The Issue Whether or not Petitioner is eligible for restoration funding (but not insurance coverage) under the Florida Pollution Liability Insurance and Restoration Program (FPLIRP) for cleanup of discharges from underground petroleum storage tanks (USTs) underlying Petitioners' real property.
Findings Of Fact Scott C. Miller, Richard D. Miller, Sr., and Richard D. Miller, Jr. as partners in "the Miller Partnership" (hereafter, Petitioners) acquired fee simple title to the site of a former gasoline station (active petroleum retail outlet) from Gulf Oil Corporation by a warranty deed dated January 30, 1984. None of Petitioners' principals have ever been in the business of storing or selling petroleum products. At the time of purchase, the site contained five 3,000 gallon underground petroleum storage tanks (USTs) and two 550 gallon USTs. These tanks had been in use by Petitioners' predecessor in interest Gulf/Chevron, until January 30, 1984, the date Petitioners bought the real property, and Petitioners knew of the presence of the tanks at the time of purchase. Pursuant to the deed, Petitioners also acquired title to the tanks. The deed contained a restrictive covenant specifically prohibiting Petitioners from using the storage tanks for a period of three years, but did not restrict Petitioners from removing the storage tanks. At the time Petitioners took possession, none of them intended to put the storage tanks back in service, and no Petitioner has ever used the tanks for any purpose. On May 21, 1984, the Department of Environmental Regulation's (DER's) Stationary Tanks Rules, Chapter 17-61 F.A.C. came into effect. None of the Petitioners' principals had actual knowledge of the substance or effective date of Chapter 17-61 F.A.C. until early 1989, shortly before they ordered the seven USTs removed from the subject property. At some time prior to March 8, 1989, Petitioners entered into negotiations with their tenant, Jack Bush, a used car dealer, to sell the subject property to Mr. Bush. During negotiations, Mr. Bush informed Petitioners that something would have to be done with the USTs on the property and made their removal by Petitioners a condition of sale. The Petitioners engaged Charles D. Chambers as an authorized agent of Petro Environmental Services, Inc. (Petro) to remove the storage tanks. Scott C. Miller understood that he had employed Mr. Chambers to do whatever was necessary to comply with DER regulations, but Petitioners' decision to remove the storage tanks was not based on any contact with DER or representations by any of its employees. Physical removal of the tanks was accomplished March 1, 1989. During the course of tank removal, Mr. Chambers discovered petroleum- contaminated soil on the site, which had not contained fuel for years preceding Petitioners' purchase, and Mr. Chambers notified DER on March 10, 1989 with a "Discharge Notification Form, 17-1.218(3)" (P-11). It is unlikely that the contaminated soil would have been discovered but for the removal of the USTs, but there is no evidence that removal of the tanks resulted in contamination of the soil or that they had leaked during any period of ownership by the Petitioners. The removal of the tanks was immediate and clearly within 90 days of discovery of the contamination, but not within 90 days of Petitioners' knowledge of existence of the tanks. See, 17-61.050(3)(c)1 F.A.C. Upon receipt of the "Discharge Notification Form," Tim Dohaney, an Environmental Specialist II with DER's Pollutant Storage Tank Program based in the DER Jacksonville District Office sent Scott Miller o/b/o Petitioners a Request notice (P-2) dated March 16, 1989 which requested, among other things, that Petitioners submit a registration form to indicate that the storage tanks had been removed. This notice specifically provided, in pertinent part, as follows: Upon reviewing the registration files for this facility it was determined that the facility has never been registered. Therefore, it is requested that you complete the enclosed tank registration form and tank installation form to show the removal of the tank systems. The completed forms should be returned to this office within ten (10) calendar days upon receipt of this notice. This request also listed several procedures necessary to bring the site into compliance. On June 26, 1989, Mr. Dohaney notified Petitioners of an inspection to be conducted on July 18, 1989. The letter - Notice of Inspection (P-3) requested, among other things, that an updated registration placard be available on the site. The specific language provided, in pertinent part, as follows: The Department is in receipt of a Discharge Notification Form completed on March 10, 1989 for the referenced facility. As required by Chapter 17-61, on the day of inspection, you should have available at the facility: 5) The updated registration placard. This letter also specified several other items that must be available during inspection to show that the site had been in compliance. On July 18, 1989, Dohaney, Scott Miller, and an attorney for Petitioners' predecessor in interest, Gulf/Chevron, met on the site. During the inspection, Dohaney informed the others that restoration coverage for the site might exist under FPLIRP, and Miller and the Gulf/Chevron attorney expressed interest in obtaining same. The conversation concerning FPLIRP was initiated by the attorney. At the time of the inspection, however, the USTs had still not been registered, although they had been physically removed from the site approximately three and a half months earlier by a method DER's tank expert and spokesman, Mr. Svec, acknowledged was permitted by DER's rules (TR-90-91). After the inspection, Mr. Dohaney completed and served on Petitioners a July 18, 1989 "Inspection Report Form" (P-4) which provided, in pertinent part, as follows: The tanks remained on-site, improperly abandoned until 3-89 when they were removed. Violations - as shown on page 1 & 23 1) tanks are not/were not registered; 3,4) updated registration form not submitted upon tank removal; 49, 50, 51) cleanup has not begun - owner will be applying for restoration coverage under HB430. Thereon, under the heading, "13. Tanks properly abandoned? 17- 61.050(3)(c)," Mr. Dohaney had checked the column for "yes," but added, "Tanks had been on- site, improperly abandoned since approx. 