Findings Of Fact The Petitioner is the owner of real property located at 726 North Beach Street, Daytona Beach, Florida, also known as DEP Facility No. 64-9100172. The Petitioner has been the owner of this site from 1982 to the present. From approximately 1984 and 1988, it was leased to a Mr. Jack Delaney. Apparently, during that time or before, the site was used as an AAMCO transmission repair shop and automobile repair facility. The Respondent, Department of Environmental Protection (DEP, Department), is an agency of the State of Florida responsible, in pertinent part, for the administration of Florida's Abandoned Tanks Restoration Program. Through an agreement with Volusia County, Florida, the county where the subject site is located, the Department has delegated to the Volusia County Environmental Control Division inspection and regulatory authority for purposes of cleanup of sites contaminated by petroleum, petroleum products or hydrocarbons. The facility in question included two 1,000-gallon underground storage tanks and three 550-gallon underground storage tanks (UST's). All of the tanks, when in service, had contained petroleum products of one form or another. The tanks at the front or "street-side" end of the facility property, tanks one and five, most likely contained gasoline, when in service, although at the time of inspection and remedial action, the tanks were filled with water. All of the storage tanks at the facility were removed under the supervision of the Volusia County environmental regulatory agency. The tanks were properly disposed of by a qualified subcontractor, and the contaminated soil at the site was removed and stored in a segregated, protected fashion, until shipment to a thermal processor to be burned and thus cleansed of its petroleum-related pollutants. The Volusia County Environmental Control Division made an inspection of the subject site and on September 10, 1987, informed Mr. Delaney, the lessee, that a considerable amount of soil contamination, due to petroleum or petroleum products, was present on the site. The Department maintains that the finding by the county agency was that the soil contamination was due to improper surface disposal of used oils. Mr. Ed Smith, who testified for the Petitioner, has been involved as a petroleum de-contamination contractor for such sites hundreds of times and was present throughout the cleanup operations conducted at the subject site. He established that, indeed, there were spillages of used and waste oils and petroleum products at the site but that a great deal of the contamination also resulted from underground leakage from the storage tanks, or some of them. Preponderant evidence was not adduced by the Department, merely through its reliance upon DEP Exhibit 1, Request No. 59, to show that the contamination at the site solely resulted from surface spillage, in consideration of the testimony of Mr. Smith, which is accepted. On or about September 19-20, 1990, five underground storage tanks were removed from the facility site by Hydroterra Environmental Services, Inc., a contractor at the site. Thereafter, an underground storage tank closure report (closure report) for the AAMCO transmission facility was prepared by Hydroterra Environmental Services, Inc. That report is in evidence as the Petitioner's Exhibit 20. The report and testimony reveals that a total of three 550-gallon underground storage tanks were removed from the facility. There were two 550- gallon underground storage tanks located in front of the facility, known as tanks one and five. When those two tanks were removed, both were found to contain water. It is not clear what originally was stored in those tanks, but they were, in all likelihood, utilized for the storage of gasoline. The closure report concerning tank one and tank five reveals that the fuel-dispensing capability of those tanks was discontinued many years ago. One of the tanks, tank one, leaked. It had holes caused by corrosion. An environmental consultant, however, utilizing an organic vapor analyzer (OVA), performed soil-monitoring tests during the excavation and removal of these two 550-gallon UST's, which were thought to have formerly contained gasoline (tank one and tank five). His single OVA reading at that site showed a "0 PPM" (parts per million) for that sampling location associated with the excavation of tank one and tank five near the front of the AAMCO facility. The environmental consultant also obtained a groundwater sample during excavation and removal of those two tanks. The sample was analyzed for the presence of benzene, ethylbenzene, toluene, and xylene (BETX). The parameters for BETX are utilized to determine the presence of petroleum contamination. The analytical results for that sample for the tank one and tank five excavation site indicate that the parameters for those hydrocarbon compounds were all below detectable limits. Analytical results for the water sample, however, did indicate the presence of chlorobenzene. Chlorobenzene is associated with solvents, is an aromatic hydrocarbon compound and is a form of petroleum, that is, it is made from crude oil derivatives. With regard to these two tanks and, indeed, all of the tanks excavated, there was an absence of "free product" on the water table. That is, gasoline, waste oil or other forms of petroleum or petroleum products were not separately identified and existing on the surface of the groundwater table. Upon visual inspection, as shown by the Petitioner's Exhibit 20, the closure report, the testimony of Mr. Smith, as well as the photographs in evidence, tanks one, five, four, and six had multiple holes from small "pinhead size" to one inch in diameter. The tanks thus would have leaked any contents contained therein. Upon excavation of the tanks from the site, they were cleaned, de-commissioned, and transported to Jacksonville, Florida, to a subcontractor for disposal as scrap. Tanks two and three were determined to be intact, with no apparent holes. Tank one had one or more holes. The evidence shows that that tank was suspected of containing gasoline during its useful life, although when it was excavated, it was found to be full of water. The OVA and groundwater tests taken in conjunction with the removal of tanks one and five from the site near the front of the facility do not show excessive contamination, however. This is corroborated by the testimony of Mr. Smith, testifying for the Petitioner, who is a licensed pollutant storage tanks specialty contractor and a general contractor. He has removed hundreds of underground storage tanks and conducted many such cleanup projects. He himself supervised the removal of the tanks and was on site virtually every day. With regard to the removal site for tanks one and five, which were in close proximity to each other, he confirmed that he felt that the site was "clean". Thus, it has not been demonstrated by preponderant evidence that tanks one and five contributed to the contamination of groundwater and soil at the site. In the rear of the AAMCO transmission facility, there were two 1,000- gallon UST's. One of them had been used for storage of waste oil and transmission fluid (tank two). The second 1,000-gallon UST, tank three, had been used for storage of new transmission fluid. Tanks two and three were located on either side of a concrete apron at the rear door of the transmission shop. Tank two was excavated separately from tanks three, four and six. There is no evidence that tanks two and three, the two 1,000-gallon tanks, had holes or other sources of leakage. During the excavation and removal of tank two, an OVA was used to perform the soil monitoring tests. A single reading of 328PPM was recorded for the sampling location associated with the excavation and removal of tank two. A groundwater sample (MW-SB No. 3) was obtained from the tank pit, where tank two was excavated and removed. That sample indicates that there was a "odor of solvents". The analytical results for that groundwater sample indicate an analysis for benzene, ethylbenzene, toluene and xylene, showing that the parameters for benzene and ethylbenzene were below detectable limits. However, the analytical results for that sample indicate that chlorobenzene and 1,4- dichlorobenzene were above detectable limits, with significantly-elevated readings, representing excessive contamination with these constituents. These are consistent with the presence of aromatic solvents. Such compounds are hydrocarbons, being derived from petroleum. The groundwater sample related to tank three also showed very high levels of xylene, chlorobenzene, and 1,4-dichlorobenzene; volatile, aromatic hydrocarbon compounds derived from petroleum. The excavation pit for tank three yielded a groundwater sample of similar quality, in terms of the odor of solvents and elevated levels of the above-mentioned hydrocarbon compounds associated with solvents. Tank six, a 550-gallon tank, was located immediately adjacent to and in close proximity to tank three, between tank three and the concrete apron at the rear door of the transmission shop. It contained water at the time it was excavated and inspected. However, it had been used for storage of petroleum or petroleum products of unknown nature. Because of the nature of the business located at the site, the petroleum products contained in the other nearby tanks and because of the petroleum products saturating the soil in the area immediately surrounding and beneath the tank, it is inferred that the tank contained waste oil, transmission fluid, or solvents at various times and occasions. The excavation for tanks three and six, as well as "tank No. four", which was actually the 55-gallon oil and water separator, was one continuous excavation. The water sample taken with regard to the location of tank six shows significantly-elevated levels of chlorobenzene, 1,4-dichlorobenzene, and xylene. The Department's witness, Mr. Register, acknowledged that elevated levels of pollutants in the pit associated with tanks four, three and six were consistent with the presence of solvents and waste oil or "oils and greases". Mr. Smith, the certified pollution specialty contractor supervising and conducting the project, described in his testimony how one can recognize contaminated soil in the field and that soil is saturated when one can squeeze petroleum compounds out of the soil with the hand. This shows excessive contamination of soils at such a site, as was acknowledged by Mr. Register, the engineer for the Bureau of Waste Cleanup for the Department, who testified. Mr. Smith thus established that the soils in the pit at the rear of the facility were saturated with petroleum or petroleum products. These were derived from waste oils and greases, consisting of waste oil and transmission fluid, as well as solvents. The pollutants leaked from tanks six and four, although Mr. Smith acknowledges in his testimony that tank four is not really considered to be a storage facility but, rather, a 55-gallon drum used as an oil/water separator, connected by a clay pipeline to a catch basin immediately in the rear of the apron and rear door of the building. In summary, through Mr. Smith's testimony, it was established that there was excessive contamination at the site, as shown by the saturation of the soils in the excavation pits from which the tanks were removed, in the manner described above. Under Mr. Smith's supervision, all appropriate remedial action was done at the site, all contaminated soil was removed and cleansed at an appropriate thermal treatment facility. The site was declared "clean" by the county agency referenced above, which had supervision of the project under its agreement with the Department. The initial remedial action task undertaken by the Petitioner, as shown by Mr. Smith's testimony, included removal of excessively-contaminated soils, as defined under Section 62.770.200(2), Florida Administrative Code, concerning the excavations at the rear of the transmission shop. Tank six is the only storage tank shown to have been leaking at the rear of the shop, but the spread or diffusion rate and area of contamination which leaked from that tank through the excavation area is not precisely definable. In any event, a significant portion of the soil in the excavation area at the rear of the transmission shop, including that occupied by tank six, was shown to be excessively contaminated and much of it emanated from tank six, especially evidenced by its central location in the contaminated portion of the site. Removal of that contaminated soil was part of the initial remedial action task. Likewise, the removal of the tanks was part of the performance of the initial remedial action task. In fact, all of the excess contamination could not be removed by removal of the soil without removing the tanks first, to get access to the excessively-contaminated areas beneath the surface grade. There is, however, no evidence that the initial remedial action task, with regard to each tank and tank site, which included removal of the tanks and excessively- contaminated soils, included any necessity to recover "free product" with regard to any of the tanks or tank locations. Finally, it is shown that transmission fluid and waste oil, as well as the other, solvent-related constituents of the contamination at the site, are petroleum or petroleum products. They can be, and are used, as a mixture amounting to a "liquid fuel commodity made from petroleum" and such waste petroleum products are often used in Florida, particularly for boiler fuel to fire industrial-type boilers. These compounds found at the site are both petroleum and petroleum products and are hydrocarbons, as defined in Section 376.301, Florida Statutes. It was thus demonstrated that the contamination at the facility was the result of a discharge of petroleum products, from a petroleum storage system, in the manner and for the reasons delineated more particularly above. On or about January 30, 1991, the Petitioner filed an abandoned tank restoration program application form with the Department. The Department issued the Petitioner an "order of eligibility" under that program for the abandoned tank restoration, which final order was entered on August 16, 1991. That order of eligibility is limited to "contamination related to the storage of petroleum products, as defined in Section 376.301(10), Florida Statutes. On February 14, 1992, the Petitioner filed a reimbursement application for all allowable costs with the Department. On or about April 28, 1993, a "final order of determination of reimbursement" for allowable costs was issued by the Department, which denied all reimbursement of cleanup costs associated with contamination of the property. That action was the result of the Department's position that the contamination resulted from improper disposal of petroleum products at the AAMCO transmission facility and not due to contamination of the site from the storage tank system.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Environmental Protection awarding reimbursement for the cleanup of DEP Facility No. 64-9100172 in accordance with the considerations, findings and conclusions made above. DONE AND ENTERED this 29th day of May, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, 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 29th day of May, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-3313 Petitioner's Proposed Findings of Fact 1-7. Accepted. 8. Rejected, as constituting argument and not a proposed finding of fact. 9-10. Accepted. 11. Accepted, as to those tanks delineated more particularly in the Hearing officer's findings of fact. 12-13. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Respondent's Proposed Findings of Fact 1-2. Accepted. 3. Accepted, but not itself materially dispositive. 4-12. Accepted, but not all of which are materially dispositive. 13-19. Accepted, but not necessarily materially dispositive. 20-23. Accepted. 24-25. Accepted, but not material. 26. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 27-29. Accepted. 30. Accepted, but not materially dispositive. 31-34. Accepted, but not in themselves materially dispositive. 35-36. Accepted. 37-39. Accepted, but immaterial. 40-45. Accepted, but not in themselves materially dispositive. 46-49. Accepted. 50. Accepted, only as an indication of the Department's position. 51-55. Accepted. 56-64. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. 65. Accepted. 66-69. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing officer's findings of fact on this subject matter, and erroneous as a matter of law. COPIES FURNISHED: Robert J. Riggio, Esquire Owens & Riggio, P.A. 125 North Ridgewood Avenue Daytona Beach, FL 32114 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Kenneth Plante, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
The Issue Whether the Department of Environmental Protection (Department) proved by clear and convincing evidence that Southeastern Liquid Analyzers, Inc.'s (SELA) 1994 equipment approval for its Tank Chek Statistical Inventory Reconciliation (SIR) method should be revoked?
Findings Of Fact The Parties SELA Southeastern Liquid Analyzers, Inc., is a vendor of Tank Chek, a computer program that conducts Statistical Inventory Reconciliation for petroleum storage tanks. The vice president of SELA is David L. Roberts. SIR is a method of release or leak detection for petroleum storage tank systems. In 1994, the Department approved SELA's Tank Chek SIR method (equipment) for use in the State of Florida. The Department The Department has the statutory authority to establish rules to implement the storage tank regulation program. See § 376.303(1)(a), Fla. Stat. Regulated storage tank systems are required to use a method or combination of release detection that meet the applicable performance standards in Florida Administrative Code Rule 62-761.640 (1998). Fla. Admin. Code R. 62-761.610 (1998). Storage tank system equipment that does not have approval from the Department can still be sold in Florida, but purchasers cannot use that equipment to comply with Department rules. Owners of non-regulated tanks do not have to use approved storage tank system equipment because they are not obligated to comply with Department rules. Only aboveground storage tank systems having individual storage tank capacities greater than 550 gallons, and underground storage tank systems having individual storage tank capacities greater than 110 gallons, are regulated by the Department. See Fla. Admin. Code R. 62-761.100(1) (1998). As a release detection methodology, the SIR computer program or method is a piece of release detection equipment that is subject to equipment approval pursuant to Florida Administrative Code Rule 62-761.850(2) (1998), as it was in 1994 when the Department approved SELA's Tank Chek SIR method. See Rule 17-761.860 (1992). Pursuant to Florida Administrative Code Rule 62- 761.850(2)(b) (1998), "[e]quipment approval requests shall be submitted to the Department with a demonstration that the equipment will provide equivalent protection or meet the appropriate performance standards contained in this chapter." "A third-party demonstration by a Nationally Recognized Laboratory shall be submitted to the Department with the application. The third-party demonstration shall provide: 1. A technical evaluation of the equipment; 2. Test results that verify that the equipment will function as designed; and 3. A professional certification that the equipment meets the performance standards contained in Rule 62-761.500, F.A.C." Fla. Admin. Code R. 62-761.850(2)(c)1.-3. (1998). The function of a third-party evaluation is to verify the accuracy of the performance of a particular piece of release detection equipment in light of the performance standards. The Department does not make exceptions to the requirement that all equipment used by owners and operators of regulated storage tanks in the State of Florida must be approved unless expressly excepted by rule. See Fla. Admin. Code R. 62- 761.850(2) (1998). Compare Rule 17-761.860 (1992). The Department does not have the discretion, however, to deny a request for equipment approval if the applicant satisfies all of the requirements of Florida Administrative Code Rule 62-761.850(2) (1998). Once a vendor has met the requirements of Florida Administrative Code Rule 62-761.850(2) (1998), the equipment is approved and designated on a list maintained by the Department and updated quarterly. Marshall Mott-Smith testified that permits are not issued for equipment approvals, and the approvals are not viewed as a permit. Mr. Mott-Smith testified that the Department does not write any permits for storage tank systems, nor does the Department view an equipment approval as a license. The Department, however, can and does place conditions on equipment approvals. For example, the Department's 1994 SELA equipment approval Order required the installation of at least two monitoring wells at any facility using the SELA system for release detection. Equipment approvals can be and have been revoked. One of the reasons that equipment approvals have been revoked is because the equipment no longer meets the performance standards in the rule. SELA's PetroWorks Evaluation of SELA's Tank Chek SIR Method In 1993, SELA sought equipment approval from the Department of Environmental Protection Bureau of Petroleum Storage Systems (BPSS) pursuant to Rule 17-761.860 (1992), for SELA's Tank Chek SIR method. As part of its request for equipment approval, SELA submitted a third-party evaluation, dated June 3, 1993, of its SIR method. SELA has not submitted to the Department any other third-party evaluation of its SIR method. The third-party evaluation was conducted by Wayne E. Hill of PetroWorks. In 1993, at the time of the third-party evaluation, PetroWorks was a Nationally Recognized Laboratory. The 1993 PetroWorks evaluation verified that SELA's Tank Chek SIR method met the performance standard of the existing rule (1992) and that it "works as it was designed by a third party."2 The 1992 and 1994 versions of the underground storage tank systems rules contained a general release detection performance standard applicable to storage tanks that required that release detection methods demonstrate that the method can detect a "0.2 gallon per hour leak rate or a release of 150 gallons within a month with a probability of detection of 0.95 and a probability of false alarm of 0.05." Rule 17-761.610(5) (1992); Rule 62-761.610(5) (1994). See also Rule 17-761.620(7) (1992); Rule 62-761.620(7) (1994). The 1998 version remained substantially the same, although the term "leak rate" is omitted. See Fla. Admin. Code R. 62-761.640(1)(a) (1998)("(1) General. Method of release detection shall: (a) Be capable of detecting a release of 0.2 gallons per hour or 150 gallons within 30 days with a probability of detection of 0.95, and a probability of false alarm of 0.05.").3 The general leak detection performance standard of "0.2 gallon per hour leak rate or a release of 150 gallons within a month with a probability of detection of 0.95 and a probability of false alarm of 0.05" was applicable to all release detection methods under Chapter 17-761 (1992). SELA's 1993 PetroWorks evaluation concluded that the Tank Chek SIR method met the general release detection performance standard ("of 0.2 gallons per hour leak rate . . .") contained in Rule 17-761.610(5) (1992). The Department accepted this evaluation such that SELA's Tank Chek SIR method met the general leak detection performance standard as of the 1993 evaluation as evidenced by the Department's equipment approval Order dated January 21, 1994. The 1993 PetroWorks evaluation submitted to the Department by SELA is on a form entitled "Results of U.S. EPA [Environmental Protection Agency] Standard Evaluation Statistical Inventory Reconciliation Method" and states explicitly that "[t]he evaluation was conducted by the vendor of the SIR method or a consultant to the vendor according to the U.S. EPA's 'Standard Test Procedure for Evaluating Leak Detection Methods: Statistical Inventory Reconciliation Methods.'" The State of Florida has not adopted the EPA protocol because the Department does not perform third-party evaluations of SIR release detection software. However, the Department accepts third-party evaluations that are run based on the EPA protocol. The EPA Protocol was developed in response to the varied performance of leak detection methods.4 The EPA wanted to have leak detection methodologies that could be relied upon by tank owners to accurately detect leaks. The EPA published these "tests" (the protocols) that manufacturers of leak detection equipment must meet in order to sell their equipment, e.g., to a regulated owner or operator of an underground storage tank. The instructions in the EPA Protocol for SIR formed the basis for performing third-party evaluations. The three-page "SIR Method Results Form" indicates that PetroWorks evaluated SELA's "Statistically based proprietary method." This Form provides: This statistical inventory reconciliation method reports on the following basis (check one): [actual box displayed] quantitative results (leak rate reported) X [actual box displayed] qualitative results (pass, fail, inconclusive) Test results are reported and the Form further provides: "Based on these results, the method X [actual box displayed] does [actual box displayed] does not meet the federal performance standards established by the U.S. Environmental Protection Agency of 0.10 and 0.20 gallon per hour at P(D) of 95% and P(FA) of 5%." (Emphasis in original.) A three-page "Description Statistical Inventory Reconciliation Method" document is included as part of the PetroWorks evaluation. On page two under the heading "Identification of Causes for Discrepancies," the question is asked: "Which of the following effects does the method identify and quantify." Among other items, "leak rate" is a factor "identified and quantified by running a series of additional reports." On page three and under the heading "Reporting of Leak Status," the response "no" is given in response to the question, "Is the leak status reported in terms of a leak rate (e.g., gal/h or gal/day)?" The explanation for this response is: "Qualitative (Tight/Leaking/Inconclusive)." ("Tight/Leaking/Inconclusive" corresponds to "Pass/Fail/Inconclusive.") A "Reporting Form for Test Results" is included with the PetroWorks evaluation. There are 1 through 120 record numbers with a "Submitted" "Induced Leak Rate (gal/h)" heading for a vertical column. (The numbers listed vertically are either "0" or "0.1.") "The Results Reported by Vendor" are stated under two categories: (1) "If Quantitative," and below with two separate vertical columns identified as "Estimated Leak Rate (gal/h)" and "Est. Ind. Leak Rate (gal/h)" and (2) a separate category with one vertical column identified as "If Qualitative (Tank Tight? (Yes, No, or Inconclusive)." Only the "If Qualitative" vertical column is completed with "yes" or "no" responses. The data table for the two "If Quantitative" columns is blank. PetroWorks did not evaluate SELA's SIR method for leak rates. The 1993 PetroWorks evaluation described above certified that SELA's SIR method complied with the performance standard of Chapter 17-761 (1992), i.e., that the SELA Tank Chek SIR method is capable of reporting qualitative results such as "pass," "fail," and "inconclusive," and detecting a "0.2 gallon per hour leak rate." The Department's 1994 Approval of SELA's SIR Method The Department approved SELA's Tank Chek SIR Analysis System (method) on January 21, 1994, in an Order entitled "APPROVAL OF STORAGE TANK SYSTEM AND RELEASE DETECTION EQUIPMENT." The Department found, in part: "Based on the information provided by Warren [ ] Southeastern Liquid Analyzers, Inc., the Department finds that the applicant's Tank Chek Statistical Inventory Reconciliation Analysis System is comparable to an automatic tank gauging system and will provide environmental protection substantially equivalent to that provided by compliance with the requirements established in Florida Administrative Code Rule, [sic] 17-761.640(6)." See Findings of Fact 18 and 19 for a discussion of the slight differences in the wording of the "0.2 gallon per hour leak rate" performance standard. See also Endnote 3. The Department Re-examines Prior Release Detection Equipment Approvals In 1994 and 1996, the Department made minor revisions to the underground storage tank systems rules and Chapter 17-761 became Chapter 62-761. Effective July 13, 1998, the Department adopted revisions to Chapter 62-761, Florida Administrative Code ("Petroleum Storage Systems") which are detailed below. See also Findings of Fact 3-10 and 47-61. Beginning around December 30, 1999, Department personnel began a dialogue (by e-mail) relating to the requirements of the July 13, 1998, revisions. The participants included Jonathan Reeder and Farid Moghadam for the Department, and David L. Roberts for SELA. (Other persons at the Department including the Office of General Counsel, participated in the discussions.) Mr. Reeder requested guidance from Mr. Moghadam as follows: There seems to be a fundamental conflict between the 7/13/98 Rule requirements for SIR value and data reporting and the qualitative SIR method's ability to provide those values. Specifically, Rule 62-761.640(3)(c)3., F.A.C., requires that the data set leak threshold, the minimum detectable leak rate, and the calculated leak rate be reported. However, the SIR qualitative method will only produce a Pass, Fail, or Inconclusive result. My question is as follows: Does the above situation effectively rescind the approval status of the SIR qualitative methods? This "anomaly" affects those vendors that have approved qualitative SIR methods. Specifically: Entropy Limited, EQ-018 Horner Products, SIR Pro 1, Versions 1.0 and 2.0, EQ-126 Syscorp, Inc., EQ-179 South Eastern Liquid Analyzers, Inc., EQ- 157 Ustman Industries, YES SIR 90, EQ-065 I do know that South Eastern Liquid Analyzers is quite active in Florida as I have seen their reports and have, in fact, discussed this problem with David Roberts, the owner. I guess the real question here is "Can we make a new Rule that specifically excludes previously approved equipment?" Maybe we would need to get OGC's comments? This e-mail was sent to Mr. Moghadam on December 30, 1999, after Mr. Reeder had a phone conversation with Mr. Roberts. It was also sent to Mr. Roberts. On May 12, 2000, Mr. Roberts sent an e-mail to Mr. Reeder with the following message: "I understand from Curt Johnson that I need to talk with you about SIR evaluation list. I have several issues to be resolved to be included [sic]. I would like to see if I can work with you to resolve them. What happened with the questions in FL? For SC, I have added the leak rates per John Kneece's instructions. I have providing [sic] in FL as well for your regulators." On May 12, 2000, Mr. Reeder sent an e-mail to Mr. Roberts and stated: To resolve the issues in Florida you will need to submit a third-party evaluation for a QUANTITATIVE method to Farid Moghadam at our Tallahassee office. His phone number is (850) 921-9007. Since this third-party QUANTITATIVE method would initially be routed through me via the NWGLDE it most likely would also address the past issues of the Work Group. I have not seen the file on your Method but Curt is sending it to me via post. If you have any questions you may call either myself or Farid. I will be in Daytona Beach the week of the 15th for our annual DEP Tanks meeting, returning on May 22, 2000. On May 15, 2000, Mr. Roberts responded: "I do not have a third party on the quantitative method. My third party is for qualitative. We discussed this in regard to Florida. You were talking to the legal department about my being an approved vendor and then the state changed to quantitative at a later date and how you are going to handle it. The work group is a separate issue. . . ." (Emphasis added.) On May 22, 2000, Mr. Reeder responded to Mr. Roberts: I discussed this situation with our Office of General Council (sic) and the Tallahassee Engineering Department during our Conference last week. It is a consensus opinion that the SIR Qualitative Method does not meet the requirements of Florida Rule 62-761-640, F.A.C., and therefore any Facility that uses it as a method of Release Detection is in violation of Rule 62-761.610(1)(a), F.A.C. A letter is being sent from our Tallahassee office to the five vendors that currently have Florida approved Qualitative SIR Methods. This letter will basically state the above position and require that either the vendor "upgrade" their SIR method to that of Quantitative or have their Florida equipment approval revoked. This new Rule has been in effect since July 13, 1998 which is ample time for all SIR vendors to make the necessary adjustments to their methods in order to comply with the new requirements. Additionally, any Facility that continues to use the Qualitative method will be cited for using a Release Detection Method that does not meet the Florida Rule requirements. If you choose to comply with the Florida requirements and have your method third-party evaluated as Quantitative then that would most likely address the past concerns of the Work Group - - mainly the data set problem. However, if you elect to cease doing business in Florida and still desire to have your Qualitative Method listed we can then discuss the items needed to reopen the review process. Please let me know what you wish to do and if you would like to discuss this with Farid in Tallahassee his number is (850) 921-9007. From 1993 until the effective date of the 1998 amendments to Chapter 62-761, Florida Administrative Code, SELA complied with the performance standard in the rules. See Findings of Fact 17 and 21. After Chapter 62-761 was amended in 1998, Department employee Farid Moghadam was told to evaluate all SIR methods being used in the State of Florida to determine whether they were in compliance with the new performance standards. (Some of the recorded dialogue among Department employees and Mr. Roberts is recited above which led to the Department's decision to revoke SELA's equipment approval.) Mr. Moghadam evaluated the already-approved SIR methods by reviewing the third-party evaluations that had been submitted as part of the original application for equipment approval for each SIR method. Mr. Moghadam discovered that at the time of the 1998 amendments to Chapter 62-761, there were 15 SIR methods approved in the State of Florida and each appeared on the Department's approved equipment list. (SELA's SIR method remains on this approved list.) Ten of the approved SIR methods were a quantitative SIR methodology, and five were a qualitative SIR methodology. All 15 of the SIR methods had previously submitted a third-party evaluation. Among the five SIR programs that were qualitative, three of the SIR vendors voluntarily reapplied for equipment approval. All three of these programs were re-approved. One of the SIR vendors requested that the Department rescind its prior order approving the SIR method, thereby requesting that the SIR method be removed from the approved equipment list. Only SELA continued to require a new third-party evaluation as determined by Mr. Moghadam. Mr. Moghadam determined that SELA's Tank Chek SIR method required a new third-party evaluation because the previously submitted PetroWorks evaluation did not indicate that SELA met the performance standards contained in Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), as required by Florida Administrative Code Rule 62-761.850(2) (1998). Chapter 62-761, Florida Administrative Code (1998), does not specify that previously-approved equipment required re- approval, re-certification, or re-evaluation. Because performance standards were added to Chapter 62-761 specific to SIR and because no previous versions of Chapter 62-761 contained any performance standards specific to SIR, the Department felt it was necessary to determine whether previously-approved equipment continued to satisfy the requirements of Florida Administrative Code Rule 62-761.850(2) (1998). The issue in this case is not whether SELA's Tank Chek SIR method can produce and report the leak rates required pursuant to Florida Administrative Code Rule 62-761.640(3)(c)3.b. (1998), because the testimony and documentary evidence established that Tank Chek can produce leak rates in its reports. The issue in this case is whether SELA's Tank Chek SIR method must be re-evaluated by a third-party so that the Department can know that the leak rates that are produced and reported are accurate and reliable. See Fla. Admin. Code R. 62-761.850(2)(b) and (c). SELA declined to obtain a new third-party evaluation. As a result, the Department gave notice of its intent to revoke the SELA Tank Chek