Findings Of Fact Respondent is a registered septic tank contractor. He is licensed locally to install septic tanks in Lee and Collier counties, where he has installed 250-450 septic tank systems in the past 15 years. He has been a septic-tank contractor for 25 years. He has a good record for performing septic-tank services. In November 1995, Respondent performed work for Charles Allen on Marco Island. The work consisted of drainfield repairs and a septic-tank pumpout. Respondent performed the drainfield repairs and pumped out the liquids from the tank, but failed to pump out the solids from the bottom of the tank. Unaware that the solids had not been removed, Mr. Allen paid Respondent the $1500 price on which they had agreed for all of the work. Three months later, Mr. Allen's septic tank backed up, dumping sewage in his home. This happened late at night, and Respondent was unable to come right over to repair the system. Mr. Allen thus contacted another contractor, who, for $205, pumped out at least eight inches of solids, which were causing the sewage to back up into the house. Since the repairs, Mr. Allen has had no other problems with his system. It is evident that Respondent failed to remove the solids in November, as three months are insufficient time for this kind of build-up and Mr. Allen's system has worked fine since the failure in February. In March 1996, Respondent performed repair work to a drainfield in Bonita Springs. Petitioner rejected the work for final approval on March 27, 1996. The grounds for rejection were that the drainfield was installed 4.8 inches too low, a large amount of the drainfield aggregate was sinking into the drainfield replacement material, and Respondent had added an extension onto the existing drainfield, rather than replace the entire drainfield, as the repair permit had required. Petitioner's inspector informed Respondent of the rejection on March On April 3, the inspector drove by the site and found that Respondent had covered the repaired system without having first called for a reinspection. Circumstances unknown to Respondent, the homeowner, and Petitioner at the time of initial permit rendered almost the entire plan for this repair job unfeasible. Among other factors was the fact that the drainfield was planned for a front yard, sandwiched between a driveway and a landscaped area. Also, Respondent discovered deficiencies in the original drainfield once he uncovered it. However, Respondent was not justified failing to call for a reinspection before covering the system. Respondent was irritated with Petitioner's representative for failing to come immediately to inspect the work, but this is no excuse for covering the repaired system with dirt prior to obtaining a reinspection. Shortly before the final hearing, Respondent dug up the system, installed an entirely new drainfield, and completed the repairs in a satisfactory fashion.
Recommendation It is RECOMMENDED that the Department of Health and Rehabilitative Service enter a final order imposing an administrative fine of $1000 against Respondent for a false payment statement and failure to call for reinspection prior to covering a system. ENTERED on October 10, 1996, in Tallahassee, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on October 10, 1996. COPIES FURNISHED: Susan Mastin Scott Senior Attorney Department of Health and Rehabilitative Services Post Office Box 60085 Fort Myers, Florida 33906 Attorney Michael F. Kayusa Post Office Box 6096 Fort Myers, Florida 33911 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building 2, Room 204X Tallahassee, Florida 32399-0700
Findings Of Fact The Respondent, Hance B. Jones, is a registered septic tank contractor. The Petitioner is charged with regulating septic tanks, and may initiate charges against septic tank contractors which fail to comply with the statutes and rules regulating septic tanks. The Department's local inspector, Mr. Land, was asked by a representative of Best Septic Tank Contracting to meet with the Best representative and Ms. Inez Quiett at Ms. Quiett's home and confer about a proposed septic tank repair. On March 5, 1992, Mr. Land visited the site, observed water standing around an area which he was advised was the existing septic tank and drain field, and was asked what would have to be done. Mr. Land advised that they would have to obtain a permit, and that the new drain field would have to be separated by at least 24 inches from the wet season water table, and that this would entail placing the drain field in a mound. Mr. Land left the site expecting to have a representative of Best pick up a permit for the repairs within a few days. When Mr. Land did not see anyone come in about the permit, he drove by Quiett's, and observed disturbed soil in the area of the drain field. He stopped, went to the Quiett's house, and spoke with Ms. Quiett's son. The son advised that they had repaired the drain field. Mr. Land asked who had repaired the field, and the son advised him that Mr. Jones had repaired it. On April 22, 1992, Mr. Land then wrote a letter to the Respondent and advised Jones that he had violated the law by repairing Quiett's septic tank and not obtaining a permit for the repair. Mr. Jones spoke with Land at Land's office, and denied that he had repaired the septic tank. Mr. Jones stated he had provided the materials and equipment used to repair the tank. On April 22, 1992, Ms. Quiett called Mr. Land on the telephone, and told Land that Mr. Jones had helped her with the tank, but denied that Jones had been her contractor. The Respondent denied that he was the contractor of the job; denied he was on the site; denied he supervised the work; and denied he received any compensation from Quiett. He indicated that he knew Ms. Quiett's brothers, who were contractors, and admitted that he had provided the materials used on the job and had loaned them his backhoe. Ms. Quiett was asked about the repairs to the system and invoked her privilege against self-incrimination.
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 therefore, RECOMMENDED that the Administrative Complaint against the Respondent be DISMISSED. DONE AND ENTERED this 26th day of August, 1992, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1992. COPIES FURNISHED: David West, Esquire District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609 Bobby Kirby, Esquire Route 2, Box 219 Lake Butler, FL 32054 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact Petitioner, SuperAmerica of Florida, Inc. (SuperAmerica) is affiliated with SuperAmerica Group, Inc., a corporation with headquarters in Lexington, Kentucky. SuperAmerica markets petroleum products from convenience store facilities in an eleven-state area concentrated in the Ohio Valley and upper Midwest. In 1985, SuperAmerica began constructing convenience store facilities in Florida, and opened its first stores in 1986. It installed state-of-the-art petroleum storage tanks, lines, dispensers and leak detection equipment at each new site. Casey McKenzie became SuperAmerica's administrative manager for its Florida facilities in October 1990. At that time there were approximately thirty-seven SuperAmerica convenience store facilities in Florida. Mr. McKenzie's duties included monthly reporting to corporate headquarters, environmental compliance, and emergency petroleum discharge response at the Florida sites. Mr. McKenzie left Florida in June 1993, after SuperAmerica completed its sale to Shell Oil Company of what was then over fifty sites. Virtually all of SuperAmerica's Florida sites had three separate tanks for different grades of gasoline, plus one tank for diesel fuel. The tanks were either 12,000 or 8,000 gallons in volume. Each site had between twelve and sixteen dispensers, and each dispenser had up to six nozzles for dispensing different grades of gasoline and diesel fuel. The Florida sites, including the sites at issue, experienced high volume sales as they were open twenty-four hours a day and were located in areas of heavy private and commercial traffic. The volume of sales required frequent storage tank refilling, sometimes daily or every other day. The volume of sales and frequent refillings made petroleum discharges in the form of spills, splashes and drips caused by human error a common occurrence. Customer overfill incidents involving small quantities of fuel were the most common occurrence. Other spills resulted when the underground storage tanks were being filled. SuperAmerica had procedures to minimize the risk of spills and to detect the spills or discharges. The tanks were all fitted with Gilbarco automatic tank gauging devices which computed volume of fuel and water in the tanks, the inches of fuel and water and the temperatures inside the tanks. Operators or staff also used long sticks to manually measure volume of fuel and water in the tanks. And a third method of measure was a daily sales inventory. Mr. McKenzie received the reports of these inventories on a periodic basis and store operators were instructed to watch for, and report unexplained discrepancies. To his knowledge, during his tenure as administrative manager, there were no unexplained discrepancies nor discrepancies in those inventories resulting from leaking tanks. At each site, including the sites at issue, there were six groundwater monitoring wells. The wells were generally installed during installation of the underground storage tanks in the same excavation pit. The monitoring wells were accessible through manhole covers on the surface of the concrete pad. Locked caps below the manhole covers were intended to maintain the environmental integrity of the wells. Water entered the wells through slots in the pipes which lined the well, from about a foot below the pad surface and extending below the water table. Prior to June 1991, the SuperAmerica area managers took water samples from the wells each month, performed sight and smell tests and recorded the results on an inspection report. Beginning in June 1991, SuperAmerica hired National Environmental Services and Testing (NEST) to perform the monthly groundwater sampling from the monitoring wells. NEST used a vapor monitoring device (organic vapor analyzer - OVA) in the monitoring wells to detect the pressure of organic vapors in addition to performing groundwater sampling. The monitoring wells at the seven sites at issue contained groundwater. At various times, as more specifically addressed below, NEST's monitoring reports for the sites at issue noted elevated organic vapor readings, odor present, and product in the form of skim, light skim, or sheen. Mr. McKenzie had procedures in place and carried out those procedures to respond to large volume spills or accidents above ground, as well as catastrophic leaks of underground tanks. These were his primary concerns. He did not expect a catastrophic leak in the relatively new equipment, and none occurred. Mr. McKenzie did not attribute any of the reports of elevated vapor readings, odor or presence of petroleum or diesel product in the form of skim or sheen, as evidence of tank or line failure. There are other rational explanations for the readings. Specifically, rainfall could easily dissolve and wash spilled fuel, antifreeze, oil or road grease into cracks in the pad, into manhole covers and onto the ground where it could easily seep into the monitoring wells. As conceded by counsel for SuperAmerica, there was a discharge at each of the seven sites, for purposes of the FPLRIP program. Printed text on the top of the Discharge Reporting Forms advises facilities of their obligation to report discharges or suspected releases within one day of discovery. For each site at issue, monitoring well records contained evidence of odor, product or elevated vapor readings more than one day prior to SuperAmerica's filing Discharge Reporting Forms. After filing Discharge Reporting Forms with DEP, Mr. McKenzie contacted Tanknology Corporation to schedule testing of the tanks and lines. The company was busy and was not able to complete the tests until some time (more than three days) after Mr. McKenzie filed the Discharge Reporting Forms. SuperAmerica did not intentionally cause a discharge at any of the sites, nor intentionally disable leak detection devices. When the Discharge Reporting Forms were filed, Mr. McKenzie was not aware of any spill or other discharge in excess of 25 gallons for which he had failed to file a reporting form within twenty-four hours. As of the date of the hearing there was no conclusive evidence of what caused the odor, product and elevated OVA readings in the monitoring wells. SuperAmerica's expert conjectures that they were caused by surface water runoff, sloppy transport deliveries, customer overfills and other routine problems of the high-volume facilities. In determining whether SuperAmerica was eligible under FPLRIP with regard to the sites at issue, DEP's program administrator, William Truman, considered only whether SuperAmerica properly reported suspected releases and whether it timely tested the storage systems. Those were appropriate considerations. The basis for denial as to each site is more specifically described below. On January 19, 1993, counsel for the parties executed a joint stipulation relating to an eighth facility site. In that stipulation, the agency recited its agreement that failure to report suspected releases within one working day of discovery could no longer, standing alone, serve as a basis for denial of restoration coverage eligibility under 1992 amendments to Chapter 376, Florida Statutes, governing FPLRIP. The stipulation also recited: Nothing in this Joint Stipulation shall be construed to mean that violation of the discharge response requirements contained in section 376.3072(2)(d), F.S. (1992) , and implemented in rules 17-769, 17-769.600(15) and (16), Florida Administrative Code is no longer a valid basis for denial of eligibility for restoration coverage on an incident by incident basis under FPLRIP. (Petitioner's Exhibit No. G) Hudson-DEP Facility No. 51-8837646 DOAH Case 92-6871 (Site 8023) At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system located at 9508 SR 52, Hudson, Pasco County, Florida. The facility consisted of four underground storage tanks (USTs): two 12,000 gallon gasoline USTS; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about March 1988. On August 21, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well five was 3800 ppm, while the OVA reading for monitor well six was 2800 ppm. On September 16, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four and six. The OVA reading for monitor well four was 1000 ppm, while the OVA reading for monitor well six was 2000 ppm. On October 15, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well four was 2400, five was 2900 ppm, and the OVA reading