1984," and checked the "yes" column for "removed." The inspection form also noted or reiterated improper abandonment, contamination discovered at time of 3-89 abandonment, lack of registration, and that groundwater had been contaminated. By way of a July 19, 1989 letter (P-5), Mr. Dohaney again requested that the tanks be registered and directed Petitioners and the attorney for Gulf/Chevron to contact DER's Tallahassee Bureau of Waste Planning concerning the possibility of restoration coverage, using the following language: Mr. Robert W. Wells, Jr., Attorney for Chevron USA and you expressed an interest in applying for restoration coverage and subsequent State Cleanup for your site under the guidelines of House Bill 430. Therefore, it is requested that you contact the tank regulation section of the Bureau of Waste Planning (BWPR) in Tallahassee at (904) 488- 3935 for information regarding the program and an affidavit that must be completed by you and returned to the Department. The registration/notification form that was given you during the inspection should be completed and returned to this office within ten (10) calendar days upon receipt of this Notice (Emphasis supplied). On August 1, 1989, Mr. Chambers subsequently submitted to DER an executed updated "Storage Tank Notification Form 17-61.090(3)" (P-11). Receipt of this form was acknowledged by Mr. Dohaney as an "updated registration form" for removal of the USTs in a letter dated August 10, 1989 (P-6). In this letter, Mr. Dohaney further notified Petitioners via their attorney as follows: As of this date, this office has no further requests regarding this location. However, as discussed, the district office is awaiting a determination by DER-Tallahassee on this site's eligibility status regarding the restoration program of the FPLIRP program. If the site is denied eligibility, an assessment and cleanup will be required by the responsible party. All DER witnesses at formal hearing acknowledged that they regarded the August 1, 1989 "Storage Tank Notification Form 17-61.090(3)" (P-11) as Petitioners' "registration," albeit late registration in their eyes. Mr. Scott Miller properly interpreted his July 18, 1989 conversation with Mr. Dohaney and all of the foregoing notifications to mean that DER found Petitioners' tanks to have been "properly abandoned." However, despite all of the foregoing written notifications, Mr. Scott Miller also interpreted his July 18, 1989 conversation with Mr. Dohaney and Mr. Dohaney's August 10, 1989 letter (P-6) as DER's assurance that Petitioners' site would qualify for restoration funding, and in that state of mind, he directed Petitioners' attorney to submit an application to DER for FPLIRP restoration benefits. Petitioners' decision to apply for coverage, however, was also based upon conversations with the Gulf/Chevron's attorney, with Mr. Chambers, and with Petitioners' own attorney. Petitioners' application for restoration funding was dated August 11, 1989 (P-8). DER subsequently denied eligibility for the site on the basis that the tanks were not in compliance with Chapter 17-61 F.A.C. in that they had been improperly abandoned in accordance with Chapter 17-61 F.A.C. and had not been registered in accordance with Chapter 17-61 F.A.C. Thereafter, by a "Warning Notice" (P-1) from Mr. Dohaney on November 27, 1989, DER attempted to fine Petitioners for noncompliance with Chapter 17-61 F.A.C. and for leakage, but this "Warning Notice" was withdrawn pending outcome of the instant proceedings (P-9). In interpreting its own rules and mission, DER does not view the act of tank removal by itself as constituting compliance with Chapter 17-61 F.A.C. Its standing operating procedure, according to Mr. Svec, a DER expert and agency spokesman, is to regard Chapter 17-61 F.A.C. as applicable to sites such as Petitioners' site even after physical removal of USTs (TR 93). In assessing eligibility, DER reviews tank compliance "history," including whether the tanks were properly abandoned in accordance with the time frames established within the Chapter. For eligibility, agency personnel interpret the statute and rules to require that a tank must be in continuous compliance with the rules and to further require that an updated registration be submitted within 10 days of tank removal. The agency also views a failure in registration to be such a major violation of the registration requirement imposed by statute and rules that it cannot be waived by the agency pursuant to the latitude granted it by Section 376.3072(3)(b) F.S.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order approving Petitioners' application for Florida Pollution Liability Insurance and Restoration Program restoration coverage. DONE and ENTERED this 5th day of April, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-5251 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Accepted: 1-4, 5-9, 10-11, 15-16, 20-26, 28-40, 45-47, 50. Irrelevant: 12-13. Immaterial: 14 (except that effective date is accepted), 17. 18 is rejected because it is stated as a conclusion of law; however, the age of the petroleum discharge is discussed in the Recommended Order. 27 is rejected because it is stated as a conclusion of law and as legal argument. Rejected as legal argument and not dispositive of the issue of rule interpretation in de novo proceedings. However, for all the reasons enunciated in the Recommended Order, proper abandonment has been found and concluded both in fact and in law: 41-44, 51-52. Subordinate and unnecessary: 48-49. There is no 19. Respondent's PFOF: Accepted: 1-9, 11, 13-25, 27-35, 36-41, 43, 50, 57. Rejected because stated as legal argument or as a conclusion of law: , 10,12, 26, 49, 51-56, 58-64. In most instances they are also direct quotations of agency witnesses' testimony and cumulative. Although the agency's interpretation of statutes and rules are to be accorded much weight, they are not required to be found as facts where, as they are here, cumulative or unnecessary. Rejected as subordinate, unnecessary, or cumulative to the facts as found: 42, 44-48. COPIES FURNISHED: Sidney F. Ansbacher, Esquire Turner, Ford & Buckingham, P.A. 1904 Gulf Life Tower Jacksonville, Florida 32202 Gary Early Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
The Issue Whether Petitioner's application for a septic tank permit application should be granted?
