Findings Of Fact At all material times, Respondent has been the certified operator in charge of the pest control activities at American Pest Control, Inc. On September 11, 1989, Respondent conducted an inspection for wood- destroying organisms incidental to the purchase of a residence located at 2 Wisteria Drive, Ormond Beach, by Mr. Orren Nye. The residential lot contains two structures: the primary residence and a detached garage. Respondent detected no problems in the house. However, in the garage, Respondent discovered that work had recently been done on the roof. He observed sawdust on the floor in the northwest corner of the garage. On closer examination, Respondent found that a portion of some of the roof rafters had been cut off and new rafters scabbed together with the old. Respondent noticed that some dry rot remained in the old wood at the joint with the new wood. Because the area was not moist and he did not see how further repairs could be undertaken, Respondent decided not to mention the dry rot in his inspection report. Dry rot is a condition caused by the work of fungi, which are wood- decaying organisms. The fungi are active when the wood is wet. After the fungi are no longer active, they typically leave the wood in a dry, weakened condition. It is from this condition that the term, dry rot, is derived. There was no evidence of active fungi in the visible and accessible portions of the garage, which were dry at the time of Respondent's inspection. There was no evidence of any active termite infestation visible and accessible in the garage. The presence of sawdust was did not conclusively indicate the presence of termites in view of such other factors as the absence of any termite pellets. Following his inspection, Respondent prepared a standard wood- destroying organisms inspection report on a form prepared by Petitioner. The report identifies Mr. Nye's residence. The report lists only the "residence" as the "specific structure inspected." However, under "structures on property NOT inspected," the report states, "none." The inspection report describes the scope of the inspection for wood- destroying organisms as including termitesand wood-decaying fungi. The report is expressly limited to "what was visible and accessible at the time of the inspection." The material findings of the report indicate no visible evidence of wood-destroying organisms observed, no live wood-destroying organisms observed, no "visible damage observed," and no "visible evidence of previous treatment . . . observed." On September 20, 1990, Petitioner's entomological investigator visited the Nye residence in response to a complaint received from Mr. Nye. The investigator found active wood-decaying fungi in the areas of the garaged previously inspected by Respondent, including those areas where Respondent had seen dry rot where new and old wood had been joined. The investigator also found considerable evidence of an active termite infestation. The primary problem noted by Petitioner's investigator was the wood- decaying fungi. The evidence was not clear and convincing that any evidence of termite infestation was visible and accessible when Respondent conducted his inspection about one year earlier. The evidence is stronger that any evidence of wood-decaying fungi was visible and accessible at the time of Respondent's inspection. However, in the intervening year, the garage roof had been leaking for at least five months. On balance, Petitioner has failed to prove by clear and convincing evidence that Respondent overlooked visible and accessible evidence of active wood-decaying fungi. However, by Respondent's own admission, he saw visible damage that he failed to report. The dry rot remaining after the roof repairs clearly constituted damage from the work of wood-destroying organisms, which Respondent was required to report regardless of the absence of evidence of the presence of any active fungi or Respondent's estimation of the lack of need of further repairs. It is impossible to dismiss this omission as immaterial in view of the later problems that arose in the same area of the garage roof. This failure constitutes negligence in the performance of pest control and a deviation from good industry practice and standards in connection with inspections. Petitioner seeks to impose an administrative fine of $500 for the violations alleged in the Administrative Complaint.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order imposing an administrative fine against Respondent in the amount of $500. ENTERED this 5th day of April, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1991. APPENDIX TO RECOMMENDED ORDER Treatment Accorded Proposed Findings of Petitioner 1: adopted except for second-to-last sentence, which is rejected as unsupported by clear and convincing evidence. 2: adopted. 3: rejected as hearsay, subordinate, and recitation of evidence. 4: adopted. 5: rejected as subordinate and recitation of evidence except that last sentence is adopted. 6: adopted only as to damage from wood-decaying fungi, not as to the presence of active wood-decaying fungi. 7-8: rejected as recitation of evidence. 9: rejected as unsupported by clear and convincing evidence. Respondent testified to the presence of dry rot. The fungi are active when the area is wet. Because the area was dry, the condition that Respondent observed and failed to report was damage, not active infestation of fungi. 10: rejected as evidence excluded at the hearing. Treatment Accorded Respondent's Proposed Findings 1: adopted except that the inspection report deviated from his observations and the requirements of law as to the indication that Respondent observed no visible damage from wood-destroying organisms. 2: adopted. 3: rejected as subordinate. 4: first sentence adopted. Remainder rejected as subordinate and recitation of evidence except for last sentence. The last sentence is rejected because Petitioner proved by clear and convincing evidence--namely the testimony of Respondent--that he detected dry rot during his inspection and did not report it. Dry rot is damage from a wood-destroying organism. The damage was visible and accessible because Respondent admitted that he saw it. 5-6: rejected as subordinate and irrelevant. 7-8: rejected because Petitioner proved by clear and convincing evidence that the damage from fungi was seen by Respondent during his investigation. COPIES FURNISHED: Ana Sonia Nieves Environmental Health Attorney Department of Health and Rehabilitative Services 400 W. Robinson St., Suite S-827 Orlando, FL 32801 Donald A. Myers, Jr. Lowndes, Drosdick, et al. P.O. Box 2809 Orlando, FL 32802-2809 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact On April 10, 1980, Randy Herring, a Petroleum Inspector for the Department of Agriculture and Consumer Services (hereafter "Department") took a gasoline sample from an unleaded pump identified as Ben 7011 at the Bay Station, SR 329 and I-75, Micanopy, Florida. This sample was taken to the mobile lab in Lake City, Florida, for analysis where it was tested by Mr. Pat Flanagan, Graduate Chemist, and found to be contaminated with diesel or kerosene fuel. The Department issued a stop sale notice on April 21, 1980, in that the unleaded sample tested contained diesel or kerosene fuel which exceeded the distillation range temperatures at 50 percent and 90 percent evaporated temperature as established by the American Society of Testing and Materials (hereafter "ASTM") and adopted by the Department as Rule 5F-2.01, Florida Administrative Code. Specifically, the product was tested at 322 percent F at 50 percent (maximum allowable 240 percent F) and 536 percent at 90 percent (maximum allowable 365 percent F). The end point exceeded the 437 percent limit by testing at 580 percent F+. Mr. Flanagan forwarded the sample to Mr. John Whitton, Bureau Chief of Petroleum Inspection in order to confirm his initial testing. Mr. Whitton also found the unleaded gasoline to be illegal under ASTM standards. The end point temperature exceeded 580 percent F in both tests which indicated the product was grossly contaminated. The Petitioner was permitted to post a $1,000 bond in lieu of confiscation in order to secure the release of the remaining 3,548 gallons of illegal unleaded gasoline for use in private equipment. Dixie Oil has no knowledge as to how the unleaded gasoline was contaminated. As a preventative measure, the company purchased a test kit in 1974 to enable its employees to randomly sample gasoline. Its own sampling indicates that the gasoline previously sold at the station has met standards. This is the first such incident at this station and Dixie Oil has taken steps to attempt to ensure that it will not be repeated. The Petitioner has not challenged the authority of the Department to require the posting of a $1,000 bond in lieu of confiscation.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order denying Respondent's request for the return of its $1,000 bond which was required to be posted in lieu of confiscation of 3,548 gallons of contaminated unleaded gasoline. DONE and ORDERED this 9th day of March, 1981, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1981. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301 Mr. Reheudean Denby, Vice President Dixie Oil Company of Fla, Inc. Post Office Box 1007 Tifton, Georgia
Findings Of Fact Respondent Charles T. Noegel operates Seminole-Gator Exterminator, Tallahassee, Florida. Inspection reports made by Respondent with respect to the residences of the four owners named in the Administrative Complaint show that he held business license number 519 and ID Card No. 7750, issued by the Petitioner, at the time of the four inspections. (Petitioner's Exhibits 1-3, 5-8). On August 13, 1981, Respondent inspected the property of Gene Gandy, 2504 Hartsfield, Tallahassee, Florida, and issued a "wood-destroying organism inspection report," HRS Form 1145. He also entered into a termite control contract and warranty guarantee with Mr. Gandy on the same date, which included protection against powder-post beetles. Respondent's inspection report apparently was made in connection with the sale of the house to Mr. Gandy. Respondent's report reflected that active infestation and visible damage by powder-post bettles had been observed under the house. Gandy then authorized Respondent to treat the house for the control of powder-post beetles, and Respondent proceeded to provide such treatment. (Testimony of Respondent, Petitioner's Exhibit 6). On September 10, 1981, Mr. Gandy filed a written request with Petitioner's Office of Entomology to inspect his property because he had found evidence of powder-post beetle damage inside the house and in the garage. Pursuant to the request, William E. Page, entomologist-inspector for Petitioner, inspected the Gandy property on September 18, 1981, and rendered a report of his investigation on October 12, 1981. He found that there was active powder-post beetle infestation in the wall studs of a bedroom and in the walls of the garage, old beetle and termite damage under the house, and in the wall studs of another bedroom, and water and fungus damage in kitchen and bathroom walls. Respondent conceded at the hearing that he had re-treated the house for powder-post beetles after being informed of Page's inspection and had had no further complaints from Mr. Gandy since that time. (Testimony of Page, Respondent, Petitioner's Exhibit 6) Prior to purchasing a home at 1937 Sageway Drive, Tallahassee, Florida, Dennis G. Fagen observed some "wrinkled" wood on the wall of the spa room. He requested the real estate salesman to arrange for a termite inspection. Respondent performed an inspection of the property on June 