storage tanks. The viscosity of the free product is comparable to about 40-weight engine oil. Environmental Science and Engineering estimates that the floating layer of oil contains 20,000 to 60,000 gallons of recoverable petroleum product. The direction of ground water flow and the migration of contaminants off-site is to the east or southeast. The soil above the oil layer has been saturated with oil because of the fluctuations of the layer with movement of the water table as the area experiences heavy rains or dry spells. Wells drilled in the location of the former sludge lagoons to the north and east of the plant site reveal a heavy slightly liquid type of sludge. The oil in the lagoon sites is immobile, and no free product collects in the wells after 24 hours. One sample collected in the mason jar shows a slight degree of oil separation after 24 hours. This anecdotal evidence of separation is not very informative, and is not persuasive that oil separates from the remaining sludge on-site. See, Finding 32, below. A second assessment of soil and groundwater contamination was done by another consulting firm under contract with the Department, Ecology and Environment, Inc. That study showed free floating product at the site. The only calculation of the amount of free floating oil was that done by Environmental Science and Engineering, Inc., see, Finding 29, estimating that there would be 20,000 to 60,000 gallons of recoverable oil. That calculation understates the amount of oil in the ground. The estimate given by George McDonnell of 103,000 gallons is more persuasive. It is consistent that the large amounts of oil which leaked or spilled at the site over a 25 year period. It is unlikely that any appreciable portion of the approximately 103,000 gallons of floating oil has its genesis in the separation of oil from the acid/clay sludge which had been disposed in the two lagoons for the following reasons: Oil associated with acid/sludge would be quite acidic, and have a pH between 2 and 4. The pH scale is not a linear scale, so differences in pH are quite dramatic as the pH values change. Samples of free product shows a uniform pH of approximately 6 or 7. In almost all 31 monitoring or observation wells the pH is consistent with the characteristics of used oil, (a pH of 6 or 7), not the pH of sludge (a pH of 2 to 4). The only sample which disclosed a low pH was that taken in monitoring well number 3 which was located in the former sludge lagoon site. The groundwater flows to the east or southeast. This does not explain the presence of free product to the west and southwest of the sludge pits nor the absence of free product to the east of the pits. The viscosity of the oil is similar to that of 40-weight engine oil and not highly viscous, as the tar-like sludge would be. The oil in the sludge pits is basically immobile and no free product surfaced in the monitoring well after waiting 24 hours. The pH of the free product is nearly neutral. The Department believes that the sludge was mixed with lime rock or fill and spread over the site to increase the pH of the oil. This is unpersuasive. Mixing with lime rock would increase the pH of the sludge (tend to bring it towards neutral) but it would not cause the dramatic lowering of acidity which would bring the sludge to a pH of 6 or 7. In addition, the viscosity of the sludge would not be so changed by mixing the sludge with fill that its viscosity would become similar to that of 40-weight engine oil. To believe that the free product results from sludge disposal rather than leaks ignores the normal operating practice of used oil recovery facilities in the late 50s and 60s where spills from storage tanks, pumps, and piping were very common. Little of the free product has been recovered through the current remediation efforts. If not recovered, over time the approximately 103,000 gallons of floating oil will spread to adjacent property. To recover this oil by conventional trench or well recovery operations will probably cost $250,000 or more. The capital cost of the groundwater recovery/discharge system, with monitoring wells, will be about $85,000; cost of operating and maintenance are approximately $180,000. The firm of Ecology & Environment, Inc., collected soil samples at 56 locations in two phases in its remedial investigation. Forty-six of the samples were taken at shallow depths (27 at 8 inches, 19 at approximately 10 inches); 10 more samples were taken in the old disposal pit sites at depths between 0 and 35 feet). The two primary classes of contaminants found in the soil were lead and organics (hydrocarbons associated with petroleum products). Both contaminants are found in used oil. The lead and organic contaminants were found in the shallow soils over the southern half of the site. Very little contamination was found beyond the main area of site activity. The soil contamination was concentrated in the plant and former disposal pit areas. Samples with high lead concentrations were found in the former disposal