Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent was licensed as an Installer A-Installation, Service and Repair of LP Gas Appliances and Equipment in the state of Florida. At all times material to this proceeding, Respondent was an Independent Contractor working for Peoples Gas Systems, Inc. (Peoples Gas) pursuant to an Agreement For Contracted Work dated April 16, 1990, executed by the Respondent and Peoples Gas on May 9, 1990. Under this agreement the work to be performed by the Respondent, among other things, was to turn on gas for customers of Peoples Gas using procedures found in Peoples Gas Safe Job Procedure Manual. On January 31, 1991 in accordance with the above referenced agreement, and pursuant to a written work order from Peoples Gas, Respondent proceeded to the residence of Steven J. and Debra J. Fernaays, Jr. located at 4336 20th Street, St. Petersburg, Florida for the purpose of conducting a Liquefied Petroleum Gas (LP Gas) service which consisted of turning the gas on at the residence. The gas had been turned off by Peoples Gas in August 1990 at the request of the previous owners. Upon arriving at the Fernaays' residence at 2:15 p.m. the Respondent: (a) determined what gas appliances were in the home; (b) determined that all gas valves to the stove burners and oven were closed and that the stove had no pilot lights (stove had electronic ignition); (c) determined that the gas valve to the water heater was closed; (d) determined that the main valve on the outside tank was closed (at this point it was discovered that there was no test-tee located in back of the regulator for use in performing the manometer test); (e) loosened the nut on the first coupling to the rear of the regulator to remove the bonnet (a bonnet is a plug-like device used to prevent gas from escaping a tank after a "turn-off"). There was no bonnet in place so the nut was retightened on the coupling; (f) turned on the gas by opening the main valve and heard the system "lock-up", but did not hear the regulator "singing" (which indicates that the system is filled with gas and there are no noticeable gas leaks in the system); (g) attempted to light the burners on the stove but could not because there was no gas getting to the stove, so the stove burners were turned off and the main valve at the tank was turned off; (h) followed the gas line from the tank checking each coupling until the bonnet was located and removed, retightened all couplings that had been loosened; (i) turned the gas back on at the tank, heard the system "lock-up" but did not hear the regulator singing. Checked all couplings around the tank, those on the lines going to the house and inside the house up to the water heater for leaks with soapy water but no leaks were found; (j) lit the pilot light and main burner on water heater and found the flame height and color to be normal which indicated proper gas pressure at water heater; (k) checked the balance of fittings inside the house that were visible for leaks with soapy water but found no leaks; (l) lit all stove burners and oven and found flame height and color to be normal which indicated proper gas pressure at the stove; (m) advised Debra Fernaays, who was present in the house during the "turn-on", that the control knob on the oven valve was missing and that she should not use oven until it was replaced. Also, brought Debra Fernaays' attention to the odor of the gas that had escaped while purging the lines of air so she could recognize the odor of the gas in the event of a leak and; (n) went outside to write ticket. After clearing nose of gas odor came back in the house to make a "sniff-test" but did not detect any odor of gas. The Respondent then left the Fernaays' residence at approximately 3:00 p.m. Within a few minutes (4-5) of leaving the Fernaays' residence, Respondent contacted Peoples Gas to advise the service department that he had not performed the water manometer test on the gas system at the Fernaays residence because there was no test tee. Respondent was placed on hold and because the telephone was not covered and there was a hard rain, he hung-up. Respondent then proceeded to find another telephone out of the rain which took approximately 20-30 minutes. This time Respondent was put through to Robert Louth, Service Manager Supervisor thereupon Respondent explained what he had done to check the gas system at the Fernaays but had not performed the water manometer test because of the missing test-tee, and asked for instructions. Louth advised Respondent that the matter would be taken care of the next morning. The telephone conversation between Louth and Respondent occurred at approximately 3:30 p.m. on January 31, 1991 and at approximately 6:30 p.m. that same day the Fernaays' residence was destroyed by an explosion as a result of gas leaking from the system and being ignited. The Fernaays were in the home at the time of the explosion and both suffered burns to their bodies as a result of the explosion. The Respondent always carried two manometers in his service truck and had those manometers with him when he arrived at the Fernaays' residence on January 31, 1991 but because the type work Respondent had contracted for with Peoples Gas did not require him to carry extra fittings, such as a test tee, he did not have a test tee with him on that day. This was the first instance that Respondent could remember where he did not perform a manometer test in connection with numerous turn-ons for Peoples Gas. The procedures used by the Respondent in turning on the gas at the Fernaays's residence on January 31, 1991 was in accordance with the Peoples Gas Safe Job Procedural Manual. The method used by the Respondent to check for gas leaks in the Fernaays' gas system is not as accurate as the manometer test for testing a gas system for gas leaks, particularly where small or minor leaks are concerned. However, the Respondent's method is an acceptable and appropriate method that is acceptable within the industry just as the test described in Appendix D, b.(2), Suggested Method For Checking Leakage, of NFPA No. 54, 1988 edition adopted by Rule 4B-1.001, Florida Administrative Code, and incorporated by reference in Rule 4B-1.023, Florida Administrative Code, which is also not as accurate as the manometer test described in Appendix D, b.