for monitor well six was 2200 ppm. On November 20, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well four was 3600, five was 3000 ppm, and the OVA reading for monitor well six was 6900 ppm. On December 4, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well four was 3100, five was 2800 ppm, and the OVA reading for monitor well six was 5100 ppm. On January 4, 1992, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well four was 1100, five was 2400 ppm, and the OVA reading for monitor well six was 2900 ppm. On March 6, 1992, NEST sampled the monitor wells at the facility. There was product in monitor wells four, five and six. The report also indicates there was an odor in monitor wells five and six. The OVA reading for monitor well six exceeded 10,000 ppm. Elevated readings and odor persisted in well six in April and June. On July 14, 1992, NEST sampled the monitor wells at the facility. There was an odor in monitor wells five and six. The OVA reading for monitor well four was 1400 ppm, while the OVA reading for monitor well six was 2600 ppm. On or about July 24, 1992, SuperAmerica filed a Discharge Notification Form with the Department. The form was signed by Casey McKenzie. The form indicates the date of discovery was July 14, 1992 (the most recent date on which NEST sampled the monitor wells). The method of initial discovery was a Vapor Reading Report from Monitoring Company. The Type of pollutant discharged was Unleaded gasoline. The Cause of leak and Estimated number of gallons lost were both Unknown. On or about August 26, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a certificate of tightness. The test report commented that one dispenser had leaks at the nozzle when pumping and the tester had the store put an Out of Order sign on the nozzle. On or about September 1, 1992, the Department issued an order declaring SuperAmerica site no. 8023 eligible for FPLRIP restoration coverage for the reported discharge. On October 6, 1992, and again on October 21, 1993, the Department issued its amended orders of ineligibility for FPLRIP restoration coverage for the discharge reported. Melbourne-DEP Facility No. 05-8840685 DOAH Case 93-4402 (Site 8024) At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8024) located at 700 West New Haven Avenue, Melbourne, Brevard County, Florida. The facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about August 1988. On December 13, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product and an odor in all six wells. The OVA readings for the monitor wells ranged from 4200 ppm to 8500 ppm. On January 16, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product and an odor in all six wells. The OVA readings for the monitor wells ranged from 1200 ppm to 8000 ppm. On February 19, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product present in wells one, two, five and six. There was an odor in all six wells. The OVA readings for the monitor wells ranged from 2100 ppm to an excess of 10,000 ppm. On March 19, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product and an order in monitor wells one and five. The OVA readings for wells one and five both exceeded 10,000 ppm. Odor and elevated readings persisted in April. On June 20, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well six exceeded 10,000 ppm. There was odor in wells one, five and six. The report contains the notation Charlie will check early July. If readings have not declined, he will file DNF. On July 9, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA readings for the wells ranged from 220 ppm to 7100 ppm. There was odor in wells three, four, five and six. On July 17, 1992, Brevard County conducted an inspection of the facility. The Natural Resources Management Division of Brevard County is DEP's designated local program for purposes of the FPLRIP. The report noted the excess OVA readings since December. It required a tightness test and investigation into the source of the discharge, and it required a contamination assessment. It also noted that administrative action will be taken on this facility for major violation of 17-761, Florida Administrative Code . . . (Respondent's Exhibit No. 1) On or about July 21, 1992, SuperAmerica filed a Discharge Notification Form with the Department. The DNF indicates the date of discovery was July 9, 1992 - the date on which NEST sampled the monitor wells. The method of initial discovery was Vapor Readings. The Type of pollutant discharged was Unleaded gasoline. The Cause of leak and the "Estimated number of gallons lost were both Unknown. On or about July 28, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a certificate of tightness. On or about July 1, 1993, the Department issued its Order of Ineligibility for FPLRIP restoration coverage for the reported discharge. Cocoa-DEP Facility No. 05-8841566 DOAH Case 93-4402 and 93-4403 (Site 8034) At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8034) located at 1600 Clear Lake Road, Cocoa, Brevard County, Florida. The facility consisted of three underground storage tanks: two 12,000 gallon gasoline USTs; and one 8,000 gallon UST. The USTs were installed in or about January 1989. On December 13, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product present in well number five. There was an odor present in all of the wells. The OVA readings for wells one, two, three, four and six all exceeded 10,000 ppm. On January 16, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells one through four and well six. With the exception of well three, the OVA readings for all of the wells exceeded 10,000 ppm. On February 16, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in all of the wells. The OVA readings for the wells ranged from 2100 ppm to an excess of 10,000 ppm. On March 19, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in all of the wells. The OVA readings for the wells ranged from 4100 ppm to an excess of 10,000 ppm. On or about March 31, 1992, Brevard County conducted an inspection at site no. 8034. The Pollutant Storage Tank System Inspection Report Form cover sheet prepared by the Brevard County Inspector noted in part: From 12/31/91, OVA readings in all wells have exceeded reportable quantity (>500 ppm); in some instances, 5 wells >10,000 ppm. (Respondent's Exhibit No. 2) The Inspection form also noted the facility failed to report Suspected releases within one working day of discovery. The above-referenced Underground Storage Tank Compliance Inspection Form also noted the facility failed to report Confirmed releases (positive response of a release detection device) within one working day of discovery (Respondent's Exhibit No. 2). The form requires a DRF within one day and a tightness test ASAP. On or about March 31, 1992, SuperAmerica filed a Discharge Notification Form with the Department. The DNF was signed by Mr. Casey McKenzie. The DNF indicated the date of test or discovery was March 30, 1992. The method of initial discovery was a DER Compliance Audit. The DNF does not contain information concerning the estimated number of gallons lost. The Cause of leak and the Type of pollutant discharged were both Unknown. On or about April 5, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a tightness certificate. The test report noted no product visible in the monitoring wells, but odor was present. On July 1, 1993 and again on October 21, 1993, the Department issued its order and amended order of ineligibility for FPLRIP restoration coverage for the reported discharge. Sarasota-DEP Facility No. 58-8840985 DOAH Case 93-5734 (Site 8035) At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8035) located at 4405 North Washington Boulevard, Sarasota, Sarasota County, Florida. The facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about August 1988. On September 17, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product present in well six. There was an odor in all six wells. The OVA reading for wells one, two, three and five all exceeded 1500 ppm. On October 18, 1991, NEST sampled the monitor wells at the above- referenced facility. Both product and an odor were present in all six wells. The OVA readings for wells one through five exceeded 700 ppm. On November 22, 1991, NEST sampled the monitor wells at the above- referenced facility. Both product and an odor were present in all six wells. The OVA readings for wells one, two and five were 2200 ppm, 1200 ppm and 4000 ppm. On December 10, 1991, NEST sampled the monitor wells at the above- referenced facility. Product and odor were present in all six wells. The OVA reading for well five was 3100 ppm. On January 20, 1992, NEST sampled the monitor wells at the above- referenced facility. There was both product and an odor present in all six wells. The OVA reading for well five was 3200 ppm. On February 12, 1992, NEST sampled the monitor wells at the above- referenced facility. There was both product and an odor present in all six wells. The OVA reading for well two was 900 ppm. On March 11, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product in all six wells and odor present in wells one, two and five. The OVA reading for well two was 900 ppm. On April 12, 1992, NEST sampled the monitor wells at the above- referenced facility. There was both product and an odor present in wells one, two and three. On or about April 16, 1992, Sarasota County conducted a routine inspection at the above-referenced facility. The Sarasota County Pollution Control Division is DEP's designated local program agency for purposes of FPLRIP. On the Pollutant Storage Tank System Inspection Report Form the Sarasota County Inspector noted: Monitor wells 1, 2, 3 and 5 had OVA readings exceeding 5000 ppm. - High readings and product in wells has been recorded in monthly report by the facility since October, 1991. (Respondent's Exhibit 4) The inspector also noted the facility Has recorded high OVA readings in several MW's but not filed DRF. The County Inspector also noted the facility failed to report Any spill, overfill, or other discharge within one working day of discovery and that the facility failed to report Suspected releases within one working day of discovery. The County Inspector made the following notations on the back of the report: Monitoring well log indicates excessive contamination free product in all wells high OVA readings as [far] back as October '91 no records of any tightness testing in regards to the increase of contamination levels found in wells. DRF on file? (Respondent's Exhibit 4) A letter from Sarasota County dated April 22, 1992, required laboratory analysis of monitor well water within 45 days. The analysis was done by NEST and was provided to Sarasota County on June 29, 1992. On July 7, 1992, Sarasota County received the report and requested that SuperAmerica file a Discharge Reporting Form due to the appearance of excessive contamination. On or about July 15, 1992, SuperAmerica filed a DNF with the Department. The DNF indicates July 14, 1992 as the Date of receipt of test results or discovery. On or about August 29, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a certificate of tightness. On or about September 17, 1993, the Department issued its order declaring SuperAmerica ineligible for FPLRIP restoration coverage for the reported discharge. Clearwater DEP Facility No. 52-8944446 DOAH Case No. 93-4406 (Site 8036) At all times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8036) located at 4450 Easy Bay Drive, Clearwater, Pinellas County, Florida. The above- referenced facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about August 1989. On September 16, 1991, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 8000 ppm while the OVA reading for monitor well six was 3000 ppm. On October 17, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product and an odor present in well five. The OVA reading for well five was 8500 ppm. On January 1, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for wells four and five was 1100 ppm. On February 6, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product present in well five. The OVA reading for well five was 400 ppm. On March 11, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 2800 ppm. On April 7, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 650 ppm. On July 13, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 1100 ppm. Casey McKenzie prepared a Discharge Notification Form but did not file it because he believed the local agency had instructed him to hold it pending further investigation. On or about August 28, 1992, Tanknology Corporation performed tank and line tests at the site and issued a Certificate of Tightness. On October 12, 1992, Pinellas County conducted a routine inspection at the above-referenced facility. The HRS Pinellas County Health Unit is the agency's designated local agency for FPLRIP. The County Inspector made the following notation on the Inspection Report Form Cover Page: What actions were taken in response to positive responses in one or more monitor wells for the following months - 10/91; 9/91; 11/91; 1/92; 2/92; 3/92; 4/92; 7/92 - provide copy of monitor these monitor reports - take appropriate actions at this time. (Respondent's Exhibit 5) On or about October 27, 1992, SuperAmerica filed the July 13, 1992 DNF with the Department. The DNF reflected a discovery date of July 13, 1992. The DNF indicated the method of initial discovery was a vapor reading from monitor well testing company. On or about July 1, 1993, the Department issued its order declaring SuperAmerica ineligible for FPLRIP restoration coverage for the reported discharge. Englewood-DEP Facility No. 08-8945143 DOAH Case 93-2710 (Site 8038) At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8038) located at 2710 South McCall Road, Englewood, Charlotte County, Florida. The facility consisted of four USTs: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about September 1989. On December 10, 1991, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 6200 ppm while the OVA reading for monitor well five was 9800 ppm. On January 20, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 2000 ppm while the OVA reading for monitor well five was 1100 ppm. On February 13, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 1500 ppm. On April 10, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 1100 ppm while the OVA reading for monitor well five was 5900 ppm. An Interoffice Memo dated April 24, 1992, from Mr. McKenzie to the manager of store no. 8038 provided in part: The monthly test of your store's monitor wells revealed the following results which need to be addressed: Monitor well number 5 showed vapor readings exceeding 5900 PPM. This is a reportable quantity to the DER. No previous results have show [sic] levels this high. (Petitioner's Exhibit 38C) This latter