The Issue Whether a proposed amendment to Florida Administrative Code Rule 69A-6.005(2) constitutes an invalid exercise of delegated legislative authority in violation of section 120.52(8)(e), Florida Statutes (2011).1/
Findings Of Fact Combs Oil is engaged in the distribution and storage of petroleum products in southwest Florida. The distribution and storage facility (facility) operated by Combs Oil, which is located at 76 Industrial Boulevard in Collier County, Florida, contains both underground and aboveground petroleum storage tanks and is considered a bulk petroleum storage facility. As a bulk petroleum storage facility, the operation does not directly dispense fuel to cars, boats, planes, and the like. Through its operations, Combs Oil distributes petroleum products to retail locations and to entities, such as governmental agencies, golf courses, and the commercial fishing, cattle, and citrus industries. Several years ago, Combs Oil purchased three 29,000- gallon aboveground, double-walled storage tanks and currently desires to utilize the tanks at its facility to store Class I petroleum products. These tanks are considered secondary containment-type tanks. Regulatory officials in Collier County have advised Combs Oil that the company will not be able to store petroleum in the 29,000 gallon aboveground tanks because to do so would be in violation of the 12,000-gallon capacity limit established by NFPA 30. NFPA 30, section 22.11.4.1 (2008), is included within NFPA Standard 1, as referenced in section 633.0215(2), Florida Statutes. NFPA 30, section 22.11.4.1 (2008), provides that where a secondary containment-type tank is used to provide spill control, the capacity of the tank shall not exceed 12,000 gallons. The 2008 version of NFPA 30 made no change to the existing prohibition against the use of secondary containment- type, aboveground tanks in excess of 12,000 gallons. Substantively, NFPA 30, section 22.11.4.1 (2008), is the same as the 2000 and 2003 versions; however, the 2008 version, according to Combs Oil, includes commentary from NFPA's technical committee that was not in previous versions of the rule. The commentary from NFPA's technical committee reads, in material part, as follows, Subsection 22.11.4 was initially added, in 1993, as an exception to the spill control provisions of NFPA 30. The exception addressed the growing use of factory-built aboveground tanks that incorporated some form of secondary containment. The secondary containment is primarily an environmental protection measure and usually takes the form of a double shell with an annular (interstitial) space or an integral spill pan. In developing this exception, the NFPA 30 Technical Committee on Tank Storage and Piping Systems considered many issues and determined that a double shell alone would not provide the level of spill control originally intended. First, the technical committee recognized that secondary containment and spill control are not synonymous. Secondary containment is a term that was originally applied to double shell underground tanks; such tanks have been in use for many years and are now the choice for underground installations, as a result of stricter environmental regulations. The outer shell contains any release of product if the inner primary tank develops a leak. The concept has now been applied to aboveground tanks. However, almost all product releases from aboveground tanks result from overfilling or a break in a pipe connected to the tank. Rarely does an aboveground tank release product because of a leak in its shell. In a sense, secondary containment, when applied to an aboveground tank, is a solution in search of a problem. Second, the technical committee was not convinced that the bare steel outer shell would not fail prematurely from an exposure fire. Their concern arose from the fact that the contained liquid is not in contact with the outer shell and, therefore, cannot absorb the thermal energy impinging on it. Third, for smaller tanks, the outer shell offered virtually no impact protection. Piercing the outer shell would likely result in piercing the primary tank as well. Even if the primary tank were not damaged, secondary containment would have been compromised. Nevertheless, the technical committee determined that an aboveground secondary containment-type tank could be installed without meeting the original spill control provisions of NFPA 30, if the protective features enumerated here are provided. The maximum capacity of 12,000 gal for Class 1 liquids and 20,000 gal for Class II and III liquids was chosen to correlate with the maximum capacities allowed by NFPA 30A, Code for Motor Fuel Dispensing Facilities and Repair Garages, for aboveground tanks at service stations. Piping connections below the liquid level are not allowed and an anti-siphon device is required to prevent release of liquid should there be a break in the pipeline. The emphasized portion of the quoted material provides the basis for Petitioner's assertion that "NFPA has done no study to warrant the application of this standard to terminal or bulk facilities." Combs Oil did not offer any testimony from any person affiliated with NFPA's technical committee. Combs Oil did not call any witness who has served on NFPA's technical committee. Combs Oil did not offer any documentary evidence showing the workings of NFPA's technical committee as the committee contemplated the inclusion of the newly inserted notes into the technical committee's commentary. Per the requirements of section 633.0215, the Department, as part of its three-year update to the Florida Fire Prevention Code, seeks to amend rule 69A-6.005(2) to reflect the adoption of the 2008 version of NFPA 30. It is undisputed that NFPA 30 governs the facility operated by Combs Oil. It is also undisputed that NFPA 30A, when considered in isolation, does not apply to the facility at issue. Mr. Charles Frank works as an operations review specialist for the State Fire Marshall's Office, Bureau of Fire Prevention. In this capacity, Mr. Frank offers "informal interpretation for various agencies that are looking for code interpretations." Mr. Frank does not serve in a policy-making position with the State Fire Marshall's Office. From 2005 until 2009, Mr. Frank was a member of the NFPA. Mr. Frank is familiar with how NFPA develops and compiles its fire code, but he has personally never participated in NFPA's code development process. Mr. Frank is neither qualified, nor authorized to speak on behalf of NFPA with respect to technical matters related to NFPA's rules. Prior to filing the instant challenge, Combs Oil, pursuant to section 120.542, filed with the Department on or about August 3, 2007, a "Petition for Variance From, or Waiver of, Rule 69A-3[.]012(1), Florida Administrative Code [Waiver]." Petitioner's Waiver application requested that the Department waive the requirements of the applicable rule and allow Petitioner to install the three 29,000-gallon tanks. On or about November 2, 2007, the Department denied Petitioner's Waiver request. In response to the denial, Petitioner filed a Petition for Formal Administrative Hearing, which was assigned DOAH Case No. 08-1714. On July 8, 2008, pursuant to a Joint Motion to Dismiss, the Division of Administrative Hearings issued an Order closing its file and relinquishing jurisdiction to the Department.
The Issue The issue to be determined in this case is whether the Notice of Intent to Issue Order Requiring Access to Property (“Access Order”) issued by the Department of Environmental Protection (“Department”) and directed to Glenda Mahaney, as the property owner, is a valid exercise of the Department’s authority.