(1), NFPA No. 54, 1988 edition where there may be small or minor leaks but it is a suggested method under the rule for checking gas leakage. During the evening of January 31, 1991 after the explosion and again during the day of February 1, 1991, Martin Brett employed by the Department as an LP Gas Inspector, several employees from Peoples Gas (Department has filed an Administrative Complaint against Peoples Gas in this matter) and Bill Buckley, owner S.E.A., Inc. were involved in rummaging through the debris at the site of the Fernaays' residence and extracting the different parts of Fernaays' gas system, particularly the piping, which was ultimately delivered to the S.E.A. warehouse by either S.E.A. or Peoples Gas. After delivery of the pipe to the S.E.A. warehouse, S.E.A. attempted to reconstruct the configuration of the pipe lines as they existed before the explosion. Under this reconstructed configuration there was a gas pipe line of approximately 1/2 inch in diameter that terminated in either the closet or in the ceiling of the area around the closet that was not capped. It was the Department's contention, based on the reconstructed configuration, that this pipe was uncapped at the time of turn-on by Respondent and that it was the gas leaking from this uncapped line that eventually ignited and destroyed the Fernaays' home. There was insufficient evidence to show that Brett or anyone from the Department exercised any control over the removal, transporting, storing or reconstruction of the configuration of the pipe. Neither Bill Buckley as an individual or as the owner of S.E.A. nor the employees of Peoples Gas were working for the Department in regard to removing, transporting, storing or reconstructing the pipe. None of the employees of Peoples Gas, Bill Buckley or Martin Brett testified at the hearing in regard to the removal, transporting, storing or reconstructing the pipe. The only witness called by the Department to testify was Edgar Lee Martin, Jr., employed by the Department as an LP Gas Inspector/Supervisor, who did not become involved in the investigation until February 5, 1991, which was after the removal, transporting, storing and reconstruction of the pipe had been completed. Martin relied solely on what he heard from Brett and Buckley in reaching the conclusion that there was an uncapped gas line pipe in the Fernaays' gas system on January 31, 1991 at the time of the turn-on, and it was gas leaking from the uncapped pipe that ignited and destroyed the Fernaays' home. Roger Owens, the Respondent's expert witness in the area of analysis of explosions caused by gas, opined that assuming there was a "lock-up" of the system and no singing of the regulator after the "lock-up" at the time Respondent turned on the gas at the Fernaays on January 31, 1991 and that the flames were of proper height when the stove burners and water heater were lit, there could not have been such a significant leak (open pipe 1/2 inch diameter) at the time of the turn-on by Respondents as alleged by the Department. There was insufficient evidence to show that the configuration of the gas lines as reconstructed by S.E.A., Inc. was of the same configuration as existed in the Fernaays' gas system on January 31, 1991 at the time Respondent turned on the gas at the Fernaays' residence. Likewise, there was insufficient evidence to show that there were any fittings within the gas line configuration as existed in the Fernaays gas system on January 31, 1991 that Respondent failed to check for leaks. There was insufficient evidence to show that there was an open fitting in the Fernaays' gas system at the time Respondent turned on the gas on January 31, 1991 as indicated by the reconstructed configuration of the gas lines by S.E.A., and as alleged by the Department. The uncontroverted testimony of Respondent that when he turned the gas on for the second and last time he heard the system "lock-up", and although close enough to hear the regulator "sing", did not hear the regulator sing is credible. This testimony along with the testimony of Roger Owens supports the position that there was no leaks in the system at the time Respondent turned the gas on at the Fernaays' residence on January 31, 1991, and specifically no open fitting of approximately 1/2 inch in diameter in the system as alleged by the Department.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a Final Order dismissing the administrative complaint against the Respondent, Norman J. Smith. DONE and ENTERED this 26th day of August, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1991. APPENDIX TO RECOMMENDED ORDER The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Other than that the Respondent did not perform a manometer test which is adopted in Findings of Fact 5 and 8, proposed finding of fact 3 is rejected as not being supported by substantial competent evidence in the record. Adopted in Findings of Fact 4 and 8. Adopted in substance in Finding of Fact 6 except for that portion concerning an "uncapped pipe" which is rejected as not being supported by substantial competent evidence is the record. Not stated as a finding of fact but what the expert witness testified to, however, see Findings of Fact 4, 10 and 17. Rejected as not being supported by substantial competent evidence in the record. Rulings on Proposed Finding of Fact Submitted by the Respondent Respondent's proposed finding of fact are set out in unnumbered paragraphs which shall be referred in this Appendix as numbers 1 through 19. Covered in the Preliminary Statement, otherwise unnecessary as it goes to the credibility of the witness rather than being a finding of fact. - 6. Adopted in substance in Findings of Fact 11, 12, 13, 14 and 15. 7. - 8. More of an argument than a finding of fact, otherwise subordinate, or unnecessary, or not material or relevant. Adopted in substance in Findings of Fact 3, 7 and 8. - 15. Adopted in substance in Finding of Fact 4. 16. - 17. Adopted in substance in Finding of Fact 5. Not stated as a finding of fact by what Martin testified to, otherwise unnecessary or subordinate or not material or relevant. Adopted in Finding of Fact 4. COPIES FURNISHED: Lisa S. Santucci, Esquire Department of Insurance and Treasurer 412 Larson Building Tallahassee, FL 32399-0300 Zala L. Forizs, Esquire Blasingam, Forizs & Smiljanich, P.A. P.O. Box 1259 St. Petersburg, FL 33731 Tom Gallagher, State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300
Findings Of Fact On November 16, 1981, Arnold J. Pergament, an inspector in petitioner's employ, visited Mr. Griffin's establishment. He found one fire extinguisher missing; one fire extinguisher to be of an unapproved type; and one that had last been serviced more than a year earlier. Mr. Pergament had originally called the fire extinguishers to Mr. Griffin's attention on July 20, 1981. Some structural wood had rotted, Mr. Pergament noted on November 16, 1981. Metal railings had wide spaces between vertical and horizontal members. These railings had been in place for approximately 15 years, however, without comment by Mr. Pergament who inspected all that time. On July 20, 1981, Mr. Pergament first noticed that a concrete walkway was in disrepair. In places, it was pitched at angles that made walking awkward. This situation persisted through November 16, 1981, even though it had originally been brought to Mr. Griffin's attention in July. By December 9, 1981, Mr. Griffin had begun taking steps to correct the deficiencies Mr. Pergament had listed. The parties stipulated that all problems had been corrected as of December 31, 1981.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner fine respondent Twenty-five Dollars ($25). DONE AND ENTERED this 6th day of April, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1982. COPIES FURNISHED: L. E. Griffen Carlton Court Nine Northwest Avenue D Belle Glade, Florida 33430 John A. Boggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Sherman S. Winn, Director Division of Hotels and Restaurants 725 South Bronough Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF HOTELS AND RESTAURANTS DIVISION OF HOTELS AND RESTAURANTS, Petitioner, vs. DOAH CASE NO. 82-298 H&R Control No. 60-2500H E. GRIFFIN d/b/a CARLTON COURT, Respondent. /
The Issue The issue is whether Respondent is guilty of any or all of six alleged violations of the law governing lodging establishments and, if so, what penalty should be imposed.