Findings Of Fact On July 29, 1987, Petitioner applied for a septic tank permit for a proposed individual sewage disposal system to serve a single family residence on Lot 40, Block P, Killearn Lakes Unit I (Unit 1), in Leon County, Florida. A septic tank system consists of a tank and a drainfield which is wholly or partly underground. The decision of whether to grant a septic tank system permit is greatly influenced by the elevation of the wet season water table in the area where the septic tank system will be located. Under normal circumstances, the elevation of the wet season water table can be determined by taking a boring of the ground in question using an auger. If water is found at the time the boring is conducted, that is an indication of where the water table is located. If no water is found, the elevation of the wet season water table can be determined by examining the soil removed from the ground for signs of mottling. Mottling is the discoloration of the soil caused by the interaction of water with the minerals in the soil. The process of mottling takes place over hundreds of years. Therefore, a rapid change in conditions may cause the elevation of the wet season water table to be different than what would be indicated by mottling. Because of the development of Unit I and the drainage method used in Unit I (sheetflow), the elevation of the wet season water table in Unit I is estimated to be between 12 and 20 inches higher than what is indicated by mottling. On July 7, 1987, a boring was taken on an indeterminate area on Lot 40, by Certified Testing, Inc., a private engineering firm. The evaluation of the boring resulted in mottling being present at a depth of 60 inches. On August 3, 1987, Ms. Teresa A. Hegg, an Environmental Health Specialist with HRS, took two borings on Lot 40. The first boring was taken in an area other than where the septic tank system's drainfield would be located. This boring resulted in mottling being present at a depth of 45 inches. The second boring was taken in the area where the septic tank system's drainfield would be located. This boring resulted in mottling being present at a depth of 22 inches. Based on the boring taken at the proposed site for the septic tank system, showing mottling at 22 inches, and the estimate that the wet season water table in Unit I is from 12 to 20 inches higher than mottling would indicate, the estimated wet season water table for Lot 40 is between 2 to 10 inches below the ground surface. Unit I has a history of septic tank system failures. Unit I was platted prior to January 1, 1972. There exists a very high probability that any septic tank system, even a mound system, installed in Lot P-40 will fail.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order denying Petitioner's application for a septic tank permit. DONE and ENTERED this 28th day of July, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4085 The Respondent has submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection First phrase accepted. Remainder of paragraph supported by competent evidence but unnecessary to the decision reached. First two sentences accepted. Third sentence supported by competent evidence but unnecessary to the decision reached. Accepted. Accepted. 5,6,7,8,9,10 Supported by competent evidence but unnecessary to the decision reached. Accepted. Accepted. 13,14 Supported by competent evidence but unnecessary to the decision reached. 15. First sentence accepted. Second sentence rejected; the wet season water table on Lot P-40 is from 2-10 inches below grade. Third sentence accepted. COPIES FURNISHED: Salvatore A. Carpino, Jr., Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 John R. Perry, Esquire Assistant District II Legal Counsel Department of Health and Rehabilitative Services 2639 North Monore Street Suite 200-A Tallahassee, Florida 32303 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner's site located at 2188 N.W. 20th Street, Miami, Florida, is eligible to participate in the Early Detection Incentive Program.
Findings Of Fact Petitioner is the owner of a gasoline service station located at 2188 N.W. 20th Street, Miami, Florida 33142. Tomas Pequeno, Sr., is the President and owner of X.O. # 1 Corporation. International Petroleum currently operates the facility located at 2188 N.W. 20th Street, Miami, Florida 33142 pursuant to a lease agreement with X.O. #1 Corporation. The mailing address of the subject facility and of X.O. #1 Corporation is 12190 S.W. 99th Street, Miami, Florida 33186. Aurelio Rodriguez is part owner of International Petroleum and has been the manager and operator of the facility in question since 1988. Since 1988 Tomas Pequeno, Sr., has delegated authority to his son, Tomas Pequeno, Jr., to act on his behalf with regard to the business of X.O. #1 Corporation and the facility located at 2188 N.W. 20th Street, Miami, Florida 33142. At the subject facility there are six underground storage tanks which receive and dispense petroleum products. These underground storage tanks are owned by X.O. #1 Corporation and constitute part of the property leased to International Petroleum. At all times pertinent to this proceeding, there were functioning monitoring wells on the premises for the purpose of detecting leaks in the underground storage system. At the formal hearing, Tomas Pequeno, Jr., testified that on September 21, 1987, an odor of petroleum in one of the monitoring wells on the subject site was detected during a routine inspection of the premises. Mr. Pequeno, Jr., was advised by the inspector that there might be a leak in the system. On November 17, 1987, Mr. Pequeno, Jr., caused the tanks on the premises to be relined. No leaks were detected by the tests that were conducted following the relining of the tanks. Paragraph 9 of the Pretrial Stipulation filed by the parties on July 24, 1991, is as follows: 9. That the date of discovery of petroleum contamination at this facility was September 21, 1987, as indicated by Tomas Pequeno. On December 9, 1988, Petitioner submitted to Respondent an "Early Detection Incentive Program Notification Application" which was signed by Tomas Pequeno, Sr., as president of X.O. #1 Corporation. This form had been completed by Tomas Pequeno, Jr., and given to his father for his execution. This form represented that contamination at the site was detected September 21, 1987, by a manual test of the monitoring wells, that the number of gallons lost was unknown, that the petroleum contamination was due to leaking storage tanks, and that the system had been repaired. The cause of the leak in the piping and the cause of the leak in the tanks were stated as being unknown. Mr. Pequeno, Jr., testified at the formal hearing that: "There was never a discharge from that site and there is not a discharge right now at this moment." Mr. Pequeno, Jr., also answered in the affirmative to the following question: "Mr. Pequeno, are you testifying there is no contamination at this facility?" 1/ Mr. Pequeno, Jr., testified further that he submitted the Early Detection Incentive Program Notification Application as a precaution in the event contamination was discovered. The testimony of Mr. Pequeno, Jr., at the formal hearing contradicted the representations made on the Early Detection Incentive Program Notification Application. At all times pertinent to this proceeding both Mr. Pequeno, Jr., and Mr. Rodriguez were aware that the primary purpose of a monitoring well is to detect leaks from a petroleum storage system. At all times pertinent to this proceeding both Mr. Pequeno, Jr., and Mr. Rodriguez were aware of the existence of the monitoring wells on the subject site. The Dade County Department of Environmental Management (DERM) had asked the operator of the facility to submit monitoring reports. 