Findings Of Fact Friends of Lloyd, Inc. is a Florida non-profit corporation formed for the purpose of protecting Jefferson County from harmful development. The Council of Neighborhood Associations of Tallahassee/Leon County (CONA) is a non- profit Florida corporation whose members are the neighborhood associations in Leon county; members of those associations reside in 42 Leon County neighborhoods dispersed throughout Leon County. CONA's purposes and goals include protection of the quality of life and environment in Leon County. The Thomasville Road Association's members are principally residents of Leon County. The Association was formed to promote responsible growth management in northern Leon County. None of the Petitioners are owners or "developers" of a Development of Regional Impact within the terms or scope of Chapter 380, Florida Statutes. Rather, Petitioners are members of non-profit organizations interested in the environment and growth management of Leon County. The Department of Community Affairs (the "Department") is the state land planning agency with the power and duty to administer and enforce Chapter 380, Florida Statutes, and the rules and regulations promulgated thereunder. Sections 380.031(18), and 380.032(1), Florida Statutes (1987). Texaco is a business entity that proposes to develop a "tank farm" near the community of Lloyd in Jefferson County, Florida. The Texaco tank farm is a "petroleum storage facility" as that term is used in Rule 28-24.021, F.A.C. Colonial is a business entity that proposes to develop a petroleum pipeline that will connect to the Texaco tank farm. The pipeline is designed to carry and contain petroleum products For purposes of standing, the parties have stipulated that certain environmental hazards can reasonably be expected to occur as a result of the existence of the pipeline/tank farm. No competent evidence was submitted regarding those hazards. As a result of the stipulation, Petitioners have each established injury-in-fact so that they are "adversely affected" by the challenged rule to an extent sufficient to confer upon them standing to maintain this action under Section 120.56, Florida Statutes. On September 7, 1989, one of the Petitioners sent Respondent a letter suggesting that the proposed tank farm development to be built in Jefferson County should be required to undergo review as a DRI. Enclosed with the letter was a proposed circuit court complaint pursuant to Section 403.412(2)(c), Florida Statutes. Petitioner expressed its intention of filing this circuit court action, but first provided Respondent a copy of the proposed complaint in accordance with the provisions of Section 403.412, Florida Statutes. In two letters dated September 8 and 25, 1989, Petitioner supplied additional information to Respondent concerning the tank farm project and contended that in making its determination as to whether the development must undergo DRI review, Respondent should consider the storage capacity of both the tank farm and the pipeline. On October 9, 1989, Respondent answered Petitioner's first letter, and stated that the proposed project was not required to undergo DRI review because the total storage capacity of the tanks was only seventy-eight percent (78%) of the threshold set out in Chapter 28-24, F.A.C. On October 13, 1989, Respondent answered Petitioner's second and third letters, stating that with respect to the pipeline, it has been long standing departmental policy to interpret "storage facilities" as meaning only the tanks, not the pipeline, when determining whether petroleum storage facilities meet the DRI thresholds set out in Chapter 28-24. The proposed tank farm would have nine tanks with a total capacity of 155,964 barrels, which is, as Respondent determined in its letters, approximately seventy-eight percent (78%) of the applicable DRI threshold for "petroleum storage facilities" set forth in Chapter 28-24, F.A.C. The proposed pipeline's capacity over its approximate forty-five mile length from Bainbridge, Georgia to the tank farm is approximately 34,000 barrels. The proposed pipeline's volume flow capacity from the Florida/Georgia state line to the site of the prosed tank farm is approximately 13,500 barrels over approximately 18 miles. If the pipeline's volume capacity from Bainbridge, Georgia is added to the tank farm's volume capacity, the resulting project would be approximately ninety-five percent (95%) of the applicable DRI threshold in Chapter 28-24. If the pipeline's volume capacity from the state line is added to the tank farm's volume capacity, the resulting project would be approximately eighty-five percent (85%) of the threshold. In either instance, the project would exceed the eighty percent (80%) threshold that may require it to undergo DRI review although the project would be Presumed not to be a DRI under the Statute. The Department does not require developments outside Chapter 28-24's enumeration to undergo DRI review. The Department has never treated petroleum Pipelines as "petroleum storage facilities," or as otherwise subject to DRI review. On Several occasions, the Department has applied the petroleum storage facility guideline and standard to petroleum tank farms without determining whether a pipeline was attached to the tank farm. On one prior occasion, the Department has explicitly stated that Petroleum Pipelines are not subject to DRI review. The Petitioners contend that Department's Position that pipelines are not "petroleum storage facilities" is an invalid policy because it has not been adopted as a rule. There is no dispute the Department's Position on this issue has not been promulgated as a rule. If a facility were represented to be a Petroleum pipeline, but was actually designed as and operating as a petroleum storage facility, the Department would apply the Petroleum storage facility DRI guideline and standard to that facility.
