The Issue Are the Respondents legally liable for petroleum contamination of soil and groundwater at the Economy Tire Service Station, 1858 Main Street, Sarasota, Florida and, if so, should the Respondents be required to perform the Corrective Actions included in the Notice of Violation and Orders for Corrective Action issued on February 19, 1993, by Petitioner, Department of Environmental Protection?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the administrative agency charged with the responsibility of administering and enforcing the provisions of Chapter 376, Florida Statutes, and the rules promulgated thereunder in Title 17, Florida Administrative Code. Bryant A. Meeks, Trustee, is the owner of the property situated at 1858 Main Street, Sarasota, Florida (Property). Meeks is a person within the meaning of Section 376.301(12), Florida Statutes. Stanley M. Butler is the operator of Economy Tire Service (Business) on the Property, and has continually operated the Business on the property, beginning on November 26, 1980. The Property is specifically identified in a Quit-Claim Deed dated September 10, 1980, conveying all of the interest of O. M. Bailey in and to the Property, to Bryant A. Meeks and Jacqueline F. Meeks. The Property is legally described as: "the East one-half of Lot 3 and all of Lot 4, Subdivision of Lot 15, Block H, PLAT OF SARASOTA, as per plat thereof recorded in Plat Book 1, Page 166, Manatee County Records; and being the same property conveyed by Special Warranty Deed dated July 1, 1979, executed by BP Oil Corporation, a Delaware Corp., recorded in Deed Book 1012, Page 1905, Public Records of Sarasota County Florida." On December 1, 1977, SWT, Inc., purchased the Business from William E. Mitchell and Margaret G. Mitchell. Meeks was President of SWT, Inc. 6 After the acquisition of the Business by SWT, Inc., Meeks hired Butler to operate the Business. On July 17, 1979, Meeks, and his wife, Jacqueline F. Meeks, acquired an undivided one-half interest in the Property by Special warranty Deed from American Petrofina Company of Texas. O. M. Bailey acquired the remaining undivided one-half interest in the Property in the same deed. By Quit-Claim Deed dated September 10, 1980, O. M. Bailey conveyed all of his right, title and interest in the Property to Bryant A. Meeks and Jacqueline F. Meeks. On November 26, 1980, SWT, Inc. sold the Business, including fixed assets, inventory and accounts receivable to Butler. The sale included four underground petroleum storage tanks situated on the Property. On December 1, 1980, Stanley M. Butler and Dixie J. Butler leased the Property from Bryant A. Meeks and Jacqueline F. Meeks for a term of ten years, with an option to renew the lease and an option to purchase the Property. The lease was extended for ten years on January 4, 1991. The lease requires Butler to comply with "all statutes, ordinances, rules, orders, regulations and requirements of Federal, State and City Government and any and all their Departments and Bureaus applicable to said premises..." By Trust Deed dated September 23, 1983, Bryant A. Meeks and Jacqueline F. Meeks conveyed their right, title and interest in the Property to Bryant A. Meeks as Trustee, under the Bryant A. Meeks, Jr., Trust dated August 24, 1983. The Property remains under the ownership of Bryant A. Meeks, Trustee. At all times material to this proceeding, the Business on the Property has consisted of automobile service station, selling various grades of gasoline, diesel fuel, tires and automobile repairs. At all times material to this proceeding, there were four 3,000 gallon, carbon steel, underground petroleum storage tanks, one underground waste oil tank of unknown size (Tank Five) and two underground kerosene tanks of unknown size (Tank Six and Tank Seven) The four underground gasoline tanks shall be collectively referred to as "Gasoline Tanks" and individually as Tank One through Tank Four moving in a northerly direction, with Tank One being adjacent to the service bays on the Property and Tank Four being adjacent to Main Street. Tank Five is located just south of the office adjacent to the east side of the service bays. Tank Six and Tank Seven are located south of the pump island and just north of the office and service bays. The Gasoline Tanks have been continuously owned by Butler since Butler first acquired the Business on November 26, 1980. Butler did not purchase Tank Five, Tank Six and Tank Seven at the time he purchased the Business. At all times material to this proceeding, the Gasoline Tanks contained various grades of gasoline including regular leaded, unleaded and premium unleaded gasoline, as well as diesel fuel. At all times material to this proceeding, the Property was a facility within the meaning of Section 376.301(7), Florida Statutes. In the summer of 1978, it was determined that Tank Four was the source of water pumped into a customer's automobile gas tank. Tank Four was tested and found to be leaking. Tank Four was disconnected from service without removing all of the gasoline product. During this time, Butler advised Meeks that Tank Four was leaking, notwithstanding Meeks' testimony to the contrary. When Meeks purchased the undivided one-half interest in the Property in July 1979, Butler again advised Meeks that Tank Four had been disconnected due to a leakage, notwithstanding Meeks' testimony to the contrary. Meeks advised Butler that the Property had been purchased "as is". Since November 26, 1980, Butler has been an Operator of the Facility within the meaning of Section 376.301(10), Florida Statutes. Butler switched suppliers in 1981 and his new supplier, Amoco Oil, offered to fiberglass line Tank Four. The contractor hired by Amoco Oil pumped out the petroleum product left in the Tank Four when it had been disconnected. The contractor determined that Tank Four could not be fiberglass lined due to the holes in the tank. On May 21, 1984, there was a complaint by the Sarasota Fire Department of gasoline odors from the Facility. The gasoline vapors resulted from a leak in the underground air lines in conjunction with gasoline being discharged from Tank Four because of perforations in the tank before it was pumped out in 1981. The Department notified Butler of this finding and requested that Butler perform a hydrologic study to determine the extent of contamination. Apparently, Butler never had this hydrologic study performed. On October 12, 1984, Butler was given a warning notice by the Department that he was in violation of Chapter 403, Florida Statutes, and regulations promulgated thereunder. Additionally, the Department advised Butler to commence an contamination assessment which would require a Contamination Assessment Report to be submitted to the Department. The record does not reflect that a contamination assessment was commenced or that a Contamination Assessment Report was submitted to the Department. The Department has been aware of Meeks' ownership of the Property since October 1984. Butler registered the Gasoline Tanks and the Waste Oil Tank with the Department in March, 1986. In 1989, Butler installed four monitoring wells at the Facility adjacent to the Gasoline Tanks. On July 27, 1989, another complaint concerning gasoline odors was reported. On August 17, 1989, a written notice was mailed to Butler by the Department advising Butler that he was in violation of Chapters 403 and 376, Florida Statutes. There is no evidence that the Department sent Meeks a notice of such violation. During an inspection of the Facility in April 1990, the inspector found that: (a) the Gasoline Tanks had not been upgraded and retrofitted as required by Department rule; (b) the Gasoline Tanks did not have the requisite overfill and overspill protection as required by Department rule; (c) there was petroleum product in all four monitoring wells, with well no. 1 having a high petroleum odor and a detectable petroleum odor in wells nos. 2, 3, and 4; (d) the organic vapor analyzer readings taken in each of the monitoring wells indicated hydrocarbon vapors in excess of 5,000 parts per million and; (d) a tightness test had not been performed at the Facility in accordance with Department rules, and in response to the Discharge Notification Form filed by Butler on November 13, 1989. It was not until the fall of 1990 that Meeks received a notice from the Department concerning the contamination of the Property and that Meeks would be liable for cleaning up the contamination. However, Meeks failed to present sufficient evidence that he had been prejudiced by the Department's delay in notifying him of the contamination due to the unavailability of witnesses or records. There was no showing that Meeks had made any attempt, unsuccessful or otherwise, to secure witnesses and records concerning the condition of the Property before his acquisition in 1979 and 1980. During an inspection of the Facility in February 1991, the inspector found that: (a) one of the Gasoline Tanks was full of water; (b) the Gasoline Tanks had not been upgraded and retrofitted as required by Department rule and; (c) the Gasoline Tanks did not have the requisite overfill and overspill protection as required by Department rule. Amoco Oil removed all of the petroleum product from Tanks One, Two and Three in October 1991. Butler then contracted with Dickerhoof to inspect the Gasoline Tanks and reline them with fiberglass. After inspecting Tank One and Tank Two, Dickerhoof determined that these tanks could not be relined because of their condition. There were pin holes on the inside of the tanks in addition to split seams and perforations in the tops of the tanks. Butler decided not to inspect Tank Three since he could not operate with only one tank. Tank Four had been taken out of service earlier. On October 22, 1991, Eugene Cherno, Environmental Supervisor, Pollution Control Division, Sarasota County Government advised Butler not to return the Gasoline Tanks to service due to their poor condition. During an inspection of the Facility in May 1992, one-half inch of free product with a fairly strong petroleum odor was bailed from the southwest monitoring well. The color and condition of the free product indicated that the petroleum discharge had occurred within one to four years before the free product was removed. There was a slight petroleum odor in the remaining three monitoring wells. In July 1992 Butler contracted with James Nuwer to remove and replace the Gasoline Tanks and gas lines with new underground storage tanks and gas lines. Upon removing the Gasoline Tanks, Nuwer found small holes in Tanks One, Two and Three and somewhat larger holes in Tank Four. All of the Gasoline Tanks were corroded and had perforations on the welded seams. On July 10, 1992, when the Gasoline Tanks were excavated there was a strong petroleum odor permeating the entire area around the facility even though the petroleum product had previously been pumped out of the Gasoline Tanks. The soil removed in the process of excavating the Gasoline Tanks was a porous sand type soil. During the excavation and replacement of the Gasoline Tanks, Environmental Science and Engineering, Inc. (ESE), on behalf of Butler, prepared a UST Closure Environmental Assessment Report (Closure Assessment Report). During the excavation activities, ESE monitored the soils removed from the excavation using an organic vapor analyzer (OVA), equipped with flame ionization detector (FID). The OVA/FID measures total vapors, including methane, in the parts per million (ppm) range. An unfiltered and filtered screening was performed on each sample to evaluate the total organic vapor and methane concentration. The methane concentration was subtracted from the total organic vapor concentration to evaluate the soil for excess soil contamination. Soil vapor screening was performed in accordance with procedures defined in Rule 17-770.200(2), Florida Administrative Code. Twenty-one soil samples were collected for OVA/FID screening. The results of the OVA/FID screening show the total OVA reading in all 21 samples being greater than 1000 ppm. After subtracting the methane reading from total OVA reading, the samples ranged from a total OVA reading of 890 ppm to 1000 ppm. Pursuant to Rule 17-770.200(2), Florida Administrative Code, soils excessively contaminated by gasoline or diesel fuel will cause a total hydrocarbon reading of 500 ppm for gasoline and 50 ppm for diesel fuel using OVA/FID screening. Based on these results, the soil on the Property is excessively contaminated as that term is defined in Rule 17-770.200(2), Florida Administrative Code. ESE collected groundwater samples from monitoring wells nos. 1, 2, and The analytical results indicate the detection of both purgeable aromatic and polynuclear aromatic hydrocarbons in the groundwater samples from monitoring wells 1, 2, and 3. In each groundwater sample the benzene, total volatile organic aromatic (TVOA) and methy-tertiary-butyl-ether (MTBE) are reported in concentration presented as micrograms/liter (ug/L) as follows: MW1 MW2 MW3 Benzene 2,140 ug/L 737 ug/L 732 ug/L TVOA's 3,160 ug/L 2,080 ug/L 1,430 ug/L MTBE's 6,090 ug/L 5,980 ug/L 2,940 ug/L These levels exceed the Site Rehabilitation Levels (SRL's) for benzene, TVOA and MTBE of 1 ug/L, 50 ug/L and 50 ug/L, respectively, established in Rule 17- 770.730(5)(a), Florida Administrative Code. Monitoring well no. 4 was not sampled because free product was observed on the groundwater in the well, demonstrating contamination. ESE was unable to determine the extent of the excessively contaminated soils at the Facility due to limiting site conditions. The excavated excessively contaminated soils were transported to the Sarasota County Landfill for bio-treatment. Tank Five, Tank Six and Tank Seven are unmaintained underground storage tanks on the Property that have not been properly closed. On February 19, 1993, the Department issued a Notice Of Violation And Orders For Corrective Action against Meeks and Butler concerning the contamination of the Property on which the Facility is located. At a meeting on March 26, 1993, with Meeks, Butler and representatives of the Department present, the matter of the cost of cleaning up the contamination was discussed by those present. Meeks contends that at this meeting a Department representative advised those present that the Department would pay for the cleanup of the contamination but would not pay for the removal of the three underground storage tanks remaining on the Property. Meeks further contends, that in reliance on this commitment he did not pursue an eviction action against Butler. Meeks presented no evidence on how his not pursuing the eviction action against Butler was detrimental to him. A second meeting was held on July 14, 1993, where only Meeks and Department representatives were present. Meeks contends that another Department representative advised him that the Department could not honor the previous commitment to pay for the cleanup. There is insufficient evidence