The Issue Whether the Respondent violated Florida law regulating the manner in which pesticide chemicals are to be utilized and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the duty to prosecute administrative complaints against operators, applicators, and licensed pest control businesses pursuant to Section 482.011, et seq., Florida Statutes. Respondent is at all relevant times a licensed operator and applicator, subject to Petitioner's regulatory jurisdiction. On or about February 21, 2004, Respondent was performing preconstruction termite treatment services at a job site at 7750 Okeechobee Boulevard in West Palm Beach, Florida, utilizing a pesticide known as Dursban TC. Label instructions for Dursban TC provide that a 0.5 percent concentration be utilized for preconstruction treatment for the prevention of subterranean termites. Baker admits he did not follow the label instruction; rather, the concentration of pesticide was less than one tenth of the 0.5 percent concentration provided for on the label instructions as regards the pre-construction soil treatment for subterranean termites. Florida Administrative Code Rule 5E-14.106(6) states in pertinent part: Pesticides used for treatment for the prevention of subterranean termites for new construction shall be applied at the specific amounts, concentration, and treatment areas designated by the label. Baker defends his failure to follow the label instructions on the grounds that such instructions call for a higher concentration of pesticide than is actually necessary to accomplish an effective termite treatment. Even if, as Baker contends, the label instructions suggest a higher concentration of pesticide than is actually necessary to accomplish an effective termite treatment, that is not grounds for him, or Petitioner, to disregard the Rule mandating that label instructions be followed. Pesticide usage is highly regulated due to the potential of such chemicals to impact public health, safety and welfare. § 482.011, et seq., Fla. Stat. Changes in the regulations must come from the legislature, and cannot be made on an ad hoc basis by individual operators.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered assessing a fine of $400.00 against Respondent for violation of Florida Administrative Code Rule 5E-14.106 (6). DONE AND ENTERED this 5th day of August, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 5th day of August, 2005. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman 7695 Southwest 104th Street Suite 210 Miami, Florida 33156 David W. Young, Esquire Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Brenda D Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue The issue for determination is whether Industrial Equipment and Supply, DEP Facility No. 139502056 is eligible for state- administered cleanup under the Drycleaning Solvent Cleanup Program pursuant to Section 376.3078, Florida Statutes.
Findings Of Fact Metropolitan Dade County (Petitioner) is a political subdivision of the State of Florida. Pursuant to Chapter 24, Metropolitan Dade County Code, Petitioner regulates, among other things, the use, storage, and disposal of industrial wastes and hazardous substances in Dade County. Industrial Equipment and Supply, DEP Facility No. 139502056 (Respondent Industrial) is a Florida corporation and the owner of commercial real property located at 2035-2055 Northwest 7th Avenue, Miami, Florida. At this facility site, Respondent Industrial conducts business as a wholesale supplier of drycleaning supplies. The Department of Environmental Protection (Respondent DEP) is an agency of the State of Florida. Pursuant to Chapters 20, 376, and 403, Florida Statutes, Respondent DEP, among other things, regulates and is charged with the protection of the State's surface waters, groundwater, and other natural resources. On June 29, 1993, Petitioner's Department of Environmental Resource Management (DERM) issued Respondent Industrial a Notice of Violation and Order of Corrective Action (NOV). The NOV provided that evidence of "industrial waste discharges to the ground and groundwater" and that samples collected from Respondent Industrial's monitoring well revealed levels of tetrachloroethylene, also referred to as perchloroethylene (PERC), in violation of Chapter 24, Metropolitan Dade County Environmental Protection Ordinance.2 On or about September 20, 1993, in response to the NOV, Respondent Industrial's environmental consultant, Wingerter Environmental, prepared and submitted to DERM a Contamination Assessment Plan (CAP). On November 30, 1993, the CAP was approved by DERM, and subsequently modified on January 29, 1994. The CAP provided for the installation and sampling of five monitoring wells and four soil borings, and the surveying of relevant groundwater elevations. Analytical results from the soil and groundwater sampling identified elevated levels of PERC. Based on the analytical results, in May 1994, DERM and Respondent's new environmental consultant, AB2MT, discussed the need for expanding contamination assessment activities, including the installation and sampling of additional soil borings, shallow wells and a deep well. AB2MT completed the additional installation and sampling. Analytical results from the expanded assessment identified elevated levels of PERC, vinyl chloride and trichlorethylene. In May 1994, House Bill No. 2817, the Drycleaning Solvent Contamination Cleanup Act (Drycleaning Act), passed the Florida Legislature and was submitted to the Governor for signature. The Drycleaning Act became law, Chapter 94-355, Laws of Florida, effective July 1, 1994.3 On May 8, 1994, after passage of but prior to the Drycleaning Act becoming law, Respondent DEP announced that it was suspending all enforcement actions against drycleaning and wholesale supply facilities based on the Florida Legislature's passage of the Drycleaning Act. On May 16, 1994, Respondent Industrial's expanded contamination assessment report prepared by AB2MT was verbally approved by DERM. On January 24, 1995, DERM forwarded a Final Notice Prior to Court Action (Final Notice) to Respondent Industrial. The Final Notice stated that Respondent Industrial was not in compliance with the NOV, requested that Respondent Industrial enter into an administrative consent agreement within thirty days, and indicated that the case would be turned over to the County Attorney's Office if the referenced violations were not corrected.4 On August 30, 1995, a guidance document, regarding applications under the Drycleaning Act, was issued by Respondent DEP. The guidance document stated that Respondent DEP would begin accepting applications to the state-administered program created by the Drycleaning Act upon adoption by Respondent DEP of a rule to implement the program. In a meeting on January 25, 1996, DERM informed Respondent Industrial that it had a continuing obligation to cleanup and that it possibly could be found grossly negligent for failing to conduct a cleanup. On March 13, 1996, Respondent DEP adopted the Drycleaning Solvent Cleanup Program Rules (Rules), Chapter 62- 781, Florida Administrative Code. The Rules specified eligibility requirements for applications submitted under the Drycleaning Act. On April 21, 1996, Respondent Industrial made application to Respondent DEP for acceptance into the Drycleaning Solvent Cleanup Program. On September 16, 1996, Respondent Industrial was accepted by Respondent DEP into the Drycleaning Solvent Cleanup Program, pursuant to Chapter 62-781, Florida Administrative Code. By Petition for Formal Administrative Hearing served October 4, 1996, Petitioner appealed Respondent DEP's acceptance of Respondent Industrial into the Drycleaning Solvent Cleanup Program. According to Petitioner, Respondent Industrial's willful failure to assess and remediate contamination at the site of the wholesale supply facility constitutes gross negligence, thereby precluding its eligibility in the Drycleaning Solvent Cleanup Program.
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 Industrial Equipment and Supply, DEP Facility No. 139502056 eligible to participate in the Drycleaning Solvent Cleanup Program. DONE AND ENTERED this 5th day of May, 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 5th day of May, 1998.
The Issue The issue is whether Respondent, TD Del Rio, LLC, should pay for investigative costs and expenses and undertake corrective actions that are demanded by the Department of Environmental Protection (Department), as set forth in the Amended Notice of Violation and Orders for Corrective Action (Amended NOV).