assertion is obviously in error given the fact that in December, 1991, the OVA reading for well four was 6200 ppm while the OVA reading for well five was 9800 ppm. On May 12, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 2100 ppm while the OVA reading for monitor well five was 3000 ppm. On June 15, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 2500 ppm. On July 20, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 1100 ppm. On or about July 24, 1992, SuperAmerica filed a Discharge Notification Form with DEP. The DNF was signed by Casey McKenzie. The DNF indicated the Date of Test or discovery was July 20, 1992. The method of initial discovery was Vapor Reading Report from Monitoring Reports. The estimated number of gallons lost and the cause of leak were both unknown. On or about September 1, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a certificate of tightness. On September 4, 1992, Casey McKenzie wrote to DEP's South District Office with regard to the DNFs filed for Englewood Facility and the Punta Gorda Facility. With regard to SuperAmerica's failure to timely report the releases, the letter provided in part: In your letter, you refer to the elevated OVA readings recorded several months ago but not reported. This was simply an error on my part. SuperAmerica began utilizing an outside contractor to perform monitor well sampling at these locations in December. Prior to that, we performed the monthly sampling ourselves using the sight and smell method appropriate for ground water well monitoring... I was not aware of the thresholds for reporting of vapor levels. I was aware we had no sheen or odor present. When our contractor and I finally discussed the importance of the vapor readings and the ramifications involved, we immediately filed Discharge Notification Forms for suspected releases. . . Any errors made in reporting were due to lack of knowledge on my part, ... (Respondent's Exhibit 3) Mr. McKenzie's assertion of ignorance cannot be reconciled with the statements set forth in his Interoffice Memo dated April 24, 1992. See paragraph 85, above. On or about April 23, 1993, and again on October 20, 1993, DEP issued its order and amended order declaring SuperAmerica ineligible for FPLRIP restoration coverage for the reported discharge. Punta Gorda-DEP Facility No. 08-9045849 DOAH Case 93-2711 (Site 8039) At all material times, SuperAmerica was the owner/operator of its petroleum storage tank system (site no. 8039) located at 3035 Tamiami Trail, Punta Gorda, Charlotte County, Florida. The facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about January 1990. On December 10, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product in well four. There was an odor in all of the wells. The OVA readings for wells one, three, four, five and six all exceeded 10,000 ppm. On January 20, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well two was 600 ppm; well three was 4500 ppm; well four was 900 ppm; and well five was 2500 ppm. On February 20, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two, three and five. The OVA reading for well one was 6000 ppm; wells two and three were in excess of 10,000 ppm; well four was 4100 ppm; and well five was 3800 ppm. On March 9, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two, three and five. The OVA reading for well two was in excess of 10,000 ppm; well three was 2000 ppm; and well four was 3000 ppm. 26 On April 10, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two and three. The OVA reading for well two was 1500 ppm while the OVA reading for well three was 550 ppm. On May 14, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two and three. The OVA reading for well two was 2200 ppm while the OVA reading for well three was 1100 ppm. On June 15, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in well two. The OVA reading for well two was 7300 ppm; well three was 1500 ppm; and well four was 1100 ppm. On July 20, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two and three. The OVA reading for well one was in excess of 10,000 ppm; well three was 2000 ppm; and well four was 3100 ppm. On or about July 24, 1992, SuperAmerica filed a Discharge Notification Form with the Department. The DNF was signed by Casey McKenzie. The DNF was dated July 24, 1992. However, the DNF did not include the information as to the date of test or discovery of the discharge. The cause of the leak and the estimated number of gallons lost were both unknown. The DNF indicated the method of discovery was a Vapor Reading Report from Monitoring Company. On or about August 27, 1992, the agency conducted an inspection at Site 8039. During the inspection, no obvious odors were detected in the monitoring wells, indicating that there may have been errors in the original OVA readings. The agency directed SuperAmerica to have groundwater samples analyzed. The analysis was provided to the agency on October 27, 1992. On or about August 27 and September 4, 1992, Tanknology Corporation International performed tank and line tests at the sight and issued certificates of tightness. On or about April 23, 1993, and again on October 20, 1993, DEP issued its order and amended order declaring SuperAmerica ineligible for FPLRIP restoration coverage for the reported discharge. North Ft. Myers-DEP Facility No. 36-8631544 DOAH Case 93-4405 (Site 8006) At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8006) located at 4600 Bayline Drive, North Ft. Myers, Lee County, Florida. The facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gasoline UST; and one 8,000 gallon diesel UST. The tanks were installed on or about April 1987. In or about November 1992, SuperAmerica hired Environmental Science and Engineering, Inc. (ESE) to perform an environmental audit in conjunction with SuperAmerica's planned sale of the property. On January 7, 1993, ESE was performing soil borings in the tank farm and pump island areas. Soil samples were being analyzed for the presence of excessive contamination, if any. Those borings were made with a four-inch diameter hand auger. At boring SB-2, near the easternmost fuel island, the ESE employee cracked the fiberglass midgrade unleaded product line with the hand auger causing an underground discharge. SuperAmerica discovered the discharge on January 16, 1992 and filed a Discharge Reporting Form on that same date. On July 1, 1993, DEP issued its Order denying SuperAmerica eligibility for restoration coverage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Environmental Protection enter its final order denying eligibility to SuperAmerica in cases nos. 92-6871, 93-2710, 93- 2711, 93-4402, 93-4403/93-4404, 93-4406 and 93-5734; granting eligibility in case no. 93-4405; and dismissing case no. 93-2712 (voluntary dismissal). DONE and ENTERED this 6th day of March, 1996, in Tallahassee, Florida. MARY CLARK 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 6th day of March, 1996. APPENDIX TO RECOMMENDED ORDER The findings of fact proposed by both parties, or stipulated by the parties, have been adopted in whole or in substance, except for the following: SuperAmerica's Proposed Findings of Fact. Rejected as unnecessary or immaterial: 11-17, 20-23, 26-29, 39-40, 48-52, 59-66, 72-75, 79-87, 90- 92, 94-96, 98, 101, 104, 106-107, 109-147, 166, 173, 181,183, 203, 211-212, and 220. Rejected as contrary to the weight of evidence or unsupported by credible evidence: 97, 108, 149-155. DEP's Proposed Findings of Fact. These findings have all been adopted in substance. Additional findings have been made however, to explain the background and include facts common to all of the sites. COPIES FURNISHED: Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road, Suite 654 Tallahassee, Florida 32399 Kenneth Plante General Counsel 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Gary M. Pappas, Esquire POPHAM, HAIK, SCNOBRICH and KAUFMAN, LTD. 4000 International Place 100 Southeast Second Street Miami, Florida 33138 James M. Ellerbe, Esquire SuperAmerica Group Law Department 3499 Dabney Drive Lexington, Kentucky 40509
The Issue The issue for consideration in this hearing is whether the Petitioner is entitled to reimbursement for clean up costs associated with the Initial Remedial Action, (IRA), activities of the Abandoned Tank Restoration Program performed at his facility, and if so, in what amount.
Findings Of Fact At all times the Respondent, Department of Environmental Protection, (Department), has been the state agency in Florida responsible for the administration of the state's Abandoned Tanks Restoration Program. Petitioner is the owner and operator of Mohammad's Supermarket, Department facility No. 29-8628197, a food market and gasoline station located at 3320 Hillsborough Avenue in Tampa. Petitioner has owned and operated the facility for approximately the last ten years. The facility in question included three 5,000 gallon gasoline underground storage tanks and one 5,000 diesel underground storage tank. The diesel tank has not been used for the storage of diesel product for the entire time the Petitioner has owned the facility, at least ten years, but the three gasoline tanks were in use after March 1, 1990. Gasoline tanks were reinstalled at the facility and are still in use. In March, 1993, Petitioner removed all four underground storage tanks from the facility and performed initial remedial action. The field and laboratory reports of the soil and groundwater samples taken at the site at the time the tanks were removed showed both gasoline and diesel contamination. In October, 1993, the Petitioner submitted an application for reimbursement of certain costs associated with the IRA program task to the Department. Thereafter, by letter dated August 5, 1994, the Department notified Petitioner that it had completed its review of the reimbursement application and had allowed Petitioner 25% of the total amount eligible for reimbursement. This was because since the Petitioner continued to use the gasoline tanks after March 1, 1990, the Petitioner's ATRP eligibility is limited to clean up of only the diesel contamination. Petitioner's application for reimbursement covered the entire cost of the tank removal, both gasoline and diesel, and did not differentiate between the costs associated with the remediation of the gasoline contamination and those associated with the diesel contamination. The 25% allowance was for the one tank, (diesel fuel), which was eligible for ATRP clean up reimbursement. The Department subtracted from the personnel costs in the amount of $5,996.25, claimed in Section 2A of the claims form, the sum of $45.00 for costs associated with ATRP eligibility status; $497.50 claimed as a cost associated with the preparation of a Tank Closure Report, and $3,508.75 claimed as costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR). These deductions were made because costs associated with ascertaining ATRP eligibility status, the preparation of a Tank Closure report, and the preparation of a preliminary CAR are all costs ineligible for reimbursement. These three ineligible costs total $4,051.25. When this sum is deducted from the amount claimed, the remainder is $1,944.50. The Department then reduced this figure by prorating it at 25% for the diesel tank and 75% for the gasoline tanks, disallowing the gasoline portion. With that, the total reimbursement for Section 2A, personnel, costs is $486.25. Petitioner claimed $1,765.00 for rental costs, (Section 2C), associated with soil removal, from which the Department deducted the sum of $1,550.00 which represents costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR), which is not eligible for reimbursement. The balance of $215.00 was reduced by the 75%, ($161.27), which related to the three gasoline tanks, leaving a balance of $53.75 to be reimbursed for rental costs attributable to the diesel contamination. Petitioner also claimed $12,865.75 for miscellaneous costs associated with soil removal. This is listed under Section 2I of the application. From that figure the Department deducted the sum of $9,455.99 as costs attributable to the three gasoline tanks. In addition, $2,017.43 was disallowed because it related to the preliminary CAR, and $3,151.99 was deducted because the tank was removed after July 1, 1992. The applicable rule requires justification in the Remedial Action Plan, (RAP), for removal of tanks after that date. Such costs, when justified, can be reimbursed as a part of a RAP application. A further sum of $1,759.66 was deducted from the 2I cost reimbursement since the applicant got that much as a discount on what it paid. Together the deductions amounted to $16,385.07, and when that amount is deducted from the amount claimed, a negative balance results. Section 3 of the application deals with soil treatment. Subsection 3I pertains to such miscellaneous items as loading, transport and treatment of soil. The total amount claimed by Petitioner in this category was $13,973.44. Of that amount, $10,480.00 was deducted because it related to the three gasoline tanks. The amount allowed was $3,493.44, which represents 25% of the total claimed. Category 7 on the application form deals with tank removal and replacement. Section 7A relates to personnel costs and Petitioner claimed $4,187.00 for these costs. Of this, $3,140.25 was deducted as relating to the three gasoline tanks and amounted to 75% of the claimed cost. In addition, $1,046.75 was deducted because the diesel tank was removed after July 1, 1992 and there was no justification given for the removal at that time. This cost might be reimbursed through another program, however. In summary, all personnel costs were denied, but so much thereof as relates to the diesel tank may be reimbursed under another program. Section 7C of the application form relates to rental costs for such items as loaders, trucks and saws. The total claimed was $2,176.00. Of this amount, $1,632.00 was deducted as relating to the three gasoline tanks, and an additional $544.00 was deducted as being associated with the non-justified removal of the diesel tank after July 1, 1992. As a result, all costs claimed in this section were denied. In Section 7D, relating to mileage, a total of $12.80 was approved, and for 7G, relating to permits, a total of $28.60 was approved. In each case, the approved amount constituted 25% of the amount claimed with the 75% disallowed relating to the three gasoline tanks. Section 7I deals with miscellaneous expenses relating to tank removal and replacement. The total claimed in this section was $2,262.30. A deduction of $1,697.11 was taken as relating to the three gasoline tanks, and $565.69 was deducted because the removal after July 1, 1992 was not justified in the application. This cost may be reimbursed under a separate program, but in this instant action, the total claim under this section was denied. Petitioner asserts that the Department's allocation of 75` of the claimed costs to the ineligible gasoline tanks is unjustified and inappropriate. It claims the majority of the costs where incurred to remove the eligible diesel fuel contamination and the incidental removal of overlapping gasoline related contamination does not justify denial of the costs to address the diesel contamination. To be sure, diesel contamination was detected throughout the site and beyond the extend of the IRA excavation. The soil removed to make room for the new tanks was contaminated and could not be put back in the ground. It had to be removed. The groundwater analysis shows both gasoline and diesel contamination at the north end of the property furthest from the site. The sample taken at that point, however, contains much more gasoline contaminant than diesel. Petitioner contends that the costs denied by the Department as relating to gasoline contamination were required in order to remove the diesel contamination and Petitioner should be reimbursed beyond 25%. It contends that the diesel contamination could not have been removed without removing all four tanks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered denying Petitioner request for additional reimbursement of $27,653.82 and affirming the award of $6,629.07. RECOMMENDED this 25th day of September, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1995. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Francisco J. Amram, P.E. Qualified Representative 9942 Currie Davis Drive, Suite H Tampa, Florida 33619 Virginia B. Wetherell Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-1000 Kenneth Plante General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-1000
