The Issue Whether or not Petitioner is eligible for restoration funding (but not insurance coverage) under the Florida Pollution Liability Insurance and Restoration Program (FPLIRP) for cleanup of discharges from underground petroleum storage tanks (USTs) underlying Petitioners' real property.
Findings Of Fact Scott C. Miller, Richard D. Miller, Sr., and Richard D. Miller, Jr. as partners in "the Miller Partnership" (hereafter, Petitioners) acquired fee simple title to the site of a former gasoline station (active petroleum retail outlet) from Gulf Oil Corporation by a warranty deed dated January 30, 1984. None of Petitioners' principals have ever been in the business of storing or selling petroleum products. At the time of purchase, the site contained five 3,000 gallon underground petroleum storage tanks (USTs) and two 550 gallon USTs. These tanks had been in use by Petitioners' predecessor in interest Gulf/Chevron, until January 30, 1984, the date Petitioners bought the real property, and Petitioners knew of the presence of the tanks at the time of purchase. Pursuant to the deed, Petitioners also acquired title to the tanks. The deed contained a restrictive covenant specifically prohibiting Petitioners from using the storage tanks for a period of three years, but did not restrict Petitioners from removing the storage tanks. At the time Petitioners took possession, none of them intended to put the storage tanks back in service, and no Petitioner has ever used the tanks for any purpose. On May 21, 1984, the Department of Environmental Regulation's (DER's) Stationary Tanks Rules, Chapter 17-61 F.A.C. came into effect. None of the Petitioners' principals had actual knowledge of the substance or effective date of Chapter 17-61 F.A.C. until early 1989, shortly before they ordered the seven USTs removed from the subject property. At some time prior to March 8, 1989, Petitioners entered into negotiations with their tenant, Jack Bush, a used car dealer, to sell the subject property to Mr. Bush. During negotiations, Mr. Bush informed Petitioners that something would have to be done with the USTs on the property and made their removal by Petitioners a condition of sale. The Petitioners engaged Charles D. Chambers as an authorized agent of Petro Environmental Services, Inc. (Petro) to remove the storage tanks. Scott C. Miller understood that he had employed Mr. Chambers to do whatever was necessary to comply with DER regulations, but Petitioners' decision to remove the storage tanks was not based on any contact with DER or representations by any of its employees. Physical removal of the tanks was accomplished March 1, 1989. During the course of tank removal, Mr. Chambers discovered petroleum- contaminated soil on the site, which had not contained fuel for years preceding Petitioners' purchase, and Mr. Chambers notified DER on March 10, 1989 with a "Discharge Notification Form, 17-1.218(3)" (P-11). It is unlikely that the contaminated soil would have been discovered but for the removal of the USTs, but there is no evidence that removal of the tanks resulted in contamination of the soil or that they had leaked during any period of ownership by the Petitioners. The removal of the tanks was immediate and clearly within 90 days of discovery of the contamination, but not within 90 days of Petitioners' knowledge of existence of the tanks. See, 17-61.050(3)(c)1 F.A.C. Upon receipt of the "Discharge Notification Form," Tim Dohaney, an Environmental Specialist II with DER's Pollutant Storage Tank Program based in the DER Jacksonville District Office sent Scott Miller o/b/o Petitioners a Request notice (P-2) dated March 16, 1989 which requested, among other things, that Petitioners submit a registration form to indicate that the storage tanks had been removed. This notice specifically provided, in pertinent part, as follows: Upon reviewing the registration files for this facility it was determined that the facility has never been registered. Therefore, it is requested that you complete the enclosed tank registration form and tank installation form to show the removal of the tank systems. The completed forms should be returned to this office within ten (10) calendar days upon receipt of this notice. This request also listed several procedures necessary to bring the site into compliance. On June 26, 1989, Mr. Dohaney notified Petitioners of an inspection to be conducted on July 18, 1989. The letter - Notice of Inspection (P-3) requested, among other things, that an updated registration placard be available on the site. The specific language provided, in pertinent part, as follows: The Department is in receipt of a Discharge Notification Form completed on March 10, 1989 for the referenced facility. As required by Chapter 17-61, on the day of inspection, you should have available at the facility: 5) The updated registration placard. This letter also specified several other items that must be available during inspection to show that the site had been in compliance. On July 18, 1989, Dohaney, Scott Miller, and an attorney for Petitioners' predecessor in interest, Gulf/Chevron, met on the site. During the inspection, Dohaney informed the others that restoration coverage for the site might exist under FPLIRP, and Miller and the Gulf/Chevron attorney expressed interest in obtaining same. The conversation concerning FPLIRP was initiated by the attorney. At the time of the inspection, however, the USTs had still not been registered, although they had been physically removed from the site approximately three and a half months earlier by a method DER's tank expert and spokesman, Mr. Svec, acknowledged was permitted by DER's rules (TR-90-91). After the inspection, Mr. Dohaney completed and served on Petitioners a July 18, 1989 "Inspection Report Form" (P-4) which provided, in pertinent part, as follows: The tanks remained on-site, improperly abandoned until 3-89 when they were removed. Violations - as shown on page 1 & 23 1) tanks are not/were not registered; 3,4) updated registration form not submitted upon tank removal; 49, 50, 51) cleanup has not begun - owner will be applying for restoration coverage under HB430. Thereon, under the heading, "13. Tanks properly abandoned? 