pit sites. Contamination extended to a depth of 25 feet in one soil sample from a former pit, where oily plastic sludge was found with fine sand or clay. The two former pit sites are the only places with documented contamination below a 10 foot depth. Although the organic contamination extended laterally further than the lead contamination, Environment & Ecology concluded that the wider distribution did not reflect contamination from Petroleum Product Corporation's activities. The general area has long been the site of commercial and industrial activities, and there are many other possible sources for contamination including a firing range, which would have been disposing of lead bullets fired at the range, a generator plant, and a former spray-painting facility. Solvents and other chemicals used in these activities would contribute to soil and groundwater contamination. The consultants had been told by area businesses that small scale dumping of industrial chemicals in the vicinity has been common. Soil samples revealed a "great deal of heterogeneity." There was no uniform distribution of soils in the shallow zone. This probably occurs because after the reprocessing operations ended in 1970, the land was cleared and filled, so that many of the warehouses now in the area could be constructed. Most of the upper 8 to 10 feet is fill material. The ground water was monitored by installing 38 wells on the site, most of which were screened at depths of 10 to 12 feet. Five intermediate wells with depths of 50 feet and two deep wells of 100 to 200 feet were also installed. Every sample exhibited a pH of between 6.4 and 7.4. The primary contaminants were lead, organics, and chromium. The evidence does not indicate the source of the chromium. It is unrelated to Petroleum Product Corporation's activities. The groundwater contamination, both metal and organic, was only in the shallow zone. It extends laterally roughly to the same extent of the shallow contamination found in the soil. This suggests that the contaminants in the soil migrated due to seepage from rainfall or fluctuation in the water table into the groundwater. The water table is about five feet below the land surface. The Department has argued that the contaminants in the soil and groundwater were caused by mixing and spreading of the sludge material during the early 1970s over the surface of the area. This hypothesis has already been rejected for the reason stated in Findings 7 and 8, above. It is more likely that the soil contamination resulted from frequent spills and leaks of oil from storage tanks years ago. The soil contaminants are those found in used oil. The area generally is flat. There was no impediment to oil spills flowing over a large surface area, following the contour of the land at that time. Depending on the method used to clean up the site, the cost of rehabilitating the area will range between two and forty-six million dollars. It will cost over one million dollars to recover and treat contaminated groundwater. Approximately 110,000 cubic yards of contaminated soil must be removed and treated, the majority of that coming from the area outside the former sludge pits. The presence of contamination at the site is to be expected, given the site's former use. All of the 8 turnpike facilities and 8 maintenance yards operated by the Florida Department of Transportation report petroleum contamination from tanks, and the Department of Transportation has estimated cleanup cost will range from $20 to $30 million, although DER believes the cost may be $5 million. The cleanup will be funded by the Inland Protection Trust Fund, as would the reimbursement in this case. The cost of rehabilitation is in the range of estimates that the Department has received for other petroleum contamination sites. In summary, the Petitioner's site is contaminated primarily from leak and spills of used and virgin oils processed or unprocessed and from storage tanks, pumps and integral piping. Small spills were continuous and some associated with fires were massive. The only portion of the site not contaminated due to leaks and spills is the residual soil and groundwater contamination from the sludge disposal pits, which is a small part of the overall contamination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Petroleum Products Corporation fo eligibility to participate in the cleanup program funded by the Inland Protection Trust Fund be granted. DONE and ENTERED this 9th day of July, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1990. APPENDIX Rulings on Findings of Fact proposed the Petitioner: As will be obvious, the proposed order submitted by Petroleum Products Corporation comported closely with the Hearing Officer's view of the evidence, and with some modification was essentially adopted as proposed. