The Issue The issue for determination is whether Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 is eligible for state-administered cleanup under the Drycleaning Solvent Cleanup Program pursuant to Section 376.3078, Florida Statutes.
Findings Of Fact Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 (Respondent Cleaners) operates as a drycleaning facility at 1197 West 35th Street, Hialeah, Florida. Colombina Holding Company, N.V., Inc. (Intervenor) is the owner of the real property located at 1197 West 35th Street, Hialeah, Florida. Respondent Cleaners made application with the Florida Department of Environmental Protection (Respondent DEP) for state-administered cleanup under the Drycleaning Solvent Contamination Cleanup Program (Drycleaning Cleanup Program). By letter dated October 25, 1996, Respondent DEP notified Respondent Cleaners, among other things, that its application was approved and that it was eligible to participate in the Drycleaning Cleanup Program. Prior to Respondent Cleaner's approval to participate in the Drycleaning Cleanup Program, Metropolitan Dade County (Petitioner) issued to Respondent Cleaners a Notice of Violation and Orders for Corrective Action (NOV) for contamination at the drycleaning facility. The NOV required Respondent Cleaners to assess and remediate the contamination and to pump out and clean a soakage pit. Having received the NOV, Respondent Cleaners obtained the services of an environmental consultant to assess the contamination on the site and to propose a plan of remediation. Respondent Cleaners maintained contact with Petitioner and advised Petitioner of the progress. Petitioner required Respondent Cleaners to submit a Contamination Assessment Report (CAR) and IW Process Change Plans for the facility. Respondent Cleaners complied with the requirement. By letter dated November 21, 1996, counsel for Respondent Cleaners made inquiry to Respondent DEP as to whether pump out or cleaning of contamination in a soakage pit was included within the Drycleaning Cleanup Program. On November 20, 1996, Petitioner's Department of Environmental Resources Management (DERM) conducted a routine inspection and a receptor survey of Respondent Cleaners. No violations were observed by the inspector. Respondent Cleaners has not remediated the contamination at the facility site.
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 finding Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 eligible to participate in the Drycleaning Solvent Contamination Cleanup Program. DONE AND ENTERED this 21st day of April, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1998.
The Issue Should the Petitioner be certified in Florida as a Radon Mitigation Specialist based upon his performance on the examination for certification given in April 1990? Were any of the seven items on the examination challenged by Petitioner marked incorrect when they were in fact correct answers to the questions asked?
Findings Of Fact The Office of Radiation Control within the Department of Health and Rehabilitative Services is the agency authorized to certify an individual as a radon mitigation specialist in Florida. One of the required qualifications required for certification is that the individual pass the training examination. The Petitioner, Alexander Z. Kobryn, sat for the training examination in April 1990. A comparison of Petitioner's answer sheet with the answer key used to grade the examination reveals that he marked the incorrect response on twenty-six of the examination questions. As the examination consisted of only seventy-five multiple choice questions, Petitioner's overall score was below the designated passing score of seventy percent. After Petitioner's review of the examination, his answer sheet, the Environmental Protection Agency Training Manual, and the answer key, seven examination answers designated as the only correct answers were challenged by Petitioner. These items were questions numbered 11, 34, 54, 57, 58, 60 and 64. The specific challenges were not isolated until the hearing date because Petitioner had not been granted the opportunity to review his incorrect until final hearing. At hearing, the parties agreed that if any four of the challenged items were in fact correct answers, the Petitioner's examination would be rescored to reflect he had received a passing score of seventy percent. As part of the test design, the correct answer for each question was supposed to reflect that certain training objectives were being met by the course materials for the Radon Mitigation Specialist Examination. A correct answer was supposed to reflect that the training materials had covered certain information deemed as necessary knowledge for individuals in the radon mitigation business. Individuals taking the examination were not made aware of which training objectives they were meeting when they answered individual questions. This information was reserved for the designers of the test and the Department. The test takers answered the questions based on content alone. On question 11 of the examination, applicants were asked to select the category which has the greatest influence on indoor radon and radon decay products. Four multiple choice answers were provided. Of these choices, two were eliminated by Petitioner and all other applicants. According to the information in Unit Two of the EPA Reducing Radon in Structures Manual, the keyed answer "A" was the best response. During the hearing, the Petitioner provided an article written by Dr. Ed Vitz, a recognized expert and acknowledged author of the EPA manual. This article gives greater emphasis to the radon in the water supply than the training text on which the examination was based. The Petitioner relied on the expert opinion of Dr. Ed Vitz when he exercised the judgment he was asked to use in his selection of the category with the greatest influence on indoor radon and radon decay products. The Petitioner was able to justify his judgment selection of answer "B" on question 11 and should be given full credit for his response as a correct answer. Question 34 of the examination asked applicants which remediation technique they (the individual) would consider first if the sub-slab vacuum test alters the direction of smoke at a block wall opening. The Petitioner chose sub-slab and baseboard suction (answer "C") over the keyed answer of sub-slab suction (answer "D"). The Petitioner argued that his answer to question 34 was equally as correct as the keyed answer. While he agrees that sub-slab suction should be considered, he also chose baseboard suction. This is a conservative selection that includes a more thorough attempt at remediation on the first try than the keyed answer. There was no redundancy. As the test asked for a preliminary evaluation from the applicant of the techniques to be used, the Petitioner's answer was not incorrect. Without more information, he chose a more conservative approach than the answer ultimately sought by the examination. Because the Petitioner was able to justify his answer choice, he should be given full credit for his response of "C" as a correct answer. Question 54 asks for the factor that does not directly influence the depressurization of a block stem wall. When answering the question, the Petitioner did not contemplate that more suction points would be needed in the trench if more corners existed in the wall. (See Section 5.55 of the EPA Manual.) The answer keyed by the Department is the only correct answer to the question. The Petitioner should not be given credit for a correct response of question 54. Question 57 asks for the mitigation method an applicant should use to increase the ventilation in a tightly constructed home with a 6-8 pCi/1 radon concentration. In his answer, the Petitioner chose to keep the windows open during the day (answer "D"). The keyed answer was to install a constant fresh air supply (answer "B"). The Petitioner testified that the given level of radon concentration could be mitigated by either answer. The mitigation would be caused by the intrusion of fresh air from an external source. He chose answer "D" over answer "B" as his first mitigation method because it was the most cost-effective for the client. If the question had asked for which mechanical devices should be used, answer "B" would clearly be the correct one. However, Petitioner established that his answer was not incorrect. The authority chosen by the Department to justify the keyed answer discusses ventilation caused by mechanical devices. However, the same text validates the method chosen by Petitioner. The Petitioner should be given credit for a correct answer on question 57. The next question challenged was question 58. No one taking the examination chose the keyed answer "A". Instead, an overwhelming majority of applicants chose the same answer as selected by the Petitioner, answer "B". The Petitioner explained that answer "B'1 was interpreted by him to include the duct work in the crawlspace. This is a reasonable interpretation of the selection ~~B~?. Under that interpretation, it is clearly the best answer to the question posed by the examination. The Petitioner should be given credit for a correct answer on question 58. The Petitioner's selected answer to question 60 is incorrect, even under the authority he referenced in Section 5-90 of the EPA Manual. The answer keyed by the Department is correct, as established in Section 5-89 of the manual. The Petitioner should not receive credit for a correct answer for his response to this question. Question 64 asked what course of action should be taken if post- mitigation measurements provided certain information. The keyed answer was "B", but the Petitioner gave the answer "C" as the proposed course of action. The first measurement given in the question was a long-term measurement. It is the best means for judging results. The answer selected by Petitioner was redundant as opposed to conservative. Credit for a correct answer should not be given for his response to question 64.
Recommendation Accordingly, it is RECOMMENDED: 1 . That a Final Order be entered finding that the Petitioner achieved a passing score on the Radon Mitigation Specialist Examination taken on April 19, 1990. 2. As a result of the passing score, tie Petitioner's exam status should be changed from "fail" to "pass". DONE and ENTERED this 2nd day of January, 1991, 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 o Administrative Hearings this 2nd day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4423 The Department's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #6. Accepted. See HO #4. Rejected. See HO #12, #15, #22 and #25. Rejected. See HO #12, #15, #22 and #25. COPIES FURNISHED: Alexander Z. Kobryn 163 Padgett Drive Lakeland, Florida 33805 John Rodriguez, Esquire HRS-Interprogram & Development Technical Assistance Office 1317 Winewood Boulevard Building One, Room 100 Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Alinco Associates, Inc. (Alinco) is a corporate real estate broker and was so registered with FREC at all times material herein. Alfred C. Couric, Jr., Carol L. Astin, and Reginald D. Lucas are real estate brokers and at all times material herein were so registered with FREC. Respondent Alinco was the listing broker for a home at 7110 Filmore Street, Hollywood, Florida, owned by Jones. In December, 1977, Mrs. Jones had a termite inspection by Orkin. The inspector reported active termite infestation in the attic and induced Mrs. Jones to sign a contract for tenting and fumigation. After talking to salesman Boland and his supervisor and listing broker, Respondent Lucas, Mrs. Jones commissioned a second inspection by Harry Pope, a licensed termite inspector. Pope also found active termite infestation and so advised Mrs. Jones. When told by Mrs. Jones that she had already entered into a contract with Orkin, Pope did not further pursue the matter. Respondent Lucas called Pope's office after the inspection but Pope was out and his secretary said he left no word there was active infestation. Lucas assumed from this that termites were not found. Pope never relayed his findings to anyone other than Mrs. Jones. Mrs. Jones rescinded the fumigation contract she had entered into with Orkin. After the Contract for Sale had been executed and a "solid" sign appeared on Jones' property the Orkin salesman revisited Mrs. Jones to inquire about the fumigation and was told she would call when ready. Approximately thirty days prior to closing, salesman Boland, on behalf of the purchaser, ordered an inspection by DeLeva Exterminating, Inc. Robert W. DeLeva, President of DeLeva Exterminating, Inc., inspected the residence at 7110 Filmore Street on March 8, 1977, found no evidence of active termite infestation and submitted a termite clearance report which was presented to the buyers at closing. Some three weeks after the closing and occupancy of the house, the purchaser Menendez was advised by the Orkin inspector that he had found evidence of termites. Menendez then called DeLeva who again inspected the premises and on this inspection found evidence of active termite infestation. No evidence was presented that any Respondent other than Lucas (and former Respondent Boland) as aware of the Orkin inspection and report. DeLeva Exterminating, Inc. is a licensed corporate termite inspector as is Orkin, but neither the Orkin inspector nor Robert DeLeva was a licensed inspector when their inspections were made. Robert DeLeva has conducted numerous termite inspections but, following this incident, limits his field of operations to fumigation for which he is licensed.