Findings Of Fact Petitioner Glenda Mahaney is a natural person and the owner of the property identified in the Access Order. The Department is the state agency which has been granted powers and assigned duties under chapters 376 and 403, Florida Statutes, for the protection and restoration of air and water quality and to adopt rules and issue orders in furtherance of these powers and duties. Background The groundwater beneath a parcel of land adjacent to Petitioner’s property was contaminated with petroleum when the land was used in the past for auto salvage operations. Initial groundwater sampling near the border of Petitioner’s property showed groundwater contamination by gasoline constituents which exceeded Groundwater Cleanup Target Levels (“GCTLs”). In other words, the contamination was at levels that required cleanup. However, later sampling showed the concentration of contaminants had decreased below GCTLs, probably as a result of natural attenuation. The existing data suggests that any groundwater contamination beneath Petitioner’s property is probably now at a level that would not require cleanup. However, the Department issued the Access Order because the Department is not certain about the contamination beneath Petitioner’s property and because Petitioner has continually requested further investigation. Petitioner believes contamination from the auto salvage site has caused illness in a tenant and even contributed to other persons’ deaths. However, no expert testimony was received on this subject and no finding is made about whether contamination exists on Petitioner’s property which has caused illness or death. The Department’s Site Investigation Section wants access to Petitioner’s property in order to determine whether contamination has migrated beneath Petitioner’s property and, if it has, the extent and concentration of the contaminants. The Department wants to: (a) install up to five temporary groundwater monitoring wells, (b) collect groundwater samples from the wells, (c) collect a groundwater sample from Petitioner’s potable water well, and (d) remove the monitoring wells after the sampling. The Access Order includes terms related to advance notice, scheduling, and related matters. Liability Although Petitioner believes petroleum contamination is present and wants it cleaned up, she objects to the provision of the Access Order related to liability. Paragraph 9(e) of the Access Order provides: Ms. Mahaney shall not be liable for any injury, damage or loss on the property suffered by the Department, its agents, or employees which is not caused by the [sic] negligence or intentional acts. Petitioner insists that she should not be liable under any circumstances for injuries or damages suffered by Department’s agents or employees who come on her property for these purposes. She demands that the Department come onto her property “at their own risk.” At the final hearing, the Department stated that it did not intend to impose on Petitioner a level of liability different than the liability that would already be applicable under Florida law. The Department offered to amend Paragraph 9(e) of the Access Order to indicate that Petitioner’s “liability, if any, shall be determined in accordance with Florida law.” Scope of the Investigation Petitioner objects to the proposed groundwater sampling because she does not believe it is extensive enough. Petitioner also believes the Department should test for soil contamination. The Department’s expert, David Phillips, testified that the proposed monitoring well locations were selected based on the direction of groundwater flow in the area and the wells are along the likely path of migration of any contaminated groundwater from the former auto salvage site. Another Department witness, Tracy Jewsbury, testified that no soil contamination was found on the auto salvage site, so the Department has no reason to expect there would be soil contamination on Petitioner’s property that came from the auto salvage operation. The Department will use the data collected from the wells to determine if contamination is present and whether future contamination assessment and/or remediation activities are necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection withdraw the Access Order or, alternatively, that Paragraph 9(e) of the Access Order be amended to provide that Ms. Mahaney’s potential liability, if any, shall be determined in accordance with Florida law. DONE AND ENTERED this 15th day of November, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2017. William W. Gwaltney, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Glenda Q. Mahaney Post Office Box 123 Mount Dora, Florida 32756 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Robert A. Williams, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed
The Issue The issues for determination are whether Respondent failed to maintain good moral character, in violation of Sections 943.1395(6) and (7), Florida Statutes (1995)1 and Florida Administrative Code Rules 11B-27.0011(4)(b) and (c),2 by making false statements to police officers; and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for certifying and regulating law enforcement officers in the state. Respondent is certified as a law enforcement officer pursuant to certificate number 107546. On January 18, 1993, Respondent and Deputy Paolo Donisi were employed by the West Melbourne Police Department (the "Department"). The Department maintains intoxilyzers for use in prosecuting driving violations involving alcohol.3 Rule 10D-42.024(1)(b) requires the Department to assure that monthly preventative maintenance procedures are conducted on each intoxilyzer by a certified intoxilyzer operator no later than the 31st of each month. Preventive maintenance procedures involve 12 tests that require 1-1.5 hours to complete. Monthly maintenance procedures include a check of the LED display, the diagnostic system, and a chemical test. The chemical test includes a mouth alcohol test and four ethanol tests. The certified intoxilyzer operator maintains a record of the preventative maintenance procedures he or she performs ("maintenance records"). Respondent was a certified intoxilyzer operator for the Department from 1989 through December, 1992. After December, 1992, Respondent's certification as an intoxilyzer operator expired. Respondent performed intoxilyzer preventive maintenance procedures for the Department through May, 1992. In May, 1992, Respondent requested that he be relieved of his responsibility to perform the Department's monthly maintenance procedures. Respondent performed the monthly preventive maintenance procedures for the Department in June, 1992, but did not complete the maintenance records. Sgt. Charles Schrum, a certified intoxilyzer operator, performed the Department's preventative maintenance from July through November, 1992. After November 29, 1992, Sgt. Schrum performed the next preventative maintenance on January 4, 1993. Sgt. Schrum did not request Respondent to perform the preventative maintenance in June, 1992. Sgt. Schrum never expressed any reservations or concerns about his own ability to perform the monthly maintenance. Sgt. Schrum never asked Respondent to perform a backup or supplemental monthly maintenance test. Nor was Respondent authorized to perform such a test. On January 18, 1993, the State Attorney's Office requested that Deputy Donisi provide intoxilyzer maintenance records for the month of December, 1992. Deputy Donisi was not certified as an intoxilyzer operator. He could not access the records himself and requested that Respondent assist him in obtaining the records. The two men entered the room where the intoxilyzer was kept. They found that the Department had not performed the required monthly maintenance for December, 1992. Deputy Donisi asked Respondent what they should do. Respondent stated that he would perform the required maintenance and back-date the maintenance records. Respondent told Deputy Donisi that he may want to wait outside the room so that he did not become involved in the late testing. Deputy Donisi waited in the doorway of the room. Respondent completed the preventive maintenance form in less than 15 minutes. Respondent did not perform any of the preventative maintenance tests on the intoxilyzer. Respondent completed the preventive maintenance form by writing numbers on the form from a previously completed preventive maintenance form. Respondent handed the completed preventive maintenance form to Deputy Donisi. He instructed Deputy Donisi to give the form to the State Attorney's Office. The form falsely stated that Respondent had actually performed the monthly maintenance procedures and that the procedures had been performed at 2:30 p.m. on December 22, 1992. Deputy Donisi subsequently discussed with Sgt. Schrum how easy and quick it was to perform the monthly intoxilyzer maintenance. Deputy Donisi asked how he could become certified as an intoxilyzer operator. Sgt. Schrum inquired about the time it took Respondent to complete the preventive maintenance form and concluded that Respondent could not have performed the monthly maintenance test in 15 minutes or less. Deputy Donisi retrieved the maintenance records from the State Attorney's Office. Deputy Donisi recommended that the State Attorney dispose of those cases affected by the December maintenance records without going to trial. Sgt. Schrum and Deputy Donisi filed affidavits with the Department. The Department began an internal investigation on March 17, 1993. Internal investigators conducted two interviews with Respondent on April 21 and May 10, 1993. During the interviews, Respondent falsely stated that he had performed the monthly maintenance for December, 1992, and that he had conducted the tests on December 22, 1992. Each interview was recorded and transcribed. During the interviews, Respondent stated that he did not record his test in the official log because Sgt. Schrum had a week or so to complete the required maintenance. Respondent stated that he recorded his test results in his field notes. Respondent's field notes are inconsistent with the test results Respondent recorded in the monthly maintenance report he gave to Deputy Donisi. Respondent explained the inconsistency as a transposition error. Department policy requires law enforcement officers, such as Respondent, to keep a daily activity or duty log as part of their regular duties. Respondent's duty log for December 22, 1992, does not include any reference to performing monthly maintenance tests for the intoxilyzer. Records of the computer aided dispatch system used by the Department show that Respondent was at the station on December 22, 1992, from 11:18 a.m. until 2:55 p.m. From 2:55 p.m. until 3:59 p.m., Respondent was dispatched three times. Respondent was dispatched at 3:01 p.m. to an accident but was preempted after 28 seconds. He was dispatched again at 3:29 p.m. to another accident and was on the scene at 3:31 p.m. He was back in service at 3:32 p.m.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Sections 943.13(6) and (7) and Rule 11B-27.0011(4); and suspending Respondent's certificate for one year, including the period, if any, that Respondent has been unemployed by the Department prior to the date of this Recommended Order. RECOMMENDED this 17th day of January, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1997.
