The Issue Did the site in question fail to meet monitoring and retrofitting requirements within the schedules established under Chapter 17-61, Florida Administrative Code, and thereby not be eligible for the Early Detection Incentive Program?
Findings Of Fact The State Underground Petroleum Environmental Response (SUPER) Act of 1986 was enacted as Chapter 86-159, Laws of Florida, and codified primarily in Section 376. 071, Florida Statutes. It provides for the expeditious cleanup of property contaminated as the result of storage of petroleum or petroleum product. As part of the SUPER Act, the legislature created the program which is of direct relevance in this litigation. The EDI Program, Section 376.3071(9), Florida Statutes,, provides for state cleanups of sites contaminated as a result of a discharge from a petroleum storage system. Petitioner now owns and operates a facility at Route 1, Box 167 Jay, Florida. (Hearing Officer's Exhibit 2). The facility contains two underground petroleum storage tanks which were installed on or before 1970. (T8, 9). Monitoring wells were installed for the tanks in December, 1988. (T7). Monitoring wells are pipes which are installed in the ground around a tank excavation to allow for detection of leaks from the tanks. (T8).
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the site owned by Petitioner be determined to be ineligible for the Early Detection Incentive Program, pursuant to Section 376.3071(9), Florida Statutes. DONE AND ORDERED this 9th day of January, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto 1230 Apalachee Parkway Tallahassee, FL 32399-15SO (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1990. COPIES FURNISHED: E. Gary Early, Esq. Assistant General Counsel Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Mr. Thomas L. MCNAUGHTON MCNAUGHTON's Store Route 1 Jay, FL 32565 Mr. Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Are test results skewed by the use of sample bottles containing residue from earlier samples?
Findings Of Fact The Department of Agriculture and Consumer Services took unleaded gasoline samples from the Union Service Station No. 166191 located on US Highway 29 North in Century, Florida. The petroleum products provided this station were supplied by Northrop Oil Company, Inc., whose president is James W. Ash. The Department analyzed the samples taken in its mobile laboratory. The unleaded gasoline samples were found to have an elevated End Point, i.e. the maximum boiling point allowed by the rules of the Department for unleaded gasoline, which is 437 degrees Fahrenheit. Sample No. 1 had an End Point of 482 degrees Fahrenheit, and Sample No. 2 had an End Point of 464 degrees Fahrenheit. 4 The elevated End Point means that the samples contained contaminants in excess of the amounts permitted by the Department's rules. A Stop Sale Notice was issued by the Department. A bond of $1,000 was paid by Petitioner in lieu of confiscation of the remaining unleaded gasoline and as a precedent for the formal hearing. Petitioner requested and received a formal hearing. It was agreed that the contaminant did not contain lead and was most probably diesel fuel or kerosene. Mr. Ash testified concerning deliveries to the station in question and other deliveries made by the same truck. On the Monday the samples were taken, the gasoline transport delivered unleaded gasoline to Davis' Grocery, the Union Service Station, and Ross', in that order. The Department also tested the unleaded gasoline at Davis' and Ross' but found no contaminants in their unleaded gasoline tanks. On the preceding Friday, the truck delivered unleaded gasoline to the Union Service Station and two Alabama stations. The Alabama authorities checked the unleaded gasoline at those stations and found no contaminants; however, Mr. Ash did not know how much additional gasoline had been delivered to those stations before their testing. The Union Service Station in question keeps its unleaded gasoline tanks locked, and its diesel fuel tank is located on the opposite side of the station. Petitioner uses separate trucks to deliver diesel fuel and gasoline and does not mix loads. It would have been highly unlikely that the diesel truck driver and the station's operators would have permitted the introduction of diesel fuel into the unleaded gasoline storage tanks. The percentage of contaminant necessary to raise the End Point the amount it was raised in this instance would have been three to five percent of the total volume. The sample bottles used by the Department are approximately the size of a quart milk bottle. The inspector separates the bottles he uses to take diesel fuel samples from those he uses to take gasoline samples. He stores the bottles upside dawn. This was the procedure he followed in taking the samples involved in this case. Tests conducted by the Department to determine the effects of residue in sample bottles indicated that the residue from earlier samples is an insignificant factor in elevating the End Point test results. An inverted sample bottle could not retain the three-to-five percent of the bottle's total volume necessary to raise the test, results of the samples in question approximately 40 degrees Fahrenheit. The contaminant was not introduced into the samples from the bottles used to take the samples. The Department calculated that 570 gallons of contaminated unleaded gasoline were sold at $1.40 per gallon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends release of the contaminated fuel in question and return of the $1,000 bond by the Department of Agriculture and Consumer Services upon payment by Petitioner to the Department of $722.84. DONE and ORDERED this 30th day of July, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 30th day of July, 1981. COPIES FURNISHED: Mr. James W. Ash, President Northrop Oil Company, Inc. c/o Union Service Station US Highway 29 North Century, Florida 32535 Leslie McLeod, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Doyle Conner, Commissioner Department of Agriculture and consumer Services Mayo Building Tallahassee, Florida 32301
The Issue Whether respondent should grant petitioner's application for eligibility for restoration coverage under the abandoned tank restoration program?