2/ Mr. Rodriguez was unable to recall when DERM first requested the monitoring reports, but it is clear from his testimony that the request was made several months before the hearing. The operator knew that monitoring system checks were required and had been requested by DERM to provide reports of those monitoring system checks. The failure to conduct regular, periodic monitoring system checks creates the risk that a leak in a petroleum storage system will continue undetected. Neither the operator nor the owner monitored the underground petroleum storage system on a regular basis until July of 1991, when the operator began to monitor the system on a regular basis and began to keep a log of the results. Since September 21, 1987, Petitioner was aware that a sample of water from one of the monitoring wells (monitoring well #9) at the subject facility consistently contained the odor of petroleum. At the time of the formal hearing, monitoring well #9 still contained the odor of petroleum. On January 26, 1989, Mr. Rodriguez, as the operator of the facility, received a copy of the Pollutant Storage Tank System Inspection Report form completed by a DERM inspector. This report placed the operator of the facility on notice that evidence of a discharge of pollutants had been discovered at the facility. On March 3, 1989, DERM sent to Petitioner by certified mail a letter which provided, in pertinent part, as follows: The Department of Environmental Resources Management acknowledges that you have applied for a state administered cleanup under the "Early Detection Incentive Program" ... . However, a review of the Department's records reveals that the source of contamination has not been determined. Therefore, the discharge of hazardous materials from the underground storage system to the adjacent soils or waters may be continuing. * * * ... [Y]ou are required to: Immediately upon receipt of this letter, CEASE and DESIST from any further unauthorized discharges to the ground and/or groundwater of Dade County. Immediately upon receipt of this letter, hydrostatically test, and repair any leaks to all underground tanks and transmission lines at the subject site. Within thirty (30) days of receipt of this letter, submit to this Department certifica- tion that all underground tanks and transmis- sion lines at the subject site are tight and are not discharging contaminants to the environment. ... The letter dated March 3, 1989, was received by Petitioner on March 7, 1989. By that letter, Petitioner was placed on notice that there was a risk that a discharge of hazardous materials from the underground storage system to the adjacent soils and waters was continuing. By that letter, Petitioner was also placed on notice that DERM required that it hydrostatically test all underground tanks and transmission lines at the subject site in order to determine if leaks existed in the tanks and lines. By that letter, Petitioner was also placed on notice that DERM required that Petitioner certify that all underground tanks and transmission lines at the subject site are tight and are not discharging contaminants to the environment. Mr. Pequeno, Jr., believed that by having the tanks relined and repaired in November 1987, Petitioner had complied with the requests made in DERM's letter of March 3, 1989. On March 13, 1989, Mr. Pequeno, Jr., called DERM to determine whether the tests that were conducted following the relining and the repair of the tanks in November 1987, satisfied the requirements contained in DERM's letter of March 3, 1989. When Mr. Pequeno, Jr., did not get a response to his inquiry, he assumed that Petitioner was in compliance. Petitioner took no steps until two years later to hydrostatically test its underground tanks and transmission lines. On March 21, 1991, Petitioner had a tank tightness test conducted at the facility. The tank system tightness test conducted on March 21, 1991, indicated that five tanks did not test tight. There was no evidence that Petitioner has filed a certification with DERM that all underground tanks and transmission lines at the subject site are tight and are not discharging contaminants to the environment. No fuel transmission line tightness test has been conducted pursuant to DERM's March 3, 1989, request. As of the date of the formal hearing, Petitioner had not performed a complete investigation to determine the source of contamination as DERM had requested. The underground storage system at the subject site were continuously used for the storage and dispensing of petroleum products from September 21, 1987, to the date of the formal hearing. At all times pertinent to this proceeding deliveries of petroleum products were made to the tanks which had been identified by Petitioner as leaking. Petitioner's failure to conduct a complete investigation to determine the source of contamination, its failure to repair the tanks which failed the tank tightness, and its continued use of these tanks, create the risk that a discharge of hazardous materials may be continuing at the present time. By letter dated February 13, 1991, Respondent denied Petitioner's eligibility to participate in the Early Detection Incentive Notification Program. This letter provided, in pertinent part, as follows: The Department of Environmental Regulation has completed its eligibility review of your Early Detection Incentive Notification Application. Based upon information given in this application and a compliance verification evaluation, the Department has determined that this site is not eligible for state-administered cleanup pursuant to Section 376.3071(9), Florida Statutes (1986) for the following reasons: Failure to have storage tanks tightness tested. Request was made by the Department of Environ- mental Resources Management (DERM) on March 3, 1989. This shall be construed to be gross negligence in the maintenance of a storage system. According to Section 376.3071(9)(b)3, Florida Statutes, sites shall not be eligible for state- administered cleanup where the owner or operator has been grossly negligent in the maintenance of a petroleum storage system. By Pre-Trial Stipulation filed July 24, 1991, the parties entered into certain factual stipulations and framed the following two issues of law to be resolved: Whether X.O. #1 Corporation was grossly negligent as defined under Section 376.3071(9)(b)3, Florida Statutes, for failing to immediately investigate and abate the source of a petroleum contamination by conducting a tank and line tightness test pursuant to a request by DERM (Dade County Department of Environmental Resources Management). Whether X.O. #1 Corporation was grossly negligent as defined under Section 376.3071(9)(b)3, Florida Statues, for failing to make monthly monitoring system checks where such systems are in place.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered by the Florida Department of Environmental Regulation which denies the application of Petitioner to participate in the Early Detection Incentive Program for its facilities located at 2188 N.W. 20th Street, Miami, Florida 33142. RECOMMENDED in Tallahassee, Leon County, Florida, this 25th day of September, 1991. CLAUDE B. ARRINGTON 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, 1991.