SIR method equipment approval because, as of 1998, the Department no longer had a third-party evaluation certifying that SELA's Tank Chek SIR method complied with the performance standards in Chapter 62-761, Florida Administrative Code. Other than the PetroWorks evaluation of SELA's SIR method performed in 1993, SELA has not provided the Department with another third-party evaluation. On April 18, 2001, the Department advised Mr. Roberts as follows: The Bureau of Petroleum Storage Systems has reviewed the information submitted February 1, 16 and 20, 2001, regarding the Tankcheck Statistical Inventory Reconciliation (SIR) equipment approval order, DEP File Number EQ-157 dated January 21, 1994. The Tankcheck SIR algorithm has not been evaluated by a Nationally Recognized Laboratory, has not been verified that it works as designed by a third party laboratory, and has not been certified that it meets the performance standards in Rule 62-761.640, Florida Administrative Code, (1998) (F.A.C.), as required by Rule 62-761.850(2), F.A.C. Therefore, the equipment approval for Tankcheck SIR, DEP File No. EQ-157 is revoked and is no longer in effect. As of the effective date of this order, you must remove all references to the State of Florida and/or Department of Environmental Protection approval from any and all marketing materials distributed in the State of Florida regarding the use of Tankcheck SIR for storage tank systems regulated by the State of Florida. SELA filed a timely challenge to this Department action. The Department Amends Chapter 62-761 in 1998 Neither Chapter 17-761 (1992) nor Chapter 62-761 (1994), specifically enumerated "performance standards" for SIR. The general leak detection standard of "0.2 gallon per hour" was the only release detection performance standard applicable to SIR under Chapter 17-761 (1992). See Finding of Fact 18. Department witnesses testified that, from an inspection standpoint, a SIR methodology that met only the "0.2 gallon per hour" general performance standard would not be in compliance with Florida Administrative Code Rule 62- 761.640(3)(c)3. (1998), but would have been in compliance with Rule 17-761.610(5) (1992). In 1998, the Department amended Chapter 62-761 (1994), formerly Chapter 17-761 (1992), substantially revising this Chapter, including for the first time, at Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), performance standards specific to SIR. The general release detection standard set forth in, e.g., Rule 62-761.610(5) (1994) (formerly Rule 17- 761.610(5) (1992)), see Finding of Fact 18, was subsumed by Florida Administrative Code Rule 62-761.640(1)(a) (1998). Under the 1998 revised rules, the general leak detection standard of "0.2 gallons per hour" was retained in the rule in Florida Administrative Code Rule 61-761.640(1)(a) (1998), and remained applicable to all release detection methods including SIR. The SIR-specific performance standards are intended to limit use of SIR to quantitative SIR methods only and to eliminate the use of qualitative SIR methods in Florida. Marshall Mott-Smith, the Department's Environmental Administrator, Storage Tank Regulation Section, Bureau of Petroleum Storage Systems, was instrumental in drafting the 1998 amendments to Chapter 62-761, and also recommended to the Department that the acceptance of either type of SIR methodology for use in Florida be changed. Mr. Mott-Smith testified that there was a need for the Department to address the type of SIR methodology because the Department was concerned that the current use of SIR in the State of Florida was not providing adequate protection for the groundwaters and the surface waters of the state. Field experience and discussion with experts indicated that qualitative SIR methods were not really working and were problematic. There are two types of SIR methodology, qualitative and quantitative. The major distinction between a qualitative SIR and a quantitative SIR methodology is how the results produced by the SIR method are reported. The fact that a SIR method meets the general performance standard of "0.2 gallon per hour" does not indicate whether it is a qualitative or a quantitative method. Third-parties evaluate the SIR method as either a qualitative or quantitative method. A qualitative SIR methodology produces release detection results identified as "pass," "fail," or "inconclusive." A SIR methodology that produces only "pass," "fail," and "inconclusive" results is not a quantitative SIR method. A quantitative SIR methodology, in addition to "pass," "fail," or "inconclusive," will produce release detection results in terms of other values such as the leak threshold, the calculated leak rate, and the minimum detectable leak rate. The general performance standard ("0.2 gallon per hour") is a measurement that works in conjunction with other quantitative results, but it is not determinative of the type of SIR methodology. Prior versions of the rule, including for example Chapter 17-761 (1992) and Chapter 62-761 (1994), allowed either a "qualitative" or a "quantitative" SIR methodology. In contrast to the requirements of Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), the previous versions of the rules did not specify that the SIR method had to produce any particular numeric results in order to be in compliance with the rule, only the "0.2 gallon per hour" general performance standard had to be satisfied. Neither Chapter 17-761 (1992) nor Chapter 62-761 (1994), specifically identified SIR as a release detection method. SIR was indirectly referenced as "other similar release detection method." See Rule 17-761.610(5) (1992) and Rule 62-761.610(5) (1994). The performance standards for SIR found at Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), do not specifically identify the SIR method as either a "qualitative" or "quantitative" SIR methodology. However, all of the Department witnesses persuasively testified that Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), requires a "quantitative" SIR methodology. For, example, Mr. Reeder testified that the 1998 rule specifies a specific type of SIR method "in the sense that it requires the production of a leak rate, minimum detectable leak rate and threshold, because those are values that are only produced by a quantitative method and not a qualitative method. So, by that fact, it specifies that a quantitative method be used."5 Florida Administrative Code Rule 62-761.640 (1998), is entitled "Performance Standards for Release Detection Methods." Florida Administrative Code Rule 62-761.640(3)(c)3. (1998) provides, in part: "Statistical Inventory Reconciliation (SIR). SIR shall be conducted according to" requirements a. through i. Florida Administrative Code Rule 62-761.640(3)(c)3.b. (1998) requires that the results of each monthly analysis for the SIR method "include the calculated results from the data set for leak threshold, the minimum detectable leak rate, the calculated leak rate, and a determination of whether the result was 'Pass,' 'Fail,' or 'Inconclusive.' For the purposes of this section, the 'leak threshold' is defined as the specific leak threshold of the SIR method approved in accordance with Rule 62- 761.850(2), F.A.C., to meet the release detection level specified in Rule 62-761-640(1)(a), F.A.C." These required reported values are performance standards. A performance standard is something that determines the performance of the method; something that shows what the equipment is supposed to do. Prior versions of the rule, including specifically Chapter 17-761 (1992), did not require that if SIR was used as a leak detection methodology that the SIR method report these leak rates. The requirement that the SIR methodology produce and report these leak rates, see Finding of Fact 59, as well as "pass," "fail," and "inconclusive" results, are SIR-specific performance standards. The SIR performance standards contained in Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), requiring that these results be produced defines the required SIR methodology as a quantitative methodology. Resolution of the Controversy Notwithstanding the 1993 PetroWorks evaluation, the evidence presented during the final hearing demonstrates that SELA's Tank Chek SIR method is capable of producing quantitative calculated results from a data set for leak threshold, the minimum detectable leak rate, and the calculated leak rate. Stated otherwise, SELA's SIR method can produce and report these values that are required. However, even though SELA's Tank Chek SIR method can produce and report quantitative results, and necessarily these values, a new third-party evaluation is required pursuant to Florida Administrative Code Rule 62- 761.850(2)(b) and (c) (1998), to demonstrate that SELA's Tank Chek SIR method complies with the performance standards of Florida Administrative Code Rule 62-761.640(3)(c)3. (1998). Compare Fla. Admin. Code R. 62-761.640(3)(c)3.b. (1998) with Fla. Admin. Code R. 62-761.850(2)(b) and (c) (1998). The problem with the quantitative results (leak threshold, the minimum detectable leak rate, and the calculated leak rate) SELA's Tank Chek SIR method produces in reports is that it is not known whether those results are accurate or reliable. Determining whether the results produced by a particular SIR method are reliable is the purpose of a third- party evaluation. As noted above, SELA has never had a third-party evaluation that demonstrates that Tank Chek SIR can reliably produce and report a leak threshold, a calculated leak rate, or a minimum detectable leak rate. SELA only has a third-party evaluation that demonstrates that its Tank Chek SIR method can detect a release of "0.2 gallon per hour," the general performance standard, and report the results as "pass," "fail," or "inconclusive." Importantly, the 1992 rules which applied when PetroWorks performed SELA's evaluation in 1993 did not require the production or reporting of leak rates; the rules required compliance only with the general performance standard of "0.2 gallon per hour." Fla. Admin. Code R. 17-761.610(5) (1992). The problem with the leak rates reported on, for example, DEP Exhibit 4, the Seffner Food Stores SIR Historical Summary Report, is that the PetroWorks evaluation did not evaluate the SELA Tank Chek SIR method to accurately produce the numbers (leak rates) that are reported. The 1993 PetroWorks evaluation specifically noted that the SIR method results are on the basis of "qualitative results (pass, fail, inconclusive)" and not on "quantitative results (leak rate reported)." The 1993 PetroWorks evaluation specifically noted that the testing results are not reported in terms of a leak rate. See Findings of Fact 26-29. The 1993 PetroWorks evaluation of SELA's Tank Chek SIR method did not and cannot have certified that Tank Chek meets the requirements of the 1998 rule as required for an equipment approval because the 1998 performance standards for SIR found at Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), were not included in Chapter 17-761 in 1993. The 1993 Petroworks evaluation is no longer valid as it no longer satisfies the requirements of Florida Administrative Code Rule 62-761.850(2) (1998), which is a prerequisite to an equipment approval. SELA needs a new equipment approval to comply with Florida Administrative Code Rule 62-761.850(2) (1998).
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 revoking SELA's 1994 equipment approval, EQ- 157, without prejudice to SELA submitting a new equipment approval application in compliance with Department rules. DONE AND ENTERED this 20th day of January, 2004, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS 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 20th day of January, 2004.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Webbs Wood Products, Inc., is eligible for participation and reimbursement in and from the Abandoned Tank Restoration Program (ATRP) as provided for in Section 376.305(7), Florida Statutes, concerning its facility located in Gonzalez, Florida.
Findings Of Fact The parties stipulated to certain facts which are found next below: The Petitioner, at times pertinent hereto, was the manufacturer of wood shipping pallets at its facility in Gonzalez, Florida. The Petitioner made a practice of storing petroleum fuel on its premises in order to fuel its forklifts, trucks, and other equipment. It stored this fuel until approximately September 1989 in UST's. The Respondent is an agency of the State of Florida charged, in pertinent part, with administering the ATRP provided for in Chapter 376, Florida Statutes, and regulating entry by private businesses and individuals into that program, by reviewing their qualifications. The UST's at issue were removed from the ground when contamination related to them was discovered in September 1989. It is undisputed that the UST's were causing contamination into the soil in the area immediately under and around the UST's. The UST's were properly closed according to Department- administered law and regulation by November 1989. Two AST's were installed to provide fuel for the Petitioner's business around September 1989 at approximately the same time that the UST's were removed from service and removed from the ground at the site. The AST's were installed inside a fenced compound, separated from the former location of the UST's by approximately 40 feet. There is no evidence, nor is it contended, that any contamination at the site has resulted from the AST's which were installed to replace the UST system. On June 30, 1992, the Petitioner filed an ATRP application pursuant to Section 376.305(7), Florida Statutes. This application related to contamination which had leaked at the facility from the UST's which had been installed there until approximately September 1989. On June 30, 1992, the Petitioner also filed a storage tank registration revision for its facility numbered 178520358, deleting the two AST's which had been included with the two UST's registered under that same facility number. The Petitioner also filed for a new storage tank registration in his own name as lessee/operator for the AST. The AST's were issued a new registration numbered 179202812 on or about October 7, 1992. On October 2, 1992, the Department issued an order denying eligibility for the ATRP concerning the contamination related to the UST's. The AST's were designed as replacement tanks for the UST's and were used to serve the same business purpose as had the UST's. Both the UST's and the AST's were used to fuel the same vehicles and type of vehicles used in the conduct of the Petitioner's business. The fueling facility and the business were conducted on the same contiguous parcel of property (the site) and the two tank systems were not used at the same time. That is, when the UST's were abandoned and removed, only then did the AST's get installed and continue the previous operation of fueling the Petitioner's vehicles. The UST's and AST's clearly were used for the same business purpose, and the AST's clearly replaced the UST's in performing that identical purpose. When the UST's were removed from the Petitioner's site, the Petitioner still intended to stay in business because it spent $18,000.00 on the purchase and installation of the AST's and immediately began using them for the same purpose, that is, fueling its vehicles. The Petitioner did store petroleum products for its own consumption in the AST's after March 1, 1990. The Petitioner did not attempt to obtain separate registration numbers, which might conceivably be deemed indicative of separate "facilities" until June 30, 1992. The Petitioner sought the new facility identification number, as shown by Mr. Webb's own testimony, in order to render the AST's to be considered a separate facility from the UST's which had been removed, so that eligibility in the ATRP could be obtained for cleaning up the contamination related to the UST's. It is ordinary practice for the Department to give both AST's and UST's the same facility identification number (and to consider them the same "facility") when the UST's and AST's are located in close proximity to each other, are on the same contiguous single parcel of land, and are used as replacement tanks for the other. Separate numbers for each petroleum storage system on a site creates an inspection problem for the Department and may triple the number of registered facilities in the State creating administrative problems and confusion for Department inspectors. The Petitioner did not establish evidence that the Department has as a policy of issuing or, in any given instance has issued, two separate facility identification numbers for any other two petroleum storage systems where the storage systems have the same owner, on the same relatively small parcel of land, in close proximity to the other tanks and where the tanks involved served the identical general business purpose of the owner. The mere issuance of a separate facility identification number for the AST's in 1992 does not indicate that the AST's were a separate "facility" for the purpose of eligibility under the ATRP as that eligibility is described in the authority cited below. The facts proven by the preponderant evidence of record establish that the Petitioner's UST petroleum system and the AST petroleum storage system were just that, separate storage systems at the same facility, owned by the same owner on a small contiguous parcel of property in close proximity to each other, serving the same business purpose, and doing it serially, with one tank system being a replacement for the other. Quite simply, the facts show that the Petitioner had one facility with two storage tank systems, one of which replaced the other, performing the same purpose.
Recommendation In consideration of the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department denying the application of the Petitioner for eligibility for the abandoned tank restoration program. DONE AND ENTERED this 11th day of January, 1994 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 12th day of January, 1994. APPENDIX Petitioner's Proposed Findings of Fact 1-30. Accepted, with the exception of the last sentence of proposed finding of fact number 30. However, the proposed facts, while true, are not necessarily accepted for their purported material import in deciding the issues in this case. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact 1-21 are accepted, although not all of them are relevant and necessary to a decision on the factual and legal issues in this case and are subordinate to the Hearing Officer's findings of fact on the subject matter as are the Petitioner's proposed findings of fact. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Rod Tallahassee, FL 32399-2400 Kenneth Plante, Esq. General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400 Jesse W. Rigby, Esq. CLARK, PARTINGTON, HART, LARRY, BOND, STACKHOUSE & STONE One Pensacola Plaza 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, FL 32591-3010 Jefferson M. Braswell, Esq. Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Handy Food Stores, Inc. (HFS), is a small, family owned corporation that owns and operates a chain of thirty-four convenience stores in Florida, thirty two of which sell gasoline. At issue in this proceeding is Store No. 82 (Store 82 or the store) located on State Road 378 in LaBelle, Florida. The facility has also been identified by respondent, Department of Environmental Regulation (DER), as DER facility number 268520172. This controversy concerns an application by HFS for reimbursement of costs and expenses related to cleanup activities at Store 82 incurred after that store site became contaminated with petroleum and petroleum products. The application was preliminarily denied by DER on the ground HFS was "grossly negligent" in the maintenance of the petroleum storage system at Store 82. Because the average clean-up cost per site is $330,000, and HFS denied that it was grossly negligent in its operation and management of the system, HFS requested a formal hearing to contest the agency's proposed decision. The facts in this case are not complicated, and with certain exceptions, are relatively free of dispute. Until February 1988 HFS's director of operations was Ray Collier. On February 2, 1988 Collier ordered the installation of four monitoring wells at Store 82 to determine if any leaks were occurring in two underground storage tanks located on the site. Such wells were required to be installed by DER for monitoring purposes no later than December 31, 1988. The parties have stipulated that the wells were properly installed in accordance with agency rules. When the wells were installed on February 2, the contractor's report reflected no contamination was present. Collier also contracted with Purity Well Testing, Inc. (PWT) to conduct monthly monitor system checks at the store. Such checks are required by DER to determine if any discharges of product are occurring in the storage system. On February 10, 1988 Collier resigned as director of operations to accept a position in Saudi Arabia. Prior to his resignation Collier was replaced by David A. Laughner, who still remains in that position. According to Laughner, he and Collier spent only two weeks together prior to Collier's departure, and Collier did not advise him of the details concerning the monitoring program. Thus, he had no immediate knowledge of the existence of the monitoring wells or the tests being conducted by PWT. HFS's corporate offices are located in an office building at 9330 Adams Drive, Tampa, Florida. Besides three corporate officers and the director of operations, the corporation had only three office employees who worked at the corporate headquarters. The building is owned by B & B Cash Grocery Stores, Inc. (B & B), which operates a chain of grocery stores in southwest Florida. HFS's offices are on the second floor while B & B's corporate offices are located on the first floor. Although the two corporations are legally separate entities, they have certain common directors and shareholders, and the two corporations once utilized a centralized bookkeeping and billing department which was controlled and staffed by B & B. Under that arrangement, bills sent to HFS were actually processed by B & B's accounting department which paid the invoice on behalf of HFS. In addition, the two corporations once shared the same post office box. Under that arrangement, which existed in February 1988 and continued until at least August 1988, all mail sent to HFS at the post office box was initially processed by B & B's mail room rather than being sent directly upstairs to HFS. On April 24, 1988 PWT conducted its first monthly monitor well inspection at the store. That report indicated that three inches of free product was present in monitoring well three. A second monthly monitoring well inspection was conducted on May 10, 1988 reflecting the presence of two inches of free product in well number three and twelve inches in well number four. Free product was defined by a DER witness as "material (such as a petroleum product) that will be left on the water table." The presence of a free product, including a refined petroleum product, in a monitoring well is an indication that a discharge or release of the product from a storage tank has and may be continuing to occur. If free product is observed, it is the responsibility of the tank owner to determine the cause of the discharge, and if it is determined that the discharge is coming from the tank, he must empty the tank so that the system can be repaired or replaced. Also, the owner is obliged to notify DER within three working days of discovery of the discharge. The purpose behind these reporting and investigating requirements is to try to decrease the size of the petroleum plume and the area of contamination. The results of the two tests, and the invoices for the charges, were sent by PWT to HFS's post office box. Consistent with existing procedure, B & B's mail room received the reports and invoices and forwarded both to B & B's billing department for processing and payment of the invoices. Rather than forwarding the test reports upstairs to HFS, B & B filed the reports with the invoices in B & B's billing department. The parties have stipulated that no one in the billing department knew or had reason to know of the potential significance of the monitor well inspection reports. Because the bills had been paid, PWT did not contact HFS to determine whether the reports had been received. Consequently, neither Laughner nor any other HFS corporate employee had knowledge that monitor well inspections had been conducted at Store 82 or that inspection reports had been forwarded by PWT. However, it is found that copies of such reports were either forwarded to Store 82 by someone in Tampa or by PWT because they were available for inspection by DER representatives at a store inspection that took place in late June 1988. As the result of an unconfirmed telephonic report received in early February 1988 concerning possible contamination at Store 82, on June 17, 1988 a DER inspector, Jeffrey Gould, sent a letter to Laughner at HFS's corporate post office box advising that Gould would be conducting a stationary tanks compliance inspection at Store 82 during the week of June 27, 1988. The letter also requested that all records associated with the storage tank system be available at the facility for inspection. This inspection is commonly referred to as a "17-61 compliance inspection", meaning that the storage tanks would be checked to see if they met the requirements of Chapter 17-61, Florida Administrative Code (1987). Although the letter was addressed to Laughner, it was forwarded by an undisclosed person to a Store 82 employee, Betty Smith, whose title is area supervisor, and Laughner denies having seen the letter until several months later. 1/ Gould and another DER employee, Alicia Andersen, met with Betty Smith at the store on June 29, 1989. It may be inferred that Smith had copies of the PWT monitoring reports for she produced copies of the same for Gould, who then hand-copied and reviewed the two reports. Gould also made a physical inspection of the four monitoring wells on the site. He noted the presence of free product in two of the four monitoring wells. One had 7/8 of an inch of free product (gasoline) while a second well had fourteen inches of free product. Gould also detected a strong odor and observed sheen in the northeast monitoring well and a strong odor in the southeast monitoring well. These findings are memorialized in a written compliance inspection report received in evidence as respondent's exhibit 2. After the inspection was completed, Gould discussed generally the results with Smith, had her sign the report and gave her a copy. Since Smith was not present at final hearing, Gould's version of their conversation is the only competent evidence of record on the subject. According to Gould, he told Smith that he "had found product and that it is a problem." Gould acknowledged that he did not go into too much detail with Smith concerning the report since she was only an employee, but he specifically recalled advising her "there was a definite problem at this facility" and that he "spent a long time" with her. Finally, after giving Smith a copy of the report, Gould told Smith to "return it to her office." However, Smith did not do so. Gould's version of the events was not credibly contradicted and it is hereby accepted. On July 11, 1988 Gould, over the district manager's signature, sent Laughner by certified mail a "warning" letter and copy of the June 29 inspection report. The documents were sent to the post office box in Tampa. The return receipt was signed on July 15 by one Patty Jackson, whose relationship, if any, to HFS was not disclosed. The letter provided in pertinent part as follows: Free gasoline product was found in two of the compliance monitoring wells. Product thickness in one well exceeded the bailer limitation of fourteen inches. The presence of free product was also noted on monitor well records by Purity Well Testing Company for April 24, 1988 and May 10, 1988. A maximum thickness of twelve inches was measured. Such discharges are in violation of Chapter 376, Florida Statutes and Florida Administrative Code Rule 17-3. It is required that the discharges be stopped and the integrity of the storage system verified. Records available onsite indicate the 4000 gallon tank failed a tightness test with a leak rate of -0.1057 gallons per hour (gph) on September 26, 1986. The tank however passed the test on October 7, 1986 at +0.027 gph. Please describe all repairs, if any, to the storage system after the initial failure. The Department requests a meeting to discuss entry into a Consent Order to resolve the violations. Please contact Jeff Gould at 813/332-2667 or write the letterhead address within ten (10) days of receipt of this letter to schedule a meeting. Your cooperation is appreciated. (Emphasis added) As noted in the previous finding, the letter and report were received on July 15, 1988 but were not forwarded upstairs to Laughner or any other corporate employee. When Gould received no oral or written response - to his letter, Gould eventually telephoned Laughner on August 26, 1988. During the course of the telephone call, for the first time Laughner became aware of the existence of the contamination problem at Store 82 and the nature of the tests that had been performed that spring by PWT. It is also noted that during the telephone call, Laughner acknowledged that Gould's letter of July 11 had just been routed to his desk. The two agreed to meet at DER's Fort Myers district office on September 1, 1988 to discuss the violations. On August 29, 1988, or three days after Laughner spoke with Gould, HFS filed its incentive program application for Store 82. The application, which noted that the date of discovery of a petroleum discharge at Store 82 was on June 29, 1988, was received by DER on September 6, 1988. On September 1, 1988, Laughner met with DER representatives to discuss Store 82. Laughner was told that certain specific measures should be taken to insure the integrity of the storage tank system. That same day, in a letter to DER, HFS informed DER that a tank integrity test had been scheduled for Store 82 and that HFS was implementing initial remedial action (IRA) to remove any petroleum product and excessively contaminated soils and that an enviromental consultant had been contracted to conduct IRA, site contamination assessment and any necessary remedial action. Until that time, and dating back to June 29, 1988, HFS had only conducted a stick test at Store 82 to monitor the presence of petroleum product. Also, HFS personnel had not reviewed any repair records, monitoring well records, or inventory records during this same period of time. On September 7, 1988, HFS conducted a tank integrity test at Store 82. The integrity test passed under the criteria set by the National Fire Protection Association, which is the acceptable standard under Chapter 17-61, Florida Administrative Code. However, DER did not consider the testing to be a timely response since it considered no more than a week to be a reasonable period of time for testing once a discharge is discovered. On October 7, 1988, DER, through its inspector Gould, conducted an incentive program compliance inspection at Store 82. Although Gould observed two and one-eighth inches of free product in one well and a sheen in another well, the compliance inspection checklist noted that Store 82 was in compliance with Section 376.3071, Florida Statutes. Question 3 on the verification checklist asked if there was "evidence of gross negligence." Gould checked "yes" and made the following notations: See penalty worksheets (draft CO to OGC for review). Major violations failed tank test (enclosed) showed leaks Sept. 1986! - D.E.R. not notified, free product in well treated as a discharge and D.E.R. not notified of product in wells to take action. Gould responded in the above fashion because he concluded that nothing had been done for long periods of time to insure the integrity of the petroleum storage system at Store 82. It should be noted, however, that nothing in the checklist indicated that damages of any kind were caused by HFS's failure to take remedial action until September 1988, and DER representatives admitted they had no proof of such damages. On September 14, 1989, or approximately one year later, DER issued its proposed agency action denying Store 82's eligibility for reimbursement under the incentive program. As later amended on March 16, 1990, the agency's letter recited the following reason for denying the application: Monitor well reports dated April 24, 1988 and May 10, 1988 listed free product in monitoring wells. No report of discharge discovery was made to the Department by Handy Foods as required by Chapter 17-61, F.A.C. On June 29, 1988, an inspector from the Department discovered free product in Petitioner's monitoring wells. Petitioners were sent a warning letter by the Department on July 11, 1988, requesting that Petitioner stop any discharges and verify the integrity of its storage system. Petitioner conducted such tank tightness tests on September 7, 1988, or approximately five months after the monitoring well reports indicated the discovery of free product. Failure to report, investigate and abate where there is evidence of a discharge shall be construed to be gross negligence in the maintenance of a petroleum storage system. In other words, DER contended that HFS was "grossly negligent" within the meaning of the law by failing to "report, investigate and abate" the discharge until almost five months after the leaks were first detected by PWT. DER admits that it has no information to support a contention that, as to Store 82, HFS failed to maintain or falsified inventory or reconciliation records, intentionally damaged the petroleum storage system, failed to make monthly monitoring system checks, or failed to meet monitoring and retrofitting requirements in accordance with chapter 17-61 procedures. Although the incentive and reimbursement programs under section 376.3071 were enacted by the legislature in 1986, the agency has not promulgated formal rules that define or identify "gross negligence" or the criteria for determining eligibility under the incentive reimbursement program. Through the introduction of various agency records received in evidence as petitioner's composite exhibit 6, HFS sought to establish the fact that DER, in at least four prior cases, reached a result inconsistent with that reached in its proposed agency action regarding HFS. However, DER has processed thousands of applications of this nature, and the presence of four contrary results does not establish any binding precedent. Moreover, DER's administrator acknowledged that the agency had either erred in the cited cases or the facts were distinguishable from those presented herein. The parties disagree on the meaning of the words "gross negigence" as it is used in Subsection 376.3071(12(b), Florida Statutes (1987). Both parties presented expert testimony concerning what they perceived to be a proper interpretation of the statute. According to HFS's expert, Howard Ledbetter, he construed the term to mean a willful and reckless disregard for agency regulations that were known and understood by the alleged offender. Ledbetter established that in the spring of 1988 there was no firm understanding by the industry of what was required by DER's underground storage tank rules. Finally, he recalled receiving several different interpretations of the rules from DER personnel. In contrast, a DER expert, John Svek, opined that gross negligence occurs whenever an owner/operator commits a major violation of chapter 17-61. However, Svek conceded that chapter 17-61 does not distinguish or define major or minor violations, and nothing in chapter 17-61 equates a failure to immediately investigate a discharge to gross negligence. Further, he admitted that a lack of knowledge of a discharge is a factor to consider in determining whether gross negligence is present. A second DER expert, Patricia Dugan, acknowledged that not only is there no written document setting forth guidelines for determining when gross negligence occurs but that the term "gross negligence" does not appear in chapter 17-61. However, Dugan maintained that if notices are received by a corporation but are misfiled, as was alleged to have been done here, that conduct equates to gross negligence on the part of HFS.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Handy Food Stores, Inc. for participation in the petroleum contamination clean-up program be approved. DONE and ORDERED this 23rd day of May, 1990, in Tallahassee, Leon County, Florida. DON ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1990.