The Issue The issue in this case is whether the Petitioner is eligible for reimbursement for allowable costs pursuant to Section 376.3071(12), Florida Statutes, related to the cleanup of certain contamination at the Petitioner's ground transportation facility.
Findings Of Fact Based on the evidence received at the hearing, I make the following findings of fact: Facts stipulated to by the parties The subject facility is a bus, limousine and van storage, dispatch, and service area for a ground transportation company serving Miami International Airport which contains a parking lot, fuel storage tanks, an administration building, and a maintenance shop. The Department of Environmental Regulation is the agency charged with responsibility for administering the provisions of Section 376.3071, Florida Statutes. Red Top Sedan, Inc., through its agents, notified the Department of possible ground and ground water contamination on or about September 10, 1986. The Department received said notification and on September 19, 1986, advised Red Top that the notice was adequate and requested further information. Following various correspondence and requests for information, the Department determined that it had sufficient information and, on February 1, 1988, issued its Notice of Intent regarding the eligibility of the subject sites for participation in the program. One area, adjacent to and surrounding the diesel fuel pumps, was found to be eligible. Another area, east and west of the maintenance shop (Exhibit "2" to the Notice) was found to be ineligible. Red Top filed a Petition for Administrative Determination which was received by the Department on February 23, 1988. The Petition was subsequently referred to the Division of Administrative Hearings and a Hearing Officer assigned. Facts Established at Hearing General Information About The Facility The subject facility also contains a parking area for approximately 95 buses, 40 to 45 vans, two dozen mini-buses, and 15 or 16 limousines and Lincoln towncars. There is also employee parking on the site. To the east of the Red Top office building there is a fuel island used for fueling Red Top's vehicles. The tanks associated with that fuel island have discharged diesel fuel. That petroleum contamination site is entirely separate from the one involved in this proceeding and has been found to be eligible for reimbursement. When the subject facility was constructed, Red Top employed an engineering company. It also employed a company named Service Station Aid. Service Station Aid is in the business of servicing tanks and other equipment used in connection with the handling of oil, gasoline, diesel fuel, and other similar products. Among other things, Service Station Aid installed underground waste oil tanks and tanks to hold automatic transmission fluid and new motor oil in the area of the maintenance facility. A drainage system servicing the asphalt parking areas and driveways surrounding the various buildings was also installed on the subject site. That system contained various grease traps which conformed to accepted practice at the time of their construction. Facts Regarding The East Side of the Maintenance Building Two underground waste oil tanks are on the east side of the maintenance building. The two waste oil tanks have been in operation since 1976, when the facility was built. Each of these two tanks has a capacity of 560 gallons. Employees of Red Top regularly pour used motor oil into the two waste oil tanks on the east side of the maintenance facility. The used oil is periodically removed by an EPA approved company. That company removes the waste oil to a fuel recycling facility in the Port Everglades area where it is made into recycled fuel. It is possible, even probable, that used oil has been spilled from time to time both while being poured into the waste oil tanks and while being removed from the waste oil tanks. However, there is no persuasive competent substantial evidence that any such spillage was a significant contribution to the contamination at the site. .1/ It is possible that one or both of the waste oil tanks has leaked. However, there is no persuasive competent substantial evidence that any such leakage was a significant contribution to the contamination at the site. In this regard it is noted that Red Top has not tested either of the waste oil tanks to determine whether they are leaking. Approximately 70 feet to the east of the maintenance building there are three storm drains. The storm drains are attached by way of a catch basin to soakage pits. Soakage pits are specifically designed to allow materials entering the soakage pit to be discharged directly to the earth. Storm drains are designed to catch stormwater runoff rather than large amounts of pollutants. The area to the east of the maintenance facility is paved with asphalt. That paved area is sloped so that any discharge of pollutants in that area of the site will flow to the storm drains. On numerous occasions waste oil has been observed in the storm drains. Instances of direct discharges of waste oil onto the ground or into the storm drains have been observed. Oil stains around the storm drains and observations by Dade County inspectors indicate that such direct discharges have been regular, if not frequent. Other sources of contamination at the Red Top facility include leaking drums of oil, oil leaking from stored or discarded equipment, oil discharged to the ground, disposal of contaminated waters from the maintenance building, and engine washing water discharged on the site. In the ground to the east of the maintenance building there is a large plume of dissolved oil and grease. This plume includes a plume of free product in the vicinity of the southernmost of the two waste oil tanks. Extending beyond the identified plume there are additional areas contaminated by constituents of waste oil. The primary cause of the contamination on the east side of the maintenance building is the direct discharge of contaminants. Discharge from the two waste oil tanks constitutes, at most, only a very minor cause of the overall contamination. .2/ Facts Regarding the West Side of the Maintenance Building On the west side of the maintenance building there are two underground tanks that are used to hold new motor oil and new transmission fluid. Motor oil and transmission fluid are lubricants used to lubricate engines and transmissions. They are not fuels. Pollutants which were discharged onto the floor of the maintenance building during maintenance work have been washed directly into the storm drains on the northwest side of the maintenance facility. There are two small areas of contamination on the west side of the maintenance facility. One such area is around a storm drain at the northwest side of the maintenance facility. The other is around the two tanks that contain new motor oil and transmission fluid. The contamination in the area of the storm drain includes lead, cadmium, and chromium. Motor oil and transmission fluid do not contain lead, nor do they contain levels of cadmium or chromium in amounts sufficient to be detected in groundwater. There is also an area of free product near the storm drain. There is no storage tank adjacent to the storm drain on the northwest side of the maintenance facility that could account for the lead, cadmium, and chromium contamination or that could account for the area of free product. The contamination at the storm drain on the west side of the maintenance facility resulted from direct discharges of contaminants to the storm drain and catch basin and was not a result of a discharge from a storage tank. The contamination in the area of the two tanks used for new motor oil and transmission fluid also contains lead, cadmium, and chromium. The metals contamination at this area is a result of discharge to the storm drain, and is not the result of discharge of new motor oil or transmission fluid from the two tanks. The groundwater in the area around these two tanks is also contaminated by dissolved oil and grease. The dissolved oil and grease plume is consistent in terms of substance and concentration with the dissolved waste oil to the east of the building. Within that plume of dissolved oil and grease there is also a small plume of free product. There is no waste oil tank on the west side of the maintenance facility that could account for waste oil contamination at that location. The dissolved oil and grease plume on the west side of the maintenance facility is most likely the result of waste oil discharge to the catch basin. The tanks containing new motor oil and transmission fluid may have contributed to the small free product plume in that area as a result of overfilling, but any such contribution was only a minor part of the overall contamination. In reviewing an application for eligibility for reimbursement, the Department looks at the relative importance of eligible and ineligible portions of a contaminated site. In cases where a potentially eligible source is minor in comparison to an overall otherwise ineligible contamination site, the Department's policy is to treat the entire site as ineligible. This policy is based on the fact that as a practical matter it is not possible to clean up one part of a contaminated site without affecting any adjacent contaminated areas. For the same reason, if the majority of a contaminated site is eligible, but it contains minor ineligible sources, the Department's policy is to treat the entire site as eligible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation issue a final order in this case concluding that the contamination area at issue in this proceeding is not eligible for reimbursement under Section 376.3071(12), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of June 1989. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June 1989.