Findings Of Fact David D. Boak, Petitioner, owns a 3/4 acre lot at 9602 East Flora Street on which he proposes to put a two-bedroom house trailer. The area is rural in nature. There is no sewage service to the area and none is currently planned. Soil samples taken at the site show that from 9 inches to 48 inches below the surface the soil is a mixture of Manatee and Pompano fine sands which have poor percolation qualities. Soil Survey for Hillsborough County (Exhibit 1) describes the limitations of these soils for septic tank use as severe with wetness. Petitioner contends that he has lived on this property for 21 years and has had his septic tank pumped out once, 11 years ago; that he has never seen this property flooded; nor has he seen water standing on the property more than minutes following a heavy rain. Respondent's witnesses testified the water table at this site is 13 inches below the surface and septic tanks will not work properly in this area. When Petitioner's initial application for a permit was denied, he applied for a waiver. The application for waiver was presented to the review group pursuant to the provisions of Rule 10D-6.45(1), Florida Administrative Code, and the review group recommended the waiver be granted. However, the Staff Director, Health Program Office, denied the waiver and this appeal followed. The Hillsborough County Aviation Authority has condemned the land in this area, including that owned by Petitioner, for use as a county airport site. That condemnation proceeding is currently in litigation. If this property is ultimately taken for airport purposes, Petitioner will have no use for the variance here sought. Testimony was presented that the soil conditions plus the wetness factor make the site unsuitable for the installation of a septic tank. No evidence was presented regarding the pollution of surface waters by a septic tank in this area or whether public health will or will not be impaired if a septic tank is installed.
The Issue Whether respondent should grant petitioner's application for eligibility for restoration coverage under the abandoned tank restoration program?
Findings Of Fact For decades the Hamilton County Road Department has stored refined petroleum products (gasoline and diesel fuel) in underground tanks at its maintenance yard off Highway 249. Testimony of Cox; Petitioner's Exhibit No. 8. On September 25, 1991, the three oldest storage tanks were dug up and removed from the yard. Remaining nearby were the four 5,000-plus-gallon underground tanks the County installed in the early 1980s, see Petitioner's Exhibit No. 7, which are still in use (or were at the time of the hearing.) After the newer tanks were put in service, Hamilton County never refilled any of the three older tanks. "Approximately three to four feet" (T.22) separate the pit which yielded the three older tanks from the "remaining [newer underground storage tank] area," id., to the northwest. In dealings with DER, Hamilton County has used the same "facility number" for both sets of tanks. Immediately after they removed the last of the old tanks, Chris Brockmeier took soil samples. Every sample he took southerly of the tanks left in the ground he found (with the use of a flame ionized detector) to contain in excess of a thousand parts of volatile hydrocarbons per million, undoubtedly a remnant of gasoline or diesel fuel. The soil samples he took from the area on the other side of the remaining tanks contained from 460 to 700 parts of volatile hydrocarbons per million. The contamination may well have come from the old, not the new, storage tanks, but the evidence did not reliably establish its source, Mr. Brockmeier's opinion notwithstanding.
Recommendation It is, accordingly, RECOMMENDED: That DER deny petitioner's application for restoration coverage for Facility No. 248518525 under the abandoned tank restoration program. DONE and ENTERED this 14th day of January, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II 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 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2682 Petitioner's proposed findings of fact Nos. 1-5 and 7-15 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, the proof did not eliminate the possibility that leakage or spillage since the old tanks' removal also contributed. Petitioner's proposed findings of fact Nos. 16 and 17 are treated in the section on conclusions of law. Respondent's proposed findings of fact Nos. 2, 3, 4 and 6-13 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 1, the route number was different. With respect to respondent's proposed finding of fact No. 5, Petitioner's Exhibit No. 7 and Cox's testimony suggest they were last used between 1981 and 1986. COPIES FURNISHED: John H. McCormick, Esquire Post Office Drawer O Jasper, Florida 32052 Brigette A. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue This cause arose upon the Department of Environmental Regulation's proposed denial of eligibility for participation in the Early Detection Incentive (EDI) program to Petitioner, Flash Foods, Inc. The EDI Program was established in the State Underground Petroleum Environmental Response (SUPER) Act of 1986 and is codified in Section 376.3071, Florida Statutes. The EDI Program provides for state sponsored cleanup of sites contaminated as a result of a discharge from a petroleum storage system.
Findings Of Fact The State Underground Petroleum Environmental Response (SUPER) Act of 1986 was enacted as Chapter 86-159, Laws of Florida, and codified primarily in Section 376.3071, Florida Statutes. It provides for the expeditious cleanup of property contaminated as the result of storage of petroleum or petroleum product. The EDI Program, Section 376.3071(9), Florida Statutes, was created as part of the SUPER Act. The EDI Program provides for state cleanup of sites contaminated as a result of discharge from a petroleum storage system. The legislature provided that some contamination sites would not be eligible for the EDI Program. In Section 376.3071(9)(b)3., Florida Statutes, the Legislature provided that: Upon discovery by the Department that the owner or operator of a petroleum storage system has been grossly negligent in the maintenance of such petroleum storage system ...the site at which such system is located shall be ineligible for participation in the incentive program and the owner shall be liable for all costs due to discharges from petroleum storage systems at that site, any other provisions of Chapter 86-159, Laws of Florida, to the contrary notwithstanding. For the purposes of this paragraph, willful failure to maintain inventory and reconciliation records, willful failure to make monthly monitoring system checks where such systems are in place and failure to meet monitoring and retrofitting requirements within the Florida Administrative Code, or violation of similar rules adopted by the Department of Natural Resources under this Chapter, shall be construed to be gross negligence in the maintenance of a petroleum storage system. (emphasis applied) In late 1984 Flash Foods bought property located at 10143 Beach Boulevard, Jacksonville, Florida. Petitioner operated its Flash Foods Store #112 at that location. Store #112 sold motor fuels to the general public. The fuel was stored in underground storage tanks. Specifically, the store site consisted of a building containing the fast food store and eight storage underground tanks located in two tank excavations. Six tanks are located to the west