Findings Of Fact For decades the Hamilton County Road Department has stored refined petroleum products (gasoline and diesel fuel) in underground tanks at its maintenance yard off Highway 249. Testimony of Cox; Petitioner's Exhibit No. 8. On September 25, 1991, the three oldest storage tanks were dug up and removed from the yard. Remaining nearby were the four 5,000-plus-gallon underground tanks the County installed in the early 1980s, see Petitioner's Exhibit No. 7, which are still in use (or were at the time of the hearing.) After the newer tanks were put in service, Hamilton County never refilled any of the three older tanks. "Approximately three to four feet" (T.22) separate the pit which yielded the three older tanks from the "remaining [newer underground storage tank] area," id., to the northwest. In dealings with DER, Hamilton County has used the same "facility number" for both sets of tanks. Immediately after they removed the last of the old tanks, Chris Brockmeier took soil samples. Every sample he took southerly of the tanks left in the ground he found (with the use of a flame ionized detector) to contain in excess of a thousand parts of volatile hydrocarbons per million, undoubtedly a remnant of gasoline or diesel fuel. The soil samples he took from the area on the other side of the remaining tanks contained from 460 to 700 parts of volatile hydrocarbons per million. The contamination may well have come from the old, not the new, storage tanks, but the evidence did not reliably establish its source, Mr. Brockmeier's opinion notwithstanding.
Recommendation It is, accordingly, RECOMMENDED: That DER deny petitioner's application for restoration coverage for Facility No. 248518525 under the abandoned tank restoration program. DONE and ENTERED this 14th day of January, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2682 Petitioner's proposed findings of fact Nos. 1-5 and 7-15 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, the proof did not eliminate the possibility that leakage or spillage since the old tanks' removal also contributed. Petitioner's proposed findings of fact Nos. 16 and 17 are treated in the section on conclusions of law. Respondent's proposed findings of fact Nos. 2, 3, 4 and 6-13 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 1, the route number was different. With respect to respondent's proposed finding of fact No. 5, Petitioner's Exhibit No. 7 and Cox's testimony suggest they were last used between 1981 and 1986. COPIES FURNISHED: John H. McCormick, Esquire Post Office Drawer O Jasper, Florida 32052 Brigette A. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue to be determined in this case is whether Respondent Baldwin is liable for the violations of state statutes and rules that are alleged in the NOV and, if so, whether Respondent should be ordered to pay the civil penalties proposed by the Department.
Findings Of Fact The Department is the state agency charged with the power and duty to administer and enforce the provisions of Chapters 376 and 405, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 62. Respondent BR Baldwin, Inc., is a Florida corporation. Beginning in July 31, 2006, Baldwin owned and operated an automotive service station at 2000 Drew Street in Clearwater, Florida (“the property”). Located at the property are three underground fuel storage tanks, along with their associated piping and dispensers. There is also an underground storage tank for waste oil. Baldwin ceased using the underground storage tanks in May 2007 and had them taken out of service in July 2007. Count I of the NOV charges Baldwin with a violation of Florida Administrative Code Rule 62-761.400(3)(a) which requires owners and operators of petroleum storage tank facilities to carry liability insurance or to otherwise demonstrate to the Department that they are financially able to pay for corrective actions and third party liability. Baldwin admits that from July 31, 2006, until June 25, 2007, it did not have liability insurance coverage for the facility and did not otherwise demonstrate to the Department that it was able to pay for potential liability. Bobby Baldwin, the president of Baldwin, contends that he tried to obtain insurance coverage but was unable to do so until June 2007. The more persuasive evidence shows that he did not at first make reasonable efforts to obtain insurance. His efforts to obtain insurance only became reasonable after the corporation was cited for failing to obtain insurance. Baldwin alleged, but did not prove, that the violation was caused by circumstances beyond his reasonable control and could not have been prevented by his due diligence. Bobby Baldwin contends that his receipt of a storage tank registration placard from the Department misled him to believe that he did not have to get insurance. The issuance of a placard is not tied to the requirement for insurance coverage. Bobby Baldwin admitted that he was unfamiliar with the regulations that are applicable to petroleum storage facilities when he purchased the facility. His failure to inform himself about the applicable regulations was unreasonable and does not provide a basis for mitigating the penalties assessed for violating the regulations. In the NOV, the Department seeks a penalty of $5,000 for the violation addressed in Count I. Count II of the NOV charges Baldwin with violating Florida Administrative Code Rule 62-761.610(3)(c), which requires that manual tank gauging be performed for tanks of 550 gallons or less nominal capacity. The tank gauging is required so that a leak can be discovered. Baldwin admits that it did not perform manual gauging for its waste oil tank during the approximate year that it operated the service station. Bobby Baldwin testified that he would have performed the manual gauging, but he was unaware that it was required. He also testified that he never used the waste oil tank. In the NOV, the Department seeks a penalty of $4,000 for the violation addressed in Count II, which represents two days of violation. At the hearing, the Department modified the penalty demand to seek only a single day violation, or $2,000. Count III of the NOV is the Department’s claim for investigative costs of $1,000. The Department apparently determined not to seek costs and presented no evidence in support of its costs claim at the final hearing. At the hearing, the Department stated its willingness to have the (modified) penalties of $7,000 reduced by 50 percent, to $3,500, and to allow Baldwin to pay the penalties in twelve equal monthly installments. Bobby Baldwin testified that he is financially unable to pay even the revised penalties of $3,500. There are exhibits in the record that relate to Bobby Baldwin’s personal finances. However, Bobby Baldwin is not named in the NOV. BR Baldwin, Inc., alone, is responsible for any penalties. The Department contends that a respondent’s inability to pay or difficulty in paying a penalty is not a mitigating factor that can be applied to reduce penalties. The statute does not identify inability to pay as a mitigating factor, but neither does it exclude its consideration. See § 403.121(10), Fla. Stat. The issue is moot in this case, however, because the Department has already stipulated to the reduction of the penalties by 50 percent.