Findings Of Fact Respondent operates a lodging establishment known as Salazar's at 412 South 2nd Street in Immokalee. Respondent holds license control number 21-01901H. Petitioner's inspector inspected the lodging establishment on April 10 and 30, 1997. On April 10, the inspector completed a report citing violations. The alleged violations were the presence of expired fire extinguishers, a missing floor drain in the men's restroom, a locked women's restroom, leaking shower faucets in the showers in the men's restroom, no hot water in the showers in the men's restroom, a broken toilet in the men's restroom, no backflow device for the hose threaded to the faucet in the men's room, a chirping smoke detector suggestive of dead batteries, no cold water in one of the stalls in the men's restroom, a torn screen in the men's restroom, a strong smell of urine in the men's restroom, no hot water in the wash basin outside the women's restroom, a dumpster on dirt, and peeling paint in the shower stalls in the men's restroom. The inspector characterized the report as a warning. She mailed the report to Mr. Christman, who is Respondent's manager, and she gave Respondent five days from receipt of the report to correct the violations. However, several items bore asterisks, and, according to the form, Respondent had to correct these violations immediately. These violations were for the fire extinguishers, smoke alarm, lack of hot and cold water, and odor of urine. On April 30, 1997, the inspector returned and reinspected the lodging. She found nine violations. The alleged violations were expired fire extinguishers, a missing floor drain in the men's restroom, a broken toilet in the men's restroom, no backflow device between the faucet and hose, no cold water in one stall of the men's restroom, a torn screen in the men's restroom, a locked women's restroom, a dumpster on the dirt, and peeling paint in the shower stalls in the men's restroom. The only urgent violations remaining from the last inspection were for the fire extinguishers and lack of cold water. On May 29, 1997, the inspector returned and performed a second reinspection. She found the same violations as found previously, except for those concerning the dumpster and peeling paint. The following day, Petitioner issued Respondent the Notice to Show Cause that commenced this case. Respondent failed to repair or replace the torn screen in the men's restroom within the allotted time after the first inspection. It is no defense that the screen is immediately redamaged. Respondent made the women's restroom reasonably available to guests of residents by giving the key to a resident who made it available to women as needed. Respondent failed to repair the cold water in the men's restroom within the allotted time after the first inspection. Respondent failed to replace the missing floor drain or repair the toilet within the allotted time after the first inspection. Respondent failed to install a backflow device between the hose and the faucet within the allotted time after the first inspection. However, Respondent did not understand what Petitioner was requiring, and Petitioner's inspection reports did not clarify this requirement. Respondent was not available during the correction period, and he later had some trouble trying to obtain help from Petitioner in explaining what he needed to do. Although a backflow device serves the important purpose of preventing contaminated water from backflowing up the hose and into the public water supply, the circumstances of this case do not permit a finding of a violation.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants, Department of Business and Professional Regulation, enter a final order imposing a fine of $1300 against Respondent. DONE AND ENTERED this 26th day of March, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 26th day of March, 1998. COPIES FURNISHED: Scott R. Fransen Chief Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Robert J. Christman, Manager Salazar's 4799 State Road 29 South Punta Gorda, Florida 33935 Dorothy W. Joyce, Director Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact The parties stipulated that respondent Veterans Gas and Appliance Co., Inc., trading as Veterans Gas Company, now holds and has at all pertinent times has held a license issued by petitioner. Petitioner has licensed respondent as a "[d]ealer in liquefied petroleum [LP] gas, in appliances and in equipment for use of such gas and installation." Petitioner's Exhibit No. 1. Respondent has been in business for 25 years or so, at least. (T.48) On December 8, 1983, Clyde K. "Ken" Wallace, a gas serviceman in respondent's employ, was at the office of the Veterans Gas Company in Fort Walton, when a Mr. Wright telephoned, requesting that LP gas be delivered to the Ships Chandler in Destin, Mr. Wright's place of business. Mr. Wallace set out by himself for Destin in a bulk-fill truck to make the delivery. When he arrived, he found he could not enter the driveway, so he parked on the south side of U.S. Highway 98 about 15 feet from the Ships Chandler tank. He knew where the tank was because he had filled it the previous winter, the last time he had been there. Standing with two young ladies in the doorway of the Ships Chandler, Mr. Wright greeted him, saying something like, "I'm glad to see you. We're freezing." Mr. Wallace set right to work. Initially unable to remove the dome which blocked access to the underground tank, he asked Mr. Wright for a claw hammer. With the hammer he succeeded in removing the dome, and then announced he was going to turn off the service valve, which is the valve that allows gas to enter the building from the tank. Mr. Wright asked him not to turn the valve off, saying he was going to ignite the pilot light in his furnace, and disappeared into the store. Mr. Wallace took the dust cap off and, hooking up the hose to the fill valve, pumped one hundred gallons of LP gas at the rate of 25 to 30 gallons a minute, according to the meter on the truck. Before introducing LP gas into the tank, Mr. Wallace never turned off the service valve or any other valve through which LP gas flowed before passing through the regulator and into the system of pipes. In fact, he never touched the service valve, and did not know for sure whether it was on or off. Furnace apparently lit, Mr. Wright reemerged from his store after a few minutes, a check in hand to pay for the gas. Earlier on, at some point during their conversation, Mr. Wright asked Mr. Wallace whether he knew if nearby shop owners heated with gas or otherwise used gas, or something to that effect. Mr. Wallace said he did not know. The question arose because the complex had been a motel with central gas heat before it had been remodeled into shops and offices; and the conversion had taken place since the preceding winter. Mr. Wright wondered aloud whether or not his neighbors owed him money for gas. Mr. Wallace saw Mr. Wright enter one shop door, leave, enter another, leave, and so forth, presumably inquiring of the people inside whether they used gas. By the time he disengaged the hose and closed the fill valve, Mr. Wright was nowhere to be found. Mr. Wallace indicated on the invoice that it had been paid, dropped it on a desk or counter in the Ships Chandler, and left. After Mr. Wallace had driven off, an explosion occurred causing a fire and injuries to two persons. Explosion, fire and injuries occurred not in the Ships Chandler, but on the premises occupied by Way and Associates, Inc. Whoever did the remodeling cut the gas line and neglected to cap it, so that LP gas pumped into the Ships Chandler tank, ended up in a space between the dry wall and the outside wall in the building Way and Associates, Inc. occupied. Ignition of the LP gas accumulated there caused the explosion. Respondent had nothing to do either with the remodeling or with the initial installation of the gas pipes. If Mr. Wallace had followed standard industry practice, he would have turned off the service valve before pumping LP gas into the fill valve of an empty system. After pumping LP gas into the tank, he would have turned off the pump; he would have asked Mr. Wright to turn off all appliances, and, once the appliances were off, he would have turned the service valve back on to charge the system. Then he would have turned the service valve off again, in order to listen carefully. If he had done that, he would have heard LP gas moving through the regulator, even after the service valve was closed, and he would have realized that gas was leaking. Mr. Wallace, who started working for respondent in July of 1982, is qualified as a gas service man but not as a gas appliance service man. Like other new drivers respondent hires, Mr. Wallace went out with an older driver or the manager to learn the route and safety procedures for at least two weeks before going out on his own, but he was never told to check for leaks when introducing LP gas into an empty system.
