The Issue The issues are whether Respondent has violated the standards of practice in septic tank contracting, Florida Administrative Code rule 64E-6.022, and, if so, the penalty. (All references to Respondent are to Arlender Miller. All references to Ms. Rooter are to Ms. Rooter, Inc.)
Findings Of Fact At the times of the alleged jobs, Respondent was registered as a septic tank contractor and served as the qualifying agent for Ms. Rooter. At the time of all three jobs, Respondent had apparent authority to serve as the agent of Ms. Rooter in contracting for and performing the septic tank contracting work described below. However, nothing in the record establishes any relationship between Respondent and Ms. Rooter at the time of the issuance of the Administrative Complaint, so as to justify treating the notice of this proceeding, when served upon Respondent, as notice to Ms. Rooter. Hans Seffer, who testified, is the son of the woman who owns the apartment complex located at 14950 North Miami Avenue, Miami. Mr. Seffer found Ms. Rooter on the internet and spoke with Carolyn Futch, operations manager of Ms. Rooter, about septic tank contracting services needed at the apartment complex. Respondent later met with Mr. Seffer at the property. Initially, Mr. Seffer believed that the existing septic tank needed only to be pumped out. However, upon inspection, Respondent determined that the system also required a new drainfield, pump, and dosing tank. Accordingly, on February 20, 2008, Respondent, as "technician," and either Mr. Seffer or his mother signed a one-page contract on a form identifying the contractor as Ms. Rooter, license number SA0071430. The contract describes the following work: Install 1,000 sq. ft. drainfield with 300 gallon dosing tank including immediate (2/21/08) tank pump out. Additionally if tank requires pumpout prior to securing all necessary permits, Ms. Rooter will perform pumpout at no additional cost. Manhole cover included. Respondent and either Mr. or Mrs. Seffer initialed this section of the contract. The contract states that the total due for this work is $10,500. Ms. Seffer paid $5,000 by check on February 21, 2008, leaving a $5,500 balance due. On March 1, 2008, Respondent, as agent for Ms. Rooter and on behalf of the property owner, submitted to Petitioner an application for a construction permit for an onsite sewage disposal system. The application describes the property improvements as a multifamily complex with ten bedrooms and 5,284 square feet of building space. The site plan attached to the application states: "Replace drainfield only." On April 2, 2008, Ms. Futch emailed Mr. Seffer to confirm an earlier discussion between them. The discussion addressed a requirement of Petitioner that Ms. Rooter install a second tank. The email states that the property owner will pay $5,600 for the installation of a "2nd tank (1,050-gal)," so the new total contract price is $11,100. This email restates the scope of the work as the installation of a 1,000-square-foot drainfield and 300-gallon dosing tank. By return email two days later, Mr. Seffer agreed to the additional work. On April 11, 2008, Petitioner issued to the property owner a construction permit that specifies a 2,575-gallon septic tank and a 1,000 square-foot drainfield. The permit states: "The licensed contractor installing the system is responsible for installing the minimum category of tank in accordance with sec. 64E-6.013(3)(f), F.A.C." This rule does not refer to tank capacities. On April 23, 2008, Petitioner issued a "construction inspection and final approval" form that shows the installation of two 1,200-gallon septic tanks and a 1,005-square-foot drainfield. The form states that items bearing an "X" are "not in compliance with statute or rule and must be corrected." The construction and final system are approved by Petitioner's inspector. During the course of the work, Respondent told Mr. Seffer that the existing tank was damaged and needed to be replaced, at an additional cost of $5,000, so the remaining balance rose to $16,100. Mr. Seffer agreed to this change. By email dated April 30, 2008, to Mr. Seffer, Ms. Futch confirmed the additional cost of $5,000 for the second septic tank and expressed "hope [that] Ms. Rooter has met your expectations." The email acknowledges, however, that "we must complete the electrical portion of the job." On May 2, 2008, Mr. Seffer sent Ms. Rooter two checks totaling $15,000, leaving a balance of $1,100. On the same date, Mr. Seffer sent Ms. Futch an email that, pursuant to their agreement, he would retain this amount for the "electric and final raking work." By email dated May 27, 2008, to Ms. Futch, Mr. Seffer noted that the manhole that Ms. Rooter had installed in the middle of the lawn was not level and was sunken, presenting a tripping hazard; the final grading was incomplete, leaving low spots and holes; a large rock remained near the palm tree and needed to be removed. Mr. Seffer sent Ms. Futch a reminder email on June 4, 2008, that resent the May 27 email. Mr. Seffer sent another email to Ms. Futch on June 21, 2008. In it, he notes that a Ms. Rooter employee worked on digging an electrical trench on June 13, but left mid-day, and no work had been performed since that day. In the meantime, recent rains had revealed a lack of compaction in the backfilling done by Ms. Rooter, as the fill had settled and undermined a