Findings Of Fact The Petitioner is the owner of real property located at 726 North Beach Street, Daytona Beach, Florida, also known as DEP Facility No. 64-9100172. The Petitioner has been the owner of this site from 1982 to the present. From approximately 1984 and 1988, it was leased to a Mr. Jack Delaney. Apparently, during that time or before, the site was used as an AAMCO transmission repair shop and automobile repair facility. The Respondent, Department of Environmental Protection (DEP, Department), is an agency of the State of Florida responsible, in pertinent part, for the administration of Florida's Abandoned Tanks Restoration Program. Through an agreement with Volusia County, Florida, the county where the subject site is located, the Department has delegated to the Volusia County Environmental Control Division inspection and regulatory authority for purposes of cleanup of sites contaminated by petroleum, petroleum products or hydrocarbons. The facility in question included two 1,000-gallon underground storage tanks and three 550-gallon underground storage tanks (UST's). All of the tanks, when in service, had contained petroleum products of one form or another. The tanks at the front or "street-side" end of the facility property, tanks one and five, most likely contained gasoline, when in service, although at the time of inspection and remedial action, the tanks were filled with water. All of the storage tanks at the facility were removed under the supervision of the Volusia County environmental regulatory agency. The tanks were properly disposed of by a qualified subcontractor, and the contaminated soil at the site was removed and stored in a segregated, protected fashion, until shipment to a thermal processor to be burned and thus cleansed of its petroleum-related pollutants. The Volusia County Environmental Control Division made an inspection of the subject site and on September 10, 1987, informed Mr. Delaney, the lessee, that a considerable amount of soil contamination, due to petroleum or petroleum products, was present on the site. The Department maintains that the finding by the county agency was that the soil contamination was due to improper surface disposal of used oils. Mr. Ed Smith, who testified for the Petitioner, has been involved as a petroleum de-contamination contractor for such sites hundreds of times and was present throughout the cleanup operations conducted at the subject site. He established that, indeed, there were spillages of used and waste oils and petroleum products at the site but that a great deal of the contamination also resulted from underground leakage from the storage tanks, or some of them. Preponderant evidence was not adduced by the Department, merely through its reliance upon DEP Exhibit 1, Request No. 59, to show that the contamination at the site solely resulted from surface spillage, in consideration of the testimony of Mr. Smith, which is accepted. On or about September 19-20, 1990, five underground storage tanks were removed from the facility site by Hydroterra Environmental Services, Inc., a contractor at the site. Thereafter, an underground storage tank closure report (closure report) for the AAMCO transmission facility was prepared by Hydroterra Environmental Services, Inc. That report is in evidence as the Petitioner's Exhibit 20. The report and testimony reveals that a total of three 550-gallon underground storage tanks were removed from the facility. There were two 550- gallon underground storage tanks located in front of the facility, known as tanks one and five. When those two tanks were removed, both were found to contain water. It is not clear what originally was stored in those tanks, but they were, in all likelihood, utilized for the storage of gasoline. The closure report concerning tank one and tank five reveals that the fuel-dispensing capability of those tanks was discontinued many years ago. One of the tanks, tank one, leaked. It had holes caused by corrosion. An environmental consultant, however, utilizing an organic vapor analyzer (OVA), performed soil-monitoring tests during the excavation and removal of these two 550-gallon UST's, which were thought to have formerly contained gasoline (tank one and tank five). His single OVA reading at that site showed a "0 PPM" (parts per million) for that sampling location associated with the excavation of tank one and tank five near the front of the AAMCO facility. The environmental consultant also obtained a groundwater sample during excavation and removal of those two tanks. The sample was analyzed for the presence of benzene, ethylbenzene, toluene, and xylene (BETX). The parameters for BETX are utilized to determine the presence of petroleum contamination. The analytical results for that sample for the tank one and tank five excavation site indicate that the parameters for those hydrocarbon compounds were all below detectable limits. Analytical results for the water sample, however, did indicate the presence of chlorobenzene. Chlorobenzene is associated with solvents, is an aromatic hydrocarbon compound and is a form of petroleum, that is, it is made from crude oil derivatives. With regard to these two tanks and, indeed, all of the tanks excavated, there was an absence of "free product" on the water table. That is, gasoline, waste oil or other forms of petroleum or petroleum products were not separately identified and existing on the surface of the groundwater table. Upon visual inspection, as shown by the Petitioner's Exhibit 20, the closure report, the testimony of Mr. Smith, as well as the photographs in evidence, tanks one, five, four, and six had multiple holes from small "pinhead size" to one inch in diameter. The tanks thus would have leaked any contents contained therein. Upon excavation of the tanks from the site, they were cleaned, de-commissioned, and transported to Jacksonville, Florida, to a subcontractor for disposal as scrap. Tanks two and three were determined to be intact, with no apparent holes. Tank one had one or more holes. The evidence shows that that tank was suspected of containing gasoline during its useful life, although when it was excavated, it was found to be full of water. The OVA and groundwater tests taken in conjunction with the removal of tanks one and five from the site near the front of the facility do not show excessive contamination, however. This is corroborated by the testimony of Mr. Smith, testifying for the Petitioner, who is a licensed pollutant storage tanks specialty contractor and a general contractor. He has removed hundreds of underground storage tanks and conducted many such cleanup projects. He himself supervised the removal of the tanks and was on site virtually every day. With regard to the removal site for tanks one and five, which were in close proximity to each other, he confirmed that he felt that the site was "clean". Thus, it has not been demonstrated by preponderant evidence that tanks one and five contributed to the contamination of groundwater and soil at the site. In the rear of the AAMCO transmission facility, there were two 1,000- gallon