to show that a Department representative made a commitment for the Department to pay for the contamination cleanup on the Property. However, assuming that a commitment was made, there is insufficient evidence to show that Meeks' reliance on that commitment resulted in Meeks foregoing his eviction action against Butler. Furthermore, even if Meeks did rely on the commitment to forego his eviction action against Butler, there is insufficient evidence to show that his change in position was detrimental or that his reliance on the commitment for any reason resulted in a change of position that was detrimental to Meeks. There is sufficient evidence to show that a Contamination Assessment should be completed at the Facility to determine the extent of the petroleum contamination on the Property. There is sufficient evidence to show that one or more of the Gasoline Tanks have discharged gasoline or diesel fuel to the soils and groundwater on the Property. There is sufficient evidence to show that Tank One, Tank Two and Tank Three discharged either gasoline or diesel fuel to the soils and groundwater on the Property during the several years before the removal of the petroleum product from those tanks in October 1991. Likewise, there is sufficient evidence to show that Tank Four discharged gasoline to the soils and groundwater on the Property from the summer of 1978, when it was taken out of service, until the remaining gasoline was pumped out in 1981. The Respondents presented no evidence that some or all of the contamination was attributable to someone other than the Respondents. While it might be inferred that the Department incurred expenses and costs while investigating this matter, the Department presented no evidence to support any expenses or costs for its investigation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, Recommended that the Respondents shall take the following specific corrective actions to address the violations: Respondents shall, within 60 days of receipt of the Final Order, properly close the three unmaintained underground storage tank systems remaining on the Property in accordance with Rule 17-761.800(2), Florida Administrative Code Respondents shall, at time of the closure of the unmaintained underground storage tank systems, conduct a closure assessment in accordance with Rule 17.761.800(3), Florida Administrative Code, and shall submit the closure assessment report to the proper authority within 60 days of the date of the closure. Respondents shall, within 30 days of receipt of the Final Order, initiate a contamination assessment, as required in Rule 17-770.600(1), Florida Administrative Code. Respondents shall conduct a petroleum contamination cleanup in accordance with Rule 17-770, Florida Administrative Code, in the manner and within the time frames specified therein. DONE and ENTERED this 21st day of December, 1994, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 93-2020 AND 93-6637 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact; 1. Petitioner's proposed findings of fact 1 through 74 are adopted in substance as modified in Findings of Fact 1 through 50; otherwise they are not supported by the evidence in the record, or are unnecessary or subordinate, or are neither material nor relevant. Respondent Meeks' Proposed Findings of Fact: Respondent Meeks' proposed findings of fact 1 through 14, and 16 through 19 are adopted in substance as modified in Findings of Fact 1 through 50; otherwise they are not supported by the evidence in the record, or are unnecessary or subordinate, or are neither material nor relevant. Respondent Meeks' proposed finding of fact 16 is not supported by the evidence in the record. Respondent Meeks' proposed findings of fact 20 and 21 are not supported by the evidence in the record, but see Findings of Fact 43, 44 and 45. Respondent Butler's Proposed Findings of Fact: Respondent Butler did not file any proposed findings of fact. COPIES FURNISHED: Heidi Davis, Esquire Peter Fodor, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Michael S. Drews, Esquire Richard E. Nelson, Esquire 2070 Ringling Boulevard Sarasota, Florida 34237 Stanley M. Butler, Pro se c/o Economy Tire Service 1858 Main Street Sarasota, Florida 34236 Kenneth Plante, General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Since 1984, the Department has been the state agency charged with the responsibility to establish rules and regulate underground pollutant storage facilities in Florida. In 1988, the Legislature added the administration of the newly enacted Florida Petroleum Liability and Restoration Program to the Department's duties. The program was to be established on or before January 1, 1989. The Applicant is the owner of a petroleum storage system in Jacksonville, Florida. Since 1984, it has been subject to the rules regarding underground pollutant storage facilities promulgated by the Department. On September 18, 1989, an odor indicative of possible petroleum contamination was discovered at the site during the installation of monitoring wells. A Discharge Notification Form was sent to the Department by the Applicant on October 23, 1989. The form advised that there were no leaks in the system. It was suggested that the odor may have resulted from surface spill at the site over a number of years. In response to the notification, an inspection of the site was completed by the Department on December 5, 1989. The inspection revealed the following on-site violations: Registration requirements were not being met. The forms had not been updated to include the presence of monitoring wells and overfill protection at the facility. Two underground tanks had not been properly abandoned. Inventory and reconciliation records had not been properly maintained, as required by rule since 1987. This violation was reviewed, and discussed in detail with on-site representatives of the Applicant. The monitoring wells were not installed by the time deadlines set forth in the Department's rules regarding stationary tanks. Since the wells were installed in September 1989, samples had not been taken for visual signs of petroleum contamination. The purpose of the system is to allow the owner of the storage tanks to learn if there is a leak in the tanks that can be quickly controlled to limit contamination. The day after the inspection, the Applicant applied for a determination of eligibility for participation in the restoration coverage portion of the new Florida Petroleum Liability Insurance and Liability Program. An affidavit was signed stating that all of the Department's rules regarding stationary tanks were being complied with by the Applicant. Six days after the inspection, the Department sent the Applicant written notice of the results of the inspection. The Applicant was given time frames and instructions for correcting the listed violations that could be corrected. A contamination assessment and clean up were also required in the letter. This letter did not address the issue of eligibility for the restoration funding program because that was a matter unrelated to the inspection results. On March 7, 1990, the Department determined the facility was ineligible for participation in the restoration funding provided by the Florida Petroleum Liability and Coverage Program. The following reasons were given: Failure to properly abandon underground storage tanks, pursuant to Section 17-61.050(3)(c), Florida Administrative Code. Failure to maintain inventory records, reconciliations, and significant loss/gain investigation as per Section 17-61.050(4)(c), Florida Administrative Code. Failure to install monitoring system and overfill protection by the dates set forth in Section 17-61.06(2)(c)2, Florida Administrative Code. Failure to properly monitor leak detection system, pursuant to Section 17-61.050(5)(c), Florida Administrative Code. The 10,000 gallon fuel oil tank and the 3,000 gallon waste oil tank present at the facility were abandoned in March 1990. The notice issued by the Department after its inspection in December 1989, gave the Applicant sixty days after receipt of the notice to properly abandon the tanks. The Applicant substantially complied with this requirement after the written notice was received. Although the Applicant failed to maintain the inventory records, reconciliations, and significant loss/gain investigations required by the Department rules, some of these violations had been corrected prior to the Department's inspection in December 1989. Correct inventory recordkeeping was discussed during the inspection, and the need to immediately implement the proper recordkeeping practices was emphasized in the post-inspection notice of violations. All of the recordkeeping violations were not cured until August 1990. The records kept by the Applicant during the noncompliance period from 1984 to August 1990, did not provide a substantially equivalent degree of information regarding possible leak detection or prohibited discharges as the required recordkeeping procedures. Two underground stationary storage tanks on the site have been part of the Applicant's petroleum storage system since 1970 and 1975, respectively. The monitoring wells and overfill protection for these tanks should have been in place by December 31, 1987. Neither monitoring system was installed until September 1989. The Applicant began the contract negotiations for installation in September 1988. The Applicant did not demonstrate that the facility contained an alternative procedure between December 31, 1987 and September 1989, that provided a substantially equivalent degree of protection for the lands, surface waters, or groundwaters of the state as the established requirement for monitoring wells and overfill protection. In December 1989, the Department's notice advised the Applicant that the monitoring wells should be sampled monthly for visual signs of petroleum contamination. Since April 1990, the Applicant has been completing the monthly sampling in the monitoring wells as part of its leak detection system, as required by the Department's rule regarding underground stationary tanks.
Recommendation Accordingly, it is RECOMMENDED: That the Department enter a Final Order denying Petitioner's application for restoration coverage in the Florida Petroleum Liability and Restoration Program at the Jacksonville location. DONE and ENTERED this 28 day of December, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 _28_ day of December, 1990. APPENDIX TO RECOMMENDED ORDER The proposed findings of fact submitted by Petitioner are addressed as follows: Rejected. Improper interpretation of law. As for the facts in the first sentence, they are accepted. See HO #8. Rejected. Irrelevant. See HO #9. Rejected. Contrary to fact. See HO #9 and #11. Rejected. Contract to fact. See HO #11. Rejected. Contrary to fact. See HO #12 and #13. Rejected. Contrary to fact. Improper shifting of duty ad legal responsibility. Rejected . Improper application of law. The Respondent's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #5. Accepted. Accepted. See HO #4. Accepted. See HO #4. Accepted. Accepted. See HO #6. Accepted. See HO #4 and #6. Accepted. See HO #4 and #6. Accepted. Accepted. Accepted. See HO #4 and #9. Accepted. Accepted. See HO #4 and #9. Accepted. Accepted. See HO #9. Accepted. See HO #4 and #10. Accepted. Rejected. Contrary to fact. See HO #10. Accepted. Accepted. Accepted. See HO #10. Accepted. See HO #3 and #12. Accepted. Accepted. See HO #13. Accepted. Accepted. See HO #6. Accepted. See HO #4 and #6. Accepted. See HO #6. Accepted. Rejected. Not established by evidence. See HO #6. Accepted. Accepted. Accepted. Accepted. See HO #7. Accepted. Accepted. COPIES FURNISHED: William Chadeayne, Qualified Representative 8933 Western Way, Suite 16 Jacksonville, Florida 32256 Janet E. Bowman, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Handy Food Stores, Inc. (HFS), is a small, family owned corporation that owns and operates a chain of thirty-four convenience stores in Florida, thirty two of which sell gasoline. At issue in this proceeding is Store No. 82 (Store 82 or the store) located on State Road 378 in LaBelle, Florida. The facility has also been identified by respondent, Department of Environmental Regulation (DER), as DER facility number 268520172. This controversy concerns an application by HFS for reimbursement of costs and expenses related to cleanup activities at Store 82 incurred after that store site became contaminated with petroleum and petroleum products. The application was preliminarily denied by DER on the ground HFS was "grossly negligent" in the maintenance of the petroleum storage system at Store 82. Because the average clean-up cost per site is $330,000, and HFS denied that it was grossly negligent in its operation and management of the system, HFS requested a formal hearing to contest the agency's proposed decision. The facts in this case are not complicated, and with certain exceptions, are relatively free of dispute. Until February 1988 HFS's director of operations was Ray Collier. On February 2, 1988 Collier ordered the installation of four monitoring wells at Store 82 to determine if any leaks were occurring in two underground storage tanks located on the site. Such wells were required to be installed by DER for monitoring purposes no later than December 31, 1988. The parties have stipulated that the wells were properly installed in accordance with agency rules. When the wells were installed on February 2, the contractor's report reflected no contamination was present. Collier also contracted with Purity Well Testing, Inc. (PWT) to conduct monthly monitor system checks at the store. Such checks are required by DER to determine if any discharges of product are occurring in the storage system. On February 10, 1988 Collier resigned as director of operations to accept a position in Saudi Arabia. Prior to his resignation Collier was replaced by David A. Laughner, who still remains in that position. According to Laughner, he and Collier spent only two weeks together prior to Collier's departure, and Collier did not advise him of the details concerning the monitoring program. Thus, he had no immediate knowledge of the existence of the monitoring wells or the tests being conducted by PWT. HFS's corporate offices are located in an office building at 9330 Adams Drive, Tampa, Florida. Besides three corporate officers and the director of operations, the corporation had only three office employees who worked at the corporate headquarters. The building is owned by B & B Cash Grocery Stores, Inc. (B & B), which operates a chain of grocery stores in southwest Florida. HFS's offices are on the second floor while B & B's corporate offices are located on the first floor. Although the two corporations are legally separate entities, they have certain common directors and shareholders, and the two corporations once utilized a centralized bookkeeping and billing department which was controlled and staffed by B & B. Under that