of the building in a single excavation. Two tanks are located to the east of the building in a single excavation. The six tanks to the west of the building were of unknown age. Tanks for which an installation date is unknown are treated as tanks installed before 1970, and were required to be retrofitted with monitoring wells by December 31, 1986. The two tanks to the east of the building were installed in 1974. The tanks installed in 1974 were required to be retrofitted with monitoring wells by December 31, 1987. At some time prior to December 31, 1986, inventory records revealed that two of the tanks in the site's western excavation were leaking. Those tanks were taken out of service at that time. The remaining six tanks were kept in service. At about the same time, Flash Foods decided to take all the remaining tanks out of service and replace them as soon as possible. The company felt that the six tanks which had been kept in service were likely to develop leaks. Additionally, Petitioner decided not to install monitoring wells and retrofit the six storage tanks. The decision was based on the fact that the tanks would be taken out of service as soon as possible and it made no fiscal sense to install very expensive wells and complete very expensive retrofitting. The four tanks in the western excavation and the two tanks in the eastern excavation which had been kept in service were removed in May, 1988. In 1987, Flash Foods installed two piezometers or test wells at the site. These piezometers are not monitoring wells as that term is used in Chapter 17-61, Florida Administrative Code. They are temporary in nature, and do not comply with what is recognized as a permanent monitoring well. One piezometer was placed near each excavation. In order to meet the monitoring and retrofitting requirements of Chapter 17-61, Florida Administrative Code, a series of four monitoring wells was required for each excavation. The monitoring wells were required to be placed either at the corners or the midpoint of the excavation. Clearly Petitioner did not meet the Department's requirements for the number of monitoring wells or the placement of those wells. After taking water samples the presence of contamination at the site was conf confirmed. The two test wells did not show any further ground contamination. The piezometers were then covered over with soil and no further test samples were taken from the wells. From December 31, 1986, the date retrofitting of the tanks in the western excavation was to have occurred, until 17 months later when the tanks were removed, Flash Foods continued to measure the tanks' inventory. From December 31 1987, the date retrofitting of the tanks in the eastern excavation was to have occurred, until 5 months later when the tanks were removed, Flash Foods continued to measure the tanks' inventory. The inventories did not reveal any further leakage from the remaining tanks. Inventory is measured by placing a stick into the tank and measuring the inches of product in the tank. In most cases, accuracy to a quarter of an inch is the best that can be achieved through stick measurement. A quarter of an inch translates to a differential of from 25 to 40 gallons. Inventory record keeping can detect catastrophic leaks from tanks, but is ineffective for small leaks. For that reason, inventory record keeping by itself is not an allowable method of leak detection pursuant to Chapter 17-61, Florida Administrative Code. Monitoring wells are also required so that small leaks can be detected. Inventory record keeping, therefore, does not excuse the failure of a site to install monitoring wells in accordance with Chapter 17-61, Florida Administrative Code. Monitoring wells are required at sites which have experienced discharge in order to detect subsequent discharges at the site. Rapid detection of discharges is necessary to allow contamination to be restricted to the site, to determine whether the contents of a tank need to be removed and to determine the cleanup measures which may be required at the site. If monitoring wells are sampled monthly and the results recorded so that thicknesses are provided, information regarding the existence of a subsequent discharge would be available. Due to the lack of a monitoring system for leak detection, it is not possible to know if subsequent discharges occurred at this site from the tanks at the site. Failure to detect a leaking tank will result in greater contamination concentrations, larger plume size and greater costs of cleanup. Under the Early Detection Incentive Program, greater costs of cleanup will be passed along to the state. The Department has consistently, as a matter of agency practice, denied eligibility to sites at which monitoring retrofit requirements have not been met.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Petitioner, Flash Foods, Inc. be determined to be ineligible for the Early Detection Incentive Program pursuant to Section 376.3071(9), Florida Statutes. DONE and ENTERED this 7th day of June, 1989 in Tallahassee, Florida. DIANNE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1989. APPENDIX The facts contained in paragraphs 1, 2, 5,B and 6 of Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 3, 4, and 7 of Proposed Findings of Fact are subordinate. The facts contained in paragraphs 1-27 of Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraph 28 are cumulative and subordinate. COPIES FURNISHED: James C. Jones, III, Esquire Post Office Box 2149 Waycross, Georgia 31502 D. Gary Early, Esquire State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399 Dale H. Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact At all times material to this proceeding, Sandra B. Frazier was a licensed real estate broker-salesman in the State of Florida, License No. 0185565, as an associate with Property Associates, Inc., Tallahassee, Florida. On July 1, 1989, Howard M. Burkholz, Leslie Burkholz, and Jacob H. Schiff entered into an Exclusive Right of Sale Agreement with Property Associates, through its agent, Frazier, for the sale of a house located in Forest Green Subdivision, at 2062 Pepperidge Way, Tallahassee, Florida. The Exclusive Right of Sale Agreement states in part: Seller further certifies and represents that the property has no latent defects except the following: septic tank is pumped monthly at Sellers request. [sic] Mr. and Mrs. Burkholz both told Frazier that the septic tank was not a problem, but Frazier had previous knowledge of septic tank problems in the vicinity and of the significance of needing septic tank pumping. Frazier sold the house across from the Burkholz's house. That house, at 2061 Pepperidge Way, was bought by Marcie Doolittle in December of 1988. The listing information and Notice to Prospective Buyers showed that, due to the composition of the soil and heavy rains, it was necessary to have the septic tank pumped. The seller offered an offset to the buyer for the cost of additional drainfield. Only after Doolittle bought the house did Frazier learn of the severity of the problems and the necessity for pump outs every two weeks. In a letter written by Frazier to Doolittle on February 9, 1989, Frazier indicated that "once a septic tank fails it does not correct itself. It then requires regular pumping." Frazier suggested that the only resolution was more drainfield or regular pumping. After Frazier listed the Burkholz house, she mentioned to Mrs. Doolittle that she could not show the Burkholz house during wet weather