17- 61.050(3)(c)," Mr. Dohaney had checked the column for "yes," but added, "Tanks had been on- site, improperly abandoned since approx. 1984," and checked the "yes" column for "removed." The inspection form also noted or reiterated improper abandonment, contamination discovered at time of 3-89 abandonment, lack of registration, and that groundwater had been contaminated. By way of a July 19, 1989 letter (P-5), Mr. Dohaney again requested that the tanks be registered and directed Petitioners and the attorney for Gulf/Chevron to contact DER's Tallahassee Bureau of Waste Planning concerning the possibility of restoration coverage, using the following language: Mr. Robert W. Wells, Jr., Attorney for Chevron USA and you expressed an interest in applying for restoration coverage and subsequent State Cleanup for your site under the guidelines of House Bill 430. Therefore, it is requested that you contact the tank regulation section of the Bureau of Waste Planning (BWPR) in Tallahassee at (904) 488- 3935 for information regarding the program and an affidavit that must be completed by you and returned to the Department. The registration/notification form that was given you during the inspection should be completed and returned to this office within ten (10) calendar days upon receipt of this Notice (Emphasis supplied). On August 1, 1989, Mr. Chambers subsequently submitted to DER an executed updated "Storage Tank Notification Form 17-61.090(3)" (P-11). Receipt of this form was acknowledged by Mr. Dohaney as an "updated registration form" for removal of the USTs in a letter dated August 10, 1989 (P-6). In this letter, Mr. Dohaney further notified Petitioners via their attorney as follows: As of this date, this office has no further requests regarding this location. However, as discussed, the district office is awaiting a determination by DER-Tallahassee on this site's eligibility status regarding the restoration program of the FPLIRP program. If the site is denied eligibility, an assessment and cleanup will be required by the responsible party. All DER witnesses at formal hearing acknowledged that they regarded the August 1, 1989 "Storage Tank Notification Form 17-61.090(3)" (P-11) as Petitioners' "registration," albeit late registration in their eyes. Mr. Scott Miller properly interpreted his July 18, 1989 conversation with Mr. Dohaney and all of the foregoing notifications to mean that DER found Petitioners' tanks to have been "properly abandoned." However, despite all of the foregoing written notifications, Mr. Scott Miller also interpreted his July 18, 1989 conversation with Mr. Dohaney and Mr. Dohaney's August 10, 1989 letter (P-6) as DER's assurance that Petitioners' site would qualify for restoration funding, and in that state of mind, he directed Petitioners' attorney to submit an application to DER for FPLIRP restoration benefits. Petitioners' decision to apply for coverage, however, was also based upon conversations with the Gulf/Chevron's attorney, with Mr. Chambers, and with Petitioners' own attorney. Petitioners' application for restoration funding was dated August 11, 1989 (P-8). DER subsequently denied eligibility for the site on the basis that the tanks were not in compliance with Chapter 17-61 F.A.C. in that they had been improperly abandoned in accordance with Chapter 17-61 F.A.C. and had not been registered in accordance with Chapter 17-61 F.A.C. Thereafter, by a "Warning Notice" (P-1) from Mr. Dohaney on November 27, 1989, DER attempted to fine Petitioners for noncompliance with Chapter 17-61 F.A.C. and for leakage, but this "Warning Notice" was withdrawn pending outcome of the instant proceedings (P-9). In interpreting its own rules and mission, DER does not view the act of tank removal by itself as constituting compliance with Chapter 17-61 F.A.C. Its standing operating procedure, according to Mr. Svec, a DER expert and agency spokesman, is to regard Chapter 17-61 F.A.C. as applicable to sites such as Petitioners' site even after physical removal of USTs (TR 93). In assessing eligibility, DER reviews tank compliance "history," including whether the tanks were properly abandoned in accordance with the time frames established within the Chapter. For eligibility, agency personnel interpret the statute and rules to require that a tank must be in continuous compliance with the rules and to further require that an updated registration be submitted within 10 days of tank removal. The agency also views a failure in registration to be such a major violation of the registration requirement imposed by statute and rules that it cannot be waived by the agency pursuant to the latitude granted it by Section 376.3072(3)(b) F.S.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order approving Petitioners' application for Florida Pollution Liability Insurance and Restoration Program restoration coverage. DONE and ENTERED this 5th day of April, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-5251 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Accepted: 1-4, 5-9, 10-11, 15-16, 20-26, 28-40, 45-47, 50. Irrelevant: 12-13. Immaterial: 14 (except that effective date is accepted), 17. 18 is rejected because it is stated as a conclusion of law; however, the age of the petroleum discharge is discussed in the Recommended Order. 27 is rejected because it is stated as a conclusion of law and as legal argument. Rejected as legal argument and not dispositive of the issue of rule interpretation in de novo proceedings. However, for all the reasons enunciated in the Recommended Order, proper abandonment has been found and concluded both in fact and in law: 41-44, 51-52. Subordinate and unnecessary: 48-49. There is no 19. Respondent's PFOF: Accepted: 1-9, 11, 13-25, 27-35, 36-41, 43, 50, 57. Rejected because stated as legal argument or as a conclusion of law: , 10,12, 26, 49, 51-56, 58-64. In most instances they are also direct quotations of agency witnesses' testimony and cumulative. Although the agency's interpretation of statutes and rules are to be accorded much weight, they are not required to be found as facts where, as they are here, cumulative or unnecessary. Rejected as subordinate, unnecessary, or cumulative to the facts as found: 42, 44-48. COPIES FURNISHED: Sidney F. Ansbacher, Esquire Turner, Ford & Buckingham, P.A. 1904 Gulf Life Tower Jacksonville, Florida 32202 Gary Early Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