Findings Of Fact Based upon the prehearing statement, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner is a Florida corporation in good standing, authorized to do business in this state. The Petitioner owns and controls the site which is the subject matter of these proceedings. Such site is located in Brevard County, Florida. The Department has identified the subject site as DER facility no. 05- 8500985 (the facility). At all times material to this case, the facility consisted of: three underground storage tanks (UST), one 3000 gallon UST used for storing diesel fuel, one 1000 gallon UST used for storing diesel fuel, and one 1000 gallon UST used for storing gasoline; five monitoring wells; and pipes and pumps related to the foregoing system. The facility constituted a storage tank system as defined in Section 376.301, Florida Statutes, and Rule 17-761.200(38), Florida Administrative Code. The Petitioner holds, and is named insured for, third party pollution liability insurance applicable to the facility. Such insurance was issued pursuant to Section 376.3072, Florida Statutes. The policy for the foregoing insurance, policy no. FPL7622040, was in force from March 22, 1991 through March 22, 1992. The Department issued a notice of eligibility for restoration insurance to Petitioner for the above-described facility. Based upon the foregoing, the Petitioner is a participating owner or operator as defined in Chapter 17-769, Florida Administrative Code. Pursuant to Section 376.3073, Florida Statutes, Brevard County operates a local program that has been approved by the Department. Such local program is managed by the Brevard County Office of Natural Resources Management (County). In July, 1990, a discharge of diesel fuel occurred at the Petitioner's facility. Petitioner's employees estimated that approximately twenty gallons of diesel fuel filled the pump box overflowed from the pump box across the seawall into the adjacent waters. Upon discovering the discharge, Petitioner shut down diesel fuel dispensing until repairs could be made to the apparent cause of the leak. Additionally, the diesel fuel remaining in the pump box and on top of the tank area was removed. Contaminated soil in the pump box was also removed. The apparent cause of the discharge described above was attributed to cracked pipe fittings which were repaired by Glover Oil Co. within a few days of the discharge. No detailed inspection was made to the system to determine if additional sources of discharge existed. Petitioner did not complete a discharge reporting form (DRF) for the above-described incident until April 18, 1991. The April DRF was completed after Petitioner was directed to do so by Ms. DiStasio, an inspector employed by the County. From August, 1990 until May, 1991, at least one monitoring well at the Petitioner's facility showed free product accumulating in the well pipe. The exact amounts of the free product found are unknown, but reports estimated the level at 100 centimeters. From August, 1990 until September, 1991, the Petitioner did not undertake any measure to explore the origin of the free product found in the monitoring well. Further, the Petitioner did not report the monitoring well testing results as a suspected or confirmed discharge. In April, 1991, an inspection of the Petitioner's facility was performed by Ms. DiStasio. That inspection resulted in a letter to the Petitioner that outlined several violations at the facility. Among those violations listed was the Petitioner's failure to report a suspected or confirmed discharge. At the time of the April, 1991 inspection, Petitioner had reported neither the July, 1990 discharge (a known discharge) nor the monitoring well test results (at the minimum a suspected discharge). In connection with the July, 1990 discharge, following the repairs made by Glover Oil, Petitioner did not have the system pressure tested. Only the area visible from the pump box was checked for leakage. In July, 1991, when Ms. DiStasio performed a re-inspection of the facility, she found Petitioner had not (in the interim period, April through July, 1991) taken any steps to test the system or to remove the fuels from the suspect tanks. Since the free product continued to appear in the monitoring well, a pressure test of the system would have definitively answered the discharge question. Alternatively, the removal of the fuels would have prevented further seepage until the system could be pressure tested. On August 6, 1991, the Petitioner issued a letter that advised the County that it had stopped dispensing fuel at the facility. The tanks were not drained, however, until on or about September 11, 1991. Further, the August, 1991, letter acknowledged that the Petitioner "had proposals for initial remedial cleanup related to diesel contamination in the tank field area." Obviously, the Petitioner must have contemplated a need for such cleanup. On September 11, 1991, at the Petitioner's request, Petroleum Equipment Contractors, Inc. attempted to pressure test the 3000 gallon diesel tank. The purpose of the pressure test was to determine if the diesel system had a leak. The company could not even run the test on the tank because of the defective system. A similar test on the Petitioner's gasoline tank passed without incident. Once the Petitioner learned the results of the test, it initiated Initial Remedial Action (IRA) as described on the IRA report filed by Universal Engineering Sciences. The IRA consisted of the removal of the excessively contaminated soil, approximately 74 cubic yards, and the removal of the USTs. The foregoing work was completed on or about September 15, 1991. On October 4, 1991, the Petitioner filed a discharge reporting form dated October 2, 1991, that identified September 11, 1991, as the date of discovery for the discharge. This discharge discovery was allegedly made incidental to the diesel tank pressure testing failure. No reference was made to the months of monitoring well reports showing a free product. On October 8, 1991, Ms. DiStasio prepared a Florida Petroleum Liability Insurance and Restoration Program Compliance Checklist that reported the Petitioner was not in compliance with applicable statutes and rules. When Petitioner applied for restoration coverage under the statute on January 31, 1992, such request was denied by the Department on March 6, 1992. The basis for the denial was as follows: Failure to notify the Department of a positive response to sampling within three working days of testing, pursuant to the rule in effect at the time of the initial response (17-61.050(1), Florida Administrative Code). An inspection by Brevard County on April 17, 1991, revealed that free product had been detected in one monitoring well since July 1990. The discharge reporting form was not submitted until October 2, 1991.