Findings Of Fact Friends of Lloyd, Inc. is a Florida non-profit corporation formed for the purpose of protecting Jefferson County from harmful development. The Council of Neighborhood Associations of Tallahassee/Leon County (CONA) is a non- profit Florida corporation whose members are the neighborhood associations in Leon county; members of those associations reside in 42 Leon County neighborhoods dispersed throughout Leon County. CONA's purposes and goals include protection of the quality of life and environment in Leon County. The Thomasville Road Association's members are principally residents of Leon County. The Association was formed to promote responsible growth management in northern Leon County. None of the Petitioners are owners or "developers" of a Development of Regional Impact within the terms or scope of Chapter 380, Florida Statutes. Rather, Petitioners are members of non-profit organizations interested in the environment and growth management of Leon County. The Department of Community Affairs (the "Department") is the state land planning agency with the power and duty to administer and enforce Chapter 380, Florida Statutes, and the rules and regulations promulgated thereunder. Sections 380.031(18), and 380.032(1), Florida Statutes (1987). Texaco is a business entity that proposes to develop a "tank farm" near the community of Lloyd in Jefferson County, Florida. The Texaco tank farm is a "petroleum storage facility" as that term is used in Rule 28-24.021, F.A.C. Colonial is a business entity that proposes to develop a petroleum pipeline that will connect to the Texaco tank farm. The pipeline is designed to carry and contain petroleum products For purposes of standing, the parties have stipulated that certain environmental hazards can reasonably be expected to occur as a result of the existence of the pipeline/tank farm. No competent evidence was submitted regarding those hazards. As a result of the stipulation, Petitioners have each established injury-in-fact so that they are "adversely affected" by the challenged rule to an extent sufficient to confer upon them standing to maintain this action under Section 120.56, Florida Statutes. On September 7, 1989, one of the Petitioners sent Respondent a letter suggesting that the proposed tank farm development to be built in Jefferson County should be required to undergo review as a DRI. Enclosed with the letter was a proposed circuit court complaint pursuant to Section 403.412(2)(c), Florida Statutes. Petitioner expressed its intention of filing this circuit court action, but first provided Respondent a copy of the proposed complaint in accordance with the provisions of Section 403.412, Florida Statutes. In two letters dated September 8 and 25, 1989, Petitioner supplied additional information to Respondent concerning the tank farm project and contended that in making its determination as to whether the development must undergo DRI review, Respondent should consider the storage capacity of both the tank farm and the pipeline. On October 9, 1989, Respondent answered Petitioner's first letter, and stated that the proposed project was not required to undergo DRI review because the total storage capacity of the tanks was only seventy-eight percent (78%) of the threshold set out in Chapter 28-24, F.A.C. On October 13, 1989, Respondent answered Petitioner's second and third letters, stating that with respect to the pipeline, it has been long standing departmental policy to interpret "storage facilities" as meaning only the tanks, not the pipeline, when determining whether petroleum storage facilities meet the DRI thresholds set out in Chapter 28-24. The proposed tank farm would have nine tanks with a total capacity of 155,964 barrels, which is, as Respondent determined in its letters, approximately seventy-eight percent (78%) of the applicable DRI threshold for "petroleum storage facilities" set forth in Chapter 28-24, F.A.C. The proposed pipeline's capacity over its approximate forty-five mile length from Bainbridge, Georgia to the tank farm is approximately 34,000 barrels. The proposed pipeline's volume flow capacity from the Florida/Georgia state line to the site of the prosed tank farm is approximately 13,500 barrels over approximately 18 miles. If the pipeline's volume capacity from Bainbridge, Georgia is added to the tank farm's volume capacity, the resulting project would be approximately ninety-five percent (95%) of the applicable DRI threshold in Chapter 28-24. If the pipeline's volume capacity from the state line is added to the tank farm's volume capacity, the resulting project would be approximately eighty-five percent (85%) of the threshold. In either instance, the project would exceed the eighty percent (80%) threshold that may require it to undergo DRI review although the project would be Presumed not to be a DRI under the Statute. The Department does not require developments outside Chapter 28-24's enumeration to undergo DRI review. The Department has never treated petroleum Pipelines as "petroleum storage facilities," or as otherwise subject to DRI review. On Several occasions, the Department has applied the petroleum storage facility guideline and standard to petroleum tank farms without determining whether a pipeline was attached to the tank farm. On one prior occasion, the Department has explicitly stated that Petroleum Pipelines are not subject to DRI review. The Petitioners contend that Department's Position that pipelines are not "petroleum storage facilities" is an invalid policy because it has not been adopted as a rule. There is no dispute the Department's Position on this issue has not been promulgated as a rule. If a facility were represented to be a Petroleum pipeline, but was actually designed as and operating as a petroleum storage facility, the Department would apply the Petroleum storage facility DRI guideline and standard to that facility.
The Issue Whether Petitioner's site is eligible for state- administered cleanup under Respondent's Early Detection Incentive Program.
Findings Of Fact Nana's Petroleum, Inc., owns and operates a service station at 251 East Main Street, Pahokee, Florida. The facility is located within two or three blocks of Lake Okeechobee, which is a Class I drinking water supply. On October 19, 1988, Petitioner applied pursuant to the Early Detection Incentive Program for state assistance due to a suspected discharge of gasoline at the facility. The application indicated that a monitoring well had approximately one-quarter inch of product in it, but that the source of that contamination, though suspected to be from a leak in a line, was unknown. As of the date of the final hearing in this cause, Petitioner still had not performed an investigation to determine the source of the contamination. Failure to investigate the source of a discharge results in the possibility of the discharge continuing. A continual discharge results in the loss of more product from the system, increases the threat to drinking water supplies, and creates other environmental concerns. A discharge of fuel has the ability to harm people or property due to the resulting contamination of groundwater. Once the contamination has reached the groundwater, it can migrate to adjacent surface waters or potable water wells. The failure to stop a discharge, therefore, results in a greater threat to groundwater and to drinking water due to the greater amounts of product in the groundwater. Inventory is taken by inserting a calibrated pole into the storage tank and measuring the level of product in the tank. Due to the angle of the pole, fluctuations in volume due to heating and cooling of the product, and other factors, accuracy is only possible to 1/8 of an inch. One-eighth of an inch equates to 17 gallons in a 10,000-gallon tank. Inventory is accurate only for determining whether large or medium leaks are occurring and is not accurate for the detection of small leaks. Reviewing inventory records is not an acceptable method of investigating the source of a discharge. Only in the last few months has Petitioner been making monthly monitoring system checks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered denying Petitioner's Early Detection Incentive Notification Application. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February, 1990. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with. the Clerk of the Division of Administrative Hearings this 26th day of February, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-5912 Respondent's proposed findings of fact numbered 1-3 and 9 have been rejected as not constituting findings of fact but rather as constituting conclusions of law. Respondent's proposed findings of fact numbered 4-8, 10-17, 20, and 21 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 18 and 19 have been rejected as unnecessary for determination. COPIES FURNISHED: John W. Thornton 315 Southeast 8th Avenue Okeechobee, Florida 33472 E. Gary Early, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399 Daniel H. Thompson, General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399
The Issue The issue in this case is whether Petitioner's site, Circle K General, Inc., Store #2375, located at U.S. #1 and Pennekamp Park, is eligible for restoration pursuant to the Florida Petroleum Liability and Restoration Program (FPLIRP) set forth in Section 376.3072, Florida Statutes.