because the backyard, in which the septic tank and drainfield was located, was too boggy. Further, Frazier discussed with Mrs. Doolittle that the city was going to install sewer in the area because of the septic tank failures. In conformance with the Exclusive Right of Sale agreement with the Burkholzs, Frazier listed the house through the Multiple Listing Service. The data on the house was input on an input sheet. If there are defects, they can be listed on lines RE1-RE4 on the input form. Despite her knowledge about the Burkholz's septic tank and the Doolittle's septic tank, Frazier did not list this as a defect. Mary Wheatley, a sales associate with Bob Wolfe Real Estate, worked with Jesse and Susan Day to locate a house to purchase. She showed the Days the Burkholz house. Her only knowledge of that house came from the MLS listing, the brochure entitled Highlights of this Home prepared by Frazier, and from information verbally given by Frazier. Wheatley had no knowledge of the septic tank problems and Frazier did not tell her anything about the septic tank or the potential hook up to city sewer. After various offers and counteroffers, the Days and the Burkholtzs signed a contract for the sale and purchase of the house on November 24, 1989. The Contract states in paragraph 14: CONDITION OF PROPERTY: BUYER ACKNOWLEDGES THAT HE HAS NOT RELIED UPON ANY REPRESENTA- TIONS MADE BY A REALTOR(S) AS TO THE CONDI- TION OF THE PREMISES. . . .SELLER warrants that the . . . septic tank . . . shall be in working order on the date of closing. SELLER agrees to repair any of the preceding items not in working order. BUYER agrees to inspect the property prior to closing to determine condition of said items; . . . If BUYER fails to make inspections as required, BUYER agrees to accept property in "as is" condition. BUYER and SELLER will diligently learn and disclose to each other prior to closing all facts affecting the value of the property. On December 26, 1989, the night before the closing, the Days, the Burkholzs, Frazier, and Wheatley did the final walk through. While Wheatley and Susan Day were in another room measuring for curtains, Mr. Day flushed a toilet and noted that it went down very slowly. He asked if there were septic tank problems. Mr. Burkholz indicated that there were, but that sewer hookup was coming and the septic tank was pumped out monthly by the city at no cost. Mr. Day asked about the costs and was told that the pumpouts were free and the sewer would cost several hundred dollars. There is a clear conflict in the testimony of the various witnesses about the sewer cost estimate given to Mr. Day, but the exact figure is of no consequence to the ultimate outcome of the case. Therefore the conflict is not resolved. The Days discussed the septic tank and sewer hookup and decided to go through with the closing. After the walk through, they signed an inspection sheet in which they accepted the premises as inspected, without any noted exceptions, and they relieved the sellers and the realtor from further warranty or responsibility for the condition of the property. According to Thomas Bryant, an engineer with the City of Tallahassee, in December, 1989, no one knew whether there would be sewer installed in Forest Green or the potential cost of sewer hookup. No one knew that even on the date of hearing. The city did enter into an agreement to charge $650 for sewer hookup in Forest Green, but there are additional charges and costs to the homeowner which are as yet undetermined. The septic tank problems constitute a latent defect which should have been disclosed to the buyers before a contract was agreed upon. The failure to disclose is not egregious since the regular pumping of the septic tank is done at no cost to the homeowner and results in no liability to the homeowner. The projected sewer hook up was too uncertain to have required such disclosure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order and therein: Find Sandra B. Frazier guilty of one Count of concealment in violation of Section 475.25(1)(b), Florida Statutes. Based on the mitigating factors set forth above and on the relatively minor nature of the offense, impose a fine of $100.00 on Sandra B. Frazier. Issue a written reprimand to Sandra B. Frazier. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING 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 27th day of March, 1991. APPENDIX TO THE RECOMMENDED ORDER, CASE NO. 90-6189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Sandra B. Frazier Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1). Proposed findings of fact 2-9 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Janine B. Myrick Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801-1772 William J. Haley Attorney at Law Post Office Box 1029 Lake City, FL 32056-1029 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801
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
Findings Of Fact The parties stipulated to findings of fact set forth in paragraphs 1.- 8.,below. Stipulated Facts Respondent has documented contamination from the abandoned petroleum storage system. The abandoned petroleum storage system has been properly closed. Petitioner submitted an application to Respondent on Respondent's forms 17-769.900(3) and (4), F.A.C., which was postmarked on or before June 30, 1992. The site is not eligible for cleanup pursuant to Section 376.3071(9) and (12), Florida Statutes, the Early Detection Incentive Program, or the Florida Petroleum Liability and Restoration Insurance Program pursuant to Section 376.3072, Florida Statutes. This site is not owned or operated by the federal government. This site did not have leaking tanks that stored pollutants that are not petroleum products as defined in Section 376.301, Florida Statutes. Respondent was not denied access to this site. Petroleum contamination was not discovered after the application deadline of June 30, 1992. Additional Facts Petitioner, a Florida corporation with its principal place of business in Leon County, Florida, is in the business of owning and leasing property. Petitioner is the fee simple owner of property located at 2022 Wahnish Way in Tallahassee, Florida. The property located on Wahnish Way was leased to James T. "Pete" Thomas by Petitioner's predecessor in title. Thomas operated a gasoline station and automobile repair garage on the property. The lease with Thomas was continued by Petitioner without change upon Petitioner's assumption of the legal title to the property in 1985. Prior to Petitioner's assumption of title to the property, Thomas had installed four petroleum storage systems in a four tank pit on the property in the early 1970's. Each tank and its integral piping is a petroleum storage system, as defined by Section 376.301(15), Florida Statutes (1991). In the early 1980's, Thomas and his wholesale gasoline distributor determined that one of the four underground tanks was losing petroleum product. In 1982, Thomas ceased using the southernmost tank in the pit for the storage of petroleum products for subsequent consumption, use or sale. The distributor ceased placing gasoline in the southernmost tank. Later, in compliance with subsequent statutory enactments, Thomas registered all of the tanks, including the abandoned southernmost tank with Respondent by the statutory deadline of December 31, 1984. Although Thomas signed the registration documents as an agent of Petitioner, he was not such an authorized agent and the registration occurred