Findings Of Fact Respondent issued an invitation to bid for the project. The bidders were reminded that the bids were due March 9, 1995. The bid opening was to occur on March 10, 1995. Under the general conditions to the invitation, (at paragraph 7), in the interest of the State, the Respondent reserved the right to reject all bids that it received. That same reservation was announced at paragraph 1.8.1 to the invitation. In addition to the general reminder that the Respondent had the right to reject all bids, paragraph 1.14 to the invitation describes cancellation privileges available to the Respondent. That paragraph provided that the obligations under the invitation would be subject to and contingent upon the availability of moneys lawfully appropriated to pay for the services. Paragraph 1.1 to the invitation described the project as one involving removal and disposal of existing tanks and contents of those tanks at three locations. The locations were Floral City, Cocoa, and Kissimmee, Florida. The project demands at Floral City were for removal and disposal of a 10,000 gallon above-ground "tack coat" tank and surficial "tack coat" material and removal and disposal of a 500 gallon tank. The work at Cocoa involved removal and disposal of a 10,000 gallon above-ground "tack coat" tank, removal and disposal of a 500 gallon tank and removal and disposal of a 1,000 gallon kerosene tank. Finally, the Kissimmee work involved removal and disposal of a 500 gallon above-ground "tack coat" tank and surficial "tack coat" material. In Exhibit "A" to the invitation, describing the scope of services for storage tank removal and disposal, paragraph 2.0 identified more specifically the services that the bidder was to provide. In Exhibit "A", at subparagraph B.1 to paragraph 2, the bidder was instructed that the work included removal and proper disposal of the tank contents and any related material in the vicinity of the tanks. In Exhibit "A", at subparagraph B.3 to paragraph 2, the bidder was instructed that the work included removal and proper disposal of all tanks and associated piping. In Exhibit "A", at subparagraph B.4 to paragraph 2.0, the bidder was instructed that any records and analytical results that the bidder might generate from a storage tank closure assessment should be sent to the State of Florida, Department of Environmental Protection, Storage Tank Regulation Section with a copy of those reports being provided to Respondent's project manager. In Exhibit "A", scope of services for storage tank removal and disposal, at subparagraph A to paragraph 5.0, further instructions were given concerning the manner in which the tank contents would be removed. In Exhibit "A" at subparagraph B to paragraph 5.0, more specific instructions were given concerning tank disposal. In Exhibit "A" at subparagraph H.5 to paragraph 5.0, the bidders were reminded that a laboratory analysis report concerning the contents of the tanks was available upon request from the project manager, David Schappell. The laboratory analysis referred to was one performed on August 31, 1994, by Ardaman and Associates, Inc. Paragraph 1.9 makes reference to budget constraints involved with the project in which a budgetary ceiling of $45,000 is announced in the materials sent to the prospective bidders. In reality the $45,000 amount was in a circumstance that contemplated an additional site for tank removal and disposal and installation of new tanks in substitution for the removed tanks in Respondent's maintenance facility at Orlando, Florida. The Orlando work is not described in the invitation to bid. The appropriate reference for the budgetary ceiling contemplated by the invitation to bid is $20,000 for the three sites that are described in the project. Although Respondent through appropriate personnel realized that the $45,000 amount stated was not correct, that official, Helen Lund, purchasing and contracting agent for Respondent, did not arrange to correct the amount before issuing the invitation to bid. Ms. Lund simply failed to realize that the $45,000 budgetary ceiling was still set forth in the invitation when the invitation was made. Had she realized this mistake an addendum would have been sent to the prospective bidders to correct the figure to become $20,000. At hearing, Respondent presented its reasons for establishing a budgetary ceiling of $20,000. Petitioner was allowed to question that estimate. Subsequently, that issue will be discussed in greater detail. Paragraph 1.7.5 reminds the bidders that any necessary authorizations and/or licenses to provide the services sought in the project should be obtained by the bid due date and time and no later than the point at which a contract would be awarded. Paragraph 1.8.2 explains to the bidders what is necessary to offer a responsive bid. In her job Ms. Lund prepares and assembles bid documents, sends those out to the prospective vendors, and conducts bid openings. In this case David Schappell, Assistant District Drainage and Permits Engineer for Respondent's District V, Deland, Florida, discussed the tank removal project with Ms. Lund. In turn Ms. Lund prepared the bid blank/ITB in its boiler-plate language. Mr. Schappell prepared the invitation to bid concerning the scope of services to be provided by the bidders. Ms. Lund mailed out eight invitations to bid. She received responses from Petitioner and Chemical Development Corp. The bid from Chemical Development Corp. was rejected for failure to meet the licensing requirements set forth in paragraph 1.7.5. That left the Petitioner's bid which was considered responsive. Nonetheless Respondent decided to reject that bid for reasons that the price submitted for performing these services was too high when compared to the $20,000 estimate by the Respondent. Petitioner's bid price was $38,252. In addition, Petitioner was concerned that it would have to submit an exceptional purchase request and get the approval from the State of Florida, Department of Management Services, to enter into a contract in a setting in which there was only one responsive bidder. Finally, Petitioner was also concerned about the disparity between the price submitted by Chemical Development Corp. at $11,520 and the $38,252 price from Petitioner as indicating some possible problem associated with the scope of work contemplated in the project and the understanding which the bidders had about the work to be performed. Petitioner obtained a copy of the laboratory analysis from Ardaman and Associates to assist in preparing its response to the invitation to bid. The principal focus in the Ardaman test was to determine constituents related to TCLP as this would determine whether the tank contents constituted hazardous waste. Results from the Ardaman test revealed that in removing material from the tank at Floral City one would be confronted with chromium concentrations of 1.6 mgl. The threshold limits for chromium concentration as set forth in the Code of Federal Regulation, Title 40, Section 261.24, for determining hazardous characteristics of those materials is 5.0 mgl. The sampling conducted by Ardaman also revealed a pH of 9.0. According to Ardaman, that ph did not indicate that the "tank coat" is corrosive. The Ardaman test did not detect reactive cyanide and sulfide. The test did not reveal characteristic ignitability. In summary, the Ardaman report concluded that the Floral City facility tank did not exhibit the characteristics of a hazardous substance as determined by the TCLP method, and by the ignitability and corrosivity testing. Petitioner proceeded on the basis that the Ardaman results indicated that the tank contents did not constitute hazardous waste and could be disposed of as other than hazardous waste material. Theoretically, Petitioner believed that disposal could be made in a landfill that would take the type of material found in the tank. As Petitioner points out, the Ardaman test did not speak to the possible disposal of the tank material as a fuel source or through incineration. From the results set forth in the Ardaman report, Petitioner erroneously assumed that Respondent intended to limit the method of disposal to placement in a landfill facility. While the Ardaman report speaks to the issue of whether the material constitutes hazardous waste, the remaining provisions within the invitation to bid leave open the opportunity for the bidders to make additional tests on those materials in deciding the proper disposal method. The provisions in the invitation do not select a proper disposal method and the results in the Ardaman report do not create the inference that Respondent's choice for disposal is by placement in a landfill. In Petitioner's research, it concluded that the material in the tanks could not be disposed of by incineration given the nature of this material compared to the type of material that could be destroyed at a facility which used incineration as a disposal method. Petitioner was persuaded that there might be some possibility to burn the material as a fuel source, but was not confident that this could be done without performing more tests. Petitioner was unable to find a landfill site that was near Respondent's Cocoa and Kissimmee facilities that would accept the tank contents. Petitioner intended to transport the material from the Cocoa and Kissimmee sites to Floral City and use Floral City as a staging area to consolidate the contents from the tanks. Having in mind consolidation, Petitioner discussed the possibility that it might make disposal in solid waste facilities in Sumter County, Florida. Petitioner was told that Sumter County facilities would not accept the material. Petitioner collected a sample of the tank material and had it analyzed by Howco Environmental in an attempt to ascertain the commercial value for the tank contents. Howco is a company that tests materials to ascertain whether those materials can be used as a fuel source and then uses the material as a fuel source. In a test, Howco determined that the tank material had no commercial value. Petitioner contacted two paving companies to determine whether the paving companies could reuse the tank material in the paving process. Those companies indicated that they could not reuse the material in the paving process. Terry Newman, who owns Petitioner, holds a B.S. in geology and has worked for the Suwannee River Water Management District, Collier County Pollution Control Department and the Alachua County Pollution Control Department as a hydro-geologist. Ms. Newman reviewed the Ardaman report and spoke about the report to a chemist in a laboratory which her firm uses. Through this review and discussion and based upon the information set forth in the Ardaman report, she concluded that the only disposal method available was to place the tank contents in a lined landfill. Ultimately the bid that was submitted by Petitioner was based upon making an arrangement with a sub-contractor to transport the material to Jacksonville for disposal. The transport method was that which would be used for transporting hazardous waste. In this arrangement the material is taken from the tank and put in a container for transport and off-loaded at the landfill. The tank itself would be disposed of in the conventional manner. The subcontractor which the Petitioner intended to use for transporting the contents within the tanks was a hazardous waste carrier. Mr. Schappell established that the Orlando project which was originally part of the $45,000 pre-bid estimate would cost approximately $25,000 to remove two single-wall steel tanks, one holding diesel fuel and the other gasoline, and replace those tanks with double-wall tanks. That estimate was not shown to be one based upon fraud, illegality, dishonesty, arbitrariness or caprice. Since the Orlando project was not pursued, this left $20,000 as the estimate to do the work in the three sites described in the invitation to bid. Prior to the invitation to bid, Respondent had solicited a price quotation, unrelated to a competitive bidding process, for the work at Floral City. ACTS Construction Co., Inc., submitted a price of $12,825 to include $1,875 for tank closure. The present project does not include a requirement for tank closure. This quotation from ACTS Construction Co., Inc. was from a contractor who had done similar work in removal of tanks, thereby creating proper confidence in Mr. Schappell that the quotation from ACTS was a reasonable quotation. A total of six vendors were invited to offer price quotations for the work at Floral City unrelated to the present project. Those six vendors were given access to the Ardaman report. There were a wide range of responses to the request for quotations and different ideas concerning methods of disposal. The overall price quotations ranged from the amount quoted by ACTS to an amount of approximately $20,000 by Westinghouse Company. Based upon the prices quoted by ACTS, Westinghouse, and others, Mr. Schappell determined that the pre-bid estimate for the work to be done at Floral City in the present project would be based upon the ACTS price quotation. The remaining work to be done at Cocoa and Kissimmee, in the present project, was given a pre-bid price of approximately $7,000. The estimate for Kissimmee and Cocoa was based upon having removed somewhat similar tanks, in somewhat similar conditions, from Respondent's maintenance yards at Oviedo, Leesburg, Ocala, and Cocoa. Respondent's pre-bid estimate of project costs amounting to $20,000, as established by Mr. Schappell, is a reasonable pre-bid estimate. It was not arrived at by illegal, fraudulent, dishonest, arbitrary, or capricious means. Mr. Schappell established that the Ardaman report was solely provided to offer assistance to the bidders in responding to the invitation. The language in the invitation to bid contemplates that limited use. The Ardaman report did not enter into the decision by Mr. Schappell in placing a pre-bid estimate on the work to be done. Mr. Schappell established that the "tack coat" in the tanks is a bituminous material to be applied as a sealer over the lime rock or soil cement which the Respondent places as a base for road construction. The "tack coat" also has an adhesive property which helps to retain the asphalt material that is placed on top of the lime rock and soil cement. The condition of the tank material in around the time that the bid invitation was made, was such that the material would be nearly viscous or liquid on warm summer days and in the winter would be solid. Its condition at other times was somewhat in between. Mr. Schappell properly points out that the invitation to bid relies upon the bidders' expertise in determining proper disposal methods and whether that disposal might involve reusing the tanks contents. Mr. Schappell established that in addition to the fact that the Petitioner's price far exceeded the pre-bid estimate, there was a concern about the price differential between the Chemical Development Corp. bid and that presented by Petitioner and the expectation that if the project was re-bid more vendors would express an interest in bidding.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the final order be entered which dismisses Petitioner's protest to Respondent's decision to reject all bids. DONE and ENTERED this 16th day of June, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, 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 16th day of June, 1995. APPENDIX The following discussion is given concerning the proposed findings of fact by the parties: Petitioner's Facts: The first sentence to Page 2 is subordinate to facts found. Respondent's Facts: Respondents facts are subordinate to facts found. COPIES FURNISHED: Randy Wiggins, President RAN Contracting & Engineering, Inc. 3056 Palm Avenue, Suite 1 Ft. Myers, FL 33916 Thomas H. Duffy, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Sharon Roehm, President Chemical Development Corporation 910 Pinellas Bayway #102 Terra Verde, FL 33715 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450
The Issue Whether Petitioner may be granted a variance from Rule 64E-6.001(4), Florida Administrative Code, pursuant to Section 381.0065(4)(h)1., Florida Statutes.
Findings Of Fact Tony and Alma Moreno are owners of the building and premises located at 8250 Scenic Highway, Pensacola. They own the real property at that location all the way to road frontage right-of-way at Scenic Highway. The building had been in continuous existence in the same location for twenty or more years before Petitioner became connected with it. During that period of time, except for short hiatuses, either the Morenos or their lessees operated it as a licensed bar, most often under the name, "The Lighthouse Tavern." Sewage lines exist in the right-of-way at Scenic Highway, within 400 feet of the premises. The tavern is equipped with a septic tank. There has never been any history of septic problems on the tavern premises. The Lighthouse Tavern has always been a neighborhood bar of limited success. Martin MacAndrews has been putting amusement games in the tavern since 1978. He testified that during those twenty-two years, the average number of patrons has been eight to 14. Jim McDaniel has sold paper products to successive lessees since the 1970's. He has seen an average of 10 patrons during the day and up to 20 patrons at night. Charles Barcia, a more recent patron, has observed a maximum of nine patrons in the tavern. Denise Powell (nee´ Williams) leased the premises from August 7, 1998, until approximately September 28, 1998, during which time she operated the Lighthouse Tavern. She had approximately ten customers per day, used plastic barware, and had no septic problems. During the month or so she operated the tavern, she did not have the septic tank pumped. Ms. Powell's lease with the Morenos was not due to expire until July 31, 1999. However, on or about September 28, 1998, Hurricane Georges damaged the Lighthouse Tavern and wreaked destruction on Pensacola and much of the Florida Panhandle. The area was declared both a state and federal "disaster area." Ms. Powell immediately notified the Morenos, and they cancelled the lease by mutual agreement, because the premises were uninhabitable due to substantial water damage. Ms. Powell testified that but for Hurricane Georges, she would have continuously operated the Lighthouse Tavern under the terms of her lease from the Morenos. As it was, she abandoned the lease and the property. The Morenos made no repairs to the building. No commercial activity, as a tavern or otherwise, occurred on the subject property from September 28, 1998, through May 1, 2000, approximately a year-and-a-half. City water service to the property was terminated from October 12, 1998 until April 7, 2000. On April 5, 2000, Petitioner, a widowed mother, applied to Escambia County for an occupational license to run a tavern at that location. On or about April 7, 2000, Petitioner negotiated a new lease with the Morenos. It involved rate and terms favorable to Petitioner in exchange for her substantial investment (approximately $35,000, as of the date of hearing) in renovating the Lighthouse Tavern. Among other renovations to the property, Petitioner has replaced the tavern's back wall and outside deck, added two pool tables, coolers, two complete bathrooms, a three compartment sink, and a handwash sink. Very few of the fixtures, etc. are removable, let alone subject to resale. A five-year lease, Exhibit P-2, was executed on May 1, 2000. It limits Petitioner's use of the property to use as a tavern, so she cannot get her renovation money back by converting to another business. Paragraph 21 of the lease, purporting to be a lease/purchase option, has not been filled- out, so Petitioner's option to purchase the property is potentially unenforceable. Current Florida Administrative Code rules require septic tanks to have a minimum capacity of 1050 gallons, a filter, and a baffle. A baffle is a device to keep water and waste from going into the drainfields. On May 15, 2000, Ensley Septic Tank Service, operated by Agnes and Joe Nelson, pumped, inspected, and certified the existing septic tank as structurally sound. However, the existing septic tank is twenty years old and provides only 750 gallons. It is not baffled and does not have a filter. Its two drainfields are 75 feet and 69 feet, respectively, from the waterfront, whereas by Escambia County Ordinance, the current setback requirement is 100 feet. On May 25, 2000, the Department denied Petitioner a permit to utilize the existing septic tank, based on the contents of her application, which stated that the tavern occupancy would be 75 seats. Departmental analysis showed that 75 patrons would result in 1,000 gallons per day usage. The existing septic tank does not have that capacity. Before the execution of the lease, Petitioner made no inquiries of Respondent Agency. Likewise, no one told her before the execution of the lease that she would not be able to utilize the existing septic tank or use the premises for a tavern. Rather, Petitioner relied on her own interpretation of an Escambia County Ordinance providing additional time to meet County regulations for reopening a business (or nonconforming use) after closing the business due to Acts of God, and on the fact that Denise Powell's lease, by its terms, did not expire until July 31, 1999. When she was denied a permit to use the existing system, Petitioner applied for a variance for 75 patrons. Petitioner also filed a second application for variance and requested 24 patron occupancy. Petitioner went before the Department's Variance Review Board, which recommended granting the variance with the provisos offered by Petitioner. However, on July 18, 2000, the Department denied the requested variance, stating that the information provided by Petitioner failed to show that no reasonable alternative exists for the treatment of the sewage or that the discharge from the septic tank will not significantly degrade the groundwater or surface waters. The Department offered to permit the tavern to operate either with a connection to the existing sewer system or with a septic tank that meets the current requirements of the Florida Administrative Code. At hearing, Petitioner established that the tavern's water bills from 1996 to 1998 show a use of only 430 to 588 gallons of water per month. This amount reflects the low number of 10-20 patrons per day during that period of time (See Finding of Fact 4), but it also is only approximately three- quarters of the capacity of the existing septic tank. At hearing, Petitioner offered the following cumulative provisos to reduce water flow to the system: limit tavern hours to 11:00 a.m. to 2:00 a.m. (15 hours) daily; use plastic or paper cups; not serve food or mixed drinks; restrict beverages to beer and wine; and limit occupancy to 24 patrons. She offered to pump the existing septic tank more frequently and provide "port-a-potties," as needed. Petitioner anticipates using 24 seats inside, plus picnic tables on the deck. She offered to eliminate the outside seating. The deck constitutes one-quarter of the 900 square feet of the establishment. She will upgrade the septic system as her income from operating the tavern recoups her investment. She will close-up and terminate her lease if she cannot bring the premises "up to Code," that is, to meet the current Florida Administrative Code requirements for septic tanks and/or sewer connections, in one year's time. She has no objection to such provisos being attached to a variance, if one is granted. At hearing, certified septic tank engineers, Agnes Nelson and Joe Nelson, testified that the existing 750-gallon septic tank should handle 24 patrons and the water use would be further limited by using plastic or paper drink containers. In Mr. Nelson's opinion, since he found no salt water from the Bay or water table inversion in the tank when he inspected it, and since the drainfield slopes away from the building, the only way salt water would enter the existing septic tank is if it got above ground. Agnes Nelson conceded that high tide could fill the tank up. If, for any reason, the drainfields were not working, then the current septic tank would not work. However, because the building is between the beach and the drainfields; because, in her opinion, 24 patrons probably could not fit inside the building; and because there was so little solid waste in the tank when it was pumped, Ms. Nelson doubted that the tide and the drainfields would create a problem, even in ordinary rainy weather. Unfortunately, in rendering her opinion, Ms. Nelson did not consider the seating capacity of the tavern's deck or the effect on the surface waters of Escambia Bay of operating the tavern with the existing system. As of the date of hearing, the Morenos were in agreement with all of Petitioner's efforts to obtain a variance. They also will allow her to bring the premises "up to Code," if she can. The Department's current opposition to granting a variance with the provisos offered by Petitioner is based in part on immaterial disputes between the parties over who signed the original application for variance and who filled in the number of seats as 75. The Department also is mistrustful of Petitioner because her second variance application stated the building constituted 1,200 square feet. Because the Department and Petitioner now agree that the premises comprise 900 square feet, the error in the second application is also irrelevant. The Department's current opposition to granting the variance with the foregoing provisos volunteered by Petitioner is at least in part due to the on-site audit, wherein Departmental staff determined that the premises, including the outside deck, actually could accommodate 60-75 living, but not necessarily seated, patrons. The Department sees this as an impediment to occupancy being limited to 24 patrons, in practice. Human nature is such that if a bar has a large, outside deck in a tropical climate, it will probably have more patrons then those sitting in the 24 "seats" provided. While this concern might be speculative in other realms, in dealing with possible contaminants to groundwater or to the surface waters of Escambia Bay, it is a legitimate, if uncodified, concern. Joseph Scott Hale, Environmental Health Supervisor I, made the following suggestions which do not require a variance. Petitioner could connect her premises to the existing sewer at the 75-person occupancy limit; or could install a septic tank or tanks and drainfield(s) in accordance with Departmental rules for a 47-person occupancy limit; or could install a much more modest tank and drainfield system for a 24-person occupancy limit. Petitioner has received written bids to accomplish such alternatives in the following ranges. (1) Installation of the necessary plumbing and pumps to connect to an accessible sewer line is available at a cost of $27,628 to $28,450, although these costs could be inflated to more than $40,000 by adding a grinder station and by charges from CSX railroad for access across its right-of-way to the existing sewer lines; and (2) Installation of one or more septic tanks and drainfield systems in accordance with current rules and in a size for an occupancy capacity of 47 is available for a price ranging from $28,032 to $29,465. Neither of these options is currently feasible for Petitioner, because she has spent her savings on the completed renovations and has only $1,000 +/-, on deposit at this time. She has no current income. Without a contract to purchase the tavern property, she does not believe she can obtain financing. She is not eligible for an upgrade grant from the State because the tavern is commercial property. Petitioner feels that it would be necessary for her to run the tavern at a profit for a year at a minimum capacity of 24 seats in order to be able to pay for either of the foregoing possibilities. She cannot get an alcoholic beverage license without the variance. Petitioner is satisfied that if she cannot make a go of the tavern within one year, she can rescind the lease. The Morenos were silent on this issue. It is not necessary to interpret the lease on this score in order to resolve this case. Respondent construes part of Mr. and Mrs. Nelson's testimony as providing a third, cost-effective, and reasonable alternative for Petitioner in the form of a septic tank and drainfield which could be installed according to current Code with an occupancy capacity of 24 patrons at an approximate cost of $3,600 to $4,000. This oral estimate was testified to by Mrs. Nelson, who, although a certified septic tank inspector, does not actually do installing of septic tanks. She conceded that dollar figure was purely a guess and based on one elevated tank of 1050 gallons with a baffle. Mr. Nelson, who does the actual installing, estimated that more than one tank, a mount system, and a pump or two might be necessary, at additional cost. His thinking is in line with the components of the other written estimates Petitioner has received. Accordingly, it is found that the estimate that Ensley Septic Tank Service can bring the existing system up to Code at a cost of $3,600 to $4,000 to Petitioner is speculative and not a reasonable alternative. As is common, expert opinions were mixed on the danger, if any, to the groundwater and surface waters which would be occasioned by Petitioner operating the tavern under her foregoing proposed provisos without upgrading the current septic system. Petitioner's expert in civil engineering and degradation of groundwater did soil borings on the premises and hit no groundwater at 15 inches, even after two weeks of significant rain. However, his experience with soil analysis from "mottling" was limited, and accordingly, his opinion that water in the ground will never or rarely rise above 15 inches, so as to endanger groundwater or surface waters was not persuasive. Instead, I accept the greater weight of the evidence as a whole in order to make the following findings of fact. The top of the drainfields are located 12 to 22 inches below grade and occupy a one foot area, 24-34 inches below grade. The seasonal high water table is 15 inches below grade. The drainfields operate within the groundwater table. Current rules require drainfields to have a separation from the bottom of the drainfield to the top of the seasonal high water table so as to provide space for aerobic biological action. When a drainfield operates within the water table, no opportunity exists for aerobic biological action. Anaerobic biological action is not effective in killing viruses and other pathogens. Viruses can travel in soil from a drainfield to surface water at a rate of 100 feet in eight hours. Mr. Hale, (see Finding of Fact 30), who was accepted as an expert in groundwater table determination, has an impressive list of credentials, and among other qualifications, is State-certified in OSTDSs. He has personally witnessed water rising to the level of the leechfield in this location. Mr. Hale also took borings, but not in the leechfield. Even though standing water was not found until 32 inches below grade, the soil was saturated at 15 inches, which is the seasonal high water table and mean high water mark of Escambia Bay at Petitioner's waterfront. The usual groundwater high water table in this location is 24 inches below natural grade, and the temporary water table rises and falls, as affected by Escambia Bay tides and by rainfall. Another concern is that the leechfields average only 15 inches below grade, and soil "capillary action" or water "wicking" through the soil can result in contamination of the groundwater if they become saturated. The close proximity of the property to Escambia Bay presents the potential for pollution of surface waters. Mr. Hale reported that the tavern location is not subject to frequent flooding. However, it can, and probably will, flood, as before, during a hurricane. Mr. Hale testified further that but for the length of the cessation of business as a result of the hurricane (more than one year), the tavern could have continued to operate with eight seats and no danger to the groundwater. In his opinion, the existing system, unaltered, can handle waste disposal for only eight patrons. A 47-seat occupancy is the maximum allowable for a 1,000 gallon flow. Even though 24 seats would not be expected to exceed 1,000 gallons a day, 24 seats would not be accommodated by the existing system's 750 gallon tank, drainfields, leechfields, and insufficient set back footage. Mr. Hale reluctantly conceded that 22 seats might be "feasible," with all proposed provisos in place, plus the substitution of low flow toilets, but that solution would not be his best recommendation nor acceptable to the Department. According to Dr. Malcomb Shields, who was accepted as an expert microbiologist in the field of migration of pollutants from drainfields to surface waters, Escambia Bay is already above its threshold in dangerous nutrients. Dr. Shields further opined, with impressive scientific detail, that narrowing the zone in the drainfield, as on the Lighthouse Tavern property, makes the drainfields susceptible to more pathogens. In his opinion, the offered provisos would have absolutely no effect on the existing septic tank and system efficiency except to limit water and waste into the septic tank itself. Dr. Shields conceded that a variance granted upon the terms requested would not, by itself, cause significant degradation of water quality. However, he felt that perpetual use of the variance, even with the foregoing provisos, would, combined with all other factors present, contribute to surface water degradation, which is the test under the rule. Dr. Shields did not feel that a variance absolutely limited to one year's duration would have the same effect.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health enter a final order which: Permits Petitioner to operate her tavern either with a connection to the existing sewer system or with installation of a septic tank and drainfield system in accordance with the current Florida Administrative Code rules for an occupancy capacity of 24 patrons; and alternatively Grants Petitioner a 12-month variance to utilize the existing tank and drainfield system upon the following terms: Petitioner shall obtain and maintain an annual OSTDS operating permit allowing inspection at will by the Department; Petitioner shall maintain an annual contract with a licensed septic tank contractor to inspect and service the existing OSTDS at least once per month, or more frequently as necessary; Upon notification by the septic tank contractor of any problem with the OSTDS, Petitioner shall provide port-a- potties sufficient for 22 patrons; During the 12 months the variance is in place, Petitioner shall provide a port-a-potty on any occasion of rain over eight hours' duration. Petitioner shall not open for business until low- flow toilets are substituted; Petitioner shall operate the premises as a tavern for no more than 12 months, during which 12 months Petitioner shall take all necessary steps to bring the system up to Code or to connect to the sewer line; During the 12 months the variance is in place, Petitioner shall limit hours of operation to 15 hours daily; eliminate all deck seating; provide no more than 22 seats inside; use only paper or plastic ware; serve no food or mixed drinks; and actively limit occupancy to 22 patrons at any one time; and At the end of the 12 months, the system shall be in compliance or the tavern shall be closed and remain closed until compliance is achieved. DONE AND ENTERED this 12th day of February, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 12th day of February, 2001. COPIES FURNISHED: Steven E. Melei, Esquire 3603 Mobile Highway Pensacola, Florida 32505 Rodney Johnson, Esquire Department of Health 1295 West Fairfield Drive Pensacola, Florida 32501 Theodore M. Henderson, Esquire Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether or not Petitioner is eligible for restoration funding (but not insurance coverage) under the Florida Pollution Liability Insurance and Restoration Program (FPLIRP) for cleanup of discharges from underground petroleum storage tanks (USTs) underlying Petitioners' real property.