arrangement, bills sent to HFS were actually processed by B & B's accounting department which paid the invoice on behalf of HFS. In addition, the two corporations once shared the same post office box. Under that arrangement, which existed in February 1988 and continued until at least August 1988, all mail sent to HFS at the post office box was initially processed by B & B's mail room rather than being sent directly upstairs to HFS. On April 24, 1988 PWT conducted its first monthly monitor well inspection at the store. That report indicated that three inches of free product was present in monitoring well three. A second monthly monitoring well inspection was conducted on May 10, 1988 reflecting the presence of two inches of free product in well number three and twelve inches in well number four. Free product was defined by a DER witness as "material (such as a petroleum product) that will be left on the water table." The presence of a free product, including a refined petroleum product, in a monitoring well is an indication that a discharge or release of the product from a storage tank has and may be continuing to occur. If free product is observed, it is the responsibility of the tank owner to determine the cause of the discharge, and if it is determined that the discharge is coming from the tank, he must empty the tank so that the system can be repaired or replaced. Also, the owner is obliged to notify DER within three working days of discovery of the discharge. The purpose behind these reporting and investigating requirements is to try to decrease the size of the petroleum plume and the area of contamination. The results of the two tests, and the invoices for the charges, were sent by PWT to HFS's post office box. Consistent with existing procedure, B & B's mail room received the reports and invoices and forwarded both to B & B's billing department for processing and payment of the invoices. Rather than forwarding the test reports upstairs to HFS, B & B filed the reports with the invoices in B & B's billing department. The parties have stipulated that no one in the billing department knew or had reason to know of the potential significance of the monitor well inspection reports. Because the bills had been paid, PWT did not contact HFS to determine whether the reports had been received. Consequently, neither Laughner nor any other HFS corporate employee had knowledge that monitor well inspections had been conducted at Store 82 or that inspection reports had been forwarded by PWT. However, it is found that copies of such reports were either forwarded to Store 82 by someone in Tampa or by PWT because they were available for inspection by DER representatives at a store inspection that took place in late June 1988. As the result of an unconfirmed telephonic report received in early February 1988 concerning possible contamination at Store 82, on June 17, 1988 a DER inspector, Jeffrey Gould, sent a letter to Laughner at HFS's corporate post office box advising that Gould would be conducting a stationary tanks compliance inspection at Store 82 during the week of June 27, 1988. The letter also requested that all records associated with the storage tank system be available at the facility for inspection. This inspection is commonly referred to as a "17-61 compliance inspection", meaning that the storage tanks would be checked to see if they met the requirements of Chapter 17-61, Florida Administrative Code (1987). Although the letter was addressed to Laughner, it was forwarded by an undisclosed person to a Store 82 employee, Betty Smith, whose title is area supervisor, and Laughner denies having seen the letter until several months later. 1/ Gould and another DER employee, Alicia Andersen, met with Betty Smith at the store on June 29, 1989. It may be inferred that Smith had copies of the PWT monitoring reports for she produced copies of the same for Gould, who then hand-copied and reviewed the two reports. Gould also made a physical inspection of the four monitoring wells on the site. He noted the presence of free product in two of the four monitoring wells. One had 7/8 of an inch of free product (gasoline) while a second well had fourteen inches of free product. Gould also detected a strong odor and observed sheen in the northeast monitoring well and a strong odor in the southeast monitoring well. These findings are memorialized in a written compliance inspection report received in evidence as respondent's exhibit 2. After the inspection was completed, Gould discussed generally the results with Smith, had her sign the report and gave her a copy. Since Smith was not present at final hearing, Gould's version of their conversation is the only competent evidence of record on the subject. According to Gould, he told Smith that he "had found product and that it is a problem." Gould acknowledged that he did not go into too much detail with Smith concerning the report since she was only an employee, but he specifically recalled advising her "there was a definite problem at this facility" and that he "spent a long time" with her. Finally, after giving Smith a copy of the report, Gould told Smith to "return it to her office." However, Smith did not do so. Gould's version of the events was not credibly contradicted and it is hereby accepted. On July 11, 1988 Gould, over the district manager's signature, sent Laughner by certified mail a "warning" letter and copy of the June 29 inspection report. The documents were sent to the post office box in Tampa. The return receipt was signed on July 15 by one Patty Jackson, whose relationship, if any, to HFS was not disclosed. The letter provided in pertinent part as follows: Free gasoline product was found in two of the compliance monitoring wells. Product thickness in one well exceeded the bailer limitation of fourteen inches. The presence of free product was also noted on monitor well records by Purity Well Testing Company for April 24, 1988 and May 10, 1988. A maximum thickness of twelve inches was measured. Such discharges are in violation of Chapter 376, Florida Statutes and Florida Administrative Code Rule 17-3. It is required that the discharges be stopped and the integrity of the storage system verified. Records available onsite indicate the 4000 gallon tank failed a tightness test with a leak rate of -0.1057 gallons per hour (gph) on September 26, 1986. The tank however passed the test on October 7, 1986 at +0.027 gph. Please describe all repairs, if any, to the storage system after the initial failure. The Department requests a meeting to discuss entry into a Consent Order to resolve the violations. Please contact Jeff Gould at 813/332-2667 or write the letterhead address within ten (10) days of receipt of this letter to schedule a meeting. Your cooperation is appreciated. (Emphasis added) As noted in the previous finding, the letter and report were received on July 15, 1988 but were not forwarded upstairs to Laughner or any other corporate employee. When Gould received no oral or written response - to his letter, Gould eventually telephoned Laughner on August 26, 1988. During the course of the telephone call, for the first time Laughner became aware of the existence of the contamination problem at Store 82 and the nature of the tests that had been performed that spring by PWT. It is also noted that during the telephone call, Laughner acknowledged that Gould's letter of July 11 had just been routed to his desk. The two agreed to meet at DER's Fort Myers district office on September 1, 1988 to discuss the violations. On August 29, 1988, or three days after Laughner spoke with Gould, HFS filed its incentive program application for Store 82. The application, which noted that the date of discovery of a petroleum discharge at Store 82 was on June 29, 1988, was received by DER on September 6, 1988. On September 1, 1988, Laughner met with DER representatives to discuss Store 82. Laughner was told that certain specific measures should be taken to insure the integrity of the storage tank system. That same day, in a letter to DER, HFS informed DER that a tank integrity test had been scheduled for Store 82 and that HFS was implementing initial remedial action (IRA) to remove any petroleum product and excessively contaminated soils and that an enviromental consultant had been contracted to conduct IRA, site contamination assessment and any necessary remedial action. Until that time, and dating back to June 29, 1988, HFS had only conducted a stick test at Store 82 to monitor the presence of petroleum product. Also, HFS personnel had not reviewed any repair records, monitoring well records, or inventory records during this same period of time. On September 7, 1988, HFS conducted a tank integrity test at Store 82. The integrity test passed under the criteria set by the National Fire Protection Association, which is the acceptable standard under Chapter 17-61, Florida Administrative Code. However, DER did not consider the testing to be a timely response since it considered no more than a week to be a reasonable period of time for testing once a discharge is discovered. On October 7, 1988, DER, through its inspector Gould, conducted an incentive program compliance inspection at Store 82. Although Gould observed two and one-eighth inches of free product in one well and a sheen in another well, the compliance inspection checklist noted that Store 82 was in compliance with Section 376.3071, Florida Statutes. Question 3 on the verification checklist asked if there was "evidence of gross negligence." Gould checked "yes" and made the following notations: See penalty worksheets (draft CO to OGC for review). Major violations failed tank test (enclosed) showed leaks Sept. 1986! - D.E.R. not notified, free product in well treated as a discharge and D.E.R. not notified of product in wells to take action. Gould responded in the above fashion because he concluded that nothing had been done for long periods of time to insure the integrity of the petroleum storage system at Store 82. It should be noted, however, that nothing in the checklist indicated that damages of any kind were caused by HFS's failure to take remedial action until September 1988, and DER representatives admitted they had no proof of such damages. On September 14, 1989, or approximately one year later, DER issued its proposed agency action denying Store 82's eligibility for reimbursement under the incentive program. As later amended on March 16, 1990, the agency's letter recited the following reason for denying the application: Monitor well reports dated April 24, 1988 and May 10, 1988 listed free product in monitoring wells. No report of discharge discovery was made to the Department by Handy Foods as required by Chapter 17-61, F.A.C. On June 29, 1988, an inspector from the Department discovered free product in Petitioner's monitoring wells. Petitioners were sent a warning letter by the Department on July 11, 1988, requesting that Petitioner stop any discharges and verify the integrity of its storage system. Petitioner conducted such tank tightness tests on September 7, 1988, or approximately five months after the monitoring well reports indicated the discovery of free product. Failure to report, investigate and abate where there is evidence of a discharge shall be construed to be gross negligence in the maintenance of a petroleum storage system. In other words, DER contended that HFS was "grossly negligent" within the meaning of the law by failing to "report, investigate and abate" the discharge until almost five months after the leaks were first detected by PWT. DER admits that it has no information to support a contention that, as to Store 82, HFS failed to maintain or falsified inventory or reconciliation records, intentionally damaged the petroleum storage system, failed to make monthly monitoring system checks, or failed to meet monitoring and retrofitting requirements in accordance with chapter 17-61 procedures. Although the incentive and reimbursement programs under section 376.3071 were enacted by the legislature in 1986, the agency has not promulgated formal rules that define or identify "gross negligence" or the criteria for determining eligibility under the incentive reimbursement program. Through the introduction of various agency records received in evidence as petitioner's composite exhibit 6, HFS sought to establish the fact that DER, in at least four prior cases, reached a result inconsistent with that reached in its proposed agency action regarding HFS. However, DER has processed thousands of applications of this nature, and the presence of four contrary results does not establish any binding precedent. Moreover, DER's administrator acknowledged that the agency had either erred in the cited cases or the facts were distinguishable from those presented herein. The parties disagree on the meaning of the words "gross negigence" as it is used in Subsection 376.3071(12(b), Florida Statutes (1987). Both parties presented expert testimony concerning what they perceived to be a proper interpretation of the statute. According to HFS's expert, Howard Ledbetter, he construed the term to mean a willful and reckless disregard for agency regulations that were known and understood by the alleged offender. Ledbetter established that in the spring of 1988 there was no firm understanding by the industry of what was required by DER's underground storage tank rules. Finally, he recalled receiving several different interpretations of the rules from DER personnel. In contrast, a DER expert, John Svek, opined that gross negligence occurs whenever an owner/operator commits a major violation of chapter 17-61. However, Svek conceded that chapter 17-61 does not distinguish or define major or minor violations, and nothing in chapter 17-61 equates a failure to immediately investigate a discharge to gross negligence. Further, he admitted that a lack of knowledge of a discharge is a factor to consider in determining whether gross negligence is present. A second DER expert, Patricia Dugan, acknowledged that not only is there no written document setting forth guidelines for determining when gross negligence occurs but that the term "gross negligence" does not appear in chapter 17-61. However, Dugan maintained that if notices are received by a corporation but are misfiled, as was alleged to have been done here, that conduct equates to gross negligence on the part of HFS.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Handy Food Stores, Inc. for participation in the petroleum contamination clean-up program be approved. DONE and ORDERED this 23rd day of May, 1990, in Tallahassee, Leon County, Florida. DON ALEXANDER 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 23rd day of May, 1990.
The Issue The issues are whether Respondent has violated the standards of practice in septic tank contracting, Florida Administrative Code rule 64E-6.022, and, if so, the penalty. (All references to Respondent are to Arlender Miller. All references to Ms. Rooter are to Ms. Rooter, Inc.)