Findings Of Fact Background The Department has the authority to institute an administrative action to abate or correct conditions that may create harm to the environment. In this case, it filed an Amended NOV directing the existing and prior owner of certain property to undertake cleanup and cost recovery to redress the discharge of petroleum products and disposal of hazardous waste. The property is located at 4810 South 50th Street, Tampa, Florida, measures approximately 200 by 800 feet, and is further identified as Parcel Number U-03-30-19-1Q3-000112-00001.0. The property is located in an industrial area. Mr. Dearing operated a metal recycling facility on the property during the 1990s. The facility received scrap waste and passed waste through mechanical shears that shredded the waste for sorting and recycling. The Amended NOV alleges that all contamination on the property occurred while Mr. Dearing owned the property. The charges related to his activities have been resolved in a settlement agreement prior to the final hearing in this matter. The terms of the settlement are not of record. TD Del Rio, LLC, is a limited liability company formed in April 2012. It serves as a pension fund for a self-directed Individual Retirement Account for Mr. McRae. The company acquired ownership of the subject property in September 2012 by purchasing a tax deed from Hillsborough County. Respondent agrees that there has been a "discharge," as defined under section 376.301(13), Florida Statutes, of hazardous substances and pollutants (petroleum or petroleum products) on the property prior to September 1, 2012. Such discharges have not been assessed, remediated, or abated. Respondent agrees there has been a "disposal," as defined under section 403.703(9), of hazardous waste into and upon the property prior to September 1, 2012. Respondent agrees that the property is a "facility," as defined under section 376.301(19). Respondent agrees that the property is a "hazardous waste facility," as defined under section 403.703(15). Environmental Testing Pursuant to a contract with the Department, on April 24 through 26, 2012, Ecology & Environmental, Inc. (E & E), performed a detailed inspection of the property to determine if former recycling activities conducted at the property have impacted soil and groundwater beneath the property. The inspection collected samples of soil, sediment, and groundwater. The inspection was conducted in accordance with guidance documents set forth by the United States Environmental Protection Agency regarding sampling locations, sample types, sampling procedures, use of data, data types, and field quality assurance/ quality control samples. Just before E & E issued a final report, Respondent purchased the property at a Hillsborough County tax deed sale. On November 12, 2012, E & E issued a 532-page Comprehensive Environmental Response, Compensation, and Liability Information System Site Inspection Report (Report) detailing analytical results of soil, sediment, and groundwater sampling performed at the property. See Jt. Ex. 1. E & E concluded that the activities conducted prior to April 2012 impacted the soil, sediment, and groundwater at the property. The Department has adopted Soil Cleanup Target Levels (SCTLs), which are derived based on exposure to the human body. The SCTLs account for inhalation, ingestion, and absorption of contamination into people's bodies. The presence of hazardous substances above these levels presents a threat to persons who come into contact with the substances. If a site has no polychlorinated biphenyls (PCBs) or arsenic exceeding the SCTLs, there is no requirement for the owner to complete an assessment or manage exposure at the site. The testing reveals that the following substances are present in the property's soil from both zero to two feet and two to four feet below land surface at concentrations above the Department's SCTLs: arsenic, barium, cadmium, chromium, lead, carbazole, benzo(a)antracene, benzo(a)pyrene, benzo(a)pyrene toxic equivalents, and PCBs. The commercial/industrial SCTL for PCBs is 2,600 ug/kg. This target level is based upon human exposure to PCB contaminants eight hours per day. The residential SCTL, based on 24 hours of exposure per day, is 500 ug/kg. PCBs are found across the majority of the site at concentrations ranging from 940 ug/kg to 38,000 ug/kg, over times higher than the industrial SCTL and 76 times higher than the residential SCTL for soil of 500 ug/kg. The hazardous substances located in the upper two feet of land surface present the greatest potential for exposure due to potential inhalation, ingestion, and absorption of the substances. Some potential exposure pathways include foot traffic on the property stirring up dust which people present on site could then come into skin contact with or inhale. Any work done in or around the site that is intrusive in nature could present exposure pathways. In addition to soil contamination, the following hazardous substances are present in sediment on the property: arsenic, barium, cadmium, chromium, lead, mercury, silver, volatile organic compounds, semi-volatile organic compounds, and PCBs. The following hazardous substances and petroleum products are present in groundwater on the property at concentrations exceeding the Department's Groundwater Cleanup Target Levels (GCTLs): arsenic, barium, xylenes, carbon tetrachloride, isopropylbenzene, methyl tertiary butyl ether, tetrachloroethene, and trichloroethene. For one well sample, the 2012 investigation also reported an exceedance of PCBs of 1.2 ug/kg in groundwater. The presence of tetrachloroethylene and PCBs in groundwater is a specific concern at the property. PCBs are not readily soluble in water; however, tetrachloroethylene can act as a carrier for the PCBs and mobilize this contaminant to a greater extent vertically from the source area. This is a concern for the area surrounding the property given that the Floridan aquifer, which is a source of potable water for Hillsborough County, is located approximately 300 feet below ground surface in the surrounding area. Because Respondent has not completed a Site Assessment Report (SAR), the full extent of PCBs and other contamination in soil, sediment, and groundwater, including the contaminants' potential threat to the Floridan aquifer, is not known. Respondent did not present any evidence to contradict the findings and conclusions in the Report. Moreover, Respondent has stipulated that there has been a discharge of hazardous substances and petroleum products on the property prior to its purchase of the property in September 2012. Pre-Purchase Investigation of the Property by Respondent In order to minimize liability for petroleum contamination, Mr. McRae must have undertaken "all appropriate inquiry into the previous ownership and use of" the property before he purchased it, as required by section 376.308(1)(c). Mr. McRae failed to do so. Mr. McRae is the founder, manager, and registered agent of the company and has acquired at least 20 other properties through tax deed sales. He also has bought properties contaminated with petroleum prior to the purchase of the instant property. In addition, he has owned at least 30 gas stations and has hired environmental contractors to remove petroleum tanks for previous gas stations that he bought. Mr. McRae's grandson-in- law, Matthew Moralejo, has no official title with the company, but he helps in running the business, has communicated with the Department, and bought property, including the one at issue here, at Mr. McRae's direction. Mr. McRae and Mr. Moralejo acknowledge that, before the purchase, they conducted very little research into the property, searching only for things "easily accessible or identified with the property," such as code enforcement issues or liens. They conducted visual research of the property by driving by it and looking at its condition. When the property was purchased, "the place was a wreck" and "just full of overgrowth and junk." Good commercial practice in the purchase of property upon which potentially contaminating activities have occurred entails consultation with a person with appropriate knowledge and experience. Before purchasing the property, Mr. McRae did not consult with an environmental attorney or environmental consultant regarding the potential liability associated with property used as a metal recycling site. If Mr. McRae had hired an environmental consultant to assist him in assessing the likelihood of contamination at the property, it would have been standard practice to find public records about the property, including any prior enforcement actions taken against prior owners and operators of the property, all of which were public record. A consultant likely would have recommended that Mr. McRae conduct a site assessment in accordance with Florida Administrative Code Chapter 62-780. Section 376.308(1)(c) requires that in determining whether all appropriate inquiry was undertaken by a purchaser of contaminated property, it is necessary to consider the "specialized knowledge or experience of the defendant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection." Mr. McRae has no specialized knowledge of sites contaminated with hazardous substances. However, as noted above, he has extensive experience regarding the regulation, assessment, and remediation of petroleum-contaminated sites. He has bought multiple properties through tax deed sales, and he has owned at least 30 gas stations. He has hired environmental contractors to remove petroleum tanks from properties he owned. He also is familiar with the Early Detection Incentive Program instituted by the Department, under which the Department remediates petroleum- contaminated sites. The purchase price of the property in 2002 was $200,000.00, the purchase price in 2012 was $133,100.00, and the taxable value of the property in 2015 was $408,106.00. Past information about the property was reasonably ascertainable. Ownership history of the site is available from the Hillsborough County Property Appraiser's Office, Hillsborough County Clerk of the Circuit Court, and Hillsborough County Environmental Protection Commission (EPC). Information regarding regulatory actions taken at the property also was reasonably ascertainable. There were many documents in existence at the time Respondent purchased the property that showed contamination was present on the property. They included a 1995 warning letter from the EPC to previous owners of the property detailing petroleum contamination present on the property, a 1996 EPC request for a previous owner to submit a plan to address onsite soil contamination, and a field investigation conducted by the Department in April 2012, or five months before Respondent purchased the property. There is no evidence that the documents referenced above were not "reasonably ascertainable information." Although a visual inspection by a lay person would not disclose the presence of contamination at the property, Mr. McRae should have known to seek information regarding past enforcement history and site investigation performed at the property. Post-Purchase Actions After buying the property, Respondent dug up debris including tires that were approximately four feet below the soil surface. After removing debris from the contaminated soil, Respondent spread the disturbed soil. To make the property more attractive to prospective tenants, Respondent then spread up to four inches of gravel around the property. This amount of gravel did not cover the entirety of the contaminated area and did not break the exposure pathway that the contaminants presented to people on the property. According to a Department expert, two feet of clean fill over the