Findings Of Fact Petitioner, Circle K General, Inc., Store #2375 owns and operates a petroleum storage site located at U.S. #1 and John Pennekamp Park, Key Largo, Florida. The DER Facility ID Number for the site is 448624728. Circle K operates at the site three 10,000 gallon fiberglass tanks which contain gasoline. The tanks currently operated at the site were installed in 1987. Four monitoring wells for the site were installed at the same time as the Circle K tanks were installed in 1987. Monthly monitoring well reports were completed each month beginning on December 12, 1987, and ending on July 30, 1989, by Professional Services Industries on behalf of Circle K. Steve Belin is the individual at Circle K responsible for reviewing or supervising the review of the monitoring well reports for Store #2375. The November 26, 1988, monthly monitoring well report indicated the presence of petroleum odor in all four of the monitoring wells at the site. After receipt of the November 26, 1988, monthly monitoring report, neither Steve Belin nor any employee of Circle K filed a Discharge Notification Form with the Department. After receipt of the November 26, 1988, monthly monitoring report, neither Steve Belin nor any employee of Circle K undertook steps to investigate the source or cause of the petroleum odor. The monthly monitoring report dated March 20, 1989, indicates the presence of a petroleum odor in one of the four monitoring wells. After receipt of the March 20, 1989, monitoring well report, neither Steve Belin nor any employee of Circle K filed a Discharge Notification Form with the Department. After receipt of the March 20, 1989, monthly monitoring report, neither Steve Belin nor any employee of Circle K undertook steps to investigate the source or cause of the petroleum odor. The July 30, 1989, monthly monitoring well report indicates the presence of petroleum product in all four monitoring wells. The July 30, 1989, monthly monitoring well report was not received by Steve Belin until September, 1989. On July 31 and August 1, 1989, Combustion Engineering installed a set of four new compliance monitoring wells. Circle K contracted for the installation of new monitoring wells because the four existing monitoring wells were only 15 feet deep and were dry. By letter dated August 17, 1989, Combustion Engineering notified Steve Belin that a petroleum odor was detected in the soils retrieved while drilling one of the new monitoring wells and that a petroleum odor was also detected in one of the old monitoring wells. On August 21, 1989, Steve Belin filed a Discharge Notification Form with the Department for Circle K Store #2375. After the discharge notification was filed on August 21, 1989, none of the tanks were taken out of service. After the filing of the August 21, 1989 Discharge Notification Form, Circle K inspected the inventory records for the site beginning in October, 1988, through September, 1989, and detected no significant loss of petroleum product. On October 6, 1989, an inspection of Circle K Store #2375 was conducted by Leslie Rueth of the South District Office of the Department of Environmental Regulation. At the time of the October 6, 1989, DER inspection, free product was noted in two of the four new monitoring wells, and all of the wells contained a petroleum odor. On October 19, 1989, the South District Office of Department of Environmental Regulation notified Steve Belin of the October 6, 1989, inspection results and requested (1) that a tank and line tightness test be performed to determine if there was a leak in the petroleum storage system and (2), if free product was present, that an initial remedial action (IRA) be implemented as defined in F.A.C. Rule 17-70.006. An Initial Remedial Action consists of the removal of free product through the bailing or pumping of free product off the water table and may include the removal of excessively contaminated soil. On October 30, 1989, Steve Belin submitted tank tightness test results for the three 10,000 gallon tanks located at Circle K Store #2375. All three tanks passed the tank and line tests. By letter of October 17, 1989, Steve Belin requested ATEC Associates, Inc. to have all of the monitoring wells of Store #2375 bailed of free product once a week for one month. The free product present at Store #2375 resulted from old tanks and piping installed by Circle K's predecessor, U Under Florida Administrative Code Rule 17 presence of a layer or odor, or the positive report of a laboratory that the monitoring well sample contains pollutant, shall be treated as a discharge. A properly installed monitoring well should have at least one foot of water in the well in order to be able to take a water sample from the well. If a foot or less of water is present in a monitoring well, a vapor monitoring device should be used to test the wells. From December, 1987, until July, 1989, the Circle K monitoring wells were usually dry. Under Florida Administrative Code Rule 17 wells must be constructed such that the bottom of the casing is at least five feet below the water level at the time of drilling but no deeper than 25 feet. The monitoring wells constructed at Circle K Store #2375 did not meet the construction specifications set forth in Chapter 17-61, Florida Administrative Code. Florida Administrative Code Rule 17-61.050(b)(6) requires discharges to be reported to the Department within three working days of discovery. DER was not notified of a discharge subsequent to either the November 26, 1988, or the March 20, 1989, monitoring well reports, nor did Circle K contain the leak.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order denying the Petitioner's application for site restoration pursuant to the Florida Petroleum Liability and Insurance Program (FPLIRP). DONE and ENTERED this 27th day of August, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 27th day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2065 To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the Respondent's proposed findings of fact (the Petitioner not having filed any): 1.-27. Accepted and incorporated. Cumulative. Accepted; subordinate to facts found. 30.-33. Accepted but subordinate and unnecessary. 34.-38. Accepted and incorporated. 39. Cumulative. 40.-41. Accepted and incorporated. 42. Accepted but subordinate to facts found and unnecessary. 43.-44. Accepted but subordinate and unnecessary. Conclusion of law. Accepted but unnecessary. 47.-48. Accepted but subordinate and unnecessary. 49. Cumulative and unnecessary. COPIES FURNISHED: Steve Belin The Circle K Corporation Regional Environmental Director 500 South Faulkenburg Road Tampa, FL 33619 Janet E. Bowman, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue is whether Petitioner is liable to Respondent for costs it incurred in removing a drum containing gasoline and water that was located on Petitioner’s property.
Findings Of Fact At all times relevant to this proceeding, Petitioner owned a house (Petitioner's property or site), located at 217 20th Avenue North, St. Petersburg, Florida. The back of Petitioner's property was adjacent to an alley. Next door to Petitioner's property was another house owned by Petitioner. Between September 1995 and December 1995, Petitioner's property was unoccupied and undergoing extensive renovations. Petitioner hired Craig Quirk as the carpenter for the renovation project. Mr. Quirk worked on the project on a full-time basis during the entire period Petitioner's property was being renovated. One morning in late September when Mr. Quirk arrived at Petitioner's property to work, he discovered a wrought-iron stand and a 55-gallon drum in the backyard of Petitioner's property. Prior to that day, the drum had not been on Petitioner's property. Because the stand and drum were in the area where Mr. Quirk usually parked the vehicle, he and a helper dragged the drum and rack to the edge of the yard. The drum had a cap on it and was not leaking. Later that morning, when Petitioner came to the site, Mr. Quirk reported his discovery of the 55-gallon drum on Petitioner's property. At the time renovations were being made to Petitioner's property, Petitioner rented a dumpster which was used as a receptacle for construction debris. Mr. Quirk knew that the house owned by Petitioner and next door to Petitioner's property was on the market. Therefore, during the renovation of Petitioner's property, Mr. Quirk always utilized the dumpster in order to keep Petitioner's property clean. One or two days after learning about and observing the 55-gallon drum on the site, Petitioner telephoned a friend, Anthony Regan, to seek advice about removing the drum from Petitioner's property. At the time of Petitioner's call, Mr. Regan had two-and-a-half years of experience working as a truck driver for a hazardous waste facility. Although Mr. Regan is not a hazardous waste expert, because of his work experience, he is familiar with certain aspects related to hazardous waste and its disposal. Furthermore, Mr. Regan knows individuals within his company who can provide specific information regarding hazardous waste. At Petitioner's request, Mr. Regan went to the site to examine the 55-gallon drum and to assess what should be done with it. After being shown the drum by Petitioner, Mr. Regan temporarily removed the cap from the drum and inserted a stick in it. Based on his observation and assessment, Mr. Regan determined that the 55-gallon drum contained petroleum and water. When Mr. Regan observed the drum, it was not leaking and did not appear to be an environmental hazard. While at the site, Mr. Regan informed Petitioner that county amnesty program might provide assistance in removing the 55-gallon drum from Petitioner's property. Also, Mr. Regan told Petitioner that he would get an estimate from someone at the hazardous waste company for which Mr. Regan worked regarding the cost of removing the drum. Mr. Regan indicated that, after he checked on the county amnesty program and the estimate, he would report his findings to Petitioner. Between eight and ten days after going to Petitioner's property, Mr. Regan shared the results of his inquiries with Petitioner. First, Mr. Regan learned that the county amnesty program would not remove the drum because it did not belong to Petitioner, but had been dumped on Petitioner's property. Second, Mr. Regan reported to Petitioner that the hazardous waste company for which Regan worked could remove the 55-gallon drum from Petitioner's property for $350.00. Mr. Regan offered to look into the matter further, but prior to doing so went out-of-town for four or five weeks. Upon Mr. Regan’s return, Petitioner immediately contacted him to determine if additional information had been obtained concerning removal of the drum. While Mr. Regan had obtained no more additional information regarding removal of the drum, he suggested that Petitioner call the Sheriff’s Office. It was then that Petitioner made calls to several local agencies regarding the removal of the drum. Petitioner first called the police department, which in turn referred him to the county dump. The county dump could not assist Petitioner, but referred him to the Sheriff’s Office. Petitioner then called the Sheriff’s Office and spoke to Bob Aukenbaur, who told Petitioner that it was Petitioner's responsibility to have the drum removed. Because Petitioner was dissatisfied with Mr. Aukenbaur’s response, Petitioner called and attempted to speak to the Sheriff. Although unsuccessful in this regard, Petitioner did speak to an executive assistant, who promised to check into the matter. Approximately two days later, the executive assistant telephoned Petitioner and indicated that he was unable to find an amnesty program that would provide assistance to Petitioner. However, the executive assistant provided Petitioner with the telephone number of the Department of Environmental Protection and suggested that Petitioner call that agency for help. Petitioner then contacted the Department's regional office in Tampa, where he spoke to Jane Donnelly. The focus of Petitioner’s inquiry was whether it was his responsibility to remove the drum that had been “illegally dumped” on his