24, 1982, and rendered a negative report as to the presence of wood destroying organisms. The inspection occurred on the date that the Fagens closed the transaction for the purchase of the property. Mrs. Fagen accompanied Respondent during part of his "walk through" of the premises. During the course of his inspection, Respondent noted that the wood in the spa room was suspicious, and, in fact, poked his finger through the pine wood on the wall. Although the evidence is conflicting as to whether Mrs. Fagen was present in the room at that time, it is apparent that both the Fagens and Respondents were aware of the potential problem prior to the completed purchase of the home. The Fagens were of the opinion that it probably consisted of wood rot, and relied on Respondent's negative report as to the presence of wood destroying organisms. About a year later, after the suspicious area had increased in size, Mr. Fagen pulled a board off the wall and discovered that there was active termite infestation. Mr. Fagen contacted Respondent concerning the problem, but he declined to take any remedial action because the Fagens had been aware of the potential damage and Respondent had pointed out the area to the real estate salesman at the time of his inspection. Respondent is of the belief that he was not required to reflect the damaged area on his inspection report because it was damage that had occurred prior to his inspection which he was not required to report on the inspection form, and which would have necessitated removing finished wood to make a determination of the presence of wood-destroying organisms beyond the scope of his inspection, as provided for on HRS form 1145. Mr. Fagen thereafter filed a complaint with Petitioner's Entomology Office and requested a state inspection. William E. Page, the State Entomologist-Inspector investigated the complaint on July 8, 1983, and filed a report reflecting his findings that active infestation of subterranean termites and wood rot were present in the walls and ceiling of the spa room. This finding was confirmed by his observation of termite tubes on the exterior wall of the room, and it was his opinion that termites had been active for several years in that location. Mr. Page's findings were confirmed by a further inspection made on July 14, 1983, by another local pest control firm. Mr. Page was of the opinion that there was obvious damage in the room which should have been listed by Respondent on his inspection report. This opinion is deemed credible. By letter of September 1, 1983, Respondent wrote the Fagens and reiterated his belief that he was not responsible in any respect with regard to the termite damage. (Testimony of D. Fagen, B. Fagen, Page, Respondent, Petitioner's Exhibits 3-4, 7, Respondent's Exhibit 1) On April 12, 1982, Respondent performed a wood destroying organism inspection at 1409 Pichard Drive, Tallahassee, Florida, prior to its purchase by John E. Ellis. His inspection report was rendered on the same date on HRS Form 1145 and was negative as to the presence of any damage or infestation. Mr. Ellis was particularly concerned about this aspect of the house since he had previously cancelled a contract in another state for the purchase of a home when an inspection revealed the presence of termites. Consequently, he had insisted on a clause in his present sales contract which permitted him to void the same if a termite problem existed. Mr. Ellis closed the house purchase in May 1982, lived there a month, and after a trip to North Carolina, came back to the dwelling on July 4. At this time, he found that he had a flea problem in the house and accordingly, called a local pest control firm, Florida Pest Control, to spray for fleas and treat the property for termite control. That firm performed the treatment on July 6 and apparently did not find any problems. On July 7, Mr. Ellis observed what looked to be dry rot at the base of four wooden posts on his front deck. It also appeared that Florida Pest Control had dug around each post slightly to treat the ground. Mr. Ellis then traveled again to North Carolina and returned on September 30. Two days later he examined the posts again and noticed that a piece of wood on one corner of a deck post had fallen off. He called the Florida Pest Control who found that the deck posts were damaged as high as four inches above the deck. Mr. Ellis, one of that firm's representatives, told him that although one post showed termite damage, the treatment in July must have killed the termites since there was none existing at that time. He also indicated that the damage to the other posts was either water damage or dry rot. Mr. Ellis contacted Respondent concerning the problem, but he declined to do anything about it because he considered that the damage was not visible or accessible, and therefore outside the scope of his inspection as provided on HRS Form 1145. Mr. Ellis thereupon filed a written complaint with Petitioner's Office of Entomology and requested a state inspection. William E. Page, the State Entomologist Inspector, investigated the complaint on October 15, 1982, and his report of inspection indicated that there was evidence of termite damage in one post of the front deck and rot damage at the base of all the posts. In the opinion of Mr. Page, a normal inspection should have found signs of termite damage to the posts underground and that the damage had been progressing for at least a period of one year. He was further of the opinion that it would have been necessary to remove the dirt from the first two or three inches below the ground surface in order to find the damage and that such an area would be "accessible." He found damage to the posts at least eight inches above the ground, although he acknowledged that part of the damage could have been done after Respondent had made his inspection. Mr. Ellis later sued Respondent in civil court and recovered a judgment which was subsequently satisfied. Repair damages to the posts were approximately $585. (Testimony of Ellis, Page, Respondent, Petitioner's Exhibit 5, 8) Respondent conducted a wood-destroying organism inspection of the property located at 711 Piedmont Drive, Tallahassee, Florida, on May 5, 1983 incident to the subsequent purchase of the property by Mr. David Jones on June 1, 1983. Respondent's inspection report on HRS Form 1145 was negative in all respects except that it was noted that the property showed evidence of previous treatment. Mr. Jones talked to Respondent prior to closing of the transaction and Respondent assured him that everything was all right with the property. While moving into the home on June 1, 1983, Mr. Jones observed an area of wrinkled paint above a window in the family room. When he touched the area, his finger went through the wood. He proceeded to call another pest control firm, Florida Pest Control, to inspect the house. Their inspection indicated that there was evidence of termites by the presence of termite tubes on the wall of the utility room. They also found that there was wood rot damage to the subfloor under a bathroom. Mr. Jones got in touch with Respondent who again examined the property and agreed to repair the damage in the family room, but was unwilling to do anything about the other problems. Jones filed a complaint with Petitioner's Office of Entomology on June 10, 1983, and requested that a state inspection of the premises be performed. Entomologist-Inspector William E. Page conducted an investigation on July 1, 1983, and found that, although there was no active infestation, old termite tubes were present in the utility room and subterranean termite damage and wood rot were located in a beam about the window, and in the window frame in the family room and the wall of the utility room, and that rot damage existed in the sub-flooring of a bathroom. Mr. Page was of the opinion that a light tap on the wall would have revealed the damage in the family room, and that the termite tubes in the utility room were obvious. He was of the further opinion that a thorough inspection would have found most of the damage that he noted. Respondent testified that he did not believe that HRS Form 1145 provided for the entry of information concerning inactive infestation. He acknowledged that he had not noticed the damaged area above the window of the family room because it had been painted over. (Testimony of Jones, Page, Respondent, Petitioner's Exhibit 1-2) HRS Form 1145 limits the scope of a licensee's inspection of property to the "visible and accessible areas of the structure." It does not include areas concealed by wall coverings, or any portion of the structure in which inspection would necessitate removing or defacing finished wood. The form provides for the entry of findings concerning the observation of "active infestation," "other evidence of infestation," and "visible damage," together with locations of such observations, and the organisms observed or which caused the damage. It also provides for findings as to whether the property shows evidence of previous treatment. By requiring that a finding be entered as to "active infestation" and the organism observed, it is intended that the term "other evidence of infestation" refers to situations where organisms are not observed, but there is some other kind of evidence of either active or inactive infestation, such as the presence of termite tubes. It is intended that the term "visible damage" is also applicable to damage caused by active or inactive infestation. The terms used in the form are commonly understood by the industry to have the meaning indicated above which is the agency interpretation. In all instances, suspicious areas which might indicate infestation should be noted on the form as "visible damage," even though the licensee is unable to determine exactly what has caused the problem without removing or defacing finished wood. In such cases, "tapping" of the wood may produce a hollow sound which should be listed as possible hidden damage. Powder-post beetles can be detected by the observation of holes with powder falling out. If wood is damaged, it is possible to trace it to termite infestation with a probe. It is therefore expected that a thorough inspection will reveal signs of past or present infestation. HRS Form 1143 was revised in May 1983 at the request of the industry, but the changes were not substantiated, nor did they essentially change the required findings. The form is utilized in the sale of property and is designed to protect the purchaser. It is therefore important that the inspection be accurate and thorough in all instances since the public relies on the expertise of qualified licensees as to wood-destroying organisms. (Testimony of Page, Bond, Respondent's Exhibit 2)
Recommendation That a final order be entered which suspends the pest control business license, pest control operator's certificate, and pest control employee identification card of Respondent Charles T. Noegel for a period of three months, and that he be placed on probation thereafter for a period of one year for violation of Section 482.161(1)(f), Florida Statutes. DONE AND EXTENDED this 25th day of January, 1984, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1984. COPIES FURNISHED: John Pearce, Esquire Department of HRS District II Legal Counsel 2639 North Monroe Street Tallahassee, Florida 32303 Charles T. Noegel Seminole Gator Exterminator 1409 Pichard Drive Tallahassee, Florida 32308 David Pingree, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue for determination in this proceeding is whether Respondents purchased and applied a restricted-use pesticide without a license and whether Respondents applied the pesticide in an improper manner.