Findings Of Fact David D. Boak, Petitioner, owns a 3/4 acre lot at 9602 East Flora Street on which he proposes to put a two-bedroom house trailer. The area is rural in nature. There is no sewage service to the area and none is currently planned. Soil samples taken at the site show that from 9 inches to 48 inches below the surface the soil is a mixture of Manatee and Pompano fine sands which have poor percolation qualities. Soil Survey for Hillsborough County (Exhibit 1) describes the limitations of these soils for septic tank use as severe with wetness. Petitioner contends that he has lived on this property for 21 years and has had his septic tank pumped out once, 11 years ago; that he has never seen this property flooded; nor has he seen water standing on the property more than minutes following a heavy rain. Respondent's witnesses testified the water table at this site is 13 inches below the surface and septic tanks will not work properly in this area. When Petitioner's initial application for a permit was denied, he applied for a waiver. The application for waiver was presented to the review group pursuant to the provisions of Rule 10D-6.45(1), Florida Administrative Code, and the review group recommended the waiver be granted. However, the Staff Director, Health Program Office, denied the waiver and this appeal followed. The Hillsborough County Aviation Authority has condemned the land in this area, including that owned by Petitioner, for use as a county airport site. That condemnation proceeding is currently in litigation. If this property is ultimately taken for airport purposes, Petitioner will have no use for the variance here sought. Testimony was presented that the soil conditions plus the wetness factor make the site unsuitable for the installation of a septic tank. No evidence was presented regarding the pollution of surface waters by a septic tank in this area or whether public health will or will not be impaired if a septic tank is installed.
The Issue Is Petitioner entitled to attorney's fees and costs under Section 57.111, Florida Statutes, the Florida Equal Access To Justice Act?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Stipulated Facts: The action in this case was initiated by the Department, a state agency. The Department was not a nominal party. ASI has incurred attorney's fees and costs in amount of $13,178.00 in defending the administrative proceeding brought against it in Department of Health and Rehabilitative Services v. Alpha Septic Industries, Inc., Case No. 91-0044. There is no dispute as to the reasonableness of the attorney's fees and costs. The attorney's fees and costs are as follows: James F. McCollum 62.4 hrs at $150/hr= $ 9,360 Gary R. Gossett 22.7 hrs at $100/hr= $ 2,270 Para Legal 7.4 hrs at $ 40/hr= $ 296 Costs $ 1,252 Total $13,178 There are no special circumstances which would make an award of attorney's fees and costs unjust. ASI is a corporation organized under the laws of the State of Florida, whose principal office is in Sebring, Florida and at all times material to this proceeding had not more than 25 full-time employees or a net worth of not more than $2 million. ASI is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes. The appellant court in Alpha Septic Industries, Inc., v. Department of Health and Rehabilitative Services, Case No. 91-03249, 2nd District Court of Appeal, reversed the final order entered by the Department in Department of Health and Rehabilitative Services v. Alpha Septic Industries, Inc., Case No. 91-0044, against ASI. That order was not appealed by the Department. ASI is a "prevailing small business party" as that term is defined in Section 57.111(3)(c), Florida Statutes. The action was commenced by the filing of an Administrative Complaint against Mr. Paul Poore d/b/a Alpha Septic Industries, Inc. on April 4, 1990. By an agreement reached during a hearing before a circuit judge, the original Administrative Complaint was amended on November 15, 1990 to delete Mr. Paul Poore from the Administrative Complaint. Facts Not Stipulated: Both the initial Administrative Complaint and the Amended Administrative Complaint allege that ASI violated Section 381.031(1)(g) Florida Statutes, and Rule 10D-6.055(2)(b), Florida Administrative Code, in that a septic tank manufactured by ASI, and serving 3727 Thunderbird Hill Circle, Sebring, Florida, was measured by the Department and found to be below the minimum thickness required by Rule 10D-6.055(2)(b), Florida Administrative Code. The complaint further alleges that the Department's measurements had been taken in three different places and found to be 0.162", 0.147" and 0.157" which were below the 0.187" minimum thickness required by the rule. The initial Administrative Complaint was signed by Kevin Sherin, M. D., Director, HRS-Highlands County Public Health Unit, the governmental entity charged with the responsibility of enforcing the Florida septic tank regulations. Dr. Sherin has the authority to authorize the filing of an Administrative Complaint and the responsibility of assuring that the complaint is valid. When