Findings Of Fact The Respondent, Philip G. Nicholson, does business as Allstate Termite Control. The Respondent holds a pest control identification card issued by the Office of Entomology of the Department of Health and Rehabilitative Services. On or about September 23, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Roland E. Cooley and Alma P. Cooley with respect to the Cooleys' residence in Lake Worth, Florida. The chemical specified for use on the contract was chlordane. On or about that same date, the Respondent entered into a contract with Roland E. Cooley and Alma P. Cooley to perform a dry wood termite attic prevention treatment on the Cooley's residence. The chemical specified in the dry wood contract was "dri die". Only hearsay testimony was offered to establish what, if any, representations the Respondent made to the Cooleys to induce them to enter into the contracts. The work performed by the Respondent on the Cooleys' residence was not sufficient to provide the protection specified in the contracts, and in the case of the dry wood treatment, was unnecessary. The Cooleys' residence is constructed on a concrete slab. With such structures, the chlordane label, which governs use of the chemical, requires that all voids in hollow masonry units of the foundation be treated at the rate of at least one gallon per five linear feet of wall. It is thus necessary to drill each masonry block so that the chemical can be injected into it. Hollow masonry blocks were used in constructing the foundation of the Cooley house. Only one drill hole was made on the north side of the house into the masonry blocks, and none were made on the south side. If each of the masonry units had been treated as required, drill holes would have been placed at every eighteen inches along the foundation. This was not done, and the treatment for subterranean termite control was thus not in accordance with the label on the chemical, and was substandard. The treatment was inadequate to provide the Cooleys with the protection provided in the subterranean termite control contract. As to the dri die treatment at the Cooley house, the sort of treatment specified would not give the Cooleys any significant termite protection, since it would only protect them from dry wood termites in their attic. It is not a sort of treatment that is ordinarily performed. In order to be performed effectively, however, the dri die must be applied in accordance with the label which gives directions for its use. It is required that all wood surfaces be covered with the chemical at a recommended rate of one pound per one thousand square feet of area. At the Cooley residence, dri die was placed in the area, however, it was placed in a small pile in one part of the attic. It was not evenly spread, all wood surfaces were not covered, and insufficient chemical was utilized. The treatment specified would have provided the Cooleys only with dry wood termite prevention in the one part of the attic where the chemical was piled. The treatment was not in accordance with the label instructions, and was substandard. On or about September 27, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mr. and Mrs. Walter J. Delaney, for their residence in Lake Worth, Florida. The type of chemical specified for use in the contract was chlordane. The contract sets out the street address and zip code of the Delaneys' residence, but does not state the city. The address set out on the contract is sufficient to establish the location of the Delaneys' residence. Only hearsay evidence was offered at the final hearing to indicate what, if any, representations the Respondent made to the Delaneys in order to induce them to enter into the contract. The work performed by the Respondent on the Delaney home was insufficient to comport with the label instructions for application of chlordane, was substandard, and did not provide the Delaneys with the protection specified in the contract. The Delaneys' home is of concrete slab on-ground construction. The foundation is constructed of hollow masonry units. The voids in the hollow masonry units were not each treated as required on the chlordane label. Only one drill hole was made on the south side of the house and none were made on the north side. Several drill holes were made on the other sides of the house, however, four of them were fake, in other words they did not go all the way through the slab. On or about September 28, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mrs. Ann Sahlem, for her residence in West Palm Beach, Florida. The chemical specified for use in the contract was chlordane. Only hearsay evidence was offered to establish what representations, if any, were made by the Respondent to induce Mrs. Sahlem to enter into the contract. The work performed by the Respondent on the Sahlem residence did not comport with the label instructions for us of chlordane, was substandard, and was not sufficient to provide Mrs. Sahlem with the protection specified in the contract. The Sahlem residence is constructed on an on-ground concrete slab. The foundation is constructed of hollow masonry units. The voids in each of the hollow masonry units were not filled as required by the chlordane label. No drill holes were made on the west side of the home, and only one was made on the east side. On the north side of the home the holes were too far apart to treat all of the voids. The address set out on the Sahlem contract does not give the city of Mrs. Sahlem's residence although it does give the street address and zip code. The address as given is sufficient to identify the residence. On or about September 30, 1977, the Respondent entered into a subterranean termite control contract and service agreement, and a dry wood termite attic prevention treatment agreement with Mrs. Elizabeth A. Hughes. The chemical specified for use in the subterranean termite control contract was chlordane. The chemical specified in the dry wood termite prevention treatment was "dri die". The contracts were for Mrs. Hughes' residence in Lake Worth, Florida. The contracts do not specify the city of Mrs. Hughes' residence, although the street address and zip code are set out. The address as set out is sufficient to adequately identify the location of Mrs. Hughes' residence. No evidence was offered from which it could be concluded that the Respondent made any misrepresentations to Mrs. Hughes to induce her to enter into the contracts. The work performed under the contracts was, however, not in accordance with the label instructions for chlordane and dri die treatments, was substandard, and was not sufficient to provide the treatment specified in the contracts. Mrs. Hughes' home is constructed on a concrete slab. The foundation is constructed of hollow masonry units. The voids in the masonry units were not each treated as required on the chlordane directions. Furthermore, the drill holes were made three feet above the ground along one wall, and five feet above the ground along another wall, which would be insufficient to allow introduction of the chemicals below the concrete slab. The dri die was not distributed evenly over the attic wood surfaces as required on the dri die label. An insufficient amount of the chemical was utilized, and it was placed at one spot in the attic. The dri die treatment was unnecessary, and even if it had been advisable, it was not accomplished in a manner which would provide any useful protection to Mrs. Hughes. On or about October 27, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mrs.. Fred J. Schultz. The contract was for Mrs. Schultz's residence in Lake Worth, Florida. No direct evidence was offered to establish what, if any, representations were made by the Respondent to induce Mrs. Schultz to enter into the contract. It appears that the contract was solicited and performed by employees of the Respondent, and not by him directly, although he signed the contract and was responsible for the work. The chemical specified for use in the contract is Gold Crest, 72%, which is a trade name for chlordane. The work performed by the Respondent did not comport with the label instructions for use of chlordane, was substandard, and was not sufficient to provide the protection specified in the contract. The Sdchultz's home is constructed on piers with a crawl space. The instructions for application of chlordane contained in the label provide that in treating such structures it is necessary to either rod or dig a narrow trench to the top of the footing along the inside of the foundation walls, around all piers, sewers, pipes, and conduits; and to rod or dig a narrow trench to the top of the footing along the outside of the foundation wall. The Respondent, or his employees who performed the work at the Schultz residence did not make any trenches whatever, and did not even enter the crawl space below the Schultz's home in order to treat the piers. No evidence was presented from which it could be determined that the Respondent performed any dry wood termite treatment on the Schultz's residence. No evidence was presented from which it could be determined that any such work that may have been performed was done improperly, or that it was accomplished with or without a contract. On or about October 21, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mrs. Hulda Radke. The contract related to Mrs. Radke's residence in West Palm Beach, Florida. The chemical specified for use in the contract was chlordane. The Respondent also entered into contracts to perform home repairs for Mrs. Radke. No evidence was offered from which it could be concluded that the Respondent made any misrepresentations in order to induce Mrs. Radke to enter into the contract for termite control. The termite control work performed by the Respondent on Mrs. Radke's residence did not comport with the label instructions for use of chlordane, was substandard, and was not sufficient to provide the protection specified in the contract. Mrs. Radke's home was of pier constructions with a crawl space. No trenches were made, and the chemical was not trenched or rodded around each pier, and around each foundation wall. The chemical was broadcast along the top of the soil, but was not placed below the surface. The label instructions specify that a chemical should not be broadcast sprayed. On or about October 26, 1977 the Respondent entered into a subterranean termite control contract and service agreement with Mrs. Charles Thompson, for her residence in West Palm Beach, Florida. The chemical specified for use in the contract was chlordane. No direct evidence was offered to establish what, if any, representations were made by the Respondent to induce Mrs. Thompson to enter into the contract. The work performed by the Respondent on the Thompson residence did not comport with the label instructions for use of chlordane, was substandard, and was insufficient to provide the protection specified in the contract. The Thompson residence is of pier and crawl space construction. No trenches or rodding was done as specified on the chlordane label, and each pier was not treated. The address set out on the Thompson contract is insufficient. It gives only a street address, and no city or zip code. The Respondent testified that he used a process known as "long rodding" to treat under concrete slabs. Long rodding is a method whereby the end of a spray assembly is extended, and chemicals introduced under a slab. It is used typically where hollow masonry is not used in constructing the foundation. The process does not work well because the end of the rod cannot be adequately controlled. Even if this process were utilized, the chlordane label would required that all voids in hollow masonry units be treated. Failure to treat each of the voids would render the treatment substandard. It appears that since these incidents occurred, the Respondent has performed numerous termite control contracts in Hillsborough and Pinellas counties without complaint.
The Issue Whether Petitioner is entitled to participate in the Reimbursement Program established under the State Underground Petroleum Environmental Response (SUPER) Act of 1986 for the petroleum terminal owned by Gulf Products Division of BP Oil Company at Port Everglades, Florida.