Findings Of Fact Respondent, Port Malabar Country Club, is an unincorporated 18-hole golf course located in Palm Bay, Florida, owned and operated by Raysteff Corporation ("Raysteff"). Raysteff is a Florida Corporation, wholly owned by Mr. Robert Dolci. Respondent, Robert L. McDaniel, is the superintendent of golf course maintenance at Port Malabar Country Club and has held that position since 1985. On February 26, 1992, Respondent, McDaniel, purchased a 42 pound container of Kerb 50-W herbicide ("Kerb") from Harrell's Inc., located in Lakeland, Florida. Kerb contains chemicals that are classified as restricted- use pesticides by Petitioner. The labelling on the product's package contains the following warning: RESTRICTED USE PESTICIDE Because pronamide has produced tumors in laboratory animals, this product is for retail sale to and use only by Certified Applicators or persons under their direct supervision, and only for those uses covered by the Certified Applicator's certification. On February 26, 1992, neither Respondent, McDaniel, nor any other employee, officer, or agent of Raysteff held a valid applicator's license as required by Section 487.031(7), Florida Statutes. On March 4, 1992, Mr. Jason McDaniel was an employee of Raysteff and applied all Kerb to approximately three acres of the golf course. Respondent, McDaniel, supervised the application of the Kerb. Neither Respondent, McDaniel, nor any other employee, officer, or agent of Raysteff held a valid applicator's license at the time of the application. Respondent, McDaniel, had been licensed by Petitioner in 1975 and 1976 as a certified applicator. Mr. McDaniel's license expired on October 31, 1983. Mr. McDaniel took the examination required to obtain a new license after December 5, 1991. At the time he purchased and applied the Kerb, Mr. McDaniel had not been notified that he had passed the examination. Mr. McDaniel subsequently received his current license which expires sometime in 1996. The Kerb was applied properly around tees and greens on a sunny day with little wind. The treated area was not used by golfers until after the treated area was dry. The method of application did not expose either golfers or workers directly or by drift. The method of application complied with labeling precautions on the product. Neither package labeling, Petitioner's rules, nor Petitioner's policy establishes the amount of time needed for Kerb to dry. Petitioner failed to present any evidence to explicate its assertion that Respondents failed to determine that the Kerb was dry before allowing persons into the treated area. Evidence presented by Respondents was credible and persuasive. Respondents have no history of formal administrative disciplinary action for prior offenses. Respondent, McDaniel, properly applied the Kerb after taking the examination to obtain his license as a certified applicator and subsequently received that license. No harm was caused to any individual as a result of the application of the Kerb. There was no damage which would otherwise require expense to the state to rectify. Respondents did not benefit pecuniarily as a result of applying the Kerb prior to the time Mr. McDaniel received his license. However, Mr. McDaniel knew or should have known that he did not have his license when he purchased and applied the Kerb.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 19th day of October, 1993, at Tallahassee, Florida. DANIEL MANRY 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 19th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2230 Petitioner did not submit proposed findings of fact. 1.-10. Accepted in substance 11.-12. Rejected as unsupported by the weight of evidence Accepted in substance Rejected as irrelevant and immaterial Respondent's Proposed Findings of Fact 1.-2. Accepted in substance Rejected as irrelevant and immaterial Accepted in substance 5.-11. Rejected as irrelevant and immaterial 12. Accepted in substance COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 John S. Koda, Esquire Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Elting L. Storms, Esquire Post Office Box 1376 Melbourne, Florida 32902-1376 Richard Tritschler, Esquire General Counsel Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800
The Issue The issues in this case include: whether the Respondents constructed berms and ponds and dug ditches and filled wetlands on their Property in Highlands County without required permits, as alleged by the Southwest Florida Water Management District (SWFWMD) in its Administrative Complaint; and, if so, whether the Respondents are entitled to an agricultural exemption or an agricultural closed system exemption under Section 373.406(2)- (3), Florida Statutes.
Findings Of Fact Respondents' Activities on the Property In August 2003, the Respondents, José Fernando and Liliana Urrea Aristizabal, bought approximately 30 acres of land in Highlands County, near Lake Placid, south of Miller Road, to use for a palm tree nursery. This land (the Property) is in Section 30, Township 36 South, Range 29 East. There was a large marsh approximately in the center of the Property with additional wetlands surrounding the large marsh. On December 31, 2003, and again in February 2004, representatives of SWFWMD informed Mr. Aristizabal that, due to the presence of relatively high-quality wetlands on the Property, the plant nursery he intended to establish there would require an application for an environmental resource permit (ERP). After receiving this information from SWFWMD, Mr. Aristizabal retained a consultant to advise him. The consultant advised Mr. Aristizabal on how to construct an irrigation system that would be effective and permittable; however, the consultant cautioned him that construction would have to avoid impacting the wetlands on the Property. The consultant also advised Mr. Aristizabal as to the location of the wetlands on the Property, as well as the location of "potential wetlands." In response to the consultant's advice, Mr. Aristizabal dug a circular ditch around the large marsh in the center of the Property, with additional linear ditches radiating from the central, circular ditch and intersecting with a second, larger ditch around most of the perimeter of the irrigation system, extending along the east, north, and west sides of the Property. The ditches are approximately 5-7 feet wide and 5-7 feet deep. The soil from the ditches was spread between the linear ditches to raise the ground level and create planting beds. Mr. Aristizabal also deposited fill to the north and east of the perimeter ditch to create a berm approximately 4-6 feet wide and 2-4 feet high. Effects on Surface Waters of the State The evidence proved that there were approximately 11.64 acres of wetlands on the Property, including the large central marsh. Most of the ditches dug by Mr. Aristizabal and most of the fill deposited by him between the ditches were in wetlands. In all, approximately 0.86 acres of the wetlands on the Property were dredged, and approximately 4.97 acres of the wetlands on the Property were filled. The ditches intercept, divert, and impound surface water. The berms--particularly, the berm on the north side of the Property--also obstruct the flow of surface water. Agricultural Exemption Defense The Respondents did not apply for an agricultural exemption under Section 373.406(2), Florida Statutes, from the requirement to obtain an ERP. Instead, they raised the exemption as a defense to SWFWMD's enforcement action. Regarding the agricultural exemption defense, Mr. Aristizabal's berms and his ditching and filling of wetlands impounded, impeded, and diverted the flow of surface waters. These effects more than incidentally trapped or diverted some surface waters, e.g., as occurs when a pasture is plowed. For that reason, the activities were not consistent with the practice of agriculture. Even if those activities might be considered to be consistent with the practice of agriculture, they had the predominant purpose of impounding or obstructing surface waters. The berms and the ditching and filling of wetlands obstructed surface waters in that they had the effect of more-than- incidentally diverting surface water from its natural flow patterns. The ditches also impounded surface waters. SWFWMD reasonably determined that the predominant purpose of the berms and the ditching and filling of wetlands was to impound, impede, divert, and obstruct the flow of surface waters. Agricultural Closed System Exemption Defense The Respondents did not apply for an agricultural closed system exemption under Section 373.406(3), Florida Statutes. Instead, they raised the exemption as a defense to SWFWMD's enforcement action. The Respondents did not prove that their construction resulted in an "agricultural closed system." Rather, the evidence was that surface waters of the state are discharged from, and onto, the Property during most years. Requested Corrective Action SWFWMD seeks alternative corrective action by the Respondents: expeditiously apply for and obtain an after-the- fact permit; or expeditiously submit and perform an acceptable plan to restore the land to its natural grade and to remediate as necessary to restore any loss of wetland functions. The specifics of the requested alternative corrective action are set out in paragraphs 19 and 20 of the Administrative Complaint. The requested alternative corrective actions are reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Governing Board enter a Final Order requiring the Respondents to apply for the necessary after- the-fact permit and/or restore wetland impacts, as described in Finding 12, supra. DONE AND ENTERED this 21st day of August, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 21st day of August, 2008. COPIES FURNISHED: David L. Moore, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 José Fernando Aristizabal Liliana Urrea Aristizabal 6650 Southwest 189th Way Southwest Ranches, Florida 33332 Joseph J. Ward, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604