Findings Of Fact At the times of the alleged jobs, Respondent was registered as a septic tank contractor and served as the qualifying agent for Ms. Rooter. At the time of all three jobs, Respondent had apparent authority to serve as the agent of Ms. Rooter in contracting for and performing the septic tank contracting work described below. However, nothing in the record establishes any relationship between Respondent and Ms. Rooter at the time of the issuance of the Administrative Complaint, so as to justify treating the notice of this proceeding, when served upon Respondent, as notice to Ms. Rooter. Hans Seffer, who testified, is the son of the woman who owns the apartment complex located at 14950 North Miami Avenue, Miami. Mr. Seffer found Ms. Rooter on the internet and spoke with Carolyn Futch, operations manager of Ms. Rooter, about septic tank contracting services needed at the apartment complex. Respondent later met with Mr. Seffer at the property. Initially, Mr. Seffer believed that the existing septic tank needed only to be pumped out. However, upon inspection, Respondent determined that the system also required a new drainfield, pump, and dosing tank. Accordingly, on February 20, 2008, Respondent, as "technician," and either Mr. Seffer or his mother signed a one-page contract on a form identifying the contractor as Ms. Rooter, license number SA0071430. The contract describes the following work: Install 1,000 sq. ft. drainfield with 300 gallon dosing tank including immediate (2/21/08) tank pump out. Additionally if tank requires pumpout prior to securing all necessary permits, Ms. Rooter will perform pumpout at no additional cost. Manhole cover included. Respondent and either Mr. or Mrs. Seffer initialed this section of the contract. The contract states that the total due for this work is $10,500. Ms. Seffer paid $5,000 by check on February 21, 2008, leaving a $5,500 balance due. On March 1, 2008, Respondent, as agent for Ms. Rooter and on behalf of the property owner, submitted to Petitioner an application for a construction permit for an onsite sewage disposal system. The application describes the property improvements as a multifamily complex with ten bedrooms and 5,284 square feet of building space. The site plan attached to the application states: "Replace drainfield only." On April 2, 2008, Ms. Futch emailed Mr. Seffer to confirm an earlier discussion between them. The discussion addressed a requirement of Petitioner that Ms. Rooter install a second tank. The email states that the property owner will pay $5,600 for the installation of a "2nd tank (1,050-gal)," so the new total contract price is $11,100. This email restates the scope of the work as the installation of a 1,000-square-foot drainfield and 300-gallon dosing tank. By return email two days later, Mr. Seffer agreed to the additional work. On April 11, 2008, Petitioner issued to the property owner a construction permit that specifies a 2,575-gallon septic tank and a 1,000 square-foot drainfield. The permit states: "The licensed contractor installing the system is responsible for installing the minimum category of tank in accordance with sec. 64E-6.013(3)(f), F.A.C." This rule does not refer to tank capacities. On April 23, 2008, Petitioner issued a "construction inspection and final approval" form that shows the installation of two 1,200-gallon septic tanks and a 1,005-square-foot drainfield. The form states that items bearing an "X" are "not in compliance with statute or rule and must be corrected." The construction and final system are approved by Petitioner's inspector. During the course of the work, Respondent told Mr. Seffer that the existing tank was damaged and needed to be replaced, at an additional cost of $5,000, so the remaining balance rose to $16,100. Mr. Seffer agreed to this change. By email dated April 30, 2008, to Mr. Seffer, Ms. Futch confirmed the additional cost of $5,000 for the second septic tank and expressed "hope [that] Ms. Rooter has met your expectations." The email acknowledges, however, that "we must complete the electrical portion of the job." On May 2, 2008, Mr. Seffer sent Ms. Rooter two checks totaling $15,000, leaving a balance of $1,100. On the same date, Mr. Seffer sent Ms. Futch an email that, pursuant to their agreement, he would retain this amount for the "electric and final raking work." By email dated May 27, 2008, to Ms. Futch, Mr. Seffer noted that the manhole that Ms. Rooter had installed in the middle of the lawn was not level and was sunken, presenting a tripping hazard; the final grading was incomplete, leaving low spots and holes; a large rock remained near the palm tree and needed to be removed. Mr. Seffer sent Ms. Futch a reminder email on June 4, 2008, that resent the May 27 email. Mr. Seffer sent another email to Ms. Futch on June 21, 2008. In it, he notes that a Ms. Rooter employee worked on digging an electrical trench on June 13, but left mid-day, and no work had been performed since that day. In the meantime, recent rains had revealed a lack of compaction in the backfilling done by Ms. Rooter, as the fill had settled and undermined a sidewalk. After failing to obtain a response, on July 26, 2008, Mr. Seffer sent a final email to Ms. Futch warning her that he would file complaints with governmental agencies and advising that the unconnected pump was not pumping sewage throughout the entire system. The record does not contain the contracts for the septic tank contracting services involved in the second and third jobs alleged in the Administrative Complaint. Also, Petitioner did not present the testimony of the property owners involved in these jobs. The record for these jobs is limited to the permitting documentation. On September 26, 2008, as agent of Ms. Rooter and on behalf of the property owner, Shoreview Properties, Respondent submitted an application for a construction permit for an onsite sewage disposal system for 9999 Northeast 2nd Avenue, Miami Shores. This application describes the property as commercial with a 47,771 square-foot building. On October 1, 2008, Petitioner's inspector inspected the property. The inspector found an opened drainfield area with contaminated material and other conditions capable of hosting various disease vectors. He also found a backhoe and worker, who claimed that someone else had excavated the drainfield. The inspector immediately posted an ONASN, pursuant to the authority of chapter 386, Florida Statutes, that required the immediate abatement of the listed insanitary conditions. The inspector also determined that the existing onsite sewage disposal system exceeded Petitioner's jurisdictional threshold of 5,000 gallons per day. On September 10, 2008, as agent of Ms. Rooter and on behalf of the property owner, Lisa Mullin, Respondent submitted to Petitioner an application for a construction permit for an onsite sewage disposal system for 101 Northeast 195th Street, Miami. This application describes the property as 0.19 acres, on which is situated a single family residence comprising 1,663 square feet and three bedrooms. On September 22, 2008, an agent of the property owner called Petitioner and complained that Ms. Rooter had commenced the work without having first obtained a permit. Petitioner's inspector visited the site on the same day and found "very recent" earthwork. The owner informed the inspector that the contractor had installed three drainlines, cut an old water line, and installed a new water line over the drainfield. However, the record fails to establish the amount of time that elapsed between the work claimed to have been performed by Ms. Rooter and the report by the property owner. Respondent has paid numerous fines imposed by Petitioner for improper septic tank contracting. In 1999, Respondent paid a fine in an unspecified amount for performing an unpermitted drainfield repair and making the repair without the required filter sand. On January 27, 2000, Respondent paid a fine of $250 for performing unpermitted system repairs. On February 4, 2000, Respondent was assessed a fine of $1,000 for performing unpermitted and uninspected system repairs and failing to honor a warranty. On January 8, 2004, Respondent received a cease and desist order for qualifying more than one septic tank contracting business. In 2007, Respondent paid separate fines of $1,500 and $1,000 for illegal septic tank contracting work in Dade and Monroe counties, respectively.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the three violations identified in paragraphs 26, 27, and 29 above, dismissing the remaining charges against him, dismissing any charges against Ms. Rooter, and revoking Respondent's septic tank contracting registration. DONE AND ENTERED this 31st day of January, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2011. COPIES FURNISHED: Arlender Miller 640 Northwest 129th Street Miami, Florida 33168 Jenea Reed, Esquire Miami Dade County Health Department 8323 Northwest 12th Street, Suite 214 Miami, Florida 33126 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Shairi Turner, Deputy Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Kim Berfield, Deputy Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue for consideration in this hearing is whether the Petitioner is entitled to reimbursement for clean up costs associated with the Initial Remedial Action, (IRA), activities of the Abandoned Tank Restoration Program performed at his facility, and if so, in what amount.
Findings Of Fact At all times the Respondent, Department of Environmental Protection, (Department), has been the state agency in Florida responsible for the administration of the state's Abandoned Tanks Restoration Program. Petitioner is the owner and operator of Mohammad's Supermarket, Department facility No. 29-8628197, a food market and gasoline station located at 3320 Hillsborough Avenue in Tampa. Petitioner has owned and operated the facility for approximately the last ten years. The facility in question included three 5,000 gallon gasoline underground storage tanks and one 5,000 diesel underground storage tank. The diesel tank has not been used for the storage of diesel product for the entire time the Petitioner has owned the facility, at least ten years, but the three gasoline tanks were in use after March 1, 1990. Gasoline tanks were reinstalled at the facility and are still in use. In March, 1993, Petitioner removed all four underground storage tanks from the facility and performed initial remedial action. The field and laboratory reports of the soil and groundwater samples taken at the site at the time the tanks were removed showed both gasoline and diesel contamination. In October, 1993, the Petitioner submitted an application for reimbursement of certain costs associated with the IRA program task to the Department. Thereafter, by letter dated August 5, 1994, the Department notified Petitioner that it had completed its review of the reimbursement application and had allowed Petitioner 25% of the total amount eligible for reimbursement. This was because since the Petitioner continued to use the gasoline tanks after March 1, 1990, the Petitioner's ATRP eligibility is limited to clean up of only the diesel contamination. Petitioner's application for reimbursement covered the entire cost of the tank removal, both gasoline and diesel, and did not differentiate between the costs associated with the remediation of the gasoline contamination and those associated with the diesel contamination. The 25% allowance was for the one tank, (diesel fuel), which was eligible for ATRP clean up reimbursement. The Department subtracted from the personnel costs in the amount of $5,996.25, claimed in Section 2A of the claims form, the sum of $45.00 for costs associated with ATRP eligibility status; $497.50 claimed as a cost associated with the preparation of a Tank Closure Report, and $3,508.75 claimed as costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR). These deductions were made because costs associated with ascertaining ATRP eligibility status, the preparation of a Tank Closure report, and the preparation of a preliminary CAR are all costs ineligible for reimbursement. These three ineligible costs total $4,051.25. When this sum is deducted from the amount claimed, the remainder is $1,944.50. The Department then reduced this figure by prorating it at 25% for the diesel tank and 75% for the gasoline tanks, disallowing the gasoline portion. With that, the total reimbursement for Section 2A, personnel, costs is $486.25. Petitioner claimed $1,765.00 for rental costs, (Section 2C), associated with soil removal, from which the Department deducted the sum of $1,550.00 which represents costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR), which is not eligible for reimbursement. The balance of $215.00 was reduced by the 75%, ($161.27), which related to the three gasoline tanks, leaving a balance of $53.75 to be reimbursed for rental costs attributable to the diesel contamination. Petitioner also claimed $12,865.75 for miscellaneous costs associated with soil removal. This is listed under Section 2I of the application. From that figure the Department deducted the sum of $9,455.99 as costs attributable to the three gasoline tanks. In addition, $2,017.43 was disallowed because it related to the preliminary CAR, and $3,151.99 was deducted because the tank was removed after July 1, 1992. The applicable rule requires justification in the Remedial Action Plan, (RAP), for removal of tanks after that date. Such costs, when justified, can be reimbursed as a part of a RAP application. A further sum of $1,759.66 was deducted from the 2I cost reimbursement since the applicant got that much as a discount on what it paid. Together the deductions amounted to $16,385.07, and when that amount is deducted from the amount claimed, a negative balance results. Section 3 of the application deals with soil treatment. Subsection 3I pertains to such miscellaneous items as loading, transport and treatment of soil. The total amount claimed by Petitioner in this category was $13,973.44. Of that amount, $10,480.00 was deducted because it related to the three gasoline tanks. The amount allowed was $3,493.44, which represents 25% of the total claimed. Category 7 on the application form deals with tank removal and replacement. Section 7A relates to personnel costs and Petitioner claimed $4,187.00 for these costs. Of this, $3,140.25 was deducted as relating to the three gasoline tanks and amounted to 75% of the claimed cost. In addition, $1,046.75 was deducted because the diesel tank was removed after July 1, 1992 and there was no justification given for the removal at that time. This cost might be reimbursed through another program, however. In summary, all personnel costs were denied, but so much thereof as relates to the diesel tank may be reimbursed under another program. Section 7C of the application form relates to rental costs for such items as loaders, trucks and saws. The total claimed was $2,176.00. Of this amount, $1,632.00 was deducted as relating to the three gasoline tanks, and an additional $544.00 was deducted as being associated with the non-justified removal of the diesel tank after July 1, 1992. As a result, all costs claimed in this section were denied. In Section 7D, relating to mileage, a total of $12.80 was approved, and for 7G, relating to permits, a total of $28.60 was approved. In each case, the approved amount constituted 25% of the amount claimed with the 75% disallowed relating to the three gasoline tanks. Section 7I deals with miscellaneous expenses relating to tank removal and replacement. The total claimed in this section was $2,262.30. A deduction of $1,697.11 was taken as relating to the three gasoline tanks, and $565.69 was deducted because the removal after July 1, 1992 was not justified in the application. This cost may be reimbursed under a separate program, but in this instant action, the total claim under this section was denied. Petitioner asserts that the Department's allocation of 75` of the claimed costs to the ineligible gasoline tanks is unjustified and inappropriate. It claims the majority of the costs where incurred to remove the eligible diesel fuel contamination and the incidental removal of overlapping gasoline related contamination does not justify denial of the costs to address the diesel contamination. To be sure, diesel contamination was detected throughout the site and beyond the extend of the IRA excavation. The soil removed to make room for the new tanks was contaminated and could not be put back in the ground. It had to be removed. The groundwater analysis shows both gasoline and diesel contamination at the north end of the property furthest from the site. The sample taken at that point, however, contains much more gasoline contaminant than diesel. Petitioner contends that the costs denied by the Department as relating to gasoline contamination were required in order to remove the diesel contamination and Petitioner should be reimbursed beyond 25%. It contends that the diesel contamination could not have been removed without removing all four tanks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered denying Petitioner request for additional reimbursement of $27,653.82 and affirming the award of $6,629.07. RECOMMENDED this 25th day of September, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1995. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Francisco J. Amram, P.E. Qualified Representative 9942 Currie Davis Drive, Suite H Tampa, Florida 33619 Virginia B. Wetherell Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-1000 Kenneth Plante General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-1000
The Issue Whether Petitioner's service station site known as Siesta Key Exxon Village, at 5201 Ocean Boulevard, Sarasota, Florida, is eligible for state administered cleanup pursuant to Section 376.3071(9), Florida Statutes.