sidewalk. After failing to obtain a response, on July 26, 2008, Mr. Seffer sent a final email to Ms. Futch warning her that he would file complaints with governmental agencies and advising that the unconnected pump was not pumping sewage throughout the entire system. The record does not contain the contracts for the septic tank contracting services involved in the second and third jobs alleged in the Administrative Complaint. Also, Petitioner did not present the testimony of the property owners involved in these jobs. The record for these jobs is limited to the permitting documentation. On September 26, 2008, as agent of Ms. Rooter and on behalf of the property owner, Shoreview Properties, Respondent submitted an application for a construction permit for an onsite sewage disposal system for 9999 Northeast 2nd Avenue, Miami Shores. This application describes the property as commercial with a 47,771 square-foot building. On October 1, 2008, Petitioner's inspector inspected the property. The inspector found an opened drainfield area with contaminated material and other conditions capable of hosting various disease vectors. He also found a backhoe and worker, who claimed that someone else had excavated the drainfield. The inspector immediately posted an ONASN, pursuant to the authority of chapter 386, Florida Statutes, that required the immediate abatement of the listed insanitary conditions. The inspector also determined that the existing onsite sewage disposal system exceeded Petitioner's jurisdictional threshold of 5,000 gallons per day. On September 10, 2008, as agent of Ms. Rooter and on behalf of the property owner, Lisa Mullin, Respondent submitted to Petitioner an application for a construction permit for an onsite sewage disposal system for 101 Northeast 195th Street, Miami. This application describes the property as 0.19 acres, on which is situated a single family residence comprising 1,663 square feet and three bedrooms. On September 22, 2008, an agent of the property owner called Petitioner and complained that Ms. Rooter had commenced the work without having first obtained a permit. Petitioner's inspector visited the site on the same day and found "very recent" earthwork. The owner informed the inspector that the contractor had installed three drainlines, cut an old water line, and installed a new water line over the drainfield. However, the record fails to establish the amount of time that elapsed between the work claimed to have been performed by Ms. Rooter and the report by the property owner. Respondent has paid numerous fines imposed by Petitioner for improper septic tank contracting. In 1999, Respondent paid a fine in an unspecified amount for performing an unpermitted drainfield repair and making the repair without the required filter sand. On January 27, 2000, Respondent paid a fine of $250 for performing unpermitted system repairs. On February 4, 2000, Respondent was assessed a fine of $1,000 for performing unpermitted and uninspected system repairs and failing to honor a warranty. On January 8, 2004, Respondent received a cease and desist order for qualifying more than one septic tank contracting business. In 2007, Respondent paid separate fines of $1,500 and $1,000 for illegal septic tank contracting work in Dade and Monroe counties, respectively.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the three violations identified in paragraphs 26, 27, and 29 above, dismissing the remaining charges against him, dismissing any charges against Ms. Rooter, and revoking Respondent's septic tank contracting registration. DONE AND ENTERED this 31st day of January, 2011, in Tallahassee, Leon County, Florida. S 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 31st day of January, 2011. COPIES FURNISHED: Arlender Miller 640 Northwest 129th Street Miami, Florida 33168 Jenea Reed, Esquire Miami Dade County Health Department 8323 Northwest 12th Street, Suite 214 Miami, Florida 33126 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Shairi Turner, Deputy Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Kim Berfield, Deputy Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether the Petitioners are eligible for restoration coverage under the Abandoned Tank Restoration Program (ATRP) with regard to the remediation of petroleum contamination at DEP Facility No. 588631316, located in Venice, Florida.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Petitioners are the operators of Gulf Car Care (DEP Facility No. 588631316) located at 207 South Tamiami Trail, Venice, Florida. The Department is the agency charged with the responsibility of administering the Abandoned Tank Restoration Program. The Petitioners' ATRP Application was dated May 17, 1992 and received by the Department on June 17, 1992. The Petitioners' ATRP Application indicates that two 2,000-gallon underground storage tanks (UST's) were located at the facility and that one of those tanks was utilized for the storage of diesel fuel while the other tank was utilized for the storage of gasoline. Petitioners' ATRP Application indicates that two 4,000-gallon UST's and two 6,000-gallon UST's were also located at the facility and were utilized for the storage of gasoline. At least some, if not all, of the UST's identified in Petitioners' ATRP Application continued to store petroleum products for consumption, use or sale after March 1, 1990, and in fact, continued to store petroleum products for consumption, use or sale until some time in April, 1990. Petitioner Parr was operated on for colon cancer in late 1989 and Petitioner Homer suffered a heart attack on March 3, 1990. Petitioners contend that because of Petitioner Parr's illness the Petitioners were unable to make a decision to remove the petroleum storage system from service until after March 1, 1990. The petroleum storage system at the facility has been closed in accordance with Department's applicable rules.