Findings Of Fact Scott C. Miller, Richard D. Miller, Sr., and Richard D. Miller, Jr. as partners in "the Miller Partnership" (hereafter, Petitioners) acquired fee simple title to the site of a former gasoline station (active petroleum retail outlet) from Gulf Oil Corporation by a warranty deed dated January 30, 1984. None of Petitioners' principals have ever been in the business of storing or selling petroleum products. At the time of purchase, the site contained five 3,000 gallon underground petroleum storage tanks (USTs) and two 550 gallon USTs. These tanks had been in use by Petitioners' predecessor in interest Gulf/Chevron, until January 30, 1984, the date Petitioners bought the real property, and Petitioners knew of the presence of the tanks at the time of purchase. Pursuant to the deed, Petitioners also acquired title to the tanks. The deed contained a restrictive covenant specifically prohibiting Petitioners from using the storage tanks for a period of three years, but did not restrict Petitioners from removing the storage tanks. At the time Petitioners took possession, none of them intended to put the storage tanks back in service, and no Petitioner has ever used the tanks for any purpose. On May 21, 1984, the Department of Environmental Regulation's (DER's) Stationary Tanks Rules, Chapter 17-61 F.A.C. came into effect. None of the Petitioners' principals had actual knowledge of the substance or effective date of Chapter 17-61 F.A.C. until early 1989, shortly before they ordered the seven USTs removed from the subject property. At some time prior to March 8, 1989, Petitioners entered into negotiations with their tenant, Jack Bush, a used car dealer, to sell the subject property to Mr. Bush. During negotiations, Mr. Bush informed Petitioners that something would have to be done with the USTs on the property and made their removal by Petitioners a condition of sale. The Petitioners engaged Charles D. Chambers as an authorized agent of Petro Environmental Services, Inc. (Petro) to remove the storage tanks. Scott C. Miller understood that he had employed Mr. Chambers to do whatever was necessary to comply with DER regulations, but Petitioners' decision to remove the storage tanks was not based on any contact with DER or representations by any of its employees. Physical removal of the tanks was accomplished March 1, 1989. During the course of tank removal, Mr. Chambers discovered petroleum- contaminated soil on the site, which had not contained fuel for years preceding Petitioners' purchase, and Mr. Chambers notified DER on March 10, 1989 with a "Discharge Notification Form, 17-1.218(3)" (P-11). It is unlikely that the contaminated soil would have been discovered but for the removal of the USTs, but there is no evidence that removal of the tanks resulted in contamination of the soil or that they had leaked during any period of ownership by the Petitioners. The removal of the tanks was immediate and clearly within 90 days of discovery of the contamination, but not within 90 days of Petitioners' knowledge of existence of the tanks. See, 17-61.050(3)(c)1 F.A.C. Upon receipt of the "Discharge Notification Form," Tim Dohaney, an Environmental Specialist II with DER's Pollutant Storage Tank Program based in the DER Jacksonville District Office sent Scott Miller o/b/o Petitioners a Request notice (P-2) dated March 16, 1989 which requested, among other things, that Petitioners submit a registration form to indicate that the storage tanks had been removed. This notice specifically provided, in pertinent part, as follows: Upon reviewing the registration files for this facility it was determined that the facility has never been registered. Therefore, it is requested that you complete the enclosed tank registration form and tank installation form to show the removal of the tank systems. The completed forms should be returned to this office within ten (10) calendar days upon receipt of this notice. This request also listed several procedures necessary to bring the site into compliance. On June 26, 1989, Mr. Dohaney notified Petitioners of an inspection to be conducted on July 18, 1989. The letter - Notice of Inspection (P-3) requested, among other things, that an updated registration placard be available on the site. The specific language provided, in pertinent part, as follows: The Department is in receipt of a Discharge Notification Form completed on March 10, 1989 for the referenced facility. As required by Chapter 17-61, on the day of inspection, you should have available at the facility: 5) The updated registration placard. This letter also specified several other items that must be available during inspection to show that the site had been in compliance. On July 18, 1989, Dohaney, Scott Miller, and an attorney for Petitioners' predecessor in interest, Gulf/Chevron, met on the site. During the inspection, Dohaney informed the others that restoration coverage for the site might exist under FPLIRP, and Miller and the Gulf/Chevron attorney expressed interest in obtaining same. The conversation concerning FPLIRP was initiated by the attorney. At the time of the inspection, however, the USTs had still not been registered, although they had been physically removed from the site approximately three and a half months earlier by a method DER's tank expert and spokesman, Mr. Svec, acknowledged was permitted by DER's rules (TR-90-91). After the inspection, Mr. Dohaney completed and served on Petitioners a July 18, 1989 "Inspection Report Form" (P-4) which provided, in pertinent part, as follows: The tanks remained on-site, improperly abandoned until 3-89 when they were removed. Violations - as shown on page 1 & 23 1) tanks are not/were not registered; 3,4) updated registration form not submitted upon tank removal; 49, 50, 51) cleanup has not begun - owner will be applying for restoration coverage under HB430. Thereon, under the heading, "13. Tanks properly abandoned? 17- 61.050(3)(c)," Mr. Dohaney had checked the column for "yes," but added, "Tanks had been on- site, improperly abandoned since approx. 1984," and checked the "yes" column for "removed." The inspection form also noted or reiterated improper abandonment, contamination discovered at time of 3-89 abandonment, lack of registration, and that groundwater had been contaminated. By way of a July 19, 1989 letter (P-5), Mr. Dohaney again requested that the tanks be registered and directed Petitioners and the attorney for Gulf/Chevron to contact DER's Tallahassee Bureau of Waste Planning concerning the possibility of restoration coverage, using the following language: Mr. Robert W. Wells, Jr., Attorney for Chevron USA and you expressed an interest in applying for restoration coverage and subsequent State Cleanup for your site under the guidelines of House Bill 430. Therefore, it is requested that you contact the tank regulation section of the Bureau of Waste Planning (BWPR) in Tallahassee at (904) 488- 3935 for information regarding the program and an affidavit that must be completed by you and returned to the Department. The registration/notification form that was given you during the inspection should be completed and returned to this office within ten (10) calendar days upon receipt of this Notice (Emphasis supplied). On August 1, 1989, Mr. Chambers subsequently submitted to DER an executed updated "Storage Tank Notification Form 17-61.090(3)" (P-11). Receipt of this form was acknowledged by Mr. Dohaney as an "updated registration form" for removal of the USTs in a letter dated August 10, 1989 (P-6). In this letter, Mr. Dohaney further notified Petitioners via their attorney as follows: As of this date, this office has no further requests regarding this location. However, as discussed, the district office is awaiting a determination by DER-Tallahassee on this site's eligibility status regarding the restoration program of the FPLIRP program. If the site is denied eligibility, an assessment and cleanup will be required by the responsible party. All DER witnesses at formal hearing acknowledged that they regarded the August 1, 1989 "Storage Tank Notification Form 17-61.090(3)" (P-11) as Petitioners' "registration," albeit late registration in their eyes. Mr. Scott Miller properly interpreted his July 18, 1989 conversation with Mr. Dohaney and all of the foregoing notifications to mean that DER found Petitioners' tanks to have been "properly abandoned." However, despite all of the foregoing written notifications, Mr. Scott Miller also interpreted his July 18, 1989 conversation with Mr. Dohaney and Mr. Dohaney's August 10, 1989 letter (P-6) as DER's assurance that Petitioners' site would qualify for restoration funding, and in that state of mind, he directed Petitioners' attorney to submit an application to DER for FPLIRP restoration benefits. Petitioners' decision to apply for coverage, however, was also based upon conversations with the Gulf/Chevron's attorney, with Mr. Chambers, and with Petitioners' own attorney. Petitioners' application for restoration funding was dated August 11, 1989 (P-8). DER subsequently denied eligibility for the site on the basis that the tanks were not in compliance with Chapter 17-61 F.A.C. in that they had been improperly abandoned in accordance with Chapter 17-61 F.A.C. and had not been registered in accordance with Chapter 17-61 F.A.C. Thereafter, by a "Warning Notice" (P-1) from Mr. Dohaney on November 27, 1989, DER attempted to fine Petitioners for noncompliance with Chapter 17-61 F.A.C. and for leakage, but this "Warning Notice" was withdrawn pending outcome of the instant proceedings (P-9). In interpreting its own rules and mission, DER does not view the act of tank removal by itself as constituting compliance with Chapter 17-61 F.A.C. Its standing operating procedure, according to Mr. Svec, a DER expert and agency spokesman, is to regard Chapter 17-61 F.A.C. as applicable to sites such as Petitioners' site even after physical removal of USTs (TR 93). In assessing eligibility, DER reviews tank compliance "history," including whether the tanks were properly abandoned in accordance with the time frames established within the Chapter. For eligibility, agency personnel interpret the statute and rules to require that a tank must be in continuous compliance with the rules and to further require that an updated registration be submitted within 10 days of tank removal. The agency also views a failure in registration to be such a major violation of the registration requirement imposed by statute and rules that it cannot be waived by the agency pursuant to the latitude granted it by Section 376.3072(3)(b) F.S.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order approving Petitioners' application for Florida Pollution Liability Insurance and Restoration Program restoration coverage. DONE and ENTERED this 5th day of April, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 5th day of April, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-5251 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Accepted: 1-4, 5-9, 10-11, 15-16, 20-26, 28-40, 45-47, 50. Irrelevant: 12-13. Immaterial: 14 (except that effective date is accepted), 17. 18 is rejected because it is stated as a conclusion of law; however, the age of the petroleum discharge is discussed in the Recommended Order. 27 is rejected because it is stated as a conclusion of law and as legal argument. Rejected as legal argument and not dispositive of the issue of rule interpretation in de novo proceedings. However, for all the reasons enunciated in the Recommended Order, proper abandonment has been found and concluded both in fact and in law: 41-44, 51-52. Subordinate and unnecessary: 48-49. There is no 19. Respondent's PFOF: Accepted: 1-9, 11, 13-25, 27-35, 36-41, 43, 50, 57. Rejected because stated as legal argument or as a conclusion of law: , 10,12, 26, 49, 51-56, 58-64. In most instances they are also direct quotations of agency witnesses' testimony and cumulative. Although the agency's interpretation of statutes and rules are to be accorded much weight, they are not required to be found as facts where, as they are here, cumulative or unnecessary. Rejected as subordinate, unnecessary, or cumulative to the facts as found: 42, 44-48. COPIES FURNISHED: Sidney F. Ansbacher, Esquire Turner, Ford & Buckingham, P.A. 1904 Gulf Life Tower Jacksonville, Florida 32202 Gary Early Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
The Issue Whether Petitioner, Department of Community Affairs (the Department), is legally precluded in this proceeding from taking agency action to enforce the reporting and fee provisions required pursuant to Chapter 252, Part II, Florida Statutes, against Respondent, Goodson Paving, Inc., for the reporting years of 1989 through 1994, inclusive, by operation and application of Section 95.011 and Section 95.11(3)(f), Florida Statutes (statute of limitations); and, Whether the Department is legally and equitably precluded in this proceeding from taking agency action to enforce the reporting and fee provisions required pursuant to Chapter 252, Part II, Florida Statutes, against Respondent for the reporting years of 1989 through 1994, inclusive, by operation and application of Section 95.11(6), Florida Statutes (doctrine of laches).
Findings Of Fact The Florida Hazardous Materials Emergency Response and Community Right to Know Act (the Act), Part II, Chapter 252, Florida Statutes, was first passed in 1988. The purpose of Act is to provide information to response personnel in an emergency regarding the type of chemicals and substances that might be present at a facility. The outreach program conducted by the Department of disseminating information to facilities which potentially may be required to report was initiated in 1988 and continued into 1989. It included mass mailings to over 100,000 facilities; conduct of regional seminars, which were advertised in newspapers; establishment of an Internet site; publishing a how-to-comply handbook; and working with local communities and other state agencies. There are approximately 15,000 to 16,000 active facilities reporting under various sections of the Act. The Department did not contact Respondent during the outreach program. Respondent has been located at 5855 Industrial Drive, Cocoa, Florida, since April 1989. Respondent reported the following number of employees to the Florida Department of Labor and Employment Security for unemployment compensation tax purposes for the last month of each year, from 1989 through 1998: 1989 24 1990 22 1991 25 1992 30 1993 31 1994 35 1995 37 1996 40 1997 44 1998 45 Respondent is in the business of site contracting and road building/construction and uses diesel fuel which it stores on-site for fueling its trucks and construction equipment. Respondent does not distribute the diesel fuel or offer it for retail sale. The site located at 5855 Industrial Drive, Cocoa, Florida, has been an asphalt plant and road construction office since approximately 1949. Respondent stores on-road diesel fuel and off-road diesel fuel at the site for self-use for completion of contracted projects. The Brevard County Fire and Rescue Department performs annual inspection of Respondent's site at 5855 Industrial Drive, Cocoa, Florida, as well as inspection of the shop, the office, and the storage tanks. Respondent has completed and filed the State of Florida Department of Environmental Protection Storage Tank Registration forms and the State of Florida Environmental Protection Plant Storage Tank System Inspection Report for every year of operation since at least 1991. Respondent completed and filed the State of Florida Department of Environmental Protection Storage Tank Facility Compliance Inspection Report for the year 1999 on September 8, 1999. Respondent received the State of Florida Department of Environmental Protection Storage Tank Placard issued in July of 1999 with an expiration date on June 30, 2000. Respondent is in possession of the requisite State of Florida Storage Tank Third Party Liability and Corrective Action Policy Declarations with an effective date of January 1, 1999. Respondent has maintained uninterrupted insurance for the on-site tanks since 1989. Respondent pays a State of Florida Pollutant Tax on each gallon of diesel fuel purchased through its supplier, Coastal Refining and Marketing, Inc. The tax is collected by the supplier and remitted to the State of Florida. The State of Florida Department of Environmental Protection Storage Tank Facility Compliance Inspection Reports are filed with the State of Florida Department of Environmental Protection in Tallahassee, Florida. The Brevard County Fire and Rescue Department is aware and informed of the chemicals and type of operation located at Respondent's site at 5855 Industrial Drive, Cocoa, Florida. The only chemicals possessed by Respondent at the site at 5855 Industrial Drive, Cocoa, Florida, are the aforementioned diesel fuel tanks, motor oil, hydraulic oil, and four one-gallon cans of paint. Respondent does not manufacture asphalt or maintain liquid asphalt at the site at 5855 Industrial Drive, Cocoa, Florida. Prior to receiving the April 2, 1999, Notice of Violation and Intent to Assess Late Fee, Respondent had not had contact with The Department. Respondent has filed the requisite monthly reports to the State of Florida Department of Revenue and has paid the requisite road and fuel tax to the State of Florida Department of Revenue since incorporation. Respondent, Goodson Paving, Inc., does have a current, valid Occupational License issued by Brevard County, Florida. Respondent's diesel fuel storage containment system is built to the code issued by Brevard County and is approved by the Brevard County Inspectors each year. Prior to receiving the April 2, 1999, Notice of Violation and Intent to Assess a Late Fee from the Department, Respondent, in the previous ten or eleven years, has had annual inspections conducted by the Brevard County Fire and Rescue Department and the other county inspectors; has paid taxes to the State of Florida Department of Revenue; and has had a valid Occupational License. Respondent was not informed of the obligation to report under Part II of Chapter 252, Florida Statutes. On April 8, 1999, Respondent received the Department's Notice of Violation and Intent to Assess a Late Fee dated April 2, 1999. Respondent timely requested an administrative hearing regarding the Department's April 2, 1999, Notice of Violation and Intent to Assess Late Fee, pursuant to Section 120.569, Florida Statutes, and implementing rules. The staff of the Department's Division of Emergency Management Compliance Planning Section who administer the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Act of 1988 are also responsible for assisting the Division's Emergency Operations Center during activations for disasters such as hurricanes or fires. During activations, the routine hazardous materials program duties are subservient to other Division of Emergency Management duties. Respondent suffered no prejudice from the timing of the Department's April 1999 Notice of Violation and Intent to Assess a Late Fee since: (1) the annual inventory forms are required by federal law; (2) Respondent was able to complete the forms based upon available information; and (3) no interest, late fee, or other adverse financial impact will result if the annual fees are timely paid in response to the notice. Respondent is responsible for the fee obligations under the statutes and rules for the years 1989-1998, in the total amount of $832.50.