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 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 issues to be resolved in this proceeding concerns whether the Respondent installed a septic system without a permit; whether a permit was required for the installation; whether the installation was of inadequate size; whether the Respondent caused the disconnection of an existing system without a permit, and whether that system was improperly abandoned. A related issue is whether the proposed $1,500.00 fine should be imposed if the violations are proven or what, if any, fine is warranted.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, in pertinent part, by its organic statutes and rules, with regulating the practice of septic tank contracting and the installation and repair of septic tank and drainfield waste disposal systems and with licensure of such contractors pursuant to Rule Chapter 64E, Florida Administrative Code. The Respondent, Trammel Fowler (Fowler), is a licensed septic tank contractor regulated by the statutes and rules cited herein. Fowler has never been issued any citations or been subjected to discipline under the relevant statutes and rules enforced by the Petitioner with regard to septic system design, construction, installation and repair. He has worked in the septic tank installation business for 19 years. The Respondent installed a septic tank and drainfield system at 5642 Old Bethel Road, Crestview, Florida, a residential construction project (home) in 1993. The original septic tank system installed by the Respondent was finally approved on June 11, 1993. The home site at issue was originally designed to have the septic tank and drainfield system located in the backyard of the residence. Plumbing errors by the general contractor and the plumbing sub-contractor caused the plumbing system to be "stubbed-out" to the front of the house so that the septic tank and drainfield system was installed in the front of the house rather than in the backyard as originally designed and approved by the Petitioner. Additional excavation work was required at the site, which caused the soil type to change in the front of the house where the septic tank and drainfield were to be installed. This in turn required the Okaloosa County Health Department to require additional drainfield square footage to be added to the previously approved 600 square feet of drainfield, so that the drainfield installed in the front of the house by the Respondent ultimately encompassed 800 square feet. Thus, although the original site plans approved by the Okaloosa County Health Department were not followed, subsequent modifications to the system resulted in the septic tank system being fully approved by the Petitioner (through the Okaloosa County Health Department), on June 11, 1993. In the ensuing months, landscaping problems at the site caused surface water to collect around and above the drainfield area. This, coupled with a continuous water flow from the residence caused by leaking appliances, and particularly the commode, resulted in raw or partially treated wastewater becoming exposed on the surface of the ground, as a sanitary nuisance. This was caused as the septic tank and drainfield system became saturated by the excess water from the two referenced sources. This caused the failure of that septic tank and drainfield system within nine months of its original installation, as was noted on March 4, 1994, by the Department's representative Mr. Sims. It is undisputed that the Respondent, Mr. Fowler, did not cause or contribute to this septic tank system failure. He constructed the system as designed and approved by the Department (or as re- approved by the Department in June 1993 with the relocation of the system to the front yard of the residence and with the augmentation of the drainfield referenced above). The Department was aware of the failure of the original system in the front yard of the residence as early as March 1994. There is no evidence that an actual permit for repair of that system was ever issued. Mr. Fowler maintains that the Department had a policy at that time of authorizing repairs to systems that failed within one year of original installation, as this one did, without a written, formal permit process, but rather by informal approval and inspection of the repair work. The Petitioner disagrees and Mr. Sims, the Petitioner's representative, states that a permit was required, although no fee was charged. Indeed in 1994 a rule was enacted authorizing issuance of a permit for repair work for systems that failed within one year of original installation without being accompanied by the charging of a fee for that permit. In any event, prior to the rule change, repairs were authorized for failures within one year by the Department without a permit, but were required to be inspected and a notation made in the permit file or in some cases on a "nuisance complaint card," so authorization and inspection was supposed to be documented. When by the time the repair was effected by the installation of the backyard septic tank and drainfield system or "overflow-system" in February 1995, the rule change requiring issuance of a repair permit without fee had become effective. There is evidence that the Respondent was aware of this since, sometime in 1994, he had obtained a permit authorizing repair of a septic tank and drainfield site on "Windsor Circle" as shown by the Petitioner's Exhibits 6 and 7 in evidence. Be that as it may, the Respondent contends that Mr. Brown, the environmental specialist and inspector for the Department, met with him at the repair site in question and at least verbally authorized the repair of the system by installation of the septic tank and drainfield in the backyard of the residence; to be connected to the sewer line which also was connected with the malfunctioning system in the front yard of that residence. Mr. Brown in his testimony purports to have no memory of authorizing the repair work or inspecting it and seems confused as to whether he met with the Respondent at the site. The Petitioner acknowledges, as does Mr. Brown, that he has had problems since that time with memory lapses, attendant to two life-threatening injuries, which have apparently caused problems with memory loss. He purportedly suffers from post-traumatic stress syndrome and is taking medication with regard thereto. There is no dispute that he has problems with recall. Moreover, there is evidence that Mr. Brown met with the Respondent at an address on Old Bethel Road for some reason, as shown by a notation in Department records in February 1995. Consequently, while there is no doubt that the repair work in question was done without a written permit, there is evidence to corroborate Mr. Fowler's testimony to the effect that Mr. Brown inspected and reviewed the repair system while it was actually being installed by Fowler and approved it. Thus, it is possible that Mr. Fowler was under a good faith impression that the Department had a policy of inspecting and approving repair work without there being a permit related to it at the time when he installed the secondary "overflow" system at the Old Bethel Road site in February of 1995, even though that impression may have been legally mistaken, because the rule requiring a permit at no fee for repair work was already in effect. In any event, Mr. Fowler installed the so-called "repair system" in February 1995, which he has termed an "overflow" system designed to augment the treatment capability of the previously-approved system installed in the front yard at that residence. That system, as found above, consisted of 800 square feet of drainfield. The "overflow" system installed in the backyard by Mr. Fowler in February 1995 without the permit, has only 300 square feet of drainfield. This is clearly well below the minimum required for such a system and tends to support Mr. Fowler's testimony that it was intended really as a repair job in the form of a overflow system to handle extra flow that the original system in the front yard would not be able to handle in performing the intended treatment function. It is unlikely that Mr. Fowler, with or without a permit, would have installed a system he clearly would know to be of only one-half (or less) of the adequate size and treatment capability for the residence, if it had been intended to be a separately functioning independent treatment system for the residence. In fact, the "overflow" system was connected through a "T" or "Y" fitting in the sewer line outfall pipe from the house with the original septic tank and drainfield system in the front yard of the residence, so that flow could go to both systems simultaneously from the residential sewer line. There is conflicting testimony as to whether such a dually draining system could work properly. One septic tank contractor testified that it could and could adequately split the flow between the two septic tank and drainfield systems so as to perform adequate treatment without backups or overflows, while a witness for the Department testified that such a split-fitting could cause stoppages and therefore sewage backups. Be that as it may, the installation of the system in a connected fashion to the original system supports Mr. Fowler's testimony and contention that the system installed in the backyard, with 300 square feet of drainfield, was intended as a repair system merely to augment the treatment function being provided by the poorly functioning original system in the front yard. In fact, the preponderant evidence shows that, with the elimination