contaminated area would have been an acceptable intermediate step to break the exposure pathway. After spreading the gravel on the property, Respondent leased the property to three tenants: a landscape business; a portalet company; and a storage container facility. The portalet company and storage container tenants both use the property as storage facilities, including loading and unloading portalets and storage containers, when needed. The contaminants present in the soil present a potential for incidental exposure to workers on the site, especially given that workers are constantly stirring up dust by loading and unloading equipment on the property. Department Communications with Respondent On February 14, 2014, the Department sent Mr. McRae a letter informing him that the Department had information indicating that contaminants may have been released or discharged at the property. The letter referenced the 2012 E & E Report, which documented metals, volatile organic compounds, semi- volatile organic compounds, and PCBs in site soils, sediments, and/or groundwater above SCTLs, Sediment Quality Assessment Guidelines, or GCTLs. The letter stated that failure to submit an SAR within 180 days of receipt of the letter, or by August 14, 2014, may subject Respondent to enforcement action to compel such compliance. Matthew Moralejo responded by email on July 17, 2014, and stated, in part, that "we have never conducted any type of business that would have led to the contamination of said property." The same day, the Department responded by email directing Mr. Moralejo to the Department's public database, OCULUS, that provides reports and correspondence regarding facilities regulated by the Department. The Department provided a link to the 2012 Report and the name of a contact person to discuss Respondent's liability as the current property owner, as well as possible cleanup programs that are available when the current owner is not the one causing the contamination. On September 29, 2015, the Department sent another letter, with attachments, to Mr. McRae. The Department stated that "[s]ome limited site assessment activities have been performed [by E & E] at the site historically; however, the work completed and the documents submitted to date do not constitute a complete [SAR] as required by Rule 62-780.600, F.A.C." The Department again requested an SAR, and, in the alternative, offered a meeting to discuss the issues associated with the letter. Again, the letter warned Mr. McRae that if an SAR was not filed within the timeframes required by the rule, he may be subjected to an enforcement action. In August 2016, Mr. Chamberlain, a Department geologist, met with Mr. McRae and Mr. Moralejo at the property. During the meeting, Mr. Chamberlain took photographs of the site and explained his concerns with the property. Specifically, he informed them that the SAR was still outstanding; and he recommended that Respondent hire an environmental consultant to assist them in the site rehabilitation process. In October 2016, Respondent hired an environmental consultant, Mr. Doherty. On November 29, 2016, the Department emailed Mr. Doherty reminding him that an SAR was due by December 13, 2016. Three days later, Mr. Doherty asked that he be given a six-month extension to file an SAR; the Department authorized only a four-month extension, or to April 3, 2017. Mr. Doherty never conducted any sampling at the property and he did not submit an SAR. Mr. McRae explained at hearing that the consultant "never did [any] work, so he didn't get paid." On May 25, 2017, the Department sent another letter to Mr. McRae stating that it had not received an SAR, and, as a final request prior to initiating enforcement action, requested that he provide a summary of all site assessments completed since September 29, 2015, complete installation of groundwater monitoring wells and conduct sampling within 90 days, and submit an SAR by October 23, 2017. Respondent did not comply with any of those requests. To date, an SAR has not been submitted and a site assessment has not been conducted. The Department then issued an NOV, as amended. Given the numerous letters and emails sent to Respondent, and various site inspections, the Department has incurred costs and expenses of at least $500.00 investigating this matter. Respondent does not dispute this amount. Respondent's Defense Respondent essentially contends it is an innocent third-party purchaser because it had nothing to do with the recycling activities conducted on the property during the 1990s. It argues that the clean-up costs requested by the Department equal or exceed the value of the property and are cost prohibitive. In its PRO, Respondent contends that if the Department reached a settlement with Mr. Dearing, whose company is responsible for the hazardous waste discharge in the 1990s, this should relieve Respondent from any responsibility. It asks that the Department use "compassion" in dealing with him.
Conclusions For Petitioner: Paul Joseph Polito, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 For Respondent: TD McRae, pro se Matthew Moralejo, pro se TD Del Rio, LLC 4608 East Columbus Drive Tampa, Florida 33605-3210
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 sustaining the charges in Counts I, II, and III of the Amended NOV. It is further RECOMMENDED that within 30 days of the final order, Respondent TD Del Rio, LLC, shall commence a site assessment and submit an SAR in accordance with rule 62-780.600. Respondent shall assess and clean up all hazardous substance contamination and petroleum contamination at the property in accordance with chapter 62-780 and the timeframes therein. It is further RECOMMENDED that within 90 days of the effective date of the final order, Respondent shall pay $500.00 to the Department for costs and expenses. Payment shall be made by cashier's check or money order payable to the "State of Florida Department of Environmental Protection" and shall include thereon the notations "OGC Case No. 17-1090" and "Ecosystem Management and Restoration Trust Fund." The payment shall be sent to the State of Florida Department of Environmental Protection, Southwest District, 13051 North Telecom Parkway, Suite 101, Temple Terrace, Florida 33637. DONE AND ENTERED this 24th day of July, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2019. COPIES FURNISHED: Paul Joseph Polito, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) TD McRae TD Del Rio, LLC 4608 East Columbus Drive Tampa, Florida 33605-3210 Noah Valenstein, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
The Issue The issue for consideration in this case is whether Respondents, Hugh H. Warnock and Terminix International Company, L.P. (Terminix), should be administratively disciplined by the Department Of Agriculture and Consumer Services, (Department), because of the matters alleged in the Notice to Impose Fine dated September 10, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Department of Agriculture and Consumer Services was the state agency responsible for the licensing of pest control companies and applicators in Florida. Respondent, Terminix, was licensed as a pest control company and Respondent, Warnock, was licensed as a pest control applicator in Florida, and was employed by Terminix International Company, L.P. On January 22, 1996, Mr. Warnock conducted a termite inspection at property owned by Gordon C. Williamson located at 704 Court Street in Clearwater, at Mr. Williamson’s request. The property was a single story commercial building. Upon completion of his inspection, Mr. Warnock prepared and issued to the owner a wood-destroying organisms inspection report on which he certified he had inspected the premises, except for the attic which was inaccessible. Mr. Warnock noted that he found no visible evidence of wood destroying organisms, no evidence of visible damage and no visible evidence of previous treatment. He noted, however, that in January 1988, the premises previously had been treated for dry wood termites. As a matter of record, the January 1988 inspection and treatment was conducted by ARAB Pest control which, since that time, had been taken over by Terminix. Mr. Warnock qualified his inspection report by the comment, “This report is based on what was visible to me at the time of inspection.” The purpose of a wood destroying organism report is to note existing or present activity of wood destroying organisms, or damage done as a result of that activity. Most frequently, the inspection is done for buyers of property or those who are lenders to those who buy, though quite often owners of property have it done as a part of or in preparation for a treatment program to protect against the organisms. On the visit in issue, Mr. Warnock did the inspection by himself. Having seen vents in the lower portion of the outer wall on his way up to the property, he thought there might be an air space, not necessarily a crawl space, under the floor. After speaking with the owner, and telling him what was intended, Warnock started his inspection at the north end of the building where he found sheet rock against the walls and a dropped ceiling. This particular area was one where old furniture was stored. Mr. Warnock went from area to area in the building, and was able to do his inspection better in some places than in others because of the clutter inside. He also inspected around the outside of the building, after which he went to ask Mr. Williamson how he could get to the space beneath the floor in the center of the building. In response, according to Respondent, Mr. Williamson said he didn’t know of any access to that area and suggested Warnock ask someone else. With that, Warnock inquired of the other individual working in the building, who, Warnock asserts, also said he didn’t know of an access. Though Warnock claims he looked as best he could throughout those portions of the building accessible to him, because of sawdust and lumber on the floor, and the wood working machinery there, he could not see any access ports. It was subsequently determined that there are three crawl spaces located under the north part of the building which are separated by concrete footings. These spaces are accessible through access ports in the floor above them. Mr. Warnock definitively states that had he known of any access ports to the crawl space, he would have gone down into it to look for damage or organisms. It is so found. Mr. Warnock takes exception to the photographs introduced by the Department, taken by Mr. Caudill several months after his initial visit, contending they do not accurately reflect the conditions he encountered during his January 1996 visit. The major difference is that at that time, sawdust and machinery covered the floor access panels that appear unencumbered in the pictures, and they were not visible to him when he looked. Admittedly, he did not ask that any of the equipment or wood be moved or that the sawdust be swept away. Subsequent to Warnock’s inspection, Mr. Williamson called the Terminix office and advised he had discovered damage at the north end of the building. This damage was found by Warnock on a return visit to be behind the drywall previously mentioned, and was determined to have been caused by drywall as opposed to subterranean termites. The treatment done under the contract with ARAB in 1988 was for drywall termites, and there was no contract to treat for subterranean termites. On the second visit Warnock again asked Mr. Williamson about any access ports, and, according to Respondent, Williamson again denied knowing of any. A second inquiry of the other gentleman on the premises met with the same response again, but on this occasion, when he looked down at the