Dr. Sherin authorized and signed the initial Administrative Complaint he was aware of the following facts: A complaint had been filed by Curtis Haberline, President, Thunderbird Homeowner's Association, on September 12, 1989, alleging that a fiberglass septic tank installed at 3727 Thunderbird Hill Circle, Sebring, Florida had "caved inwards". The 1050 gallon fiberglass septic tank had been installed by Dan Young, licensed septic tank contractor. Young recalled that all of the fiberglass septic tanks installed in Thunderbird Hill Village I, where this particular septic tank was installed, had been purchased and picked up from ASI. During the installation of the septic tank, Edward Dixon, Inspector, HRS-Highlands County Public Health Unit was on the site and inspected the septic tank installed by Young. The installation was approved on May 24, 1984. The tank was not measured for wall thickness at the time of the installation. Dixon did not recollect noticing any readily visible thin spots in the tank when he inspected it during installation. In response to the complaint, Edward Dixon visited the site on September 14, 1990 and inspected the septic tank then in place and the area surrounding the septic tank. Dixon drilled and removed a plug approximately one inch in diameter from a randomly selected area (not in the "caved-in part) on top of the septic tank. After Dixon removed the plug, he measured the tank's wall thickness around the drilled plug site with a micrometer. The tank wall thickness around the drill plug site measured between 0.140" and 0.150". The plug was taken to James B. Fisher. Neither Edward Dixon nor James B. Fisher, who was an employee of HRS- Highlands County Public Health Unit and also inspected the septic tank after the complaint was filed, recollect seeing any information on the tank that identified the manufacturer or the date of manufacture. However, there was no reason to suspect that the tank had been replaced since the life expectancy of a fiberglass tank is much longer than six years. Fisher measured the plug at three different locations with a micrometer. Those three measured thicknesses of the plug were 0.147", 0.157" and 0.162". The micrometer used by Fisher had been checked for accuracy, and found to be accurate within 0.0002". Three sixteenths of an inch is equal to 0.1875". The "caved in" portion of the tank appeared to have resulted from being impacted by a heavy weight, i.e., heavy equipment. The tank was not cracked and it did not appear that the "caving-in" had resulted from the tank being below specifications on wall thickness. There was no evidence that heat, light or caustic chemicals had affected the condition of the tank, i.e. wall thickness. ASI was on the State of Florida list of approved septic tank manufacturers. On October 10, 1989, ASI was advised of the complaint and requested to correct the alleged deficiency. ASI declined to take any action.
The Issue Whether Petitioner should take disciplinary action against Respondents for the reasons alleged in the Administrative Complaint?
Findings Of Fact On behalf of his brother, Mr. Howell Parish, who lives in Orange Park, Florida, Mr. James A. Parish contracted with Respondents to restore efficient of operation the septic tank system at 5469 Soundside Drive in Santa Rosa County, premises owned by Howell Parish. Respondents agreed to make the restoration by providing a fiberglass approved tank with a fiberglass lid, install a new drain field and haul in dirt to build up a low area of the existing drain field. Respondents undertook repair activities but without a permit. Respondents did not obtain an inspection of their work after they had finished. On June 10, 1992, after the repairs were supposed to have been done, James Parish paid Respondent Harmon for the job with a personal check in the amount of $1,498.48. On the same date, Respondent Harmon signed a receipt for payment. The receipt shows as work performed, "Demucking and Installing one 1050 Gal Tank & 200 Sq.' Drain Field." Ms. Jo Ann Parish, spouse of Howell Parish, reimbursed James Parish for the work done on Soundside Drive. Shortly thereafter, the septic tank "caved in and the waste was boiling to the surface." (Tr. 16.) Howell Parish met with Larry W. Thomas, Environmental Health Supervisor for the Santa Rosa County Health Department, to discuss the situation. Following the meeting, Mr. Parish called Respondent Harmon and told that him that the problem needed to be straightened out and that he should contact Mr. Thomas promptly because his license could be in danger. Respondent promised to correct the problem and to reimburse Mr. Parish for the job but he did neither. He did not contact Mr. Thomas either. Mr. Thomas, on behalf of the County, investigated the site of the septic tank repair. He found that Respondents had installed a broken fiber glass tank when fiberglass tanks are not allowed at all in Santa Rosa County because of their structural inadequacy. In addition to the tank being cracked, it had a cracked lid. Another hole in the tank that should have been covered with a lid was covered with a piece of plywood. The plywood was kept in place by dirt fill. The drain field did not meet the minimum standards required by the County. Most significantly, it was installed beneath the water table. There was a laundry discharge pipe which was not connected to the tank as required. The site of the septic tank repair by Respondents was a sanitary nuisance. The broken condition of the tank allowed raw sewage to overflow. The drain field was emptying raw sewage directly into ground water. The laundry discharge was discharging into the ground rather than being hooked up to the septic tank. Mr. Parish was forced to hire another septic tank service to restore the system to good working order. The work, performed by Bettis Septic Tank Service, was billed to Mr. Parish at a cost of $6400.00.