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 6. Adopted in Findings of Fact 7 and 8. Adopted in Finding of Fact 8. Adopted in Findings of Fact 9 and 10. Adopted in Finding of Fact 10, to the extent necessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Generally adopted in Finding of Fact 16. Rejected as subordinate. Rejected as unnecessary and subordinate. Adopted in Finding of Fact 17. Adopted in Finding of Fact 18. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20. Generally adopted in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Findings of Fact 31 and 32. Adopted in Finding of Fact 33 Rejected as repetitious of Finding of Fact 6. Rejected, see Findings of Fact 25 and 26. Adopted in Finding of Fact 24. Adopted in Finding of Fact 34. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 37. Adopted in Finding of Fact 38. Adopted in Finding of Fact 39. Adopted in Finding of Fact 40. Adopted in Finding of Fact 41. The spreading theory is rejected in Findings of Fact 7 and 8. Rejected as unnecessary. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. See also the stipulation of the parties entered as Exhibit 22. Rejected as unnecessary. Rulings on Findings of Fact proposed by the Department. Adopted in Finding of Fact 1. Adopted as modified in Finding of Fact 2. Discussed in the Conclusions of Law, see page 20. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3. Implicit in Findings of Fact 3 and 6. Adopted in Finding of Fact 6. Adopted in Finding of Fact 5. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Rejected as unsupported by the transcript references given. Adopted in Finding of Fact 5. Adopted in Finding of Fact 5. Adopted in Finding of Fact 5 Rejected as unnecessary. Generally rejected; see Finding of Fact 6 concerning the filling of the disposal pits. While some pockets of sludge remain at the site of the pits, the volume is difficult to determine. In an absolute sense, those pockets may contain a substantial amount of sludge, but on a comparative basis, by far the greatest part of the sludge was removed. Rejected as unnecessary. Generally adopted in Finding of Fact 32(1), but see the final sentence of (1). Generally adopted in Findings of Fact 25, 28, and 34. Generally adopted in Finding of Fact 28, since the recycling facility and storage tanks were on the southern part of the property. Rejected as unnecessary. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 3. Implicit in Finding of Fact 11. Adopted in Finding of Fact 11. Adopted in Finding of Fact 4. Rejected because the process tanks necessarily store the product being processed, serving as a vessel to contain the product. Rejected, see Finding of Fact 3 with respect to the turnover in the volume of used oil processed at the facility. Only about 10 percent of the oil was reprocessed as lubricating oil. This is more significant than the volume of the tanks. See also Tr. 24 with respect to the storage capacity, and Finding of Fact 11. Rejected as unnecessary. Rejected because the surficial drainage has probably been changed by the filling and regrading of the property in preparation for building the warehouses. See Finding of Fact 6. The current surficial flow says little about the flow when the facility operated in the late 1950's and throughout the 1960's. Adopted in Findings of Fact 15 through 19. Adopted in Findings of Fact 17 and 18. Adopted in Finding of Fact 17. Generally rejected, the evidence is persuasive that about 50,000 gallons of oil were lost in the 1966 fire. (See Tr. 36-37.) Adopted in Finding of Fact 25. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Rejected as unnecessary. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Rejected, the free product covers approximately one-half acre. Rejected, the more persuasive evidence is the 103,000 gallons estimated by Mr. McDonnell. See Finding of Fact 31. Rejected as unnecessary. Rejected as unnecessary. See Findings of Fact 28 and 34. Rejected because it is unlikely that sludges are separating in the former sludge lagoon. See Finding of Fact 30. The source of the oil is more likely the substantial loss of oil which occurred from the fires and from leaks over the years which is now floating above the ground water. Generally adopted in Finding of Fact 28. Generally adopted in Finding of Fact 28. Rejected as unpersuasive. Rejected, the source of the free product is not leaching from the disposal pit, but the oil from over flows and leaks during operation as well as large inundations during fires. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Rejected, see Finding of Fact 30. Rejected because oil does not separate from the sludge. Rejected for the reason given for rejecting Finding of Fact 63. Rejected, the seepage is not the result of separation in the disposal pits, but from the plume of free product in the ground above the ground water. Rejected as unnecessary, but the similarity of the oil seeping from the sludge pit area to waste oil is consistent with its source as leaks and spills inicident to fires. Rejected because the sludge does not separate. Rejected because the sludge does not separate. Rejected because the sludge does not separate, see Finding of Fact 30. Rejected as unnecessary; obviously as there is no more storage, so there is no more source for leaks or spills. 