Recommendation That the Secretary of the Department of Community Affairs enter a final order which holds that: Respondent is responsible for reporting diesel fuel in excess of the threshold planning quantity pursuant to 42 U.S.C. Section 11022 and Sections 252.85 and 252.87, Florida Statutes, for the years 1989-1998 inclusive; and for the fee obligations under Section 252.85, Florida Statutes, and Rule 9G-14.003(3), Florida Administrative Code, for the reporting years 1989-1998, inclusive. Respondent owes the Department annual registration fees totaling $832.50 if the reports and fees are submitted within thirty days of the Department's final order in this matter. Respondent can be assessed additional late fees if all required reports, fees, and late fees are not timely paid, in accordance with Section 252.85(4)(b)3, Florida Statutes. DONE AND ENTERED this 1st day of December, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1999. COPIES FURNISHED: Ross Stafford Burnaman, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325A Tallahassee, Florida 32399-2100 Douglas W. Baker, Esquire John H. Evans, P.A. 1702 South Washington Avenue Titusville, Florida 32780 Jim Robinson, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether Petitioner failed to obtain a permit for abandoning an on-site sewage treatment and disposal system septic tank, and failed to notify Respondent so that Respondent could inspect the system prior to abandonment, in violation of Section 386.0065, Florida Statutes (1997), and, if so, whether Petitioner should pay a $500 fine. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Respondent is the state agency responsible for issuing citations under Chapter 386 and is the licensing authority for Petitioner. The Osceola County Health Department (the "Department") is an agency of Respondent. All Pro Services ("All Pro") practices septic tank contracting in Osceola, Orange, and Seminole counties. All Pro is a Florida corporation wholly-owned by Mr. Wayne H. Crotty. Mr. Crotty is licensed in the state as a septic contractor pursuant to Chapter 386. Mr. Crotty has been in the septic tank business for over 25 years. He has extensive experience in septic tank repair and contracting. Mr. Crotty also has had experience in the rule-making process conducted by Respondent pursuant to Florida Administrative Code Chapter 10D-6. He has participated in various committees and held offices in the Florida Septic Tank Association. (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) In the summer of 1996, Petitioner submitted an application to the Department for a repair permit. Petitioner sought to install a standard drainfield utilizing gravity fall from the existing septic tank of a mobile home owner who used the mobile home facility as a day-care center. The existing drainfield was antiquated, clogged, and had ceased disposing effluent properly. Petitioner made arrangements for the day-care center to refrain from using water or sewage for a period of hours so that the drainfield could be repaired. The application came to the attention of Mr. Thomas Franklin Wolf, Director of the Department's Environmental Health Section. Mr. Wolf did not accept the site evaluation in the application. He chose to perform his own evaluation of the repair site. When Mr. Wolf performed a site evaluation, he placed the seasonal high water table two inches higher than the high water table stated by Petitioner in the application for a repair permit. As a result, Mr. Wolf issued the permit at an elevation that would have required either the use of a pump system or elevated plumbing lines in the existing septic tank to meet the higher elevation deemed necessary by Mr. Wolf. The higher elevation established in the permit could be accommodated in either of two ways. The plumbing underneath the mobile home, along with the septic tank, could be raised. Alternatively, a new pump, and other equipment meeting the requirements of Chapter 10D-6, could be installed. The repair permit issued by Mr. Wolf contemplated the use of a new pump chamber complete with alarm. Pumps fail, are problematic, and are expensive. A conventional gravity-fed drainfield line is preferable, whenever feasible, to the use of a pump chamber system and is less expensive. Petitioner determined that the plumbing and septic tank could be elevated to meet the higher elevation requirements thereby avoiding the need for a pump system and its increased cost. This lower-cost alternative satisfied the requirements of Chapter 10D-6 for a septic tank drainfield. Based on past experience, Mr. Crotty believed he could obtain the Department's approval of this alternative to the pump chamber requirements of the permit. The Department had no objection to an alternative that achieved the higher elevation requirement with a gravity-fed system. One risk associated with Petitioner's alternative was that the existing septic tank might not withstand the rigors of being excavated and raised and could break during the repair process. After conferring with the homeowner about the matter, Petitioner proceeded to elevate the existing plumbing lines and septic tank. Petitioner began excavation and removed the lid from the existing septic tank. Petitioner then determined that it would not be feasible to lift the tank up and reinstall it at the higher elevation due to the age and style of the tank. Petitioner determined that the best way to proceed was to abandon the old tank and to install a new tank at the higher elevation. Petitioner replaced the existing septic tank without obtaining a separate abandonment permit. Petitioner did not need a separate abandonment permit. The repair permit was inclusive of the abandonment of the existing tank. In a previous repair effort for another customer, Petitioner broke the existing septic tank while attempting to elevate the tank to a higher location. The prior incident led to a disagreement between Petitioner and the Department over whether a separate abandonment permit was required for replacing a tank in the course of a repair. Petitioner wrote a certified letter to the Department and Department's counsel memorializing an understanding reached during discussions with Department representatives. Any requirement for a separate abandonment permit in the course of a repair was tabled pending further review by the state health office in Tallahassee. The letter further stated Petitioner's understanding that under Chapter 10D-65, the replacement of an existing tank was provided for through a repair permit, and that no separate abandonment permit is necessary for an abandonment which occurs in conjunction with a repair effort. The letter was received by Mr. Wolf on behalf of the Department. In response, the Department specifically informed Petitioner that the replacement of an existing tank is provided for through the repair permit. Mr. Wolf never retracted this position in his dealings with Petitioner. At about the same time, the state health office, through its acting Health Officer for Environmental Health, issued an interoffice memorandum advising every district administrator in the state that a separate abandonment permit is not required when an existing tank is abandoned during repair. The interoffice memorandum stated, in relevant part: This addresses permitting procedures when a septic tank is abandoned in conjunction with a system repair. Since the repair and tank abandonment inspections can be conducted at the same time, a separate permit and fee is not required if a tank is abandoned in conjunction with a repair permit. The repair permit should specify the abandonment requirements from s. 10D-6.053, F.A.C., and the requirements to have the abandonment inspected. If an additional inspection visit is required for either the repair or abandonment, the unit should charge the $25.00 re-inspection fee. Respondent's memorandum served as the Department's official interpretation of its rules relating to abandonment procedures. The memorandum made a separate abandonment permit unnecessary because the repair permit "is inclusive of the abandonment if the abandonment is necessary." The repair permit in this case suffices as an abandonment permit. Petitioner relied upon the representations of Mr. Wolf personally as well as the Department memorandum of February 18, 1996. Based upon Department policy, Petitioner was not required to amend its permit application to seek specific approval for abandonment of the existing tank, because the tank was being abandoned in conjunction with a repair permit. Petitioner pumped out, ruptured, and demolished the old septic tank with the exception of the inlet end wall and the sidewall closest to the tank. Petitioner left intact the latter portions of the old septic tank for inspection purposes and for stabilization. Petitioner placed the lids and the broken pieces of concrete from the tank alongside the new septic tank that was installed. Mr. Crotty requested an inspection by the Department. Inspector Garner arrived on the scene with a standard probe. The probe is a tool useful for inspecting on-site sewage disposal systems. Mr. Crotty informed Mr. Garner that Petitioner had abandoned the old tank and replaced it with a new one. Mr. Crotty took Mr. Garner over to the site and specifically pointed out the remaining sidewall of the old tank and the lids piled up on-site and remaining from the old tank. Mr. Garner inspected the repairs and satisfied himself that Petitioner had installed a new septic tank in the place of the old tank and had done it in a way that would allow gravity feeding to the new drainfield. The repairs dispensed with the need for a pump and were accomplished at a lower cost to the customer. After the inspection on August 13, 1998, and a subsequent review on August 14, Inspector Garner approved the installation by Petitioner. The approval specifically approved the use of a gravity-fed line rather than the use of the pump contemplated in the permit. The approval constituted the "construction final" approval for the septic system that was repaired. Rule 10D-6 does not specify when the inspection for an abandonment of a septic tank in conjunction with a repair is to occur. Nor does it say anything about requesting an inspection before the tank is filled with sand or other suitable material and covered. It was Inspector Garner's practice, and the unwritten policy of the Department, to conduct inspections of damaged septic tanks at the same time the Department inspected repair constructions. The practice of the Department in such an inspection was to inspect the abandoned tank after it had been pumped and the bottom ruptured, but before a new tank was installed. According to Department practice, the inspection of an abandonment in conjunction with a repair must determine that the tank had been pumped and that the bottom of the tank had been opened or ruptured or collapsed to prevent the tank from retaining water. The inspection can only occur after the tank has been pumped out, opened, ruptured or collapsed. Inspector Garner arrived for the inspection after abandonment of the old tank. Mr. Garner does not dispute that Petitioner abandoned the old tank, but maintains that the abandonment was accomplished without proper notification to the Department. Mr. Garner approved the construction, but recorded x- marks on the approval form adjacent to a box for abandonments and next to "tank pumped" and "tank flushed and filled." Mr. Garner also recorded on the form under "explanation of violations" a notation that the old septic tank "was abandoned without any inspection of [sic] verification." The promulgated rules of the Department and Respondent do not require an inspection before an abandoned tank is filled with sand, or other suitable material, and covered. It was the Department's unwritten policy, evidenced by its practice, to insist that inspection of the abandoned septic tank occurred before the tank is actually crushed. The promulgated rules of Seminole and Orange counties do not require inspection prior to abandonment of an existing tank. The unwritten policies of Seminole and Orange counties deviate from those of the Department. The Seminole County Health Department ("Seminole") also received the Department's interpretive memorandum regarding abandonment of septic tanks in conjunction with repairs. Seminole concluded that abandonment inspections should be conducted simultaneously with the final inspection for repairs. At that point, the old septic tank is already ruptured and filled with sand. Seminole adopted the practice of inspecting abandoned septic systems with a probe to verify the pump-out and the rupturing of the old tank. It is the same type probe used by Mr. Garner and the Department. The probe allows a department employee to verify all of the requirements of Rule 10D-6.053 for abandonment. The Orange County Health Department ("Orange County") also received the interpretive memorandum concerning abandonment of septic tanks in the course of repair procedures. By the time the memo was received, however, it was already the practice of Orange County not to require a separate abandonment permit for an abandonment as part of a repair. In Orange County, inspectors permitted abandonment inspections to occur at the point where the tank was already collapsed and covered with sand. The inspection was accomplished with the use of a probe.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent enter a final order finding Petitioner not guilty of the allegations against it and dismissing the citations. DONE AND ENTERED this 24th day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 24th day of November, 1998. COPIES FURNISHED: Marya Reynolds Latson Marion County Health Department Post Office Box 2408 Ocala, Florida 34478-2408 Stephen D. Milbrath, Esquire Allen, Dyer, Doppelt, Milbrath and Gilchrist, P.A. Post Office Box 3791 Orlando, Florida 32802-3791 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Pete Peterson Department of Health 2020 Capital Circle, Southeast Bin A 02 Tallahassee, Florida 32399-1703
The Issue The issue is whether, to the exclusion of fair debate, specific provisions of the Charlotte County comprehensive plan are not in compliance with certain requirements of Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
Findings Of Fact Background Introduction Charlotte County Charlotte County is located in Southwest Florida. It is bordered on the south by Lee County, north by Sarasota and DeSoto counties, west by the Gulf of Mexico, and east by Glades County. Charlotte County comprises 693.7 square miles of land and 129 square miles of water--mostly Charlotte Harbor and its tributaries. Although only 18 miles in length from north to south, Charlotte County contains 120 miles of coastline. Charlotte Harbor and its two main tributaries physiographically divide the Charlotte County into eastern, central, and western portions. The eastern portion of the County is bounded on the west by the Peace River and Charlotte Harbor. The eastern portion of the County contains Punta Gorda, which is the sole municipality in Charlotte County. Punta Gorda abuts the southern bank of the mouth of the Peace River and the bank along the northeast corner of Charlotte Harbor. The central portion of the County is bounded on the east by the Peace River, the south by Charlotte Harbor and the Peace River, and the west by the Myakka River. The central portion of the County contains Port Charlotte, which is the major, unincorporated town center in Charlotte County. Port Charlotte encompasses the area from the mouth of the Peace River to the area of the intersection of State Route 776 and U.S. Route 41, although the specific area of this intersection is sometimes referred to as Murdock. The community at the northern bank of the Peace River at U.S. Route 41 is known as Charlotte Harbor. Between the community known as Charlotte Harbor and Interstate 75 is the community known as Harbor View. Farther upstream the Peace River, but still on its north and west bank, and east of Interstate 75, is the community known as Harbor Heights. The central portion of the County also contains large areas of urbanized development-- west of Interstate 75, south of State Route 776, and on both sides of U.S. Route 41--that are served by septic tanks or package plants. The western portion of the County is bounded on the east by the Myakka River and Charlotte Harbor, the south by Charlotte Harbor and Gasparilla Sound, and the west by Gasparilla Sound, Placida Sound, and Lemon Bay, which separate the mainland from the County's coastal barriers. Most of the western portion of the County is also known as the Cape Haze Peninsula. The western portion of the County also contains the coastal barriers dividing Lemon Bay, Placida Sound, and Gasparilla Sound from the Gulf of Mexico to the west. The western portion of the County contains large areas of urbanized development that are served by septic tanks or package plants. These areas are mostly north and west of the Rotonda, which occupies the center of the Cape Haze Peninsula, and south of Englewood, which is a community immediately north of the county line. Charlotte Harbor (including Gasparilla Sound) is an aquatic preserve totaling about 270 square miles (a small part of which is in Lee County). Charlotte Harbor is the second largest estuary in Florida. The water quality of Charlotte Harbor is "fair to good" with "somewhat lower water quality" along the eastern shoreline of the harbor and at the mouths of the Myakka and Peace rivers. Natural Resources and Coastal Planning Element (Natural Resources Element), p. 3-15. Human impacts to these waters have depressed water clarity and elevated concentrations of bacteria, nutrients, and suspended sediments. Phytoplankton productivity is typically limited by the amounts of available nitrogen, as relatively high levels of phosphorus are available from the Peace River watershed, but the limiting factor in certain regions of the tidal rivers, which also have relatively high levels of nitrogen, is light availability. The "most severe threats to water quality and natural systems in Charlotte Harbor" are "population growth and urbanization," which are focused along the coastline of the harbor, and mining, chemical processing, and agricultural activities, which apply to all surface waters in the watershed. Natural Resources Element, p. 3-19. Gasparilla Sound separates Charlotte Harbor from Lemon Bay, which is an aquatic preserve and an Outstanding Florida Water. Lemon Bay is a narrow, 12 square-mile body of water running about 13 miles between the coasts of Charlotte and Sarasota counties and the coastal barriers, which range from 1/8th of a mile to 1.2 miles off the mainland. The average depth of Lemon Bay is six feet at mean high water. The water quality of Lemon Bay is "generally good," but only fair to poor for dissolved oxygen and fecal coliform bacteria in the bay waters and mouths of the tributary creeks. The urbanized creeks of the Englewood area also have high nutrient levels. Natural Resources Element, p. 3-23. Charlotte County is relatively low-lying with elevations from 0 feet at the Gulf coastline to 75 feet in the northeast section. However, the highest areas of the County are in the extreme eastern end of the County, which is very lightly populated and bears relatively low densities on the Future Land Use Map (FLUM). Nearly the entire population of Charlotte County resides at elevations of less than 15 feet. Natural Resources Element, Map 3.13. County soils are poorly drained, so that 97 percent have "severe limitations" for septic tank drainfields. Future Land Use Element (FLUE), pp. 1-5 and 1-49. The only soil rated as "moderate" for septic tank drainfields is Orsino fine sand, which covers less than one percent of the County--mostly along the Prairie Creek and Alligator Creek east of U.S. Route Infrastructure Element, p. 4-138. Most of the County is susceptible to flooding; the 100-year floodplain encompasses most of the urbanized area of the County. On June 23, 1995, for instance, a cluster of thunderstorms not associated with a tropical storm or hurricane produced 15 inches of rain over nine hours. The resulting flood damaged $2.5 million of public property (mostly roads, but including a 12-inch water main that was first exposed and then ruptured by rushing water) and $1 million of private property. As reflected on Natural Resources Element Map 3.16, nearly the entire coastline, including that along Charlotte Harbor, is within the hurricane vulnerability zone for a Category 1 hurricane; in fact, most of the coastline is within the hurricane vulnerability zone for merely a tropical storm. The County has designated areas within the hurricane vulnerability zone for Category 1 and tropical storms as its Coastal High Hazard Area (CHHA). FLUE, p. 1-64. Except for parts of the northern end of the central part of the County and the southern end of the eastern part of the County, the entire County west of Interstate 75 is in the hurricane vulnerability zone for all storms up to a Category 3 hurricane. According to FLUE Map 1.17, the CHHA is extensive in Charlotte County. For the western part of the County, the CHHA encompasses all of the barriers and nearly the southern half of the Cape Haze Peninsula. For the central part of the County, the CHHA encompasses nearly one-quarter of the coastal area between State Route 776 and U.S. Route 41, a thin band to the east (along the northern end of Charlotte Harbor and the north bank of the Peace River), and a thicker band to the west along the north bank of the Myakka River. For the eastern part of the County, the CHHA encompasses a thin band along the east bank of the Peace River and along the northern end of Charlotte Harbor around Punta Gorda and a thicker band along the remainder of the east bank of Charlotte Harbor south of Punta Gorda. Running parallel to the coast, parts of two coastal barriers--one a peninsula and the other an island--and a bridgeless barrier island chain separate the Cape Haze Peninsula from the Gulf of Mexico. The northernmost coastal barrier is Manasota Key, which is a peninsula connected to the mainland in Venice. The southern 4 miles of Manasota Key are in Charlotte County. The southernmost barrier is Gasparilla Island, which is an island. The northern 1.8 miles of Gasparilla Island are in Charlotte County. Manasota Key and Gasparilla Island are connected by roads to the Cape Haze Peninsula. Located between Manasota Key and Gasparilla Island is a chain of bridgeless barrier islands known, from north to south, as Thornton Key, Knight Island, Bocilla Island, Don Pedro Island, and Little Gasparilla Island (Don Pedro island chain). (Sometimes Palm Island is added to this list, although it may signify an alternative name rather than another historic island.) At present, the Don Pedro island chain is connected by land, but these islands can be separated by water in very high tides and were more continually separated by water in the recent past. Stump Pass divides the Don Pedro island chain from Manasota Key, and Gasparilla Pass divides the Don Pedro island chain from Gasparilla Island. About 90 percent of the Don Pedro island chain is within the hurricane vulnerability zone for a tropical storm. The Don Pedro island chain is part of a highly dynamic system. For example, Stump Pass has migrated south 1.3 miles over a 100-year period ending in 1984. With respect to the area within Charlotte County, Manasota Key contains 59 acres of active dunes, the Don Pedro island chain contains 228 acres of active dunes, and Gasparilla Island contains 24.3 acres of active dunes. Natural Resources Element, p. 3-148. The widths of all three coastal barriers vary from 80 to 2000 feet. The northern two miles of Manasota Key have withdrawn up to 100 feet during the last century. The southernmost mile has recently been even more dynamic, eroding 40 to 170 feet from 1953 to 1975. The area in between built up 20 to 40 feet during the last century. Similarly, areas of erosion and accretion characterize different parts of Gasparilla Island in Charlotte County. The Don Pedro island chain has been cut by at least five different inlets in the 100-year period ending in 1981. Inlets or passes now closed are former Bocilla Pass on Knight Island, Blind Pass between Knight and Don Pedro islands, and Little Gasparilla Pass between Don Pedro and Little Gasparilla islands. With respect to the Don Pedro island chain, the County states: "Generally, the beach areas one-half to 1 mile north and south of inlets are the most dynamic of all on barrier islands and must be considered high-hazard zones for any structures. Low elevations make the island vulnerable to flooding." Natural Resources Element, p. 3-148. The Don Pedro island chain provides about 12.5 miles of Gulf shoreline and is separated from the mainland by as little as 200 feet of water. A bridge ran to the islands until removed by the Army Corps of Engineers in the 1960s during construction of the Intracoastal Waterway. Beach renourishment projects have enjoyed different levels of success in meeting the expectations of their engineers. In the most recent such project, Palm Island Resort conducted a relatively small project at the north end of its island in 1995, but the additional sand naturally transported offsite within one year. Natural Resources Element, pp. 3-153 and 3-159. 2. County's Planning Challenges Although generally in good condition, the surface waters of Charlotte County present a planning challenge to Charlotte County, which attempts to "continue to provide water for all the various human needs--residential, agricultural, and industrial--without damaging the natural systems which supply the water and make Florida a desirable place in which to live." Natural Resources Element, p. 3-40. The County recognizes that the "primary threats to [its] surface waters include non-point source pollution generated by urban and agricultural runoff, leachate from septic tanks and package wastewater treatment plants, erosion from improper land clearing activities, upstream sources of contamination (particularly phosphate mining in the Peace River Basin), and historic construction of dead-end finger canals." Id. The planning challenges faced by Charlotte County are complicated by its self-described status, with such other communities as Cape Coral and Lehigh Acres, as a "platted lands" community. During the 1950s, 1960s, and 1970s, large- scale developers platted vast amounts of land into individual lots and sold them to large numbers of persons. Among the most notable developers of Charlotte County land were the Mackle Brothers and General Development Corporation (GDC), which has been succeeded by Atlantic Gulf Communities Corporation. GDC subdivided the 185 square-mile Port Charlotte subdivision--nearly one-sixth the area of Rhode Island--in the central and western parts of the County, as well as in adjacent Sarasota County. The portion of this massive subdivision in Charlotte County contains 118,254 lots and parcels, of which 88,543, or about 75 percent, remain vacant. Another notable developer was the Cavanaugh Leasing Corporation of Miami, which developed Rotonda West. Marketed as a "self-contained circular community of 50,000," the Rotonda West development, with its surrounding subdivisions, totals 26,260 lots, of which 24,226 remain vacant. Seven subdivisions, including the two already noted, account for 186,001 total lots, of which 145,639 remain vacant. As acknowledged in the FLUE data and analysis in the comprehensive plan: The overplatting of land has made achieving growth management objectives very difficult. For the most part, development has followed the extension of potable water lines in Charlotte County. Therefore, the provision of infrastructure appears to be the most effective tool for directing where, when, and at what intensity development will proceed. The growth management strategy within this comprehensive plan utilizes the provision of infrastructure as the primary tool for managing growth and development in Charlotte County. It is referred to as the Urban Service Area strategy. FLUE, p. 1-13. Of the total of 443,968 acres of existing land uses in Charlotte County, the five largest categories are agricultural--229,695 acres; park, recreation, or refuge-- 91,269 acres; vacant-60,317 acres; other (such as roads, canals, and lakes)--33,224 acres; and residential--18,844 acres. Commercial land uses total only 1337 acres--less than the 2814 acres in mining and 1501 acres in industrial. FLUE, Table 1.9. Over 80 percent of the County's assessed valuation is derived from residential properties, which is the highest proportion in Florida, for which the average is only 66 percent. FLUE, p. 1-68. The magnitude of the planning challenges confronted by Charlotte County is largely driven by residential development. The County's population grew in the 1980s from 58,460 to 110,975, doubling as it has in every decade since the 1950s. FLUE, Chart 1.1. During the 1980s, Charlotte County led the nation in population growth with nine percent annual increases. FLUE, p. 1-67. The population of Charlotte County is largely elderly; in 1990, one-third of the residents were at least 65 years old. FLUE, Chart 1.4. No other county in Florida has a greater percentage of residents at least 65 years old, and only one county in the United States has a higher percentage of residents at least 65 years old. Almost half of the County's population is over the age of 54 years; its median age of 53.7 years is the highest in Florida. The large population growths experienced by Charlotte County are due to a net in-migration because the County had 2904 more deaths than births between 1990 and 1994. County personal incomes are bunched in the middle. Only 7.5 percent of County households live below the poverty line, which is second lowest in Florida. But only 5.8 percent of County households have incomes over $75,000; the average in Florida is 10 percent. Charlotte County has a low labor force participation rate (42 percent versus the Florida average of 60 percent), and County employment is concentrated in the low- paying areas of retail, services, and construction (85 percent versus the Florida average of 60 percent). FLUE, p. 1-67. Combining these factors with the 62nd lowest millage rate in Florida and few industrial and commercial properties on the tax rolls leaves Charlotte County with a fairly narrow tax base. FLUE, p. 1-68. All of these conditions contribute to the difficulty of meeting the planning challenges presented by extremely large numbers of prematurely platted lots. As the County has addressed this problem: There are no absolute solutions for the problems associated with the premature platting and sales of land. When the original developers go bankrupt, as many inevitably do, local governments, taxpayers, and ratepayers are left with the bill. Must they honor the obligations made by the original developer? Can a local government simply turn its back upon those customers? There are no easy answers to these questions which have legal, political, and economic implications. FLUE, p. 1-100. 3. County's Planning Strategies After reviewing several possible planning strategies, the County chose the Urban Service Area (USA) strategy as the key component of its overall strategy to deal with the problem of large numbers of prematurely platted lots, FLUE, p. 1-104, and its "primary growth management tool." FLUE, p. 1-132. The County has refined its urban-containment strategy since adopting its first comprehensive plan under the 1985 Local Government Comprehensive Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (Chapter 163), in 1988. In the 1988 plan, Charlotte County adopted an "urban growth boundary" that encompassed all of the platted lands within a 215 square mile area. FLUE, p. 1-132. In 1989, Respondent Department of Community Affairs (DCA) challenged the 1988 plan largely on the ground that it did not discourage urban sprawl. Following a lengthy hearing, Charlotte County and DCA entered into a Joint Agreement on Remedial Actions and Sanctions. On March 15, 1990, the Administration Commission entered a final order determining that portions of the 1988 plan were not in compliance with Chapter 163 and incorporating the remedial agreement into the order. Implementation of the agreement was difficult, and the Administration Commission did find the plan to be in compliance until May 1994. The main theme of the remedial actions was to encourage development where public facilities are available and physical conditions are most suitable and discourage development of other areas within the County. Accordingly, Charlotte County decreased densities in outlying areas, including the Don Pedro island chain. Establishing the USA as the major part of its urban- containment strategy, the County reduced the former urban growth area by 28 square miles. Even so, the still-vast 187 square-mile USA encompasses nearly the entire County west of Interstate 75 and about 25 square miles east of Interstate 75. FLUE, p. 1-133 and FLUM Series No. 2. The USA is divided into 97 square miles of Infill Areas (13 of which are in Punta Gorda) and 90 square miles of Suburban Areas. The designation of 84 square miles of Infill Areas within the unincorporated County better corresponds to the 79 square miles projected to be needed for residential growth through 2010. However, this growth management strategy likely will not result, in the planning timeframe, in compact urban development featuring viable mixed uses in functional proximity to each other due to three factors: the large numbers of already-sold platted lots, the lack of resources to confront this problem more directly, and the urbanization-- almost inevitably in an inefficiently sporadic pattern due to the excessive designated densities as compared to the projected population growth--of an additional 90 square miles of Suburban Area within the USA. The County's ability to discourage urban sprawl is compounded by two limitations upon its ability to control the provision of infrastructure: the prevalence of private utilities providing central sewer and water services and the prevalence of Municipal Services Taxing Units (MSTUs) and Municipal Services Benefits Units (MSBUs) funding road and drainage projects. Although the use of MSTUs and MSBUs to provide the infrastructure crucial to guiding the location and timing of urbanization is obviously not unique to Charlotte County, the extensiveness of these alternative means of providing such infrastructure may be. The County's ability to control the timing of the extension of central water and sewer expanded with the 1991 acquisition of General Development Utilities. However, 12 of the 14 utilities supplying potable water in Charlotte County are privately owned. Infrastructure Element, p. 4-106. According to Infrastructure Element Map 4.23, the certificated territory of Charlotte County Utilities covers about 70 percent of the central portion of the County and about 20 percent of the western portion of the County. The City of Punta Gorda has the certificated territory for the relatively small area of the eastern portion of the County that is served by central water. Infrastructure Element Table 4.18 indicates that, in 1995, Countywide average daily demand was 14,605,950 gallons of potable water, including Charlotte County Utilities with an average daily demand of 6,070,990 gallons and the City of Punta with an average daily demand of 3,168,000 gallons. Thus, private utilities supply a little more than one-third of the potable water in the entire County. The situation is worse with respect to central sewer. Two public utilities and seven private utilities supply central sewer. Infrastructure Element Map 4.26 indicates that the certificated territories for central sewer are much smaller than are those for central water. Relatively little of the western portion of the County has central sewer, and the territory of Charlotte County Utilities is significantly smaller than the territory served by Rotonda West Utilities Corp. For the central portion of the County, the territory of Charlotte County Utilities is significantly larger than that of the other major utility, Florida Water Services Corp.