The Issue The issue in this case is whether Petitioner failed to obtain a permit for abandoning an on-site sewage treatment and disposal system septic tank, and failed to notify Respondent so that Respondent could inspect the system prior to abandonment, in violation of Section 386.0065, Florida Statutes (1997), and, if so, whether Petitioner should pay a $500 fine. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Respondent is the state agency responsible for issuing citations under Chapter 386 and is the licensing authority for Petitioner. The Osceola County Health Department (the "Department") is an agency of Respondent. All Pro Services ("All Pro") practices septic tank contracting in Osceola, Orange, and Seminole counties. All Pro is a Florida corporation wholly-owned by Mr. Wayne H. Crotty. Mr. Crotty is licensed in the state as a septic contractor pursuant to Chapter 386. Mr. Crotty has been in the septic tank business for over 25 years. He has extensive experience in septic tank repair and contracting. Mr. Crotty also has had experience in the rule-making process conducted by Respondent pursuant to Florida Administrative Code Chapter 10D-6. He has participated in various committees and held offices in the Florida Septic Tank Association. (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) In the summer of 1996, Petitioner submitted an application to the Department for a repair permit. Petitioner sought to install a standard drainfield utilizing gravity fall from the existing septic tank of a mobile home owner who used the mobile home facility as a day-care center. The existing drainfield was antiquated, clogged, and had ceased disposing effluent properly. Petitioner made arrangements for the day-care center to refrain from using water or sewage for a period of hours so that the drainfield could be repaired. The application came to the attention of Mr. Thomas Franklin Wolf, Director of the Department's Environmental Health Section. Mr. Wolf did not accept the site evaluation in the application. He chose to perform his own evaluation of the repair site. When Mr. Wolf performed a site evaluation, he placed the seasonal high water table two inches higher than the high water table stated by Petitioner in the application for a repair permit. As a result, Mr. Wolf issued the permit at an elevation that would have required either the use of a pump system or elevated plumbing lines in the existing septic tank to meet the higher elevation deemed necessary by Mr. Wolf. The higher elevation established in the permit could be accommodated in either of two ways. The plumbing underneath the mobile home, along with the septic tank, could be raised. Alternatively, a new pump, and other equipment meeting the requirements of Chapter 10D-6, could be installed. The repair permit issued by Mr. Wolf contemplated the use of a new pump chamber complete with alarm. Pumps fail, are problematic, and are expensive. A conventional gravity-fed drainfield line is preferable, whenever feasible, to the use of a pump chamber system and is less expensive. Petitioner determined that the plumbing and septic tank could be elevated to meet the higher elevation requirements thereby avoiding the need for a pump system and its increased cost. This lower-cost alternative satisfied the requirements of Chapter 10D-6 for a septic tank drainfield. Based on past experience, Mr. Crotty believed he could obtain the Department's approval of this alternative to the pump chamber requirements of the permit. The Department had no objection to an alternative that achieved the higher elevation requirement with a gravity-fed system. One risk associated with Petitioner's alternative was that the existing septic tank might not withstand the rigors of being excavated and raised and could break during the repair process. After conferring with the homeowner about the matter, Petitioner proceeded to elevate the existing plumbing lines and septic tank. Petitioner began excavation and removed the lid from the existing septic tank. Petitioner then determined that it would not be feasible to lift the tank up and reinstall it at the higher elevation due to the age and style of the tank. Petitioner determined that the best way to proceed was to abandon the old tank and to install a new tank at the higher elevation. Petitioner replaced the existing septic tank without obtaining a separate abandonment permit. Petitioner did not need a separate abandonment permit. The repair permit was inclusive of the abandonment of the existing tank. In a previous repair effort for another customer, Petitioner broke the existing septic tank while attempting to elevate the tank to a higher location. The prior incident led to a disagreement between Petitioner and the Department over whether a separate abandonment permit was required for replacing a tank in the course of a repair. Petitioner wrote a certified letter to the Department and Department's counsel memorializing an understanding reached during discussions with Department representatives. Any requirement for a separate abandonment permit in the course of a repair was tabled pending further review by the state health office in Tallahassee. The letter further stated Petitioner's understanding that under Chapter 10D-65, the replacement of an existing tank was provided for through a repair permit, and that no separate abandonment permit is necessary for an abandonment which occurs in conjunction with a repair effort. The letter was received by Mr. Wolf on behalf of the Department. In response, the Department specifically informed Petitioner that the replacement of an existing tank is provided for through the repair permit. Mr. Wolf never retracted this position in his dealings with Petitioner. At about the same time, the state health office, through its acting Health Officer for Environmental Health, issued an interoffice memorandum advising every district administrator in the state that a separate abandonment permit is not required when an existing tank is abandoned during repair. The interoffice memorandum stated, in relevant part: This addresses permitting procedures when a septic tank is abandoned in conjunction with a system repair. Since the repair and tank abandonment inspections can be conducted at the same time, a separate permit and fee is not required if a tank is abandoned in conjunction with a repair permit. The repair permit should specify the abandonment requirements from s. 10D-6.053, F.A.C., and the requirements to have the abandonment inspected. If an additional inspection visit is required for either the repair or abandonment, the unit should charge the $25.00 re-inspection fee. Respondent's memorandum served as the Department's official interpretation of its rules relating to abandonment procedures. The memorandum made a separate abandonment permit unnecessary because the repair permit "is inclusive of the abandonment if the abandonment is necessary." The repair permit in this case suffices as an abandonment permit. Petitioner relied upon the representations of Mr. Wolf personally as well as the Department memorandum of February 18, 1996. Based upon Department policy, Petitioner was not required to amend its permit application to seek specific approval for abandonment of the existing tank, because the tank was being abandoned in conjunction with a repair permit. Petitioner pumped out, ruptured, and demolished the old septic tank with the exception of the inlet end wall and the sidewall closest to the tank. Petitioner left intact the latter portions of the old septic tank for inspection purposes and for stabilization. Petitioner placed the lids and the broken pieces of concrete from the tank alongside the new septic tank that was installed. Mr. Crotty requested an inspection by the Department. Inspector Garner arrived on the scene with a standard probe. The probe is a tool useful for inspecting on-site sewage disposal systems. Mr. Crotty informed Mr. Garner that Petitioner had abandoned the old tank and replaced it with a new one. Mr. Crotty took Mr. Garner over to the site and specifically pointed out the remaining sidewall of the old tank and the lids piled up on-site and remaining from the old tank. Mr. Garner inspected the repairs and satisfied himself that Petitioner had installed a new septic tank in the place of the old tank and had done it in a way that would allow gravity feeding to the new drainfield. The repairs dispensed with the need for a pump and were accomplished at a lower cost to the customer. After the inspection on August 13, 1998, and a subsequent review on August 14, Inspector Garner approved the installation by Petitioner. The approval specifically approved the use of a gravity-fed line rather than the use of the pump contemplated in the permit. The approval constituted the "construction final" approval for the septic system that was repaired. Rule 10D-6 does not specify when the inspection for an abandonment of a septic tank in conjunction with a repair is to occur. Nor does it say anything about requesting an inspection before the tank is filled with sand or other suitable material and covered. It was Inspector Garner's practice, and the unwritten policy of the Department, to conduct inspections of damaged septic tanks at the same time the Department inspected repair constructions. The practice of the Department in such an inspection was to inspect the abandoned tank after it had been pumped and the bottom ruptured, but before a new tank was installed. According to Department practice, the inspection of an abandonment in conjunction with a repair must determine that the tank had been pumped and that the bottom of the tank had been opened or ruptured or collapsed to prevent the tank from retaining water. The inspection can only occur after the tank has been pumped out, opened, ruptured or collapsed. Inspector Garner arrived for the inspection after abandonment of the old tank. Mr. Garner does not dispute that Petitioner abandoned the old tank, but maintains that the abandonment was accomplished without proper notification to the Department. Mr. Garner approved the construction, but recorded x- marks on the approval form adjacent to a box for abandonments and next to "tank pumped" and "tank flushed and filled." Mr. Garner also recorded on the form under "explanation of violations" a notation that the old septic tank "was abandoned without any inspection of [sic] verification." The promulgated rules of the Department and Respondent do not require an inspection before an abandoned tank is filled with sand, or other suitable material, and covered. It was the Department's unwritten policy, evidenced by its practice, to insist that inspection of the abandoned septic tank occurred before the tank is actually crushed. The promulgated rules of Seminole and Orange counties do not require inspection prior to abandonment of an existing tank. The unwritten policies of Seminole and Orange counties deviate from those of the Department. The Seminole County Health Department ("Seminole") also received the Department's interpretive memorandum regarding abandonment of septic tanks in conjunction with repairs. Seminole concluded that abandonment inspections should be conducted simultaneously with the final inspection for repairs. At that point, the old septic tank is already ruptured and filled with sand. Seminole adopted the practice of inspecting abandoned septic systems with a probe to verify the pump-out and the rupturing of the old tank. It is the same type probe used by Mr. Garner and the Department. The probe allows a department employee to verify all of the requirements of Rule 10D-6.053 for abandonment. The Orange County Health Department ("Orange County") also received the interpretive memorandum concerning abandonment of septic tanks in the course of repair procedures. By the time the memo was received, however, it was already the practice of Orange County not to require a separate abandonment permit for an abandonment as part of a repair. In Orange County, inspectors permitted abandonment inspections to occur at the point where the tank was already collapsed and covered with sand. The inspection was accomplished with the use of a probe.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent enter a final order finding Petitioner not guilty of the allegations against it and dismissing the citations. DONE AND ENTERED this 24th day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1998. COPIES FURNISHED: Marya Reynolds Latson Marion County Health Department Post Office Box 2408 Ocala, Florida 34478-2408 Stephen D. Milbrath, Esquire Allen, Dyer, Doppelt, Milbrath and Gilchrist, P.A. Post Office Box 3791 Orlando, Florida 32802-3791 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Pete Peterson Department of Health 2020 Capital Circle, Southeast Bin A 02 Tallahassee, Florida 32399-1703
The Issue The issue is whether the challenged two working day notice provision of existing Rule 5F-11.047(1), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority as defined in Section 120.52(8), Florida Statutes.