of leakage from the appliances in the house and the correction of the water-pooling problem caused by improper landscaping, that the system would function adequately thus connected. Indeed, when the plumber or the general contractor for the residence disconnected the original front-yard septic tank system from the overflow system, so that all of the sewage in the house went to the overflow system with the smaller drainfield, that system still functioned adequately for one and one-half years until failure in approximately August 1997. It is undisputed that the Respondent had no part in the unreported and unapproved disconnection of the original front system from the overflow tank and drainfield system in the backyard. The evidence shows a preponderant likelihood that the total system would have functioned adequately indefinitely had the two remained connected so that sewage could flow to the front yard system with the 800 square feet of drainfield, with the excess water flow problems referenced above already corrected. Mr. Brown, the Department environmental specialist and inspector, did not recall specifically whether he had been at the Old Bethel Road site at issue, but testified that it was definitely possible. He testified that the time entry notation he made admitted into evidence as Exhibit No. 3, may have reflected an inspection for a repair job at the Old Bethel Road site. Mr. Brown admitted that he was present on Old Bethel Road in February 1995, but did not recall his purpose of being there. His testimony thus did not contradict the testimony of Trammel Fowler. Mr. Brown also testified that he was aware of problems at the Old Bethel Road site and testified that Mr. Wykle of the Department and Mr. Sims were also aware of problems at the Old Bethel Road site. Douglas Sims of the Department testified that the two systems, the original front tank and drainfield and the overflow tank and drainfield installed in the backyard by Mr. Fowler could not work together if they were connected. This is belied by testimony of a septic tank contractor, Ken Arnett, who was a rebuttal witness called by the Department. Mr. Arnett testified that he would expect a system of the type contemplated by Mr. Fowler and Mr. Brown to function properly. It thus seems from the preponderant weight of the evidence that the reason the Old Bethel Road residential system quit functioning properly, in approximately August 1997, is that the plumbing contractor, at the behest of the residential building contractor for the residence constructed there, disconnected the overflow system from the original front yard system, so that all the house effluent was going to the overflow system, which was never intended to have a complete, standard-sized drainfield for such a dwelling, prevalent soil conditions, elevations and the like. Mr. Brown, a long time employee of the Department was familiar with the statewide rules affecting septic tank contractors and installation and familiar with local department rules and policies relating to repairs. He testified that for a period of time in the early 1990's, there was an unwritten policy by the Okaloosa County Health Department that some repair permits would be waived for certain repairs provided a final inspection by the Department was made. He stated that if the septic tank system failed within one year under certain circumstances, a repair permit would be waived as long as the Department was aware of the repair. Mr. Brown could not recall when the policy ended, but estimated it to be sometime between 1995 and 1997. He called the discontinuation of the local policy to waive repair permits a "gradual phase out." Mr. Brown also recalled that the Okaloosa County Health Department's unwritten, local policy concerning waiver of repair permits was known and relied upon by septic tank contractors in certain situations. Cecil Rogers, a long-time septic tank contractor who dealt with the Okaloosa County Health Department regularly, testified that there was a standard policy to allow repairs to be made to septic tank systems that failed within one year without requiring a permit. There thus seems to have been an unwritten policy or practice among septic tank contractors and the Okaloosa County Health Department to the effect that if a system failed within one year and the contractor was willing to repair the system without cost to the homeowner, that the permit would be waived as long as the system or repair could be inspected by the Department. The system originally installed which failed appears to have been installed before the effective date of the rule requiring that a no-charge permit be obtained for repair work. The repair work in question, the installation of the overflow system, appears to have been effected after the effective date of the new rule. It also appears that Mr. Fowler knew of the new rule because of his obtaining a permit for repair work at the Windsor Circle repair site in 1994. It also would appear that Mr. Brown likely verbally approved and inspected the repair work at the subject site, giving Mr. Fowler the impression that he was authorized to go ahead and make the repair by installing the overflow system. Thus, although he may have technically violated the rule requiring a no-charge permit for repair work, it does not appear that he had any intent to circumvent the authority of the Department, since the preponderant evidence shows that Mr. Brown knew of and approved the installation. Thus, in this regard, a minimal penalty would be warranted. Moreover, after the original septic system at the Old Bethel Road site failed in March of 1994, through no fault of Fowler, Fowler paid to make the repair by installing the overflow system at his own expense. The original new home purchaser at that site, and Mr. Fowler's customer, Mr. Wayne Aaberg, thus did not sustain any personal expenses for the repair work performed by Fowler. The Petitioner did not present any evidence to establish that the repairs made by Fowler caused the septic tank system at Old Bethel Road to fail. The Petitioner, through the testimony of environmental manager Douglas Sims, itself established that the plumbing contractor actually disconnected the front system from the overflow system and made a physical connection only to the rear system installed by Mr. Fowler, rather than Fowler, and without Mr. Fowler's knowledge. The Petitioner, apparently through Douglas Sims, failed to conduct an investigation to determine which party actually was responsible for physically abandoning or disconnecting the original front system from the home and from the overflow system prior to the charges being filed against Mr. Fowler. Mr. Fowler did not cause the physical disconnection of the two systems and the residence and is not a licensed plumber. He did not, during the course of his contracting business for septic tanks and drainfields make physical connections or disconnections to dwelling units, but instead left that to the responsibility of the general contractor and/or the plumbing contractor. The Petitioner presented no evidence establishing any monetary harm to any customer of the Respondent. The disconnection of the systems which caused the failure was not shown to have been the responsibility nor fault of Mr. Fowler. Rather, any monetary harm to the homeowner who owned the residence when the failure occurred in August 1997, after the original repair installation had been paid for by Mr. Fowler was caused by the plumbing contractor and/or the general contractor, Kemp Brothers, who directed the plumbing contractor to disconnect the original front system from the overflow system. Consequently, any monetary damage caused by fixing the failure which occurred in August 1997, and which engendered the subject dispute, was not caused by Mr. Fowler. Finally, Mr. Douglas Sims of the Department, testified that he knew of two other un-permitted repairs by septic tank contractors which were known to the Department. In both of those cases, the contractors were only issued a Letter of Warning. Mr. Sims testified that if the Respondent herein had made repairs to the existing system at his own cost after the failure occurring in August of 1997, then the Department would have only issued a Letter of Warning. Mr. Fowler paid to fix the original system in February 1995, but felt that monetary responsibility for the August 1997 failure was not his fault and thus did not offer to pay for that.
Recommendation Accordingly, 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, therefore, RECOMMENDED that a final order be entered finding that the Respondent effected repair work to a septic tank and drainfield system without the required written permit but that, in view of the above-found and concluded extenuating circumstances, that a minimal penalty of a letter of warning be issued to the Respondent by the Department and that the citation for violation, in all other respects, be dismissed. DONE AND ENTERED this 19th day of January, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 19th day of January, 2000. COPIES FURNISHED: Rodney M. Johnson, Esquire Department of Health Northwest Law Office 1295 West Fairfield Drive Pensacola, Florida 32501 Matthew D. Bordelon, Esquire 2721 Gulf Breeze Parkway Gulf Breeze, Florida 32561 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health Bin A00 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
The Issue Whether Petitioner is eligible for Florida Petroleum Liability Insurance and Restoration Program (FPLIRP) coverage for petroleum discharges on March 10, 1992 and June 22, 1992.