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order denying Petitioner's claim for restoration coverage under the Florida Petroleum Liability Insurance and Restoration Program. DONE and ENTERED this 31st day of December, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1992. APPENDIX TO CASE NO. 92-2121 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1, 2, 8, 12, 15, 16, 17, and 18 are accepted. Except as found above, paragraph 3 is rejected as not supported by the record cited. It is accepted that Brevard County acted as the local agent in this case. Paragraph 4 is rejected as not supported by the record. With regard to paragraph 5, substituting "A" for "The" and "confirmed" for "discovered" the paragraph can be accepted; otherwise rejected as contrary to the record. Similarly, with the substitution of the word "confirmation" for "discovery" in Paragraph 6, the paragraph can be accepted; otherwise rejected as contrary to the record. No suitable explanation was offered by the Petitioner for why, if a discharge were not reasonably suspected, it retained the company to immediately remove the USTs upon the failed pressure testing. Clearly, the Club had a notion the tanks were a discharge problem. Paragraph 7 is rejected as contrary to the weight of the evidence. While there was some confusion as to the exact volume of free product in the monitoring well, there was clear evidence that such was reported for many months prior to the confirmation in September, 1991. Further, the main confusion regarding the product found in the well was not as to its existence, but as to the individual's knowledge of the metric measurement of it. One hundred centimeters of product in a two or three inch pipe would not be a minute amount. Except as addressed in the foregoing findings, paragraph 9 is rejected as contrary to the weight of the evidence. Petitioner did not undertake all repairs necessary to abate a discharge problem. Paragraph 10 is rejected as not supported by the weight of credible evidence or irrelevant. Clearly, as early as August, 1990, Petitioner knew or should have known of a discharge problem based upon the monitoring well report; that all of the discharge did not necessarily flow from the fittings that had been repaired is irrelevant. Further, Petitioner did no testing to verify that the replaced fittings had solved the discharge problem (especially in light of the well reports). Paragraph 11 is rejected as an inaccurate restatement of the exhibit. Paragraph 13 is rejected as contrary to the weight of the evidence. Incidentally, the hearing in this case was in the year 1992. Paragraph 14 is rejected as contrary to the weight of credible evidence. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 11 are accepted. Paragraph 12 is rejected as a misstatement of the exhibit cited. Paragraphs 13 through 27 are accepted. COPIES FURNISHED: Brigette A. Ffolkes Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Scott E. Wilt MAGUIRE, VOORHIS & WELLS, P.A. 2 South Orange Plaza P.O. Box 633 Orlando, Florida 32802 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Petitioner owns and operates a gasoline station located at 4625 U.S. 27 North, Davenport, Florida. The site was constructed in late 1986 and opened in early 1987. The underground tanks storing the gasoline are connected by pipes running underground to the pumps from which the gasoline is dispensed. A small portion of the underground supply pipe is accessible from the surface through a manhole. The excavated area exposing the pipe and what appears to be a valve are separated from the surrounding soil by a large, cylindrical corrugated pipe laid perpendicular to and above the underground supply pump. The leak in question was caused when the lower edge of the corrugated pipe cut into the underground supply pipe for the premium gasoline. The cut was caused by the cumulative effect of vehicular traffic driving over the manhole cover, placing pressure on the corrugated pipe, and eventually forcing the edge of the corrugated pipe to rupture the underground supply pipe with which it was in contact. Petitioner owns and operates a large number of gasoline stations. This incident is the first time that a corrugated pipe has cut into an underground supply pipe. The use of the corrugated pipe is not at issue in the present case. Pursuant to company policy, station employees complete a daily recap each day and forward the recap document to Petitioner. Part of the recap document is devoted to "gas inventory." The daily recap, which covers the preceding 24 hours, requires that an employee determine the amount of gasoline in each underground storage tank, adjust the figure for amounts sold and delivered, and then compare the figure to the amount determined to have been in the tank 24 hours earlier. This reconciliation is normally completed by mid- to late-morning each day. A station employee "sticks" each tank to determine how much gasoline it contains. The procedure requires that the employee insert a pole into the bottom of an underground tank. By observing the length of the pole dampened by gasoline, the employee can calculate approximately the amount of gasoline in the tank. Although stick reading results in an approximation, the results are fairly accurate, leaving at most, in the case of this 12,000-gallon tank, a margin of error of 50 gallons. "Sticking" normally takes place daily between 6:30 a.m. and 7:00 a.m. On the morning of March 6, 1988, which was a Sunday, the employee sticking the tank calculated that the premium tank held 5419 gallons. There had been no deliveries during the preceding 24 hours. During the same period, the station had sold 914 gallons of premium gasoline. However, the last sticking 24 hours earlier had disclosed 7989 gallons. A total of 1656 gallons were thus unaccounted for. The recap document requires that the station notify Respondent's "Dist. Mgr. immediately if shortage of 500 gallons or more appears." The employee failed to do so. On the morning of March 7, 1988, the employee sticking the premium tank calculated that it held 2147 gallons. During the preceding 24 hours, there had been no deliveries and 826 gallons of premium gasoline had been sold. Consequently, 2446 gallons were missing, for a total of 4102 gallons over the past two stickings. As soon as the reconciliation was completed, the employee contacted Respondent's management, which ordered that the pump be shut down during the afternoon of March 7, 1988. Comparing the sales of premium gasoline for the 24- hour period ending March 8 with those ending March 7, which are comparable because the sale of regular gasoline on those two days is almost identical, the station sold about 39% of a normal day's sales of premium gasoline. Reflecting the shutdown of the premium pumps on March 7, the employee sticking the tank on the morning of March 8, 1988, found 593 gallons. During the preceding 24 hours, there had been no deliveries and sales of 321 gallons of premium had been sold, leaving 1233 gallons unaccounted for. The total over the three stickings was 5335 gallons lost. The station had previously not experienced losses even approaching this magnitude. The daily recap for the 24-hour period ending on March 5, 1988, showed no significant loss. Although fluctuations in volume may occur shortly after deliveries due to temperature differentials, such fluctuations could not reasonably have accounted for these vast discrepancies. Theft, measurement errors, and recording errors may also account for variations in readings, but not of the magnitude and repetition involved in this case. Between the time of the reconciliation on the morning of March 6 and the system shutdown on the afternoon of March 7, the system continued operating and, thus, leaking for 28-30 hours. Given that 2446 gallons were lost during the 24-hour period ending on March 7 and 1233 gallons lost during about 9 hours on March 8, at least 100 gallons per hour were escaping from the pipe during these last 28-30 hours, for a total of between 2800 and 3000 gallons. For reasons discussed in the Conclusions of Law, the actions and omissions of the station employees following the reconciliation of inventory figures on March 6 constituted gross negligence in the maintenance of a petroleum storage system. These actions and omissions were in the scope of employment. During the