property. After asking Petitioner several questions, Ms. Donnelly promised to get back with him. Several days after Petitioner contacted Department, Leslie Webster, an employee of the Department's regional office in Tampa and a Department trainee, visited the site to investigate the matter. When Ms. Webster arrived at the site, Petitioner and Paul Roney, the project design supervisor, were there. Petitioner showed Ms. Webster where the drum was located and explained to her that the drum had been dumped on his property. After Ms. Webster's on-site investigation, a form entitled "Initial Report of Emergency Response Incident" (Initial Report) was completed and forwarded to the Department's Tallahassee office. Petitioner was not provided with the Initial Report. The form bears the signature of Leslie Webster and is dated November 29, 1995. According to the Initial Report, the date of the incident was two weeks prior and the date the incident was reported to the Bureau of Energy Response was November 27, 1995. These dates do not accurately reflect the date of the incident and the date the incident was first reported. The Initial Report indicates that the incident was reported by Petitioner; that the “type of incident” is identified as “dumping“; that the incident description is noted as “abandoned drum(s)"; that the responsible party is “unknown”, and that the material in the drum is identified as from one to fifty- five gallons of gasoline and water. Also, the Initial Report has a “narrative” section. Nothing in this section indicates that Ms. Webster or anyone in the Department informed Petitioner that he was responsible for having the drum removed from the site. In situations such as this, the Department typically explains to the property owner what his responsibilities are with respect to a nonleaking drum. The property owner is then given a specified amount of time in which to remove the drum. The amount of time given to the property owner to remove the drum from his property varies, depending on the particular circumstances. The Department communicates this information to property owners in person, by telephone, or in writing. However, the Department's preferred manner of providing notice to property owners is to “talk face to face with people and let them know the circumstances they’re under.” When a Department investigator or other staff member visits a site and talks to the property owner about his responsibilities for removing pollutants or hazardous substances, no written notice is provided to the property owner reiterating the substance of the conversation. When Ms. Webster went to investigate the matter related to the drum on Petitioner’s property, there is no evidence that she told the Petitioner that he was responsible for removing the drum and that he was required to do so within a specified time. Likewise, there is no evidence that Ms. Webster told Petitioner that if he failed to remove the drum, the Department would have it removed and assess Petitioner the cost of such removal. Several days after Ms. Webster went to the site to investigate the matter, the drum remained on Petitioner’s property. Concerned that the drum had not been removed, Petitioner again called the Department's regional office in Tampa and spoke to Ms. Donnelly. During this conversation, Petitioner acknowledged that Ms. Webster had been to his property, but he expressed concern that the drum had not yet been removed. Ms. Donnelly then told Petitioner not to worry about it and stated, “I think we’re going to take care of it.” On or about November 29, 1995, the Department of Environmental Protection had the drum removed at a cost of $1,783. By letter dated August 5, 1996, more than eight months after the drum was removed from Petitioner’s property, the Department billed Petitioner $1,873.64 for costs and expenses incurred in removing the drum from Petitioner's property. This amount included administrative and investigative costs of $90.64 and $1,783 for the removal of the drum. Pursuant to the letter, Petitioner was given thirty days from the date of the letter in which to remit the amount due. Petitioner refused to pay the $1,873.64, and on the date of the hearing, the amount remained outstanding. The Department has incurred litigation costs of $2,090.93.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department dismissing the claim against Petitioner, James J. Wooten, and finding that he is not liable to the Department for $3,964.57 in costs. DONE AND ORDERED this 18th day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: James J. Wooten, pro se 145 25th Street, South CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1997. St. Petersburg, Florida 33705 Kathelyn M. Jacques, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Office of the General Counsel 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Petitioner, Jerry's Oil, prepared Early Detection Incentive Program Notification Applications for two of its gas stations in Florida on August 13, 1987. One application was for a station located in Okeechobee, Florida, registered as DER Facility No. 478732808. The other application was for a station located in Tarpon Springs, Florida, registered as DER Facility No. 528732810. The application form had two purposes. The first purpose of the form was to notify the Department of Environmental Regulation of petroleum contamination problems. The second purpose was to provide information to the agency that could be used to determine the applicant's eligibility for the Early Detection Incentive (EDI) Program. The EDI Program provides funding and other state assistance with environmental cleanup of petroleum contamination problems to tank owners for a limited period of time. To be eligible for participation in the EDI Program, an applicant had to complete the application form provided by DER and submit it to the agency during the reporting period from July 1, 1986 through December 31, 1988. The application for the Okeechobee gas station reports that a discharge of unleaded gasoline was discovered at the site on July 8, 1987. The dispenser, which is part of the storage system, leaked because of a loose connection. The estimated number of gallons lost was unknown, but the system was repaired before the report was made to DER on August 13, 1987. The application for the Tarpon Springs gas station reports that a discharge of vehicular diesel was discovered at this site on July 12, 1987. There was a loose connection between a pipe and the dispenser. In addition, the pump hose leaked. The amount of gallons lost as a result of these equipment problems was unknown. The gasket on the pump was replaced, and the system was otherwise repaired prior to the report to DER. Petitioner completed these applications to report the discharges and to have the company's eligibility for the EDI program determined by DER. As part of his usual business practice, the owner of Jerry's Oil completed the applications and gave them to Delores M. Quinette. Ms. Quinette then made copies of the front page of each application for Petitioner's files. Ms. Quinette placed the applications together in one envelope addressed to the Department of Environmental Regulation at 2600 Blairstone Road, Tallahassee, Florida. The envelope indicated that this correspondence was directed to the attention of Laurie Ginger. The proper return address was also placed on the stamped envelope. On the same day, the envelope containing the applications was placed in the residential mailbox belonging to Delores M. Quinette at 1110 Pine Lake Drive South, Tampa, Florida 33612. The red flag on the mailbox was raised to alert the mailman that the mailbox contained outgoing mail. This mailing procedure was used by the Petitioner in the ordinary course of business as Ms. Quinette is an independent contractor who handles the paperwork for Petitioner from her home. On August 14, 1987, Ms. Quinette checked the mailbox to remove incoming mail. The envelope addressed to the DER was no longer in the mailbox. It was assumed that the mailman had taken the outgoing mail for delivery to the addresses indicated on the correspondence. The envelope containing the applications was never returned to Ms. Quinette by the U.S. Postal Service. Petitioner relied on this mailing procedure to notify DER of the petroleum discharges and its intention to apply for eligibility into the EDI program. DER's records relating to EDI Program applications do not reflect that these two applications were received within the designated reporting period or within a reasonable time thereafter. DER first become aware that the original applications had been sent in August 1987 during the month of September of 1991. This was over two and a half years after the reporting period had closed. Petitioner discovered that the original applications were never received by DER when inquiry was made by Petitioner's contractor about the company's EDI Program eligibility during site rehabilitation in September 1991. Copies of the front page of each application retained by Petitioner were then mailed to DER, along with an affidavit stating the original applications had been mailed on August 14, 1987. Upon receipt of these copies, DER advised Petitioner it was ineligible to receive EDI Program benefits because these applications were not timely filed. Petitioner takes the position that DER should look to the date the original applications were entrusted to the U.S. Postal Service instead of the date the copies were received by DER as the reporting date for the eligibility determination. Petitioner also contends that it is possible that DER might have lost applications actually received. Neither the receipt of the original applications by DER nor the agency's loss of the applications was proved at hearing.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the applications for eligibility in the EDI Program submitted by Petitioner for DER Facility Nos. 528732810 and 478732808 be denied as they were not timely filed with the Department. That the doctrine of equitable tolling should not be applied to the reporting period deadline on Petitioner's behalf because the responsibility to make sure the applications were received by DER remained with Petitioner throughout the application process. DONE and ENTERED this 1st day of May, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 1st day of May, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1 - #12. Accepted. See HO #1 - #12, and #15. Accepted. See HO #14. Accepted. See HO #13, #14, #15 and #16. Accepted. See HO #17. First sentence accepted. Second and third sentences accepted. Fourth sentence rejected. Speculative, assumes facts not in evidence and without proper foundation. Respondent's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. 3. Accepted. See HO #1. 4. Accepted. See HO #2. 5. Accepted. 6. Accepted. See HO #2. 7. Accepted. 8. Accepted. 9. Accepted. See HO #14. 10. Accepted. See HO #15. 11. Accepted. 12. Accepted. 13. Accepted. 14. Accepted. See HO #13. 15. Accepted. See HO #15. 16. Accepted. Rejected. Irrelevant. Hearing Officer relied on testimony at hearing. Also, misrepresentation of testimony and events, contrary to fact. Accepted. See HO #16. Accepted. See HO #16. COPIES FURNISHED: WILLIAM B TAYLOR IV ESQ MacFARLANE FERGUSON ALLISON & KELLY PO BOX 1531 TAMPA FL 3 3601 BRIGETTE A FFOLKES ESQ ASST GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 CAROL BROWNER, SECRETARY DEPT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BLDG 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 DANIEL H THOMPSON ESQ GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE ROAD TALLAHASSEE FL 32399 2400
The Issue Whether Alachua County Environmental Protection Department discriminated against Tilak B. Shrestha based upon his race or national origin, in violation of Title VII of the Federal Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992, by releasing Mr. Shrestha from his temporary assignment through Temp Force with the Alachua County Environmental Protection Department and by not hiring Mr. Shrestha for the position of Senior Environmental Specialist within the Alachua County Environmental Protection Department.