Findings Of Fact On August 25, 1982, Petitioner received an application for pest control business license and identification cards, Petitioner's Exhibit 1, signed by Perry Commander, requesting licensure for Donald and Bales Exterminating Company, Inc., at 615 East Chestnut Avenue in Crestview, Florida. In the blank for "owners [or] corporation officers" appeared the name R. N. Bales, Jr. Among those on whose behalf identification cards were sought were listed Ronnie James McLean and Byron Bales. Byron Bales was listed as "MGR Salesman," while Perry Commander was listed as "Certificate Holder." Perry Commander was also listed as the certified operator. Petitioner granted this application on September 22, 1982, issuing license No. 343. Since approximately 1974, there have been applications for licenses at this location. Based on an application not in evidence signed by Byron Bales sometime before August 17, 1983, Petitioner issued an emergency certificate. On August 17, 1983, Petitioner received an application form signed by Byron Bales, which Petitioner returned to Mr. Bales for more information, and received a second time on August 29, 1983. Petitioner's Exhibit 2. The form gave Donald & Bales Exterminating Co., Inc., as the applicant's firm name and 615 East Chestnut Avenue in Crestview as the firm's address. Byron Bales and "R. [B]ales" were listed as "owners [or] corporation officers." Byron Bales, Colonel (Matthew) Bales and Ronnie James McLean were listed among those on whose behalf identification cards were sought. Byron Bales was listed as "Manager Salesman." Perry Commander's name was crossed out, as was his designation as "Certificate Holder." Nobody else was designated certificate holder, and nobody was listed as a certified operator. This application, which was made on a multipurpose form, has not been acted on. Boxes were printed next to various categories including "Initial (New) License," "Change-of-Business Ownership License" and "Renewal License." No box was checked, however. On February 4, 1976, Aggie B. Nelson of Chipley, Florida, contracted with Donald and Bales Exterminating Company, Inc. (Donald & Bales), for treatment of the foundation of her two-bedroom frame house for termites and agreed to pay $30 a year thereafter for annual inspections and preventive sprayings. Petitioner's Exhibit 3. The contract gave a Crestview address for Donald & Bales. On March 24, 1982, Ronnie James McLean arrived at the Nelson home in a truck emblazoned with the Donald & Bales logo and sprayed underneath Ms. Nelson's house. He emerged with five or six bugs in his hand that he told Ms. Nelson were beetles. He said the house needed to be sprayed for beetles and offered to do it while he was there for $230. Ms. Nelson allowed as how that would sure put her in a bind, but agreed to have him spray. Mr. McLean and Ms. Nelson each signed a Donald & Bales form contract on which Mr. McLean checked the box beside the word "Prevention," but not the box beside the word "Infested." The contract showed a Crestview address for Donald & Bales. Petitioner's Exhibit 4. Ms. Nelson wrote a check for $230 to Ronnie J. McLean personally. Later, she began to inquire and eventually arranged for William E. Page, an entomologist in Petitioner's employ, to inspect her house. At the hearing, Mr. Page was qualified as an expert in pest control and testified without contradiction that there was no sign of there having been a beetle infestation at Ms. Nelson's home at any time. Mardra Stewart was at home in her three-bedroom log house down below Orange Hill from Chipley when Ronnie J. McLean stopped by on April 19, 1982. "He sent some of the men he had with him under the house, and they c[a]me out with a handful of the sills," wood that appeared to have been eaten into by termites. Mr. McLean told Ms. Stewart she should have her house sprayed because insects "had eat it up under there." (T. 89) She agreed to the spraying and paid McLean $225 for spraying. Mr. McLean and Ms. Stewart each signed a Donald & Bales form contract on which Mr. McLean checked the box beside the word "Prevention," but not the box beside the word "Infested." The contract showed a Crestview address for Donald & Bales. Petitioner'S Exhibit 8. The next day, Ms. Stewart called the sheriff and eventually telephoned Petitioner's Jacksonville offices. Mr. Page inspected her house and found no evidence of an active or recent infestation of insects of any kind, although he did discover evidence of old powder-post beetle damage. In his opinion, the Stewart house probably needed treatment. Emma Martin Denham of Altha, whose husband died in 1976, has lived in the same house for 35 years; and the Denhams have dealt with Donald & Bales for about half that time. On August 5, 1977, Mrs. Denham paid Marvin A. House $448 to spray for beetles, termites and "wood bores." Mr. House, or somebody else who worked for Donald & Bales at the time, told her, in August of 1977, that there was a new infestation of beetles. She also agreed to pay $25 a year for annual sprayings and inspections. Petitioner's Exhibit 5. On August 13, 1981, John A. McKinnon took $224 from Mrs. Denham on behalf of Donald & Bales in exchange for a commitment to spray for subterranean termites and powder-post beetles. Petitioner's Exhibit 7. The written agreement, a Donald & Bales form signed by Mr. McKinnon and Mrs. Denham, provided: "DONALD and BALES agrees. . .to guarantee [the August 13] treatment for a period of one (1) year. . .such guarantee being to protect the owner from the return of [subterranean termites and powder-post beetles]. . .DONALD and BALES agreeing to re-treat such property in the event of reinfestation. . ." Petitioner's Exhibit 7. On June 15, 1982, someone falsely claiming to be Byron Bales told Mrs. Denham that she had an infestation of ambrosia beetles and that her home needed spraying. He showed her two pieces of wood crawling with bugs that he claimed to have found underneath the house and charged her $403 to spray. Mrs. Denham and her visitor each signed a Donald & Bales form contract, the exterminator signing as Byron Bales. Petitioner's Exhibit 6. After he left, Mrs. Denham looked for the wood and the bugs, but could not find them. She wrote Donald & Bales, asking for a refund. When she got no reply, she contacted the authorities. Mr. Page came to her house to inspect, as a result. He found no evidence of ambrosia beetles, which was to be expected since ambrosia beetles only infest living trees. He found no evidence of active pests of any kind and no evidence of drilling or trenching for termites. He found some old powder-post beetle damage, but no other evidence of insects. Donald & Bales eventually refunded $403 to Mrs. Denham. On September 15, 1982, Mrs. J. C. Phillips telephoned her daughter, Margaret Powell, and asked her to come to the Phillips' house on Bayshore Drive in Niceville "to write the check for the exterminator." (T. 94) By the time Ms. Powell arrived, the spraying had been done. Ms. Powell asked Ronnie James McLean and his companion(s) to show her some beetles. When they were unable to do so, she declined pay, even after Mr. McLean referred her to Byron Bales, who was at work next door. Mr. McLean and Ms. Phillips each signed a Donald & Bales form contract on which Mr. McLean checked the box beside the word "Prevention," but not the box beside the word "Infested." Petitioner's Exhibit 9. The contract indicated prophylactic treatment of the foundation for powder-post beetles for $150 and called for annual inspections and resprayings for $45 per year. Petitioner's Exhibit 9. On September 22, 1982, when Mr. Page inspected the Phillips' house, he found no sign of any infestation, new or old, by beetles (or termites). When tenting is not resorted to, the treatment for beetles is applying Lindane with a power sprayer in such a concentration that the odor lasts about a month. This odor was not present when Mr. Page inspected, one week after Mr. McLean's visit. In November of 1982, Barbara K. Baker Glass was at the home of George Baker, her father, in Flomaton, when Matthew Bales and a companion came by to inspect the floor which he had a month or two earlier sprayed for powder-post beetles. [T]he one guy turned to the other one and said, "Did you check the attic?" And he said, "No." And he said, "Well, we'll have to check the attic to see if there's any up there." And they did, and he came back down with a piece of wood that he said was from our house. And he said that it needed spraying, and it would cost two hundred and seventy-five more dollars. Q. Do you remember this man's name? A. Matthew Bales. Q. All right. How is it that you remember him? A. I wrote the check gut to him for my dad, and I wrote it to Donald and Bales, and he had me tear that one up and write it to him. Q. Now, what did he say, this person who said he was Matthew Bales? What did he say about the attic? A. He said that we had a real bad case of powder post beetles. [T. 154-155] When Mr. Page inspected Mr. Baker's attic, he found no sign of powder-post beetles. It is possible for powder-post beetles to Infest attics, but it is ordinarily too hot for them. Except for Petitioner's Exhibit 7, all the Donald & Bales form contracts state, "Please make check to representative." Having customers write checks in favor of the individual exterminator is "company policy." (T. 169) The corporate structure of Donald and Bales Exterminating Company, Inc., and lines of authority over its west Florida operations are somewhat confused. Robert M. Bales, Jr., of Wellborn in Suwannee County, who owns all the corporation's stock, has not worked in the Panhandle for ten years or more. On June 15, 1982, he signed some agreement which was not offered into evidence. By this instrument, he intended to convey to Byron Bales, his 47-year-old son, all the rights Donald and Bales Exterminating Company, Inc., had in termite control contracts relating to structures west of Leon County, along with "the name of the business. (T. 137) Robert M. Bales, Jr., was unaware at the time of any requirement to notify Petitioner of this change and did not do so. Donald and Bales Exterminating Company, Inc., holds at least one other license at a location other than Crestview, which is not at issue here. Byron Bales fired Ronnie James McLean because "he stole money from me." (T. 165) He accomplished this theft by selling contracts and cashing checks. (T. 167) Mr. Bales did not discharge Mr. McLean when he first learned that money had been diverted, "not on the first one. . ." (T. 167) The Hearing Officer has had the benefit of Petitioner's proposed recommended order in preparation of the foregoing Findings of Fact. Proposed findings have been adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, cumulative, or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the motion of Robert M. Bales, Jr., for dismissal as to him individually be granted. That Petitioner revoke License No. 343, issued to Donald and Bales Exterminating Company, Inc., at Crestview. DONE AND ENTERED this 13th day of December, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1983.