Findings Of Fact Realadyne is a Florida corporation. The current president of Realadyne is Mary J. Martin. Realadyne was the owner and operator of a facility located at 4846 4th Street North, St. Petersburg, Florida (Save-A-Step Food Store #7) (the "Facility"). The Facility was registered with the Department and was assigned DER Facility No. 52-8624627. The underground petroleum storage system located at the Facility included five underground petroleum storage tanks - four 4,000 gallon tanks and one 10,000 gallon tank. The date(s) that the tanks were installed at the Facility is unknown. At all times material, the Department has delegated to Pinellas County the authority to perform certain types of inspections with regard to underground petroleum storage systems. These inspections are performed by the Pinellas County Public Health Unit ("PCPHU"). Realadyne filed three (3) individual applications for eligibility for restoration coverage under FPLIRP for the Facility for petroleum discharges reported July 30, 1990, March 10, 1992, and June 22, 1992. The applications were all denied by the Department, for reasons articulated by the Department in individual responses to each application all dated September 3, 1993. Realadyne applied for FPLIRP coverage on or about July 25, 1991. Realadyne obtained FPLIRP coverage for the Facility for the period of October 7, 1991 to October 7, 1992. The July 30, 1990 discharge is not eligible for restoration coverage since it occurred outside the FPLIRP coverage period (prior to October 7, 1991). The parties have reviewed the grounds for FPLIRP restoration coverage ineligibility. The parties stipulate and agree that the sole remaining basis for a determination of ineligibility is the following: Failure to upgrade petroleum storage system in accordance to the schedule required by Section 17-761.510(6), F.A.C. The parties also stipulate and agree that if either discharge from the Facility shall be determined eligible for FPLIRP restoration coverage, then the Facility shall be eligible for reimbursement under the restoration program. Under the aforementioned regulations, the petroleum storage system at the Facility was required to be retrofitted on or before December 31, 1989. On July 13, 1990, a PCPHU Inspector (Arthur Caden) performed a compliance inspection at the Facility. A Pollutant Storage Tank System Inspection Report Form was prepared by the Inspector and a copy of the report was provided to Ms. Martin. On July 19, 1990, Ms. Martin had a phone conversation with Moghadam regarding the Facility. As noted, Moghadam's job duties included review of alternative procedure requests under Rule 17-761.850, Florida Administrative Code. As a result of the phone conversation, Martin sent correspondence to John Svec, an employee with the Department's Bureau of Waste Cleanup. The referenced letter requested the Department to grant an "alternate technical proceedings to be able to apply for FDER/FPLIRP" (the "Proceeding"). The July 19, 1990 letter signed by Martin provided in part: The above facility has not been in compliance for over a year, due to company not being able to afford or support a loan for the removal of and replacement of the tanks. By correspondence dated July 25, 1990, the PCPHU directed Petitioner to file a Discharge Notification Form (DNF) concerning a potential discharge of petroleum product. On August 1, 1990, Ms. Martin met with the PCPHU inspector concerning the results of the compliance inspection conducted on July 13, 1990. At that time, PCPHU informed Ms. Martin that "she had to . . . line/replace the old tanks which are unknown as to date of installation." On August 1, 1990, Petitioner filed a DNF with the PCHPU concerning a potential discharge of petroleum product. On or about September 12, 1990, the PCHPU sent Petitioner a Warning Letter concerning the issue of whether Petitioner intended to reline or replace the underground storage tanks. On September 25, 1990, Petitioner provided PCPHU with a copy of a contract proposal for removal and replacement of the underground storage tanks. The contract proposal was from Adams Tank and Lift dated September 4, 1990. Attached to the proposal was a "SNAP-A-GRAM" signed by Ms. Martin which provides in part: Regarding the above facility please be advised that I should be able to give you a date as to when the work will be started the first week of October. I am enclosing a copy of a proposal from Adams Tank and Lift of work to be done at this location. The work contemplated under the proposal from Adams Tank was never performed. On June 5, 1991, a PCPHU Inspector (Joyce Welch) performed a compliance inspection at the facility. A Pollutant Storage Tank Inspection Report Form was prepared by the Inspector and a copy of the report was provided to Ms. Martin. On or about July 8, 1991, the PCPHU sent Petitioner a Warning Notice concerning the DNF that Petitioner filed on July 30, 1990. On July 8, 1991, PCPHU sent Petitioner another warning letter concerning the DNF which Petitioner filed on August 1, 1990. The warning letter provided in part: On August 1, 1990, this agency received a discharge notification form with a discovery date of June 1990. The discovery was based upon the manual sampling of a monitor well. A routine compliance inspection on July 13, 1990 verified the presence of free product in well number 3. Said free products present in the groundwater confirms your site has excessively contaminated as defined in . . . Chapter 17-770. You are instructed to initiate a contamination assessment report (CAR) in accordance with . . . Chapter 17-770 within thirty days of receipt of this letter to determine the extent of contamination. On or about July 19, 1991, Ms. Martin had a phone conversation with Mr. Moghadam. The July 19 letter, which was received by the Department on or around July 22, 1991, requested that the Department grant "alternate technical proceedings to be able to apply for FDER/FPLIRP." (the "Proceeding") Petitioner requested the Proceeding in an effort to bring the Facility into compliance with applicable underground storage tank regulations. After filing the Proceeding, Petitioner applied for FPLIRP coverage on July 25, 1991. The Department never responded, in writing, to the request for the "Proceeding". On February 11, 1992, PCPHU performed another compliance inspection at the facility. On February 17, 1992, PCPHU sent Petitioner a Final Non- Compliance letter concerning the results of the inspection conducted on February 11, 1992. The above-referenced PCPHU noncompliance letter provides in part: Storage tanks do not meet storage tank standards. Please upgrade tanks to meet applicable storage tank standards. On March 10, 1992, Petitioner filed a second DNF for the Facility, based upon evidence of a discharge discovered while inspecting and repairing a portion of the storage tank system. On June 22, 1992, Petitioner began closure activities with regard to removal of the underground petroleum system. On that date, Petitioner filed a third DNF based on evidence of a discharge discovered during its closure activities. On June 23, 1992, Petitioner concluded closure activities with regard to removal of the underground petroleum storage system. Petitioner was not required to obtain the Department's approval of an alternate procedure as a condition precedent to the removal of the underground storage tanks. Removal of the tanks would have brought Petitioner into compliance with the requirements of Rule 17-761, Florida Administrative Code. On or about September 12, 1992, after the tanks were removed, PCPHU sent Petitioner a warning letter concerning the issue of whether Petitioner intended to reline or replace the underground storage tanks. The warning letter provided in part: . . . Chapter 17-61.061(1)(b)2, requires all tanks to be lined or replaced before certain dates. In the case of your facility, since the installation date is unknown, you are required to have the tanks relined or replaced by December 31, 1989. You were previously advised of this violation during an inspection by one of our staff, Arthur L. Caden, on July 13, 1990, and by letter dated July 25, 1990. You