Findings Of Fact The State of Florida funds the Petroleum Cleanup Program (Petroleum Program) which is focused on removing petroleum contaminants from various sites within the State of Florida. The Department of Environmental Protection (DEP) administers the Petroleum Program, also known as the Underground Storage Cleanup Program. In 12 counties, including Alachua, Florida contracts with the county to manage the Petroleum Program. The Alachua County Environmental Protection Department (Alachua DEP) manages the Petroleum Cleanup sites in Alachua County. Mr. Chris Bird has been the director of the Petroleum Program since 1993. He has worked with Alachua County since 1986. In the 1994-1995 fiscal year, the Florida Legislature was facing a deficit; therefore, the Legislature significantly reduced the funding for the Petroleum Program. As a result, DEP froze the Petroleum Program, and dropped several active sites. The lack of funding resulted in downsizing at both the county and state levels at the beginning of 1995. At the beginning of 1995, the Alachua DEP had three funded positions in the Petroleum Program. Mr. Alex Vieira occupied the position of full-time Professional Engineer. The Alachua DEP also had funding for an administrative position and a full-time Environmental Engineer/Geologist. The Environmental Engineer/Geologist position was vacant at the beginning of 1995. The Alachua DEP originally advertised for the position. However, when the State reduced funding for the Petroleum Program, the Alachua DEP decided not to fill the position with a permanent employee and ultimately froze this permanent position. In order for the Petroleum Program to continue at a minimum level of operation, the Alachua DEP hired temporary employees through Temp Force, a temporary employment agency. Temp Force served as an independent contractor for the Alachua DEP. Temp Force provided Mr. Tilak Shrestha and Mr. Mike Shuler to the Alachua DEP Petroleum Cleanup Program. Mr. Shuler began working at the Alachua DEP through Temp Force two months prior to Mr. Shrestha's Temp Force assignment to the Petroleum Program. At the time of the assignment through Temp Force, Shrestha was not credentialed as a Ph.D. Mr. Shrestha and Mr. Shuler were employees of Temp Force, received their paychecks from Temp Force and acquired no benefits from Alachua County. Mr. Shrestha worked as a Temp Force employee for six months at Alachua DEP and was assigned to various projects at the Alachua DEP. As supervisor for the Petroleum Program, Mr. Vieira assigned projects to both Mr. Shrestha and Mr. Shuler. Mr. Shrestha described his working conditions during his assignment through Temp Force with the Alachua DEP as "good, no complaints," and "good on average." In 1995, the Florida legislature ultimately reduced funding for the Petroleum Program from $1.2 million to approximately $250,000. When the Alachua DEP received notice of these funding cuts, Mr. Bird advised Mr. Vieira that he needed to release one of the Temp Force employees from his assignment with the Alachua DEP. Mr. Vieira retained Mr. Shuler and informed Mr. Shrestha that he would no longer be working on the Petroleum Cleanup assignment through Temp Force. Mr. Shrestha's assignment through Temp Force with the Alachua DEP was terminated on August 10, 1995. During Fall 1995, the legislature substantially changed the law and administration pertaining to the Petroleum Program, both at the county and state levels. In October 1995, Ms. Pegeen Hanrahan became the Petroleum Program supervisor following Mr. Vieira's resignation. Ms. Hanrahan earned a Bachelor's degree in Environmental Engineering and Sociology and a Master's degree in Environmental Engineering. She is a registered Professional Engineer and a certified Hazardous Materials Manager. She began working for Alachua County in 1992 as an Environmental Engineer and later served for three years as Hazardous Materials Program Supervisor for Alachua County. When Ms. Hanrahan became supervisor of the Petroleum Program in Fall 1995, the Petroleum Program had essentially entered a "stand-by" mode. The Alachua DEP declined to send any additional work to its sub-contractors. Therefore, the technical duties involved in the Petroleum Program were reduced and the administrative duties became more important. During the Fall of 1995, there were no permanent employees on staff. Mr. Shuler remained as the only temporary employee in the Petroleum Program and according to Ms. Hanrahan was doing a "perfectly adequate job." Based on the new and reduced Petroleum Program budget for the 1995-1996 fiscal year, the Alachua DEP acted in October 1995 to establish the position of Senior Environmental Specialist in lieu of the Environmental Engineer/Geologist position. The position was advertised in December 1995. The main role of the Senior Environmental Specialist was to assist the Professional Engineer in the area of the administration involved in the Petroleum Program. The duties included filing reports, tracking sites, and submitting task orders and invoices to the office in Tallahassee. Due to the increasing changes in the Petroleum Program, the Alachua DEP required a Senior Environmental Specialist who understood the Petroleum Program's administrative tasks, as well as the State policies pertaining to the Petroleum Program. The Senior Environmental Specialist candidate was required to have a technical background in fields including, but not limited to, engineering, biology or geology. The Professional Engineer, not the Specialist, was assigned the technical review of the Petroleum Program. An applicant's understanding of the technical and administrative duties was necessary. In 1995, the Alachua DEP advertised the position of Senior Environmental Specialist, which included printing an advertisement in the local newspaper, per the County regulations. The Alachua DEP described the administrative tasks of Senior Environmental Specialist to include: preparing reports; making recommendations; receiving and investigating complaints; conducting performance evaluations; counseling, hiring and terminating employees. The Alachua DEP described the knowledge, skills, and abilities of the Senior Environmental Specialist to include: thorough knowledge of the technical methods and procedures involved in the administration of environmental regulations, programs, and policies; knowledge of local, state, and federal rules, regulations, and ordinances related to environmental protection; ability to create concise, clear, and succinct technical reports; and ability to research technical problems, formulate recommendations, and compile related reports. The Alachua DEP described the minimum qualifications for the position of Senior Environmental Specialist as: Bachelor's degree in environmental or natural science, civil or environmental engineering, geology, or hydrology, or related field, and two years' professional level environmental-related experience; or any equivalent combination of related training and experience. The County received 14 applications for the position as Senior Environmental Specialist from applicants, which included Mr. Shrestha and Mr. Shuler. Ms. Hanrahan was supervisor of the Petroleum Program in January 1996 and responsible for the hiring of the Senior Environmental Specialist. She received an Application Referral Document from personnel, stating that each of the applicants met the County's minimum requirements for the position of Senior Environmental Specialist. Upon receipt of the re?sume's and applications, Ms. Hanrahan initially screened the applicants for those who had petroleum-related experience. She narrowed the applicants to four individuals, who included Mr. Shrestha, Mr. Shuler, and two others. On January 22, 1996, Ms. Hanrahan conducted a telephone interview of each of the four applicants who passed the initial screening. The telephone interview was customary hiring practice within the Alachua DEP. During the telephone interview, Ms. Hanrahan asked each applicant the same series of ten questions, designed to test the applicant's level of knowledge regarding technical and administrative aspects of the position of Senior Environmental Specialist. Mr. Shrestha answered five out of a possible eleven answers correctly. This was the second highest score out of the four applicants. Shuler achieved the highest score, answering eight-and-one-half out of eleven answers correctly. Three interview questions specifically addressed administrative issues. Question six asked, "What does RBCA stand for?" Question seven stated, "This year the Florida Petroleum Cleanup Program has adopted a new mechanism for review and approval of work on petroleum contaminated sites. Can you tell me what that program is called?" Question nine stated, "Give two examples of policy decisions under RBCA." Mr. Shrestha failed to answer question six, seven or nine correctly. Mr. Shrestha's failure to correctly answer each of the administrative questions indicated to Ms. Hanrahan that he was unaware of the changes within the Petroleum Program. Another purpose of the telephone interview was to assess the applicants under pressure. Ms. Hanrahan also sought to evaluate how the applicants responded to her authority. During the telephone interview, Mr. Shrestha challenged Ms. Hanrahan regarding the relevance of the questions to the position of Senior Environmental Specialist and she noted his argumentative attitude during the interview. He conceded at the hearing that he did ask her about the relevancy of the questions. Based upon his argumentative tone, Ms. Hanrahan questioned Mr. Shrestha