The Issue The issues to be determined in this case are whether the Department of Environmental Protection ("DEP") should approve Lockheed Martin Corporation’s Site Assessment Report Addendum 3 (“SARA 3”) and Remedial Action Plan Addendum (“RAP 3”) to assess and remediate soil and groundwater contamination associated with property owned by Lockheed Martin Corporation in Tallevast, Manatee County, Florida.
Findings Of Fact Background The Former Facility and Property The Lockheed Martin property is located at 1600 Tallevast Road. The property is slightly larger than five acres. It is bounded by Tallevast Road to the north; 17th Street Court East to the east; a golf course, undeveloped and residential areas to the south; and an abandoned industrial facility to the west. From 1961 to 1996 the American Beryllium Company operated an ultra-precision, beryllium parts machine shop on the property where metals were milled, lathed, and drilled into various finished components. Some of the components were finished by electroplating, anodizing, and ultrasonic cleaning. The facility once included five buildings, but the buildings have been removed. The facility and property were acquired by Lockheed Martin in 1996 and the machining operations were terminated. B. Contamination Discovery and Assessment Although the details are unknown, it appears that over a number of years, leaks or discharges occurred at a series of "sumps" associated with the American Beryllium Company's on-site wastewater treatment system. The leaks or discharges allowed contaminants, primarily chlorinated solvents, to enter the soil and groundwater beneath the facility. The contamination migrated laterally in all directions away from the facility, as well as downward. The hearsay report that a "dry well" (a gravel-filled pit) existed on the property and was used to dispose of acid baths is not supported by the non-hearsay evidence. Environmental assessments performed by Lockheed Martin after purchasing the site, and a later assessment by a prospective purchaser, found contamination. In 2000, Lockheed Martin informed DEP that contamination had been discovered at the facility. In that same year, Lockheed Martin removed the sumps and some soil around the sumps. Various contamination assessment activities were conducted by Lockheed Martin between 2001 and 2004. Contaminant concentrations exceeding Groundwater Cleanup Target Levels ("GCTLs") were found at various depths. In 2001, Lockheed Martin excavated and removed over 500 tons of contaminated soil in the area where the sumps had been located. At the time the contamination was discovered, public water supply lines served most residences in Tallevast, but not the residences along 16th Street, 18th Street, 19th Street, and parts of Tallevast Road. On these streets, residents continued to use water from their wells for drinking, bathing, and other household uses. These private water wells were tested in 2004 and many were found to be contaminated. Petitioners contend that Lockheed Martin was late in notifying Tallevast residents of the contamination, but it was beyond the scope of this proceeding to determine whether Lockheed Martin failed to timely notify the area residents of health threats known to Lockheed Martin. In 2004, Lockheed Martin and DEP entered into a Consent Order that required Lockheed Martin to conduct additional site assessment and, ultimately, to prepare a remedial action plan to remediate the site in conformance with DEP rules. Lockheed Martin submitted site assessment report addendums to DEP in 2004 and 2005. In April 2006, DEP approved an Interim Remedial Action Plan (“IRAP”) for a groundwater extraction and treatment ("pump and treat") system. Extraction wells were constructed in the source area on the site to reduce the mass of contaminants and hydraulically control the plume so it would not spread. The treatment system has been in continuous operation since August 2006. Lockheed Martin submitted a third site assessment report addendum, SARA 3, in April 2006 and it was approved by DEP on September 25, 2006. Lockheed Martin submitted a RAP in May 2007. A revised RAP ("RAP 2") was submitted in August 2008. A third addendum ("RAP 3") was submitted in July 2009 and was approved by DEP on November 5, 2010. C. Standing The individual Petitioners, Wanda Robinson, Marvin Washington, Clifford Ward, Laura Ward, Brenda Pinkney, and Melissa Williams Robinson, reside or own property within the area established as the Temporary Point of Compliance (“TPOC”) by DEP. The TPOC encompasses the land overlying areas of groundwater contamination. Groundwater contamination exceeding GCTLs lies beneath the private properties of these individual Petitioners. The Tallevast Community Association, Inc., operates a community center located at 7727 17th Street Court East, which is adjacent to the Lockheed Martin site. The community center property is within the TPOC. In 2008, the IRAP system failed and spilled contaminated water onto the community center property. FOCUS is a Florida nonprofit corporation formed in 2003. The parties stipulated that "FOCUS' stated mission is to protect the health, environment, and quality of life of the Tallevast Community."1 At least 25 of its members are residents of Manatee County. SARA 3 Groundwater Contamination 1. Contaminants of Concern Lockheed Martin tested for and assessed all of the contaminants in groundwater that were reasonably implicated by the site history and test data. Lockheed Martin incurred substantial costs for the assessment activities. The contamination assessment was not dictated by a motive to avoid costs. Petitioners contend that every chemical listed on the Material Safety Data Sheet ("MSDS") for the American Beryllium Company should have been tested for in the soil and groundwater. It is not the practice of DEP to require that every chemical on a MSDS be tested for in the environment. The groundwater beneath the Lockheed Martin property and surrounding area is contaminated with a variety of pollutants, but the designated "contaminants of concern"--the contaminants which occur in concentrations that exceed GCTLs-- are 1,4-dioxane, tetrachloroethene (PCE), trichloroethene (TCE), cis-1,2-dichloroethene, 1,1-dichloroethene, 1,1-dichloroethane, vinyl chloride, methylene chloride, bromodichloromethane, dibromochloromethane, and 1,1,1-trichloroethane. TCE is the contaminant that occurs in the highest concentrations. It is estimated that 220 pounds of TCE is in the contamination plume. The 1,4-dioxane is the most frequently detected contaminant. It is estimated that 160 pounds of 1,4- dioxanne are in the contamination plume. Area Geology and Hydrogeology Lockheed Martin's geologic and hydrogeologic assessment to determine the water-bearing zones, the confining or semi-confining units, the potentiometric levels, and the hydraulic gradients in the area of contamination was thorough and produced a reliable characterization of the regional geology and hydrogeology. Groundwater beneath the Lockheed Martin property and surrounding lands occupies three aquifer systems: the Surficial Aquifer System, the Intermediate Aquifer System, and the Floridan Aquifer System. The Surficial Aquifer System ("SAS") is divided into an upper and lower zone. The upper SAS begins at 2 to 5 feet below ground surface ("bgs") and extends to about 30 feet bgs. It is separated from the lower SAS by a confining unit referred to by the expert witnesses as the "hard streak." The lower SAS extends to about 45 feet bgs, where it intercepts a thick layer of Venice clay. Beneath the Venice Clay begins the Intermediate Aquifer System, which is comprised of four water-bearing zones: the Upper Arcadia Formation ("AF") Gravels, the Upper AF Salt and Pepper ("S&P") Sands, the Lower AF Gravels, and the Lower AF Sands, extending to 290 feet bgs. Separated from the Lower AF Sands by a thick clay layer, the Floridan Aquifer, consisting of limestone, begins at about 320 feet bgs. Plume Delineation Lockheed Martin used the “step-out” method to delineate the groundwater contamination plume for contaminants originating on the Lockheed Martin property, starting at a point of high groundwater concentration and then working outward horizontally and vertically until monitoring wells showed no contamination above GCTLs. This step-out method is the generally-accepted practice for delineating a plume of groundwater contamination. A contamination plume is delineated, both horizontally and vertically, by “clean” monitoring wells-- wells that show contamination at concentrations below the GCTLs. Lockheed Martin installed 245 monitoring wells to define the horizontal and vertical extent of the contamination. A data set consisting of about 5,500 groundwater samples was compiled. The amount of site assessment data collected by Lockheed Martin was described by several experts as much more data than is usually developed for comparable sites and the most that several of the experts had ever seen. Lockheed Martin established the horizontal boundaries of the individual contaminant plumes by identifying a ring of clean wells beyond each layer (aquifer zone) of the plume. Lockheed Martin used the same method to determine the vertical extent of the plume. It tested the aquifers at deeper and deeper depths until the contamination was below the GCTLs, indicating that the plume had not descended farther. The maximum horizontal extent (for all contaminants above GCTLs in every groundwater-bearing zone) is approximately 1,200 feet north, 2,800 feet east, 1,600 feet south, and 800 feet west of the facility. The total horizontal area of the composite plume is over 200 acres. The upper and lower SAS, the upper AF Gravels, and the upper AF S&P Sands are contaminated with site-related chemicals. The deepest extent of groundwater contamination is approximately 200 feet below ground surface. Petitioners claim that the contamination plume was not adequately delineated, but their evidence was not persuasive. Petitioners did not prove that there are areas of the plume that extend outside the boundary of clean wells established by Lockheed