Findings Of Fact The State Underground Petroleum Environmental Response (SUPER) Act of 1986 provides for the expeditious cleanup of sites contaminated as the result of storage of petroleum or petroleum products. The Reimbursement Program, found in Section 376.3071(12), Florida Statutes, provides for reimbursement of the allowable costs of site rehabilitation contaminated as a result of a discharge related to the storage of petroleum or petroleum products from a storage tank, or its integral piping or dispensing system. The Reimbursement Program does not provide for reimbursement of cleanup costs for discharges related to the transportation or disposal of petroleum or petroleum products. The site at issue in this proceeding is a terminal facility used for the storage of petroleum and petroleum product located at 1500 Southeast 26th Street, Port Everglades, Florida. This facility is referred to as Gulf Facility No. 46888 and DER Facility No. 068732278 (Gulf Terminal). The subject terminal facility is one of fourteen petroleum storage terminals located at Port Everglades, Florida. Petroleum and petroleum products come to the terminal by ship and are pumped from the ship through permanent pipelines to the large aboveground storage tanks located at the facility. The petroleum and petroleum products are stored in these large tanks until it is time for the product to be distributed to the end user. The Gulf Terminal contains eighteen storage tanks whose total capacity is 650,000 barrels of petroleum or petroleum products. These tanks vary in size, with the smallest having a capacity of 10,000 barrels and the largest having a capacity of 80,000 barrels. One barrel equals 42 gallons. The primary activity of the terminals at Port Everglades is to store petroleum or petroleum products. None of the terminals at Port Everglades, including the Gulf Terminal, refines or produces petroleum or petroleum products. Operation of this facility began in 1946. Petitioner, as the successor to the Gulf Oil Corporation, owned and operated the facility until February 1, 1985, when it sold the facility to BP Oil, Inc. As the previous owner of the facility, Petitioner performed an environmental audit which revealed petroleum hydrocarbon contamination at the site. Petitioner is responsible for the cleanup and is entitled to reimbursement of the allowable costs of the cleanup if the site is eligible to participate in the reimbursement program. Any contamination of the soil and groundwater at the site was caused by discharges of petroleum or petroleum products, water contaminated with petroleum or petroleum product or sludges which consist predominately of petroleum or petroleum product constituents. Based on hydrogeological assessment information, Petitioner determined that response action, including ground water cleanup activities, was required at the site. Petitioner hired independent contractors to conduct the response action. In 1986, Petitioner designed a recovery system for petroleum and petroleum product and a ground water treatment system at the site. Through February, 1989, the recovery system had recovered over 12,000 gallons of petroleum or petroleum products, which constitutes the recovery of between 60%- 70% of the total amount in the ground. Through November 1989, Petitioner had expended in excess of $560,000 on its response action at the Gulf Terminal. Petitioner advised Respondent of its response action at the site by letter dated January 6, 1988. Petitioner submitted documentation to Respondent concerning hydrogeological assessment at the site which included field and laboratory work and investigation performed for the site from 1984 to the present. Pursuant to the requirements of SUPER Act, Petitioner notified Respondent of its intention to seek reimbursement for money spent conducting response action in accordance with Chapter 17-70, Florida Administrative Code, with regard to petroleum and petroleum product contamination at the site. Petitioner's notice to Respondent was timely and was procedurally correct. On July 13, 1989, Respondent issued its Order of Determination of Ineligibility concerning Petitioner's request for reimbursement. As stated in this order the initial basis for Respondent's denial of eligibility was: The determination is based on the fact that the contamination was not related to the storage of petroleum or petroleum products. Sources of contamination at this site include tanker trucks, an oil/water separator, a holding pond, and crude oil and tank-bottom sludge disposal pit. These items are not petroleum storage systems as defined in Section 376.301 F.S. therefore (sic), this site is not eligible for reimbursement under the SUPER Act. ... Respondent clarified its Order of Ineligibility by a Notice to Amend and Clarify dated November 14, 1989, which provides, in pertinent part, as follows: The notice of denial provides that the site is being denied due to the fact that the disclosed sources of contamination are not petroleum storage systems. One of the criteria for being a petroleum storage system is that it be used or intended to be used for storage of petroleum or petroleum product. It is the criteria that the Department contends is not met in this case; i.e., that the discharges were not intended for storage. Section 376.3071(4), Florida Statutes, specifically limits the use of the Environmental Protection Trust Fund to incidents of inland contamination related to storage of petroleum or petroleum product. * * * The Department recently became aware that prior to 1983, contaminated water was disposed of directly from tanks at the site with no pretreatment by an oil/water separator. As with the disposal of oil and sludge to a pit, the act of intentionally disposing of contaminants to the ground is not "related to storage" as required by Chapter 376, Florida Statutes. * * * Wherefore, The State of Florida Department of Environmental Regulation hereby requests that the Hearing Officer allow for the amendment of the notice of denial of eligibility to include the following basis for denial: Contamination at the site is related to the disposal of petroleum or petroleum product, or water contaminated with petroleum or petroleum products. Disposal activities including the intentional discharge and disposal of contaminated water and/or fuel from tanks, oil water separators and sump areas, the intentional discharge and disposal of contaminated water to a percolation pond, the intentional discharge and disposal of oil and sludge to a disposal pit, and the intentional discharge and disposal of fuel to the ground at the loading rack. Among the causes of contamination of the Gulf Terminal are accidental overfills of tanks and leaks from an integral pipeline. Absent any other source of contamination, the discharges that occurred at the Gulf Terminal due to these causes would be eligible for the reimbursement. Respondent has determined, however, that the following additional sources of contamination render the entire response action ineligible for reimbursement: Discharges of dissolved hydrocarbon molecules contained in water which accumulated in storage tanks; Discharges of petroleum or petroleum products at the loading rack at the terminal; and The discharge of crude oil and of crude oil tank bottoms. TANK OVERFILL During the operation of the Gulf Terminal, petroleum and petroleum products have been accidentally discharged onto the ground. In 1955, an unknown quantity of petroleum or petroleum products was accidentally discharged onto the ground in the areas of tanks 104 and 105 as a result of these tanks being over- filled. Following this massive spill, between 5,000 - 10,000 barrels of product was recovered, while an unknown quantity could not be recovered. PIPELINE LEAK Since 1955, approximately 15,000 additional barrels of petroleum or petroleum products were leaked from an underground pipeline that is integral to the storage system in an area between the loading rack and tank 101, extending toward the west to between tanks 110 and 102. This is the vicinity where the heaviest free floating petroleum contamination exists. DISCHARGE OF CONTAMINATED WATER Florida has adopted the standard code for the design of aboveground storage tanks prepared by the American Petroleum Institute (API-650). The tanks at the Gulf Terminal are in compliance with API-650. The accumulation of water in storage tanks is a problem associated with the storage of petroleum or petroleum products in the storage tanks at the Gulf Terminal and at the other terminals at Port Everglades. Water accumulates in the storage tanks from rainfall and from condensation. The records of the US Department of Commerce, National Oceanic and Atmospheric Administration for Station 08063163 (Fort Lauderdale, Florida) accurately depict the rainfall levels at the terminal facility. The total annual rainfall levels are as follows: 1980, 69.67 inches; 1981, 57.9 inches; 1982, 82.92 inches; 1983 75.16 inches; 1984, 59.4 inches; 1985, 63.74 inches; 1986, 64.14 inches, 1987, 58.50 inches; 1988 40.66 inches. Because water is heavier than petroleum and petroleum products, the water accumulates at the bottom of the tanks. It is essential to the proper storage of the petroleum or petroleum products that the water be removed for at least three reasons. First, if the water is not removed, the tanks would eventually become filled with water instead of product. Second, the product contaminated by water, particularly fuel for motor vehicles and aircraft, would not meet specifications. Third, water in the tanks speeds the corrosion of the tank. In order to remove this water that accumulates at the bottom of the storage tanks, a water draw-off mechanism located at the bottom of the tank is a design feature of API-650. When water accumulates in the bottom of the tank, the water is drained out through the water draw-off mechanism. The storage tanks located at the Gulf Terminal are equipped with such a water draw-off mechanism. Throughout the existence of the facility, accumulated water in the tanks has been controlled by discharging the water through the water draw-off mechanism. From 1948 to 1980, water was drained out of the tanks through the water draw-off mechanism and on to the ground. Beginning in 1980, the water was taken from the tanks through the water draw-off mechanism and piped to a catch basin where an effort was made to recover petroleum product by skimming the water before the water was discharged into the ground. Since 1985, the water taken from the tanks through the water draw-off mechanism has been treated by an oil/water separator which effectively removes all petroleum product before the water is discharged. The purpose of the oil/water separator is to separate petroleum product from water so that the petroleum product can be returned to the storage tank and the water can be discharged. This process serves to prevent the discharge of petroleum product. Up to 1988, the discharges to the ground from the oil/water separator at the Gulf Terminal accumulated in a holding pond. In 1988, the holding pond was eliminated and the water discharges from the oil/water separator were routed to a holding tank prior to treatment by an air stripper and subsequent discharge into the canal adjacent to the property. At all times since 1983, the water drawn out of the tanks has been the subject of permits issued by Respondent which approve the use of the oil/water separator. While it is necessary for the operation of the storage tanks that water be drawn from the tanks, it is not necessary for the operation of the storage tanks for the contaminated water to be discharged onto the ground. The purpose of discharging the water was to dispose of it. There