Recommendation It is, accordingly, RECOMMENDED, that Respondents' certificates of registration be revoked and that the Department impose on Respondents a fine of $2000.00. DONE and ENTERED this 28th day of October, 1994 in Tallahassee, Florida. COPIES FURNISHED: Frank C. Bozeman, III Asst. District Legal Counsel D H R S 160 Governmental Center Pensacola, FL 32501 Kenneth P. Walsh Attorney at Law P. O. Box 1208 Shalimar, FL 32505-0420 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 DAVID M. MALONEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1994.
Findings Of Fact Respondent is a registered septic tank contractor. He is licensed locally to install septic tanks in Lee and Collier counties, where he has installed 250-450 septic tank systems in the past 15 years. He has been a septic-tank contractor for 25 years. He has a good record for performing septic-tank services. In November 1995, Respondent performed work for Charles Allen on Marco Island. The work consisted of drainfield repairs and a septic-tank pumpout. Respondent performed the drainfield repairs and pumped out the liquids from the tank, but failed to pump out the solids from the bottom of the tank. Unaware that the solids had not been removed, Mr. Allen paid Respondent the $1500 price on which they had agreed for all of the work. Three months later, Mr. Allen's septic tank backed up, dumping sewage in his home. This happened late at night, and Respondent was unable to come right over to repair the system. Mr. Allen thus contacted another contractor, who, for $205, pumped out at least eight inches of solids, which were causing the sewage to back up into the house. Since the repairs, Mr. Allen has had no other problems with his system. It is evident that Respondent failed to remove the solids in November, as three months are insufficient time for this kind of build-up and Mr. Allen's system has worked fine since the failure in February. In March 1996, Respondent performed repair work to a drainfield in Bonita Springs. Petitioner rejected the work for final approval on March 27, 1996. The grounds for rejection were that the drainfield was installed 4.8 inches too low, a large amount of the drainfield aggregate was sinking into the drainfield replacement material, and Respondent had added an extension onto the existing drainfield, rather than replace the entire drainfield, as the repair permit had required. Petitioner's inspector informed Respondent of the rejection on March On April 3, the inspector drove by the site and found that Respondent had covered the repaired system without having first called for a reinspection. Circumstances unknown to Respondent, the homeowner, and Petitioner at the time of initial permit rendered almost the entire plan for this repair job unfeasible. Among other factors was the fact that the drainfield was planned for a front yard, sandwiched between a driveway and a landscaped area. Also, Respondent discovered deficiencies in the original drainfield once he uncovered it. However, Respondent was not justified failing to call for a reinspection before covering the system. Respondent was irritated with Petitioner's representative for failing to come immediately to inspect the work, but this is no excuse for covering the repaired system with dirt prior to obtaining a reinspection. Shortly before the final hearing, Respondent dug up the system, installed an entirely new drainfield, and completed the repairs in a satisfactory fashion.