UST's. One of them had been used for storage of waste oil and transmission fluid (tank two). The second 1,000-gallon UST, tank three, had been used for storage of new transmission fluid. Tanks two and three were located on either side of a concrete apron at the rear door of the transmission shop. Tank two was excavated separately from tanks three, four and six. There is no evidence that tanks two and three, the two 1,000-gallon tanks, had holes or other sources of leakage. During the excavation and removal of tank two, an OVA was used to perform the soil monitoring tests. A single reading of 328PPM was recorded for the sampling location associated with the excavation and removal of tank two. A groundwater sample (MW-SB No. 3) was obtained from the tank pit, where tank two was excavated and removed. That sample indicates that there was a "odor of solvents". The analytical results for that groundwater sample indicate an analysis for benzene, ethylbenzene, toluene and xylene, showing that the parameters for benzene and ethylbenzene were below detectable limits. However, the analytical results for that sample indicate that chlorobenzene and 1,4- dichlorobenzene were above detectable limits, with significantly-elevated readings, representing excessive contamination with these constituents. These are consistent with the presence of aromatic solvents. Such compounds are hydrocarbons, being derived from petroleum. The groundwater sample related to tank three also showed very high levels of xylene, chlorobenzene, and 1,4-dichlorobenzene; volatile, aromatic hydrocarbon compounds derived from petroleum. The excavation pit for tank three yielded a groundwater sample of similar quality, in terms of the odor of solvents and elevated levels of the above-mentioned hydrocarbon compounds associated with solvents. Tank six, a 550-gallon tank, was located immediately adjacent to and in close proximity to tank three, between tank three and the concrete apron at the rear door of the transmission shop. It contained water at the time it was excavated and inspected. However, it had been used for storage of petroleum or petroleum products of unknown nature. Because of the nature of the business located at the site, the petroleum products contained in the other nearby tanks and because of the petroleum products saturating the soil in the area immediately surrounding and beneath the tank, it is inferred that the tank contained waste oil, transmission fluid, or solvents at various times and occasions. The excavation for tanks three and six, as well as "tank No. four", which was actually the 55-gallon oil and water separator, was one continuous excavation. The water sample taken with regard to the location of tank six shows significantly-elevated levels of chlorobenzene, 1,4-dichlorobenzene, and xylene. The Department's witness, Mr. Register, acknowledged that elevated levels of pollutants in the pit associated with tanks four, three and six were consistent with the presence of solvents and waste oil or "oils and greases". Mr. Smith, the certified pollution specialty contractor supervising and conducting the project, described in his testimony how one can recognize contaminated soil in the field and that soil is saturated when one can squeeze petroleum compounds out of the soil with the hand. This shows excessive contamination of soils at such a site, as was acknowledged by Mr. Register, the engineer for the Bureau of Waste Cleanup for the Department, who testified. Mr. Smith thus established that the soils in the pit at the rear of the facility were saturated with petroleum or petroleum products. These were derived from waste oils and greases, consisting of waste oil and transmission fluid, as well as solvents. The pollutants leaked from tanks six and four, although Mr. Smith acknowledges in his testimony that tank four is not really considered to be a storage facility but, rather, a 55-gallon drum used as an oil/water separator, connected by a clay pipeline to a catch basin immediately in the rear of the apron and rear door of the building. In summary, through Mr. Smith's testimony, it was established that there was excessive contamination at the site, as shown by the saturation of the soils in the excavation pits from which the tanks were removed, in the manner described above. Under Mr. Smith's supervision, all appropriate remedial action was done at the site, all contaminated soil was removed and cleansed at an appropriate thermal treatment facility. The site was declared "clean" by the county agency referenced above, which had supervision of the project under its agreement with the Department. The initial remedial action task undertaken by the Petitioner, as shown by Mr. Smith's testimony, included removal of excessively-contaminated soils, as defined under Section 62.770.200(2), Florida Administrative Code, concerning the excavations at the rear of the transmission shop. Tank six is the only storage tank shown to have been leaking at the rear of the shop, but the spread or diffusion rate and area of contamination which leaked from that tank through the excavation area is not precisely definable. In any event, a significant portion of the soil in the excavation area at the rear of the transmission shop, including that occupied by tank six, was shown to be excessively contaminated and much of it emanated from tank six, especially evidenced by its central location in the contaminated portion of the site. Removal of that contaminated soil was part of the initial remedial action task. Likewise, the removal of the tanks was part of the performance of the initial remedial action task. In fact, all of the excess contamination could not be removed by removal of the soil without removing the tanks first, to get access to the excessively-contaminated areas beneath the surface grade. There is, however, no evidence that the initial remedial action task, with regard to each tank and tank site, which included removal of the tanks and excessively- contaminated soils, included any necessity to recover "free product" with regard to any of the tanks or tank locations. Finally, it is shown that transmission fluid and waste oil, as well as the other, solvent-related constituents of the contamination at the site, are petroleum or petroleum products. They can be, and are used, as a mixture amounting to a "liquid fuel commodity made from petroleum" and such waste petroleum products are often used in Florida, particularly for boiler fuel to fire industrial-type boilers. These compounds found at the site are both petroleum and petroleum products and are hydrocarbons, as defined in Section 376.301, Florida Statutes. It was thus demonstrated that the contamination at the facility was the result of a discharge of petroleum products, from a petroleum storage system, in the manner and for the reasons delineated more particularly above. On or about January 30, 1991, the Petitioner filed an abandoned tank restoration program application form with the Department. The Department issued the Petitioner an "order of eligibility" under that program for the abandoned tank restoration, which final order was entered on August 16, 1991. That order of eligibility is limited to "contamination related to the storage of petroleum products, as defined in Section 376.301(10), Florida Statutes. On February 14, 1992, the Petitioner filed a reimbursement application for all allowable costs with the Department. On or about April 28, 1993, a "final order of determination of reimbursement" for allowable costs was issued by the Department, which denied all reimbursement of cleanup costs associated with contamination of the property. That action was the result of the Department's position that the contamination resulted from improper disposal of petroleum products at the AAMCO transmission facility and not due to contamination of the site from the storage tank system.