was no intent to recover the contaminated water after it was discharged. Any water coming out of a storage tank is contaminated with dissolved petroleum. It may have solids in it and floating residue or product on it. Between 1946 and 1980, when this water from the storage tanks was discharged to the ground, any contaminates in the water would be discharged along with it. Water has been drained from tanks numbered 101, 106, 109, 110, 111, 112 113, and 114 on a daily basis. The other tanks are drained after a rainfall. An average of one or two inches of water was drained off each time it rained. Following a rainfall, in excess of 30 barrels of water would be drained from the smaller tanks, while approximately 300 barrels of water would be drained from the larger tanks. The discharge of the water drawn from the storage tanks contributed to the contamination of the groundwater at the Gulf Terminal. This type contamination exists in almost all areas of the site. Petitioner was unable to distinguish the contamination to the groundwater caused by the discharge of contaminated water drawn from the storage tanks from contamination to the groundwater which resulted from other causes. Petitioner failed to establish that the contribution to this contamination to the groundwater by the discharge of the contaminated water drawn from the storage tanks was insignificant. THE LOADING RACK The loading rack at the Gulf Terminal is the apparatus by which the petroleum in the storage tanks is dispensed to tanker truck for distribution to consumers. The loading rack is a series of dispensers which operate much like at a service station except that it fuels tanker trucks rather than automobiles. The loading rack is connected by permanent integral piping to the storage tanks. The purpose of the loading rack is to load the transport trucks. Without the storage tanks at the terminal, there would be no need for a loading rack. Over the years, discharges have occurred in the loading rack, usually as the result of human error. Occasional overfills in the 10-15 gallon range have occurred while a truck was being filled. This type discharge is analogous to a spill which occurs at a service station when an automobile is being fueled and the fuel splashes back or overfills the automobile's fuel tank. The supervisor of Respondent's Reimbursement Section testified that this type discharge, absent other causes, would probably be eligible for reimbursement. This testimony conflicts with the official position taken by Respondent in this proceeding that the cleanup caused by the operation of the loading rack is ineligible for reimbursement. In other incidents, small amounts of product ranging from a teacup to less than a gallon, were occasionally discharged while a truck was being drained of one type of product so that the truck could transport another type of product. The loading rack is an integral part of the storage system because without a means of moving the product out of storage and into the distribution system, the storage tanks could not provide a meaningful function. The discharges which occurred at the loading rack during the course of both loading and unloading trucks are insignificant when compared with the other sources of contamination at the site. TANK BOTTOMS In 1956, a storage tank was emptied for the purpose of switching product from crude oil to diesel fuel. At the time the change in product was made, approximately 1000 barrels of sludge and crude oil were disposed of in a pit adjacent to tank 101. Also disposed of was the tank bottom, a hard tar residue which formed at the bottom of the tank. Oil occasionally oozes to the surface in the vicinity of the pit adjacent to tank 101, but the area around the sludge pit has not been found to be contaminated, and the tank bottom has remained a hardened mass. Each tank on the site also had a pit alongside the tank where a tank bottom was disposed. Although it was necessary to remove the sludge and the tank bottoms to be able to properly operate the storage tanks, it was not necessary for the operation of the storage tanks to dump the sludge and the tank bottoms onto the ground or into the pits. The purpose of discharging the crude oil sludge and the tank bottoms was to dispose of them. There was no intent to recover the crude oil sludge or the tank bottoms water after they were discharged. CONTAMINATION PHASES The contamination at the site exists in three phases, floating petroleum product contamination, dissolved petroleum groundwater contamination, and sludge contamination. The contamination in the form of floating petroleum was caused by discharges of petroleum or petroleum products following the tank overfills, the pipeline leaks, and spills at the loading rack. The dissolved groundwater contamination was caused by two primary sources. First, the dissolved groundwater contamination was caused by floating petroleum product coming into contact with groundwater. Upon such contact, molecules from the floating petroleum would dissolve into the water, causing contamination. Second, the dissolved groundwater contamination was caused by the discharge of the contaminated water that had been drawn off from the storage tanks. Petitioner was unable to distinguish the dissolved groundwater contamination that was caused by accidental discharges of product from the contamination caused by the discharge of the contaminated water. Petitioner was also unable to establish that the dissolved groundwater contamination caused by the contaminated water was insignificant. The sludge contamination was caused by the discharge of crude oil and crude oil tank bottoms. CLEANUP The sludge contamination is capable of being cleaned up separately from the free floating petroleum contamination and the groundwater contamination at the site. The sludge contamination is separate and distinct from the other contamination at the site both as to the location of the contamination and as to the methods that would be employed to clean up that type of contamination. Free floating petroleum contamination is recovered by drawing down the water level in a well by use of a pump so that a cone of depression is created. The cone of depression is a funnel shaped depression that causes the surface of the underground water table to bend down towards the well in all directions. The free floating petroleum which flows on top of the underground water surface is then recovered by use of a second pump. The free floating petroleum is then pumped into a holding tank where the recovery of free floating petroleum is completed. The recovery of free floating petroleum contamination is usually more expensive to accomplish than groundwater cleanup because more equipment is required. Groundwater cleanup usually takes a longer period of time to accomplish than does free floating product cleanup. The same or a similar well used to recover the free floating petroleum can also be used for the cleanup of contaminated groundwater. The contaminated groundwater is pumped from the well into an oil/water separator where the water and dissolved petroleum is separated, water is taken off the bottom, put through an air stripper, and is returned to the ground through an infiltration unit. Respondent has previously found sites eligible for the reimbursement program even though those sites experienced discharges which alone would render a site ineligible for the reimbursement program. The basis for finding these sites eligible was that the ineligible discharges had become indistinguishable from the eligible discharges and were insignificant by comparison. Petitioner has complied with all procedural requirements for seeking eligibility contained in Section 376.3701, Florida Statutes. Respondent has not been denied access to the Gulf Terminal. Respondent has made no determination that there has been gross negligence in the maintenance of the petroleum storage system locate at the Gulf Terminal. Petitioner has not willfully concealed the existence of a serious discharge at the Gulf Terminal. Petitioner has not falsified any inventory records maintained with respect to the Gulf Terminal. Petitioner has not caused any intentional damage to the Gulf Terminal. The Gulf Terminal is not owned by the federal government. Petitioner's challenge to Respondent's order of ineligibility was filed in a timely manner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is Recommended that Respondent enter a final order which determines that the subject site is eligible to participate in the reimbursement program for the cleanup of the free floating petroleum contamination, but that the subject site is ineligible to participate in the reimbursement program for the cleanup of the sludge contamination and for the cleanup of the groundwater contamination. RECOMMENDED this 20th day of July, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1990. APPENDIX TO RECOMMENDED ORDER, CASE 89-4521 The following rulings are made on the proposed findings of fact submitted by Petitioner in its Supplemental Proposed Recommended Order. The proposed findings contained in paragraphs 1-16, 18-25, 27-30, 33, 36-42, 44, 47-50, and 53-54 of the Supplemental Proposed Recommended Order are adopted in material part by the Recommended Order. The proposed findings contained in paragraphs 17, 31-32, 46, and 51-52 of the Supplemental Proposed Recommended Order are rejected as being contrary to the findings made and to the conclusions reached. The proposed findings contained in paragraph 26 of the Supplemental Proposed Recommended Order are adopted in part and are rejected in part as being unnecessary to the conclusions reached. The proposed findings contained in paragraph 34 of the Supplemental Proposed Recommended Order are rejected as not being established by the greater weight of the evidence. The testimony cited by Petitioner in support of these proposed findings do not establish the proposed findings. The proposed findings conflict with the contents of the Report of Ground-Water Quality Assessment accepted into evidence as Respondent's Exhibit 1. The proposed findings contained in paragraphs 35 , 43, and 45 of the Supplemental Proposed Recommended Order are rejected to the extent the proposed findings conflict with the findings made and the conclusions reached. The following rulings are made on the proposed findings of fact contained in Respondent's Proposed Recommended Order and in Respondent's Supplemental Proposed Recommended Order. The proposed findings of fact in paragraphs 1-5, 7-19, 23, 25-31, 33-34, 39- 52, 55-68, and 70-72 of Respondent's Proposed Recommended Order are adopted in material part. The proposed findings of fact in paragraphs 6, 20-22, 24, 32, 35-38, and 69 of Respondent's Proposed Recommended Order are rejected as being subordinate to the findings made or to the conclusions reached. The proposed findings of fact in paragraphs 53 and 54 of Respondent's Proposed Recommended Order are rejected because the testimony referred to by Respondent in support of the proposed findings relates to amounts discharged following rainfalls, not amounts discharged daily. The proposed findings of fact in paragraphs 1-14 of Respondent's Supplemental Proposed Recommended Order are rejected as being subordinate to the findings made or to the conclusions reached. COPIES FURNISHED: E. Gray Early, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert W. Wells, Esquire Ignacio E. Sanchez, Esquire KELLEY, DRYE & WARREN 2400 Miami Center 201 South Biscayne Boulevard Miami, Florida 33131 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
The Issue Did Respondent violate Section 475.25(1)(b), Florida Statutes, through fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction?