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order denying the Petitioners' application for eligibility or restoration coverage under the Abandoned Tank Restoration Program. RECOMMENDED this day 21st of April, 1994, at Tallahassee, Florida. WILLIAM R. CAVE 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 21st day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6555 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioners, Harold R, Parr and George H, Homer, Sr. Petitioners did not submit any proposed findings of fact per se. However, based on the record, including the testimony of the Petitioners, it does not appear that the Petitioners would disagree with any of the Findings of Fact presented in this Recommended Order. Respondent, Department's Proposed Findings of Fact. 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(3); 3-4(4); 5-6(5); 7- 9(6); 10-11(7) and 12(8). COPIES FURNISHED: Harold R. Parr 913 E. Shanon Court Venice, Florida 34293 George H. Homer, Sr. 3674 Roslyn Road Venice, Florida 34293 W. Douglas Beason, Esquire Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue in this case is whether, under Section 57.111, Florida Statutes, Respondent is liable for attorneys' fees and costs incurred by Petitioner in an earlier proceeding. The purpose of the earlier proceeding was to determine the eligibility of Petitioner's site for state-administered cleanup of discharge from a petroleum storage system under the Early Detection Incentive program described in Section 376.3071(9), Florida Statutes.
Findings Of Fact Petitioner informed Respondent of a pollutant discharge at Petitioner's gasoline station by filing a Discharge Notification Form on March 9, 1987. The form states that the discovery was made on March 5, 1987, as a result of a manual test of one or more monitoring wells. The form is marked "unknown" in response to questions concerning the estimated gallons lost, the part of storage system leaking, the type of tank, the cause of leak, and the type of pollutant discharged, although next to the last response are the typewritten words: "appears to be motor oil." A cover letter from Petitioner dated March 5, 1987, accompanied the Discharge Notification Form. The letter restates that the source of pollution is unknown, but adds that "there is a possibility that [the pollution] is the result of a septic tank, drain field discharge." The letter discloses that Blackhawk Environmental Services, Inc. ("Blackhawk") and NEPCCO/IT are investigating "to determine the extent of the contamination as well as the source." The letter provides the name and telephone number of the Blackhawk employee for further information. A separate cover letter from the Blackhawk employee to Respondent states that the notification was being submitted for consideration for Site Rehabilitation Reimbursement Costs. The letter also states that the site has been the subject of groundwater contamination from an "unknown source." Following the notification, Orlando Laboratories, Inc. submitted to Blackhawk a written analysis of the groundwater at the site. The report, which is dated March 19, 1987, contains quantitative data without any interpretation and was submitted without interpretation to Respondent on March 20, 1987. Petitioner applied to participate in the Early Detection Incentive ("EDI") Program by filing an EDI Program Notification Application dated March 23, 1987, together with a cover letter of the same date. The application supplied no more information than did the notification form. In response to the question as to the type of product discharged, Petitioner circled the choice, "used oil," but added the word, "possibility." Although the application may not have been immediately filed, Respondent received it prior to July, 1987. As part of a site inspection, an employee of Respondent prepared an Early Detection Incentive Program Compliance Verification Checklist, which was dated April 28, 1987. The checklist notes that Blackhawk "is looking into problem [and] will forward results from lab when available." The checklist also states: Odor found in E[ast] & W[est] M[onitoring] W[ells]. No other contamination found on site. Site has old waste oil tank on site that could possibly be contaminating drainfield next to tank. Also old abandoned tank (since 1967) on site. Asked owner to investigate tank's conditions. If not needed, he will remove & adjust registration accordingly. Floordrain in shop area dumps into on-site septic tank which could also contribute. The repeated mention of motor oil is due to at least two factors. First, a Blackhawk employee had mentioned to Belvin Marr, who owns and operates Petitioner, that the contaminant "looked like" motor oil. Second, Mr. Marr knew that he had, for many years, discarded used motor oil down a floordrain leading into a septic tank with an onsite drainfield. By letter dated July 22, 1989, Respondent informed