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Environmental Protection awarding reimbursement for the cleanup of DEP Facility No. 64-9100172 in accordance with the considerations, findings and conclusions made above. DONE AND ENTERED this 29th day of May, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-3313 Petitioner's Proposed Findings of Fact 1-7. Accepted. 8. Rejected, as constituting argument and not a proposed finding of fact. 9-10. Accepted. 11. Accepted, as to those tanks delineated more particularly in the Hearing officer's findings of fact. 12-13. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Respondent's Proposed Findings of Fact 1-2. Accepted. 3. Accepted, but not itself materially dispositive. 4-12. Accepted, but not all of which are materially dispositive. 13-19. Accepted, but not necessarily materially dispositive. 20-23. Accepted. 24-25. Accepted, but not material. 26. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 27-29. Accepted. 30. Accepted, but not materially dispositive. 31-34. Accepted, but not in themselves materially dispositive. 35-36. Accepted. 37-39. Accepted, but immaterial. 40-45. Accepted, but not in themselves materially dispositive. 46-49. Accepted. 50. Accepted, only as an indication of the Department's position. 51-55. Accepted. 56-64. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. 65. Accepted. 66-69. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing officer's findings of fact on this subject matter, and erroneous as a matter of law. COPIES FURNISHED: Robert J. Riggio, Esquire Owens & Riggio, P.A. 125 North Ridgewood Avenue Daytona Beach, FL 32114 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Kenneth Plante, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
Findings Of Fact Based upon the prehearing statement, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner is a Florida corporation in good standing, authorized to do business in this state. The Petitioner owns and controls the site which is the subject matter of these proceedings. Such site is located in Brevard County, Florida. The Department has identified the subject site as DER facility no. 05- 8500985 (the facility). At all times material to this case, the facility consisted of: three underground storage tanks (UST), one 3000 gallon UST used for storing diesel fuel, one 1000 gallon UST used for storing diesel fuel, and one 1000 gallon UST used for storing gasoline; five monitoring wells; and pipes and pumps related to the foregoing system. The facility constituted a storage tank system as defined in Section 376.301, Florida Statutes, and Rule 17-761.200(38), Florida Administrative Code. The Petitioner holds, and is named insured for, third party pollution liability insurance applicable to the facility. Such insurance was issued pursuant to Section 376.3072, Florida Statutes. The policy for the foregoing insurance, policy no. FPL7622040, was in force from March 22, 1991 through March 22, 1992. The Department issued a notice of eligibility for restoration insurance to Petitioner for the above-described facility. Based upon the foregoing, the Petitioner is a participating owner or operator as defined in Chapter 17-769, Florida Administrative Code. Pursuant to Section 376.3073, Florida Statutes, Brevard County operates a local program that has been approved by the Department. Such local program is managed by the Brevard County Office of Natural Resources Management (County). In July, 1990, a discharge of diesel fuel occurred at the Petitioner's facility. Petitioner's employees estimated that approximately twenty gallons of diesel fuel filled the pump box overflowed from the pump box across the seawall into the adjacent waters. Upon discovering the discharge, Petitioner shut down diesel fuel dispensing until repairs could be made to the apparent cause of the leak. Additionally, the diesel fuel remaining in the pump box and on top of the tank area was removed. Contaminated soil in the pump box was also removed. The apparent cause of the discharge described above was attributed to cracked pipe fittings which were repaired by Glover Oil Co. within a few days of the discharge. No detailed inspection was made to the system to determine if additional sources of discharge existed. Petitioner did not complete a discharge reporting form (DRF) for the above-described incident until April 18, 1991. The April DRF was completed after Petitioner was directed to do so by Ms. DiStasio, an inspector employed by the County. From August, 1990 until May, 1991, at least one monitoring well at the Petitioner's facility showed free product accumulating in the well pipe. The exact amounts of the free product found are unknown, but reports estimated the level at 100 centimeters. From August, 1990 until September, 1991, the Petitioner did not undertake any measure to explore the origin of the free product found in the monitoring well. Further, the Petitioner did not report the monitoring well testing results as a suspected or confirmed discharge. In April, 1991, an inspection of the Petitioner's facility was performed by Ms. DiStasio. That inspection resulted in a letter to the Petitioner that outlined several violations at the facility. Among those violations listed was the Petitioner's failure to report a suspected or confirmed discharge. At the time of the April, 1991 inspection, Petitioner had reported neither the July, 1990 discharge (a known discharge) nor the monitoring well test results (at the minimum a suspected discharge). In connection with the July, 1990 discharge, following the repairs made by Glover Oil, Petitioner did not have the system pressure tested. Only the area visible from the pump box was checked for leakage. In July, 1991, when Ms. DiStasio performed a re-inspection of the facility, she found Petitioner had not (in the interim period, April through July, 1991) taken any steps to test the system or to remove the fuels from the suspect tanks. Since the free product continued to appear in the monitoring well, a pressure test of the system would have definitively answered the discharge question. Alternatively, the removal of the fuels would have prevented further seepage until the system could be pressure tested. On August 6, 1991, the Petitioner issued a letter that advised the County that