Martin. Petitioners contend that groundwater contamination in the residential area south of the Lockheed Martin property is not adequately delineated, but Lockheed Martin and the DEP proved otherwise. In their presentation on this issue, Petitioners failed to account for the fact that monitoring well data represent contaminant levels in an area of influence around each well. Groundwater contamination in this area was adequately assessed by Lockheed Martin. Petitioners' objection is more about form than substance, because Lockheed Martin acknowledges that groundwater contaminants were detected in the area. However, the plume delineation is based on standard practices regarding the selection of sampling data and the computational mapping of the data. Petitioners also object to Lockheed Martin's assessment near the airport. The assessment in this area is adequate and reasonable under the circumstances. There are obvious limitations encountered in accessing airport property because of the possibility of interference with aircraft landings and takeoffs. The residential area south of the Lockheed Martin property and the area near the airport which Petitioners contend are un-assessed or under-assessed are within the capture zone of the pump and treat system proposed in RAP 3. The contamination in these areas will be cleaned up. If the rumored dry well actually existed on the Lockheed Martin property and was a source of contamination, the contamination is part of the delineated plume and will be remediated. The 2010 groundwater sampling indicated some movement of the plume. Petitioners contend that the new data contradicts the earlier results and, therefore, Lockheed Martin is required to conduct additional site assessment. However, some variability and fluctuation around the edges of the plume are expected due to heterogeneities in the geology and in lab analyses. It does not necessarily mean the plume is moving. It is the practice of DEP when more recent sampling data indicates small changes to a plume that do not reach perimeter clean wells, to accept the plume as sufficiently delineated. Groundwater monitoring data developed since SARA 3 was approved indicate that the plume has been relatively stable within all four affected aquifer zones. The 2010 data do not contradict the plume delineation. Lockheed Martin showed that the deepest layer in which groundwater contamination was detected is the Upper AF S&P Sands, about 140 to 160 feet bgs and about 200 feet above the Floridan aquifer. Petitioners claim that the plume should be shown as extending deeper, but their evidence was not persuasive. The detections in the Clay/Sand Zones 3 & 4 were shown to be caused by a mis-labeled monitor well. There were only a few detections, and no exceedances, in 25 groundwater samples taken from the Lower AF Sands. Lockheed Martin installed a sufficient number of monitoring wells in the Floridan Aquifer to demonstrate that the plume (above GCTLs) has not reached it. Early exceedances detected in the Floridan Aquifer were likely due to “dragdown,” which can occur when a well is drilled through contaminated soil and drags down some of the contamination to deeper zones. A report that an on-site production well was drilled to the Floridan was hearsay and is not supported by the record evidence. However, if a pathway exists through the confining layers to the Floridan Aquifer, the upwardly-directed, potentiometric water pressure of the Floridan Aquifer should prevent the contamination from moving down the pathway. Vinyl Chloride There were numerous instances when laboratory detection limits were reported as being above GCTLs for vinyl chloride. Detection limits above GCTLs can occur when a groundwater sample contains high levels of another compound and must first be diluted by the laboratory with de-ionized water before it can be analyzed, which has the effect of raising the detection level for other contaminants in the sample. Petitioners assert that these samples could have been above GCTLs. These samples are unreliable, but there are a sufficient number of uncompromised water samples to assess the vinyl chloride contamination. Lockheed Martin did not delineate a separate plume for vinyl chloride. It could not draw an isoconcentration plume map for vinyl chloride because the detections were sporadic in space and time. Vinyl chloride is a breakdown product of PCE and TCE and would be expected to be detected where PCE and TCE concentrations are highest. The vinyl chloride contamination is tied to the plumes for the parent compounds and is within the mapped plumes in each aquifer zone. Lab Contaminants Four compounds detected in groundwater samples at the Tallevast site–-methlyene chloride, carbon disulfide, acetone, and methyl ethyl ketone–-are common laboratory and sampling contaminants. Because of the large number of wells and sampling events, it is likely that these compounds appeared in the data as artifacts of the sampling procedures. These contaminants appeared infrequently, in scattered zones, and sporadically over time, often coming up "non-detect" in subsequent samplings. The lack of a pattern of detections indicates that these contaminants are not part of the contamination plume originating at the Lockheed Martin property. There is no evidence that bromodichloromethane and dibromochloromethane were released from the facility. Detections of bromodichloromethane and dibromochloromethane are sporadic and transitory across the plume. There is no pattern connecting them to the site. These compounds are known to be byproducts of the chlorination of drinking water. They can also appear when people use chlorination products to treat wells themselves, for example to treat sulfur smells or disinfect the well. In the most recent sampling event, bromodichloromethane and dibromochloromethane were not detected in any wells. NAPL Lockheed Martin looked for non-aqueous phase liquid, or “NAPL,” but it was not found. Lockheed Martin had an incentive to locate and remove any NAPL to reduce its long-term remediation costs. Lockheed Martin used several accepted techniques and technologies to search for NAPL. NAPL is either not present or is isolated in small amounts. If NAPL is present, it is not migrating away from the property. Soil Contamination Lockheed Martin removed contaminated soil from the sump area in 2000 and 2001. No other "hot spots" of soil contamination were found on the Lockheed Martin property. Samples of on-site soil also exceeded soil cleanup target levels (“SCTLs”) specified in Florida Administrative Code Chapter 62-777 for arsenic, beryllium, copper, chromium, benzo(a)pyrene, and PCE. These contaminants were scattered about the Lockheed Martin property. The off-site detection of these same contaminants in scattered locations and at relatively low concentrations is consistent with urban and former agricultural areas. There are industrial land uses near the Lockheed Martin property. Petitioners did not rebut the evidence presented that these soil contaminants are ubiquitous in the human environment at these concentrations. Lockheed Martin and DEP investigated a report that soil might have been obtained from the Lockheed Martin property and used as fill on some nearby private properties. The record evidence is insufficient to establish when, where, or how this movement of soil occurred. Numerous soil samples were taken from areas where residents said fill was placed, but no contamination was found that was consistent with the proposition that it was contaminated soil from the Lockheed Martin property. The soil sampling showed exceedances of SCTLs for some contaminants, but their distribution was random. The types of contaminants, the concentrations, and the sporadic and inconsistent findings indicate that the contamination is unlikely to be associated with a discharge or release from the Lockheed Martin property. Petitioners contend that Lockheed Martin's assessment of this possible soil contamination was inadequate. However, Petitioners were in a better position to describe the location and other details associated with this alleged fill. Petitioners produced no details regarding the alleged fill and conducted no soil sampling of their own to show that contaminated soil was placed on their properties. Petitioners contend that some of the off-site soil sampling conducted by DEP’s Site Investigation Section in 2004 was unreliable because the samples were taken to a depth of 3 inches, which is not consistent with the applicable DEP rule. However, the referenced DEP rule was not in effect at the time. In addition, the shallower samples taken by DEP are more conservative for estimating risk from human contact with soil contaminants. The data was properly included in the assessment. Lockheed Martin's assessment to determine whether contaminated soil was transported from the Lockheed Martin property to nearby private properties was reasonable and adequate under the circumstances. DEP determined that the off-site soil data and historical information were insufficient to conclude that operations at the American Beryllium Company were the source of the off-site soil contamination. Petitioners did not show that the Lockheed Martin facility was the source of the contaminants found off-site. The more persuasive record evidence supports DEP's determination. Petitioners contend that Tallevast residents may be at risk from soil contamination caused when they watered their lawns with contaminated well water, but Lockheed Martin showed that this contention was implausible. Volatile Organic Compounds ("VOCs") sprayed through the air and onto the ground would quickly volatilize. Moreover, the soils in the area are sandy, allowing water to readily penetrate below the soil surface so that a large accumulation of contaminants necessary to cause a threat to humans from direct exposure is unlikely. When a pipe broke in the IRAP system in 2008, spilling 5,000 gallons of contaminated water onto the ground, the soil sampling conducted three weeks later showed that contaminant concentrations were orders of magnitude below the SCTLs for direct exposure. The