Petitioner that its site was ineligible for state-administered cleanup under for the EDI program described in Section 376.3071(9), Florida Statutes. The letter states that the decision was "based upon information given in this [Notification Application] and a compliance verification evaluation of your reported site." The July 22 letter explains that the site is ineligible because, according to the application and district inspection: the source of contamination at Marr's Exxon has been attributed to used oil. Petroleum, as defined by Section 376.301(9), Florida Statutes (F.S.), included [sic] only crude oil and other hydrocarbons in the form in which they are originally produced at the well. Petroleum product, as defined by Section 376.301(10), F.S., means fuel in its refined state which is similar in nature to fuels such as diesel fuel, kerosene, or gasoline. Used oil cannot be considered "petroleum" or "petroleum products" because it has become unsuitable for its original purpose due to the presence of impurities or loss of original properties. Therefore, your site, which is contaminated by unrefined used oil, is not eligible for participation in Early Detection Incentive (EDI) Program. The July 22 letter advises Petitioner that he could obtain administrative and judicial review of the decision by filing a petition within 21 days of the date of receipt of the letter. The letter thus provided Petitioner with a clear point of entry. By letter dated July 30, 1987, Petitioner requested a 30-day extension to allow for retesting. Additional testing took place in early August, 1987. However, there is no indication that the resulting data, which again omit textual interpretation, were submitted to Respondent until the filing of the more definite statement described in the following paragraph. The next communication between Petitioner and Respondent took place when Petitioner requested a formal hearing by filing a Petition for Hearing dated August 26, 1987. By Order for More Definite Statement entered September 14, 1987, Respondent ordered Petitioner to file a more definite statement. By Response to Order for More Definite Statement dated September 28, 1987, Petitioner filed a more definite statement. The additional test data were attached to the more definite statement, although they are not in the DOAH case file. The Response offers the following chronology with all dates being approximate dates. March 5, 1987: Respondent notified of groundwater contamination from unknown source. March 20, 1987: analysis of contamination conducted by Orlando Laboratories, Inc. and forwarded to Respondent. March 23, 1987: Petitioner applied for participation in Early Detection Incentive ("EDI") program, and the application is attached to the More Definite Statement. April 27, 1987: Compliance Verification checklist issued. July 22, 1987: Respondent denied Petitioner's application. July 30, 1987: Petitioner requested 30-day extension to conduct further testing, the results of which are attached to the More Definite Statement. August 26, 1987: Petitioner requested formal administrative hearing. Following receipt of the more definite statement, Respondent forwarded the pleadings to the Division of Administrative Hearings for assignment of a Hearing Officer to conduct a hearing. The pleadings were received on October 9, 1987, and the file was assigned DOAH Case No. 87-4448. In a Motion for Continuance filed on January 14, 1988, Respondent asserted that the case involves the issue whether "used oil," which was what had been discharged at Petitioner's facility, is a "petroleum product." The motion refers to a pending case, Puckett Oil v. Department of Environmental Regulation, and states that this case, which had been heard in September, 1987, involves the same question. By Motion for Continuance filed on May 13, 1988, Respondent requested a continuance on the same grounds as previously cited and represented that Petitioner had no objection. An internal memorandum of Respondent dated March 17, 1988, acknowledges that Petitioner requested a review of the available data based on an "inaccurate assessment by his contractor." Reviewing the data, some of which had been provided after July 22, 1987, the memorandum notes that the majority of the contamination is from gasoline, but the involvement of the drainfield as the source of contamination "is the reason eligibility was denied." After the issuance of the final order in Puckett Oil v. Department of Environmental Regulation, 10 FALR 5525 (September 1, 1988), Respondent, filing a Motion to Set Hearing Date, disclosed that "[Respondent's] review of the Final Order indicates that Petitioner's site remains ineligible for SUPER Act funding." However, on July 28, 1989, the parties filed a fully executed Joint Stipulation and Motion to Dismiss. An Order Closing File, which was entered the same date, returned the matter to Respondent for final disposition consistent with the stipulation. The Joint Stipulation and Motion to Dismiss states: On July, 22, 1987, [Respondent] denied eligibility for the [EDI] Program, Section 376.3071(9), Florida Statutes, to [Petitioner's) site . . .. The basis for the denial was that the site was contaminated with used oil. Subsequent to [Respondent's] denial, Petitioner conducted a series of ground water tests to more accurately determine the nature and extent of contamination at the site. The results of