Findings Of Fact The Department is the state agency charged by law with regulation of the liquefied petroleum (LP) gas industry. Sections 570.07(16)(k), 570.07(23), 527.055, and 527.06, Florida Statutes. Petitioner bears the name "1st Propane of Bushnell," a registered fictitious name of Par-Gas, Inc. Petitioner is a Category I liquefied petroleum gas distributor, licensed and regulated by the Department. There are approximately 460 licensed LP gas dealers in Florida. Florida’s licensed LP gas dealers include one-man operations, mom and pop family-owned businesses, regional marketers and national multi-state marketers. LP gas operations in Florida are unique compared to other states, in that Florida has many small volume users. The Department issues the Category I LP gas dealer license only to entities, not to individuals. The license permits the licensee gas company to transport LP gas, fill LP gas containers, sell LP gas containers, and to service, install, or repair appliances or equipment that use LP gas. Most LP gas dealers own the LP gas tank or cylinder installed at the customer location. Accordingly, when the dealer delivers LP gas to its customer, it is filling or refilling its own container; unless the customer owns the container, then the dealer fills the customer’s container. LP is a by-product of the oil refining process. The most common LP gas in Florida is propane. LP gas has a boiling point of minus 44 degrees Fahrenheit. The very cold LP gas is stored in the container under pressure of approximately 145 pounds per square inch (PSI).1 LP gas expands approximately 270 times as it changes from a liquid to a vapor. LP gas vapor is one and one-half times heavier than air. Because LP gas is heavier than air, when released into the air, LP gas vapor drops, pools and accumulates in low areas. It will not disperse in areas where there is no wind movement. A spark from static electricity, electric motors, automobile fan motors, exhaust pipes, catalytic converters, air conditioning compressors or lit cigarettes will ignite LP gas, causing explosion or fire. LP gas is more volatile than natural gas. Unlike natural gas which is delivered to the customer by pipe, LP gas is typically stored at residential, commercial or school installations in a pressurized container. Two kinds of LP gas containers are tanks and cylinders. Other LP gas system components include the regulator, valves, interior and exterior piping, meter, and appliances. The National Fire Protection Association, Standard 58, LP Gas Code 2001 Edition, ("NFPA 58") makes the container owner responsible for ensuring his containers are suitable and qualified for service. LP gas tanks are typically horizontal and much larger than LP gas cylinders. Tanks used in residential and commercial applications, generally range in size up to 1,000 gallons. Tanks are deemed permanent installations. Cylinders are generally upright and have a specified lifetime, after which they must be re-qualified by the owner. Cylinders are deemed temporary or portable installations. LP gas cylinders and tanks are both “liquefied petroleum gas equipment” within the meaning of Chapter 527, Florida Statutes. Rule 5F-11.047, Florida Administrative Code, governs LP gas container disconnections in Florida. The genesis of Rule 5F-11.047, Florida Administrative Code, dates back to the 1940’s and 1950’s and a State Regulation2 that allowed only the LP gas tank owner, or those authorized by him, to disconnect a tank from a customer’s system. In 1958, Florida’s Attorney General, Richard Ervin, became concerned that the Regulation could be applied in an anti-competitive manner, but in 1959, the Regulation was amended to allow one gas company to disconnect another company’s tank whether or not it was authorized, provided advance notice was given to the gas company owning the tank. In the 1970’s this “advance notice” concept was continued and again adopted, this time in an administrative rule promulgated under Chapter 120, Florida Statutes. In 1990, The Department of Insurance (“DOI”) promulgated Rule 4B-1.008, Florida Administrative Code, under Chapter 120, Florida Statutes.3 In 1994, DOI’s Rule 4B-1.008, Florida Administrative Code, was properly transferred to the Department without changes. The Department properly filed Rule 5F-11.047, Florida Administrative Code, for adoption without changes as required by Chapter 120, Florida Statutes, and Chapter 1S-1, Florida Administrative Code, effective March 15, 1994. When the Rule was initially adopted in 1990, David Rogers wrote a letter4 to DOI on behalf of The Florida Propane Gas Association (“The Association”) recommending rule language which became Rule 4B-1.008, Florida Administrative Code. The same language lives on in challenged Rule 5F-11.047(1), Florida Administrative Code. The Association specifically recommended the Rule language “in the interest of safety to the propane industry and consumers” and because the Rule allowed “orderly disconnects to be made in a safe manner.” As stipulated by the parties at final hearing, Rogers’ October 31, 1990, letter is the Association’s past and present position on Rule 5F-11.047(1), Florida Administrative Code. Other states have tank disconnect rules similar to Florida’s Rule, and other states have modeled their disconnect rules after Florida’s Rule 5F-11.047(1), Florida Administrative Code. No company has ever challenged Rule 5F-11.047(1), Florida Administrative Code, except Petitioner. Petitioner challenges only the two working day notice requirement of Rule 5F-11.047(1), Florida Administrative Code, alleging it is an invalid exercise of delegated legislative authority. Section 120.52(8), Florida Statutes. Petitioner alleges that the “Department has exceeded its grant of rulemaking authority because Section 527.06, Florida Statutes, does not specifically include nor contemplate or require notice to cylinder, tank and system owners prior to a disconnection;” that the existing rule enlarges, modifies and contravenes the specific provisions of Sections 527.06 and 527.07, Florida Statutes, in that neither statutory provision requires or authorizes a 48-hour/two working day pre-disconnection notice to an LP gas tank or system owner”; that the existing rule is arbitrary and capricious in that the pre-disconnection notice requirement has no relation or connection to any health, safety or welfare concerns; and that the Rule does not promote the health, safety or welfare of the public and, therefore, cannot be supported by competent substantial evidence. Petitioner also alleges that application of the two working day notice requirement has an anti-competitive effect on the LP gas market. Rule 5F-11.047(1), Florida Administrative Code, pertains to disconnecting LP gas containers. No statute prohibits a person or gas company from disconnecting another gas company’s LP gas container. However, Section 527.07, Florida Statutes, prohibits a person or gas company from filling, refilling, using, or delivering another gas company’s LP gas container without authorization from the gas company that owns the container. Section 527.07, Florida Statutes, reads: No person, other than the owner and those authorized by the owner, shall sell, fill, refill, deliver, permit to be delivered, or use in any manner any liquefied petroleum gas container or receptacle for any gas or compound, or for any other purpose. Section 527.07, Florida Statutes, is one of the statutes implemented by Rule 5F-11.047(1), Florida Administrative Code, the other being Section 527.06, Florida Statutes. As a practical matter, when a gas customer wants to change LP gas companies, his new choice of companies cannot use his existing gas company’s LP gas container unless authorized by the existing company, which owns the installed container. So, if the customer does not own his own container5 and authorization to use the existing company’s container is not obtained, the existing container will have to be disconnected so the new company can install its own container. Section 527.07, Florida Statutes. When one gas company disconnects another gas company’s container in order to install its own container, it is called a “switch-out” or “changeover.” Rule 5F-11.047, Florida Administrative Code, determines when the disconnect notification must occur. When disconnected, a LP gas container is either empty (out-of-gas)6 or it contains LP gas. If the tank is empty, the tank owner must be notified within 24 hours after the empty tank has been disconnected. See Rule 5F-11.047(2), Florida Administrative Code. Thus, no advance notice is required when the customer is out-of-gas. However, if the existing container contains gas (hereinafter referred to as a “gas-filled container”),7 Rule 5F-11.047(1), Florida Administrative Code, requires the new, incoming gas company to give two working days advance notice to the existing gas company/tank owner that it intends to disconnect the existing container after two working days. Rule 5F-11.047(1), Florida Administrative Code, reads: No person, firm or corporation, other than the owner and those authorized by the owner, shall connect or disconnect any cylinder, tank, or system containing liquefied petroleum gas, except in an out- of-gas situation, unless due and sufficient notice has been given by any person, firm or corporation to the owners of any cylinder or tank, prior to disconnecting or connecting such cylinder, tank, or system. Due and sufficient notice shall be received by the owners at least two (2)working days prior to installing the cylinder, tank, or system of said person, firm, or corporation, and shall be evidenced by a signed receipt. Acceptable evidence of receipt of notification shall be a signed certified mail receipt, signed receipt of hand delivery or facsimile transmission receipt. If after two working days the cylinder, tank, or system has not been disconnected by the owner, the said person, firm or corporation may then disconnect downstream of the system regulator or meter. It shall be mandatory that the person, firm or corporation who so disconnects any such cylinder or tank, whether empty or full, upon the premises of a consumer, does so in a manner that renders the cylinder or tank tight with valves turned off, the cylinder or tank service valve plugged with brass or steel fittings, and all other cylinder, tank or system openings properly plugged. In addition, any cylinder, tank, or system disconnected must be done so in a manner that is in compliance with the requirements of NFPA 58. (Emphasis supplied). The advance notice requirement only applies to gas-filled containers. After receiving two working days notice, the existing company/tank owner has several options: 1) The tank owner/company can disconnect and remove its gas-filled container from the property within the two working days; 2) swap containers with the incoming company, exchanging the existing container with a similar container delivered to its storage yard by the incoming company; 3) sell the existing gas-filled container to the incoming company or the consumer; 4) coordinate a switch-out with the incoming company; or 5) if it knows and trusts the safety training of the incoming company’s personnel, it can authorize the incoming company to disconnect its tank and put it in an agreed-upon safe location at the customer property until it can be picked up in a reasonable time. Disconnecting a gas-filled container is an inherently dangerous activity even though the person doing the disconnect has been properly trained. If the existing gas-filled container is sold or swapped to the incoming gas company, the inherently dangerous disconnect is not required. By contrast, after a gas- filled container is disconnected it must be temporarily stored on the customer property if it is not immediately removed. As established by testimony of the Department’s safety expert even trained persons sometimes store gas-filled containers on customer property in an unsafe and improper manner. Even LP gas companies’ employees are known to violate the two working day notice requirement leaving another company’s gas-filled container, unplugged, unprotected hazardous, unsafe condition on the consumer’s property. The two working day notice requirement of Rule 5F-11.047(1), Florida Administrative Code, provides sufficient time for the two gas companies to work out the switch-out or terms of transfer. Less than two working days' notice would not be sufficient to promote the safe handling of LP gas and proper installation of LP gas equipment. The Department presented the testimony of a Suburban Propane (“Suburban”) employee, Tom Ross. Ross is Suburban’s Florida regional manager. Suburban is a multi-state marketer and is the third largest propane company in Florida. Suburban’s 29 Florida locations are licensed by the Department and serve 80,000 customers. Suburban has twice as many LP gas containers in the field in Florida as any other region due largely to the fact that Florida has a lot of small volume users. Ross testified that training of personnel to perform disconnect varies, some companies providing better training than others. Suburban prefers to disconnect its own gas-filled tanks primarily because it knows the training its employees have received, and has no idea what kind of training a competitor company’s personnel may have received. Ross testified that as it relates to Suburban, Rule 5F-11.047(1), Florida Administrative Code, promotes the safe handling of propane gas. The two working day notice requirement gives Suburban the opportunity to evaluate the safety/liability of the situation and the potential safety/liability involved in moving the tank. Safety/liability issues related to the disconnect and removal of the gas-filled tank may make it advantageous for the existing tank owner to negotiate a tank swap with the company taking over the account. In that circumstance, no disconnect is required. The Department presented the testimony of Mike Ivestor. Ivestor is the operations manager of Quality Propane in Havana, Florida, a small mom-and-pop, independent LP gas company. Ivestor knows his own employees have been properly trained, but he cannot be sure how well all his competitors train their employees. Ivestor has a good relationship with most, but not all, competitors in his market. There are some LP gas companies Ivestor would not want to disconnect his company’s tanks. In the past, competitor gas companies have disconnected Quality Propane tanks and left them on a customer's property in unsafe condition. Two working days allows Ivestor sufficient time to coordinate with the incoming gas company a time to disconnect his tank so as to not interfere with the new installation or disrupting service to the customer. If Ivestor knows the incoming company, he may authorize it to disconnect his gas-filled container and temporarily store it in an agreed-upon place at the customer property which Ivestor knows is safe. Ivestor is concerned about his company’s liability when he has no control over who, when, or how