without the knowledge or approval of Petitioner. As a result, Petitioner cannot be viewed as having filed the registration. Petitioner, unaware that Thomas had experienced any product loss problems or that the tanks on the property had been registered by Thomas with Respondent, became aware of both matters following receipt of a letter from government officials of Leon County, Florida, on November 20, 1990. As set forth in that letter, Petitioner was apprised that the tanks were not in compliance with State of Florida standards and would have to be closed or retrofitted to bring the tanks into compliance. Following receipt of the letter, Petitioner informed Thomas that selling of gasoline at the site was to be discontinued immediately. Closure of the tanks, performed in early 1991 by contractors retained by Petitioner, consisted of excavation and removal of the petroleum storage systems from the property. All four tanks were in the tank pit side by side, from the northernmost end of the pit to the southern end of the pit fronting on Osceola Street in Tallahassee, Florida. When the removal was completed, a Closure Assessment form was prepared by one of the contractors, Jim Stidham and Associates, in accordance with requirements of Florida law. During that process, excessive contamination from petroleum product of the soils in the extreme south end of the tank pit was discovered. Excessive contamination, defined as anything more than 500 parts per million, was located beneath the southernmost pump on the southern end of the pump island and in the southern end of the pit. Both soil sample seven in the southernmost end of the pit and soil sample 11 under the southernmost pump document these unacceptable high levels of contamination. A 20 foot soil boring as near as possible to the southernmost tank on the site revealed the unacceptable levels of contamination extended to that depth. As supported by the testimony of James A. Stidham, Petitioner's expert in the assessment of contamination caused by underground petroleum storage tanks, the location of contamination in the pit area establishes that the tank causing the contamination was the southernmost tank. In view of the location of the contamination in the pit area, the tank discovered to have a hole in it at the time of removal was the southernmost tank. The excessive contamination located at the shallow depth of two feet under the southernmost pump resulted from the improper disconnection of piping attached to the pump and is not attributable to the leak in the tank. Each tank was connected by piping on the eastern end of each tank to the corresponding pump. The southernmost pump was not used after 1982 and was missing integral parts by the time the tanks were closed. In the course of exploring options for clean up of the property, Petitioner filed for assistance from Respondent in the form of participation in the ATRP. Unaware of the true date of the cessation of use of the southernmost tank, Petitioner gave the date of last use for all tanks in the pit by stating that the "tanks were taken out of service between December 15, 1990 and January 15, 1991." Petitioner provided this response to Respondent's July 30, 1991 request for further information on August 6, 1991. Although Respondent made an initial determination to deny Petitioner's application in the middle of August, 1991, that action was not communicated to Petitioner. Instead, Petitioner's application was held by Respondent, pending possible amendment to Section 376.305(7), Florida Statutes (1991), the law controlling admission to the ATRP. Respondent held Petitioner's application for a total of 19 months before issuance of a formal decision to deny the application on February 26, 1993. Such delay by Respondent is unreasonable. Respondent's denial of Petitioner's application was based upon the eligibility requirement restricting ATRP participants to those situations where the petroleum storage system has not stored petroleum products for consumption, use or sale after March 1, 1990, and the belief of Respondent's personnel that all storage systems on Petitioner's property had stored products beyond that date. Specifically, Respondent eventually gave notice that it intended to deny Petitioner's application for participation in the ATRP for the following reason: Eligibility in the Abandoned Tank Restoration Program is restricted to those petroleum storage systems that have not stored petroleum products for consumption, use or sale after March 1, 1990, pursuant to Section 17-769.800(3)(a), Florida Administrative Code. Respondent utilized provisions of Subsection 376.305(7)(f), Florida Statutes (1991), to permit entry of some applicants into the ATRP, demonstrating that Respondent did not consider the March 1, 1990 deadline contained in provisions of Subsection 376.305(7)(b), Florida Statutes (1991), to be absolute. As attested at the final hearing by Respondent's employee, Respondent considered "variables" when determining whether to enforce the March 1, 1990, deadline. Those variables comprise the criteria listed in Subsection 376.305(7)(f), Florida Statutes (1991). By use of those variables, Respondent effectively applied provisions of Subsection 376.305(7)(f), Florida Statutes (1991), to some program applicants other than Petitioner and permitted their participation while choosing to refrain from final agency action under that same criteria with regard to Petitioner's application pending subsequent legislative enactment. Petitioner's southernmost tank is an abandoned petroleum storage system that was not required to be registered with Respondent when it was in service; the system came into the possession of Petitioner following its abandonment; was never returned to service; and is not otherwise eligible for cleanup pursuant to Subsection 376.3071(9), Florida Statutes, or Section 376.3072, Florida Statutes.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered granting Petitioner's application for participation in the ATRP with regard to contamination resulting from Petitioner's southernmost petroleum storage system. DONE AND ENTERED this 1st day of February, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 1st day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2658 The following constitutes my rulings, pursuant to Section 120.59, Florida Statutes, upon proposed findings of fact submitted by the parties: Petitioner's Proposed Findings. 1.-23. Adopted, though not verbatim. Respondent's Proposed Findings. 1.-2. Rejected, not supported by weight of the evidence. 3.-4. Rejected, subordinate to HO findings on this point. 5.-11. Accepted. Rejected, relevance. A mischaracterization of the evidence in that the testimony establishes that an existing lease agreement was continued. Accepted to the extent that the evidence establishes that there were four tanks in the pit. Rejected, credibility, weight of the evidence as to the accuracy of the registration form in the face of conflicting evidence. 16.-18. Rejected, weight of the evidence. 19.-20. Accepted. 21.-22. Rejected, subordinate. Accepted. Rejected, relevance. 25.-26. Accepted. 27.-29. Rejected, subordinate. Rejected, relevance. Rejected, argumentative. Accepted. Rejected, legal conclusion, argumentative. COPIES FURNISHED: Melissa Fletcher Allaman Attorney at Law Post Office Drawer 1170 Tallahassee, Florida 32302 Jefferson M. Braswell Lisa M. Duchene W. Douglas Beason Assistant General Counsels Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