Findings Of Fact Weeks Oil Company, Inc., owns and operates a service station, Siesta Key Exxon, located at 5201 Ocean Boulevard, Sarasota, Florida. On December 21, 1988, Petitioner applied, pursuant to the Early Detection Incentive Program (EDI), for state assistance due to a suspected discharge of gasoline at the facility. The application indicated that a manual test of a monitoring well, conducted on December 16, 1988, detected contamination. After free product was discovered in the monitoring wells in December, 1988, subsequent monitoring well reports for the months of January - May, 1989, indicated the presence of free petroleum product. The January, 1989, monitoring report indicates six inches of free product; the February, 1989, monitoring report indicates twelve inches of free product; the March, 1989, report failed to indicate the presence of free product; and both the April and May, 1989, monitoring reports indicate the presence of sixteen inches of free product. Purity Well Company, the monitoring well contractor retained by Weeks Oil, bailed free product out of the monitoring wells once a month during the period January through May, 1989. On May 23, 1989, Richard Steele of the Sarasota County Pollution Control Division conducted an Early Detection Incentive Program Inspection at Siesta Key Exxon, 5201 Ocean Boulevard, Sarasota, Florida, DER Facility #588521170. During the inspection, Mr. Steele examined the monitoring well reports for Siesta Key Exxon for the months of January through May, 1989. Evidence of contamination was indicated by each month's monitoring well report, and the amount of free product indicated by the monitoring well reports increased over time. During the May 22, 1989, inspection, Mr. Steele observed a minimum of two feet of free product in monitoring well number three. As part of the Early Detection Incentive Program inspection, Mr. Steele requested inventory records for Siesta Key Exxon, which records were provided on June 7, 1989. Inventory records for January, February, March and April, 1989, indicated a total shortage of 441 gallons of gasoline. Mr. Steele's inspection report of May 22, 1989, indicates that no initial remedial action other than the bailing of monitoring wells occurred subsequent to the December, 1988, EDI application. During the May 22, 1989, inspection, Mr. Steele was neither provided with any evidence of repairs to the petroleum storage system made for the purpose of acting upon monitoring well reports, nor did he visually observe any evidence of repair. By letter dated May 24, 1989, from Richard Steele to Weeks Oil Company, Mr. Weeks was informed of the presence of two feet of free product in monitoring well number three and specifically requested a tank tightness test. The May 24, 1987, letter requested Mr. Weeks to send the results of the tank tightness test to the Sarasota County Pollution Control Office or the Department of Environmental Regulation district office. Mr. Weeks discussed with Steele the fact that the contaminants appeared to come from tanks no longer in service, which tanks were scheduled for relining. Mr. Weeks did not consider it practicable to test tanks scheduled for relining and thought Steele agreed that he could delay the testing until the tanks were refitted. Mr. Steele never made such a commitment, and the tank test was never conducted. On October 20, 1989, the tanks at Siesta Key Exxon were excavated and fiberglass coated. The August 22, 1989 ineligibility determination cites as the reason for denial, the failure of Weeks Oil to conduct a tank tightness test as requested by Sarasota County or otherwise immediately investigate and repair the contamination source as required by Chapter 17-61, Florida Administrative Code, The ineligibility letter concludes that failure to immediately investigate and repair the contamination source as required by Chapter 17-61, Florida Administrative Code, shall be construed as gross negligence in the maintenance of a petroleum storage system, which precludes participation in the Early Detection Incentive Program. A tank tightness test should be performed by the owner or operator of a petroleum storage system where there are any discrepancies in inventory records or monthly monitoring system checks. Rule 17-61.050(4)(c) 3., Florida Administrative Code, requires upon discovery of an inventory discrepancy that investigation of the system "shall not stop until the source of the discrepancy has been found, the tank has been tested, repaired, or replaced, or the entire procedure has been completed." Pursuant to Rule 17-61.050(6), Florida Administrative Code, the owner or operator of a storage system shall test the entire storage system whenever the Department has ordered that such a test is necessary to protect the lands, ground waters, or surface waters of the state. Specifically, the Department may order a tank test where a discharge detection device or monitoring well indicates that pollutant has been or is being discharged. Given the inventory record discrepancy and the amount of free product continually observed in the monitoring wells at Siesta Key Exxon, it was appropriate for Mr. Steele to request a tank tightness test. The bailing of a contaminated monitoring well is not an appropriate method of determining the source of petroleum contamination. The failure of Weeks Oil Company, Inc., to timely conduct a tank test as requested by Sarasota County, acting on behalf of the Department, creates a risk of or the potential for greater damage to the environment because a continual unchecked discharge leads to the release of more petroleum product into the environment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the application of Petitioner to participate in the Early Detection Incentive Program. ENTERED this 3rd day of May, 1990, in Tallahassee, Florida. K. N. AYERS, 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 3rd day of May, 1990. COPIES FURNISHED: Janet D. Bowman, Esquire Department of Environmental Regulation Twin Towers Office Building 2400 Blair Stone Road Tallahassee, FL 32399-2400 James B. Weeks, Jr. Weeks Oil Company Post Office Box 100 Sarasota, FL 34230 Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Respondent issued an invitation to bid for the project. The bidders were reminded that the bids were due March 9, 1995. The bid opening was to occur on March 10, 1995. Under the general conditions to the invitation, (at paragraph 7), in the interest of the State, the Respondent reserved the right to reject all bids that it received. That same reservation was announced at paragraph 1.8.1 to the invitation. In addition to the general reminder that the Respondent had the right to reject all bids, paragraph 1.14 to the invitation describes cancellation privileges available to the Respondent. That paragraph provided that the obligations under the invitation would be subject to and contingent upon the availability of moneys lawfully appropriated to pay for the services. Paragraph 1.1 to the invitation described the project as one involving removal and disposal of existing tanks and contents of those tanks at three locations. The locations were Floral City, Cocoa, and Kissimmee, Florida. The project demands at Floral City were for removal and disposal of a 10,000 gallon above-ground "tack coat" tank and surficial "tack coat" material and removal and disposal of a 500 gallon tank. The work at Cocoa involved removal and disposal of a 10,000 gallon above-ground "tack coat" tank, removal and disposal of a 500 gallon tank and removal and disposal of a 1,000 gallon kerosene tank. Finally, the Kissimmee work involved removal and disposal of a 500 gallon above-ground "tack coat" tank and surficial "tack coat" material. In Exhibit "A" to the invitation, describing the scope of services for storage tank removal and disposal, paragraph 2.0 identified more specifically the services that the bidder was to provide. In Exhibit "A", at subparagraph B.1 to paragraph 2, the bidder was instructed that the work included removal and proper disposal of the tank contents and any related material in the vicinity of the tanks. In Exhibit "A", at subparagraph B.3 to paragraph 2, the bidder was instructed that the work included removal and proper disposal of all tanks and associated piping. In Exhibit "A", at subparagraph B.4 to paragraph 2.0, the bidder was instructed that any records and analytical results that the bidder might generate from a storage tank closure assessment should be sent to the State of Florida, Department of Environmental Protection, Storage Tank Regulation Section with a copy of those reports being provided to Respondent's project manager. In Exhibit "A", scope of services for storage tank removal and disposal, at subparagraph A to paragraph 5.0, further instructions were given concerning the manner in which the tank contents would be removed. In Exhibit "A" at subparagraph B to paragraph 5.0, more specific instructions were given concerning tank disposal. In Exhibit "A" at subparagraph H.5 to paragraph 5.0, the bidders were reminded that a laboratory analysis report concerning the contents of the tanks was available upon request from the project manager, David Schappell. The laboratory analysis referred to was one performed on August 31, 1994, by Ardaman and Associates, Inc. Paragraph 1.9 makes reference to budget constraints involved with the project in which a budgetary ceiling of $45,000 is announced in the materials sent to the prospective bidders. In reality the $45,000 amount was in a circumstance that contemplated an additional site for tank removal and disposal and installation of new tanks in substitution for the removed tanks in Respondent's maintenance facility at Orlando, Florida. The Orlando work is not described in the invitation to bid. The appropriate reference for the budgetary ceiling contemplated by the invitation to bid is $20,000 for the three sites that are described in the project. Although Respondent through appropriate personnel realized that the $45,000 amount stated was not correct, that official, Helen Lund, purchasing and contracting agent for Respondent, did not arrange to correct the amount before issuing the invitation to bid. Ms. Lund simply failed to realize that the $45,000 budgetary ceiling was still set forth in the invitation when the invitation was made. Had she realized this mistake an addendum would have been sent to the prospective bidders to correct the figure to become $20,000. At hearing, Respondent presented its reasons for establishing a budgetary ceiling of $20,000. Petitioner was allowed to question that estimate. Subsequently, that issue will be discussed in greater detail. Paragraph 1.7.5 reminds the bidders that any necessary authorizations and/or licenses to provide the services sought in the project should be obtained by the bid due date and time and no later than the point at which a contract would be awarded. Paragraph 1.8.2 explains to the bidders what is necessary to offer a responsive bid. In her job Ms. Lund prepares and assembles bid documents, sends those out to the prospective vendors, and conducts bid openings. In this case David Schappell, Assistant District Drainage and Permits Engineer for Respondent's District V, Deland, Florida, discussed the tank removal project with Ms. Lund. In turn Ms. Lund prepared the bid blank/ITB in its boiler-plate language. Mr. Schappell prepared the invitation to bid concerning the scope of services to be provided by the bidders. Ms. Lund mailed out eight invitations to bid. She received responses from Petitioner and Chemical Development Corp. The bid from Chemical Development Corp. was rejected for failure to meet the licensing requirements set forth in paragraph 1.7.5. That left the Petitioner's bid which was considered responsive. Nonetheless Respondent decided to reject that bid for reasons that the price submitted for performing these services was too high when compared to the $20,000 estimate by the Respondent. Petitioner's bid price was $38,252. In addition, Petitioner was concerned that it would have to submit an exceptional purchase request and get the approval from the State of Florida, Department of Management Services, to enter into a contract in a setting in which there was only one responsive bidder. Finally, Petitioner was also concerned about the disparity between the price submitted by Chemical Development Corp. at $11,520 and the $38,252 price from Petitioner as indicating some possible problem associated with the scope of work contemplated in the project and the understanding which the bidders had about the work to be performed. Petitioner obtained a copy of the laboratory analysis from Ardaman and Associates to assist in preparing its response to the invitation to bid. The principal focus in the Ardaman test was to determine constituents related to TCLP as this would determine whether the tank contents constituted hazardous waste. Results from the Ardaman test revealed that in removing material from the tank at Floral City one would be confronted with chromium concentrations of 1.6 mgl. The threshold limits for chromium concentration as set forth in the Code of Federal Regulation, Title 40, Section 261.24, for determining hazardous characteristics of those materials is 5.0 mgl. The sampling conducted by Ardaman also revealed a pH of 9.0. According to Ardaman, that ph did not indicate that the "tank coat" is corrosive. The Ardaman test did not detect reactive cyanide and sulfide. The test did not reveal characteristic ignitability. In summary, the Ardaman report concluded that the Floral City facility tank did not exhibit the characteristics of a hazardous substance as determined by the TCLP method, and by the ignitability and corrosivity testing. Petitioner proceeded on the basis that the Ardaman results indicated that the tank contents did not constitute hazardous waste and could be disposed of as other than hazardous waste material. Theoretically, Petitioner believed that disposal could be made in a landfill that would take the type of material found in the tank. As Petitioner points out, the Ardaman test did not speak to the possible disposal of the tank material as a fuel source or through incineration. From the results set forth in the Ardaman report, Petitioner erroneously assumed that Respondent intended to limit the method of disposal to placement in a landfill facility. While the Ardaman report speaks to the issue of whether the material constitutes hazardous waste, the remaining provisions within the invitation to bid leave open the opportunity for the bidders to make additional tests on those materials in deciding the proper disposal method. The provisions in the invitation do not select a proper disposal method and the results in the Ardaman report do not create the inference that Respondent's choice for disposal is by placement in a landfill. In Petitioner's research, it concluded that the material in the tanks could not be disposed of by incineration given the nature of this material compared to the type of material that could be destroyed at a facility which used incineration as a disposal method. Petitioner was persuaded that there might be some possibility to burn the material as a fuel source, but was not confident that this could be done without performing more tests. Petitioner was unable to find a landfill site that was near Respondent's Cocoa and Kissimmee facilities that would accept the tank contents. Petitioner intended to transport the material from the Cocoa and Kissimmee sites to Floral City and use Floral City as a staging area to consolidate the contents from the tanks. Having in mind consolidation, Petitioner discussed the possibility that it might make disposal in solid waste facilities in Sumter County, Florida. Petitioner was told that Sumter County facilities would not accept the material. Petitioner collected a sample of the tank material and had it analyzed by Howco Environmental in an attempt to ascertain the commercial value for the tank contents. Howco is a company that tests materials to ascertain whether those materials can be used as a fuel source and then uses the material as a fuel source. In a test, Howco determined that the tank material had no commercial value. Petitioner contacted two paving companies to determine whether the paving companies could reuse the tank material in the paving process. Those companies indicated that they could not reuse the material in the paving process. Terry Newman, who owns Petitioner, holds a B.S. in geology and has worked for the Suwannee River Water Management District, Collier County Pollution Control Department and the Alachua County Pollution Control Department as a hydro-geologist. Ms. Newman reviewed the Ardaman report and spoke about the report to a chemist in a laboratory which her firm uses. Through this review and discussion and based upon the information set forth in the Ardaman report, she concluded that the only disposal method available was to place the tank contents in a lined landfill. Ultimately the bid that was submitted by Petitioner was based upon making an arrangement with a sub-contractor to transport the material to Jacksonville for disposal. The transport method was that which would be used for transporting hazardous waste. In this arrangement the material is taken from the tank and put in a container for transport and off-loaded at the landfill. The tank itself would be disposed of in the conventional manner. The subcontractor which the Petitioner intended to use for transporting the contents within the tanks was a hazardous waste carrier. Mr. Schappell established that the Orlando project which was originally part of the $45,000 pre-bid estimate would cost approximately $25,000 to remove two single-wall steel tanks, one holding diesel fuel and the other gasoline, and replace those tanks with double-wall tanks. That estimate was not shown to be one based upon fraud, illegality, dishonesty, arbitrariness or caprice. Since the Orlando project was not pursued, this left $20,000 as the estimate to do the work in the three sites described in the invitation to bid. Prior to the invitation to bid, Respondent had solicited a price quotation, unrelated to a competitive bidding process, for the work at Floral City. ACTS Construction Co., Inc., submitted a price of $12,825 to include $1,875 for tank closure. The present project does not include a requirement for tank closure. This quotation from ACTS Construction Co., Inc. was from a contractor who had done similar work in removal of tanks, thereby creating proper confidence in Mr. Schappell that the quotation from ACTS was a reasonable quotation. A total of six vendors were invited to offer price quotations for the work at Floral City unrelated to the present project. Those six vendors were given access to the Ardaman report. There were a wide range of responses to the request for quotations and different ideas concerning methods of disposal. The overall price quotations ranged from the amount quoted by ACTS to an amount of approximately $20,000 by Westinghouse Company. Based upon the prices quoted by ACTS, Westinghouse, and others, Mr. Schappell determined that the pre-bid estimate for the work to be done at Floral City in the present project would be based upon the ACTS price quotation. The remaining work to be done at Cocoa and Kissimmee, in the present project, was given a pre-bid price of approximately $7,000. The estimate for Kissimmee and Cocoa was based upon having removed somewhat similar tanks, in somewhat similar conditions, from Respondent's maintenance yards at Oviedo, Leesburg, Ocala, and Cocoa. Respondent's pre-bid estimate of project costs amounting to $20,000, as established by Mr. Schappell, is a reasonable pre-bid estimate. It was not arrived at by illegal, fraudulent, dishonest, arbitrary, or capricious means. Mr. Schappell established that the Ardaman report was solely provided to offer assistance to the bidders in responding to the invitation. The language in the invitation to bid contemplates that limited use. The Ardaman report did not enter into the decision by Mr. Schappell in placing a pre-bid estimate on the work to be done. Mr. Schappell established that the "tack coat" in the tanks is a bituminous material to be applied as a sealer over the lime rock or soil cement which the Respondent places as a base for road construction. The "tack coat" also has an adhesive property which helps to retain the asphalt material that is placed on top of the lime rock and soil cement. The condition of the tank material in around the time that the bid invitation was made, was such that the material would be nearly viscous or liquid on warm summer days and in the winter would be solid. Its condition at other times was somewhat in between. Mr. Schappell properly points out that the invitation to bid relies upon the bidders' expertise in determining proper disposal methods and whether that disposal might involve reusing the tanks contents. Mr. Schappell established that in addition to the fact that the Petitioner's price far exceeded the pre-bid estimate, there was a concern about the price differential between the Chemical Development Corp. bid and that presented by Petitioner and the expectation that if the project was re-bid more vendors would express an interest in bidding.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the final order be entered which dismisses Petitioner's protest to Respondent's decision to reject all bids. DONE and ENTERED this 16th day of June, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1995. APPENDIX The following discussion is given concerning the proposed findings of fact by the parties: Petitioner's Facts: The first sentence to Page 2 is subordinate to facts found. Respondent's Facts: Respondents facts are subordinate to facts found. COPIES FURNISHED: Randy Wiggins, President RAN Contracting & Engineering, Inc. 3056 Palm Avenue, Suite 1 Ft. Myers, FL 33916 Thomas H. Duffy, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Sharon Roehm, President Chemical Development Corporation 910 Pinellas Bayway #102 Terra Verde, FL 33715 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450
The Issue Whether the Department of Environmental Protection (Department) proved by clear and convincing evidence that Southeastern Liquid Analyzers, Inc.'s (SELA) 1994 equipment approval for its Tank Chek Statistical Inventory Reconciliation (SIR) method should be revoked?