requested and obtained a meeting with our staff on August 1, 1990 at which time you were directed to submit a discharge notification form (DNF), and to advise this office whether you would reline or replace the tanks. The DNF had been filed, but staff has not been formally advised of your decision regarding the tanks. Therefore, since you have not responded formally to this office, we have no alternative than to advise you that we will proceed with an appropriate enforcement action if you ignore this letter of warning. Please be advised that the subject tanks shall be relined or replaced no later than November 30, 1992. Petitioner's request for the "proceeding" seeks an after-the-fact "exception" to the retrofit requirements of Rule 17-761.510, Florida Administrative Code. The basis for Petitioner's request for an exception is "financial inability". When Petitioner's request for a "proceeding" was filed, the Department had a policy of not proceeding with the review of any request for an alternative technical procedure if the facility submitting the request was then out of compliance with the retrofitting requirements of Chapter 17-761, Florida Administrative Code. The request for a "proceeding" was not a viable procedure to extend the December 31, 1989 retrofitting deadline even assuming the request otherwise complied with Rule 17-761.850, Florida Administrative Code. Likewise, the Department lacked authority to extend the December 1989 retrofitting deadline. The Department received Petitioner's application for FLIRP coverage on July 29, 1991, approximately three days after the Department received Petitioner's request for the "Proceeding". 1/ On July 26, 1991, Ms. Martin executed a FLIRP affidavit on behalf of Petitioner as part of its application for coverage under FLIRP. The introductory portion of the FLIRP affidavit provides in part: In order to be eligible for the. . . restoration program, a facility owner or operator must sign this affidavit to affirm that the facility is in compliance with the Department's storage tank rules. . . and Chapter 376, Florida Statutes, and that he/she has read and is familiar with these rules and statutes. The attestation portion of Petitioner's FLIRP affidavit, as executed by Ms. Martin, provides in part: The petroleum storage systems, as defined under Chapter 376.301, Florida Statutes, located at the facilities listed on the application, are now in compliance and shall maintain compliance with the applicable provisions of Chapter 376.303, Florida Statutes, and Florida Administrative Code Rule 17-761. . . including, but not limited to, those provisions: * * * (b) The installation, maintenance and repair of new and existing underground petroleum storage system; * * * (e) Notification of sale, abandonment, replacement or upgrading of petroleum storage systems. The attestation portion of Petitioner's FLIRP affidavit, as executed by Martin, also provides in part: I, Realadyne, Inc. have read Chapter 376, Florida Statutes, and Florida Administrative Rule 17-761 and the facility or facilities listed on the attached application meet the requirements for the participa- tion in the Florida Petroleum liability insurance and restoration program as described in Chapter 376.3072, Florida Statutes. In executing the affidavit, Ms. Martin knew, or should have known, that the facility was not in compliance with the Department's applicable storage tank regulations. On December 4, 1991, Petitioner contacted the Department, via telecommunique, concerning its request for the "proceeding" to apply for FDER/FPLIPA. At that time, the Department informed Petitioner that the Department would not proceed with the review of the request of an alternate technical proceeding because the facility was already out of compliance with applicable retrofitting requirements. On that day, Petitioner informed the Department that it could not afford to have the underground storage tanks removed. At that time, the Department requested that Petitioner take the tank out of service, pending a decision by it as to whether the tanks would be removed and/or replaced. Also, the Department requested that Petitioner provide it with an updated storage tanks registration form reflecting that the tanks had been taken from service. Petitioner informed the Department that the underground storage tanks would be taken out of service, pending its decision whether it would remove or replace the tanks. Petitioner also agreed, at that time, to provide the Department with an updated storage tank registration form reflecting that the tanks had, in fact, been removed or taken out of service. The Department requested that the tanks be taken out of service to minimize the potential for a discharge of a petroleum product. If Petitioner had taken the underground tanks out of service as requested (and as agreed), the facility would have been in compliance with the requirements of Rule 17-761.510, Florida Administrative Code. On September 11, 1991, PCPHU sent Petitioner another warning letter concerning its failure to comply with the retrofitting requirement. The above-referenced warning notice provides in part: On July 13, 1990, agency personnel inspected your storage tank facility for compliance with Florida's tank regulations and violations were noted. Then on July 25, 1990, this office sent you a letter requesting that you provide the Division with a written explanation of your failure to comply with F.A.C. Chapter 17-61, and to proceed with certain steps. This agency has received no response from your company. On September 25, 1991, the Department contacted Petitioner, by phone, concerning the request for an alternate technical proceeding. During the course of the conversation, Petitioner indicated that it had scheduled a meeting with PCPHU concerning the removal and/or replacement of the tanks. On September 25, 1991, the Department requested that Petitioner provide it with an updated registration form reflecting that the tanks had been taken out of service. On that date, Petitioner agreed to provide the registration form reflecting that the tanks had been taken out of service. On September 30, 1991, the Department again contacted Petitioner concerning its request for an alternate proceeding. At that time, the Department again requested the updated registration form reflecting the tanks had been taken out of service. On that date, Petitioner telecopied the Department a letter and a copy of a contract proposal from UST Engineering for the relining of the underground storage tanks. The contract was dated June 28, 1991, and was signed by Martin on behalf of Petitioner. Petitioner's letter dated September 30, 1991, to the Department was also signed by Martin. The above-referenced letter provides in part: "UST has assured me they will be able to complete the work before the first of the year." The document submitted by Petitioner to the Department on September 30, 1991, included a copy of a check issued by Petitioner made payable to UST Corrosion Engineering. The work contemplated under the UST contract proposal was never performed. Petitioner did not inform the Department of its decision not to have the work performed. A release of petroleum product occurred prior to removal of the petroleum storage system. Petitioner failed to comply with the retrofitting requirements set forth under Rule 17-761.510, Florida Administrative Code. Petitioner continued to sell petroleum products until mid June, 1992.
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 denying Petitioner's application for restoration coverage under the Florida Petroleum Liability Insurance and Restoration Program. RECOMMENDED in Tallahassee, Leon County, Florida, this 7th day of December, 1994. JAMES E. BRADWELL 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 7th day of December, 1994.
The Issue The issue to be determined in this case is whether CJC Properties, Ltd. (CJC), is eligible for state restoration funding assistance under the Petroleum Contamination Participation Program or the Florida Petroleum Liability and Restoration Insurance Program for one or more discharges of gasoline at DEP Facility No. 378943938 (“the facility”).