71-73. Discussed in Finding of Fact 30. Rejected because liquid product will not accumulate. Rejected because the sludge does not separate. Adopted in Finding of Fact 32(1). Adopted in Finding of Fact 32(5). Adopted in Finding of Fact 32(1). Rejected for the reason stated in Finding of Fact 32(5). Rejected for the reason stated in Finding of Fact 32(5). Rejected as unnecessary and for the reason stated in Finding of Fact 32(5). Adopted in Finding of Fact 32(1), which is consistent with the source of the free product being used oil rather than separation from sludge remaining onsite. 83-84. Rejected as unnecessary. Rejected as unnecessary. Rejected because the testimony of Mr. McDonnell has been accepted. Rejected as unnecessary. Adopted in Finding of Fact 27. Rejected as redundant. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Implicit in the finding that lead is a contaminant found in used oil. See Finding of Fact 34. Adopted in Finding of Fact 4. Rejected as unnecessary. Generally adopted in Finding of Fact 34. Generally adopted in Finding of Fact 34. Adopted in Finding of Fact 35. Rejected as unnecessary. Rejected as unnecessary; see also, Finding of Fact 6. Adopted in Finding of Fact 32(1). Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary, although there were disposal pits in the north and eastern parts of the property. Adopted in Finding of Fact 34 with respect to location, but the testimony with respect to spreading of the sludge is rejected. See Finding of Fact 7. It is unlikely that sludge was spread over the site. The more likely explanation for the appearance of sludge in the lithologic logs for the southern end of the site is that the disposal lagoons periodically overflowed after heavy rains and provided a mechanism for the active transport of sludge out of the disposal pits into some areas on the southern end of the site. Apparently the northern area now occupied by the warehouses was higher, because no sludge was found in observation wells 4, 5 and 19. Rejected, page 41 of DER's Exhibit 3 shows no sludge at observation well 5, which the proposed finding implies. 107-112. Generally rejected because the testimony with respect to the surface flow from the tank area being to the south is rejected because the grading of the property as the warehouses were built likely changed the contour of the land. Mr. Levin's testimony was not particularly strong; for example, at page 25 of his prefiled direct testimony he states, "And for the shallow soil contamination I would still have to lean towards the fact that the materials were mixed and spread." 113-114. The sludge contamination is not the predominant or source of contamination. Rather, it is the oils which floated across the land and were carried into the soil and resulted from the leaks and spills. 115-120. Generally accepted in Finding of Fact 36, although subordinate to that finding. 121. Generally accepted, although the soil contamination by lead is attributable to leaks and spills from the used oil. 122-124. Rejected as unnecessary. Accepted in Finding of Fact 25. Accepted in Finding of Fact 38. 127-128. Subordinate to Findings of Fact 36, especially the last sentence, and 38. Subordinate to Finding of Fact 39. Subordinate to Finding of Fact 39, especially the last sentence. Rejected as unnecessary. 132-134. Accepted in Finding of Fact 39. 135. Rejected because the soil contamination is the result of leaks and spills of oil. 136-137. Rejected, it is more likely that the neutral pH of the ground water is the result of the essentially neutral contaminant, the used oil. Rejected as unnecessary. Rejected as unnecessary, although consistent with Finding of Fact 39 that the lateral extent of ground water contamination mirrors the soil contamination which has resulted from leaks and spills. 140-141. The predominant source of contamination is leaks and spills. 142. Rejected, the area affected by the leaks and spills is large, due especially to the fires and consequent loss of large amounts of oil from tanks. See Finding of Fact 41. 143-144. Rejected as irrelevant and unnecessary. 145. Although true, not relevant. 146-148. Rejected, whether the Environmental Protection Agency is correct or not in its assessment is not at issue here. This site was contaminated by used oil. 149-150. Although true, not relevant. Implicitly accepted in that no finding with respect to "bias" has been made. Rejected as legal argument. Rejected because the predominate source of contamination is an eligible source. Rejected, but the source here falls within the statutory directive. Rejected. The site here is predominantly contaminated by used oil, which is eligible. The eligible portion is not a minor part of the entire of the contamination. COPIES FURNISHED: R. L. Caleen, Jr., Esquire OERTEL, HOFFMAN, FERNANDEZ & COLE Post Office Box 6507 Tallahassee, Florida 32314-6507 Gary Early, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