Findings Of Fact The Parties SELA Southeastern Liquid Analyzers, Inc., is a vendor of Tank Chek, a computer program that conducts Statistical Inventory Reconciliation for petroleum storage tanks. The vice president of SELA is David L. Roberts. SIR is a method of release or leak detection for petroleum storage tank systems. In 1994, the Department approved SELA's Tank Chek SIR method (equipment) for use in the State of Florida. The Department The Department has the statutory authority to establish rules to implement the storage tank regulation program. See § 376.303(1)(a), Fla. Stat. Regulated storage tank systems are required to use a method or combination of release detection that meet the applicable performance standards in Florida Administrative Code Rule 62-761.640 (1998). Fla. Admin. Code R. 62-761.610 (1998). Storage tank system equipment that does not have approval from the Department can still be sold in Florida, but purchasers cannot use that equipment to comply with Department rules. Owners of non-regulated tanks do not have to use approved storage tank system equipment because they are not obligated to comply with Department rules. Only aboveground storage tank systems having individual storage tank capacities greater than 550 gallons, and underground storage tank systems having individual storage tank capacities greater than 110 gallons, are regulated by the Department. See Fla. Admin. Code R. 62-761.100(1) (1998). As a release detection methodology, the SIR computer program or method is a piece of release detection equipment that is subject to equipment approval pursuant to Florida Administrative Code Rule 62-761.850(2) (1998), as it was in 1994 when the Department approved SELA's Tank Chek SIR method. See Rule 17-761.860 (1992). Pursuant to Florida Administrative Code Rule 62- 761.850(2)(b) (1998), "[e]quipment approval requests shall be submitted to the Department with a demonstration that the equipment will provide equivalent protection or meet the appropriate performance standards contained in this chapter." "A third-party demonstration by a Nationally Recognized Laboratory shall be submitted to the Department with the application. The third-party demonstration shall provide: 1. A technical evaluation of the equipment; 2. Test results that verify that the equipment will function as designed; and 3. A professional certification that the equipment meets the performance standards contained in Rule 62-761.500, F.A.C." Fla. Admin. Code R. 62-761.850(2)(c)1.-3. (1998). The function of a third-party evaluation is to verify the accuracy of the performance of a particular piece of release detection equipment in light of the performance standards. The Department does not make exceptions to the requirement that all equipment used by owners and operators of regulated storage tanks in the State of Florida must be approved unless expressly excepted by rule. See Fla. Admin. Code R. 62- 761.850(2) (1998). Compare Rule 17-761.860 (1992). The Department does not have the discretion, however, to deny a request for equipment approval if the applicant satisfies all of the requirements of Florida Administrative Code Rule 62-761.850(2) (1998). Once a vendor has met the requirements of Florida Administrative Code Rule 62-761.850(2) (1998), the equipment is approved and designated on a list maintained by the Department and updated quarterly. Marshall Mott-Smith testified that permits are not issued for equipment approvals, and the approvals are not viewed as a permit. Mr. Mott-Smith testified that the Department does not write any permits for storage tank systems, nor does the Department view an equipment approval as a license. The Department, however, can and does place conditions on equipment approvals. For example, the Department's 1994 SELA equipment approval Order required the installation of at least two monitoring wells at any facility using the SELA system for release detection. Equipment approvals can be and have been revoked. One of the reasons that equipment approvals have been revoked is because the equipment no longer meets the performance standards in the rule. SELA's PetroWorks Evaluation of SELA's Tank Chek SIR Method In 1993, SELA sought equipment approval from the Department of Environmental Protection Bureau of Petroleum Storage Systems (BPSS) pursuant to Rule 17-761.860 (1992), for SELA's Tank Chek SIR method. As part of its request for equipment approval, SELA submitted a third-party evaluation, dated June 3, 1993, of its SIR method. SELA has not submitted to the Department any other third-party evaluation of its SIR method. The third-party evaluation was conducted by Wayne E. Hill of PetroWorks. In 1993, at the time of the third-party evaluation, PetroWorks was a Nationally Recognized Laboratory. The 1993 PetroWorks evaluation verified that SELA's Tank Chek SIR method met the performance standard of the existing rule (1992) and that it "works as it was designed by a third party."2 The 1992 and 1994 versions of the underground storage tank systems rules contained a general release detection performance standard applicable to storage tanks that required that release detection methods demonstrate that the method can detect a "0.2 gallon per hour leak rate or a release of 150 gallons within a month with a probability of detection of 0.95 and a probability of false alarm of 0.05." Rule 17-761.610(5) (1992); Rule 62-761.610(5) (1994). See also Rule 17-761.620(7) (1992); Rule 62-761.620(7) (1994). The 1998 version remained substantially the same, although the term "leak rate" is omitted. See Fla. Admin. Code R. 62-761.640(1)(a) (1998)("(1) General. Method of release detection shall: (a) Be capable of detecting a release of 0.2 gallons per hour or 150 gallons within 30 days with a probability of detection of 0.95, and a probability of false alarm of 0.05.").3 The general leak detection performance standard of "0.2 gallon per hour leak rate or a release of 150 gallons within a month with a probability of detection of 0.95 and a probability of false alarm of 0.05" was applicable to all release detection methods under Chapter 17-761 (1992). SELA's 1993 PetroWorks evaluation concluded that the Tank Chek SIR method met the general release detection performance standard ("of 0.2 gallons per hour leak rate . . .") contained in Rule 17-761.610(5) (1992). The Department accepted this evaluation such that SELA's Tank Chek SIR method met the general leak detection performance standard as of the 1993 evaluation as evidenced by the Department's equipment approval Order dated January 21, 1994. The 1993 PetroWorks evaluation submitted to the Department by SELA is on a form entitled "Results of U.S. EPA [Environmental Protection Agency] Standard Evaluation Statistical Inventory Reconciliation Method" and states explicitly that "[t]he evaluation was conducted by the vendor of the SIR method or a consultant to the vendor according to the U.S. EPA's 'Standard Test Procedure for Evaluating Leak Detection Methods: Statistical Inventory Reconciliation Methods.'" The State of Florida has not adopted the EPA protocol because the Department does not perform third-party evaluations of SIR release detection software. However, the Department accepts third-party evaluations that are run based on the EPA protocol. The EPA Protocol was developed in response to the varied performance of leak detection methods.4 The EPA wanted to have leak detection methodologies that could be relied upon by tank owners to accurately detect leaks. The EPA published these "tests" (the protocols) that manufacturers of leak detection equipment must meet in order to sell their equipment, e.g., to a regulated owner or operator of an underground storage tank. The instructions in the EPA Protocol for SIR formed the basis for performing third-party evaluations. The three-page "SIR Method Results Form" indicates that PetroWorks evaluated SELA's "Statistically based proprietary method." This Form provides: This statistical inventory reconciliation method reports on the following basis (check one): [actual box displayed] quantitative results (leak rate reported) X [actual box displayed] qualitative results (pass, fail, inconclusive) Test results are reported and the Form further provides: "Based on these results, the method X [actual box displayed] does [actual box displayed] does not meet the federal performance standards established by the U.S. Environmental Protection Agency of 0.10 and 0.20 gallon per hour at P(D) of 95% and P(FA) of 5%." (Emphasis in original.) A three-page "Description Statistical Inventory Reconciliation Method" document is included as part of the PetroWorks evaluation. On page two under the heading "Identification of Causes for Discrepancies," the question is asked: "Which of the following effects does the method identify and quantify." Among other items, "leak rate" is a factor "identified and quantified by running a series of additional reports." On page three and under the heading "Reporting of Leak Status," the response "no" is given in response to the question, "Is the leak status reported in terms of a leak rate (e.g., gal/h or gal/day)?" The explanation for this response is: "Qualitative (Tight/Leaking/Inconclusive)." ("Tight/Leaking/Inconclusive" corresponds to "Pass/Fail/Inconclusive.") A "Reporting Form for Test Results" is included with the PetroWorks evaluation. There are 1 through 120 record numbers with a "Submitted" "Induced Leak Rate (gal/h)" heading for a vertical column. (The numbers listed vertically are either "0" or "0.1.") "The Results Reported by Vendor" are stated under two categories: (1) "If Quantitative," and below with two separate vertical columns identified as "Estimated Leak Rate (gal/h)" and "Est. Ind. Leak Rate (gal/h)" and (2) a separate category with one vertical column identified as "If Qualitative (Tank Tight? (Yes, No, or Inconclusive)." Only the "If Qualitative" vertical column is completed with "yes" or "no" responses. The data table for the two "If Quantitative" columns is blank. PetroWorks did not evaluate SELA's SIR method for leak rates. The 1993 PetroWorks evaluation described above certified that SELA's SIR method complied with the performance standard of Chapter 17-761 (1992), i.e., that the SELA Tank Chek SIR method is capable of reporting qualitative results such as "pass," "fail," and "inconclusive," and detecting a "0.2 gallon per hour leak rate." The Department's 1994 Approval of SELA's SIR Method The Department approved SELA's Tank Chek SIR Analysis System (method) on January 21, 1994, in an Order entitled "APPROVAL OF STORAGE TANK SYSTEM AND RELEASE DETECTION EQUIPMENT." The Department found, in part: "Based on the information provided by Warren [ ] Southeastern Liquid Analyzers, Inc., the Department finds that the applicant's Tank Chek Statistical Inventory Reconciliation Analysis System is comparable to an automatic tank gauging system and will provide environmental protection substantially equivalent to that provided by compliance with the requirements established in Florida Administrative Code Rule, [sic] 17-761.640(6)." See Findings of Fact 18 and 19 for a discussion of the slight differences in the wording of the "0.2 gallon per hour leak rate" performance standard. See also Endnote 3. The Department Re-examines Prior Release Detection Equipment Approvals In 1994 and 1996, the Department made minor revisions to the underground storage tank systems rules and Chapter 17-761 became Chapter 62-761. Effective July 13, 1998, the Department adopted revisions to Chapter 62-761, Florida Administrative Code ("Petroleum Storage Systems") which are detailed below. See also Findings of Fact 3-10 and 47-61. Beginning around December 30, 1999, Department personnel began a dialogue (by e-mail) relating to the requirements of the July 13, 1998, revisions. The participants included Jonathan Reeder and Farid Moghadam for the Department, and David L. Roberts for SELA. (Other persons at the Department including the Office of General Counsel, participated in the discussions.) Mr. Reeder requested guidance from Mr. Moghadam as follows: There seems to be a fundamental conflict between the 7/13/98 Rule requirements for SIR value and data reporting and the qualitative SIR method's ability to provide those values. Specifically, Rule 62-761.640(3)(c)3., F.A.C., requires that the data set leak threshold, the minimum detectable leak rate, and the calculated leak rate be reported. However, the SIR qualitative method will only produce a Pass, Fail, or Inconclusive result. My question is as follows: Does the above situation effectively rescind the approval status of the SIR qualitative methods? This "anomaly" affects those vendors that have approved qualitative SIR methods. Specifically: Entropy Limited, EQ-018 Horner Products, SIR Pro 1, Versions 1.0 and 2.0, EQ-126 Syscorp, Inc., EQ-179 South Eastern Liquid Analyzers, Inc., EQ- 157 Ustman Industries, YES SIR 90, EQ-065 I do know that South Eastern Liquid Analyzers is quite active in Florida as I have seen their reports and have, in fact, discussed this problem with David Roberts, the owner. I guess the real question here is "Can we make a new Rule that specifically excludes previously approved equipment?" Maybe we would need to get OGC's comments? This e-mail was sent to Mr. Moghadam on December 30, 1999, after Mr. Reeder had a phone conversation with Mr. Roberts. It was also sent to Mr. Roberts. On May 12, 2000, Mr. Roberts sent an e-mail to Mr. Reeder with the following message: "I understand from Curt Johnson that I need to talk with you about SIR evaluation list. I have several issues to be resolved to be included [sic]. I would like to see if I can work with you to resolve them. What happened with the questions in FL? For SC, I have added the leak rates per John Kneece's instructions. I have providing [sic] in FL as well for your regulators." On May 12, 2000, Mr. Reeder sent an e-mail to Mr. Roberts and stated: To resolve the issues in Florida you will need to submit a third-party evaluation for a QUANTITATIVE method to Farid Moghadam at our Tallahassee office. His phone number is (850) 921-9007. Since this third-party QUANTITATIVE method would initially be routed through me via the NWGLDE it most likely would also address the past issues of the Work Group. I have not seen the file on your Method but Curt is sending it to me via post. If you have any questions you may call either myself or Farid. I will be in Daytona Beach the week of the 15th for our annual DEP Tanks meeting, returning on May 22, 2000. On May 15, 2000, Mr. Roberts responded: "I do not have a third party on the quantitative method. My third party is for qualitative. We discussed this in regard to Florida. You were talking to the legal department about my being an approved vendor and then the state changed to quantitative at a later date and how you are going to handle it. The work group is a separate issue. . . ." (Emphasis added.) On May 22, 2000, Mr. Reeder responded to Mr. Roberts: I discussed this situation with our Office of General Council (sic) and the Tallahassee Engineering Department during our Conference last week. It is a consensus opinion that the SIR Qualitative Method does not meet the requirements of Florida Rule 62-761-640, F.A.C., and therefore any Facility that uses it as a method of Release Detection is in violation of Rule 62-761.610(1)(a), F.A.C. A letter is being sent from our Tallahassee office to the five vendors that currently have Florida approved Qualitative SIR Methods. This letter will basically state the above position and require that either the vendor "upgrade" their SIR method to that of Quantitative or have their Florida equipment approval revoked. This new Rule has been in effect since July 13, 1998 