Findings Of Fact The Facility CJC is a Florida Limited Partnership. It is the current owner of property located at 5691 U.S. Highway 27 North, in Tallahassee. Prior to CJC’s acquisition of the property, the property was owned by Carolyn J. Chapman, John W. Chapman, Jane Chapman Latina, and Carolyn Chapman Landrum (“the Chapmans”). The property was leased to various entities and operated as a gas station. The tanks and dispensers remained in service until November, 1995. The last operator of the facility was Lake Jackson 76, Inc. There were five underground petroleum storage tanks at the facility. Before 1991, one of the tanks at the facility was used for regular, leaded, gasoline. When leaded gasoline was phased out, the tank was used for unleaded gasoline. Site Assessments and Sampling Data On November 30, 1995, the Chapmans employed Petroleum Contractors, Inc., to remove the five storage tanks. During the tank removal, Environmental and Geotechnical Specialists, Inc. (“EGS”) performed an assessment to determine whether the facility was contaminated with petroleum or petroleum products. The Underground Storage Tank Removal Report prepared by EGS noted that all five tanks appeared to be intact. Soils in the tank pit wall and bottom were not discolored. No significant contamination was observed directly below the tanks. Soil from the tank pit was stockpiled on the site. EGS observed no significant signs of contamination of this soil. The soil stockpile was also screened with a Flame Ionization Detector Organic Vapor Analyzer (OVA). No organic vapors were detected. An OVA detects any organic vapor, but is used as a screening tool to find petroleum vapors. Department rules require that an OVA reading be performed both unfiltered and filtered. The filtered reading screens out everything but methane and is “subtracted” from the unfiltered reading to determine the presence of petroleum vapors. Twenty-four soil samples were taken from various depths at nine locations in the tank pit. These samples were tested using an OVA. Nine of the soil samples, taken from four locations, had corrected OVA readings indicative of petroleum contamination. EGS concluded that “soil contamination detected in the tank pit is likely the result of a leak in the piping” between the dispensers and the tanks. Soil samples were also taken from three borings in the vicinity of the dispenser island and OVA-tested. In boring D-2, organic vapors were detected from the surface to a depth of approximately seven feet. The OVA readings from D-2 declined with depth. EGS reported that “some contamination was detected beneath a dispenser; however, it does not ‘appear’ to significantly extend below six (6) feet.” EGS did not report both filtered and unfiltered OVA readings for the soil samples taken from the dispenser area, as it had done for soil samples taken from the tank pit and the stockpile. For the dispenser area soil samples, EGS reported a single OVA reading for each sample, without indicating whether the reading was “corrected” after filtering. For this reason, the Department contends that these data are unreliable. CJC points out that EGS stated in the text of its report that the soil samples were filtered. CJC also argues that, because the filtered OVA readings for soil samples taken from the tank pit area were not different from their unfiltered readings, the OVA readings for the soil samples from the dispenser area would not have changed after filtering. The preponderance of the evidence is that the contamination in the dispenser area was petroleum. Based on EGS’ findings during the tank removal in November 1995, Petroleum Contractors, Inc., filed a Discharge Reporting Form on December 1, 1995, stating that there had been a discharge of unleaded gasoline at the facility. In January 1996, the Chapmans applied to participate in FPLRIP based on the discharge reported on December 1, 1995. By order dated January 26, 1996, the Department determined that the reported discharge was eligible for state-funded remediation assistance under FPLRIP. In 1997, another consultant, Levine Fricke Recon (LFR) conducted a site assessment at the facility and submitted its Interim Site Assessment Report to the Department. As part of its own soil sampling at the site, LFR collected a “direct push” soil boring in the dispenser island area, near the place where EGS had reported organic vapors. The boring data showed no petroleum vapors until the interval 16-to-20 feet below ground surface. LFR also collected and analyzed groundwater samples from the site. It reported that a sample taken from beneath the former diesel dispenser contained lead. Because lead occurs naturally in soils, its presence in a water sample does not confirm that a discharge of leaded gasoline occurred. In 1998, LFR conducted a second assessment of the facility site. It installed and sampled four shallow monitoring wells, designated MW-1S through MW-4S, and three deep monitoring wells, designated MW-2D through MW-4D. Groundwater samples from MW-3S and MW-3D were analyzed for lead, ethylene dibromide (EDB), and 1,2-Dichloroethane. All three substances are usually detected in a groundwater sample contaminated with leaded gasoline. On August 28, 1998, LFR submitted its Interim Site Assessment II to the Department, which shows lead and EDB were found in a sample taken from MW-3S, but not 1,2-Dichloroethane. LFR did not conclude or express a suspicion in either of its two assessment reports that leaded gasoline had been discharged at the facility. The deadline for submitting a Discharge Reporting Form or written report of contamination was December 31, 1998. A site assessment report received by the Department before January 1, 1999, which contained evidence of a petroleum discharge, was accepted by the Department as a “report of contamination.” The petroleum discharge information received by the Department before January 1, 1999, consisted of the Underground Storage Tank Removal Report, the FPLRIP claim, the Interim Site Assessment Report, and the Interim Site Assessment Report II. Post Deadline Site Assessment Data After the statutory deadline, LFR submitted its Interim Site Assessment III. This report includes January 1999 groundwater sampling data from four monitoring wells which show the presence of low levels of EDB. When EDB is found in a groundwater sample, it is a common practice to re-sample the well from which the sample was taken. Of the wells that showed the presence of EDB, only MW- 10D was re-sampled, after January 1, 1999. There was no EDB present in the groundwater when MS-10D was re-sampled. In June 2000, as part of the remediation of the contamination at the facility, an area of contaminated soil was removed to a depth of 14 feet. The area of soil removed included the former dispenser area. In January 2003, the Department notified CJC that the $300,000 FPLRIP funding cap would soon be reached. In March 2003, CJC signed a Funding Cap Transition Agreement, acknowledging that “At no time will the DEP be obligated to pay for cleanup of this discharge any amount that exceeds the funding cap.” CJC further acknowledged that it “is responsible for completing the remediation of the discharge in accordance with Chapter 62-770, F.A.C.” In 2005, CJC re-sampled one of the monitoring wells for lead and EDB. Neither substance was present. The site is not currently being actively remediated. Periodic groundwater sampling indicates that concentrations of contaminants are dropping. No further active remediation has been proposed. The cost to complete remediation is a matter of speculation. The record evidence is insufficient to make a finding about future remediation costs. Eligibility Determinations On September 2, 2003, CJC submitted a PCPP Affidavit to the Department, seeking state funding under PCPP. On October 30, 2003, the Department denied CJC eligibility for PCPP funding on the basis that the contamination was covered under FPLRIP and, therefore, was excluded from funding under PCPP. The Department has never granted PCPP eligibility for the cleanup of a discharge previously being funded under FPLRIP. Apparently, in 2005, CJC hired Glenn R. MacGraw, an expert in the assessment of petroleum-contaminated sites, to review the EGS and LFR assessments. In a letter to CJC’s attorney dated August 19, 