it had stopped dispensing fuel at the facility. The tanks were not drained, however, until on or about September 11, 1991. Further, the August, 1991, letter acknowledged that the Petitioner "had proposals for initial remedial cleanup related to diesel contamination in the tank field area." Obviously, the Petitioner must have contemplated a need for such cleanup. On September 11, 1991, at the Petitioner's request, Petroleum Equipment Contractors, Inc. attempted to pressure test the 3000 gallon diesel tank. The purpose of the pressure test was to determine if the diesel system had a leak. The company could not even run the test on the tank because of the defective system. A similar test on the Petitioner's gasoline tank passed without incident. Once the Petitioner learned the results of the test, it initiated Initial Remedial Action (IRA) as described on the IRA report filed by Universal Engineering Sciences. The IRA consisted of the removal of the excessively contaminated soil, approximately 74 cubic yards, and the removal of the USTs. The foregoing work was completed on or about September 15, 1991. On October 4, 1991, the Petitioner filed a discharge reporting form dated October 2, 1991, that identified September 11, 1991, as the date of discovery for the discharge. This discharge discovery was allegedly made incidental to the diesel tank pressure testing failure. No reference was made to the months of monitoring well reports showing a free product. On October 8, 1991, Ms. DiStasio prepared a Florida Petroleum Liability Insurance and Restoration Program Compliance Checklist that reported the Petitioner was not in compliance with applicable statutes and rules. When Petitioner applied for restoration coverage under the statute on January 31, 1992, such request was denied by the Department on March 6, 1992. The basis for the denial was as follows: Failure to notify the Department of a positive response to sampling within three working days of testing, pursuant to the rule in effect at the time of the initial response (17-61.050(1), Florida Administrative Code). An inspection by Brevard County on April 17, 1991, revealed that free product had been detected in one monitoring well since July 1990. The discharge reporting form was not submitted until October 2, 1991.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order denying Petitioner's claim for restoration coverage under the Florida Petroleum Liability Insurance and Restoration Program. DONE and ENTERED this 31st day of December, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 31st day of December, 1992. APPENDIX TO CASE NO. 92-2121 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1, 2, 8, 12, 15, 16, 17, and 18 are accepted. Except as found above, paragraph 3 is rejected as not supported by the record cited. It is accepted that Brevard County acted as the local agent in this case. Paragraph 4 is rejected as not supported by the record. With regard to paragraph 5, substituting "A" for "The" and "confirmed" for "discovered" the paragraph can be accepted; otherwise rejected as contrary to the record. Similarly, with the substitution of the word "confirmation" for "discovery" in Paragraph 6, the paragraph can be accepted; otherwise rejected as contrary to the record. No suitable explanation was offered by the Petitioner for why, if a discharge were not reasonably suspected, it retained the company to immediately remove the USTs upon the failed pressure testing. Clearly, the Club had a notion the tanks were a discharge problem. Paragraph 7 is rejected as contrary to the weight of the evidence. While there was some confusion as to the exact volume of free product in the monitoring well, there was clear evidence that such was reported for many months prior to the confirmation in September, 1991. Further, the main confusion regarding the product found in the well was not as to its existence, but as to the individual's knowledge of the metric measurement of it. One hundred centimeters of product in a two or three inch pipe would not be a minute amount. Except as addressed in the foregoing findings, paragraph 9 is rejected as contrary to the weight of the evidence. Petitioner did not undertake all repairs necessary to abate a discharge problem. Paragraph 10 is rejected as not supported by the weight of credible evidence or irrelevant. Clearly, as early as August, 1990, Petitioner knew or should have known of a discharge problem based upon the monitoring well report; that all of the discharge did not necessarily flow from the fittings that had been repaired is irrelevant. Further, Petitioner did no testing to verify that the replaced fittings had solved the discharge problem (especially in light of the well reports). Paragraph 11 is rejected as an inaccurate restatement of the exhibit. Paragraph 13 is rejected as contrary to the weight of the evidence. Incidentally, the hearing in this case was in the year 1992. Paragraph 14 is rejected as contrary to the weight of credible evidence. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 11 are accepted. Paragraph 12 is rejected as a misstatement of the exhibit cited. Paragraphs 13 through 27 are accepted. COPIES FURNISHED: Brigette A. Ffolkes Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Scott E. Wilt MAGUIRE, VOORHIS & WELLS, P.A. 2 South Orange Plaza P.O. Box 633 Orlando, Florida 32802 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
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 On December 25, 1979, Garden Oliver, a petroleum inspector with the Department of Agriculture and Consumer Services (hereafter Department) took a gasoline sample from the number one storage tank at Thompson Service Station, 4001 South Olive Avenue, West Palm Beach, Florida. This sample was shipped to Port Everglades, Ft. Lauderdale, Florida, for analysis and on January 8, 1980, the Petitioner was notified that the unleaded gasoline in the storage tank was illegal in that it contained .55 gram of lead per gallon, which is in excess of .05 gram of lead per gallon allowable under the Department rules governing the sale of unleaded gasoline to the public. On the basis of the laboratory analysis, Mr. Oliver placed a stop sale notice on the tank which dispensed the illegal unleaded gasoline. However, in the interim period between the original sampling and posting of the stop sale notice, an additional delivery of unleaded gasoline was placed in storage tank number one which necessitated a second sample. The laboratory analysis was performed in Port Everglades and again showed a lead content in excess of that allowed by Department rules. The Petitioner was permitted to post a $1,000 bond to secure the release of 3,160 gallons of leaded gasoline remaining in tank number one which was then sold by the service station as regular gasoline. The Petitioner attempted to discover the cause of the contamination and found that during the course of renovation of the service station an existing line running' between storage tanks was overlooked. The lime ran between a leaded and unleaded storage tank which had recently been converted from leaded and permitted the leaded gasoline to flow into and contaminate the unleaded tank. The contamination was not deliberate and the problem has now been corrected by sealing off the line. There is no dispute as to the facts as set forth above. The only dispute is whether Petitioner is entitled to the refund of the $1,000 bond because of the unusual circumstances surrounding this case. In mitigation, the Petitioner has asserted that Sunmark Industries has am unblemished record of serving the public and that the cause of the contamination was accidental. The Petitioner has not challenged the authority of the Department to require the posting of a $1,000 bond in lieu of confiscation.