Findings Of Fact Petitioner is responsible for the licensing and regulation of persons who practice real estate in Florida. Authority for the licensure and regulation is set forth in Chapters 20, 120, 455, and 475, Florida Statutes, and associated provisions of the Florida Administrative Code. Respondent has been licensed as a Florida real estate broker at all times relevant to the inquiry. Respondent holds license no. 0237202 as broker for Shad and Shad Realty, Inc., located at 9955 Lem Turner Road, Jacksonville, Florida 32208. At all times relevant to this case, Respondent served as a property manager for the Veteran's Administration in relation to property held by that governmental body. The property management function which Respondent performed for the Veteran's Administration was as a management broker. Property at 3128 Plum Street, Jacksonville, Florida, was one of the properties managed by Respondent for the Veteran's Administration. In the interest of selling the property Respondent invoiced the Veteran's Administration and charged a management fee for his services in relation to that parcel to be paid by the Veteran's Administration. Respondent's management involved the correction of problems with the home at that address. Among the fee services provided by Respondent was the arrangement to have the house treated to rid the premises of fleas, the installation of signs, installing a lock, and certain other repairs. In these circumstances, Petitioner would have other persons responsible for performing the work or would perform the work himself. A related responsibility which Respondent performed for the Veteran's Administration in reference to the Plum Street property was to order a wood-destroying organism inspection to be performed by a licensed firm, J. F. Yearty and Sons, Inc., of Jacksonville, Florida, and for that firm to report the results of its findings in writing. That inspection was performed on June 7, 1995, and a report was prepared. The report which Respondent was provided and read, pointed out visible evidence of wood-destroying organisms observed to the extent, "old signs of powder post beetles scattered throughout the substructure." The report referred to live wood-destroying organisms observed as subterranean termites in the wall studs, sills, and bracing of the right side of the home. The report also stated the following: Water rot to the siding and trim scattered around the entire house. Heavy subterranean termites damage to the wall studs, sills, and bracing on the right side. Water stains to the kitchen and bathroom subflooring. Water stains to the flooring on the porch left front corner of the house. Respondent sent the inspection report to the Veteran's Administration. Realizing that the report referred to active termites, Respondent ordered termite treatment for the home. In doing so he understood that there were problems with termites in the wall studs, sills, and bracing. In his experience Respondent further understood that the extent of the damage that had been found at the home could be major. Respondent obtained a termite bond following the treatment. Respondent knew that there was a contract pending for the purchase of the Plum Street property. The buyer was John Harold Bamping. Mr. Bamping was represented by Shirley Jean Irons as a real estate sales agent for Lester W. Jenkins Real Estate, Inc., Lester Jenkins Broker, whose business address is 5147 San Juan Avenue, Jacksonville, Florida 32210. In preparation for the closing on the Plum Street property, Ms. Irons went to Respondent's office, who was acting as the seller's representative for the Veteran's Administration in this context. Ms. Irons obtained a property receipt, the termite bond involving the treatment of the Plum Street property and the keys to the property. The bond constituted evidence that the property had been treated for termites but did not explain the degree of the problem for which treatment was necessary. At the time these items were picked up, Ms. Irons asked Respondent's wife for the termite inspection report related to the property. The wife told Ms. Irons that reports were not given out, only bonds. Ms. Irons told the wife that Ms. Irons needed the termite inspection report. The wife summoned Respondent from another part of the Respondent's office. Respondent then told Ms. Irons that he did not furnish the termite inspection report, properly referred to as wood-destroying organism inspection report. Respondent told Ms. Irons that the bond for termite treatment would be the only item provided to Ms. Irons in relation to the upcoming real estate closing. At hearing, Respondent indicated that his practice is not to provide a copy of the termite inspection report unless it is specifically asked for and then that Respondent does not always give the report to the party requesting the report "because that's VA property. That belongs to the VA." The VA refers to Veteran's Administration. Ms. Irons made John Bamping and Audrey Bamping his wife aware of the fact that Respondent was not providing a copy of the wood-destroying organism inspection report for purposes of the closing. This meant that the only evidence of the circumstances associated with the termite problem remained the termite bond. On July 11, 1995, the transaction closed for purchase of the Plum Street property, utilizing forms prepared by the Veteran's Administration. Ms. Irons and the Bampings attended the closing. Subsequent to the closing the Bampings became aware of the wood-destroying organism damage at the Plum Street house. The problems discovered were not evident when Ms. Bamping first saw the home before it was purchased. After the Bampings discovered the extent of the problem, they obtained a copy of the wood-destroying inspection report from Yearty and Sons which reflected the exact nature of the problems with the dwelling. Attempts were made to try and resolve the issue concerning the damage to the home. Eventually, the Bampings found it necessary to hire an attorney to assist them in addressing the damage to the home caused by the wood-destroying organisms. A suit was filed against the Veteran's Administration and damages were recovered in the amount of $2,000, and the Veteran's Administration was released in full from all claims for the wood-destroying organism damage. The Bampings also authorized their lawyer to file a complaint with Petitioner concerning Respondent's failure to disclose the wood-destroying organism inspection report.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 475.25(1)(b), Florida Statutes, and imposing a 30-day suspension and a fine of $1,000. DONE AND ENTERED this 9th day of April, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 9th day of April, 1999. COPIES FURNISHED: Laura McCarthy, Esquire Division of Real Estate Department of Business and Professional Regulation Suite N308 400 West Robinson Street Orlando, Florida 32801-1772 Vernon B. Shad Shad and Shad Realty, Inc. Post Office Box 9750 Jacksonville, Florida 32208 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent Charles T. Noegel operates Seminole-Gator Exterminator, Tallahassee, Florida. Inspection reports made by Respondent with respect to the residences of the four owners named in the Administrative Complaint show that he held business license number 519 and ID Card No. 7750, issued by the Petitioner, at the time of the four inspections. (Petitioner's Exhibits 1-3, 5-8). On August 13, 1981, Respondent inspected the property of Gene Gandy, 2504 Hartsfield, Tallahassee, Florida, and issued a "wood-destroying organism inspection report," HRS Form 1145. He also entered into a termite control contract and warranty guarantee with Mr. Gandy on the same date, which included protection against powder-post beetles. Respondent's inspection report apparently was made in connection with the sale of the house to Mr. Gandy. Respondent's report reflected that active infestation and visible damage by powder-post bettles had been observed under the house. Gandy then authorized Respondent to treat the house for the control of powder-post beetles, and Respondent proceeded to provide such treatment. (Testimony of Respondent, Petitioner's Exhibit 6). On September 10, 1981, Mr. Gandy filed a written request with Petitioner's Office of Entomology to inspect his property because he had found evidence of powder-post beetle damage inside the house and in the garage. Pursuant to the request, William E. Page, entomologist-inspector for Petitioner, inspected the Gandy property on September 18, 1981, and rendered a report of his investigation on October 12, 1981. He found that there was active powder-post beetle infestation in the wall studs of a bedroom and in the walls of the garage, old beetle and termite damage under the house, and in the wall studs of another bedroom, and water and fungus damage in kitchen and bathroom walls. Respondent conceded at the hearing that he had re-treated the house for powder-post beetles after being informed of Page's inspection and had had no further complaints from Mr. Gandy since that time. (Testimony of Page, Respondent, Petitioner's Exhibit 6) Prior to purchasing a home at 1937 Sageway Drive, Tallahassee, Florida, Dennis G. Fagen observed some "wrinkled" wood on the wall of the spa room. He requested the real estate salesman to arrange for a termite inspection. Respondent performed an inspection of the property on June 24, 1982, and rendered a negative report as to the presence of wood destroying organisms. The inspection occurred on the date that the Fagens closed the transaction for the purchase of the property. Mrs. Fagen accompanied Respondent during part of his "walk through" of the premises. During the course of his inspection, Respondent noted that the wood in the spa room was suspicious, and, in fact, poked his finger through the pine wood on the wall. Although the evidence is conflicting as to whether Mrs. Fagen was present in the room at that time, it is apparent that both the Fagens and Respondents were aware of the potential problem prior to the completed purchase of the home. The Fagens were of the opinion that it probably consisted of wood rot, and relied on Respondent's negative report as to the presence of wood destroying organisms. About a year later, after the suspicious area had increased in size, Mr. Fagen pulled a board off the wall and discovered that there was active termite infestation. Mr. Fagen contacted Respondent concerning the problem, but he declined to take any remedial action because the Fagens had been aware of the potential damage and Respondent had pointed out the area to the real estate salesman at the time of his inspection. Respondent is of the belief that he was not required to reflect the damaged area on his inspection report because it was damage that had occurred prior to his inspection which he was not required to report on the inspection form, and which would have necessitated removing finished wood to make a determination of the presence of wood-destroying organisms beyond the scope of his inspection, as provided for on HRS form 1145. Mr. Fagen thereafter filed a complaint with Petitioner's Entomology Office and requested a state inspection. William E. Page, the State Entomologist-Inspector investigated the complaint on July 8, 1983, and filed a report reflecting his findings that active infestation of subterranean termites and wood rot were present in the walls and ceiling of the spa room. This finding was confirmed by his observation of termite tubes on the exterior wall of the room, and it was his opinion that termites had been active for several years in that location. Mr. Page's findings were