2005, MacGraw expressed the opinion that “at least 2 discharges have occurred on this site, one in the former tank area, and one in the former dispenser area.” MacGraw’s opinion that there had been a discharge of leaded gasoline was based on the detection of EDB and lead in the groundwater. He also thought the presence of methyl tetra-butyl ether (MTBE) in groundwater samples taken from the tank pit area showed a tank leak of unleaded gasoline. CJC requested FPLRIP funding for the other alleged discharges at the facility. On March 23, 2006, the Department issued a letter formally stating its disagreement that there were other reported discharges and denying eligibility for FPLRIP funding. On March 30, 2006, the Department issued an Amended Order of Ineligibility under PCPP. The amended order added a second ground for denial, that the reported discharge was not shown to have occurred before January 1, 1995. Whether There Was A Second Discharge Eligible for Funding CJC argues that the presence of lead and EDB in the groundwater sample taken from MW-3S shows that there was a discharge of leaded gasoline at the facility. However, LFR reported that the well screen for MW-3S had probably been damaged during installation, because a significant amount of filter sand was observed in the purge water. The Department contends, therefore, that the source of the lead detected in the groundwater sample from MW-3S could have been (naturally) in the soil that entered the well. The Department also discounts the detection of EDB in the groundwater sample because EDB is an ingredient of some pesticides and can show up in groundwater when pesticide has been applied to the overlying land. Furthermore, EDB was not detected in the groundwater sample taken from MW-3D, a deeper well located near MW-3S. MacGraw does not think the EDB came from a pesticide application, because the EDB contamination at the site occurs in an elongated “plume,” in the former dispenser area, whereas one would expect to see EDB distributed evenly over the site if the source was a pesticide application. MacGraw mapped the plume of EDB by using data obtained after the discharge reporting deadline. Michael J. Bland, a Department employee and expert in geology and petroleum site assessment, believes the data from the facility are insufficient to confirm the presence of EDB or its distribution. LFR reported in its Interim Site Assessment that no significant soil contamination was found near the dispenser island. Groundwater samples from MW-3D, a deep monitoring well near MW-S3, showed no EDB, lead, or 1,2-dichlorothane. Bland opined that, if the detection of EDB in the shallow well was reliable, EDB would have been detected in the deep well, too, because EDB is a “sinker.” EDB is persistent in groundwater, so when it is not detected when a well is re-sampled, reasonable doubt arises about the detection in the first sample. Of all the wells sampled in 1999 that showed EDB, only MW-10D was re-sampled in 2003. When the well was re-sampled, there was no EDB. CJC contends that EDB was not found in the re-sampling of MW-10D because of the soil removal in 2000, but the Department contends that the soil removal would not have affected the presence of EDB in MW-10D, because the well is significantly down-gradient of the area of soil removal. It was undisputed that the presence of 1,2- dichoroethane in MW-S3 was not reliably determined. There is insufficient evidence in the record to establish that the contamination reported in the dispenser area is the source of contamination which persists at the facility. The reported contamination only affected the top six feet of soil. The soil removal to a depth of 14 feet in that area in 2000 should have fully remediated the reported contamination. The data upon which CJC relies in claiming eligibility under FPLRIP or PCPP for a second discharge are, at best, incomplete and ambiguous. CJC failed to prove by a preponderance of the evidence that a discharge of leaded gasoline occurred. CJC also failed to prove that the reported contamination in the dispenser is associated with a discharge that still exists to be remediated with state assistance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order determining that CJC is ineligible to participate in the Petroleum Cleanup Participation Program for the discharge reported to the Department on December 1, 1995, and that CJC has not demonstrated eligibility to participate in the Petroleum Cleanup Participation Program or the Florida Petroleum Liability and Restoration Program for any other discharges. DONE AND ENTERED this 9th day of July, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 July, 2008.
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 issue in this case is whether Respondent created a sanitary nuisance by installing drainfield pipes too far apart in a septic tank drainfield and failing to seal the lid to a septic tank, failing to call for a required inspection before covering an onsite sewage disposal system, and engaging in gross misconduct by assaulting two of Petitioner's employees.
Findings Of Fact Respondent is registered with Petitioner as a septic tank contractor and authorized to provide septic tank contracting services. On May 4, 1994, pursuant to a previously issued permit, Respondent completed the installation of a new drainfield at 204 West DelMonte Avenue in Clewiston. He asked Petitioner's office for an inspection for approval to cover the system. Jim Rashley, an environmental specialist employed by Petitioner, inspected the system on the morning of May 4. No one was at the site during the inspection. Mr. Rashley discovered a violation concerning the type of header pipe. He also discovered that the drain lines were more than 36 inches apart and 18 inches from the side of the field. Mr. Rashley determined that the drainfield pipes were three feet and four inches apart. Examining the septic tank itself, which Respondent had pumped, Mr. Rashley found that the lid had not been properly resealed, which would allow rain or dirt to enter the tank or effluent to escape from the tank if the drainfield failed. Returning to his office, Mr. Rashley informed his supervisor, Steve Havig, that he was failing the system and called Respondent and told him the same thing. Respondent asked Mr. Rashley to come out to the site so they could both examine the system, and Mr. Rashley agreed. When they met at the site, Respondent asked Mr. Rashley to point out the three violations, which he did. Respondent's response was to tell him that he was sick and tired of college kids telling him how to install septic tank systems. Mr. Rashley said that he could not ignore violations of the rules. After Respondent became more upset, he moved to within inches of Mr. Rashley's face and asked him if he would approve the system. Mr. Rashley answered he would if Respondent fixed the violations. While Respondent yelled at Mr. Rashley only a few inches from his face, Mr. Rashley, feeling very uncomfortable, retreated to his vehicle and started to drive back to his office. Respondent got into his vehicle and tailgated Mr. Rashley the entire way. When they arrived at Mr. Rashley's office, Respondent told the secretary to call Mr. Rashley's boss. Claiming that Mr. Rashley had unfairly disapproved the system, Respondent asked Mr. Havig to visit the site himself. Mr. Havig agreed to do so. Mr. Havig visited the site on the morning of May 5 outside the presence of Respondent. He confirmed the violations. At their closest point, the drain lines were three feet four inches apart, and the septic tank lid was not sealed. Mr. Havig left a message for Respondent with this information. At Respondent's request, Mr. Havig agreed to meet Respondent at the site at 1:30 pm. Returning from lunch with two other men, Mr. Havig stopped off at the site to meet Respondent. He found that the header pipe violation had been corrected, but the other violations had not been. Mr. Havig and Respondent talked about the separation of the drain lines. Respondent said he could not move the pipe without disturbing the elevation, which is crucial to the functioning of the drainfield. Mr. Havig said he could either move the pipe or add another line so as to reduce the maximum separation between lateral lines to below 36 inches. Respondent