that testing indicate that the site was contaminated with significant amounts of gasoline constituents and minor amounts of used oil constituents emanating possibly from a septic tank drainfield and a used oil storage facility. The gasoline constituents exist at levels many times that of the other constituents. Based upon the overwhelming contribution to the overall contamination presented by the gasoline constituents, [Respondent] agrees that the presence of minor amounts of contaminants from something other than a tank should not preclude [Petitioner's] site from being eligible for the EDI Program. [Respondent reserves the right not to pay for the cost of cleanup of contamination not related to discharge from a tank.] WHEREFORE Petitioner . . . and Respondent request that the hearing officer adopt this stipulation . . . and retain jurisdiction for an award of attorney's fees and costs (Fla. Stat. Sect. 57.111 (1986 Supp.) and Fla. Admin. Code Rule 22I-6.035). . .. The parties stipulated that Petitioner was a small business party. The parties also stipulated to reasonable attorneys' fees of $6625 and costs of $4690. Following the final hearing, Petitioner filed supplemental affidavits showing, in connection with the prosecution of the subject case and not the earlier proceeding, additional attorneys' fees of $1875 and costs of $490.85.
The Issue The issue in this case is whether Respondent's decision to reject the galvanized pipe replacement bid of Petitioner as non- responsive was erroneous, an abuse of discretion, arbitrary or capricious.
Findings Of Fact Petitioner, Expertech Network Installation, Inc., is a division of Bell Canada. Petitioner is a construction and engineering division of the parent company. It was set up to expand the parent's operations into the United States about nine years ago. Petitioner has steadily replaced its Canadian employees with U.S. employees over those years. The City is a governmental entity established under the laws of the State of Florida. By contract with the DOAH, the City has agreed to utilize Administrative Law Judges to hear, inter alia, bid protests involving the City. On May 7, 2007, the City issued Invitation to Bid No. ITB-PW060607-88. The Invitation to Bid sought bids for replacement of approximately 38,000 linear feet of two-inch galvanized pipe and associated appurtenances with 38,000 feet of four and six-inch DR18 PVC piping and associated appurtenances. The replacement would include approximately 385 service connections with Sch-80 PVC piping, all within the area known as Section 4 of the City. In addition, the scope of work included relocation of approximately 460 linear feet of eight-inch PVC water main pipe and associated appurtenances with 600 linear feet of eight-inch DR18 PVC piping and appurtenances along State Road 78. A total specification package and complete set of drawings for the aforementioned work was prepared by the City's consulting engineer, TetraTech-HAI (hereinafter "Ttech"). The specifications and drawings by Ttech were made a part of the Invitation to Bid. A pre-bid conference was held on May 16, 2007. At that conference, several issues were discussed, resulting in issuance of an Addendum to the Invitation to Bid. The Addendum was issued the same day as the conference and included the following paragraph: Will the City allow directional drilling on the galvanized pipe replacement project? No. All references to directional drillingon the galvanized pipe replacement projectare to be modified to jack & bore. All water main piping proposed to cross driveways shall be installed via jack & bore or open cut methods. Water main piping proposed to cross roadways, including long side services, shall be installed by jack & bore methods. Directional drilling is acceptable for the roadway crossings on the SR 78 Water Main Replacement portions only. Please see the enclosed revised Measurement and Payment section of the specifications (01025) and revised bid schedule. (Emphasis in original document.) The Addendum also extended the due dates for bids by one week, to June 13, 2007. No protest was filed with the City with respect to the terms, conditions or specifications contained in the Invitation to Bid and the Addendum. On Wednesday, June 13, 2007, the City opened the bids. Petitioner's bid was the low bid for the project. Its bid included a price of $1,816,224, as compared to the second lowest bidder, Guymann (whose bid came in at $1,987,561).1 The bids were then reviewed by Ttech for conformity to the Invitation to Bid. On July 31, 2007, Ttech notified the City that it was recommending approval of the Guymann bid despite Petitioner being the low bidder. The justification for that recommendation was as follows: The lowest apparent bidder on the project was Expertech Network Installation, Inc. (Expertech) with a total bid of $1,816,224.00. [Ttech] reviewed Expertech's bid package and found that the required list of at least five completed projects of the type as the Galvanized Water Main Replacement project was not included in the package. [Ttech] contacted Expertech concerning the incomplete bid package and requested that Expertech provided the required list of at least five projects completed by Expertech of similar type as the Galvanized Water Main Replacement project. The list provided by Expertech did not include any completed projects of the type as the Galvanized Water Main