about his ability to accept her supervisory decisions. She decided not to hire Mr. Shrestha for the position of Senior Environmental Specialist based on his limited knowledge of the administration of the Petroleum Program, a factor essential to the position of Senior Environmental Specialist, and his inability to accept her authority as supervisor. Ms. Hanrahan was also aware of critical statements that Mr. Shrestha allegedly had made to female co-workers during his assignment through Temp Force at the Alachua DEP. Ms. Robin Hallbourg is currently employed as Senior Environmental Specialist with the Alachua DEP. Ms. Hallbourg has been with the Alachua County DEP for 15 years. Ms. Hallbourg worked with Mr. Shrestha at the Alachua DEP during Mr. Shrestha's assignment through Temp Force. Ms. Hallbourg testified that Mr. Shrestha told her that "she should be home with her child" and that she "should allow a man to have her job." After this conversation, Ms. Hallbourg discussed his statements with others in the Alachua DEP, including Ms. Hanrahan. Ms. Hanrahan recalled the discussion with her. Ms. Hanrahan hired Mr. Shuler for the position of Senior Environmental Specialist because he proved himself to be the most qualified candidate during the interview process. Ms. Hanrahan kept an interview log on which she noted Mr. Shuler's strong qualifications for the position of Senior Environmental Specialist. She noted his "excellent experience in the Petroleum Cleanup Program and his significant applicable training and experience in program administration." Ms. Hanrahan also noted that his "application and interview showed strong computer skills." Mr. Shuler's Bachelor's degree in Microbiology met the education requirements for the position of Senior Environmental Specialist. Moreover, at the time of Shuler's application, there had been a growing emphasis placed on bi-remediation, which is currently a regularly used process. Given Ms. Hanrahan's education, training,and experience as a Professional Engineer, she determined that a Bachelor's degree in Microbiology was an appropriate background for the position. In addition, Mr. Shuler had the technical knowledge of processes, performance of groundwater sampling, and drilling, as well as other relevant technical knowledge pertaining to the position of Senior Environmental Specialist. Additionally, due to his continued assignment in the Alachua DEP, he was aware of the new administrative duties required of a Senior Environmental Specialist. Ms. Hanrahan had personally observed Mr. Shuler from October 1995 until January 1996, and was extremely satisfied with his performance. As part of the usual hiring process, Ms. Hanrahan submitted her interview log, personnel action form, and applications to the personnel department to support her hiring decision. Mr. Bird approved the hiring decision in his capacity as director, and the personnel department, budget department, and Equal Employment Office then approved the decision. Since his hire, Mr. Shuler has been commended by the Alachua DEP and his supervisors. Ms. Hanrahan informed Mr. Shrestha that he had not been hired for the position during a telephone conversation on January 23, 1996. She did not base her decision to hire Mr. Shuler over Mr. Shrestha on the basis of race or national origin. Ms. Hanrahan is fully aware of Alachua County's Equal Employment Opportunity policy through her position as advisor on the Equal Opportunity Advisory Committee. There is no evidence of any discriminatory hiring decision. In fact, on the same day that Ms. Hanrahan hired Mr. Shuler for the position of Senior Environmental Specialist, she also hired Mr. Gus Olmos for the position of Environmental Engineering Supervisor. Mr. Olmos is from Panama and is Hispanic. Moreover, Dr. Prasad Kuchibhotla is a Professional Engineer with a Bachelor's, Master's and Ph.D. in Chemical Engineering. He is from India and is Asian. Alachua County hired Dr. Kuchibhotla in 1997 and is the current Petroleum Cleanup Program Manager for Alachua DEP. Dr. Kuchibhotla currently has a Senior Environmental Specialist working for him within the Petroleum Program. As was the case in December 1995, the current Specialist's primary duty is to assist him with the detailed administrative tasks involved with the Petroleum Program. On January 27, 1997, Mr. Shrestha filed a formal Charge of Discrimination. The charge was date stamped as received by the Florida Commission on Human Relations on January 30, 1997. Mr. Shrestha is currently employed with Bell South in Atlanta, Georgia. He earns $47,000 per year and receives health benefits.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Petitioner, Tilak B. Shrestha is not entitled to any relief relating to his charge of discrimination under Title VII of the Federal Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992. DONE AND ENTERED this 2nd day of August, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 2nd day of August, 2000. COPIES FURNISHED: Tilak B. Shrestha 3579-C Meadowglen Village Lane Doraville, Georgia 30340 Robert M. Ott, Esquire County Litigation Attorney Post Office Box 2877 Gainesville, Florida 32602 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issues in this case are whether Respondent, L.B. King, Jr., violated certain rules relating to petroleum contamination site cleanup criteria promulgated by Petitioner, Department of Environmental Protection (Department), whether he should be required to pay an administrative fine and investigative costs and expenses incurred by the Department, and whether he should take corrective action, as described in the Department's Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (Notice of Violation) issued on June 15, 2007.
Findings Of Fact Based upon the record presented by the parties, and those allegations in the Notice of Violation which are undisputed, the following findings of fact are determined: Respondent is the owner and operator of non-residential property (doing business as King Oil and Tire) located at 16776 Southeast U.S. Highway 19 (at Main Street and Ward Street) in Cross City, Florida. He has owned the property since June 30, 1982. Since July 1978, eight regulated petroleum storage tanks were situated on the property. See Fla. Admin. Code R. 62- 761.200(20), (45), (53), and (65). The Department has assigned facility identification number 15/8839661 to the site. During the intervening time period since Respondent assumed ownership, six of the tanks and their associated piping have been closed or removed, including tank 4 in August 1997 and tanks 5 and 6 in March 2004. Tank 4 was a 1,000 gallon diesel underground storage tank system (UST) originally installed in July 1982, tank 5 was a kerosene UST installed in July 1978, while tank 6 was a waste oil UST installed in July 1978. Only tanks 7 and 8 still remain in service. After tank 4 and the associated piping were closed in August 1997, Respondent conducted a closure assessment in the area of tank 4 and performed soil and groundwater analytical sampling in the area of its former piping run. He then filed a Tank Closure Assessment Report (TCAR) with the Department on August 19, 2003. The TCAR revealed groundwater contaminants above the Department's Cleanup Target Levels (CTLs) for Methylnapthalene in two respects and for Naphthalene. See Fla. Admin. Code R. 62-777.170(1)(a), Table I. Because of the presence of contamination on the site, on September 3, 2003, the Department sent Respondent a letter requesting that he submit a Discharge Report Form (DRF) and initiate a site assessment, as required by Florida Administrative Code Rule 62-770.600, and that he file a completed site assessment report by July 10, 2004.3 Subsection (1) of that rule requires that "[w]ithin 30 days of discovery of contamination, the responsible party shall initiate a site assessment." On September 29, 2003, the Department received the requested DRF. During a tank closure inspection of tanks 5 and 6 performed on March 4, 2004, the Levy County Health Department, acting on behalf of the Department, discovered stained soils in the fill area of tank 6. On May 18, 2004, the Department received a TCAR dated May 7, 2004, for the closure of tanks 5 and 6. The TCAR documented the results of laboratory analytical tests on groundwater samples, which revealed groundwater contaminants above the Department's CTLs for Methylnapthalene in two respects. On May 24, 2004, the Department received from Respondent a copy of a DRF (dated March 9, 2004, as amended on April 9, 2004) for the contamination related to tanks 5 and 6. The DRF was the last report filed by Respondent concerning tanks 5 and 6. On the same date, the Department sent Respondent a letter requesting that he initiate site assessment activities for the discharge related to tanks 5 and 6, as required by Florida Administrative Code Rule 62-770.600(1). On July 14, 2004, the Department sent Respondent another letter requesting (a) completion of a site assessment and (b) the submission of a Site Assessment Report (SAR) for the discharge from tank 4 (SAR-97), which complied with the requirements of Florida Administrative Code Rule 62-770.600(8). (The SAR-97 was originally due on July 10, 2004, but had not yet been filed.) In order to be deemed complete, a SAR must contain all of the information detailed in subsection (8). Also, the letter requested that a SAR for the 2004 discharge (SAR-04) be completed no later than August 1, 2004, as required by Florida Administrative Code Rule 62-770.600(7). That subsection requires in relevant part that "[w]ithin 270 days of discovery of