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department return to the Petitioner $500.00 of the $1,000 bond required to be posted in lieu of confiscation of 3,160 gallons of leaded gasoline. DONE and RECOMMENDED this 8th day of January, 1981, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1981. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301 Arthur Weyant Maintenance Supervisor Sunmark Industries Post Office Box 13135 Fort Lauderdale, Florida 33318 John Whitton Chief, Bureau of Petroleum Inspection Division of Standards Mayo Building Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner failed to obtain a permit for abandoning an on-site sewage treatment and disposal system septic tank, and failed to notify Respondent so that Respondent could inspect the system prior to abandonment, in violation of Section 386.0065, Florida Statutes (1997), and, if so, whether Petitioner should pay a $500 fine. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Respondent is the state agency responsible for issuing citations under Chapter 386 and is the licensing authority for Petitioner. The Osceola County Health Department (the "Department") is an agency of Respondent. All Pro Services ("All Pro") practices septic tank contracting in Osceola, Orange, and Seminole counties. All Pro is a Florida corporation wholly-owned by Mr. Wayne H. Crotty. Mr. Crotty is licensed in the state as a septic contractor pursuant to Chapter 386. Mr. Crotty has been in the septic tank business for over 25 years. He has extensive experience in septic tank repair and contracting. Mr. Crotty also has had experience in the rule-making process conducted by Respondent pursuant to Florida Administrative Code Chapter 10D-6. He has participated in various committees and held offices in the Florida Septic Tank Association. (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) In the summer of 1996, Petitioner submitted an application to the Department for a repair permit. Petitioner sought to install a standard drainfield utilizing gravity fall from the existing septic tank of a mobile home owner who used the mobile home facility as a day-care center. The existing drainfield was antiquated, clogged, and had ceased disposing effluent properly. Petitioner made arrangements for the day-care center to refrain from using water or sewage for a period of hours so that the drainfield could be repaired. The application came to the attention of Mr. Thomas Franklin Wolf, Director of the Department's Environmental Health Section. Mr. Wolf did not accept the site evaluation in the application. He chose to perform his own evaluation of the repair site. When Mr. Wolf performed a site evaluation, he placed the seasonal high water table two inches higher than the high water table stated by Petitioner in the application for a repair permit. As a result, Mr. Wolf issued the permit at an elevation that would have required either the use of a pump system or elevated plumbing lines in the existing septic tank to meet the higher elevation deemed necessary by Mr. Wolf. The higher elevation established in the permit could be accommodated in either of two ways. The plumbing underneath the mobile home, along with the septic tank, could be raised. Alternatively, a new pump, and other equipment meeting the requirements of Chapter 10D-6, could be installed. The repair permit issued by Mr. Wolf contemplated the use of a new pump chamber complete with alarm. Pumps fail, are problematic, and are expensive. A conventional gravity-fed drainfield line is preferable, whenever feasible, to the use of a pump chamber system and is less expensive. Petitioner determined that the plumbing and septic tank could be elevated to meet the higher elevation requirements thereby avoiding the need for a pump system and its increased cost. This lower-cost alternative satisfied the requirements of Chapter 10D-6 for a septic tank drainfield. Based on past experience, Mr. Crotty believed he could obtain the Department's approval of this alternative to the pump chamber requirements of the permit. The Department had no objection to an alternative that achieved the higher elevation requirement with a gravity-fed system. One risk associated with Petitioner's alternative was that the existing septic tank might not withstand the rigors of being excavated and raised and could break during the repair process. After conferring with the homeowner about the matter, Petitioner proceeded to elevate the existing plumbing lines and septic tank. Petitioner began excavation and removed the lid from the existing septic tank. Petitioner then determined that it would not be feasible to lift the tank up and reinstall it at the higher elevation due to the age and style of the tank. Petitioner determined that the best way to proceed was to abandon the old tank and to install a new tank at the higher elevation. Petitioner replaced the existing septic tank without obtaining a separate abandonment permit. Petitioner did not need a separate abandonment permit. The repair permit was inclusive of the abandonment of the existing tank. In a previous repair effort for another customer, Petitioner broke the existing septic tank while attempting to elevate the tank to a higher location. The prior incident led to a disagreement between Petitioner and the Department over whether a separate abandonment permit was required for replacing a tank in the course of a repair. Petitioner wrote a certified letter to the Department and Department's counsel memorializing an understanding reached during discussions with Department representatives. Any requirement for a separate abandonment permit in the course of a repair was tabled pending further review by the state health office in Tallahassee. The letter further stated Petitioner's understanding that under Chapter 10D-65, the replacement of an existing tank was provided for through a repair permit, and that no separate abandonment permit is necessary for an abandonment which occurs in conjunction with a repair effort. The letter was received by Mr. Wolf on behalf of the Department. In response, the Department specifically informed Petitioner that the replacement of an existing tank is provided for through the repair permit. Mr. Wolf never retracted this position in his dealings with Petitioner. At about the same time, the state health office, through its acting Health Officer for Environmental