floor, Warnock saw an access hole in the floor, and when asked directly about it, the man admitted he had cut it into the floor about two years previously. Warnock claims that when he asked if there were other holes, the man said there were not, but this individual did not appear or present testimony at hearing. The hole was no more than a series of cuts across the floor boards between the floor joists which, since there was no handle, were removed one at a time by being pried up. When Respondent and his assistant manager, who was present with him on this visit, got down into the crawl space, they found no evidence of infestation. At that time, the other access holes subsequently found to exist were not known to be there. Respondent steadfastly contends that none of the access holes were visible to him or pointed out to him on inquiry of the occupants at the time of his January 1996 visit. As such, he claims, they were not accessible to him at that time. It was only after the second visit my Mr. Warnock that on June 4, 1996, Williamson submitted his complaint to the Department. In response, on June 7, 1996, Todd Caudill, a pest control environmentalist with the Department, went to the site and re-inspected it. During his inspection, done some six months after Warnock’s initial visit, Mr. Caudill found termite tubes and other evidence of infestation in the crawl space under the building when he went into it. He took photographs of what he saw. Mr. Caudill is 5’11’ tall and weighs about 260 pounds. Notwithstanding, he had no trouble getting down into the crawl space through the existing access holes. Mr. Caudill could easily see the termite tubes, and in his opinion, they were there before Warnock’s January 1996 inspection of the property. He bases this opinion on the dryness of the tubes, the lack of active termites there, and the extent of the damage existing. He could look up into the rafter area because the ceiling had been removed due to renovation, but could see no termite activity there. Mr. Caudill returned to the property for a second visit on June 25, 1996, at which time he took additional photographs. This second series of pictures included the second crawl space, on the East side of the building, and several additional access holes in the floor of the building. Mr. Caudill indicates that when he asked about additional access holes, he was directed to a portion of the building where, when he went there, he was able easily to find the portals without having them pointed out to him. He could not see where any of the access portals had been covered by machinery nor did it appear to him that any of the machinery recently had been moved. The machinery was not so big that it would cause a major obstruction. It was on this second that Mr. Caudill procured an affidavit from Mr. Williamson which indicates that when Mr. Warnock was there for his inspection, the access ports were not obstructed and had not been obstructed for the six years the tenant has occupied the space. Mr. Williamson was not present at the hearing to testify in person nor was his absence explained by counsel for the Department. No explanation was given by the Department as to why Williamson could not be present or his testimony preserved by deposition. Therefore, it is found that Mr. Williamson’s affidavit is inadmissible as hearsay evidence and is not considered. In Mr. Caudill’s opinion, Warnock’s report of his inspection of the Williamson property in January 1996 is not a complete report since it did not cover the area of the crawl space. Based on his investigation of the situation, Mr. Caudill recommended a fine of $500.00, after which, on September 10, 1996, the Department issued its Notice of Intent on which the alleged violations found are listed. At the time Mr. Caudill did his investigation of Mr. Warnock’s inspection, he had been employed by the Department less than a year. He is not licensed as a pest control operator, but had been trained in the classroom and in on the job training with other operators, and had done three inspections on his own. According to Mr. Chandler, the Terminix branch manager who went with Mr. Warnock to the Williamson property in May 1996 as a result of Mr. Williamson’s call, termite damage was discovered in the walls of the building when the covering was removed for repairs and renovation. Williamson seemed to feel that this area had been missed by Respondent when he was there in January. In response, Mr. Chandler supported Respondent, indicating the damage, as it existed and where it was, could not have been found by Respondent’s inspection. He offered to put in place a new treatment plan. Whether Mr. Chandler also spoke with Mr. Williamson about access holes is questionable. On one hand, Chandler said he did speak with him about them, yet at another point in his testimony, he could not recall asking Williamson about access ports. When the ports were discovered and opened, and Chandler went down into the crawl space, he found no evidence of infestation in that crawl space. The only evidence of termite damage observed by Chandler did not extend up from the crawl space, but existed in a beam which rested on a concrete slab in the area opened for renovation. Dr. John Mangold has worked in the pest control industry for seventeen years and is familiar with the laws and rules relating to wood destroying organism reports. To his understanding, equipment on the floor of a building renders the area underneath it inaccessible, and an inspector cannot deface an area in order to do an inspection. The inspection report done in 1988 reflects that a crawl space was not inspected at that time because it was N/A. Counsel agree this means “not accessible.” The second report, done by Mr. Warnock, is consistent with the former in that it also reflects the crawl space was not inspected because it was inaccessible. Since the vents on the side of the exterior wall, near the ground give rise to a presumption there is a crawl space there, if the inspector cannot find access ports, he should note that fact in the report and indicate why he could not get to it. Though Respondent did not do this, it does not invalidate a finding that at the time of his inspection, the crawl space was not reasonably accessible to him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a final order dismissing its Notice of Intent to Impose Fine. DONE and ENTERED this 23rd day of May, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1997. COPIES FURNISHED: Linton B. Eason, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 James M. Nicholas, Esquire 1815 South Patrick Drive Indian Harbour Beach, Florida 32937 Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level Ten Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level Ten Tallahassee, Florida 32399-0810
The Issue The issues in this case are whether Respondent violated certain rules of the Department of Environmental Protection (Department) related to petroleum contamination site cleanup criteria as alleged in the Department’s Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (NOV); whether Respondent is liable for the administrative fines and investigative costs assessed by the Department; whether mitigation of the administrative fine is appropriate; and whether Respondent should be required to take the corrective action described in the NOV.
Findings Of Fact The Parties The Department is the state agency charged with the power and duty to administer and enforce the provisions of Chapters 376 and 403, Florida Statutes (2008),1 and the rules promulgated in Florida Administrative Code Title 62, pertaining to petroleum contamination. Respondent Z.K. Mart, Inc., is a Florida corporation, and owns and operates a retail fueling facility (DEP Facility No. 8507091) located at 5077 Normand Boulevard, Jacksonville, Florida (“the facility”). In January 2004, soil sampling in conjunction with the removal of an underground petroleum storage tank at the facility showed petroleum contamination. Respondent reported the contamination to the Department in a Discharge Report Form on January 29, 2004. Respondent removed the tank that was the source of the contamination, conducted source removal activities, and submitted various reports to the Department, including a Site Assessment Report (SAR), submitted in February 2006. In March 2006, the Department determined the SAR was incomplete and requested that Respondent submit a SAR addendum. To date, Respondent has not submitted the SAR addendum. Respondent’s insurer, Mid-Continent Casualty Company, refused coverage for the assessment and cleanup costs associated with the reported discharge, asserting that the contamination “arose out of” the tank removal. Respondent contends that the contamination occurred before the tank removal. In October 2004, Respondent sued Mid-Continent in the circuit court for Duval County for wrongful denial of coverage. Respondent requested that the Department also file suit against Mid-Continent, pursuant to Section 376.309(2), Florida Statutes, for violating financial responsibility requirements. In December 2008, the Department sued Mid-Continent. The litigation is ongoing. Respondent spent over $300,000 to remove 2,503 tons of contaminated soil and to conduct site assessment activities associated with the reported contamination. In August, September, and October 2006, Respondent filed financial affidavits and additional materials with the Department in support of Respondent’s claim that it was unable to pay for additional assessment work. By letter dated November 3, 2008, the Department rejected Respondent’s claim that it was financially unable to undertake the requested site assessment. Respondent submitted a financial affidavit prepared by Abdul Khan, the vice president and secretary of Z.K. Mart, Inc., which states that the net income of Respondent was $36,479 at the end of 2005. Financial information for later years, including 2008, was also submitted by Respondent. However, no financial analysis was included. No evidence was submitted to establish the estimated costs of future site assessment activities. It cannot be determined from the financial information in the record whether Respondent is currently financially able to conduct additional site assessment activities. The Department states in the NOV that Count I constitutes a violation of Florida Administrative Code Rule 62- 770.800(5). That rule provides that it is a violation of Chapters 376 and 403, Florida Statutes, for a responsible party to fail to submit additional information or meet any time frame “herein.” The Department explained that Count I was intended to charge Respondent with failing to complete site assessment. The only applicable time frame in Florida Administrative Code Rule 62-770.800, entitled “Time Schedules,” is in subsection (3), which requires a responsible party to submit additional information within 60 days of the Department’s request for the information. That violation, however, is more specifically charged in Count II. Count II of the NOV charges Respondent with violating Florida Administrative Code Rule 62-770.600(11), which states that, if a SAR is incomplete, the Department shall inform the responsible party and the responsible party shall submit a SAR addendum within 60 days. Counts I and II charge Respondent with the same offense, failing to submit requested information within 60 days of the request. As stated in the Conclusions of Law, Respondent cannot be made to pay administrative fines under a duplicate charge. Count III of the NOV charges Respondent with liability for the Department’s investigative costs of $500 incurred in conjunction with this enforcement matter. These are nominal costs and were never disputed by Respondent.