complained that he could not maintain the position of the flexible pipe when pouring gravel over the pipes. Respondent became angry. He grabbed a section of the plastic pipe and said that he would show Mr. Havig. The gravel fell in behind the place where the pipe had rested. Respondent declared that he would get the homeowner's approval to cover up the system rather than modify it. Mr. Havig went to his car to get a camera, and Respondent began using a lot of vulgarity. As Mr. Havig took pictures of the installation, Respondent became angrier. His face turned red and he accused Mr. Rashley and Mr. Havig of harassing him. He warned Mr. Havig that, if they did not stop, they would have to suffer the repercussions. Moving very close to Mr. Havig and pounding his fist into his hand, Respondent asked Mr. Havig if he knew what Respondent meant. Mr. Havig said yes, that it was time for him to go. Respondent covered the system up shortly after Mr. Havig departed. Respondent did not allow a reinspection of the system to determine if he corrected either the separation of the drain lines, which he admits he did not correct, or if he sealed the septic tank lid, which he claims he did correct. Respondent has worked as a septic tank contractor in the area for 18 years. The likelihood of system failure is high if a septic tank lid is not properly sealed before the system is covered and placed into operation. Respondent appears to have been a responsible contractor. Based on these facts, there is enough doubt on the lid-sealing issue to preclude finding that Petitioner proved by clear and convincing evidence that Respondent did not seal the lid before covering the system. The pipes constituting the drain lines are manufactured to allow 18 inches of effluent to escape from either side of the pipe. By installing lines with more than 36 inches between each other or 18 inches between a line and a side, Respondent reduced the efficiency of the drainfield because parts of the drainfield, which lies beneath the lines, will not receive as much effluent as other parts of the drainfield. For awhile, due to safety concerns, Petitioner had to send two inspectors to inspect Respondent's work sites. Respondent never apologized to either Mr. Rashley or Mr. Havig until, acknowledging his unprofessional behavior, he apologized during the hearing. Respondent also noted that Petitioner has dealt with him professionally since the incidents in question. Petitioner and Respondent have had troubled dealings in the past. On one occasion, Petitioner insisted on the placement of a drainfield adjacent to an existing, failed drainfield, even though the existing and proposed drainfields drained directly into a canal. Respondent wanted to locate the drainfield well away from the canal. Unable to secure approval locally, Respondent took an appeal to Petitioner's representatives in Tallahassee, who approved Respondent's original, more sensible plan to relocate the drainfield. On the other hand, Respondent violated the minimum- separation rule for drain lines in 1993. Petitioner fined Respondent for the violation.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Rule 10D-6.056(4)(b) and thus 10D- 6.075(2)(a) by installing a drainfield with excessive separation between drain lines, Rule 10D-6.075(4)(d) by failing to call for a required inspection, and Rule 10D-6.075(4)(l)1 by engaging in gross misconduct in his behavior toward two of Petitioner's employees. It is further recommended that the final order impose an administrative fine against Respondent in the amount of $500. ENTERED on July 14, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Floirda 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 14, 1995. APPENDIX Rulings on Petitioner's Proposed Findings All adopted or adopted in substance except that Respondent failed to seal the septic tank lid, which is rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Susan Mastin Scott Senior Health Attorney Department of Health and Rehabilitative Services P.O. Box 60085 Ft. Myers, FL 33906 Attorney Melanie A. McGahee 333 S. Commercio, Suite B Clewiston, FL 33440 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Martha Valiant, M. D. Director, Hendry County Public Health Unit P.O. Box 70 LaBelle, FL 33935
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 Petitioner's application for a septic tank permit application should be granted?
Findings Of Fact On July 29, 1987, Petitioner applied for a septic tank permit for a proposed individual sewage disposal system to serve a single family residence on Lot 40, Block P, Killearn Lakes Unit I (Unit 1), in Leon County, Florida. A septic tank system consists of a tank and a drainfield which is wholly or partly underground. The decision of whether to grant a septic tank system permit is greatly influenced by the elevation of the wet season water table in the area where the septic tank system will be located. Under normal circumstances, the elevation of the wet season water table can be determined by taking a boring of the ground in question using an auger. If water is found at the time the boring is conducted, that is an indication of where the water table is located. If no water is found, the elevation of the wet season water table can be determined by examining the soil removed from the ground for signs of mottling. Mottling is the discoloration of the soil caused by the interaction of water with the minerals in the soil. The process of mottling takes place over hundreds of years. Therefore, a rapid change in conditions may cause the elevation of the wet season water table to be different than what would be indicated by mottling. Because of the development of Unit I and the drainage method used in Unit I (sheetflow), the elevation of the wet season water table in Unit I is estimated to be between 12 and 20 inches higher than what is indicated by mottling. On July 7, 1987, a boring was taken on an indeterminate area on Lot 40, by Certified Testing, Inc., a private engineering firm. The evaluation of the boring resulted in mottling being present at a depth of 60 inches. On August 3, 1987, Ms. Teresa A. Hegg, an Environmental Health Specialist with HRS, took two borings on Lot 40. The first boring was taken in an area other than where the septic tank system's drainfield would be located. This boring resulted in mottling being present at a depth of 45 inches. The second boring was taken in the area where the septic tank system's drainfield would be located. This boring resulted in mottling being present at a depth of 22 inches. Based on the boring taken at the proposed site for the septic tank system, showing mottling at 22 inches, and the estimate that the wet season water table in Unit I is from 12 to 20 inches higher than mottling would indicate, the estimated wet season water table for Lot 40 is between 2 to 10 inches below the ground surface. Unit I has a history of septic tank system failures. Unit I was platted prior to January 1, 1972. There exists a very high probability that any septic tank system, even a mound system, installed in Lot P-40 will fail.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order denying Petitioner's application for a septic tank permit. DONE and ENTERED this 28th day of July, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4085 The Respondent has submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection First phrase accepted. Remainder of paragraph supported by competent evidence but unnecessary to the decision reached. First two sentences accepted. Third sentence supported by competent evidence but unnecessary to the decision reached. Accepted. Accepted. 5,6,7,8,9,10 Supported by competent evidence but unnecessary to the decision reached. Accepted. Accepted. 13,14 Supported by competent evidence but unnecessary to the decision reached. 15. First sentence accepted. Second sentence rejected; the wet season water table on Lot P-40 is from 2-10 inches below grade. Third sentence accepted. COPIES FURNISHED: Salvatore A. Carpino, Jr., Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 John R. Perry, Esquire Assistant District II Legal Counsel Department of Health and Rehabilitative Services 2639 North Monore Street Suite 200-A Tallahassee, Florida 32303 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