Replacement. On August 7, 2007, the City issued its Notice of Intent to Award, stating that the procurement division of the City would recommend award of the bid to Guymann as the most responsive, responsible bidder meeting the terms, conditions, and specifications set forth in the Invitation to Bid. Petitioner timely filed a Notice of Intent to Protest; its Formal Written Protest was timely filed on August 24, 2007, along with the required bond. There are three methods of drilling utilized for laying pipe in the ground: directional drilling, open cut drilling, and jack & bore drilling. A brief discussion of each is necessary in order to understand the dispute in this matter. Directional drilling is done utilizing a machine that is guided underground using steel rods. A person above ground with a sounding device directs the steel rods from one point to another. Directional boring is used when trenching or excavating is not practical. Directional boring minimizes environmental disruption. Jack & bore drilling (or auger drilling) is similar to directional drilling in that it has an entrance pit, and then the pipe is manually jacked along the desired path while simultaneously excavating the soil. It is often used in projects that have to go under existing roads or driveways. Open cut drilling is the old, traditional method of digging a trench in the ground and laying the pipe in the open cut. The Invitation to Bid, at page 10 of 53, included a request for each bidder to provide evidence of its experience with similar projects. Paragraph 5 asked for a list "of the last five projects of this type your organization has completed."2 Paragraph 6 asked for a list "of projects of this type that your organization is currently engaged in." The lists of projects were to be completed as set forth in a table attached to the Invitation to Bid. The table is recreated below: PROJECT YOUR CONTRACTOR REQUIRED ACTUAL NAME, TITLE CONTRACT OR SUB COMPLETION COMPLETION ADDRESS & AMOUNT DATE DATE & LOCATION PHONE # In its Bid, Petitioner provided a document entitled "Bidders Qualifications" in response to paragraph 5. The document was not on the table provided and was not entirely responsive to the information requested (i.e., it did not indicate whether Petitioner was contractor or subcontractor; there were no completion dates, and there were no contact persons). Nonetheless, the list contained eight completed projects. Those projects included two water main projects; the other six completed projects were telecommunication projects. While both types of projects would include drilling, there are distinct differences between the two. For example, water and wastewater projects require pressure testing, bacterial testing, and permitting that telecommunication projects do not. Petitioner's list also included projects that involved directional drilling. Since directional drilling was specifically prohibited in the galvanized pipe replacement project, those projects would not be deemed substantially similar in type.3 During the initial review of the bids, Ttech had specifically asked Petitioner to provide the required list of five completed projects of a similar type. In response, Petitioner submitted a list of four projects, which were listed as "Currently in Progress." Again, the projects were submitted on a form other than the table provided in the Invitation to Bid. When Ttech followed up with the project contacts, it found that there had been no open cut drilling on two of them; the other two had not yet begun. However, by the date of final hearing the projects were substantially complete. After Petitioner had submitted its list of projects, a meeting was called at the City. Petitioner was represented at the meeting along with City personnel and a representative from Ttech. Notes from that meeting, though inconclusive, seem to indicate that the requirement for five completed jobs of a similar nature was discussed. It is unclear whether Petitioner's representative was still at the meeting when this was discussed. However, it does not appear that anyone from the City or Ttech sent Petitioner a written request to provide evidence of additional work performed. Nor is there any evidence that the City or Ttech had an obligation to do so. At any rate, Petitioner did not submit any evidence of similar projects other than those discussed above. There were notes made by attendees of the meeting. None of the notes submitted into evidence was conclusive as to all issues that were discussed at that time. However, in notes relating to a telephone conversation five days later, Ttech's representative noted discussing with Petitioner the need to provide evidence of five similar projects, which means that at the time of the June 9, 2007, meeting, Ttech was still attempting to get the required list of projects from Petitioner. The projects submitted by Petitioner include directional drill excavation projects, which involved at least some open cuts (i.e., to make tie-ins at each end of the directional drill section). None of those projects was substantially similar in type to the proposed project, but did include some open cut work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the City of Cape Coral upholding its rejection of Petitioner's bid for the galvanized pipe replacement project. DONE AND ENTERED this 9th day of November, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2007.