Findings Of Fact Respondent, David W. Brown, is the sole proprietor of an unincorporated business known as A-Quality Terminators which operates in the Orlando area. Respondent is licensed to operate a pest control business by the Petitioner. Respondent is also the holder of an identification card issued by the Petitioner which authorizes him to perform inspections of structures for wood-destroying organisms. Results of a wood-destroying organism inspection are required to be evidenced by completion of the Respondent's approved Form 1145, Wood Destroying Organism Report. Prior to April 20, 1984, Respondent was asked to perform a wood- destroying organism inspection at a residence located at 2913 Risser Avenue, Orlando, Florida. The inspection was requested by the purported owner, a woman using the name of "Laura Taylor," for the alleged purpose of enabling the owner to obtain refinancing of the mortgage on the residence. The advance arrangements made with "Ms. Taylor" were that the residence would be unoccupied during the inspection to be made on April 20, 1994, that a residence key would be left for Respondent under the door mat, that a check would be left for Respondent on the table inside, and that Respondent would leave a Form 1145 Wood-Destroying Organisms Inspection Report on the table inside. The person purporting to be the owner of the subject property was actually Laura Douglas, an employee of a local television station. She was using the fictitious name "Laura Taylor", as a part of the sting operation the station was conducting. The real owner was Dawn Angert. The contrivance to have Respondent inspect the subject property was part of arrangements made by the TV station to have inspections conducted by several pest control companies of the subject property. An investigative report would then be produced and broadcast by the station. Respondent had previously performed several wood-destroying organisms inspections in the subdivision where the subject residence is located, and he was familiar with the common types of construction throughout the subdivision and the common types of wood-destroying organism problems throughout the subdivision. On April 20, 1994, Respondent arrived at the subject property and remained for approximately eight minutes. He noticed termite damage inside the front door. He also observed the drill holes, indicating prior termite treatment, outside the front door, even though the drill holes had been obstructed by the door mat and potted plants. Respondent did not complete his inspection at that time. He did not leave a Form 1145, nor did he leave a notice of inspection. However, he took the check on the table inside, and left a note on his business card indicating that there were problems requiring further inspection. Portions of Respondent's activities at the subject property on April 20, 1994, were videotaped by three hidden cameras of the TV station. A day or so after the subject inspection of April 20, 1994, the purported owner of the subject property, "Laura Taylor," telephoned Respondent's office to advise that she urgently needed a "clean" Form 1145 because interest rates were going higher and she wanted to complete the purported refinancing transaction. She insisted that the Form 1145 be taped on the door of Respondent's office so that she could drive by and pick it up. Respondent's secretary called him while he was in the field to obtain approvals for the release of the report. Respondent, acting without his field notes and without a clear recollection of his inspection of the subject property, asked his office by telephone whether any notes at the office reflected a problem at the subject property. He was advised that no such notes were found. He then instructed his office to provide "Ms. Taylor" a "clean" Form 1145 pursuant to her urgent request. The Form 1145 was completed showing no evidence of any damage by wood- destroying organisms or any evidence of treatment of wood-destroying organisms. The report was taped to the office door and picked up that afternoon. Respondent did not follow his normal procedure of checking his field notes before issuing a Form 1145 report. The following day, while reviewing his notes, he discovered his error and attempted to communicate the mistake to "Ms. Taylor." Respondent did not intend to provide an erroneous Form 1145 following the inspection of the subject property. The incomplete inspection and erroneous wood-destroying organism report prepared by Respondent fell below the standard of practice in the pest control industry in the Orlando area and was negligent. In mitigation, following the extensive media publicity generated by this matter, Respondent lost a substantial volume of business, has substantially reduced the number of his employees, has been forced to close his office and work out of his home, and has suffered personal embarrassment and loss of reputation. In the weeks preceding the hearing in this case, Respondent was a participant in an unrelated undercover operation which led, through his efforts, to the detection and interdiction of a third party's scheme to distribute banned pest control substances unlawfully. Respondent's efforts led to an investigative report broadcast by another local televison station, and further led to enforcement action against the third party by the Petitioner. Respondent has never previously had any fines or warning letters imposed against him in the course of several years of pest control work and several thousand wood-destroying organisms inspections in Florida.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered which finds the Respondent guilty of violating the provisions of Section 482.226(1) and 482.161(1)(f), Florida Statutes, and Rule 5E-14.142(2)(c), Florida Administrative Code. It is further, Recommended that the Respondent be issued a letter of reprimand and be assessed an administrative fine of $500.00. However, should the Petitioner determine that Respondent cooperated and played a significant role in the unrelated sting operation, said administrative fine should be suspended. DONE and ENTERED this 23rd day of May, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 23rd day of May, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1 (in part), 2, 3 (in part), 5 (in part). Rejected as a conclusion of law: paragraph 1 (in part). Rejected as subsumed or a comment on the evidence: paragraph 3 (in part), 4 (in part), 5 (in part), 6, 7; Supplement paragraphs 1, and 2. Revised proposed findings of fact by Respondent. Accepted in substance: paragraph 1, 2, 3, 4, 5, 7 (in part), 8, 9 (in part), 10, 11 (in part), 12 (in part), 13 (in part), 14 (in part), 21 (in part), 22 (in part), 23. Rejected as irrelevant and immaterial: paragraph 6, 7 (in part), 9 (in part), 13 (in part), 15, 16, 17, 18, 19, and 20. Rejected as a comment on the evidence or subsumed: paragraph 7 (in part), 11 (in part), 12 (in part), 14 (in part), 21 (in part), 22 (in part). COPIES FURNISHED: Robert G. Worley, Esquire Richard Tritschler, Esquire Department of Agriculture & Consumer Services Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Robert W. Genzman, Esquire Akerman, Sneterfitt & Eidson, P.A. 255 South Orange Avenue Post Office Box 231 Orlando, Florida 32802-0231 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800
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
The Issue The issue for determination is whether Redd’s Cleaners, DEP Facility No. 139502588 is eligible for state-administered cleanup under the Drycleaning Solvent Cleanup Program pursuant to Section 376.3078, Florida Statutes.