his gas-filled tank is disconnected and set aside. Petitioner and the Department stipulated that if one gas company disconnects another company’s gas-filled container and relocates it on the customer’s property, it creates liability for the owner of the container. Rule 5F-11.047, Florida Administrative Code, is a safety rule, not a rule that regulates competitiveness. Further, the two working days' notice promotes proper installation and transporting of LP gas equipment. Rule 5F-11.047, Florida Administrative Code, states that it implements Section 527.06, Florida Statutes. The Florida Legislature provided in Section 527.06(1), Florida Statutes, that: The department may adopt rules necessary to effectuate any of the statutory duties of the department in the interest of public health, safety, and welfare and to promote the safe handling of liquefied petroleum gas and proper installation, storing, selling, utilizing, transporting, servicing, testing, repairing, and maintaining of liquefied petroleum gas equipment and systems. The department shall adopt rules reasonably necessary to assure the competence of persons to safely engage in the business of liquefied petroleum gas, including, but not limited to, the licensure, testing, and qualifying of such persons for the protection of the health, welfare, and safety of the public and persons using such materials. These rules shall be in substantial conformity with generally accepted standards of safety concerning the same subject matter and shall not extend, modify, or conflict with any laws of this state or the reasonable implications of such laws.” The Florida Legislature also provided in Section 527.06(2), Florida Statutes that: (2) The department shall promulgate and enforce rules setting forth minimum general standards covering the design, construction, location, installation, and operation of equipment for storing; handling; transporting by tank truck, tank trailer, or pipeline; and utilizing liquefied petroleum gases and specifying the odorization of such gases and the degree thereof. The rules shall be such as are reasonably necessary for the protection of the health, welfare, and safety of the public and persons using such materials and shall be in substantial conformity with the generally accepted standards of safety concerning the same subject matter. Petitioner and the Department each presented testimony of Vicki O’Neil in their respective case-in-chief. Ms. O’Neil has been Bureau Chief of the Bureau of LP Gas Inspection since August 1994. She oversees Bureau licensing, training, investigations, examinations, and the marketing assessment program. Ms. O’Neil testified that the Department’s interpretation of Section 527.06(1), Florida Statutes, is that the Department may take reasonable steps necessary to ensure the public’s safety through the rule-making process, and that the safe handling of LP gas is in the interest of the public health, safety, and welfare. This has been the Department’s interpretation of Section 527.06, Florida Statutes, since 1994 when responsibility for LP gas regulation was transferred from the DOI to the Department, along with Ms. O’Neil. As established by Ms. O’Neil's testimony, the Department’s policy is that proper installation, storing, selling, utilizing, transporting, servicing, testing, repairing, and maintaining of LP gas equipment and systems is in the interest of the public health, safety, and welfare and that Rule 5F-11.047, Florida Administrative Code, is an exercise of the Department’s power and duty to promote those public interests. The Department’s policy is that Rule 5F-11.047(1), Florida Administrative Code, is a safety rule necessary to promote the safe handling of LP gas. Rule 5F-11.047(1), Florida Administrative Code, is a safety rule, which is in substantial conformity with the published standards of the National Fire Protection Association and is also in substantial conformity with generally accepted standards of safety. As a result of the two working day notice requirement, the incoming and outgoing LP gas companies can dialogue about the proposed disconnection, repairs, safety, or hazardous conditions that might exist. The dialogue may also result in the two companies swapping tanks; thus, the inherently dangerous process of disconnecting the tank is avoided altogether. In light of recent terrorist events in this country, law enforcement has taken a heightened interest in LP gas and gas-filled LP gas containers. Security bulletins from various federal agencies, including the U.S. Department of Transportation, show the potential for terrorist groups to target commercial LP gas tanks and hazardous material storage facilities. There is a potential for theft of even small quantities of these materials for the purpose of making weapons of mass destruction. Each Category I LP gas dealer must have one “master qualifier” at each business location. Each Category I LP gas dealer must also have one “qualifier” for each 10 employees performing LP gas work. A gas company employee does not have to be a qualifier or a master qualifier to connect or disconnect LP gas containers for the company. Any gas company employee can disconnect gas-filled containers if he or she has been trained by the gas company to do so. These employees are not required to receive training or testing from the Department. The gas company must only document employee training in their company files. The Department generally does not know if a company employee is actually performing disconnects correctly or not, nor whether the employee has ever been disciplined by the employer for safety violations. The quality of employee training varies from company to company. For this reason, some LP gas companies prefer to have their own trained employees disconnect their tanks. Even though companies train their employees, some have been known to leave disconnected gas-filled containers in unsafe, hazardous condition on a customer’s property. As established by testimony of Ernest Barany, an employee of the Department within the Department’s Bureau of LP Gas Inspection for seven years and current supervisor of the Department’s LP gas inspectors, the Rule’s two working day notice requirement applies to LP gas containers in residential and commercial locations, LP gas dispensers, and containers installed in school facilities. Further, the two working day notice requirement of the Rule promotes public safety and the safe handling of LP gas. The two working day notice requirement of the Rule promotes the proper installation, storage, selling, and transporting of LP gas equipment. A customer’s existing gas company usually has superior knowledge of safety conditions at the LP gas installation because it installed the container and/or the entire LP gas system; has been delivering LP gas into the container; has maintained and/or repaired the system; and knows about any "red-tag" situations that exist on the LP gas system. In the LP gas industry, a red tag is a warning of an unsafe or hazardous condition in a LP gas system. The red tag is a paper tag hung by a wire from the tank cover or an appliance or other system component to warn all persons who see it that there is a problem or unsafe condition in the system. A gas company/tank owner will red-tag its LP gas container, appliance, or other system component when a temporary repair has been made or when the gas company knows of a defect in the system. A common temporary repair requiring a red tag is when the on-and-off valve leaks gas that can be detected at the threads between the handle and the body of the valve. The leak can be temporarily stopped by fully opening the valve and then with hand pressure turning the valve counterclockwise a little harder. A red tag would then be put on the tank saying "don’t refill until a permanent repair is made." Next, when the tank goes empty the repair can either be made on site or by changing the container on a scheduled basis. Customers sometimes remove a red tag after it is placed on the system by the current gas company. If the red tag is removed, the new, incoming LP gas company coming to disconnect the gas-filled container would not be aware that the system has a problem, defect, or temporary repair unless the existing gas company/tank owner has informed them. Accidents have occurred because customers have removed red tags without the knowledge of the gas company. The two working day notice requirement allows the existing company to address safety matters that are unknown to the incoming company, thus promoting a safe transfer of gas service. A switch-out or changeover requires more that just safely disconnecting the gas-filled container. If a gas company does not disconnect and remove its own gas-filled container, the gas-filled container must be disconnected and temporarily stored on the consumer’s property by the new incoming company. A disconnected gas-filled container is more dangerous than a disconnected empty container. Gas-filled containers temporarily stored on the customer’s property present a variety of safety concerns. If a gas-filled cylinder is disconnected and stored on its side at the customer location, liquid propane coming into contact with the safety valve can cause the valve to fail and leak. A gas filled cylinder can fall over creating a hazardous situation if it is punctured, or falls, and begins to roll or hits a person or vehicle. Failure to comply with Rule 5F-11.047(1), has resulted in at least one fatality in Florida because the tank was stored improperly on the customer property. Sometimes there is no safe place to temporarily store a gas-filled container on the customer property. In metropolitan markets there are unique safety concerns requiring that a gas-filled container be removed immediately upon disconnection. In some metropolitan areas there are limited property lines on residential tanks, underground tanks, commercial tanks that are stacked up behind strip malls with no place to move them, and tanks that are installed around schools or parks that could be tampered with by children. Without advance notice the tank owner cannot address these safe/liability concerns and responsibility for mishaps fall squarely on him. The two working day notice requirement gives the tank owner time to review customer records, evaluate the situation, and coordinate the disconnection and removal of its gas-filled tank. Sometimes the terrain makes safe temporary storage impossible or immediate removal of the tank required. In flood plain areas, local ordinances require the container to be chained or bolted down or bracketed to a wall. Vehicular traffic conditions at some locations require that a gas-filled container be protected behind a barrier. If the location requires that the new container be installed behind the existing barrier, the disconnected gas-filled container may end up stored in an un-barricaded area. The gas company that owns the existing installed container, has an investment in it, has serviced the customer location, and often will know whether or not there is a safe place to temporarily store the disconnected gas-filled container on the property. Two days' advance notice allows the existing gas company time to assess the safety situation unique to a customer location, thus promoting a safe transfer of gas service. Some LP gas containers are buried underground and must be excavated so the incoming gas company can install its own container underground. A crane, back-hoe, or other special equipment may be required to unearth and move the tank. The existing tank owner may also have to locate existing utilities and obtain governmental authorization or permits to excavate the tank. Some localities require the tank owner to notify local fire or building officials or apply for permits to move the container. If the tank is buried, other buried utilities on the property must be located before excavation. A gas-filled container sometimes must have the gas pumped out of it before the tank can be transported on Florida roads. This usually requires special equipment and two different kinds of trucks. The existing tank owner also has to schedule his employees to do the work. The Rule gives the tank owner the time to work out the logistics and scheduling of equipment to draw the gas out of the tank before it can be transported from the consumer’s property. In 1958, Florida’s tank disconnect rule was called LP Gas Regulation 11, of the Fire Marshall’s rules. LP Gas Regulation 11, Circa 1958 reads: No person, firm or corporation, other than the owner and those authorized by the owner so to do, shall connect or disconnect or transport or carry any means of conveyance whatsoever, any cylinder or tank containing Liquefied Petroleum Gas, whether in the liquid or vapor state. Thus, in 1958 all disconnects were prohibited unless authorized by the tank owner. A tank owner could monopolize a customer’s LP gas system by simply withholding authorization for the disconnect. The Insurance Commissioner at the time asked for an opinion from the Attorney General because he was troubled that a natural gas supplier was disconnecting LP gas containers without authorization from the owner. Voicing public safety concerns, the Attorney General opined that: Serious problems of public safety are involved in the disconnecting of L.P. gas cylinders and tanks and the above rule has its legitimate purpose in insuring public safety. I am of the opinion that this regulation can be legitimately enforced against the private utility in question, however, it must be applied in terms of public safety and not in such a manner as will unreasonably restrict competition. Acknowledging the serious public safety concerns related to LP gas tank disconnections, Attorney General Ervin also saw the potential evil of construing Regulation 11 to prohibit tank disconnections “under any circumstances.” “Advanced reasonable notice” was the cure. Attorney General Ervin opined: Said rule should not be construed to prohibit the private utility from disconnecting the L.P. gas tanks and cylinder under any circumstances. If after reasonable notice to the LP gas dealer said dealer does not disconnect his cylinders or tanks, the private utility should be permitted to disconnect them if it does so in a manner which leaves the tanks or cylinders in a safe condition. If the private utility should persist in failing to give reasonable notice and in leaving the tanks and cylinders in an unsafe condition, the State Fire Marshal may hold a hearing . . . and issue a cease and desist order. Subsequent to the Attorney General’s July 3, 1958, Opinion, on February 27, 1959, Regulation 11 was amended after Public Hearing. The revised, adopted Regulation 11 provided for “due and sufficient” notice to the tank owner prior to disconnecting his tank. Thus, in similar fashion to Rule 5F-11.047(1), Florida Administrative Code, if the notified tank owner did not disconnect his tank after a reasonable time, the tank could be disconnected by the company desiring to install its own tank.