confirmed by a further inspection made on July 14, 1983, by another local pest control firm. Mr. Page was of the opinion that there was obvious damage in the room which should have been listed by Respondent on his inspection report. This opinion is deemed credible. By letter of September 1, 1983, Respondent wrote the Fagens and reiterated his belief that he was not responsible in any respect with regard to the termite damage. (Testimony of D. Fagen, B. Fagen, Page, Respondent, Petitioner's Exhibits 3-4, 7, Respondent's Exhibit 1) On April 12, 1982, Respondent performed a wood destroying organism inspection at 1409 Pichard Drive, Tallahassee, Florida, prior to its purchase by John E. Ellis. His inspection report was rendered on the same date on HRS Form 1145 and was negative as to the presence of any damage or infestation. Mr. Ellis was particularly concerned about this aspect of the house since he had previously cancelled a contract in another state for the purchase of a home when an inspection revealed the presence of termites. Consequently, he had insisted on a clause in his present sales contract which permitted him to void the same if a termite problem existed. Mr. Ellis closed the house purchase in May 1982, lived there a month, and after a trip to North Carolina, came back to the dwelling on July 4. At this time, he found that he had a flea problem in the house and accordingly, called a local pest control firm, Florida Pest Control, to spray for fleas and treat the property for termite control. That firm performed the treatment on July 6 and apparently did not find any problems. On July 7, Mr. Ellis observed what looked to be dry rot at the base of four wooden posts on his front deck. It also appeared that Florida Pest Control had dug around each post slightly to treat the ground. Mr. Ellis then traveled again to North Carolina and returned on September 30. Two days later he examined the posts again and noticed that a piece of wood on one corner of a deck post had fallen off. He called the Florida Pest Control who found that the deck posts were damaged as high as four inches above the deck. Mr. Ellis, one of that firm's representatives, told him that although one post showed termite damage, the treatment in July must have killed the termites since there was none existing at that time. He also indicated that the damage to the other posts was either water damage or dry rot. Mr. Ellis contacted Respondent concerning the problem, but he declined to do anything about it because he considered that the damage was not visible or accessible, and therefore outside the scope of his inspection as provided on HRS Form 1145. Mr. Ellis thereupon filed a written complaint with Petitioner's Office of Entomology and requested a state inspection. William E. Page, the State Entomologist Inspector, investigated the complaint on October 15, 1982, and his report of inspection indicated that there was evidence of termite damage in one post of the front deck and rot damage at the base of all the posts. In the opinion of Mr. Page, a normal inspection should have found signs of termite damage to the posts underground and that the damage had been progressing for at least a period of one year. He was further of the opinion that it would have been necessary to remove the dirt from the first two or three inches below the ground surface in order to find the damage and that such an area would be "accessible." He found damage to the posts at least eight inches above the ground, although he acknowledged that part of the damage could have been done after Respondent had made his inspection. Mr. Ellis later sued Respondent in civil court and recovered a judgment which was subsequently satisfied. Repair damages to the posts were approximately $585. (Testimony of Ellis, Page, Respondent, Petitioner's Exhibit 5, 8) Respondent conducted a wood-destroying organism inspection of the property located at 711 Piedmont Drive, Tallahassee, Florida, on May 5, 1983 incident to the subsequent purchase of the property by Mr. David Jones on June 1, 1983. Respondent's inspection report on HRS Form 1145 was negative in all respects except that it was noted that the property showed evidence of previous treatment. Mr. Jones talked to Respondent prior to closing of the transaction and Respondent assured him that everything was all right with the property. While moving into the home on June 1, 1983, Mr. Jones observed an area of wrinkled paint above a window in the family room. When he touched the area, his finger went through the wood. He proceeded to call another pest control firm, Florida Pest Control, to inspect the house. Their inspection indicated that there was evidence of termites by the presence of termite tubes on the wall of the utility room. They also found that there was wood rot damage to the subfloor under a bathroom. Mr. Jones got in touch with Respondent who again examined the property and agreed to repair the damage in the family room, but was unwilling to do anything about the other problems. Jones filed a complaint with Petitioner's Office of Entomology on June 10, 1983, and requested that a state inspection of the premises be performed. Entomologist-Inspector William E. Page conducted an investigation on July 1, 1983, and found that, although there was no active infestation, old termite tubes were present in the utility room and subterranean termite damage and wood rot were located in a beam about the window, and in the window frame in the family room and the wall of the utility room, and that rot damage existed in the sub-flooring of a bathroom. Mr. Page was of the opinion that a light tap on the wall would have revealed the damage in the family room, and that the termite tubes in the utility room were obvious. He was of the further opinion that a thorough inspection would have found most of the damage that he noted. Respondent testified that he did not believe that HRS Form 1145 provided for the entry of information concerning inactive infestation. He acknowledged that he had not noticed the damaged area above the window of the family room because it had been painted over. (Testimony of Jones, Page, Respondent, Petitioner's Exhibit 1-2) HRS Form 1145 limits the scope of a licensee's inspection of property to the "visible and accessible areas of the structure." It does not include areas concealed by wall coverings, or any portion of the structure in which inspection would necessitate removing or defacing finished wood. The form provides for the entry of findings concerning the observation of "active infestation," "other evidence of infestation," and "visible damage," together with locations of such observations, and the organisms observed or which caused the damage. It also provides for findings as to whether the property shows evidence of previous treatment. By requiring that a finding be entered as to "active infestation" and the organism observed, it is intended that the term "other evidence of infestation" refers to situations where organisms are not observed, but there is some other kind of evidence of either active or inactive infestation, such as the presence of termite tubes. It is intended that the term "visible damage" is also applicable to damage caused by active or inactive infestation. The terms used in the form are commonly understood by the industry to have the meaning indicated above which is the agency interpretation. In all instances, suspicious areas which might indicate infestation should be noted on the form as "visible damage," even though the licensee is unable to determine exactly what has caused the problem without removing or defacing finished wood. In such cases, "tapping" of the wood may produce a hollow sound which should be listed as possible hidden damage. Powder-post beetles can be detected by the observation of holes with powder falling out. If wood is damaged, it is possible to trace it to termite infestation with a probe. It is therefore expected that a thorough inspection will reveal signs of past or present infestation. HRS Form 1143 was revised in May 1983 at the request of the industry, but the changes were not substantiated, nor did they essentially change the required findings. The form is utilized in the sale of property and is designed to protect the purchaser. It is therefore important that the inspection be accurate and thorough in all instances since the public relies on the expertise of qualified licensees as to wood-destroying organisms. (Testimony of Page, Bond, Respondent's Exhibit 2)
Recommendation That a final order be entered which suspends the pest control business license, pest control operator's certificate, and pest control employee identification card of Respondent Charles T. Noegel for a period of three months, and that he be placed on probation thereafter for a period of one year for violation of Section 482.161(1)(f), Florida Statutes. DONE AND EXTENDED this 25th day of January, 1984, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1984. COPIES FURNISHED: John Pearce, Esquire Department of HRS District II Legal Counsel 2639 North Monroe Street Tallahassee, Florida 32303 Charles T. Noegel Seminole Gator Exterminator 1409 Pichard Drive Tallahassee, Florida 32308 David Pingree, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the charges, respondents have been licensed real estate salesmen and brokers. Respondent Ed Wasdin holds real estate salesman's license number 0341534. Respondent Betty L. Green 2/ held real estate salesman's license number 0341467 at the time of the alleged misconduct. She now is a licensed broker. Respondent Ester L. Turner holds broker's license number 0090375. At the time of the alleged misconduct, she was the qualifying broker for Ed Wasdin Realty, Inc., a registered corporate real estate broker. (Pretrial Stipulation; Testimony of Vann.) During the time in question, Mr. Wasdin also owned and operated Ed Wasdin and Son, Inc., a licensed construction company, where Ms. Green served as his full-time secretary and office manager. She worked as a real estate salesman for Ed Wasdin Realty, Inc., on a part-time basis. (Testimony of Vann; Pretrial Stipulation.) II. On November 11, 1980, Hank V. Mannheimer and his wife, Barbara, saw an Ed Wasdin Realty, Inc., "For Sale" sign in front of a house located at 721 West Crossway Road, Tallahassee, Florida. They called the telephone number listed on the "For Sale" sign and made an appointment for respondent Wasdin to show them the house. (Testimony of H. Mannheimer, B. Mannheimer.) Later that day, Mr. Wasdin took the Mannheimers on a tour of the house. They then returned to Mr. Wasdin's office where respondent Green, as his secretary, prepared a standard real estate contract on a form published by the Florida Association of Realtors. The Mannheimers signed the contract as purchasers, and Ed Wasdin signed on behalf of Ed Wasdin and Son, Inc., the seller. The Mannheimers also delivered a $1,000 earnest money deposit check made payable to the seller, Ed Wasdin and Son, Inc. (Testimony of H. Mannheimer, B. Mannheimer; P-10, R-5.) III. The real estate sales contract contained a "Termite Clause" granting the buyers the right to have the property inspected "to determine whether there is any active termite or wood destroying organisms in any improvement on said property, or any damage from prior termite or wood destroying organism to said improvements". (P-10.) During the morning of January 15, 1981, respondent Green, on behalf of the seller, Ed Wasdin and Son, Inc., telephoned Helms Exterminating, Inc., and ordered a termite inspection of the house. David Baker, a termite inspection, was sent to the house to conduct the inspection that same