The Issue The issue for consideration in this hearing is whether the Petitioner is entitled to reimbursement for clean up costs associated with the Initial Remedial Action, (IRA), activities of the Abandoned Tank Restoration Program performed at his facility, and if so, in what amount.
Findings Of Fact At all times the Respondent, Department of Environmental Protection, (Department), has been the state agency in Florida responsible for the administration of the state's Abandoned Tanks Restoration Program. Petitioner is the owner and operator of Mohammad's Supermarket, Department facility No. 29-8628197, a food market and gasoline station located at 3320 Hillsborough Avenue in Tampa. Petitioner has owned and operated the facility for approximately the last ten years. The facility in question included three 5,000 gallon gasoline underground storage tanks and one 5,000 diesel underground storage tank. The diesel tank has not been used for the storage of diesel product for the entire time the Petitioner has owned the facility, at least ten years, but the three gasoline tanks were in use after March 1, 1990. Gasoline tanks were reinstalled at the facility and are still in use. In March, 1993, Petitioner removed all four underground storage tanks from the facility and performed initial remedial action. The field and laboratory reports of the soil and groundwater samples taken at the site at the time the tanks were removed showed both gasoline and diesel contamination. In October, 1993, the Petitioner submitted an application for reimbursement of certain costs associated with the IRA program task to the Department. Thereafter, by letter dated August 5, 1994, the Department notified Petitioner that it had completed its review of the reimbursement application and had allowed Petitioner 25% of the total amount eligible for reimbursement. This was because since the Petitioner continued to use the gasoline tanks after March 1, 1990, the Petitioner's ATRP eligibility is limited to clean up of only the diesel contamination. Petitioner's application for reimbursement covered the entire cost of the tank removal, both gasoline and diesel, and did not differentiate between the costs associated with the remediation of the gasoline contamination and those associated with the diesel contamination. The 25% allowance was for the one tank, (diesel fuel), which was eligible for ATRP clean up reimbursement. The Department subtracted from the personnel costs in the amount of $5,996.25, claimed in Section 2A of the claims form, the sum of $45.00 for costs associated with ATRP eligibility status; $497.50 claimed as a cost associated with the preparation of a Tank Closure Report, and $3,508.75 claimed as costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR). These deductions were made because costs associated with ascertaining ATRP eligibility status, the preparation of a Tank Closure report, and the preparation of a preliminary CAR are all costs ineligible for reimbursement. These three ineligible costs total $4,051.25. When this sum is deducted from the amount claimed, the remainder is $1,944.50. The Department then reduced this figure by prorating it at 25% for the diesel tank and 75% for the gasoline tanks, disallowing the gasoline portion. With that, the total reimbursement for Section 2A, personnel, costs is $486.25. Petitioner claimed $1,765.00 for rental costs, (Section 2C), associated with soil removal, from which the Department deducted the sum of $1,550.00 which represents costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR), which is not eligible for reimbursement. The balance of $215.00 was reduced by the 75%, ($161.27), which related to the three gasoline tanks, leaving a balance of $53.75 to be reimbursed for rental costs attributable to the diesel contamination. Petitioner also claimed $12,865.75 for miscellaneous costs associated with soil removal. This is listed under Section 2I of the application. From that figure the Department deducted the sum of $9,455.99 as costs attributable to the three gasoline tanks. In addition, $2,017.43 was disallowed because it related to the preliminary CAR, and $3,151.99 was deducted because the tank was removed after July 1, 1992. The applicable rule requires justification in the Remedial Action Plan, (RAP), for removal of tanks after that date. Such costs, when justified, can be reimbursed as a part of a RAP application. A further sum of $1,759.66 was deducted from the 2I cost reimbursement since the applicant got that much as a discount on what it paid. Together the deductions amounted to $16,385.07, and when that amount is deducted from the amount claimed, a negative balance results. Section 3 of the application deals with soil treatment. Subsection 3I pertains to such miscellaneous items as loading, transport and treatment of soil. The total amount