Recommendation It is RECOMMENDED that the Department of Health and Rehabilitative Service enter a final order imposing an administrative fine of $1000 against Respondent for a false payment statement and failure to call for reinspection prior to covering a system. ENTERED on October 10, 1996, in Tallahassee, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on October 10, 1996. COPIES FURNISHED: Susan Mastin Scott Senior Attorney Department of Health and Rehabilitative Services Post Office Box 60085 Fort Myers, Florida 33906 Attorney Michael F. Kayusa Post Office Box 6096 Fort Myers, Florida 33911 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building 2, Room 204X Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner Robert R. Waszak, a resident of Broward County, Florida, purchased Lot 258-A, a 1.25-acre lot in an unrecorded subdivision, Pinetree Estates Subdivision, in Parkland, Broward County, Florida. He cleared the property of a major portion of the sawgrass, pine trees, willows and other types of vegetation and placed thereon fill consisting of sand, rock, shell and other porous material. He obtained a test boring report from Nutting Engineers of Florida, Inc. (Petitioner's Exhibit 2). On December 16, 1980 he filed an application for a septic tank permit on a form provided by the Broward County Health Department together with residential plans and a survey of the property, which application was subsequently denied on January 15, 1981 by the environmental engineering section of the health department. Respondent made an on-site inspection of the Petitioner's lot on December 18, 1980 and at least one other inspection subsequent thereto. A report was filed as part of the notification of denial (Respondent's Exhibit 1). The uncompacted fill placed on the subject property by Petitioner created a mound considerably less than six (6) feet in depth on the obviously low, swampy property. Under the fill and the layer of top soil on the lot there is a layer of cap rock overlying the property. The largely impervious cap rock is visible in areas where the fill does not cover it (Respondent's Exhibit 1). Samples of the fill material and also of the cap rock were examined at the hearing by the Hearing Officer. The fill placed on the property has many rock fragments and rock fines in it which, according to the uncontroverted testimony of the Respondent's witness, are subject to chemical reaction which "cements up" a drainfield area when it comes in contact with septic tank effluent. This "cementing" would take from one to two (2) years after installation on the subject property. There was no evidence presented as to the depth of the water table at the wettest season. Petitioner did not dispute the testimony and evidence presented by the Respondent but was interested in further improvement so that he could use his property as a residential site. He noted that a new subdivision was being built near his property. Respondent pointed out that said subdivision had a central disposal system planned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the application of Petitioner Robert R. Waszak for a septic tank permit be denied. DONE and ORDERED this 29th day of June, 1981, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1981. COPIES FURNISHED: Mr. Robert R. Waszak 60 NW 56th Court Fort Lauderdale, Florida 33302 Alan W. Ludwig, Esquire Broward County Health Department 2421 SW Sixth Avenue Post Office Box 14608 Fort Lauderdale, Florida 33302 Alvin J. Taylor, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Petitioner owns and operates a gasoline station located at 4625 U.S. 27 North, Davenport, Florida. The site was constructed in late 1986 and opened in early 1987. The underground tanks storing the gasoline are connected by pipes running underground to the pumps from which the gasoline is dispensed. A small portion of the underground supply pipe is accessible from the surface through a manhole. The excavated area exposing the pipe and what appears to be a valve are separated from the surrounding soil by a large, cylindrical corrugated pipe laid perpendicular to and above the underground supply pump. The leak in question was caused when the lower edge of the corrugated pipe cut into the underground supply pipe for the premium gasoline. The cut was caused by the cumulative effect of vehicular traffic driving over the manhole cover, placing pressure on the corrugated pipe, and eventually forcing the edge of the corrugated pipe to rupture the underground supply pipe with which it was in contact. Petitioner owns and operates a large number of gasoline stations. This incident is the first time that a corrugated pipe has cut into an underground supply pipe. The use of the corrugated pipe is not at issue in the present case. Pursuant to company policy, station employees complete a daily recap each day and forward the recap document to Petitioner. Part of the recap document is devoted to "gas inventory." The daily recap, which covers the preceding 24 hours, requires that an employee determine the amount of gasoline in each underground storage tank, adjust the figure for amounts sold and delivered, and then compare the figure to the amount determined to have been in the tank 24 hours earlier. This reconciliation is normally completed by mid- to late-morning each day. A station employee "sticks" each tank to determine how much gasoline it contains. The procedure requires that the employee insert a pole into the bottom of an underground tank. By observing the length of the pole dampened by gasoline, the employee can calculate approximately the amount of gasoline in the tank. Although stick reading results in an approximation, the results are fairly accurate, leaving at most, in the case of this 12,000-gallon tank, a margin of error of 50 gallons. "Sticking" normally takes place daily between 6:30 a.m. and 7:00 a.m. On the morning of March 6, 1988, which was a Sunday, the employee sticking the tank calculated that the premium tank held 5419 gallons. There had been no deliveries during the preceding 24 hours. During the same period, the station had sold 914 gallons of premium gasoline. However, the last sticking 24 hours earlier had disclosed 7989 gallons. A total of 1656 gallons were thus unaccounted for. The recap document requires that the station notify Respondent's "Dist. Mgr. immediately if shortage of 500 gallons or more appears." The employee failed to do so. On the morning of March 7, 1988, the employee sticking the premium tank calculated that it held 2147 gallons. During the preceding 24 hours, there had been no deliveries and 826 gallons of premium gasoline had been sold. Consequently, 2446 gallons were missing, for a total of 4102 gallons over the past two stickings. As soon as the reconciliation