morning. (Testimony of Vann, Baker.) On inspecting the house, Mr. Baker found termite infestation and termite damage to the left front corner of the house. He then telephoned Ms. Green and told her that he had seen evidence of termites. He did not, however, tell her of any termite damage. She told him that she needed a "clear" termite report by that afternoon (since closing was scheduled for that afternoon or the next day) and authorized him to treat the house for termites. She did not speak to respondent Wasdin before authorizing the treatment. (Testimony of Vann.) Mr. Baker testified that he told Ms. Green of termite damage to the house and that she promised to repair the damage in order to get him to issue a "clear" termite report that day. Ms. Green denied that Mr. Baker told of the damage and denied that she promised to make repairs. The testimony of Ms. Green is more credible and worthy of belief than that of Mr. Baker, whose previous statements about this incident have been incomplete, 3/ untrue or contradictory. In his termite inspection report of January 15, 1981, Mr. Baker indicated that no active termite infestation or visible termite damage was observed--the first statement was, at best, incomplete, the second was false. After discovering the termite damage, Mrs. Mannheimer questioned him twice. The first time, he told her that he had only found ter-mites on January 15, 1981, and mentioned nothing of termite damage. Later, when questioned again, he stated that he had also found termite damage. Further, Ms. Green was not authorized to promise structural repairs to a residence, and it is unlikely that she would have made such a promise when she did not know the extent of the damage and had no way of knowing the cost of repair. The conflict in testimony is therefore resolved in Ms. Green's favor. (Testimony of Vann, Baker.) On January 15, 1981 after treating the residence for termites, Mr. Baker issued a termite inspection report indicating that he had observed no active termite infestation or visible damage. The report, on its face, indicated that it was to be mailed to Ed Wasdin Realty at 4432 Kensington Road, Tallahassee, Florida. The Mannheimers did not see the report until after the closing. (Testimony of Baker, Green; P-7.) IV. In negotiating for and purchasing the house from Ed Wasdin and Son, Inc., the Mannheimers believed, and had reasonable grounds to believe, that they were dealing with realtors associated with Ed Wasdin Realty, Inc. The house was advertised by an Ed Wasdin Realty, Inc., "For Sale" sign; they called the number listed on the sign, and Mr. Wasdin showed them the property; a contract identified with the Florida Association of Realtors was executed which contained an Employment of [Real Estate] Agent clause; 4/ both Ms. Green and Mr. Wasdin worked for both companies; and the offices of the Wasdin realty and construction companies were located in the same model home. Although the offices in the model home were separately marked as construction or realty company offices, the conference room (where the closing took place) was not marked as belonging to either. In actuality, the sale of the residence was not a transaction on the account of Ed Wasdin Realty, Inc. The house was not listed with the realty company; a commission was not promised or paid to the realty company; and the deposit was not placed in the realty company escrow account. (Testimony of Vann, H. Mannheimer, B. Mannheimer.) No evidence was presented to show that respondent Wasdin knew, or should have known, that the house in question had a termite infestation or termite damage. There is not a sufficient factual basis to impute such knowledge to him. Neither was any evidence presented to show that respondent Turner, qualifying broker for Ed Wasdin Realty, Inc., knew, or should have known, about the real estate transaction in question, including the termite infestation and damage. The evidence is insufficient to support a factual inference that Ms. Turner was negligent or derelict in her duty to supervise the realty company's operations. Although, in this case, a realty company's sign was used to advertise a property which was not listed with the company, the evidence does not show that this had ever happened before, that this was anything but an isolated mistake. The evidence is insufficient to support a finding that either Mr. Wasdin or Ms. Green saw the termite inspection report prior to closing, or affirmatively represented to the Mannheimers that no termites had been discovered during the January 15, 1981, termite inspection. 5/
Recommendation Based on the foregoing, it is RECOMMENDED: That the administrative complaint against the respondents be dismissed. DONE and RECOMMENDED this 15th day of October, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1982.
The Issue There are three legal issues which remain for determination: (1) Whether Florida Petroleum has standing in this case; (2) Whether proposed rule 62-770.220(3)(b), requiring constructive notice to residents or business tenants of real property into which the temporary point of compliance is allowed to extend is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(c), Florida Statutes; and (3) Whether proposed rule 62-770.220(4), requiring additional constructive notice of the status of site rehabilitation is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(c), Florida Statutes.i
Findings Of Fact On December 23, 2004, the Department published a Notice of Proposed Rulemaking regarding amendments to Florida Administrative Code Chapter 62-770. In particular, proposed rule 62-770.220(3)(b) and (4), provides: Subsequent Notice of Contamination Beyond Source Property Boundaries for Establishment of a Temporary Point of Compliance (TPOC) - Prior to the Department authorizing a temporary extension of the point of compliance beyond the boundary of the source property (i.e., the location from which the contamination originates) in conjunction with Natural Attenuation Monitoring pursuant to Rule 62-770.690, F.A.C., or Active Remediation pursuant to Rule 62-770.700, F.A.C., the PRSP shall provide the following notices: * * * (b) Constructive notice to residents [if different from the real property owner(s) notified pursuant to paragraph 62- 770.220(3)(a), F.A.C.] and business tenants of any real property into which the point of compliance is allowed to extend. Such constructive notice, which shall include the same information as required in the actual notice, shall be provided by complying with the following: * * * Status Update 5-Year Notice - When utilizing a TPOC beyond the boundary of the source property to facilitate natural attenuation monitoring or active remediation, an additional notice concerning the status of the site rehabilitation shall be similarly provided every five years to [the classes of] those persons who received notice pursuant to subsection 62-770.220(3), F.A.C., unless in the intervening time, such persons have been informed that the contamination no longer affects the property into which the point of compliance was allowed to extend. * * * (The language in brackets was added pursuant to the Department's Notice of Change and "those" was deleted.) The proposed rule implements Section 376.3071, Florida Statutes. The specific authority for the proposed rule is Sections 376.303 and 376.3071, Florida Statutes. On February 2, 2005, the Environmental Regulation Commission held a public hearing on the proposed rules and approved the proposed rules with certain amendments. On February 14, 2005, Florida Petroleum filed a Petition for Determination of Invalidity of Proposed Rule (Petition) challenging the validity of proposed amendments to proposed rule 62-770.220(3)(b) and (4). The Petition was filed pursuant to Section 120.56(1) and (2), Florida Statutes, and in each instance, Florida Petroleum alleges that the proposed rule violates Section 120.52(8)(c), Florida Statutes. On March 4, 2005, the Department published a Notice of Change regarding the above-referenced Notice of Proposed Rulemaking. With respect to the pending proceeding, the Notice of Change reflects revisions to language of proposed rule 62- 770.220(4), which are not subject to challenge. See Finding of Fact 1. On May 16, 2005, without objection, official recognition was taken of the Department's Notice of Proposed Rulemaking and Notice of Change. Florida Petroleum is a Florida voluntary, non-profit trade association, which comprise, in part, approximately 194 Marketer Members who own and/or operate petroleum storage system facilities in Florida. Florida Petroleum’s purposes include providing representation on behalf of its members in legislative and regulatory matters before the Florida legislature and agencies. Florida Petroleum routinely represents its members in rule development proceeding and other regulatory matters before the Department of Environmental Protection, Department of Revenue, and Department of Agriculture and Consumer Services. Florida Petroleum’s By-Laws state that its purposes include advancing the business concerns of its members, pooling the energy and resources of its members, and communicating with elected officials at the national, state, and local levels of government. Towards those ends, Florida Petroleum has represented it members before the Florida Legislature in matters relating to the regulation of petroleum facilities under Chapter 376, Florida Statutes, and has appeared before the Department in rulemaking proceedings involving the regulation of petroleum cleanups, and the various state restoration funding assistance programs. The subject matter of the rule at issue is within the general scope of interest and activity of Florida Petroleum, in particular, its marketer members, who own or operate facilities that store petroleum products for consumption, use, or sale. Florida Petroleum submitted oral and written comments, recommendations, objections, and proposed amendments to the Department and the Environmental Regulation Commission in connection with the rules at issue in this case. A substantial number of Florida Petroleum marketer members are "persons responsible" for assessment and remediation of one or more petroleum-contaminated sites. Florida Administrative Code Chapter 62-770, governs the remediation of petroleum-contaminated sites. A substantial number of Florida Petroleum’s marketer members are "persons responsible" for assessment and remediation of sites identified by the Department as "confirmed" or "suspected" sources of contamination beyond the boundary of the facility (i.e., "off-site contamination"). In certain instances, the Department's rules allow for the use of No Further Action with Conditions procedures in cases of petroleum contamination where applicable regulatory requirements are met because the use of conditions, such as institutional and engineering controls, may be more cost- effective than active remediation. As of February 2005, the Department estimated that it had reports of approximately 23,000 petroleum-contaminated sites. In 2004, the Department received an estimated 539 Discharge Report Forms in connection with petroleum storage facilities. As of March 2005, the Department had information indicating that approximately 2,000 "off-site" properties have been affected by contamination. Assessment Reports filed with the Department indicate that a substantial number of these sites may have been affected by discharges of petroleum or petroleum products. Petroleum discharges will in all likelihood continue to occur in the future at petroleum facilities. Petroleum discharges will in all likelihood continue to affect off-site properties in the future.