concentrations that would be caused by watering a lawn with contaminated well water would be even lower. Petitioners conducted no soil sampling of their own to support their contention that the application of groundwater to lawns and gardens resulted in the contamination of the their soil. Soil Vapor Intrusion Intrusion into buildings by contaminated vapor is possible if groundwater contamination is near the top of the water table. Volatile contaminants can then move into a gas or vapor phase and rise through the unsaturated soil where the vapor may enter buildings through various pathways. Lockheed Martin assessed the area for potential vapor intrusion, using multiple lines of analysis. Soil gas levels should have been the highest on the Lockheed Martin property where contaminant concentrations in the plume are generally the highest, but on-site soil gas levels were below applicable risk levels. No off-site soil gas levels exceeded soil vapor regional screening levels. Soil gas levels are generally higher than indoor levels because only a fraction of the soil gas will find a pathway into a dwelling. In this case, soil gas levels for the site-related contaminants were lower than detected indoor air concentrations, indicating that the source of the indoor contaminants probably was not soil gas. The concentrations of contaminants in the indoor air samples were within the range of typical background levels attributable to the products commonly found in residences, such as household cleaning products and dry cleaning. The volatile groundwater contaminants are in groundwater at about 20 feet bgs, or about 15 feet below the water table. The clean water layer between the groundwater contamination and the top of the water table prevents vapors from being created. Petitioners did not produce competent evidence to rebut Lockheed Martin's showing that soil vapor intrusion is not a real risk associated with the groundwater contamination. Conclusion Lockheed Martin employed consultants who had extensive expertise in the contamination assessment sciences. Those experts who testified at the final hearing were highly competent and they were credible witnesses. There was no evidence presented to suggest that their efforts on behalf of Lockheed Martin had any purposes other than to comprehensively assess the contamination and develop an effective means to clean it up as quickly and as efficiently as practicable. Site assessment involves a considerable amount of professional judgment. The significance of the sampling data, for example, is largely a matter of professional judgment. Petitioners' objections to Lockheed Martin's site assessment are, in most respects, based on different professional judgments (offered by Petitioners' expert witnesses) or the critique of professional judgments (by Petitioners' counsel during cross- examination of Lockheed Martin's expert witnesses) regarding the significance of sampling data and other technical analyses. Petitioners failed to demonstrate that the professional judgments exercised by Lockheed Martin's experts were unsound or that they resulted in a contamination assessment that was inadequate to enable an effective plan for remediation. RAP 3 Lockheed Martin considered numerous alternative remedies. Remedial alternatives were scored by a large consultant team that considered long-term and short-term human health and environmental effects, implementability, operation and maintenance, reliability, feasibility, estimated time to achieve cleanup, and cost. RAP 3 is designed to achieve five remedial action objectives: (1) reduce potential for human exposure to site contaminants found in soil, (2) reduce potential for human exposure to site contaminants found in groundwater; (3) hydraulically control contaminated groundwater; (4) extract and treat contaminated groundwater, and (5) minimize disturbance to the community and natural resources. The evidence demonstrates that RAP 3 will achieve each of these objectives. Groundwater With respect to groundwater contamination, the objective of RAP 3 is to meet the active remediation requirements of rule 62-780.700(1) and to demonstrate at the end of the remediation that the cleanup qualifies for Risk Management Option Level I -- No Further Action, without institutional and engineering controls. Lockheed Martin reduced human exposure to contaminated groundwater by locating and abandoning (plugging) private wells that were affected by the groundwater contamination. To hydraulically control contaminated groundwater and remove it, Lockheed Martin proposes a “pump and treat” groundwater extraction and treatment system. This is a well- known and proven-effective remediation approach for the kind of groundwater contamination involved here and was determined to be the only effective remediation alternative. This remedy was developed using groundwater flow and contaminant transport models. The models that were used and the modeling that was performed by Lockheed Martin were appropriate for the selection and design of the remediation system. The models incorporated all appropriate geologic, hydrologic, and contaminant data. Lockheed Martin chose TCE and 1,4-dioxane as representative contaminants for modeling purposes. The selection of these contaminants was technically sound because TCE has similar transport characteristics as the other chlorinated solvents at the site that adsorb to soil and degrade in the natural environment, while 1,4-dioxane would represent the more mobile contaminants that do not degrade significantly. The modeled remedy for TCE and 1,4-dioxane will effectively remedy all the groundwater contaminants, including vinyl chloride and the other breakdown products of the site- related chemicals. Petitioners did not present competent expert testimony to rebut the soundness of the groundwater modeling effort. The final remedial design comprises 77 extraction wells and four trenches pumping about 200 gallons of contaminated water per minute. The extraction wells would withdraw groundwater from four aquifer zones: the upper SAS, the lower SAS, the Upper AF Gravels, and the Upper S&P Sands. An array of closely-spaced extraction and injection wells will be installed in the on-site areas of highest contamination for focused "flushing" and extraction of contaminants. Lockheed Martin minimized adverse impacts to private properties in its proposed location of well, trenches, and piping. RAP 3 calls for directional drilling for the installation of the majority of the conveyance piping. The modeling showed that cleanup time could be optimized by placing the extraction wells along the “spine” of the plume rather than spreading them out over the whole footprint of the plume and by selectively shutting off wells and trenches over time. Lockheed Martin created a "capture zone" large enough to recover all site-related contamination in a reasonable time. In each affected aquifer layer, the modeled capture zone extends at least 100 feet beyond the GCTL line for the composite plume. Any groundwater contaminant within the capture zone will be removed by the groundwater extraction system. The estimated cleanup time is 48 years because that is the time needed to complete the cleanup for the most persistent contaminant--1,4-dioxane in the lower SAS. However, more than half of the mass of TCE and 1,4-dioxane would be removed within the first five years of operation. In ten years, 85 percent of the TCE and 71 percent of the 1,4-dioxane is projected to be removed and treated. The proposed treatment system includes: (1) settling and filtration of iron and other metals in the ground water that would interfere with the treatment process; (2) advanced oxidation of VOCs followed by carbon adsorption to trap those compounds not treated by ultra violet light; and (3) discharge to the sewer for further treatment by the Manatee County treatment works. A portion of the treated groundwater will be treated again with reverse osmosis to produce water of high quality and then re-injected near surface waters in order to prevent lowering of water levels. The proposed remedy is flexible and adaptable to future conditions and changes in technology. RAP 3 includes a schedule for performance monitoring. The remedy can be adjusted if the monitoring data indicates an adjustment is needed. Some of the former employees of the American Beryllium Company stated that there was a production well at the facility. The significance of the well is that, if it remained as an open bore hole, it could be a conduit for contaminants to move between aquifer zones and interfere with the remedial action plan. Before the production well was found, while groundwater flow and contaminant transport modeling was being conducted, the models evaluated potential effects of an open borehole on the Lockheed Martin site. Sensitivity analysis of the model showed that the open borehole would have an insignificant effect on the output. After conducting five separate searches for the production well using remote sensing, ground-penetrating radar, and downhole side scan sonar, a well was found and properly abandoned. The well was similar in size and casing material to the twenty other wells that had already been geophysically logged at the site. It is reasonable to conclude, therefore, that, like the other wells, the discovered well probably had an open borehole to the Upper AF Gravels. The hearsay report that the production well was a 6-inch well drilled into the Floridan was not supported by the non-hearsay evidence. Lockheed Martin obtained 13 of the 14 access agreements necessary to implement RAP 3. The only outstanding agreement is one for access to a railroad property. The property owner has agreed to provide access as soon as final design plans are provided. Lockheed Martin rejected remediation technologies that required extensive access to install, operate, and maintain. In its selection of recovery well locations near the Sarasota-Bradenton International Airport, Lockheed Martin located them along 15th Street, as opposed to farther west, because it would be difficult to get access to install, operate, and