Health, issued an interoffice memorandum advising every district administrator in the state that a separate abandonment permit is not required when an existing tank is abandoned during repair. The interoffice memorandum stated, in relevant part: This addresses permitting procedures when a septic tank is abandoned in conjunction with a system repair. Since the repair and tank abandonment inspections can be conducted at the same time, a separate permit and fee is not required if a tank is abandoned in conjunction with a repair permit. The repair permit should specify the abandonment requirements from s. 10D-6.053, F.A.C., and the requirements to have the abandonment inspected. If an additional inspection visit is required for either the repair or abandonment, the unit should charge the $25.00 re-inspection fee. Respondent's memorandum served as the Department's official interpretation of its rules relating to abandonment procedures. The memorandum made a separate abandonment permit unnecessary because the repair permit "is inclusive of the abandonment if the abandonment is necessary." The repair permit in this case suffices as an abandonment permit. Petitioner relied upon the representations of Mr. Wolf personally as well as the Department memorandum of February 18, 1996. Based upon Department policy, Petitioner was not required to amend its permit application to seek specific approval for abandonment of the existing tank, because the tank was being abandoned in conjunction with a repair permit. Petitioner pumped out, ruptured, and demolished the old septic tank with the exception of the inlet end wall and the sidewall closest to the tank. Petitioner left intact the latter portions of the old septic tank for inspection purposes and for stabilization. Petitioner placed the lids and the broken pieces of concrete from the tank alongside the new septic tank that was installed. Mr. Crotty requested an inspection by the Department. Inspector Garner arrived on the scene with a standard probe. The probe is a tool useful for inspecting on-site sewage disposal systems. Mr. Crotty informed Mr. Garner that Petitioner had abandoned the old tank and replaced it with a new one. Mr. Crotty took Mr. Garner over to the site and specifically pointed out the remaining sidewall of the old tank and the lids piled up on-site and remaining from the old tank. Mr. Garner inspected the repairs and satisfied himself that Petitioner had installed a new septic tank in the place of the old tank and had done it in a way that would allow gravity feeding to the new drainfield. The repairs dispensed with the need for a pump and were accomplished at a lower cost to the customer. After the inspection on August 13, 1998, and a subsequent review on August 14, Inspector Garner approved the installation by Petitioner. The approval specifically approved the use of a gravity-fed line rather than the use of the pump contemplated in the permit. The approval constituted the "construction final" approval for the septic system that was repaired. Rule 10D-6 does not specify when the inspection for an abandonment of a septic tank in conjunction with a repair is to occur. Nor does it say anything about requesting an inspection before the tank is filled with sand or other suitable material and covered. It was Inspector Garner's practice, and the unwritten policy of the Department, to conduct inspections of damaged septic tanks at the same time the Department inspected repair constructions. The practice of the Department in such an inspection was to inspect the abandoned tank after it had been pumped and the bottom ruptured, but before a new tank was installed. According to Department practice, the inspection of an abandonment in conjunction with a repair must determine that the tank had been pumped and that the bottom of the tank had been opened or ruptured or collapsed to prevent the tank from retaining water. The inspection can only occur after the tank has been pumped out, opened, ruptured or collapsed. Inspector Garner arrived for the inspection after abandonment of the old tank. Mr. Garner does not dispute that Petitioner abandoned the old tank, but maintains that the abandonment was accomplished without proper notification to the Department. Mr. Garner approved the construction, but recorded x- marks on the approval form adjacent to a box for abandonments and next to "tank pumped" and "tank flushed and filled." Mr. Garner also recorded on the form under "explanation of violations" a notation that the old septic tank "was abandoned without any inspection of [sic] verification." The promulgated rules of the Department and Respondent do not require an inspection before an abandoned tank is filled with sand, or other suitable material, and covered. It was the Department's unwritten policy, evidenced by its practice, to insist that inspection of the abandoned septic tank occurred before the tank is actually crushed. The promulgated rules of Seminole and Orange counties do not require inspection prior to abandonment of an existing tank. The unwritten policies of Seminole and Orange counties deviate from those of the Department. The Seminole County Health Department ("Seminole") also received the Department's interpretive memorandum regarding abandonment of septic tanks in conjunction with repairs. Seminole concluded that abandonment inspections should be conducted simultaneously with the final inspection for repairs. At that point, the old septic tank is already ruptured and filled with sand. Seminole adopted the practice of inspecting abandoned septic systems with a probe to verify the pump-out and the rupturing of the old tank. It is the same type probe used by Mr. Garner and the Department. The probe allows a department employee to verify all of the requirements of Rule 10D-6.053 for abandonment. The Orange County Health Department ("Orange County") also received the interpretive memorandum concerning abandonment of septic tanks in the course of repair procedures. By the time the memo was received, however, it was already the practice of Orange County not to require a separate abandonment permit for an abandonment as part of a repair. In Orange County, inspectors permitted abandonment inspections to occur at the point where the tank was already collapsed and covered with sand. The inspection was accomplished with the use of a probe.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent enter a final order finding Petitioner not guilty of the allegations against it and dismissing the citations. DONE AND ENTERED this 24th day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1998. COPIES FURNISHED: Marya Reynolds Latson Marion County Health Department Post Office Box 2408 Ocala, Florida 34478-2408 Stephen D. Milbrath, Esquire Allen, Dyer, Doppelt, Milbrath and Gilchrist, P.A. Post Office Box 3791 Orlando, Florida 32802-3791 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Pete Peterson Department of Health 2020 Capital Circle, Southeast Bin A 02 Tallahassee, Florida 32399-1703
The Issue Whether 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.