Findings Of Fact Respondent issued an invitation to bid for the project. The bidders were reminded that the bids were due March 9, 1995. The bid opening was to occur on March 10, 1995. Under the general conditions to the invitation, (at paragraph 7), in the interest of the State, the Respondent reserved the right to reject all bids that it received. That same reservation was announced at paragraph 1.8.1 to the invitation. In addition to the general reminder that the Respondent had the right to reject all bids, paragraph 1.14 to the invitation describes cancellation privileges available to the Respondent. That paragraph provided that the obligations under the invitation would be subject to and contingent upon the availability of moneys lawfully appropriated to pay for the services. Paragraph 1.1 to the invitation described the project as one involving removal and disposal of existing tanks and contents of those tanks at three locations. The locations were Floral City, Cocoa, and Kissimmee, Florida. The project demands at Floral City were for removal and disposal of a 10,000 gallon above-ground "tack coat" tank and surficial "tack coat" material and removal and disposal of a 500 gallon tank. The work at Cocoa involved removal and disposal of a 10,000 gallon above-ground "tack coat" tank, removal and disposal of a 500 gallon tank and removal and disposal of a 1,000 gallon kerosene tank. Finally, the Kissimmee work involved removal and disposal of a 500 gallon above-ground "tack coat" tank and surficial "tack coat" material. In Exhibit "A" to the invitation, describing the scope of services for storage tank removal and disposal, paragraph 2.0 identified more specifically the services that the bidder was to provide. In Exhibit "A", at subparagraph B.1 to paragraph 2, the bidder was instructed that the work included removal and proper disposal of the tank contents and any related material in the vicinity of the tanks. In Exhibit "A", at subparagraph B.3 to paragraph 2, the bidder was instructed that the work included removal and proper disposal of all tanks and associated piping. In Exhibit "A", at subparagraph B.4 to paragraph 2.0, the bidder was instructed that any records and analytical results that the bidder might generate from a storage tank closure assessment should be sent to the State of Florida, Department of Environmental Protection, Storage Tank Regulation Section with a copy of those reports being provided to Respondent's project manager. In Exhibit "A", scope of services for storage tank removal and disposal, at subparagraph A to paragraph 5.0, further instructions were given concerning the manner in which the tank contents would be removed. In Exhibit "A" at subparagraph B to paragraph 5.0, more specific instructions were given concerning tank disposal. In Exhibit "A" at subparagraph H.5 to paragraph 5.0, the bidders were reminded that a laboratory analysis report concerning the contents of the tanks was available upon request from the project manager, David Schappell. The laboratory analysis referred to was one performed on August 31, 1994, by Ardaman and Associates, Inc. Paragraph 1.9 makes reference to budget constraints involved with the project in which a budgetary ceiling of $45,000 is announced in the materials sent to the prospective bidders. In reality the $45,000 amount was in a circumstance that contemplated an additional site for tank removal and disposal and installation of new tanks in substitution for the removed tanks in Respondent's maintenance facility at Orlando, Florida. The Orlando work is not described in the invitation to bid. The appropriate reference for the budgetary ceiling contemplated by the invitation to bid is $20,000 for the three sites that are described in the project. Although Respondent through appropriate personnel realized that the $45,000 amount stated was not correct, that official, Helen Lund, purchasing and contracting agent for Respondent, did not arrange to correct the amount before issuing the invitation to bid. Ms. Lund simply failed to realize that the $45,000 budgetary ceiling was still set forth in the invitation when the invitation was made. Had she realized this mistake an addendum would have been sent to the prospective bidders to correct the figure to become $20,000. At hearing, Respondent presented its reasons for establishing a budgetary ceiling of $20,000. Petitioner was allowed to question that estimate. Subsequently, that issue will be discussed in greater detail. Paragraph 1.7.5 reminds the bidders that any necessary authorizations and/or licenses to provide the services sought in the project should be obtained by the bid due date and time and no later than the point at which a contract would be awarded. Paragraph 1.8.2 explains to the bidders what is necessary to offer a responsive bid. In her job Ms. Lund prepares and assembles bid documents, sends those out to the prospective vendors, and conducts bid openings. In this case David Schappell, Assistant District Drainage and Permits Engineer for Respondent's District V, Deland, Florida, discussed the tank removal project with Ms. Lund. In turn Ms. Lund prepared the bid blank/ITB in its boiler-plate language. Mr. Schappell prepared the invitation to bid concerning the scope of services to be provided by the bidders. Ms. Lund mailed out eight invitations to bid. She received responses from Petitioner and Chemical Development Corp. The bid from Chemical Development Corp. was rejected for failure to meet the licensing requirements set forth in paragraph 1.7.5. That left the Petitioner's bid which was considered responsive. Nonetheless Respondent decided to reject that bid for reasons that the price submitted for performing these services was too high when compared to the $20,000 estimate by the Respondent. Petitioner's bid price was $38,252. In addition, Petitioner was concerned that it would have to submit an exceptional purchase request and get the approval from the State of Florida, Department of Management Services, to enter into a contract in a setting in which there was only one responsive bidder. Finally, Petitioner was also concerned about the disparity between the price submitted by Chemical Development Corp. at $11,520 and the $38,252 price from Petitioner as indicating some possible problem associated with the scope of work contemplated in the project and the understanding which the bidders had about the work to be performed. Petitioner obtained a copy of the laboratory analysis from Ardaman and Associates to assist in preparing its response to the invitation to bid. The principal focus in the Ardaman test was to determine constituents related to TCLP as this would determine whether the tank contents constituted hazardous waste. Results from the Ardaman test revealed that in removing material from the tank at Floral City one would be confronted with chromium concentrations of 1.6 mgl. The threshold limits for chromium concentration as set forth in the Code of Federal Regulation, Title 40, Section 261.24, for determining hazardous characteristics of those materials is 5.0 mgl. The sampling conducted by Ardaman also revealed a pH of 9.0. According to Ardaman, that ph did not indicate that the "tank coat" is corrosive. The Ardaman test did not detect reactive cyanide and sulfide. The test did not reveal characteristic ignitability. In summary, the Ardaman report concluded that the Floral City facility tank did not exhibit the characteristics of a hazardous substance as determined by the TCLP method, and by the ignitability and corrosivity testing. Petitioner proceeded on the basis that the Ardaman results indicated that the tank contents did not constitute hazardous waste and could be disposed of as other than hazardous waste material. Theoretically, Petitioner believed that disposal could be made in a landfill that would take the type of material found in the tank. As Petitioner points out, the Ardaman test did not speak to the possible disposal of the tank material as a fuel source or through incineration. From the results set forth in the Ardaman report, Petitioner erroneously assumed that Respondent intended to limit the method of disposal to placement in a landfill facility. While the Ardaman report speaks to the issue of whether the material constitutes hazardous waste, the remaining provisions within the invitation to bid leave open the opportunity for the bidders to make additional tests on those materials in deciding the proper disposal method. The provisions in the invitation do not select a proper disposal method and the results in the Ardaman report do not create the inference that Respondent's choice for disposal is by placement in a landfill. In Petitioner's research, it concluded that the material in the tanks could not be disposed of by incineration given the nature of this material compared to the type of material that could be destroyed at a facility which used incineration as a disposal method. Petitioner was persuaded that there might be some possibility to burn the material as a fuel source, but was not confident that this could be done without performing more tests. Petitioner was unable to find a landfill site that was near Respondent's Cocoa and Kissimmee facilities that would accept the tank contents. Petitioner intended to transport the material from the Cocoa and Kissimmee sites to Floral City and use Floral City as a staging area to consolidate the contents from the tanks. Having in mind consolidation, Petitioner discussed the possibility that it might make disposal in solid waste facilities in Sumter County, Florida. Petitioner was told that Sumter County facilities would not accept the material. Petitioner collected a sample of the tank material and had it analyzed by Howco Environmental in an attempt to ascertain the commercial value for the tank contents. Howco is a company that tests materials to ascertain whether those materials can be used as a fuel source and then uses the material as a fuel source. In a test, Howco determined that the tank material had no commercial value. Petitioner contacted two paving companies to determine whether the paving companies could reuse the tank material in the paving process. Those companies indicated that they could not reuse the material in the paving process. Terry Newman, who owns Petitioner, holds a B.S. in geology and has worked for the Suwannee River Water Management District, Collier County Pollution Control Department and the Alachua County Pollution Control Department as a hydro-geologist. Ms. Newman reviewed the Ardaman report and spoke about the report to a chemist in a laboratory which her firm uses. Through this review and discussion and based upon the information set forth in the Ardaman report, she concluded that the only disposal method available was to place the tank contents in a lined landfill. Ultimately the bid that was submitted by Petitioner was based upon making an arrangement with a sub-contractor to transport the material to Jacksonville for disposal. The transport method was that which would be used for transporting hazardous waste. In this arrangement the material is taken from the tank and put in a container for transport and off-loaded at the landfill. The tank itself would be disposed of in the conventional manner. The subcontractor which the Petitioner intended to use for transporting the contents within the tanks was a hazardous waste carrier. Mr. Schappell established that the Orlando project which was originally part of the $45,000 pre-bid estimate would cost approximately $25,000 to remove two single-wall steel tanks, one holding diesel fuel and the other gasoline, and replace those tanks with double-wall tanks. That estimate was not shown to be one based upon fraud, illegality, dishonesty, arbitrariness or caprice. Since the Orlando project was not pursued, this left $20,000 as the estimate to do the work in the three sites described in the invitation to bid. Prior to the invitation to bid, Respondent had solicited a price quotation, unrelated to a competitive bidding process, for the work at Floral City. ACTS Construction Co., Inc., submitted a price of $12,825 to include $1,875 for tank closure. The present project does not include a requirement for tank closure. This quotation from ACTS Construction Co., Inc. was from a contractor who had done similar work in removal of tanks, thereby creating proper confidence in Mr. Schappell that the quotation from ACTS was a reasonable quotation. A total of six vendors were invited to offer price quotations for the work at Floral City unrelated to the present project. Those six vendors were given access