which is ample time for all SIR vendors to make the necessary adjustments to their methods in order to comply with the new requirements. Additionally, any Facility that continues to use the Qualitative method will be cited for using a Release Detection Method that does not meet the Florida Rule requirements. If you choose to comply with the Florida requirements and have your method third-party evaluated as Quantitative then that would most likely address the past concerns of the Work Group - - mainly the data set problem. However, if you elect to cease doing business in Florida and still desire to have your Qualitative Method listed we can then discuss the items needed to reopen the review process. Please let me know what you wish to do and if you would like to discuss this with Farid in Tallahassee his number is (850) 921-9007. From 1993 until the effective date of the 1998 amendments to Chapter 62-761, Florida Administrative Code, SELA complied with the performance standard in the rules. See Findings of Fact 17 and 21. After Chapter 62-761 was amended in 1998, Department employee Farid Moghadam was told to evaluate all SIR methods being used in the State of Florida to determine whether they were in compliance with the new performance standards. (Some of the recorded dialogue among Department employees and Mr. Roberts is recited above which led to the Department's decision to revoke SELA's equipment approval.) Mr. Moghadam evaluated the already-approved SIR methods by reviewing the third-party evaluations that had been submitted as part of the original application for equipment approval for each SIR method. Mr. Moghadam discovered that at the time of the 1998 amendments to Chapter 62-761, there were 15 SIR methods approved in the State of Florida and each appeared on the Department's approved equipment list. (SELA's SIR method remains on this approved list.) Ten of the approved SIR methods were a quantitative SIR methodology, and five were a qualitative SIR methodology. All 15 of the SIR methods had previously submitted a third-party evaluation. Among the five SIR programs that were qualitative, three of the SIR vendors voluntarily reapplied for equipment approval. All three of these programs were re-approved. One of the SIR vendors requested that the Department rescind its prior order approving the SIR method, thereby requesting that the SIR method be removed from the approved equipment list. Only SELA continued to require a new third-party evaluation as determined by Mr. Moghadam. Mr. Moghadam determined that SELA's Tank Chek SIR method required a new third-party evaluation because the previously submitted PetroWorks evaluation did not indicate that SELA met the performance standards contained in Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), as required by Florida Administrative Code Rule 62-761.850(2) (1998). Chapter 62-761, Florida Administrative Code (1998), does not specify that previously-approved equipment required re- approval, re-certification, or re-evaluation. Because performance standards were added to Chapter 62-761 specific to SIR and because no previous versions of Chapter 62-761 contained any performance standards specific to SIR, the Department felt it was necessary to determine whether previously-approved equipment continued to satisfy the requirements of Florida Administrative Code Rule 62-761.850(2) (1998). The issue in this case is not whether SELA's Tank Chek SIR method can produce and report the leak rates required pursuant to Florida Administrative Code Rule 62-761.640(3)(c)3.b. (1998), because the testimony and documentary evidence established that Tank Chek can produce leak rates in its reports. The issue in this case is whether SELA's Tank Chek SIR method must be re-evaluated by a third-party so that the Department can know that the leak rates that are produced and reported are accurate and reliable. See Fla. Admin. Code R. 62-761.850(2)(b) and (c). SELA declined to obtain a new third-party evaluation. As a result, the Department gave notice of its intent to revoke the SELA Tank Chek SIR method equipment approval because, as of 1998, the Department no longer had a third-party evaluation certifying that SELA's Tank Chek SIR method complied with the performance standards in Chapter 62-761, Florida Administrative Code. Other than the PetroWorks evaluation of SELA's SIR method performed in 1993, SELA has not provided the Department with another third-party evaluation. On April 18, 2001, the Department advised Mr. Roberts as follows: The Bureau of Petroleum Storage Systems has reviewed the information submitted February 1, 16 and 20, 2001, regarding the Tankcheck Statistical Inventory Reconciliation (SIR) equipment approval order, DEP File Number EQ-157 dated January 21, 1994. The Tankcheck SIR algorithm has not been evaluated by a Nationally Recognized Laboratory, has not been verified that it works as designed by a third party laboratory, and has not been certified that it meets the performance standards in Rule 62-761.640, Florida Administrative Code, (1998) (F.A.C.), as required by Rule 62-761.850(2), F.A.C. Therefore, the equipment approval for Tankcheck SIR, DEP File No. EQ-157 is revoked and is no longer in effect. As of the effective date of this order, you must remove all references to the State of Florida and/or Department of Environmental Protection approval from any and all marketing materials distributed in the State of Florida regarding the use of Tankcheck SIR for storage tank systems regulated by the State of Florida. SELA filed a timely challenge to this Department action. The Department Amends Chapter 62-761 in 1998 Neither Chapter 17-761 (1992) nor Chapter 62-761 (1994), specifically enumerated "performance standards" for SIR. The general leak detection standard of "0.2 gallon per hour" was the only release detection performance standard applicable to SIR under Chapter 17-761 (1992). See Finding of Fact 18. Department witnesses testified that, from an inspection standpoint, a SIR methodology that met only the "0.2 gallon per hour" general performance standard would not be in compliance with Florida Administrative Code Rule 62- 761.640(3)(c)3. (1998), but would have been in compliance with Rule 17-761.610(5) (1992). In 1998, the Department amended Chapter 62-761 (1994), formerly Chapter 17-761 (1992), substantially revising this Chapter, including for the first time, at Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), performance standards specific to SIR. The general release detection standard set forth in, e.g., Rule 62-761.610(5) (1994) (formerly Rule 17- 761.610(5) (1992)), see Finding of Fact 18, was subsumed by Florida Administrative Code Rule 62-761.640(1)(a) (1998). Under the 1998 revised rules, the general leak detection standard of "0.2 gallons per hour" was retained in the rule in Florida Administrative Code Rule 61-761.640(1)(a) (1998), and remained applicable to all release detection methods including SIR. The SIR-specific performance standards are intended to limit use of SIR to quantitative SIR methods only and to eliminate the use of qualitative SIR methods in Florida. Marshall Mott-Smith, the Department's Environmental Administrator, Storage Tank Regulation Section, Bureau of Petroleum Storage Systems, was instrumental in drafting the 1998 amendments to Chapter 62-761, and also recommended to the Department that the acceptance of either type of SIR methodology for use in Florida be changed. Mr. Mott-Smith testified that there was a need for the Department to address the type of SIR methodology because the Department was concerned that the current use of SIR in the State of Florida was not providing adequate protection for the groundwaters and the surface waters of the state. Field experience and discussion with experts indicated that qualitative SIR methods were not really working and were problematic. There are two types of SIR methodology, qualitative and quantitative. The major distinction between a qualitative SIR and a quantitative SIR methodology is how the results produced by the SIR method are reported. The fact that a SIR method meets the general performance standard of "0.2 gallon per hour" does not indicate whether it is a qualitative or a quantitative method. Third-parties evaluate the SIR method as either a qualitative or quantitative method. A qualitative SIR methodology produces release detection results identified as "pass," "fail," or "inconclusive." A SIR methodology that produces only "pass," "fail," and "inconclusive" results is not a quantitative SIR method. A quantitative SIR methodology, in addition to "pass," "fail," or "inconclusive," will produce release detection results in terms of other values such as the leak threshold, the calculated leak rate, and the minimum detectable leak rate. The general performance standard ("0.2 gallon per hour") is a measurement that works in conjunction with other quantitative results, but it is not determinative of the type of SIR methodology. Prior versions of the rule, including for example Chapter 17-761 (1992) and Chapter 62-761 (1994), allowed either a "qualitative" or a "quantitative" SIR methodology. In contrast to the requirements of Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), the previous versions of the rules did not specify that the SIR method had to produce any particular numeric results in order to be in compliance with the rule, only the "0.2 gallon per hour" general performance standard had to be satisfied. Neither Chapter 17-761 (1992) nor Chapter 62-761 (1994), specifically identified SIR as a release detection method. SIR was indirectly referenced as "other similar release detection method." See Rule 17-761.610(5) (1992) and Rule 62-761.610(5) (1994). The performance standards for SIR found at Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), do not specifically identify the SIR method as either a "qualitative" or "quantitative" SIR methodology. However, all of the Department witnesses persuasively testified that Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), requires a "quantitative" SIR methodology. For, example, Mr. Reeder testified that the 1998 rule specifies a specific type of SIR method "in the sense that it requires the production of a leak rate, minimum detectable leak rate and threshold, because those are values that are only produced by a quantitative method and not a qualitative method. So, by that fact, it specifies that a quantitative method be used."5 Florida Administrative Code Rule 62-761.640 (1998), is entitled "Performance Standards for Release Detection Methods." Florida Administrative Code Rule 62-761.640(3)(c)3. (1998) provides, in part: "Statistical Inventory Reconciliation (SIR). SIR shall be conducted according to" requirements a. through i. Florida Administrative Code Rule 62-761.640(3)(c)3.b. (1998) requires that the results of each monthly analysis for the SIR method "include the calculated results from the data set for leak threshold, the minimum detectable leak rate, the calculated leak rate, and a determination of whether the result was 'Pass,' 'Fail,' or 'Inconclusive.' For the purposes of this section, the 'leak threshold' is defined as the specific leak threshold of the SIR method approved in accordance with Rule 62- 761.850(2), F.A.C., to meet the release detection level specified in Rule 62-761-640(1)(a), F.A.C." These required reported values are performance standards. A performance standard is something that determines the performance of the method; something that shows what the equipment is supposed to do. Prior versions of the rule, including specifically Chapter 17-761 (1992), did not require that if SIR was used as a leak detection methodology that the SIR method report these leak rates. The requirement that the SIR methodology produce and report these leak rates, see Finding of Fact 59, as well as "pass," "fail," and "inconclusive" results, are SIR-specific performance standards. The SIR performance standards contained in Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), requiring that these results be produced defines the required SIR methodology as a quantitative methodology. Resolution of the Controversy Notwithstanding the 1993 PetroWorks evaluation, the evidence presented during the final hearing demonstrates that SELA's Tank Chek SIR method is capable of producing quantitative calculated results from a data set for leak threshold, the minimum detectable leak rate, and the calculated leak rate. Stated otherwise, SELA's SIR method can produce and report these values that are required. However, even though SELA's Tank Chek SIR method can produce and report quantitative results, and necessarily these values, a new third-party evaluation is required pursuant to Florida Administrative Code Rule 62- 761.850(2)(b) and (c) (1998), to demonstrate that SELA's Tank Chek SIR method complies with the performance standards of Florida Administrative Code Rule 62-761.640(3)(c)3. (1998). Compare Fla. Admin. Code R. 62-761.640(3)(c)3.b. (1998) with Fla. Admin. Code R. 62-761.850(2)(b) and (c) (1998). The problem with the quantitative results (leak threshold, the minimum detectable leak rate, and the calculated leak rate) SELA's Tank Chek SIR method produces in reports is that it is not known whether those results are accurate or reliable. Determining whether the results produced by a particular SIR method are reliable is the purpose of a third- party evaluation. As noted above, SELA has never had a third-party evaluation that demonstrates that Tank Chek SIR can reliably produce and report a leak threshold, a calculated leak rate, or a minimum detectable leak rate. SELA only has a third-party evaluation that demonstrates that its Tank Chek SIR method can detect a release of "0.2 gallon per hour," the general performance standard, and report the results as "pass," "fail," or "inconclusive." Importantly, the 1992 rules which applied when PetroWorks performed SELA's evaluation in 1993 did not require the production or reporting of leak rates; the rules required compliance only with the general performance standard of "0.2 gallon per hour." Fla. Admin. Code R. 17-761.610(5) (1992). The problem with the leak rates reported on, for example, DEP Exhibit 4, the Seffner Food Stores SIR Historical Summary Report, is that the PetroWorks evaluation did not evaluate the SELA Tank Chek SIR method to accurately produce the numbers (leak rates) that are reported. The 1993 PetroWorks evaluation specifically noted that the SIR method results are on the basis of "qualitative results (pass, fail, inconclusive)" and not on "quantitative results (leak rate reported)." The 1993 PetroWorks evaluation specifically noted that the testing results are not reported in terms of a leak rate. See Findings of Fact 26-29. The 1993 PetroWorks evaluation of SELA's Tank Chek SIR method did not and cannot have certified that Tank Chek meets the requirements of the 1998 rule as required for an equipment approval because the 1998 performance standards for SIR found at Florida Administrative Code Rule 62-761.640(3)(c)3. (1998), were not included in Chapter 17-761 in 1993. The 1993 Petroworks evaluation is no longer valid as it no longer satisfies the requirements of Florida Administrative Code Rule 62-761.850(2) (1998), which is a prerequisite to an equipment approval. SELA needs a new equipment approval to comply with Florida Administrative Code Rule 62-761.850(2) (1998).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order revoking SELA's 1994 equipment approval, EQ- 157, without prejudice to SELA submitting a new equipment approval application in compliance with Department rules. DONE AND ENTERED this 20th day of January, 2004, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2004.