contamination, the responsible party shall submit to the Department or to the FDEP local program for review two copies of a [SAR] " On July 15, 2004, or the day after the above letter was mailed, the Department received a copy of the SAR-97 from Respondent. The report was then referred to the Department's Petroleum Cleanup Section for its review. By letter dated August 27, 2004, the Department advised Respondent that SAR-97 was under review. The letter also changed the due date for the SAR-04 from August 1, 2004, to November 9, 2004. On September 15, 2004, the Department received correspondence from Respondent requesting an extension of time in which to submit his SAR-04. On December 10, 2004, the Department approved the request and authorized Respondent to file a SAR-04 no later than March 1, 2005. On April 12, 2005, Respondent filed with the Department a Site Assessment Report Addendum (SARA) for the 1997 discharge (SARA-97). The report was dated March 1, 2005. On May 25, 2005, the Department sent Respondent a letter requesting that he file two copies of a supplement to the SARA-97 no later than July 5, 2005, to address certain deficiencies noted in that report, as required by Florida Administrative Code Rule 62-770-600(11). That subsection provides that "[i]f the [SAR] is incomplete in any respect, or is insufficient to satisfy the objectives of subsection 62- 770.600(3), F.A.C., the Department or the FDEP local program shall inform the responsible party pursuant to paragraph 62- 770.600(9)(b), F.A.C., and the responsible party shall submit to the Department or to the FDEP local program for review two copies of a [SARA] that addresses the deficiencies within 60 days after receipt of the notice." The same letter also requested that a disposal manifest be provided for the tank and piping closures. On July 11, 2005, the Department received a second SARA-97 from Respondent's consultant. On July 14, 2005, it also received the disposal manifest documentation for the closure of tank 4 and its piping. These were the last reports filed by Respondent. On October 4, 2005, the Department sent Respondent a letter requesting that he provide two copies of a third SARA for the 1997 discharge to address deficiencies noted by the Department in the second SARA. The letter indicated that the third SARA was to be filed no later than November 23, 2005. The Department also requested that he provide a completed financial affidavit to justify Respondent's claim that he was financially unable to complete the remaining required cleanup corrective actions at his property. On November 29, 2005, Respondent requested an extension of time to complete the third SARA-97. (The reason for the requested extension was that Respondent's insurance carrier would not give authorization for the work.) On January 12, 2006, the Department advised Respondent by letter that his request had been denied and that he must submit either the third SARA or a financial affidavit, as previously requested, no later than February 15, 2006. In its response, the Department indicated that it did not "consider generic delays by contractors or insurance carriers as good cause for an extension." To date, neither filing has been made. By failing to file the requested third SARA for the 1997 discharge, Respondent has contravened the requirements of Florida Administrative Code Rules 62-770.600(11) and 62- 770.800(3), which require that within 60 days after notice, a responsible party submit a SARA to address deficiencies noted in a SAR. Respondent's conduct also implicates Florida Administrative Code Rule 62-770.800(5), which makes it a violation of two Florida Statutes for a responsible party to not submit requested information within the time frame specified. Since March 1, 2005, which was the due date on which a report was to be filed, Respondent has failed to submit an approved SAR for the 2004 discharge, as required by Florida Administrative Code Rule 62-770.600(7), which in turn contravenes Florida Administrative Code Rule 62-770.800(3) and (5). To date, Respondent has failed to complete site assessment activities for both the 1997 and 2004 discharges, as required by Florida Administrative Code Rule 62-770.600(10). That provision states that "[s]ite assessment activities shall not be deemed complete until such time as a [SAR] is approved." To date, Respondent has failed to timely and completely assess and remediate the contamination at his property, as required by Florida Administrative Code Rule Chapter 62-770. That chapter contains the criteria which apply to the cleanup of a site contaminated with petroleum products. During the course of its investigation of this matter, the Department has incurred expenses "in the amount of not less than $500.00." As mitigating evidence, Respondent offered into evidence Respondent's Exhibits 2-15, the majority of which pertain to his insurance policy and the pending litigation with his carrier, Mid-Continent Casualty Company (MCC), or the priority score funding process, which is the process by which contaminated properties are scored or rated for purposes of determining eligibility to receive state cleanup funds when the responsible party is financially unable to do so. Although evidence regarding the insurance policy and pending litigation was deemed to be immaterial to the issues of establishing Respondent's liability for the violations and responsibility for undertaking the corrective actions necessary to satisfy the violations, the undersigned ruled that it could be used by Respondent as mitigating evidence, if relevant, for the purpose of seeking to reduce the administrative penalty. Respondent's Exhibits 8, 9, and 11 indicate that after he reported the 2003 discharge to MCC, in 2003 the carrier denied coverage for that discharge (on the ground "any 'confirmed release' must commence after the retroactive date of the policy (4/3/98)"). However, MCC initially accepted coverage for the 2004 discharge and authorized Respondent's environmental consultants to conduct a site assessment. The documents further show that in December 2005, or before the 2004 site assessment had been completed and a SAR prepared, MCC reversed its position and denied coverage for the 2004 discharge on the ground there was no "Confirmed Release," as defined by the policy. Respondent then filed his lawsuit seeking a determination that the carrier was responsible for cleanup costs. Respondent asserts that he has expended more than $50,000.00 in pursuing the lawsuit, which is much more than the administrative penalty being assessed by the Department. Respondent points out that prior to the time MCC reversed its position as to coverage for the 2004 discharge in December 2005, he had filed a DFR, TCAR, disposal manifest, SAR- 97, and two SARAs for the 1997 discharge, and a TCAR and DFR for the 2004 discharge, all of which indicate a good faith effort on his part to comply with the assessment requirements. As noted above, the final reports prepared by Respondent's consultant were a second SARA-97 and a disposal manifest for the 1997 discharge, which were filed with the Department in July 2005, and a TCAR and DRF for the 2004 discharge filed in May 2004. Respondent's Exhibit 10A recites language in Coverage B of the insurance policy, which provides in part that MCC "will pay Clean-up Costs by an Insured for environmental damage that an Insured is legally obligated to pay . . . ." Respondent argues that if he acknowledges by affidavit or other proof that he does not have the ability to pay for cleanup costs, he fears that under the above language, MCC would not be "legally obligated to pay." This is because Section 376.3071(7)(c), Florida Statutes, provides that when a responsible party does not have the ability to pay for all of the cleanup costs, the Department "may" enter into an agreement with the responsible party to undertake all or part of the site rehabilitation after "taking into consideration the party's net worth and the economic impact on the party." Respondent contends that if he files an affidavit under this statute, MCC would then be relieved of any responsibility under the policy, and his rights in the lawsuit would be jeopardized. Respondent further points out that several other provisions in the insurance policy prohibit him from completing the assessment until the litigation is concluded. For example, one provision (Section II.B) provides that "No Clean-up Costs, charges, and expenses shall be incurred without the Company's consent," while another (Section II.C) provides that "An Insured shall not admit or assume any liabilities or settle any Claim(s) without the Company's consent." Respondent asserts that these provisions prevent his consultant from conducting any further work on the site without MCC's consent, and if he does so, he will lose the right to reimbursement under the policy. Finally, Exhibits 3 through 6 show that Respondent's property has been assigned a site ranking score of ten points, and that the Department is currently funding sites that are eligible for state restoration funding only if they have scores of 37 points and higher. Thus, Respondent argues that a delay in remediation of the site is not unreasonable. Except for the two discharges at issue in this case, there is no evidence that Respondent has a history of non- compliance or that he gained any direct economic benefit by virtue of the discharges. Although no reports have been filed since July 2005, through counsel, Respondent has kept the Department abreast of his efforts to establish liability on the part of MCC so that the site assessments can resume.