--Deep Creek. The City of Punta Gorda has most of the territory for central sewer in the eastern part of the County. Average daily demand in 1995 totaled 6,283,960 gallons including Charlotte County Utilities receiving 1,950,470 average gallons daily and the City of Punta Gorda receiving 2,038,580 average gallons daily. Thus, private utilities treat a little more than two-thirds of the wastewater, although, considering the 514,300 average gallons daily treated by package treatment plants (Infrastructure Element, Table 4.25), the share of the private utilities is a little less. A precursor to community development districts, for which developers form entities for the construction and operation of certain public facilities, such as roads and drainage, MSTUs and MSBUs are also means by which residents receiving certain services pay for those services, primarily roads and drainage. An MSTU differs from an MSBU because the former imposes an ad valorem tax and the latter imposes a tax based on other factors. Capital Improvements Element, p. 8-9. As the County notes, "[t]he extent of the County's use of MSTUs and MSBUs is unique in Florida and perhaps in the country." Capital Improvements Element, p. 8-8. Both sources of revenue funded about $7.2 million in local roads and drainage in 1995-96. Capital Improvements Element, p. 8-8. This is a significant source of funding for roads and drainage. For the five fiscal years ending in 2002, the total County expenditures for "street/drainage/waterways/other projects" are $10.7 million and for "road improvements/M&O" (presumably maintenance and operation) are $59.4 million/ during the same five-year period, MSBUs and MSTUs provide $10.6 million of total revenues of $174.7 million. Capital Improvements Element, Capital Improvement Program, p. C-2. Thus, unless a portion of the $5.6 million in "natural resources" expenditures during this five-year period are allocated to drainage, MSTUs and MSBUs provide all of the funds for County-funded drainage projects and an undeterminable percentage (due to the grouping of streets, drainage, waterways, and other projects under one item)-- substantially less than 15 percent--of the funds for County- funded road projects. Id. As the County observes, "[t]he use of the rural MSBUs makes living in rural Charlotte County competitive with living in the [USA] and detracts from the ability to contain growth within the [USA]." Capital Improvements Element, p. 8-9. Public Participation The planning process that culminated in the new plan began with the County's preparation of its Evaluation and Appraisal Report (EAR). In this process, the County evaluated the success of its plan, identified any new planning challenges that it faces, and developed new planning strategies to meet these challenges. Charlotte County began the EAR process in 1993. Completing the EAR in 1995, the County transmitted it to the Southwest Regional Planning Council, which determined in January 1996 that the EAR was legally sufficient. In developing a new plan based on the EAR, the County conducted 115 public meetings from 1995-97. All interested persons could speak at these meetings. Additionally, County residents had an unusual opportunity for input into the plan because of the County's reliance on the Charlotte Assembly, whose membership represented a broad range of County residents who wanted to participate directly in the preparation of a new plan. The Charlotte Assembly worked on the plan from October 1996 through the summer of 1997. On March 18, 1997, the County Commissioners transmitted the proposed plan to DCA. Following receipt of the report of DCA's objections, recommendations, and comments, the County Commissioners adopted the plan on October 7, 1997. There is no evidence in the record of any shortcomings in the contents of the public-participation procedures adopted by Charlotte County, nor in its implementation of these procedures in the planning process that produced the plan. Standing of Petitioners Plummer Eugene Plummer (Plummer) is the president of The Historical Knights Bldg., Inc. He owns a majority of the shares of the corporation, which owns the real property located at 2600 Bayshore Boulevard (the Site). The Site is in the Charlotte Harbor Redevelopment Area. At the time of the hearing, a two-story building constructed in 1923 was located at the Site, as well as the Knight Dock, from which Confederate forces had shipped cattle during the War Between the States. However, several months prior to the hearing, in February 1998, the County had razed an older building located at the Site known as the Mott Willis Building. The Mott Willis Building was originally constructed as the first general store in Charlotte County. At different times, Mr. Willis and members of the Knight family lived upstairs. In the 1920s, the original building was enlarged by its envelopment within a larger general store, which had fallen into disrepair for the 20 years preceding its demolition. At the time of its demolition, the Mott Willis Building was unsafe, although Plummer had identified several possible sources of funding a rehabilitation effort to convert the building to a children's theater, after which he and his corporation intended to donate the building to the County. There is no doubt of the historic significance of the Mott Willis Building. On December 16, 1993, the County passed an ordinance designating the Mott Willis Building as historically significant. In 1996, the building was listed in the Florida Master Site Plan. And, on May 30, 1997, the Mott Willis Building became the first building in Port Charlotte to be listed in the National Register of Historic Places. Plummer testified that the petitioners in DOAH Case No. 98-1634 are he and The Historical Knights Bldg., Inc. (Tr. p. 179.) Plummer testified that he attended code enforcement hearings in connection with the demolition of the Mott Willis Building. He estimated that the hearings ended in 1996. (Tr. p. 180.) He testified that he never appeared before the County Commission, but sent them a letter. In response to a question asking when he sent the letter to the County Commission, Mr. Plummer answered, "It was back earlier"--in apparent reference to the hearings of the Code Enforcement Board. (Tr. p. 180.) In response to the next question--"How far back in relation to the code enforcement board hearings?"--Mr. Plummer replied, "It was after." He testified that he had a copy of the letter and offered to bring it to the hearing on a subsequent day, but did not do so. The County received no document from Plummer or The Historical Knights Bldg, Inc., containing objections, recommendations, or comments concerning the plan during the review and adoption period, which was from March 18 to October 7, 1997. Plummer never personally addressed the County Commission during this period, nor any other earlier period, concerning the preservation of the Mott Willis Building. However, the preponderance of the evidence supports the finding that, in the months immediately preceding the demolition of the Mott Willis Building, including the period between March 18 and October 7, 1997, Plummer presented to the Code Enforcement Board objections, recommendations, and comments concerning the imminent demolition of this building. The preponderance of the evidence, including reasonable inferences, establishes that Plummer's objections, recommendations, and comments included a claim that the Board, using the power of the County, was proposing the demolition of the building in violation of provisions of the former comprehensive plan, including a provision of the Conservation and Aquifer Recharge Element that was contained in the former plan. On the other hand, the evidence, including reasonable inferences, establishes that Plummer was unaware of the plan-adoption process that was underway while he was trying to preserve the Mott Willis Building from demolition. Otherwise, Plummer would likely have updated his reference in his petition, although, to some extent, he appears to have long labored under the misimpression that this forum presents him an opportunity for redress of the County's failure, as Plummer perceives it, to comply with the provisions of its own comprehensive plan. Also, Plummer proved diligent in the defense of the Mott Willis Building, and he likely would have been an active proponent of stronger historical provisions in the present plan, had he known that the planning process was underway. On these facts, including inferences, it is impossible to find by a preponderance of the evidence that Plummer or The Historical Knights Bldg., Inc., ever submitted directly to the County Commissioners any recommendations, objections, or comments to the plan during the period between transmittal and adoption. However, two factual questions remain concerning the standing of Plummer or The Historical Knights Bldg., Inc. The first factual question is whether the objections, recommendations, or comments that Plummer submitted to the Code Enforcement Board were effectively submitted to the local government. If so, a second factual question is whether the contents of these objections, recommendations, and comments sufficiently pertained to the pending plan as to confer standing on Plummer or The Historical Knights Bldg., Inc. First, regardless of the awareness among members of the Code Enforcement Board of the comprehensive plan, the Board is part of the local government of Charlotte County and is an important resource available to the County Commission in the preparation of the plan, as the Board's business routinely involves matters pertinent to comprehensive planning. Thus, for the purpose of determining standing in a plan-challenge case, the objections, recommendations, and comments that Plummer submitted to the Code Enforcement Board were submitted to the Board as an agent or subdivision of the County and, thus, to the County itself. The more difficult factual question is whether Plummer's objections, recommendations, and comments sufficiently pertained to the plan as to confer standing to challenge the plan. Unaware of the plan-adoption process then underway, Plummer clearly did not offer any comments directly on the proposed plan. However, his objections, recommendations, and comments in defense of the Mott Willis Building were clearly germane to the comprehensive planning process, especially as it applied to the County's treatment of its historic resources. Plummer's objections, recommendations, and comments focused narrowly on the single issue of one important historic resource, at least one pertinent provision of the former plan protecting historic resources, and the adequacy of the County's commitment to the preservation of one of its most distinctive historic resources. The ensuing destruction of this historic resource, although possibly justified under the facts (which were not litigated at the final hearing in these cases), nonetheless reinforces the urgency of Plummer's repeated requests that the County address squarely the issue of the preservation of its historic resources and the adequacy of its present policies and its implementation of those policies. Based on these facts, Plummer and The Historical Knights Bldg., Inc., are affected persons with standing in DOAH Case No. 98-1634GM. Data and Analysis Historic Resources The Historic Preservation Element notes that the Florida Master Site File contains 462 historic and archaeological sites in the County. Of the 340 of these sites that are historic structures, only 81 are in the unincorporated County. Of the five of these 340 historic structures that are also listed on the National Register of Historic Places, only two of them are in the unincorporated County. Historic Preservation Element, p. 9-5. The Historic Preservation Element traces the history of Charlotte County from 12,000 B.C. when it marked the northern end of the territory occupied by the Calusa Indians. Many of the archaeological sites pertain to the Calusa period, which ended when these native people disappeared early in the 18th century--victims of European-borne disease, slave raids, and warfare. The Spanish arrived in Charlotte County in 1513. Spanish Cubans established fish "ranches" in Charlotte Harbor for the purpose of supplying fish to Cuba. In 1763, the English assumed control of Florida, which was acquired by the United States in 1821 and became a State in 1845. During the War Between the States, Union forces encamped on an island to enforce a blockade of Charlotte Harbor, from which Confederate troops shipped cattle, timber, and salt. By 1863, more than 2000 head of cattle were shipped each week to the Confederacy. During the last week of 1863, two union ships made their way up the Myakka River and engaged in a skirmish with Confederate troops. By the end of the war, cattle ranching had established itself in the area, although fishing remained an important commercial activity. Among the cattle docks occupying the shores of Charlotte Harbor was Knight's Pier, around which Charlotte Harbor grew. In the late 1880s, Punta Gorda was founded, and phosphate was discovered in the upper Peace River. The railroad reached Punta Gorda in 1886 and, with it, the area's first tourists. Historic Preservation Element, pp. 9-12. The plan notes that the County established an Historic District by ordinance. Among the "major historical and archaeological sites" identified by the Charlotte County Historic Preservation Board are the Knight Dock (modern replacement); Willis Store, "a two-story frame house that was constructed circa 1923 to replace the original Knight general store which was built a year after the dock in 1863"; and the Willis home, "a two-story frame house that was constructed between 1910 and 1920 on property west of Bayshore Drive and south of Edgewater Drive." Historic Preservation Element, p. 9-17. The Historic Preservation Element contains Maps 9.1 and 9.2, which depict the general location of historic structures and archaeological sites, using seven-unit alphanumeric codes for each structure or site. Historic Preservation Element Table 9.1 supplies the "primary name" and "category of property": i.e., "structure" or "building." However, the "primary name" is, in nearly every case, merely the address of each property. Absent knowledge of the street address of a property or, even less likely, its Florida Master Site File code number, it is impossible to determine if the table, and thus the maps, include a specific property, such as the Mott Willis Building, or the Site. FLUE Table 1.12 lists "historical structures," but omits the Mott Willis Building. Sanitary Sewer The relevant history of wastewater management is that outhouses and cesspools yielded to septic tank systems, and, largely in the 1970s and 1980s, septic tank systems in some areas yielded to large centralized wastewater treatment systems, whose construction was often aided by federal funding under the Clean Water Act, as it is now known. However, septic tanks and even cesspools remained the means of wastewater management for 25 million U.S. households in 1990. Columbia Exhibit 10, p. 3. Residents of Charlotte County remain largely dependent on septic tank systems. County-owned Charlotte County Utilities, which is the largest sewer provider, serves 11,278 central sewer customers, as compared to 40,000 septic tank systems in operation in the County. In fact, the number of County septic tank systems exceeded by 3000 persons the number of customers served by all central sewer providers, including the 10,956 customers served by the City of Punta Gorda. Infrastructure Element, Table 4.23. Although typically associated with single family residential use, about 20 percent of the septic tank systems in Charlotte County serve commercial and institutional uses, such as strip malls, schools, and churches. A conventional septic tank and drainfield, such as the typical system in use in Charlotte County, represent an anaerobic, onsite wastewater disposal system. A conventional septic tank system uses a tank to separate settleable and floatable solids from wastewater. The wastewater then passes into the drainfield through an outlet, which is placed above the settled solids and below the floating grease and other scum. The remaining solids and semi-solids, collectively known as septage, must be periodically pumped out of the tank, treated with disinfectant (normally lime), and landspread at approved sites. In March 1993, the Department of Health and Rehabilitative Services published a consultant's evaluation of onsite wastewater disposal systems in Florida (HRS Report). County Exhibit 64. The HRS Report evaluates septic tank systems, as they operate in a variety of installations illustrative of the design, installation, and operation of such systems in Florida. One of the major purposes of the HRS Report is to examine the impacts of septic tanks systems on groundwater, which provides 87 percent of Florida's public potable water and 94 percent of its private supplies. County Exhibit 64, p. 1-1. As already noted, some treatment of wastewater occurs in the septic tank, but most of the treatment takes place after the wastewater enters the drainfield's unsaturated zone. Here, various biological, chemical, and physical processes effect the primary treatment prior to the entry of the leachate into the groundwater. As the report notes, "the 'soil is the system.'" County Exhibit 64, pp. 4-1 and 4-5. The composition of residential, as opposed to commercial, wastewater entering the septic tank varies, but within typical ranges. Wastewater contains nitrogen and phosphorous, including nitrate nitrogen, which may reduce the oxygen-carrying capacity of the blood of infants; toxic organics in the form of household cleaners, many of which persist in the aqueous environment and are known carcinogens; heavy metals, such as lead, copper, cadmium, and arsenic, which are toxic to humans; and pathogenic bacteria and viruses, which can cause illness in humans. The infiltration process that takes place between the release of the wastewater from the septic tank and its entry into the groundwater transforms organic and ammonium nitrogen to nitrate by microorganisms operating in aerobic conditions. The typical septic tank system removes about 20 percent of the nitrogen from the effluent. However, nitrate moves freely through the groundwater, and the reduction of nitrates in groundwater occurs primarily through dilation. County Exhibit 64, p. 4-34. The septic tank system removes only 4-8 percent of the phosphorus from raw wastewater. Moreover, soil has a finite ability to retain phosphorus, which, with continued loading, will move deeper into the soil. County Exhibit 64, p. 4-34. Septic tank systems more effectively eliminate bacteria that enter the soil. The elimination of bacteria is accomplished partially by low temperatures and low levels of nutrients and energy sources. Although survival rates for pathogenic bacteria are extremely variable--sometimes in excess of six months in unsaturated, unnutrified soil--"most, if not all," pathogenic bacterial indicators die within three feet of the infiltrative surface. However, improper siting of the drainfield can result in the introduction of pathogenic bacteria into the groundwater, in which pathogenic bacteria may survive sufficient periods of time--from seven hours to 63 days--to travel as much as 100 feet. County Exhibit 64, pp. 4-36 through 4-37. Viruses occur in less than two percent of human stool excreted in the United States, but, when they occur, they occur in large numbers. If retained in the soil, viruses typically become inactivated at a daily rate of 30 to 40 percent. However, viruses can penetrate more than three meters of unsaturated soil. County Exhibit 64, pp. 4-37 through 4-40. Human viruses associated with the leachate from septic tanks live for 30-60 days in Charlotte soils. Toxic organic compounds found in septic tank leachate include toluene, acetone, and xylenes, which may be found in solvents, cleaners, and perfumes. No study has examined the efficiency of septic tank system treatment of toxic organics. A model drainfield removed less than 10 percent of the toluene. County Exhibit 64, pp. 4-40 through 4-42. Little information exists concerning the efficacy of septic tank system treatment of surfactants and heavy metals. County Exhibit 64, pp. 4-43 and 4-44. For all contaminants, though, the efficacy of the septic tank system treatment is "dependent on the properties of the soil underlying the infiltrative surface." County Exhibit 64, p. 4-46. Soil characteristics that interfere with the treatment process include moisture content, organic content, pH, structure, particle size, and pore size distribution and continuity. Satisfactory performance occurs "where an aerobic, unsaturated zone of medium to fine texture soils, 2 to 5 ft. in thickness, is maintained below the infiltrative surface during operation." County Exhibit 64, p. 4-47. However, even under these optimal conditions, phosphorus and metal retention are finite processes, and the transport of pathogenic viruses is largely unknown. On balance, the HRS Report finds that "[p]ublic health and environmental risks from properly sited, designed, constructed, and operated septic tank systems appear to be low. However, use of conventional septic tank system technology in high density developments or environmentally sensitive areas could increase these risks to unacceptable levels." County Exhibit 64, p. 4-47. Surveying Florida soils, the HRS Report notes that about three-quarters of state soils have "severe or very severe limitations" for conventional septic tank system design--the most common limitation being seasonal wetness or shallow groundwater. County Exhibit 64, p. 4-51. The consultants and the Department of Health and Rehabilitative Services conducted several field studies of the effects of septic tank systems upon groundwater. Among the conclusions of this research are that conventional septic tank systems "will be prohibited" in areas with sandy soils and relatively high water tables; high density installations of septic tank systems present the "potential for nitrate contamination" of the groundwater after 20-30 years of continued use of the system (the lengthy period of time due to the slow groundwater velocities); nitrogen is particularly difficult to retain, even in 2-4 feet of unsaturated, suitable soil and after careful distribution of the effluent to the drainfield; removal of fecal coliform bacteria is "nearly complete" in two feet of unsaturated, suitable soil; and viruses are likely to pass through the sandy soils and enter the groundwater, although their rate of transport may be relatively slow, as compared to the rate of transport of other contaminants. County Exhibit 64, pp. 4-91 through 4-92 and 9- 3 through 9-4. As already noted, Charlotte County has only one soil that is not "severely limited" for septic tank use, and this sand is found in only 0.8 percent of the County. Reflective of the unsuitability of Charlotte County for septic tank use, the water table in the County is close to the surface and "highly susceptible to groundwater contamination." Infrastructure Element, p. 4-93. Containing the "highest quality groundwater in the county," as compared to deeper aquifers, the water table, or surficial, aquifer contains over 1 billion gallons of good quality potable water. However, the water table aquifer is the most susceptible to contamination from such point sources as landfills, percolation ponds for sewage effluent disposal, land application of sewage effluent and sludge, industrial sites, and underground storage sites, and from such nonpoint sources as septic tank systems, agricultural and residential use of fertilizers and pesticides, and saltwater intrusion. Infrastructure Element, pp. 4-83 and 4-93. Older septic tank systems present even greater risks to human health and the environment for two reasons. First, the useful life of conventional septic tank systems, such as those installed in Charlotte County, is no more than 20 years, assuming regular maintenance. Septic tanks should be pumped out no less frequently than every five to eight years. Infrastructure Element, p. 4-158. However, septic tank owners typically forego regular maintenance or periodic inspections until catastrophic failure, so inefficient filtration may begin much sooner than 20 years and continue unnoticed for some time. Also, as noted in the HRS Report, the capacity of the soil to retain phosphorus is finite, and the potential for nitrate contamination becomes much greater after 20 years. Second, older septic tank systems were installed under a much more lax regulatory scheme that fails to assure reasonably proper functioning of the drainfield. Of the 24,000 septic tank systems installed prior to 1983, County employees have estimated, based on periodic inspections, that 70 percent (16,800) of septic tank systems have insufficient separation between the water table and drainfield. Up to 1983, regulations required only six inches separation between the bottom of the drainfield and the top of the wet season water table. In 1983, regulations increased this separation to 24 inches. The 16,800 septic tank systems with insufficient separation routinely supply the water table with a variety of contaminants harmful to the health of County residents and visitors and the water resources of the County. Regulations also now require greater separation between the drainfield and surface waters, including canals and swales that hold water for more than 72 hours after a storm event ends. Regulations required a 25-foot setback in 1965, a 50-foot setback in 1972, and a 75-foot setback in 1983 (although 50 feet remained acceptable for lots platted in 1972 or before). Presently, 10,000 septic tank systems are within 150 feet of surface waters. Inadequate setbacks, especially when coupled with six-inch separations between the drainfield and the water table, do not adequately protect the County's surface waters from contamination from septic tanks. The age of the septic tanks in Charlotte County, coupled with the age of the plats, also impacts the permitted density of septic tanks. Prior to 1975, state law imposed no requirements for minimum lot size for septic tank systems. In 1983, when the separation between the drainfield and water table was increased to 24 inches, state law mandated that the minimum lot size for septic tank systems was 1/4 acre or about 10,000 square feet. However, most studies conclude that the minimum lot size, to prevent the pollution of groundwater and surface waters, is 1/2 to 1 acre. Despite this fact, Charlotte County continues to allow owners of 10,000 square- foot lots to use conventional septic tank systems, if they also have central potable water. Infrastructure Element, p. 4-141. These densities, together with the inadequate separation of drainfields and water tables and inadequate setbacks of drainfields from surface waters, multiply the risk presented by septic tank systems to human health and environmental resources. Based on this data and analysis, Charlotte County divided septic tank systems into two groups: those installed prior to 1983 and those installed in 1983 and later. This distinction is amply supported by the data and analysis. However, the data and analysis do not justify unconditional reliance upon conventional septic tank systems installed in 1983 and later. Even when properly sited in a two-foot layer of suitable, unsaturated soils, conventional septic tank systems are not as effective as central wastewater systems in treating wastewater. This differential is heightened given the factors surrounding septic tank systems in Charlotte County: high density, unsuitable soils, low- lying land, a high water table, and the proximity of surface waters. Centralized wastewater treatment plants remove over 90 percent of the contaminants, killing most bacteria and viruses, and oxidize the effluent. Centralized systems facilitate careful monitoring and ongoing maintenance to ensure the attainment of prescribed water quality levels. By contrast, onsite systems present difficult monitoring and maintenance issues and typically lack advanced devices, common in centralized systems, such as flow-equalization systems-- leaving even a well-designed onsite system overloaded by two wash loads in rapid succession, so that its tank contents flush out into the drainfield. Newer onsite wastewater systems have begun to offer an alternative to the conventional septic tank system. Innovative alternative systems may include anaerobic filters to minimize the release of nitrates into groundwater or surface water, ultraviolet disinfection to damage the genetic material of the cell walls of the viruses and bacteria present in the leachate so as to prevent their replication, fixed growth systems to allow aerobic microorganisms in a slime layer to attach and grow on the wastewater so as to extract a soluble organic matter that is a source of carbon and energy, intermittent sand filters to receive numerous doses of small amounts of leachate and reduce biochemical oxygen demand (BOD) and total suspended solids to 10 mg/L or less, and recirculating sand filters to reduce levels of BOD, total suspended solids, fecal coliform bacteria, and nitrogen. Columbia Exhibit 10, Appendix A. However, even these alternative systems provide less treatment than centralized wastewater plants, such as the County's largest plant, East Port, which treats 5 million gallons per day. Moreover, the feasibility of alternative onsite wastewater systems depends on a number of factors including the density and intensity of development, availability of inspection and maintenance programs, and the physiographic characteristics of the installation site, including its size, soils (especially where one of the alternative systems would be used in conjunction with a conventional drainfield), and proximity to groundwater and surface water. Alternative onsite wastewater systems are not in wide use in Charlotte County. At present, only four aerobic treatment units exist in the County. The County also is participating in a pilot project involving 200 homes whose tanks have monitoring ports to facilitate inspections of water quality. Nothing in the record establishes that the U.S. Environmental Protection Agency (EPA) prefers alternative onsite wastewater systems to centralized wastewater systems. The premise of the EPA Report to Congress on the use of decentralized wastewater treatment systems, which is Columbia Exhibit 10 (EPA Report), is that the newer alternative onsite systems are suitable for use in less densely populated areas. The EPA Report does not offer a detailed comparison of the efficiency of onsite wastewater systems with centralized wastewater systems, as operating in the conditions prevalent in Charlotte County--e.g., a high water table, unsuitable soils, low-lying land, nearby surface waters, and high densities. Nor does the EPA Report offer a detailed analysis of the relative costs of the two methods of wastewater treatment, as they might be implemented in Charlotte County. Even if there were evidence that some combination of alternative components could achieve treatment levels comparable to centralized wastewater treatment under the conditions in existence in Charlotte County (and there is not), the EPA Report does not identify the components necessary to achieve such comparable treatment. Thus, the EPA Report does not compare the costs of a decentralized system, including maintenance and monitoring, to the costs of the centralized system. Petitioners Columbia assert that septic tanks have not contributed significantly to water quality degradation in Charlotte County. To the contrary, the opposite of this contention is true. As the County notes: Septic systems are recognized as both polluters of groundwater and the major alternative to centralized sewage treatment plants. Under non-ideal conditions, septic systems can contaminate the surficial aquifer with nitrate, total dissolved solids, bacteria, and viruses. Since most of the naturally occurring soils occurring in Charlotte County are classified by the U.S. Soils Conservation Service as severe for septic tank use [citation omitted], the use of septic tanks to treat domestic sewage in some of the more densely populated areas of Charlotte County must be questioned. Natural Resources Element, p. 3-65. As reflected in Infrastructure Element Charts 4.2 and 4.3, onsite wastewater systems account for only 2.9 and 0.5 percent of the total nitrogen and total phosphorus loadings in Charlotte Harbor. Given the prevalence, as noted above, of phosphorus in the water, the nitrogen loading is of greater significance to the features of water quality adversely affected by overnutrification. The three percent of nitrogen loading attributable to septic tank systems is meaningful in light of the fact that the two largest sources of nitrogen--nonpoint source (67.3 percent) and atmospheric deposition (20.1 percent)--are relatively resistant to reduction by County action. Also, as already noted, localized areas of Charlotte Harbor, such as at the mouths of tributaries, are more