relevant period of time, none of Respondent's employees performed monthly checks of the monitoring wells to determine the presence of leaks. This failure was due to ignorance and was not wilful. This failure in no way contributed to the leak or to any delay in discovering the leak. During the relevant period of time, the monitoring wells had not been properly grouted to prevent introduction of surficial contamination. However, this failure was unknown to Petitioner, which had hired a contractor to construct the wells and reasonably had relied on the contractor to grout properly the monitoring wells. The improper grouting in no way contributed to the leak or to any delay in discovering the leak. During the relevant period of time, Petitioner was not performing weekly or five-day averages of inventory records concerning gasoline. The failure to perform these reconciliations in no way contributed to the leak or to any delay in discovering the leak. Following the discovery of the leak, Petitioner notified Respondent on March 8. Petitioner requested approval to participate in the Early Detection Incentive Program by filing a Notification Application dated March 29, 1988. On July 14, 1988, Respondent completed the Pollutant Storage Tank System Inspection Report Form and Early Detection Incentive Program Compliance Verification Checklist. These documents indicate that Respondent was not monitoring monthly its monitoring wells, failed to grout properly its monitoring wells, was not performing the weekly or five-day averages of inventory (although it was taking daily inventory and reconciling opening and closing inventories), and did not immediately investigate the 1600-gallon shortage disclosed on the morning of March 6, 1988. By letter dated September 30, 1988, Respondent notified Petitioner that its site was ineligible for state-administered cleanup under the Early Detection Incentive Program. The letter cited as reasons the wilful failure to perform monthly checks of the monitoring well, the failure to immediately investigate discrepancies in inventory records while the system continued to operate after initial discovery of the 1600-gallon loss, and the improper construction of the monitoring well with respect to the improper grouting. The letter concludes that these items constitute gross negligence in the maintenance of a petroleum storage system, which precludes participation in the program.
Recommendation Based on the foregoing, it is hereby recommended that the Department of Environmental Regulation enter a Final Order denying the application of Petitioner to participate in the Early Detection Incentive Program. RECOMMENDED this 26th day of March, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1561 Treatment Accorded Proposed Findings of Petitioner 1-4: adopted. 5-6: adopted in substance. 7-16: adopted. 17: rejected as unsupported by the greater weight of the evidence. 18-20: adopted or adopted in substance. 21: to the extent that this proposed finding suggests that Petitioner was performing the five-day or weekly averaging, rejected as unsupported by the greater weight of the evidence. However, in view of the findings and conclusions contained in the Recommended Order, rejected as unnecessary. 22-26: adopted. Treatment Accorded Proposed Findings of Respondent 1-4: rejected as conclusions of law. 5-6: adopted. 7-16: rejected as subordinate. 17: rejected as an inference unsupported by the greater weight of the evidence. 18-26: adopted. 27: rejected as irrelevant. 28-29 and 31: rejected as legal argument. 30: adopted. 32: adopted. 33: adopted except that the system was shut down at some point into the day of the second sticking showing a significant shortage. 34-38: adopted or adopted in substance. 39: rejected as speculation. 40: rejected as irrelevant. 41-42: adopted. 43: rejected as irrelevant. 44-45: rejected as subordinate. 46: adopted. 47-49: rejected as subordinate. 50: adopted. 51-53: rejected as vague with respect to reference to "Racetrac." 54: adopted. 55: rejected as cumulative. 56-57: rejected as unnecessary. COPIES FURNISHED: Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Steven M. Mills Decker & Hallman Suite 1200 Marquis II Tower 285 Peachtree Center Avenue Atlanta, GA 30303 Michael P. Donaldson Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Whether a proposed amendment to Florida Administrative Code Rule 69A-6.005(2) constitutes an invalid exercise of delegated legislative authority in violation of section 120.52(8)(e), Florida Statutes (2011).1/
Findings Of Fact Combs Oil is engaged in the distribution and storage of petroleum products in southwest Florida. The distribution and storage facility (facility) operated by Combs Oil, which is located at 76 Industrial Boulevard in Collier County, Florida, contains both underground and aboveground petroleum storage tanks and is considered a bulk petroleum storage facility. As a bulk petroleum storage facility, the operation does not directly dispense fuel to cars, boats, planes, and the like. Through its operations, Combs Oil distributes petroleum products to retail locations and to entities, such as governmental agencies, golf courses, and the commercial fishing, cattle, and citrus industries. Several years ago, Combs Oil purchased three 29,000- gallon aboveground, double-walled storage tanks and currently desires to utilize the tanks at its facility to store Class I petroleum products. These tanks are considered secondary containment-type tanks. Regulatory officials in Collier County have advised Combs Oil that the company will not be able to store petroleum in the 29,000 gallon aboveground tanks because to do so would be in violation of the 12,000-gallon capacity limit established by NFPA 30. NFPA 30, section 22.11.4.1 (2008), is included within NFPA Standard 1, as referenced in section 633.0215(2), Florida Statutes. NFPA 30, section 22.11.4.1 (2008), provides that where a secondary containment-type tank is used to provide spill control, the capacity of the tank shall not exceed 12,000 gallons. The 2008 version of NFPA 30 made no change to the existing prohibition against the use of secondary containment- type, aboveground tanks in excess of 12,000 gallons. Substantively, NFPA 30, section 22.11.4.1 (2008), is the same as the 2000 and 2003 versions; however, the 2008 version, according to Combs Oil, includes commentary from NFPA's technical committee that was not in previous versions of the rule. The commentary from NFPA's technical committee reads, in material part, as follows, Subsection 22.11.4 was initially added, in 1993, as an exception to the spill control provisions of NFPA 30. The exception addressed the growing use of factory-built aboveground tanks that incorporated some form of secondary containment. The secondary containment is primarily an environmental protection measure and usually takes the form of a double shell with an annular (interstitial) space or an integral spill pan. In developing this exception, the NFPA 30 Technical Committee on Tank Storage and Piping Systems considered many issues and determined that a double shell alone would not provide the level of spill control originally intended. First, the technical committee recognized that secondary containment and spill control are not synonymous. Secondary containment is a term that was originally applied to double shell underground tanks; such tanks have been in use for many years and are now the choice for underground installations, as a result of stricter environmental regulations. The outer shell contains any release of product if the inner primary tank