to the Ardaman report. There were a wide range of responses to the request for quotations and different ideas concerning methods of disposal. The overall price quotations ranged from the amount quoted by ACTS to an amount of approximately $20,000 by Westinghouse Company. Based upon the prices quoted by ACTS, Westinghouse, and others, Mr. Schappell determined that the pre-bid estimate for the work to be done at Floral City in the present project would be based upon the ACTS price quotation. The remaining work to be done at Cocoa and Kissimmee, in the present project, was given a pre-bid price of approximately $7,000. The estimate for Kissimmee and Cocoa was based upon having removed somewhat similar tanks, in somewhat similar conditions, from Respondent's maintenance yards at Oviedo, Leesburg, Ocala, and Cocoa. Respondent's pre-bid estimate of project costs amounting to $20,000, as established by Mr. Schappell, is a reasonable pre-bid estimate. It was not arrived at by illegal, fraudulent, dishonest, arbitrary, or capricious means. Mr. Schappell established that the Ardaman report was solely provided to offer assistance to the bidders in responding to the invitation. The language in the invitation to bid contemplates that limited use. The Ardaman report did not enter into the decision by Mr. Schappell in placing a pre-bid estimate on the work to be done. Mr. Schappell established that the "tack coat" in the tanks is a bituminous material to be applied as a sealer over the lime rock or soil cement which the Respondent places as a base for road construction. The "tack coat" also has an adhesive property which helps to retain the asphalt material that is placed on top of the lime rock and soil cement. The condition of the tank material in around the time that the bid invitation was made, was such that the material would be nearly viscous or liquid on warm summer days and in the winter would be solid. Its condition at other times was somewhat in between. Mr. Schappell properly points out that the invitation to bid relies upon the bidders' expertise in determining proper disposal methods and whether that disposal might involve reusing the tanks contents. Mr. Schappell established that in addition to the fact that the Petitioner's price far exceeded the pre-bid estimate, there was a concern about the price differential between the Chemical Development Corp. bid and that presented by Petitioner and the expectation that if the project was re-bid more vendors would express an interest in bidding.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the final order be entered which dismisses Petitioner's protest to Respondent's decision to reject all bids. DONE and ENTERED this 16th day of June, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1995. APPENDIX The following discussion is given concerning the proposed findings of fact by the parties: Petitioner's Facts: The first sentence to Page 2 is subordinate to facts found. Respondent's Facts: Respondents facts are subordinate to facts found. COPIES FURNISHED: Randy Wiggins, President RAN Contracting & Engineering, Inc. 3056 Palm Avenue, Suite 1 Ft. Myers, FL 33916 Thomas H. Duffy, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Sharon Roehm, President Chemical Development Corporation 910 Pinellas Bayway #102 Terra Verde, FL 33715 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450
The Issue Whether Petitioner should take disciplinary action against Respondents for the reasons alleged in the Administrative Complaint?
Findings Of Fact On behalf of his brother, Mr. Howell Parish, who lives in Orange Park, Florida, Mr. James A. Parish contracted with Respondents to restore efficient of operation the septic tank system at 5469 Soundside Drive in Santa Rosa County, premises owned by Howell Parish. Respondents agreed to make the restoration by providing a fiberglass approved tank with a fiberglass lid, install a new drain field and haul in dirt to build up a low area of the existing drain field. Respondents undertook repair activities but without a permit. Respondents did not obtain an inspection of their work after they had finished. On June 10, 1992, after the repairs were supposed to have been done, James Parish paid Respondent Harmon for the job with a personal check in the amount of $1,498.48. On the same date, Respondent Harmon signed a receipt for payment. The receipt shows as work performed, "Demucking and Installing one 1050 Gal Tank & 200 Sq.' Drain Field." Ms. Jo Ann Parish, spouse of Howell Parish, reimbursed James Parish for the work done on Soundside Drive. Shortly thereafter, the septic tank "caved in and the waste was boiling to the surface." (Tr. 16.) Howell Parish met with Larry W. Thomas, Environmental Health Supervisor for the Santa Rosa County Health Department, to discuss the situation. Following the meeting, Mr. Parish called Respondent Harmon and told that him that the problem needed to be straightened out and that he should contact Mr. Thomas promptly because his license could be in danger. Respondent promised to correct the problem and to reimburse Mr. Parish for the job but he did neither. He did not contact Mr. Thomas either. Mr. Thomas, on behalf of the County, investigated the site of the septic tank repair. He found that Respondents had installed a broken fiber glass tank when fiberglass tanks are not allowed at all in Santa Rosa County because of their structural inadequacy. In addition to the tank being cracked, it had a cracked lid. Another hole in the tank that should have been covered with a lid was covered with a piece of plywood. The plywood was kept in place by dirt fill. The drain field did not meet the minimum standards required by the County. Most significantly, it was installed beneath the water table. There was a laundry discharge pipe which was not connected to the tank as required. The site of the septic tank repair by Respondents was a sanitary nuisance. The broken condition of the tank allowed raw sewage to overflow. The drain field was emptying raw sewage directly into ground water. The laundry discharge was discharging into the ground rather than being hooked up to the septic tank. Mr. Parish was forced to hire another septic tank service to restore the system to good working order. The work, performed by Bettis Septic Tank Service, was billed to Mr. Parish at a cost of $6400.00.
Recommendation It is, accordingly, RECOMMENDED, that Respondents' certificates of registration be revoked and that the Department impose on Respondents a fine of $2000.00. DONE and ENTERED this 28th day of October, 1994 in Tallahassee, Florida. COPIES FURNISHED: Frank C. Bozeman, III Asst. District Legal Counsel D H R S 160 Governmental Center Pensacola, FL 32501 Kenneth P. Walsh Attorney at Law P. O. Box 1208 Shalimar, FL 32505-0420 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 DAVID M. MALONEY 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 28th day of October, 1994.
The Issue Whether the Petitioners are eligible for restoration coverage under the Abandoned Tank Restoration Program (ATRP) with regard to the remediation of petroleum contamination at DEP Facility No. 588631316, located in Venice, Florida.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Petitioners are the operators of Gulf Car Care (DEP Facility No. 588631316) located at 207 South Tamiami Trail, Venice, Florida. The Department is the agency charged with the responsibility of administering the Abandoned Tank Restoration Program. The Petitioners' ATRP Application was dated May 17, 1992 and received by the Department on June 17, 1992. The Petitioners' ATRP Application indicates that two 2,000-gallon underground storage tanks (UST's) were located at the facility and that one of those tanks was utilized for the storage of diesel fuel while the other tank was utilized for the storage of gasoline. Petitioners' ATRP Application indicates that two 4,000-gallon UST's and two 6,000-gallon UST's were also located at the facility and were utilized for the storage of gasoline. At least some, if not all, of the UST's identified in Petitioners' ATRP Application continued to store petroleum products for consumption, use or sale after March 1, 1990, and in fact, continued to store petroleum products for consumption, use or sale until some time in April, 1990. Petitioner Parr was operated on for colon cancer in late 1989 and Petitioner Homer suffered a heart attack on March 3, 1990. Petitioners contend that because of Petitioner Parr's illness the Petitioners were unable to make a decision to remove the petroleum storage system from service until after March 1, 1990. The petroleum storage system at the facility has been closed in accordance with Department's applicable rules.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order denying the Petitioners' application for eligibility or restoration coverage under the Abandoned Tank Restoration Program. RECOMMENDED this day 21st of April, 1994, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6555 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioners, Harold R, Parr and George H, Homer, Sr. Petitioners did not submit any proposed findings of fact per se. However, based on the record, including the testimony of the Petitioners, it does not appear that the Petitioners would disagree with any of the Findings of Fact presented in this Recommended Order. Respondent, Department's Proposed Findings of Fact. 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(3); 3-4(4); 5-6(5); 7- 9(6); 10-11(7) and 12(8). COPIES FURNISHED: Harold R. Parr 913 E. Shanon Court Venice, Florida 34293 George H. Homer, Sr. 3674 Roslyn Road Venice, Florida 34293 W. Douglas Beason, Esquire Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Petitioner Robert R. Waszak, a resident of Broward County, Florida, purchased Lot 258-A, a 1.25-acre lot in an unrecorded subdivision, Pinetree Estates Subdivision, in Parkland, Broward County, Florida. He cleared the property of a major portion of the sawgrass, pine trees, willows and other types of vegetation and placed thereon fill consisting of sand, rock, shell and other porous material. He obtained a test boring report from Nutting Engineers of Florida, Inc. (Petitioner's Exhibit 2). On December 16, 1980 he filed an application for a septic tank permit on a form provided by the Broward County Health Department together with residential plans and a survey of the property, which application was subsequently denied on January 15, 1981 by the environmental engineering section of the health department. Respondent made an on-site inspection of the Petitioner's lot on December 18, 1980 and at least one other inspection subsequent thereto. A report was filed as part of the notification of denial (Respondent's Exhibit 1). The uncompacted fill placed on the subject property by Petitioner created a mound considerably less than six (6) feet in depth on the obviously low, swampy property. Under the fill and the layer of top soil on the lot there is a layer of cap rock overlying the property. The largely impervious cap rock is visible in areas where the fill does not cover it (Respondent's Exhibit 1). Samples of the fill material and also of the cap rock were examined at the hearing by the Hearing Officer. The fill placed on the property has many rock fragments and rock fines in it which, according to the uncontroverted testimony of the Respondent's witness, are subject to chemical reaction which "cements up" a drainfield area when it comes in contact with septic tank effluent. This "cementing" would take from one to two (2) years after installation on the subject property. There was no evidence presented as to the depth of the water table at the wettest season. Petitioner did not dispute the testimony and evidence presented by the Respondent but was interested in further improvement so that he could use his property as a residential site. He noted that a new subdivision was being built near his property. Respondent pointed out that said subdivision had a central disposal system planned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the application of Petitioner Robert R. Waszak for a septic tank permit be denied. DONE and ORDERED this 29th day of June, 1981, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND, 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 29th day of June, 1981. COPIES FURNISHED: Mr. Robert R. Waszak 60 NW 56th Court Fort Lauderdale, Florida 33302 Alan W. Ludwig, Esquire Broward County Health Department 2421 SW Sixth Avenue Post Office Box 14608 Fort Lauderdale, Florida 33302 Alvin J. Taylor, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