claimed by Petitioner in this category was $13,973.44. Of that amount, $10,480.00 was deducted because it related to the three gasoline tanks. The amount allowed was $3,493.44, which represents 25% of the total claimed. Category 7 on the application form deals with tank removal and replacement. Section 7A relates to personnel costs and Petitioner claimed $4,187.00 for these costs. Of this, $3,140.25 was deducted as relating to the three gasoline tanks and amounted to 75% of the claimed cost. In addition, $1,046.75 was deducted because the diesel tank was removed after July 1, 1992 and there was no justification given for the removal at that time. This cost might be reimbursed through another program, however. In summary, all personnel costs were denied, but so much thereof as relates to the diesel tank may be reimbursed under another program. Section 7C of the application form relates to rental costs for such items as loaders, trucks and saws. The total claimed was $2,176.00. Of this amount, $1,632.00 was deducted as relating to the three gasoline tanks, and an additional $544.00 was deducted as being associated with the non-justified removal of the diesel tank after July 1, 1992. As a result, all costs claimed in this section were denied. In Section 7D, relating to mileage, a total of $12.80 was approved, and for 7G, relating to permits, a total of $28.60 was approved. In each case, the approved amount constituted 25% of the amount claimed with the 75% disallowed relating to the three gasoline tanks. Section 7I deals with miscellaneous expenses relating to tank removal and replacement. The total claimed in this section was $2,262.30. A deduction of $1,697.11 was taken as relating to the three gasoline tanks, and $565.69 was deducted because the removal after July 1, 1992 was not justified in the application. This cost may be reimbursed under a separate program, but in this instant action, the total claim under this section was denied. Petitioner asserts that the Department's allocation of 75` of the claimed costs to the ineligible gasoline tanks is unjustified and inappropriate. It claims the majority of the costs where incurred to remove the eligible diesel fuel contamination and the incidental removal of overlapping gasoline related contamination does not justify denial of the costs to address the diesel contamination. To be sure, diesel contamination was detected throughout the site and beyond the extend of the IRA excavation. The soil removed to make room for the new tanks was contaminated and could not be put back in the ground. It had to be removed. The groundwater analysis shows both gasoline and diesel contamination at the north end of the property furthest from the site. The sample taken at that point, however, contains much more gasoline contaminant than diesel. Petitioner contends that the costs denied by the Department as relating to gasoline contamination were required in order to remove the diesel contamination and Petitioner should be reimbursed beyond 25%. It contends that the diesel contamination could not have been removed without removing all four tanks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered denying Petitioner request for additional reimbursement of $27,653.82 and affirming the award of $6,629.07. RECOMMENDED this 25th day of September, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1995. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Francisco J. Amram, P.E. Qualified Representative 9942 Currie Davis Drive, Suite H Tampa, Florida 33619 Virginia B. Wetherell Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-1000 Kenneth Plante General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-1000
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
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: recommended that the Department deny Petitioner's application. DONE and ENTERED this 20th day of January, 1994, in Tallahassee, Florida. STEPHEN F. DEAN, 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 20th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2604 Both parties filed proposed findings of fact which were read and considered. The following states which of those facts were adopted, and which were rejected and why: Petitioner's Findings Recommended Order Para 1 Preliminary statement Para 2,3 Para 37,38 Para 4-23 Para 1-20 Para 24 Para 22 Para 25 Para 21 Para 26-39 Para 23-36 Respondent's Findings Recommended Order Para 1 Para 6 Para 2 Para 4 Para 3 Para 12 Para 4 Para 14 Para 5 Para 15 Para 6 Para 27,32 Para 7 Para 34 Para 8 Para 34 Para 9 Para 18 Para 10 Para 10 Para 11 Para 25 Para 12 Para 33 COPIES FURNISHED: Michael E. Demont Lee S. Haramis Post Office Box 1559 Jacksonville, Florida 32201-1559 Jefferson M. Braswell Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
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