impacted by nutrients, and nutrients are only some of the contaminants derived from septic tank leachate. Fecal coliform bacteria, in part likely from septic tank leachate, have occasionally reached dangerously elevated levels numerous times since the County began monitoring for this bacteria in September 1994. Several times, County officials have had to close swimming beaches, such as at Port Charlotte Beach and Harbor Heights. Although fecal coliform bacteria is not specific to human wastes, County officials have conducted limited human virus testing to confirm the presence of human viruses at the points at which several canals enter Charlotte Harbor, so as to indicate the possibility that at least some of the fecal coliform bacteria is indicative of the presence of human intestinal wastes. After weighing all of these factors, as well as the requirements of the remedial agreement into which it had entered with DCA, Charlotte County decided to undertake a large-scale expansion of its central sewer system. Shortly after acquiring General Development Utilities in 1991, Charlotte County adopted a 25-year central water and sewer plan. However, estimated costs for this master plan are $678 million--$610 million for Charlotte County Utilities and $68 million for private utilities. Infrastructure Element, p. 4-168. The County then adopted shorter-range plans for the expansion of central sewer into limited areas over periods of five and ten years. Twelve areas would receive central sewer by 2002 and additional areas would receive central sewer by 2010. The five- and ten-year plans remain in place, but the sources of funding have changed. Initially, the County sought approximately $50 million in new funds through a referendum to extend the one cent local sales tax to pay for this two-stage expansion of central sewer collection and transmission lines and treatment capacity. However, in November 1996, the voters defeated the referendum by 400 votes, or less than .005 of the total votes. After the rejection of the one cent sales tax, Charlotte County decided to fund the necessary expansion of central sewer collection and transmission lines and treatment capacity with connection fees, which would be due upon the availability of central service at built-out lots. The funding for the first phase of expansion is $2.82 million. In identifying the areas first to receive centralized sewer service, the County considered several factors for each area: density, number of pre-1983 septic tank systems, proximity to surface waters, proximity to lift stations with unused capacity, proximity to existing transmission lines with unused capacity, and proximity to existing central wastewater treatment plants with unused capacity. By considering the proximity of each area to components of the existing central sewer system with remaining capacity, the County lowered the cost of connections. Proximity to lift stations, for example, lowered the cost from $8000 per connection to $4000 per connection and thereby reinforced the financial feasibility of the sewer expansion plan. By incorporating septic tanks, where possible, as holding tanks in low-pressure systems, the County further reduced the cost of connections without unreasonably jeopardizing the integrity of the system. In selecting the areas for service, the County even considered household incomes to ensure further that landowners would be able to pay the connection costs and the program would be financially feasible. Charlotte County has borrowed money from the State Revolving Fund to pay for the central sewer expansion. The County must repay this money in 18 years. The loan documents require that the County mandate connections to the expanded system as it becomes available. Additionally, the bonds issued by the County in the acquisition of the water and sewer system also require mandatory connections to County-owned central water and sewer service. Charlotte County will collect the estimated connection fee of $3982 by allowing landowners to amortize the principal, together with eight percent annual interest, over seven years; the County estimates the monthly payment to be $62-70. The County offers programs to assist persons who cannot afford to pay the connection fee. County sewer fees are already high due to the cost of servicing the acquisition debt resulting from the County's acquisition of these facilities, including a $92 million bond issued in connection with the purchase of General Development Utilities; acquisition debt service is the largest portion expense borne by Charlotte County Utilities. Infrastructure Element, p. 4- 168. The analysis of the County's financial ability is contained in the Capital Improvements Element and Infrastructure Element, pp. 8-35 et seq. The analysis demonstrates that all identified sources of revenue are financially feasible and that the entire sewer expansion program is financially feasible. Eventually, the County identified 12 areas to include in the first phase of the sewer expansion program, which is to be completed by 2002. The second phase is to be completed by 2010. These 12 areas contain 3680 lots, of which 2275 are already developed. All of the areas are in the central portion of the County, mostly along U.S. Route 41 between the Peace River and State Route 776. Nearly all of the 12 areas are adjacent to, or in close proximity to, areas served by existing gravity sewers. The 12 areas are entirely within Infill Areas in the USA. The two areas that have drawn the most attention in these cases are A1 and A2. A1 is a triangular parcel bounded on the northeast by U.S. Route 41 and the south by Charlotte Harbor. A2 is an extremely small area about four blocks northwest of A1 and just off of U.S. Route 41. Petitioner Jordan lives in A1. By the time of the hearing, the County had already completed the expansion program in these areas and had successfully used the existing lift station. A1 is largely tourist commercial with a density of about 3.5 units per acre. A2 is mixed use with a density of about 15 units per acre. Eighty to ninety percent of the septic tank systems in A1 and A2 are pre-1983 systems. A1 abuts Charlotte Harbor, and A2 is only about three blocks from the harbor. Petitioner Jordan challenged the County's reasoning for the exclusion of the area between A1 and A2. This area is in the second phase of the expansion project. There is no evidence whatsoever that the County omitted this area, even if economically depressed relative to A1 and A2, in a manner that is arbitrary or intended to discriminate against lower-income residents. Moreover, this entire area, which is known as Charlotte Harbor, appears to be in the middle, among other locations in the County, in terms of median household income. In no way has the County's identification of the first- or second-phase areas to receive central sewer had an impact on affordable housing. Charlotte Harbor contains the County's only Community Redevelopment Agency area. Although this area is largely built-out, the County has reduced densities from 15 and 30 units per acre to 3.5 units per acre, so as to direct population away from this the Charlotte Harbor Community Redevelopment Agency Area, which is almost entirely within the CHHA and is 90-95 percent built-out. Potable Water Bocilla Utilities was incorporated by the developers of Colony Don Pedro, or their affiliates, in the early 1980s during the development of Colony Don Pedro, which is a resort development on Don Pedro Island. Bocilla Utilities has a proven record of technical competence and professional integrity in producing and supplying potable water to those island residents who are its customers. A no-name storm destroyed the wells of Bocilla Utilities in June 1982. In 1984, Bocilla Utilities received a permit to operate a reverse osmosis plant. Built in 1985, the plant was designed to produce 30,000 gallons of potable water daily. The plant has not been extensively damaged since its construction. Bocilla Utilities operates two wells to remove brackish water from about 165 feet deep and is in the process of adding an already-permitted third well at the site. Just seaward of the plant are two 50,000 gallon underground storage tanks for holding finished water prior to its distribution to customers. Bocilla Utilities deep-well injects the waste byproduct of the production process. The plant and wells of Bocilla Utilities are located on the part of the Don Pedro island chain that is divided into three narrow spits of land immediately south of where Bocilla Pass formerly divided the chain. The Gulffront lots along a small road are platted to be 100 feet wide and 300 feet deep. On the other side of the road, the lots, which front Bocilla Lagoon, are platted to be 80 feet wide and about 150 feet deep. Bocilla Lagoon is about as wide as the spit of land on its Gulf side. Behind Bocilla Lagoon is another spit of land a little narrower than the first and with waterfront lots on either side of a narrow road. Kettle Harbor, which is a little wider than Bocilla Lagoon, is behind the second spit of land, and behind Kettle Harbor is a third spit of land, about the same width as the second, with waterfront houses on either side of a narrow road. The plant and wells of Bocilla Utilities are about 2900 feet south of where the island closed over the portion of Bocilla Pass leading into the Gulf of Mexico. Most of the pass still remains; it is blocked from the Gulf by six 300- foot Gulffront lots that are platted to be about 300 feet deep and about 80 feet wide. The plant is located above 75 feet from Bocilla Lagoon, and the wells are within 50 feet of the lagoon. Water lines are covered by 2 1/2 to 3 feet of sand. In general, "the shoreline is the most extensive of all high hazard areas." Natural Resources Element, p, 3-206. As disclosed by Natural Resources Element Map 3.13, which depicts topographical contours, the Don Pedro island chain is low-lying, with its highest point not much more than five feet in elevation. There is no central sewer on the Don Pedro island chain. Most of the septic tank systems are within 100 feet of surface waters. Because nearly all of the lots on the Don Pedro Island chain were platted prior to 1972, septic tanks may be installed within 50 feet of surface waters. In 1991, Bocilla Utilities became a public utility regulated by the Florida Public Services Commission (PSC). The PSC has granted Bocilla Utilities a certificated territory on the Don Pedro island chain that Bocilla Utilities must serve at a PSC-approved rate. The territory is bounded on the south by the Don Pedro Island State Park and the north by the Palm Island Resort. Within these limits, the territory runs from the Gulf of Mexico to the Intracoastal Waterway. Bocilla is now permitted for 120,000 gallons per day and, at the time of the hearing, was completing the first phase of its expansion, to 60,000 gallons per day. Bocilla Utilities will construct the second phase of its expansion when customer demand dictates. At the time of the hearing, Bocilla Utilities was serving 186 connections. Its service lines reached 58 homes whose owners chose not to connect to central water. Its service lines also reached 291 empty lots. Additionally, Bocilla Utilities had not yet extended lines to 36 homes and 159 empty lots within its certificated territory. These 730 lots constitute Bocilla Utilities' entire certificated territory, except for one unplatted 12-acre parcel. Ignoring this unplatted parcel, approximately two-thirds of the portion of the Don Pedro island chain within the certificated territory of Bocilla Utilities is unbuilt. Over 1800 of the 1842 platted lots on the Don Pedro island chain are available for residential development. Thus, the 730 lots within the certificated territory of Bocilla Utilities constitute almost 40 percent of the available platted lots on the entire Don Pedro island chain. About 80 homes on the Don Pedro island chain use wells and/or cisterns for potable water. Although the record is not entirely clear, little of the Don Pedro island chain remains unplatted. This fact has an important bearing on the effect of the Bridgeless Barrier Island Overlay District, which, on its face, limits density to one unit per acre. This density is more theoretical than real. For already-platted land, which applies to nearly the entire island chain, the designated density under the overlay district is one unit per platted lot. Thus, as a practical matter, the Bridgeless Barrier Island Overlay District will do very little to limit population growth on the Don Pedro island chain. As was the case prior to the adoption of the first plan, the permitted densities for the Don Pedro island chain remain governed by the more generous land development regulations in effect at the time of platting the island chain. For the same reasons, the policy requiring mandatory connections to central water, as applied to the Don Pedro island chain, will not have any impact on the designated density permitted on the island chain by the plan. Given the practical ineffectiveness of the Bridgeless Barrier Island Overlay District in limiting population on the Don Pedro island chain, Petitioners Starr argue that the practical effect of the plan provisions requiring mandatory connection to central water, as applied to the island chain, will accelerate population growth. Although, for the reasons just noted, this growth will not express itself in higher densities at build-out. Instead this growth will express itself in two ways: accelerated development of the undeveloped, though platted, land and intensification of the use of already-developed land. Any analysis of the impact on island population growth of a policy of mandatory connections to central water must begin with the fact that population growth, at present, has not been remarkable fast on the island chain. In its answers to interrogatories, Charlotte County argues that island growth is driven by two invariables (at least for the present): the lack of a bridge and the presence of vested platted lots. Undoubtedly, the lack of bridge access to the Don Pedro island chain discourages population growth. Starr Exhibit 9, pp. 1-3. Of course, the presence of vested platted lots favors population growth. However, conventional density analysis, which addresses dwelling units per acre, inadequately describes the intensity of use of the Don Pedro island chain, which is a popular tourist destination for visitors and County residents. A better measure of residential intensity measures the intermittent residential use of the dwelling units present on the island chain. A fixed number of dwelling units, many of which are occupied intermittently by their owners or renters, generate residential intensity based on the periods of time that they are occupied. Thus, factors contributing to longer periods of occupancy of a fixed number of dwelling units drive any analysis of the anthropogenic impacts upon the highly sensitive natural resources of this barrier island system and its adjacent estuarine and open waters. From the perspective of the intensity of residential uses, the policy of mandatory connections to central water, as applied to the island chain, intensifies residential uses by increasing the periods of occupancy of the dwelling units present on the island chain. Absent evidence of the promotion of the Don Pedro island chain as a pristine adventure experience more typical of eco-tourism than conventional tourism, it is evident that tourist destinations with reliable sources of potable water enjoy greater appeal than tourist destinations lacking reliable sources of water. As the principal of Bocilla Utilities testified, central potable water adds value to an island residence, and this value may express itself in fair market value or in rental value, both of which are indicators of more appealing tourist destinations and, thus, greater periods of occupancy of each residence. The dry months in Southwest Florida are approximately coextensive with the winter, during which time a large number of visitors seek relief from unpleasant weather elsewhere. Thus, the availability of potable water is an important issue during a period of time associated with tourism. The possibility of potable water shortages among persons occupying residences not connected to central water is more than theoretical. In the past, drought conditions have produced water shortages among island residents dependent on cisterns and wells for potable water. Some residents have used garden hoses running from spigots in residences served by Bocilla Utilities to fill their cisterns during dry months, although the frequency of this occurrence, given the vigilance of Bocilla Utilities, is probably quite low. Water shortages experienced by persons occupying residences not served by central water produce lower levels of consumption of potable water in three ways. Persons subject to such shortages will use water more prudently to avoid shortages and, of course, will use no water at all when the supply is exhausted. Also, the unreliability of potable water supplies at such residences will discourage their occupancy, so as to lower further levels of potable water consumption. Reports of actual usage reflect the lower levels of potable water consumption at residences that rely exclusively on cisterns for potable water. The three members of Petitioners Starr average nearly 2300 gallons per month or about 76 gallons per day at their respective households, which are supplied by cisterns. Assuming only two persons per household, rather than the County average of 2.23 persons, this would represent 38 gallons of potable water per day per person. This consumption rate is less than half of the County's level of service standard for potable water, which is 85 gallons per day per person. Infrastructure Element, p. 4- 106. Betty Brenneman, who is a member of Petitioners Starr, testified that, during her 12 years on the island, she has detailed knowledge of the island residences, largely due to her work as a real estate agent and manager for 24 rental properties. She noted that, prior to the availability of central water, there were only one or two single family pools on the island chain, but now there are at least 24 pools. From the perspective of conventional density analysis, the presumed inevitability of the development of the platted lots does not justify the acceleration of this process through the adoption of a mandatory water connection policy on the island chain. But, even if the island chain were built- out, the intensification of residential uses resulting from a requirement of mandatory connections to central water, as applied to the Don Pedro island chain, raises serious planning issues in the context of the unique resources of the Don Pedro island chain, the risks posed to residents of this island chain that is highly vulnerable to catastrophic storm surge and winds, the planning challenges generally confronting the County in addressing the urban sprawl resulting from a large number of platted lots, and the strategies adopted by the County to address these challenges. The Don Pedro island chain is the sole location outside of the USA for which the County requires mandatory connections to water or sewer. Except for the environmental issues unique to a barrier island and its adjacent estuarine waters and the unique natural hazards posed to residents of this barrier island, the situation on the Don Pedro island chain is a microcosm of the formidable planning challenges facing Charlotte County due to the vast numbers of prematurely, and poorly, platted lots and the importance of the County taking advantage of the few strategies that it has been able to adopt to address these challenges. If every one of the 226,000 buildable lots within the County's three urbanized areas were developed, the County would realize a density in these urbanized areas, which consist of 215 square miles (or 137,600 acres), of 1.64 units per acre. FLUE, p. 1-99. The development of such vast amounts of land at such low densities underscores the costly impacts of urban sprawl and inefficient land-development practices, as the County will attempt to find ways to provide extensive public facilities and services, such as extra roads, longer water and sewer lines, more drainage systems, and more public safety substations, that are necessary to serve such far-flung development. As the County admits, "[u]rban sprawl, which is the opposite of concentrated growth, is a far more expensive and inefficient way for land to be developed." FLUE, p. 1-131. In responding to utilities' claims that they must serve their certificated territories economically by adopting a policy of mandatory connections (anywhere outside of the USA, but especially on a bridgeless barrier island chain), the County ignores its analysis of the relationship of platted lands and central utility service and, for the reasons already discussed, the unusual limitations already imposed upon the County in discouraging urban sprawl through County control of the timing and location of the provision of infrastructure: As with the overplatting of the county, the granting of vast certificated areas has made the task of managing growth extremely difficult; when dealing with numerous private utility providers, the issuance of certificated areas is a primary growth management tool, and one which is not altogether available in Charlotte County. FLUE, p, 1-147. Repeatedly, the County recognizes in the plan that the availability of central water facilitates growth within the served area. At one point, the County's analysis points out: "Besides roads, central potable water lines have had the greatest infrastructure influence on the development pattern of Charlotte County." Infrastructure Element, p. 4-153. Reflecting the insights borne of many years of dealing with the logistical and fiscal challenges of finding ways to extend vital public facilities to vast areas of prematurely platted land, the County's analysis adds: "Growth and development can be channeled toward certain locations in Charlotte County through the provision of potable water service; the intensity of use can be determined through the provision of central sanitary sewer service." Infrastructure Element, p. 4-143. It thus follows that: "Rural Service Areas are those locations in which central potable water and sanitary sewer should not be extended during the planning time period. This action, along with very low residential densities, reduces the likelihood of major population growth occurring in rural areas of Charlotte County. The Rural Service Area includes the bridgeless barrier islands . . .." Infrastructure Element, p. 4-149. In general, the County has attempted to adopt growth management strategies that "govern development without sacrificing the positive aspects of urban sprawl." FLUE, p. 1-132. The County's ambivalence toward sprawl, which may partly explain its extension of the mandatory water connection policy to the Don Pedro island chain, is disclosed in the following analysis: Urban sprawl, which is the opposite of concentrate growth, is a far more expensive and inefficient way for land to be developed. . . . The growth management strategy incorporated within this comprehensive plan is developed and implemented with the urban sprawl rule in mind. Characteristics of urban sprawl identified by this rule include: lands which have been prematurely converted from rural lands; lands in which development is not functionally related to adjacent areas; and lands which fail to maximize the use of existing public facilities. Patterns of urban sprawl include leapfrog or scattered development, strip commercial development, and large expanses of single-use development. Due to past practices, Charlotte County can be considered an urban sprawl community. The County is characterized by strip commercial development lining the major urban corridors, large expanses of single- family homesites which have been platted and deemed vested for development, and scattered development which has resulted from various development pressures. Most academic sources, however, point only to the downside of urban sprawl without identifying its positive aspects. In Charlotte County, these past practices have at least kept the cost of home and business ownership low. FLUE, p. 1-131. It remains open to question whether urban sprawl in Charlotte County has actually kept the cost of home ownership low or, stated in the alternative, depressed residential real estate values. Limiting home ownership costs to mortgage principal, mortgage interest, ad valorem taxes, and homeowner's insurance, Housing Element Table 6.17 shows that, among the six counties of Southwest Florida, Charlotte County is fourth in the percentage of its households spending at least 30 percent of their income on housing. Twenty percent of Charlotte County households spend at least 30 percent of their income on housing, which is slightly less than the 21.8 percent of Collier County households spending at least 30 percent of their income on housing. Of course, these figures ignore differences in income and housing values, but the mean cost of a new house in Charlotte County in 1990 was $77,200, which is $5100 over the state mean, 16th among Florida's 67 counties, and 13th among Florida's 33 coastal counties. Housing Element, p. 6-viii. In any event, the extension of central water through the Don Pedro island chain, together with mandatory connections, will raise real estate costs, as already noted. Notwithstanding any ambivalence toward sprawl, the County's extension of the mandatory water connection policy to the Don Pedro island chain ignores the many limitations already imposed upon the County in trying to control the admittedly adverse effects of urban sprawl through land use restrictions. The demographic factors present in the County coupled with the large extent to which important infrastructure is not provided by the County are accentuated by the more typical concerns of local governments in Florida arising out of the 1995 Bert J. Harris, Jr., Property Rights Protection Act (Harris Act). In addition to the Fifth Amendment constitutional prohibition against uncompensated takings, the Harris Act arguably imposes additional statutory restrictions upon the County and State in regulating land uses without compensating landowners. The County notes that the Harris Act "may severely limit local, regional, and state government actions regarding land uses of private property owners or may require compensation for such actions," FLUE, p. 1-3, and "seriously hampers . . . the County's ability to reduce the density of . . . existing plats." Natural Resources Element, p. 3-202. In the face of all of these limitations upon the County's ability to limit urban sprawl on the sensitive Don Pedro island chain, the County's extension of the mandatory water connection requirement to the island chain is counterproductive. in the extreme. Nothing in the Harris Act compels the County to require island landowners to connect to central water, or else owe damages to these landowners. To the contrary, allowing island landowners not to connect to central water is one of the few cost- and risk-free strategies left to the County for discouraging sprawl on the island chain. Although the benefits of not requiring mandatory water connections may not completely offset the disadvantages of the platted density, the importance of not requiring mandatory water connections on the island chain assumes greater importance because it is one of the few available options left to the County to deal with the planning challenges presented by the densely platted island chain. Under the circumstances, the County's decision not to exercise this option but, instead, to require mandatory water connections on the island chain, is inexplicable and repugnant to the data and analysis, which militate in favor of reduced densities and residential intensities on the island chain. In addition to yielding benefits to the natural resources of and surrounding the island chain, a policy contributing to reduced densities and residential intensities also addresses the unique natural perils confronting the island's residents or visitors and their property. In the past 110 years, Charlotte Harbor has absorbed the energy of at least seven named tropical storms or hurricanes, as well as many no-name storms such as the thunderstorm cluster of June 1995. The area between Charlotte Harbor and Hillsborough Bay is at the intersection of numerous hurricanes forming in the Gulf of Mexico and the Atlantic Ocean and has experienced a very high number of tropical storms and hurricanes. Even ignoring the no-name storms, tropical storms or hurricanes have hit the Don Pedro island chain an average of once every 16 years. The Don Pedro island chain is generally low. As already noted, nearly all of the island chain will be inundated by the storm surge associated with the landfall of merely a tropical storm; the small remaining portion of the island chain is inundated by a Category 1 storm. FLUE, Map 1.17. The Storm Tide Atlas for Charlotte County, which was prepared by the Southwest Florida Regional Planning Council, reveals that a tropical storm hitting land at a point about midway between the Bocilla Utilities water plant and wells and Bocilla Pass is about four feet above National Geodetic Vertical Datum; this location on the island chain will be under about one half foot of water. The same location is under about two feet of water in a Category 1 hurricane, five feet of water in a Category 2 hurricane, a little over eight feet of water in a Category 3 hurricane, and nearly 14 feet of water in a Category 4 or 5 hurricane. County Exhibit 53, Plate 2 and back page. A Category 3 storm would cause significant damage to island properties, including the wells and transmission lines of Bocilla Utilities, that are located close to the water and within one-half mile of an historic pass. Although the plant itself is designed to resist the storm surge and winds associated with a storm producing winds of 140 miles per hour, a Category 5 storm would, in the words of the director of the County Emergency Management Department, "wipe the island clean" of everything, including the plant, the wells, the transmission lines, and any residents or visitors failing or unable to heed orders to evacuate. (Transcript, p. 1908.) The parties raise several other issues concerning the requirement of mandatory connections to central water, as applied to the Don Pedro island chain. The County justifiably contends that the quality of Bocilla Utility water is more reliable than the quality of the water from cisterns or wells. The Bocilla Utilities water will be more reliable due to the ongoing monitoring and treatment performed by Bocilla Utilities and the infrequent monitoring and less-extensive to nonexistent treatment performed by owners of wells and cisterns. In 1996, the director of the County Health Department tested four bad samples from the Don Pedro island chain: three from wells and one from a cistern. E. coli bacteria contaminated one well sample, and coliform bacteria contaminated one well sample and two cistern samples, one of which came from a kitchen faucet. In all, there was one incident of reported diarrhea and vomiting likely associated with bad water. However, these four bad samples came from Little Gasparilla Island, which is not in the certificated territory of Bocilla Utilities and which is characterized by older, more dense residential development than that within the certificated territory of Bocilla Utilities. And, prior to 1996, the director could not recall a single problem with potable water quality on the island chain. Although the cisterns collect rainwater, which is relatively pure, the conditions in the cistern and onsite delivery line may be less than ideal. Also, the wells and many of the cisterns are installed in the ground, where they are vulnerable to contamination from stormwater runoff. Most wells are only 8-10 feet deep so as to tap a shallow freshwater lens under the island chain. Typically, the wells are jetted in with a hose, rather than bored, and lack a concrete apron, so they too are vulnerable to contamination from stormwater runoff. However, the record establishes that the wells and cisterns in use on the Don Pedro island chain do not represent a measurable threat to human health. For instance, Robert Starr (Starr), who has lived on the island for 11 years, uses a cistern, which, like many on the island chain, was installed by Bocilla Utilities, and reports no problems. Starr changes filters once a month. The same is true with the two other members of Petitioners Starr, who have lived on the island for six and 12 years, respectively. Greater consumption of potable water means greater production of septic tank leachate and irrigation runoff. About 75 percent of the amount of potable water consumed will become wastewater. These inputs will have a deleterious effect on Lemon Bay. Each side mounts fire-safety arguments that largely cancel each other out. The County asserts that the lack of hydrants allowed a home to burn to the ground "several years ago." Petitioners Starr assert that Bocilla Utilities lacks the commitment to providing serviceable hydrants in their certificated territory with sufficient water pressure to extinguish a house fire. Whatever the truth of these assertions, firefighters have four floating pumps to draw saltwater from nearby surface waters to fight house fires in the certificated territory of Bocilla Utilities, as well as in the much larger area of the Don Pedro island chain that is not within the certificated territory of Bocilla Utilities or otherwise served by central water. Additionally, unless island residents have a particular aversion to death by fire and asphyxiation, as opposed to death by water and drowning, they would more likely, when addressing perils to their lives and property, focus upon the greater risk posed to them by storm surge and wind, as presented by a storm, or even by the more persistent wind and tidal action. Plan Provisions Governing Historic Resources Historic Preservation Element Objective 1.1 is that the County, "[b]y June 1, 1999, will develop a program which will protect the County's historical and archaeological resources." The policies under Historic Preservation Element Objective 1.1 provide an array of programs and mechanisms by which to achieve this objective. These programs and mechanisms include providing matching funds (if financially feasible) for federal and state programs to obtain grants to contribute to the knowledge of the County's historic and archaeological heritage, offering transferable development rights or other incentives for the preservation of historic and archaeological resources, and adopting an historic preservation ordinance to provide specific criteria to protect historic and archaeological resources. Historic Preservation Element Objective 1.2 is for the County, by June 1, 1999, to develop and maintain a site inventory on the County geographical information system of all significant historic buildings, historic architecture, historic districts, and archaeological objects and places. Historic Preservation Element Policy 1.2.4 is to "strive" to "locate, identify, preserve, protect, and recognize its archaeological sites and historic structures " Historic Preservation Element Objective 1.3 is for the County to encourage the nomination of historic buildings, sites, districts, or objects to the National Register of Historic Places or the Local Register of Historic, Archaeological, or Scenic Places. Historic Preservation Element Objective 1.4 is for the County to "participate" in public education campaigns to promote public awareness of the importance of preserving its historic, archaeological, architectural, and scenic resources. Although Housing Preservation Element Goal 2 is, among other things, to identify "historically significant housing," none of the objectives or policies under that goal mentions such housing by name, although Housing Element Policy 2.1.1 is to assist public and private housing providers by providing information and assisting in obtaining state and federal grants to increase the supply of, among other things, "special needs groups," which may incorporate those persons "needing" historically significant housing. According to the FLUE Table of Contents, the "Free- standing Future Land Use Map series" includes a map entitled, "Historical Sites Overlay District, 1997-2010" (Historical FLUM). The Historical FLUM identifies itself as, "Future Land Use Map Series No. 6, Adopted October 7, 1997." Although FLUE Objective 2.1 does not identify the maps that are part of the adopted Future Land Use Map (FLUM) series, it is evident which maps are part of the FLUM map series, and the Historic FLUM is clearly part of the FLUM that the County adopted as part of the plan. The Historic FLUM is a map of the County measuring about 17 inches by 11 inches. Eight major roads are indicated on the map. Locations of interest on the map are depicted by a small pentagon on the map and a line leading from the pentagon to a code, such as "CH00445." The Historical FLUM is the same map as Historical Element Maps 9.1 and 9.2. However, Historic Preservation Element Table 9.1, which is required to obtain the street addresses of the historical sites that are depicted on the Historical FLUM, does not accompany the Historical FLUM, nor does the Historical FLUM incorporate or even mention the table. Provisions Governing Potable Water and Sanitary Sewer Infrastructure Element Objective 1.7 is to "manage development within the . . . 