Findings Of Fact The applicant/Petitioner, Orange County (county) maintains a facility at the Orange County Courthouse at 65 Central Avenue, Orlando, Florida. In May 1992 the county removed from the facility two steel diesel fuel tanks, 12,000 gallons and 1,000 gallon capacity. These underground storage tanks had been used until approximately 1987 for the hot water and heating system at the courthouse. Groundwater contamination was detected during removal and DER was appropriately informed. Approximately one week after removal, a new tank and piping system was installed at the same site for an entirely different purpose: storage of diesel fuel for the facility's emergency generator. The standby emergency generator is required by various city, state and county codes for emergency power to the fire pump and for emergency lighting for the courthouse. On or about June 23, 1992 the county filed its ATRP application requesting financial assistance with regard to cleanup of the groundwater contamination from the prior storage tanks. The application was denied based on DER's determination that maintenance of the new tanks precluded the county's eligibility under rules governing the program.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the agency enter its Final Order denying Orange County's application for financial assistance through the Abandoned Tank Restoration Program. DONE AND RECOMMENDED this 9th day of August, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 9th day of August, 1993. COPIES FURNISHED: Paul H. Chipok Assistant County Attorney Orange County Attorney's Office Orange County Administration Center Post Office Box 1393 Orlando, Florida 32802-1393 W. Douglas Beason Assistant General Counsel Department of Environmental Protection 2600 Blairstone Road Tallahassee, Florida 32399 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blairstone Road Tallahassee, Florida 32399 Kenneth Plante, General Counsel Department of Environmental Protection 2600 Blairstone Road Tallahassee, Florida 32399
Findings Of Fact Petitioner owns and operates a gasoline station located at 4625 U.S. 27 North, Davenport, Florida. The site was constructed in late 1986 and opened in early 1987. The underground tanks storing the gasoline are connected by pipes running underground to the pumps from which the gasoline is dispensed. A small portion of the underground supply pipe is accessible from the surface through a manhole. The excavated area exposing the pipe and what appears to be a valve are separated from the surrounding soil by a large, cylindrical corrugated pipe laid perpendicular to and above the underground supply pump. The leak in question was caused when the lower edge of the corrugated pipe cut into the underground supply pipe for the premium gasoline. The cut was caused by the cumulative effect of vehicular traffic driving over the manhole cover, placing pressure on the corrugated pipe, and eventually forcing the edge of the corrugated pipe to rupture the underground supply pipe with which it was in contact. Petitioner owns and operates a large number of gasoline stations. This incident is the first time that a corrugated pipe has cut into an underground supply pipe. The use of the corrugated pipe is not at issue in the present case. Pursuant to company policy, station employees complete a daily recap each day and forward the recap document to Petitioner. Part of the recap document is devoted to "gas inventory." The daily recap, which covers the preceding 24 hours, requires that an employee determine the amount of gasoline in each underground storage tank, adjust the figure for amounts sold and delivered, and then compare the figure to the amount determined to have been in the tank 24 hours earlier. This reconciliation is normally completed by mid- to late-morning each day. A station employee "sticks" each tank to determine how much gasoline it contains. The procedure requires that the employee insert a pole into the bottom of an underground tank. By observing the length of the pole dampened by gasoline, the employee can calculate approximately the amount of gasoline in the tank. Although stick reading results in an approximation, the results are fairly accurate, leaving at most, in the case of this 12,000-gallon tank, a margin of error of 50 gallons. "Sticking" normally takes place daily between 6:30 a.m. and 7:00 a.m. On the morning of March 6, 1988, which was a Sunday, the employee sticking the tank calculated that the premium tank held 5419 gallons. There had been no deliveries during the preceding 24 hours. During the same period, the station had sold 914 gallons of premium gasoline. However, the last sticking 24 hours earlier had disclosed 7989 gallons. A total of 1656 gallons were thus unaccounted for. The recap document requires that the station notify Respondent's "Dist. Mgr. immediately if shortage of 500 gallons or more appears." The employee failed to do so. On the morning of March 7, 1988, the employee sticking the premium tank calculated that it held 2147 gallons. During the preceding 24 hours, there had been no deliveries and 826 gallons of premium gasoline had been sold. Consequently, 2446 gallons were missing, for a total of 4102 gallons over the past two stickings. As soon as the reconciliation was completed, the employee contacted Respondent's management, which ordered that the pump be shut down during the afternoon of March 7, 1988. Comparing the sales of premium gasoline for the 24- hour period ending March 8 with those ending March 7, which are comparable because the sale of regular gasoline on those two days is almost identical, the station sold about 39% of a normal day's sales of premium gasoline. Reflecting the shutdown of the premium pumps on March 7, the employee sticking the tank on the morning of March 8, 1988, found 593 gallons. During the preceding 24 hours, there had been no deliveries and sales of 321 gallons of premium had been sold, leaving 1233 gallons unaccounted for. The total over the three stickings was 5335 gallons lost. The station had previously not experienced losses even approaching this magnitude. The daily recap for the 24-hour period ending on March 5, 1988, showed no significant loss. Although fluctuations in volume may occur shortly after deliveries due to temperature differentials, such fluctuations could not reasonably have accounted for these vast discrepancies. Theft, measurement errors, and recording errors may also account for variations in readings, but not of the magnitude and repetition involved in this case. Between the time of the reconciliation on the morning of March 6 and the system shutdown on the afternoon of March 7, the system continued operating and, thus, leaking for 28-30 hours. Given that 2446 gallons were lost during the 24-hour period ending on March 7 and 1233 gallons lost during about 9 hours on March 8, at least 100 gallons per hour were escaping from the pipe during these last 28-30 hours, for a total of between 2800 and 3000 gallons. For reasons discussed in the Conclusions of Law, the actions and omissions of the station employees following the reconciliation of inventory figures on March 6 constituted gross negligence in the maintenance of a petroleum storage system. These actions and omissions were in the scope of employment. During the relevant period of time, none of Respondent's employees performed monthly checks of the monitoring wells to determine the presence of leaks. This failure was due to ignorance and was not wilful. This failure in no way contributed to the leak or to any delay in discovering the leak. During the relevant period of time, the monitoring wells had not been properly grouted to prevent introduction of surficial contamination. However, this failure was unknown to Petitioner, which had hired a contractor to construct the wells and reasonably had relied on the contractor to grout properly the monitoring wells. The improper grouting in no way contributed to the leak or to any delay in discovering the leak. During the relevant period of time, Petitioner was not performing weekly or five-day averages of inventory records concerning gasoline. The failure to perform these reconciliations in no way contributed to the leak or to any delay in discovering the leak. Following the discovery of the leak, Petitioner notified Respondent on March 8. Petitioner requested approval to participate in the Early Detection Incentive Program by filing a Notification Application dated March 29, 1988. On July 14, 1988, Respondent completed the Pollutant Storage Tank System Inspection Report Form and Early Detection Incentive Program Compliance Verification Checklist. These documents indicate that Respondent was not monitoring monthly its monitoring wells, failed to grout properly its monitoring wells, was not performing the weekly or five-day averages of inventory (although it was taking daily inventory and reconciling opening and closing inventories), and did not immediately investigate the 1600-gallon shortage disclosed on the morning of March 6, 1988. By letter dated September 30, 1988, Respondent notified Petitioner that its site was ineligible for state-administered cleanup under the Early Detection Incentive Program. The letter cited as reasons the wilful failure to perform monthly checks of the monitoring well, the failure to immediately investigate discrepancies in inventory records while the system continued to operate after initial discovery of the 1600-gallon loss, and the improper construction of the monitoring well with respect to the improper grouting. The letter concludes that these items constitute gross negligence in the maintenance of a petroleum storage system, which precludes participation in the program.
Recommendation Based on the foregoing, it is hereby recommended that the Department of Environmental Regulation enter a Final Order denying the application of Petitioner to participate in the Early Detection Incentive Program. RECOMMENDED this 26th day of March, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1561 Treatment Accorded Proposed Findings of Petitioner 1-4: adopted. 5-6: adopted in substance. 7-16: adopted. 17: rejected as unsupported by the greater weight of the evidence. 18-20: adopted or adopted in substance. 21: to the extent that this proposed finding suggests that Petitioner was performing the five-day or weekly averaging, rejected as unsupported by the greater weight of the evidence. However, in view of the findings and conclusions contained in the Recommended Order, rejected as unnecessary. 22-26: adopted. Treatment Accorded Proposed Findings of Respondent 1-4: rejected as conclusions of law. 5-6: adopted. 7-16: rejected as subordinate. 17: rejected as an inference unsupported by the greater weight of the evidence. 18-26: adopted. 27: rejected as irrelevant. 28-29 and 31: rejected as legal argument. 30: adopted. 32: adopted. 33: adopted except that the system was shut down at some point into the day of the second sticking showing a significant shortage. 34-38: adopted or adopted in substance. 39: rejected as speculation. 40: rejected as irrelevant. 41-42: adopted. 43: rejected as irrelevant. 44-45: rejected as subordinate. 46: adopted. 47-49: rejected as subordinate. 50: adopted. 51-53: rejected as vague with respect to reference to "Racetrac." 54: adopted. 55: rejected as cumulative. 56-57: rejected as unnecessary. COPIES FURNISHED: Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Steven M. Mills Decker & Hallman Suite 1200 Marquis II Tower 285 Peachtree Center Avenue Atlanta, GA 30303 Michael P. Donaldson Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