maintain extraction wells at the end of an active runway. In reviewing whether a RAP is implementable, it is the practice of DEP not to require the person responsible for cleanup to first obtain any permits needed from other agencies before DEP will approve the RAP. With regard to the probable need for Lockheed Martin to obtain a water use permit from the water management district, the criteria for obtaining the permit were taken into account by Lockheed Martin in the design of RAP 3. Petitioners presented no competent evidence indicating that Lockheed Martin will not be able to obtain the water use permit. Soil Lockheed Martin chose Risk Management Option Level II (“no further action” with conditions) to reduce potential exposure to soil contamination. Lockheed Martin will use institutional and engineering controls that prevent direct exposure and infiltration of contaminants into groundwater. The engineering controls will include building pads or pavement on portions of the Lockheed Martin property to prevent exposure and infiltration of rain. The institutional controls include restricting access to the facility through fencing and on-site security. Deed restrictions will mandate soil management practices to protect against human exposure and prohibit inappropriate modifications to the property. It is the practice of DEP to treat engineering and institutional controls as remediation measures to reduce human exposure risk. Off-site soil excavation by Lockheed Martin is not required because (1) the off-site soil contamination was not shown to be attributable to on-site activities; (2) the soil contaminants are randomly distributed over a large area; and (3) excavation would be costly and disruptive for little or no gain in terms of reduced human health risk. Temporary Point of Compliance The TPOC established as part of RAP is appropriate and adequate to protect human health, public safety, and the environment during remediation. Conclusion The more persuasive evidence shows that RAP 3 would be effective in remediating the soil and groundwater contamination at the Tallevast site in a reasonable manner and timeframe and, if implemented, would advance the substantial interests of Petitioners and all other persons affected by the contamination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that a final order be entered by the Department of Environmental Protection that approves SARA 3, as supplemented by the assessment and groundwater monitoring data and other information entered into evidence at the final hearing; and approves RAP 3. DONE AND ENTERED this 6th day of October, 2011, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 2011.
The Issue Issues for consideration in this case were those promoted through an administrative complaint brought by the Petitioner against the Respondent. Under the authority of Chapter 487, Florida Statutes, and Chapter 5E, Florida Administrative Code, the Petitioner seeks to impose an administrative fine against the Respondent for the use or application of certain restricted use pesticides without the benefit of an applicator's license.
Findings Of Fact Chapter 487, Florida Statutes, and Chapter 5E, Florida Administrative Code, empower the State of Florida, Department of Agriculture and Consumer Services (Petitioner) to regulate a category of pesticide known as "restricted- use pesticide." More particularly, as it is related to this dispute, the statute requires that those persons purchasing or using a restricted-use pesticide must be licensed by the Petitioner. The license is known as an applicator's license. Bobby Yon (Respondent) had held an applicator's license through October 31, 1983. On that date the applicator's license expired. Yon did not renew the license within sixty days of the expiration date. Consequently, it was incumbent upon Respondent to obtain a new applicator's license, in contrast to renewing the license as described in this paragraph before purchasing or using restricted-use pesticides in the future. Having failed to renew the license which expired on October 31, 1983, on that date or within the grace period which lasted for sixty days beyond that date, Respondent, without the benefit of a license, made the aerial application of a restricted-use pesticide known as "Nudrin 1.8," EPA Reg. No. 201-347. This application was made by Respondent in his capacity as an agricultural pilot. The application dates were April 25, May 6 and June 2, 1985, on an acreage of gladiolus at a business known as Scott's Gladiolus. On April 25, 1955, Respondent made aerial application of Nudrin to watermelons belonging to Steve Basford. The Nudrin which Respondent applied in the instances mentioned before was obtained by the Respondent from Altha Farmers Coop. That Nudrin was delivered to the airstrip where Respondent has his business and from there loaded on his plane. In a statement prepared by the Respondent upon a form provided by Petitioner through its employee Hal A. Davis, Respondent gave written acknowledgment of his use of Nudrin in the instances spoken to in the course of this recommended order. A copy of that affidavit may be found as Petitioner's composite Exhibit 1 admitted into evidence. In the statement he describes the acreage which was sprayed in the four instances mentioned and indicates that his son mixed and loaded the treatment into the plane while wearing rubber boots. It is further indicated that no other safety equipment was utilized. The Nudrin applications at issue are described as being made at the rate of two to four and a half gallons per acre total solution, depending on other things that may have been in the mixture. Respondent described how the Nudrin containers were rinsed in mixing tanks and later burned on site. Respondent points out the records of these applications were photographed by Davis; however, these records or copies of the records were not produced at the final hearing. Finally, in describing the experience with the substance Nudrin, Respondent states in his affidavit that he is aware that a restricted-use pesticide license was necessary to legally apply the restricted-use pesticide Nudrin. On June 30, 1984, without the benefit of an applicator's license, Respondent aerially applied the restricted-use pesticide known as "Red Panther 8 lb Toxaphene," EPA Reg. No. 42761-9. This was applied to a pea crop on the property of James Edenfield. One gallon of Toxaphene was mixed into twenty or twenty-five gallons of water. This substance was delivered to Respondent by the Farmers Coop, in a five gallon can. The balance of this substance is still at the airstrip location at his property and is seen by the Respondent as being part of the Coops inventory. In the affidavit made by the Respondent, he acknowledges that the documents related to this application were made available to Davis and were photographed by Davis. Nonetheless, as with the situation pertaining to Nudrin, copies of the documentation were not presented at hearing. Respondent acknowledges in the affidavit that he was aware at the time that he treated the land with the Toxaphene that a restricted-use pesticide license was needed to make that application. The Toxaphene which was applied to the Edenfield acreage had been purchased by Edenfield from the Farmers Coop. The affidavit that has been alluded to in the course of this recommended order had been prepared by Respondent upon the occasion of an inspection of his business premises in Altha, Florida, conducted by Hal A. Davis on June 5, 1985. As a part of the affidavit, Petitioner's composite Exhibit 1, Respondent makes mention of liability insurance held with Air South Insurance of Dothan, Alabama. On the other hand, Respondent acknowledges that although Florida law requires proof of liability insurance for the use of the subject chemicals or the posting of a bond, his insurance policy did not provide chemical liability. This requirement in law pertains to a necessary prerequisite to obtaining a license for purchase and use of restricted-use pesticides in Florida, as contemplated by Chapter 487, Florida Statutes. In addition to not having the necessary insurance coverage, Respondent had failed to post bond with the Department. Therefore, he could not have been licensed on the date of the inspection. By Respondent's remarks in the course of the final hearing, it is evident that Respondent recognized the necessity of being appropriately licensed before applying the restricted- use pesticides mentioned in this factual rendition, and that he was unable to obtain the necessary license, given the fact that he was without requisite liability insurance and had failed to post a bond in lieu of that insurance. His protestation that he had not renewed his license to apply restricted-use pesticides beyond the expiration date of October 31, 1983, based upon some misunderstanding with officials within the petitioning agency concerning forms for obtaining his new license is without credence. The more likely explanation is the fact that the Respondent, as he alluded to in his testimony, did not feel that he could afford the insurance coverage or bond amount and simply did not renew his license. In any event, it was incumbent upon the Respondent to seek and obtain timely renewal of his existing applicator's license or in the failure to do that, to obtain a new license as an applicator before setting out to apply restricted-use pesticides. Respondent failed to do this and during the hiatus between licenses which existed between October 31, 1983, and June 19, 1985, when he obtained a new applicator's license, Respondent applied restricted-use pesticides without the benefit of a license. In his testimony Respondent makes some reference to a license which he held in the period at question which pertains to dealers who sell restricted-use pesticides, this license being number 002027. This license did not allow him to purchase or use restricted-use pesticides. It only would allow selling to others who had the necessary license or authorization to purchase or use restricted-use pesticides, which, unlike the others, Respondent did not have.