100-year floodplain." Infrastructure Element Policy 1.7.1 provides that, for properties within the 100-year floodplain, the County shall grant transferable development rights to landowners electing, in perpetuity, not to disturb or alter their land within the 100-year floodplain. Infrastructure Element Policy 8.1.5 protects areas of prime aquifer recharge by limiting densities to one unit per 10 acres. Infrastructure Element Objective 8.2 is to "maintain. . . or improve. . ." the County's groundwater resources, which "shall not be degraded, either directly or indirectly, by human influences, below Federal or State standards." Infrastructure Element Policy 8.2.5 is to "maintain . . . current policy requiring mandatory connection to sewer and water service when such service is provided, thus reducing the number of septic tanks and wells in use." Infrastructure Element Goal 9 is for the County to encourage public and private utilities to provide economically efficient water and sewer systems that "maximize. . . the use of existing facilities to meet the needs of a growing population, while protecting the environment." Infrastructure Element Objective 9.1 is for County and utilities to provide water and sewer services to new and existing development "in conjunction with" previously certificated territories and the USA strategy. Infrastructure Element Policy 9.1.1 encourages utilities to extend sewer and water services to Infill Areas in accordance with the USA strategy. Infrastructure Element Policy 9.1.4 states that certificated territories will be extended or expanded for water or sewer outside of Infill Area boundaries, subject to certain exceptions. Infrastructure Element Policy 9.1.7 provides that landowners of new development within the Infill Areas or previously certificated territory where central water or sewer is not available, shall connect to central water or sewer when it becomes available and within 365 days of written notice from the utility. Infrastructure Element Policy 9.2.2 requires mandatory connection to central sewer for landowners whose property is served by a package plant, which is allowed in the USA as a "temporary measure." Infrastructure Element Policy 9.2.3 provides that the availability of water and sewer will not necessarily justify development approval. Infrastructure Element Objective 9.3 is for the County to "protect its existing and future potable water supplies, such as the Peace River, and wellhead locations." Infrastructure Element Objective 9.4 is, in part, to identify and conserve water supplies. Infrastructure Element Policy 9.4.7 is for the County to encourage water utilities to adopt a conservation rate for users. Infrastructure Element Goal 10 is for utilities to maintain adequate levels of service for water and sewer. Infrastructure Element Objective 10.1 is for utilities to provide the capital improvements needed to maintain existing facilities, replace obsolete or worn facilities, and eliminate existing deficiencies. Infrastructure Element Policy 10.1.1 adopts level of service standards of 190 gallons per day per dwelling unit for water and 161.5 gallons per day per dwelling unit for sewer. Per person rates are calculated by dividing these rates by 2.23. Infrastructure Element Policy 10.1.2 is for all facility improvements to meet the adopted levels of service standards. Infrastructure Element Policy 10.1.5 states that concurrency determinations are on the basis of the relevant facility, not on the basis of the entire County or system. Infrastructure Element Goal 11 is for the County to "attempt to reduce negative impacts to the natural environment and the public health, safety, and welfare resulting from the use of sanitary wastewater treatment systems (septic systems, package treatment plants, and central sewer systems)." Infrastructure Element Objective 11.1 is for the County to "develop and begin implementing a septic system management program" by October 1, 2000. Infrastructure Element Policy 11.1.2 is for the County to "develop and maintain a schedule of septic system maintenance" and to "begin implementation" by October 1, 2000. Infrastructure Element Policy 11.1.3 bases the schedule on the geographic area, system size, drainfield and water table separation, system age, performance history, soil type, surface water setback, and other information. Infrastructure Element Policy 11.1.5 allows the continued use in the USA of "properly constructed and functioning septic systems which are maintained in accordance with the septic system management program," unless a utility requires connection to a central sewer system. Infrastructure Element Policy 11.1.6 imposes upon the owners the cost of the septic system management program. Infrastructure Element Policies 11.1.1 and 11.1.4 are for the County to complete a pilot septic tank system management program by October 1, 1999, and to use private companies to inspect and maintain septic tanks as part of the septic tank system management program. Infrastructure Element Objective 11.2 is for the County to "develop and begin implementation" of an ambient water quality monitoring program, by December 31, 2000, "to determine the impacts of pollution resulting from the use of sanitary wastewater treatment systems (septic system, package treatment plants, and central sewer systems)." Infrastructure Element Policy 11.2.3 requires the repair or replacement of systems violating water quality standards and endangering the public health. Infrastructure Element Policies 11.2.1 and 11.2.4 are for the County to collect and analyze soils samples for pollutant loadings by December 31, 2000, and to enforce the minimum requirements of Rule 10D-6 for new or replacement septic tank systems. Infrastructure Element Objective 11.3 states: "Developed properties will be connected to central potable water or sewer service when it is available and within 365 days upon written notification by the utility provider." Infrastructure Element Policy 11.3.1 defines availability as a utility line within a public easement or right-of-way abutting the property and within 200 feet of the property line of a developed establishment. Infrastructure Element Policy 11.3.2 requires connection to central water, and Infrastructure Element Policy 11.3.3 requires connection to central sewer. Infrastructure Element Policy 11.3.4 is for the County to "encourage" interconnection of package treatment plants and the replacement of such plants with larger, more economical treatment systems or alternative onsite treatment systems with advanced treatment standards. Infrastructure Element Objective 11.5 is for the County to "attempt to reduce the percentage of septic systems serving new development." Infrastructure Element Objective 11.6 is for the County to "require the installation of advanced onsite treatment and disposal systems based on lot size or proximity to surface water for new development by July 1, 1998 " Infrastructure Element Policy 11.6.1 provides that proximity to surface water means 150 feet, and Infrastructure Element Policy 11.6.2 provides that lot size means up to and including 10,000 square feet-unless, in either case, the area is scheduled to receive central sewer, according to the five-year schedule of capital improvements. However, Infrastructure Element Policy 11.6.3 requires mandatory connection to central sewer, even if an alternative wastewater treatment system is installed. Infrastructure Element Goal 12 is for the County to operate its water and sewer utilities efficiently and for the benefit of the public. Infrastructure Element Objective 12.1 is for the County to provide adequate capital improvements to attain the minimum level of service standards in the operation of its water and sewer systems. Infrastructure Element Policy 12.1.1 is to include major capital expenditures for water and sewer on the five-year schedule of capital improvements. Infrastructure Element Policy 12.1.6 is for the County to seek federal and state assistance to fund central water and sewer infrastructure for Charlotte County Utilities. Infrastructure Element Policy 12.1.7 requires the County to implement a short-range central sewer installation program from 1997-2002 within the areas shown in Infrastructure Element Map 4.A. Infrastructure Element Policy 12.1.8 requires the County to implement a long-range central sewer installation program starting in 2002 within the areas shown in Infrastructure Element Map 4.B. Infrastructure Element Map 4.A contains the 12 areas previously described within the central portion of the County, mostly along U.S. Route 41 and State Route 776. Infrastructure Element Map 4.B contains primarily two massive areas: one encompassing A1 and A2 from Infrastructure Element Map 4.A together with a much larger area along U.S. Route 41 abutting the mouth of the Peace River and another even larger area along U.S. Route 41 about midway between State Route 776 and the Peace River. Capital Improvements Element Policy 1.3.20 is for the County to apply numerous criteria in implementing capital improvements projects. These criteria include the elimination of public health or safety hazards, elimination of capacity deficiencies, ability to service future growth, financial feasibility, and consistency with the USA strategy. FLUE Goal 1 is for the County to "manage growth and development in a manner which safeguards the public investment, balances the benefits of economic growth with the need for environmental protection, and prevents urban sprawl." FLUE Objective 1.1 is for the USA strategy to direct the "timing, location, density, and intensity of development and infrastructure . . . so that at least 90% of the urbanized development is located within the [USA's] Infill Areas." FLUE Policy 1.1.1 divides the USA into the Infill Areas and Suburban Areas and divides the County into the USA and Rural Service Area. FLUE Policy 1.1.2 identifies levels of service standards for each public facility and sets the frequency of various services, such as garbage pickup and fire response times; Infill Areas have the most intensive and frequent services and the Rural Service Area has the least intensive and frequent services. FLUE Policy 1.1.6 states: "Within the bridgeless barrier island Rural Service Area location, Charlotte County will prohibit higher densities of new residential development by allowing only for residential uses at very low densities not to exceed one dwelling per acre or one dwelling unit per platted lot consistent with Policy 2.5.3." FLUE Objective 1.3 is to "use the location and timing of infrastructure and services to direct growth in an orderly and efficient manner." Regarding the provision of infrastructure and services, FLUE Policy 1.3.1 places the highest priority on the Infill Areas and lowest priority on the Rural Service Area, although FLUE Policy 1.3.2 warns that the County may provide higher levels of infrastructure and services to any area to protect the public health, safety, and welfare or "at the request and capital outlay of the citizens of the area." FLUE Objective 1.4 is the platted lands strategy, which is to reduce the number of platted vacant lots by one percent annually by January 1, 2005. FLUE Policy 2.4.1 incorporates into the plan the Charlotte Harbor Management plan, Charlotte Harbor Surface Water Improvement and Management Plan, and Lemon Bay Aquatic Preserve Management Plan. FLUE Policy 2.5.3 establishes the Bridgeless Barrier Island Overlay District, which comprises the Don Pedro Island chain. This policy states, in part: "In order to reduce the potential for devastation resulting from involuntary natural disasters, this overlay district restricts the intensity of residential development." FLUE Goal 3 recognizes the supremacy of the U.S. and Florida constitutions. FLUE Objective 3.1 is for the County to respect private property rights. FLUE Policy 3.1.3 is for the County to deprive no person of life, liberty, or property without due process of law. FLUE Goal 5 is for the County to regulate the use of land "to safeguard the public investment and to protect the population." FLUE Objective 5.1 is for the County to limit densities in the CHHA to 3.5 units per gross acre, although FLUE Policy 5.1.1 recognizes the lower density of one unit per gross acre on the bridgeless barrier islands, subject to one unit per grandfathered lot. FLUE Objective 5.2 is for the County to "locate public facilities in locales which are less susceptible to severe weather damage and are not within the [CHHA] unless such location is the only one which serves a particular structure's intended public purpose." Housing Element Policy 1.3.2.e is for the County to promote affordable housing by implementing the community redevelopment plan for Charlotte Harbor. Housing Element Policy 2.1.6 is for the County to consider, when reviewing its land development regulations, the potential damage of catastrophic hurricanes. Natural Resources Element Goal 1 is: "To conserve, protect, enhance, and where necessary restore Charlotte County's environmental and natural resources to ensure their long-term quality for the future; increase public access to the shoreline and coastal waters; protect human life in areas subject to natural disaster; and limit public expenditures in areas subject to natural disaster." Natural Resources Element Objective 1.2 is to protect the quality of surface waters. Natural Resources Element Policy 1.2.2.a is to locate onsite sewage disposal systems as far landward as feasible on waterfront properties to reduce nutrient and pathogen loading into surface waters. Natural Resources Element Policy 1.2.2.b is to prohibit the discharge of runoff, wastewater, or other sources of contamination into surface waters below applicable water quality standards, including those higher water quality standards applicable to Outstanding Florida Waters. Natural Resources Element Objective 1.3 is for the County to "protect its marine and estuarine habitats and finfish and shellfish resources to ensure long-term viability and productivity for scientific, commercial, sport, and recreational purposes." Natural Resources Element Objective 1.4 is not to degrade groundwater quality. Natural Resources Element Policy 1.4.1 is to prohibit the storage of hazardous materials in areas recharging the intermediate aquifer. Natural Resources Element Policy 1.4.6 is to continue to require connections to central water and sewer. Natural Resources Element Objective 1.8 is for the County to "protect existing natural reserves, preserves, and resource conservation areas . . .." Natural Resources Element Policy 1.8.1 is for the County to apply unspecified "development review criteria" to the aquatic preserves, Don Pedro State Park, and Port Charlotte Beach State Park partly or wholly within the Bridgeless Barrier Island Overlay District, although it is unclear exactly what development the County would be permitting in these preservation areas. Natural Resources Element Objective 1.13 is for the County to "protect its beach and dune systems, including native dune vegetation, from human induced erosion." Natural Resources Element Policy 1.13.3 prohibits all construction activity seaward of the Coastal Construction Control Line except as permitted by the Department of Environmental Protection under Chapter 161, Florida Statutes. Natural Resources Element Objective 1.16 is for the County to "reduce the threat of loss of life and property to catastrophic hurricanes and locate new public facilities outside of the [CHHA] except as necessary to ensure public health and safety." Natural Resources Element Policy 1.16 identifies the CHHA as "all areas designated by the Southwest Florida Regional Planning Council as requiring evacuation in the event of a landfalling Category I hurricane." Natural Resources Element Policy 1.16.2 provides: Within the [CHHA], Charlotte County will prohibit new publicly funded buildings, except for restrooms and other structures including, but not limited to: boat ramps boat docks, picnic shelters, bridge tender's building, landscape or facility maintenance sheds, boat lock, and food or rental concession stand, along with the necessary water, sewer and road infrastructure which are appropriate and necessary for public use and recreation and cannot be located elsewhere. Public buildings and structures along with the necessary water, sewer and road infrastructure associated with essential life safety services, such as police/sheriff district stations, fire stations, or emergency medical service stations may be developed or redeveloped in [CHHA] as needed to protect the public health, safety, and welfare. . . . Natural Resources Element Policy 1.16.6 is for the County to "actively facilitate" the removal of density from the CHHA by plat vacation and other means. Natural Resources Element Policy 1.16.7 provides that owners of land in the Category 1 hurricane vulnerability zone may transfer their development rights elsewhere in the County. Natural Resources Element Objective 1.17 is to start reducing hurricane evacuation times by 2000. Natural Resources Element Objective 1.19 is for the County to "limit additional public investment in the [CHHAs] except as necessary to ensure public health or safety." Natural Resources Element Policy 1.19.1 is for the County to "prohibit the construction or reconstruction of County funded facilities or infrastructure in the [CHHA] except for recreation facilities and those necessary to ensure public health and safety." Natural Resources Element Policy 1.19.2 is for the County to use its eminent domain power and regulatory authority to relocate threatened or damaged public structures and infrastructure landward of the CHHA when appropriate. Natural Resources Element Objective 1.20 is for the County to "direct concentrations of population away from [CHHAs]." Ultimate Findings of Fact Public Participation and Standing of Petitioners Plummer Petitioners Columbia and Petitioner Jordan failed to prove to the exclusion of fair debate that the contents or implementation of the public-participation procedures failed to assure broad and effective participation by all interested residents in the preparation of the Plan. The County complied in all respects with all applicable requirements of public participation. Petitioners Plummer proved that each of them is an affected person. Each of them owns or operates a business in Charlotte County. Individually and on behalf of The Historical Knights Bldg., Inc., Plummer submitted objections, recommendations, and comments during the period between the transmittal and adoption of the plan. Plummer submitted these objections, recommendations, and comments to an agent or subdivision of the County, and they pertained to matters directly involved with the plan that was then under preparation. Historic Resources Petitioners Plummer proved to the exclusion of fair debate that the plan is inconsistent with the requirement of identifying any historic districts on the FLUM. Charlotte County had created an historic district prior to the adoption of the FLUM in October 1997. The FLUM--i.e., Future Land Use Map Series No. 6-- contains historically significant properties. Although the properties are not well identified on the FLUM, Petitioners Plummer failed to prove to the exclusion of fair debate that the plan, as a whole, fails to satisfy this requirement, considered within the context of all applicable requirements. For the same reasons, Petitioners Plummer failed to prove to the exclusion of fair debate that the existing land use maps fail to designate historic resources. Historic Preservation Element Maps 9.1 and 9.2 sufficiently designate historic resources to satisfy this criterion. Petitioners Plummer proved to the exclusion of fair debate that the plan lacks any operative provision to preserve or sensitively adapt historic resources. An objective promising, by June 1, 1999, to "develop a program . . . [to] protect the County's historical and archaeological resources" is not an objective, but only a promise to adopt such an objective in the future. In the meantime, the missing objective is unavailable as a standard against which to evaluate development orders or to evaluate the internal consistency of other plan provisions. Similarly, a policy to "strive to . . . preserve [and] protect" archaeological sites and historic structures is not a policy to protect these resources. The objective and policy described in the preceding paragraph are the most demanding provisions contained in the plan for the protection of historic resources or historically significant property. These two instances of the operative provisions of the plan failing to satisfy important requirements are material, especially given the relatively weak plan provisions concerning historic resources, the ambiguities in the FLUM and existing land use map identifying historically significant properties, and the failure of the FLUM to designate the historic district. Petitioners Plummer failed to prove to the exclusion of fair debate that the plan is inconsistent with any requirements concerning the identification of historically significant and other housing for conservation, rehabilitation, or replacement. The plan sufficiently identifies such housing, and the range of potential action allowed by the requirement--conservation through replacement-- does not support a strict application of the textual part of this requirement. Absent evidence of significant historic housing stock, the County's identification of these properties on the FLUM and existing land use map was sufficient for consistency with this requirement. Sanitary Sewer and Potable Water Petitioners Starr, Petitioners Columbia, and Petitioner Jordan failed to prove to the exclusion of fair debate that the plan's requirements of mandatory connections to central water or sewer are inconsistent with any provisions protecting private property rights. Petitioners Columbia and Petitioner Jordan failed to prove to the exclusion of fair debate that the plan's requirement of mandatory connections to central sewer is unsupported by data and analysis. The record amply supports the County's decision to expand its central sewer system and require owners of improved land to connect when service becomes available. Petitioners Columbia and Jordan failed to prove to the exclusion of fair debate that the County failed to provide analysis of the fiscal impacts of existing public facility deficiencies, facility capacity by service areas, and replacement strategies. Such analysis is amply presented in the plan and, additionally, the record in these cases. With respect to Petitioner Jordan's allegations of unsupporting data and analysis, expanding central sewer into the first 12 areas reveals no discriminatory intent against lower-income or group housing, nor any lack of financial feasibility due to the income levels prevailing in the first 12 areas to be served. The evidence suggests that the areas to be served are low-lying, and the infrastructure is vulnerable to damage from coastal storms, including stormwater intrusion into the central sewer system. These facts do not deprive the plan provisions extending central sewer into these areas from support from the data and analysis in light of the greater risks to human and environmental health posed by ongoing reliance upon septic tanks in these low-lying, densely populated areas. Petitioners Columbia and Jordan failed to prove to the exclusion of fair debate that the plan provisions requiring mandatory connections to central sewer are internally inconsistent with any other provisions in the plan. With respect to Petitioner Jordan's allegations of internal inconsistency, providing central sewer in the CHHA is necessary to ensure public health and safety. Extending central sewer into the CHHA does not violate the plan provision to direct population concentrations away from the CHHA; the areas in question are largely built-out, and the risks posed by the septic tank leachate to human health and environmental resources are substantial and well-documented. The evidence does not suggest that extending central sewer will subsidize or encourage new land development in the CHHA. The choice of the first 12 areas into which to extend central sewer was clearly driven by legitimate concerns, such as lift-station capacity, environmental sensitivity, and financial feasibility, not illegitimate concerns arising out of housing discrimination. Extending central sewer into the areas selected for the first two phases of the expansion program will clearly reduce negative environmental impacts from wastewater systems and heighten the efficiency of use of the central sewer system. Expanding central sewer will not exceed the capacity of the central sewer system. Petitioners Columbia failed to prove to the exclusion of fair debate that the plan provisions requiring mandatory connections to central sewer deprive the plan of financial feasibility or operative provisions for the orderly and balanced future economic, social, physical, and environmental development. The record establishes that the requirement of mandatory connections to central sewer helps the plan achieve these requirements. Petitioners Columbia failed to prove to the exclusion of fair debate that the plan lacks an objective to correct facility deficits and maximize the use of existing facilities and a policy to establish priorities regarding public facilities. Among other provisions, the provisions establishing the USA satisfy these criteria, as between the USA and Rural Service Area, as do the provisions assigning the highest priority, within the USA, to the Infill Areas as opposed to the Suburban Areas. Petitioners Columbia failed to prove to the exclusion of fair debate that the plan provisions requiring mandatory connections to central sewer deprive the plan of the effect of discouraging urban sprawl. To the contrary, the extension of central sewer, with mandatory connections, tends to ameliorate the effects of sprawl by reducing the impacts upon natural resources of sprawling residential development. Given the vast numbers of platted lots and the County's inability to reduce these numbers significantly, the extension of central sewer to areas already platted and largely developed does not tend to encourage sprawl. Petitioners Columbia failed to prove to the exclusion of fair debate that the plan lacks a policy to establish criteria, including financial feasibility, in evaluating local capital improvement projects. Capital Improvement Element Objective 1.3 and the ensuing policy cluster--especially Policies 1.3.19 and 1.3.20.i--satisfy this requirement. For the same reasons, Petitioner Jordan failed to prove to the exclusion of fair debate that the plan lacks provisions ensuring financial feasibility Petitioner Jordan failed to prove to the exclusion of fair debate that the plan lacks an objective to restrict development activities that would damage coastal resources, protect human life, and limit public expenditures in areas subject to natural disasters. FLUE Policy 2.4.1 incorporates the Charlotte Harbor Management Plan, Charlotte Harbor Surface Water Improvement and Management Plan, and the Lemon Bay Aquatic Preserve Management Plan. Natural Resources Element Objective 1.16 is to reduce the threat of loss of life and property to catastrophic hurricanes and locate new public facilities outside of the CHHA, except for reasons of public health and safety. Natural Resources Element Objective 1.17 is to start reducing hurricane evacuation times by 2000. Natural Resources Objective 1.19 is to limit additional public investment in the CHHA, except for reasons of public health and safety. Natural Resources Element Objective 1.20 is to direct population concentrations away from the CHHA. Various policies within the clusters under these objectives satisfy the other CHHA requirements cited by Petitioner Jordan. Petitioners Starr have proved to the exclusion of fair debate that the plan provisions requiring mandatory connections to central water, as applied to the Don Pedro island chain, are unsupported by the data and analysis because they accelerate the build-out of the island chain, raise the intensity of residential use of existing and future dwelling units, attract populations to an extremely vulnerable barrier island chain within the CHHA, unnecessarily expose human life to the perils of hurricanes, mandate extremely vulnerable infrastructure investments in the CHHA by island residents without any measurable, compensating gains in public health or safety or environmental enhancement, and increase the consumption of potable water and production of septic tank leachate in an environmentally sensitive area. Petitioners Starr have proved to the exclusion of fair debate that the plan provisions requiring mandatory connections to central water, as applied to the Don Pedro island chain, are internally inconsistent with plan provisions discouraging urban sprawl, such as FLUE Goal 1 to prevent urban sprawl; FLUE Objective 1.1 to direct at least of 90 percent of urbanized development into the USA; FLUE Objective 1.3 to use the location and timing of infrastructure and services to direct growth in an orderly and efficient manner; FLUE Policy 1.3.1 to prioritize the provision of infrastructure and services first to Infill Areas, then to Suburban Areas, and last to the Rural Service Area; FLUE Objective 1.4 to reduce the number of platted vacant lots by one percent annually by 2005; FLUE Objective 1.6 to ensure that the location and intensity of development to coincide with the availability of facilities and appropriate topography and soil conditions; Natural Resources Element Objective 1.3 to protect marine and estuarine habitats; Natural Resources Element Objective 1.8 to protect existing natural preserves; Natural Resources Element Objective 1.16 to reduce the threat of loss of life and property to catastrophic hurricanes and locate new public facilities outside of the CHHA, except for reasons of public health and safety; Natural Resources Element Objective 1.17 to start reducing hurricane evacuation times by 2000; Natural Resources Element Objective 1.19 to limit public investment in the CHHA, except for reasons of public health and safety; and Natural Resources Element Objective 1.20 to direct concentrations of population away from the CHHA. However, Petitioners Starr failed to prove to the exclusion of fair debate that the plan lacks objectives and policies to protect the coastal environment and conserve potable water resources.
Recommendation It is RECOMMENDED that, pursuant to Section 163.3184(9)(b), Florida Statutes, the Department of Community Affairs submit the recommended order to the Administration Commission for final agency action. DONE AND ENTERED this 11th day of February, 2000, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2000. COPIES FURNISHED: Robert J. Starr Post Office Box 5337 Grove City, Florida 34224 Betty L. Brenneman Post Office Box 67 Placida, Florida 33946 Suzanne Neyland Post Office Box 849 Placida, Florida 33946-0849 John G. Columbia 2150 Cedarwood Street Port Charlotte, Florida 33948 Daniel R. Fletcher Post Office Box 2670 Port Charlotte, Florida 33949 Eugene J. Haluschak 3191 Lakeview Boulevard Port Charlotte, Florida 33948 John L. Harmon 3083 Beacon Drive Port Charlotte, Florida 33952 Rhonda Jordan 4437 Parmely Street Charlotte Harbor, Florida 33980 Robert K. Lewis, Jr., Attorney 6237 Presidential Court Suite A Fort Myers, Florida 33919-3508 Shaw P. Stiller Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Martha Young Burton Brendan Bradley Carl Kitchner Renee Francis Lee Assistant County Attorneys Charlotte County 18500 Murdock Circle Port Charlotte, Florida 33948-1094 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