develops a leak. The concept has now been applied to aboveground tanks. However, almost all product releases from aboveground tanks result from overfilling or a break in a pipe connected to the tank. Rarely does an aboveground tank release product because of a leak in its shell. In a sense, secondary containment, when applied to an aboveground tank, is a solution in search of a problem. Second, the technical committee was not convinced that the bare steel outer shell would not fail prematurely from an exposure fire. Their concern arose from the fact that the contained liquid is not in contact with the outer shell and, therefore, cannot absorb the thermal energy impinging on it. Third, for smaller tanks, the outer shell offered virtually no impact protection. Piercing the outer shell would likely result in piercing the primary tank as well. Even if the primary tank were not damaged, secondary containment would have been compromised. Nevertheless, the technical committee determined that an aboveground secondary containment-type tank could be installed without meeting the original spill control provisions of NFPA 30, if the protective features enumerated here are provided. The maximum capacity of 12,000 gal for Class 1 liquids and 20,000 gal for Class II and III liquids was chosen to correlate with the maximum capacities allowed by NFPA 30A, Code for Motor Fuel Dispensing Facilities and Repair Garages, for aboveground tanks at service stations. Piping connections below the liquid level are not allowed and an anti-siphon device is required to prevent release of liquid should there be a break in the pipeline. The emphasized portion of the quoted material provides the basis for Petitioner's assertion that "NFPA has done no study to warrant the application of this standard to terminal or bulk facilities." Combs Oil did not offer any testimony from any person affiliated with NFPA's technical committee. Combs Oil did not call any witness who has served on NFPA's technical committee. Combs Oil did not offer any documentary evidence showing the workings of NFPA's technical committee as the committee contemplated the inclusion of the newly inserted notes into the technical committee's commentary. Per the requirements of section 633.0215, the Department, as part of its three-year update to the Florida Fire Prevention Code, seeks to amend rule 69A-6.005(2) to reflect the adoption of the 2008 version of NFPA 30. It is undisputed that NFPA 30 governs the facility operated by Combs Oil. It is also undisputed that NFPA 30A, when considered in isolation, does not apply to the facility at issue. Mr. Charles Frank works as an operations review specialist for the State Fire Marshall's Office, Bureau of Fire Prevention. In this capacity, Mr. Frank offers "informal interpretation for various agencies that are looking for code interpretations." Mr. Frank does not serve in a policy-making position with the State Fire Marshall's Office. From 2005 until 2009, Mr. Frank was a member of the NFPA. Mr. Frank is familiar with how NFPA develops and compiles its fire code, but he has personally never participated in NFPA's code development process. Mr. Frank is neither qualified, nor authorized to speak on behalf of NFPA with respect to technical matters related to NFPA's rules. Prior to filing the instant challenge, Combs Oil, pursuant to section 120.542, filed with the Department on or about August 3, 2007, a "Petition for Variance From, or Waiver of, Rule 69A-3[.]012(1), Florida Administrative Code [Waiver]." Petitioner's Waiver application requested that the Department waive the requirements of the applicable rule and allow Petitioner to install the three 29,000-gallon tanks. On or about November 2, 2007, the Department denied Petitioner's Waiver request. In response to the denial, Petitioner filed a Petition for Formal Administrative Hearing, which was assigned DOAH Case No. 08-1714. On July 8, 2008, pursuant to a Joint Motion to Dismiss, the Division of Administrative Hearings issued an Order closing its file and relinquishing jurisdiction to the Department.
The Issue Whether Petitioner's site located at 2188 N.W. 20th Street, Miami, Florida, is eligible to participate in the Early Detection Incentive Program.
Findings Of Fact Petitioner is the owner of a gasoline service station located at 2188 N.W. 20th Street, Miami, Florida 33142. Tomas Pequeno, Sr., is the President and owner of X.O. # 1 Corporation. International Petroleum currently operates the facility located at 2188 N.W. 20th Street, Miami, Florida 33142 pursuant to a lease agreement with X.O. #1 Corporation. The mailing address of the subject facility and of X.O. #1 Corporation is 12190 S.W. 99th Street, Miami, Florida 33186. Aurelio Rodriguez is part owner of International Petroleum and has been the manager and operator of the facility in question since 1988. Since 1988 Tomas Pequeno, Sr., has delegated authority to his son, Tomas Pequeno, Jr., to act on his behalf with regard to the business of X.O. #1 Corporation and the facility located at 2188 N.W. 20th Street, Miami, Florida 33142. At the subject facility there are six underground storage tanks which receive and dispense petroleum products. These underground storage tanks are owned by X.O. #1 Corporation and constitute part of the property leased to International Petroleum. At all times pertinent to this proceeding, there were functioning monitoring wells on the premises for the purpose of detecting leaks in the underground storage system. At the formal hearing, Tomas Pequeno, Jr., testified that on September 21, 1987, an odor of petroleum in one of the monitoring wells on the subject site was detected during a routine inspection of the premises. Mr. Pequeno, Jr., was advised by the inspector that there might be a leak in the system. On November 17, 1987, Mr. Pequeno, Jr., caused the tanks on the premises to be relined. No leaks were detected by the tests that were conducted following the relining of the tanks. Paragraph 9 of the Pretrial Stipulation filed by the parties on July 24, 1991, is as follows: 9. That the date of discovery of petroleum contamination at this facility was September 21, 1987, as indicated by Tomas Pequeno. On December 9, 1988, Petitioner submitted to Respondent an "Early Detection Incentive Program Notification Application" which was signed by Tomas Pequeno, Sr., as president of X.O. #1 Corporation. This form had been completed by Tomas Pequeno, Jr., and given to his father for his execution. This form represented that contamination at the site was detected September 21, 1987, by a manual test of the monitoring wells, that the number of gallons lost was unknown, that the petroleum contamination was due to leaking storage tanks, and that the system had been repaired. The cause of the leak in the piping and the cause of the leak in the tanks were stated as being unknown. Mr. Pequeno, Jr., testified at the formal hearing that: "There was never a discharge from that site and there is not a discharge right now at this moment." Mr. Pequeno, Jr., also answered in the affirmative to the following question: "Mr. Pequeno, are you testifying there is no contamination at this facility?" 1/ Mr. Pequeno, Jr., testified further that he submitted the Early Detection Incentive Program Notification Application as a precaution in the event contamination was discovered. The testimony of Mr. Pequeno, Jr., at the formal hearing contradicted the representations made on the Early Detection Incentive Program Notification Application. At all times pertinent to this proceeding both Mr. Pequeno, Jr., and Mr. Rodriguez were aware that the primary purpose of a monitoring well is to detect leaks from a petroleum storage system. At all times pertinent to this proceeding both Mr. Pequeno, Jr., and Mr. Rodriguez were aware of the existence of the monitoring wells on the subject site. The Dade County Department of Environmental Management (DERM) had asked the operator of the facility to submit monitoring reports. 