was completed, the employee contacted Respondent's management, which ordered that the pump be shut down during the afternoon of March 7, 1988. Comparing the sales of premium gasoline for the 24- hour period ending March 8 with those ending March 7, which are comparable because the sale of regular gasoline on those two days is almost identical, the station sold about 39% of a normal day's sales of premium gasoline. Reflecting the shutdown of the premium pumps on March 7, the employee sticking the tank on the morning of March 8, 1988, found 593 gallons. During the preceding 24 hours, there had been no deliveries and sales of 321 gallons of premium had been sold, leaving 1233 gallons unaccounted for. The total over the three stickings was 5335 gallons lost. The station had previously not experienced losses even approaching this magnitude. The daily recap for the 24-hour period ending on March 5, 1988, showed no significant loss. Although fluctuations in volume may occur shortly after deliveries due to temperature differentials, such fluctuations could not reasonably have accounted for these vast discrepancies. Theft, measurement errors, and recording errors may also account for variations in readings, but not of the magnitude and repetition involved in this case. Between the time of the reconciliation on the morning of March 6 and the system shutdown on the afternoon of March 7, the system continued operating and, thus, leaking for 28-30 hours. Given that 2446 gallons were lost during the 24-hour period ending on March 7 and 1233 gallons lost during about 9 hours on March 8, at least 100 gallons per hour were escaping from the pipe during these last 28-30 hours, for a total of between 2800 and 3000 gallons. For reasons discussed in the Conclusions of Law, the actions and omissions of the station employees following the reconciliation of inventory figures on March 6 constituted gross negligence in the maintenance of a petroleum storage system. These actions and omissions were in the scope of employment. During the relevant period of time, none of Respondent's employees performed monthly checks of the monitoring wells to determine the presence of leaks. This failure was due to ignorance and was not wilful. This failure in no way contributed to the leak or to any delay in discovering the leak. During the relevant period of time, the monitoring wells had not been properly grouted to prevent introduction of surficial contamination. However, this failure was unknown to Petitioner, which had hired a contractor to construct the wells and reasonably had relied on the contractor to grout properly the monitoring wells. The improper grouting in no way contributed to the leak or to any delay in discovering the leak. During the relevant period of time, Petitioner was not performing weekly or five-day averages of inventory records concerning gasoline. The failure to perform these reconciliations in no way contributed to the leak or to any delay in discovering the leak. Following the discovery of the leak, Petitioner notified Respondent on March 8. Petitioner requested approval to participate in the Early Detection Incentive Program by filing a Notification Application dated March 29, 1988. On July 14, 1988, Respondent completed the Pollutant Storage Tank System Inspection Report Form and Early Detection Incentive Program Compliance Verification Checklist. These documents indicate that Respondent was not monitoring monthly its monitoring wells, failed to grout properly its monitoring wells, was not performing the weekly or five-day averages of inventory (although it was taking daily inventory and reconciling opening and closing inventories), and did not immediately investigate the 1600-gallon shortage disclosed on the morning of March 6, 1988. By letter dated September 30, 1988, Respondent notified Petitioner that its site was ineligible for state-administered cleanup under the Early Detection Incentive Program. The letter cited as reasons the wilful failure to perform monthly checks of the monitoring well, the failure to immediately investigate discrepancies in inventory records while the system continued to operate after initial discovery of the 1600-gallon loss, and the improper construction of the monitoring well with respect to the improper grouting. The letter concludes that these items constitute gross negligence in the maintenance of a petroleum storage system, which precludes participation in the program.
Recommendation Based on the foregoing, it is hereby recommended that the Department of Environmental Regulation enter a Final Order denying the application of Petitioner to participate in the Early Detection Incentive Program. RECOMMENDED this 26th day of March, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1561 Treatment Accorded Proposed Findings of Petitioner 1-4: adopted. 5-6: adopted in substance. 7-16: adopted. 17: rejected as unsupported by the greater weight of the evidence. 18-20: adopted or adopted in substance. 21: to the extent that this proposed finding suggests that Petitioner was performing the five-day or weekly averaging, rejected as unsupported by the greater weight of the evidence. However, in view of the findings and conclusions contained in the Recommended Order, rejected as unnecessary. 22-26: adopted. Treatment Accorded Proposed Findings of Respondent 1-4: rejected as conclusions of law. 5-6: adopted. 7-16: rejected as subordinate. 17: rejected as an inference unsupported by the greater weight of the evidence. 18-26: adopted. 27: rejected as irrelevant. 28-29 and 31: rejected as legal argument. 30: adopted. 32: adopted. 33: adopted except that the system was shut down at some point into the day of the second sticking showing a significant shortage. 34-38: adopted or adopted in substance. 39: rejected as speculation. 40: rejected as irrelevant. 41-42: adopted. 43: rejected as irrelevant. 44-45: rejected as subordinate. 46: adopted. 47-49: rejected as subordinate. 50: adopted. 51-53: rejected as vague with respect to reference to "Racetrac." 54: adopted. 55: rejected as cumulative. 56-57: rejected as unnecessary. COPIES FURNISHED: Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Steven M. Mills Decker & Hallman Suite 1200 Marquis II Tower 285 Peachtree Center Avenue Atlanta, GA 30303 Michael P. Donaldson Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Whether a septic tank construction permit should be issued by the Respondent, Department of Health and Rehabilitative Services, for use by the Respondent, Alex Rutkowski, owner of Lot number 6, Block E, Carlton Terrace Subdivision First Addition, in Clearwater, Florida. Whether the filling in of Lot number 6 and the construction of a septic tank will damage the residence of the Petitioner, Elinor Burger, on Lot number 5.