Findings Of Fact Metropolitan Dade County (Petitioner) is a political subdivision of the State of Florida. Pursuant to Chapter 24, Metropolitan Dade County Code, Petitioner regulates, among other things, the use, storage, and disposal of industrial wastes and hazardous substances in Dade County. Sekoff Investments, Inc. (Intervenor) is a Florida corporation and is the owner of commercial real property located at 5821 Ponce de Leon Boulevard, Coral Gables, Florida. Intervenor is a "real property owner" as defined by Section 376.301(25), Florida Statutes (1995). Florida Department of Environmental Protection (Respondent DEP) is an agency of the State of Florida. Pursuant to Chapters 20, 376, and 403, Florida Statutes, Respondent DEP has jurisdiction, among other things, over the regulation and protection of the State's surface waters, groundwater, and other natural resources. From 1956 to December 1994, Intervenor leased its property to "drycleaning facilities," as that term is defined by Section 376.301(8), Florida Statutes (1995), which operated under the name "Redd's Cleaners" (Respondent Cleaners). Intervenor was not an owner of the drycleaning facilities, nor did it participate in their management or operation. Intervenor's property has never been served by sewers and has a septic tank. Intervenor's property is not in an area served by private drinking water wells or in a cone of influence of a County wellfield. Starting in 1988, Petitioner began inspecting drycleaning facilities and requiring them to obtain operating permits pursuant to Section 24, Metropolitan Dade County Code. On February 28, 1989, Petitioner issued Operating Permit No. IW5-3387-88 to Jen-Dan, Inc., d/b/a Respondent Cleaners. Operating Permit Nos. IW5-3387-89, IW5-3387-90, IW5-3387-91, IW5-3387-92, and IW5-3387-94 were subsequently issued for the period between April, 1989 through April, 1995. On October 14, 1993, Petitioner collected soil and groundwater samples from the septic tank and storm drain/soakage pit at Intervenor's property and discovered elevated levels of perchloroethylene, a "drycleaning solvent," as that term is defined by Section 376.301(9), Florida Statutes (1995). On March 15, 1994, Petitioner issued Respondent Cleaners and Intervenor a Notice of Violation and Orders for Corrective Action (NOV). The NOV provided that the presence of drycleaning solvents in the septic tank and storm drain/soakage pit violated Sections 24-11, 24-13, 24-14, 24-26, and 24-55, Metropolitan Dade County Code, and ordered Respondent Cleaners and Intervenor to submit a formal plan for the assessment and cleanup of the drycleaning solvent contamination. The cited provisions of the Dade County Code generally provide that it is unlawful to throw, drain, run, seep, or otherwise discharge industrial or liquid wastes into septic tanks, sewers, or waters of the County; to cause or maintain a nuisance or sanitary nuisance as defined by the Metropolitan Dade County Code; or to violate any provision or condition of an operating permit. Intervenor hired the environmental consulting firm, REP Associates, Inc., which prepared and submitted to Petitioner a Contamination Assessment Plan (CAP) dated April 21, 1994. By letter dated May 5, 1994, Petitioner approved the CAP with modifications, and required the immediate pump out and disposal of the contaminated contents of the septic tank and storm drain/soakage pit. In May and June, 1994, Intervenor began collecting soil, groundwater, and sediment samples from the septic tank and storm drain, and installed a groundwater monitoring well, as required by the CAP. The test results disclosed the presence of drycleaning solvents in the soils and groundwater at Intervenor's property. The contaminants in the septic tank and storm drain/soakage pit were a source or a likely source of soil and groundwater contamination at the facility. On May 8, 1994, Respondent DEP announced that it was suspending all enforcement actions against drycleaning facilities based on the Florida Legislature's anticipated passage of the Florida Drycleaning Solvent Contamination Cleanup Act (Drycleaning Act). On June 3, 1994, the Drycleaning Act became effective. On August 23, 1994, Petitioner mailed Intervenor and Respondent Cleaners a Final Notice Prior to Court Action stating that they were not in strict compliance with the deadlines set forth in the NOV. On September 22, 1994, Intervenor submitted to Petitioner a Report of Sampling and Analysis summarizing the results of the work performed in May and June, 1994. By letter dated September 23, 1994, Intervenor further advised Petitioner that it would be applying for participation in the Drycleaning Solvent Contamination Cleanup Program (Drycleaning Cleanup Program) as soon as Respondent DEP promulgated the necessary implementation rules. Intervenor proposed that Petitioner approve a no further action plan pending its notice of eligibility under the Drycleaning Act. By letter dated September 30, 1994, Petitioner disapproved Intervenor's no further action plan. Petitioner again notified Intervenor and Respondent Cleaners that they must immediately remove and dispose of the contents of the septic tank and storm drain. In December, 1994, Intervenor evicted Respondent Cleaners. Since that date, the former drycleaning facility has remained vacant. On July 18, 1995, Intervenor's environmental consultants removed and properly disposed of the contents of the septic tank and storm drain. 18.1 On October 3, 1995, Intervenor's consultants advanced new soil borings and installed a new groundwater monitoring well. Groundwater samples were collected on October 24, 1995. 19.2 On February 21, 1996, Intervenor submitted its Contamination Assessment Report Addendum to Petitioner, summarizing the results of the work performed in July and October, 1995, and requesting a monitoring only plan (MOP). By letter dated February 29, 1996, Petitioner disapproved Intervenor's proposed MOP. 20. In March 1996, Respondent DEP began to accept applications for the Drycleaning Cleanup Program. Intervenor submitted its application for Respondent Cleaners on March 8, 1996. 21.3 By letter dated June 11, 1996, Respondent DEP approved Intervenor's application and determined that Respondent Cleaners' drycleaning facility was eligible to participate in the Drycleaning Cleanup Program. By Petition for Formal Administrative Hearing served July 11, 1996, Petitioner appealed Respondent DEP's eligibility determination. According to Petitioner, Intervenor's failure to timely comply with Petitioner's order to assess and remediate Respondent Cleaners constitutes gross negligence in the operation of the cleaner, thereby precluding its eligibility in the Drycleaning Cleanup Program.
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 Redd's Cleaners, DEP Facility No. 139502588 eligible to participate in the Drycleaning Solvent Contamination Cleanup Program.DONE AND ENTERED this 14th day of May, 1997, in Tallahassee, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1997.
Findings Of Fact The Property Domenic Marotta and Dolores Marotta purchased mini-warehouse property located at 1208 Georgia Street, Delray Beach, Florida in 1977 or 1978, located on a one acre parcel of land. The structure was one year old when the Marottas acquired it. They remained co-owners of the property until 1985, when Dolores Marotta became the sole owner as the result of their divorce. The property is composed of a concrete structure of about 16,000 square feet which contains twelve warehouse bays, six on each side. These bays have been rented to tenants who conduct a variety businesses from the bays. A concrete slab surrounds the warehouse in front of the bays. Approximately two feet of soil may be found horizontally from the edge of the concrete slab extending to the chain link fence surrounding the Marotta property. Safety Kleen rented bays at the southeast corner of the warehouse complex. The warehouse complex is located within the cone of influence for the well field that produces potable water for the City of Delray Beach. The groundwater flows to the northwest, toward the well field. The area upgradient of the warehouse site to the east and south is residential. There is no significant likelihood that the residential area would be the source of groundwater contamination flowing from the residences to the warehouse site. Contamination of the warehouse site would move with the groundwater to the northwest, toward the City of Delray Beach well field. Safety Kleen and its business Safety Kleen is a Wisconsin Corporation which does business in Florida. It operates solvent distribution and recycling centers as part of its business. It rented bays from the Marottas in the southeast portion of the warehouse building from October 1976 to September 1981 for use as one of its retail centers. Retail centers are the base for Safety Kleen vans which place and maintain products, including sinks filled with its number 105 parts washer solvent. Customers, such as gas stations and mechanics, use the solvent to degrease auto parts and then dispose of the dirty degreasing solvent through Safety Kleen. Safety Kleen described its business operations in this way in a letter sent to the U.S. Department of Environmental Protection Agency: Safety Kleen Corp. (the Company) is engaged in the business of collecting spent solvent and other waste materials generated by its customers, and recycling those materials for reuse. During the period October, 1976 to September, 1981, which was the term of the lease between Safety Kleen and the owner of the site [the Marottas], the company leased a site at 15776 Gwenzell Avenue, also known as 1208 Georgia Street, Delray Beach, Florida as a service center. * * * The service center was equipped with two ten thousand gallon storage steel underground tanks, one used to store clean mineral spirits solvent, the other to store waste mineral spirits solvent received from customers. * * * The underground storage tanks were installed at the facility by Safety Kleen in 1976. * * * On a periodic basis, tanker trucks owned by the company would bring clean solvent to the service center, and remove waste solvent from the dirty solvent tank, for transportation to one of the Company's recycle centers. * * * Waste mineral spirits stored in the underground steel tank was a characteristic hazardous waste as described in 40 C.F.R. 261 Subpart C. This waste mineral spirit solvent exhibited the characteristic of ignitability, and was classi- fied as Waste D001. * * * At that time of discontinuation of business operations at the Georgia Street facility, no