2/ Mr. Rodriguez was unable to recall when DERM first requested the monitoring reports, but it is clear from his testimony that the request was made several months before the hearing. The operator knew that monitoring system checks were required and had been requested by DERM to provide reports of those monitoring system checks. The failure to conduct regular, periodic monitoring system checks creates the risk that a leak in a petroleum storage system will continue undetected. Neither the operator nor the owner monitored the underground petroleum storage system on a regular basis until July of 1991, when the operator began to monitor the system on a regular basis and began to keep a log of the results. Since September 21, 1987, Petitioner was aware that a sample of water from one of the monitoring wells (monitoring well #9) at the subject facility consistently contained the odor of petroleum. At the time of the formal hearing, monitoring well #9 still contained the odor of petroleum. On January 26, 1989, Mr. Rodriguez, as the operator of the facility, received a copy of the Pollutant Storage Tank System Inspection Report form completed by a DERM inspector. This report placed the operator of the facility on notice that evidence of a discharge of pollutants had been discovered at the facility. On March 3, 1989, DERM sent to Petitioner by certified mail a letter which provided, in pertinent part, as follows: The Department of Environmental Resources Management acknowledges that you have applied for a state administered cleanup under the "Early Detection Incentive Program" ... . However, a review of the Department's records reveals that the source of contamination has not been determined. Therefore, the discharge of hazardous materials from the underground storage system to the adjacent soils or waters may be continuing. * * * ... [Y]ou are required to: Immediately upon receipt of this letter, CEASE and DESIST from any further unauthorized discharges to the ground and/or groundwater of Dade County. Immediately upon receipt of this letter, hydrostatically test, and repair any leaks to all underground tanks and transmission lines at the subject site. Within thirty (30) days of receipt of this letter, submit to this Department certifica- tion that all underground tanks and transmis- sion lines at the subject site are tight and are not discharging contaminants to the environment. ... The letter dated March 3, 1989, was received by Petitioner on March 7, 1989. By that letter, Petitioner was placed on notice that there was a risk that a discharge of hazardous materials from the underground storage system to the adjacent soils and waters was continuing. By that letter, Petitioner was also placed on notice that DERM required that it hydrostatically test all underground tanks and transmission lines at the subject site in order to determine if leaks existed in the tanks and lines. By that letter, Petitioner was also placed on notice that DERM required that Petitioner certify that all underground tanks and transmission lines at the subject site are tight and are not discharging contaminants to the environment. Mr. Pequeno, Jr., believed that by having the tanks relined and repaired in November 1987, Petitioner had complied with the requests made in DERM's letter of March 3, 1989. On March 13, 1989, Mr. Pequeno, Jr., called DERM to determine whether the tests that were conducted following the relining and the repair of the tanks in November 1987, satisfied the requirements contained in DERM's letter of March 3, 1989. When Mr. Pequeno, Jr., did not get a response to his inquiry, he assumed that Petitioner was in compliance. Petitioner took no steps until two years later to hydrostatically test its underground tanks and transmission lines. On March 21, 1991, Petitioner had a tank tightness test conducted at the facility. The tank system tightness test conducted on March 21, 1991, indicated that five tanks did not test tight. There was no evidence that Petitioner has filed a certification with DERM that all underground tanks and transmission lines at the subject site are tight and are not discharging contaminants to the environment. No fuel transmission line tightness test has been conducted pursuant to DERM's March 3, 1989, request. As of the date of the formal hearing, Petitioner had not performed a complete investigation to determine the source of contamination as DERM had requested. The underground storage system at the subject site were continuously used for the storage and dispensing of petroleum products from September 21, 1987, to the date of the formal hearing. At all times pertinent to this proceeding deliveries of petroleum products were made to the tanks which had been identified by Petitioner as leaking. Petitioner's failure to conduct a complete investigation to determine the source of contamination, its failure to repair the tanks which failed the tank tightness, and its continued use of these tanks, create the risk that a discharge of hazardous materials may be continuing at the present time. By letter dated February 13, 1991, Respondent denied Petitioner's eligibility to participate in the Early Detection Incentive Notification Program. This letter provided, in pertinent part, as follows: The Department of Environmental Regulation has completed its eligibility review of your Early Detection Incentive Notification Application. Based upon information given in this application and a compliance verification evaluation, the Department has determined that this site is not eligible for state-administered cleanup pursuant to Section 376.3071(9), Florida Statutes (1986) for the following reasons: Failure to have storage tanks tightness tested. Request was made by the Department of Environ- mental Resources Management (DERM) on March 3, 1989. This shall be construed to be gross negligence in the maintenance of a storage system. According to Section 376.3071(9)(b)3, Florida Statutes, sites shall not be eligible for state- administered cleanup where the owner or operator has been grossly negligent in the maintenance of a petroleum storage system. By Pre-Trial Stipulation filed July 24, 1991, the parties entered into certain factual stipulations and framed the following two issues of law to be resolved: Whether X.O. #1 Corporation was grossly negligent as defined under Section 376.3071(9)(b)3, Florida Statutes, for failing to immediately investigate and abate the source of a petroleum contamination by conducting a tank and line tightness test pursuant to a request by DERM (Dade County Department of Environmental Resources Management). Whether X.O. #1 Corporation was grossly negligent as defined under Section 376.3071(9)(b)3, Florida Statues, for failing to make monthly monitoring system checks where such systems are in place.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered by the Florida Department of Environmental Regulation which denies the application of Petitioner to participate in the Early Detection Incentive Program for its facilities located at 2188 N.W. 20th Street, Miami, Florida 33142. RECOMMENDED in Tallahassee, Leon County, Florida, this 25th day of September, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1991.