Findings Of Fact The Respondent, Alex Rutkowski, and his wife own Lot number 6, Block E, Carlton Terrace Subdivision, First Addition, in Clearwater, Florida in which the sixteen (16) lots are approximately 70 feet wide and 105 to 150 feet deep. The soil in the area is Mayakka Fine Sand, a poorly drained soil which has a water table normally at a depth of ten (10) to thirty (30) inches below ground surface, but which rises to the surface for a short time during wet periods. After respondent Rutkowski's initial application for a permit to install a septic tank on Lot number 6 had been denied, he employed an engineer and filed a plan for proposed site modification. The plan was received by the Respondent, Department of Health and Rehabilitative Services, and Rutkowski was notified on December 6, 1979, that the plan to remove the existing land fill, replace it with Astatula Fine Sand and raise the building pad appeared to be acceptable for the issuance of a septic tank construction permit, but that no further action on the application for the permit could be taken until after an administrative ruling on a protest by a neighboring property owner (Respondent' Exhibits 1, 4 and 5). The Pinellas County Engineering Department had approved the drainage for the area on October 9, 1979 (Respondent's Exhibit 2). The Petitioner, Elinor Burger, has lived on Lot number 5, which adjoins Lot number 6, since 1957. When there is a heavy rain of three (3) to four (4) inches, her septic tank fails to operate, and water stands in her back yard. She has seen and smelled polluted water standing in the street in front of her home. Water also stands on a second lot she owns adjoining her residence after a heavy rain preventing the mowing of the lot for long periods of time. Ms. Burger has unsuccessfully sought to connect to a sewer system by petitions for sewer connection on at least- three (3) occasions and has laid additional drainage lines to help solve her problem. In the spring, summer and fall of 1979, she had severe water problems. Ms. Burger believes the elevation of Lot number 6 would cause further water damage to her property, and that a septic tank on Lot number 6 would add more sewage problems to the area A witness for Petitioner, Alan Flandreau, who lives with his wife and three (3) children on lot number 13 adjoining Lot number 5 in the subdivision, has a septic tank that fills up in rainy weather and runs into the street, resulting in a stench and green slime. Flandreau has had his septic tank pumped out a number of times since 1968, when he bought his home. His lot is low, and water drains onto his property from other lots. A witness for Petitioner, Burl Crowe, owns Lot number 11 and lives on Lot number 12. Lot number 11 adjoins Lot number 6, and Lot number 12 borders on the property of Petitioner Burger. Crowe has lived on Lot number 12 for fourteen (14) years and on many occasions had water entering his garage and standing in his yard when it rains. He has seen Lot number 6 under water and water standing on the street in front of his house, A witness for the Respondents was Gerald Goulish, the professional engineer who prepared the site modification plan (Respondent's Exhibits 4 and 8). Goulish has studied the site together with Rule 10D-6 of the Florida Administrative Code (infra) and believes the plan to fill the location of the septic tank site will cause the soil to percolate and evaporate and the proposed elevation of Lot number 6 two (2) feet will cause the water to drain toward the street and not onto adjoining property. He suggested that the adjoining and adjacent property owners cooperate and construct common swales to eliminate the surface water problems. A second witness for the Respondents was Burt Fraser, a sanitary supervisor for the Pinellas County Health Department, who denied the first application for installation of a septic tank on Lot number 6 but notified Respondent Rutkowski that the lot could be modified. Thereafter, he wrote Rutkowski that a modification plan had been received which meets the minimum requirements of the Florida Administrative Code. Fraser stated that he will issue a permit for construction of a septic tank upon completion of the administrative hearing procedure unless directed not to issue such a permit. Fraser agreed that the conditions as described by Petitioner Burger and her witnesses are accurate, and that the subdivision has problems which will not be solved until sanitary sewers are installed, but he believes that he has no alternative except to issue a permit if an applicant meets the requirements of Rule 10D-6.25 Florida Administrative Code. He knows of no requirement to make a study of adjacent and adjoining properties, and Respondent Department has not made a study. There are seven (7) houses in the sixteen (16) lot subdivision. The area is low and subject to flooding because of soil texture. There is an undisputed drainage problem in the area which causes a septic tank problem to the residents. The addition of more houses and septic tanks will increase the already serious drainage conditions which are public health nuisances. The Respondent, Department of Health and Rehabilitative Services, submitted proposed findings of fact, memorandum of law and a proposed recommended order. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that Respondent Rutkowski's application for a permit for the construction of a septic tank on Lot number 6 be denied without prejudice to the Respondent to reapply if there should be a change in circumstances. DONE and ORDERED this 10th day of April 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED Barbara Dell McPherson, Esquire Department of HRS Post Office Box 5046 Clearwater, Florida 33518 William W. Gilkey, Esquire Richards Building 1253 Park Street Clearwater, Florida 33516 Mr. Alex Rutkowski 30 North Evergreen Clearwater, Florida