soil or groundwater samples were collected in the proximity of the underground tanks. Safety Kleen's 105 parts washer solvent is an aliphatic hydrocarbon solvent, with a medium boiling range. It consists of C9 to C13 hydrocarbons predominately. Its has an initial boiling point of around 300 degrees Fahrenheit and an endpoint of approximately 400 to 420 degrees Fahrenheit. The parts washer solvent consists of approximately 85 percent by weight of mineral spirits. The second component is C8+ aromatics up to and including 12 percent by weight. The remainder is toluene, .5 of 1% by weight, xylene, up to 1% by weight, ethylbenzene at .5 of 1% by weight, 1,1,1,-trichloroethane at up to .5 of 1% by weight, perchlorethylene at up to .5 of 1%, and napthalene at .2 to .3 of 1% by weight. The parties stipulated that benzene, 1,2-dichloroethylene, ethylbenzene, tetrachloroethylene, 1,1,1-trichloroethane, and xylenes are chemical constituents and breakdown components of mineral spirits such as those used by Safety Kleen in its retail operations. Safety Kleen activities on the site The two ten thousand gallon underground storage tanks Safety Kleen installed were pressure tested before the first load was placed in them and tightness tests were preformed twice, and showed no leaks. In 1978, the tanks were sandblasted and coated with epoxy resin to extend their life, a treatment which carried a ten year guarantee from the supplier. Safety Kleen is the only tenant to have used the underground storage tanks which it installed at the site. When closed the tanks were emptied, washed, scrubbed with detergent, and filed with clean water. To serve its retail customers, the Safety Kleen distribution and recycling center at Georgia Street would have five to seven delivery vans loading virgin mineral spirits sold as parts washer solvent, and unloading waste mineral spirits each day. Since the parts washer solvent is 85% mineral spirits, it will be referred to as mineral spirits or solvent. Each day about 13 drums of dirty solvent collected from customers were rolled off each of the five to seven vans, and pushed over into a dumpster (also sometimes called a hopper). Two sizes of drums were used, 16 gallon and 30 gallon drums, and when filled, those drums were quite heavy. The dumpster drained through pipes into one of the underground storage tanks Safety Kleen had installed. After the drums themselves had been cleaned, Safety Kleen employees refilled those drums with virgin mineral spirits from the other underground storage tank it had installed. The employees were trained and tested on proper procedures for filling and tipping barrels of mineral spirits. They were instructed on safety procedures for handling mineral spirits, and were trained in the use of EPA wipes for cleaning small spills, the use of a clay-like absorbent material, and the use of absorbent rope to encircle spills. All these materials were available on-site. The accounting system for these safety products show that the safety products were being replaced as on-going maintenance items, but it cannot be determined from the record the extent to which these items were used in any period of time. The clean underground solvent storage tank would be filled with mineral spirits and the dirty solvent storage tank would be emptied at regular intervals by the driver of a tank truck. The manager in charge of the southeast for Safety Kleen, was the regional manager for the Florida service centers during most of the time Safety Kleen operated the Georgia Street facility. He acknowledged at hearing that drips in small amounts of both fresh and dirty mineral spirits would occur in the course of Safety Kleen's recycling operations and such spills were an inherent part of the operation. On the other hand, employees were constantly reminded and encouraged to minimize spills. The manager for each center received a bonus based upon the amount of dirty mineral spirits recycled when compared to the amount of virgin spirits delivered to the center. It benefits Safety Kleen to recover as much of the dirty mineral spirits as possible, and to recycle those spirits for reuse. Company employees refer to dirty mineral spirits commonly as "black gold." The value of the recyclable waste mineral spirits had one perverse aspect. Lower level Safety Kleen personnel would have an incentive not to report small spills, such as spills less than 10 gallons, because they could be disciplined or discharged for the loss of those valuable, recyclable waste mineral spirits. It is likely that only large spills would have been reported to Safety Kleen management. The evidence will not support any determination of how often employees used the safety materials available to clean up spills of any size. See Finding 7, above. During Safety Kleen's tenancy, a concrete curb was placed around three sides of the platform from which the dirty minerals spirits were tipped into the hopper to prevent spills, and maximize the recovery of dirty mineral spirits. Despite Safety Kleen's efforts to recover used solvent, workers at other businesses in the warehouse complex saw spills of dirty solvents when they were being tipped into the hopper, and saw drips from hoses on tankers delivering fresh mineral spirits to the center. The underground tank which held virgin mineral spirits was filled from tanker trucks which used a flexible hose three to four inches in diameter, which was connected to the bottom of the tanker truck. The amount of mineral spirits to be added to the underground tank had been determined through an internal accounting system Safety Kleen used to record the number of service calls which Safety Kleen truck drivers performed each day at service or gas stations. There was no fill detection system on the underground tanks Safety Kleen installed, though underground tanks in use today have fill detection systems. It would be possible to over fill the underground storage tanks with clean spirits if careful attention were not paid to the refilling process, despite Safety Kleen's efforts to account for the solvent. When a tanker truck delivering clean spirits to the Georgia Street site was emptied, waste mineral spirits would be pumped back into the tanker truck from the underground tank holding dirty mineral spirits. Once the spent spirits were tipped out of barrels into the hopper and the underground storage tank, stick measurements of the contents of that underground storage tank were taken. Stick measurements are not highly accurate, for one-eighth inch variance in the measured level of spirits by the stick would equal a variance of twenty gallons or more in the ten thousand gallon storage tank. Precise measurement was more difficult due to the buildup of sludge in the dirty solvent tank; calculation of tank contents could be off by as much as 500 gallons when computed by "sticking the tank." A memorandum authored by CBS Mechanical in October 1981 in connection with the closing of the site noted there was about 1,500 gallons of sludge in the underground tank. Given the value of used mineral spirits to Safety Kleen, this sludge at the bottom of the tank must have been unrecoverable. When Safety Kleen first used the site, the concrete slab in front of the bay was new, but by the time it left, there were cracks in the concrete. This would be caused in part, by driving of heavy tanker trucks in the area, as well as by the general use of the concrete slab areas by other tenants. There is considerable staining of the concrete pad in front of the bay used by Safety Kleen from the fill spout of the underground tank running east to the area containing soil. To warehouse tenants, the perimeter soil area from the edge of the concrete pad in front of the bays to the chain link fence on the property line often looked black, oily or muddy. Neither plants nor grass would grow in that area. Correspondence with the Marottas concerning the closing down of the facility contain references to the removal and replacement of "bad dirt," and the replacement of that "bad dirt" with good dirt and shrubs. The odor of mineral spirits reported by witnesses in the areas used by Safety Kleen, is consistent with evidence that solvents were sometime splashed or spilled during the operations of tipping the barrels of waste mineral spirits into the hopper and from the process of filling the underground tank with virgin mineral spirits from the tanker truck. These mineral spirits flow across the concrete pad to the soil area. Safety Kleen drafted two internal documents entitled "authorization for expenditure" dated November 16, 1981,, and December 9, 1981, as part of its closing of the Georgia Street site, and these refer to the "removal of contaminated soil." In addition, Mr. Marotta, and not Safety Kleen, had about 60 cubic feet of dirt (from a strip of land fifteen feet long, two feet wide, and two feet deep) removed from the area around Safety Kleen's underground storage tanks after Safety Kleen left the warehouse complex. A considerable quantity of mineral spirits had been spilled to cause such contamination of the soil and staining around the fill pipes for the underground tanks. Sampling of the site On October 4, 1989, Department staff conducted a preliminary investigation of the area and took groundwater and soil samples near the two underground storage tanks which had been used by Safety Kleen, and samples of the fluids remaining in the storage tanks. The groundwater samples were taken down gradient from the storage tanks. The soil sample was taken at a depth of 10 feet, the groundwater sample at 16 feet. The soils taken from the excavation holes created by sampling had a strong hydrocarbon odor, and the purge water removed from the excavation hole exhibited a sheen characteristic of hydrocarbon petroleum products, which include mineral spirits. The samples taken by DER showed the presence of contaminants in the following concentrations: Storage Groundwater tanks Soil napthalene 330. ug/l 1/ 412 ug/l 16,000 ug/kw, 2/ dw benzene 22. ug/l 19 ug/l 1,2 dichlorobenzene 49. 1,1 dichloroethane 8.8. 1,2 dichloroethylene 19. ug/l ug/l ug/l 41 ug/l ethylbenzene 63. tetrachloraethylene 6.4 xylene 310. ug/l ug/l ug/l 340 200 ug/l ug/l 25 ug/kw, dw. toulene 92. ug/l The following metals were found in the groundwater: cadmium 07. ug/l; chromium 91 ug/l; lead 3.5 ug/l. Further tests were made on January 10, 1991, of soil and groundwater samples by Environmental Petroleum and Remediation Services. One monitoring well was installed and four subsurface soil borings were taken. That groundwater sample showed: 1,2 dichlorobenzene 78.2 ug/l ethlybenzene 33.8 ug/l napthalene 220.0 ug/l xylene 102. ug/l The engineer for Environmental Petroleum and Remediation Services who specializes in the assessment of contamination and development of remedial action plans, Kelly Winslow, installed the monitoring well in the area of the underground storage tanks downgradient of the groundwater flow from the tanks. Soil samples were analyzed by use of a field photoionization detector. Surface soil samples showed slightly elevated levels of organic vapors, while the cuttings from deeper portions of the well down to eight feet showed significantly elevated organic vapors. The soils had a definite hydrocarbon odor. These findings were generally consistent with those found by DER's earlier tests from October 4, 1989. In addition to the Safety Kleen location, several other lessees at the warehouse area were engaged in businesses such as auto repair, auto body work, wood working, carpentry and boat building. There is also some staining of the concrete in front of those bays, but that staining is localized staining of the sort ordinarily associated with leaking oil drip pans from automobiles as occurs in parking lots. The only large areas of stain are near the underground storage tanks, on the east side of the building. There is no evidence of staining in the soil on the other side of the building. Moreover, the Safety Kleen operation was in the southeast corner of the complex. The contamination found in the soil and groundwater is upgradient from the other businesses in the warehouse complex. The contaminated groundwater tends to flow from the Safety Kleen site toward those other businesses, not from those businesses toward the Safety Kleen site. It is more likely than not that the contamination present began on the Safety Kleen site. A third group of soil samples were collected at the site shortly before the hearing, on April 24, 1991, by consultants for Safety Kleen. Mr. Winslow, the engineer for Mrs. Marotta, also was present when those samples were taken. He saw the samples taken just outside the area with visible signs of staining from a depth of eight to twelve feet, and found that they exhibited a distinct mineral spirits odor. Safety Kleen's consultants had not tested those samples at the time of the hearing. Characteristics of materials found Benzene is an organic compound typical of distillate hydrocarbon products. While benzene is found in only trace levels in Safety Kleen's parts washer solvent (in the range of 10 to 20 parts per million), it is a naturally occurring ingredient of gasoline in a concentration range from 1/10 of 1% to 3.7%. Napthalene is found in most petroleum-like products, including gasoline, diesel fuel, kerosene, and mineral spirits. Naphthalene concentrations in gasoline range from 1/10 of 1% up to 1%; a nominal concentration is 7/10 of a percent. It occurs in Safety Kleen's parts washer solvent at between .2 and .3 of 1% by weight. Xylene is an aromatic solvent. It is a key ingredient used, along with toluene, to raise the octane of unleaded gasoline. It is found in low levels in Safety Kleen's parts washer solvent. Chlorobenzene is typically man-made in a petrochemical process and is typically used as a solvent. 1,2-dichlorobenzene is the same chemical as orthodichlorobenzene, and is a component of Safety Kleen's 609 immersion cleaner (a different product not a likely cause of the contamination at issue here). It is an excellent degreasing and decarbonizing chemical, and is used in a variety of chemical formulations, including stripping applications. 1,2-dichlorobenzene is not a component of Safety Kleen's parts washer solvent. Ethylbenzene is a C8 aromatic hydrocarbon and naturally occurs in petroleum products. It is found in gasoline, diesel fuel, and in Safety Kleen's parts washer solvent. 1,2-dichloroethylene is a degradation product of 1,1,1- trichloroethane. 1,1,1-trichloroethane is a common chlorinated solvent used in the United States today. 1,1,1-trichloroethane is also commonly used for contact cements and various adhesives. 1,1-dichloroethane, which was found on the site, has never shown up in Safety Kleen's product or waste product. But see Finding 43 below. Tetrachloroethylene is a common solvent used for dry cleaning of clothes, and for degreasing and automotive applications. The presence of these constituents on the site clearly indicates that there is contamination, but these constituents are not identifiers; they are not unique to any product and their presence does not conclusively identify the source of the contamination. The constituents identified on the site occur in a variety of commercial products. With the exceptions of the 1,2-dichloroethene, they are compounds commonly used in automotive repair, and automotive body shops. Significance of the sample data Contaminants in the soil and groundwater at the Georgia Street site are classified as hazardous in the list found in Appendix VIII published by the U.S. Environmental Protection Agency at 40 CFR Part 261. These hazardous materials include cadmium, chromium, lead, benzene, chlorobenzene, 1,2- dichlorobenzene, 1,2-dichloroethane, tetrachloroethylene and napthalene. Merlin Russell is a geologist with the Department of Environmental Regulation who is experienced in evaluating hazardous waste closure permits. He reviewed data provided by Safety Kleen for the closure of three other Safety Kleen sites in Florida (one in Tallahassee, one in Tampa, and a different site, called the Fourth Avenue site, in Delray Beach). Comparing the soil and water samples taken from these three sites with samples taken at the Georgia Street site, Mr. Russell found each of the constituents from the Georgia Street site were also present in at least one of the samples from the other Safety Kleen sites. This similarity in constituents led Mr. Russell to conclude that Safety Kleen's operation is a likely source of the contamination present at the Georgia Street site. On the whole, the evidence is consistent with Mr. Russell's analysis. James Breece holds a doctorate in chemistry, and is a vice president for Safety Kleen. He agreed that Safety Kleen's operation at Georgia Street would be a possible source of the contamination found there, though he would not agree that the evidence was sufficient to show that Safety Kleen was the actual source of that contamination. Mr. Breece characterized the Safety Kleen mineral spirits as an aliphatic hydrocarbon solvent, with a medium boiling range, made up predominantly from C9 to C13 hydrocarbons. According to DER Exhibit 11, the October 1989 Report of Savannah Laboratories, in the soil samples from the Georgia Street site, a total of 16,860 ug/kg dry weight of unknown volatile organics are found, 6420 ug/kg of which are in the C8-C10 range, and none of which were identified as being in a lesser or greater range than the C8-C10 range. In the soil sample, a total of 384,000 ug/kg dry weight of unknown semi-volatile organics are found, 70,000 ug/kg of which are in the C8-C13 range, and none of which were identified as being in a lesser or greater range than C8- C13. In the groundwater, a total of 726 ug/l of unknown volatile organic hydrocarbons are found, of which 367 ug/l were identified as being in the C8-C10 range, and 92 ug/l in the C7 range (toulene). Safety Kleen has acknowledged that toluene, xylene, benzene, ethylbenzene, 1,1,1,-trichloroethane, naphthalene, 1,2-dichlorobenzene, 1,2- dichloroethylene, and tetrachloroethylene are constituents, or breakdown products of constituents, present in Safety Kleen mineral spirits. Dr. Breece could not identify 1,1-dichloroethane as a constituent or breakdown product of Safety Kleen mineral spirits or immersion cleaner, although he acknowledged that it was "probably a degradation product of something." Jeffrey Brian Watts holds a doctoral degree in chemistry. He is the administrator of the Department's site investigation section, in the Bureau of Waste Cleanup. He authored a book entitled Groundwater Monitoring Parameters and Pollution Sources. Dr. Breece of Safety Kleen agreed that, according to the descriptions in Dr. Watts' book of different characteristic waste profiles generated by different industries 1, 1 - dichloroethane is a degeneration product of 1, 1, 1 - trichloroethane, which is a constituent of Safety Kleen mineral spirits. Dr. Watts is familiar with the waste chemistry and subsurface waste chemistry of Safety Kleen mineral spirits and related retail product known as immersion cleaner. Dr. Watts has been involved with hundreds of site investigations, which included the evaluation of chemical data to determine a source or likely source of soil and groundwater contamination. In all of his investigations, Dr. Watts only has found 1,2-dichlorobenzene at four sites, two of which involve Safety Kleen (the Georgia Street site is one of those two). Dr. Watts' testimony was persuasive that the soil and groundwater contamination at the Georgia Street site comes from a middle distillant petroleum fraction with low levels of chlorinated solvent. Safety Kleen mineral spirits are middle distillant petroleum fractions (C9 - C13) volatile organics and have low levels of chlorinated solvent. Gasoline is not a likely source of the contamination of the Georgia Street site because the ratio of benzene-toluene-xylene at the site and the absence of 1, 2 - dichloroethane at the site. The ratio of napthalene to benzene in fresh or waste mineral spirits as compared to the ratio of napthalene to benzene found in the soil and groundwater at the Georgia Street site differ as a result of subsurface chemical and physical reactions known as partitioning. The more soluble components such as benzene leach into the water while the less soluble components such as napthalene remain in the soil. The evidence as a whole shows it is more likely than not that the contamination of the soil and consequent continuing contamination of the groundwater up gradient of the wellfield for the City of Delray Beach was caused by the activities of Safety Kleen at the Georgia Street site, either from a leak in an underground tank, or more likely, from frequent spills of mineral spirits or overfilling of the underground tank.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered against Safety Kleen and Delores Marotta making the proposed orders for corrective action final, and requiring the development of a contamination assessment plan and implementation of a remedial action plan. RECOMMENDED in Tallahassee, Leon County, Florida, this 10th day of July 1992. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July 1992.
