The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact The Department of Agriculture and Consumer Services (Petitioner) is charged with the administration and enforcement of Chapter 500, Florida Statutes, together with the rules promulgated thereunder, relating to food and water sanitation within the State of Florida. Wima Corporation (Respondent) is a water vending machine operator and is located at 4252 Northwest 55th Street, Coconut Creek, Florida. The president of Respondent is Donald Epstein. Respondent has been in the water vending business since 1980 and has never received any notification that its water has caused anyone to become ill. Respondent is the owner and operator of a water vending machine, Identification Tag No. 5890 (Machine ID Tag No. 5890), located at Lyons Amoco, Lyons Road and Glades Road, Boca Raton, Florida. Machine ID Tag No. 5890 dispenses drinking water, potable water that originates from an approved municipal provider and is processed by reverse osmosis. The drinking water is sold to the general public. Approximately 20 to 50 vends per day are dispensed from Machine ID Tag No. 5890 to the general public who provide their own container for collecting the water. A vend is one gallon of water. On March 3, 1997, one of Petitioner's sanitation and safety inspectors (inspector) collected a vended water sample from Machine ID Tag No. 5890. The inspector collected the first "slug" of water from the spout of Machine ID Tag No. 5890 the same as a paying public consumer. The first "slug" of water is the first water that the first paying public consumer would receive from Machine ID Tag No. 5890. Petitioner's inspector collected 100 ml of water in a sanitary container, sealed the container, and immediately packed the container in ice in order to refrigerate the water sample. The water sample remained in the custody and control of Petitioner's inspector until it was shipped, packed in ice, to Tallahassee, Florida, via Greyhound Bus, for analysis by Petitioner's food laboratory. The shipping process was in accordance with protocol established by Petitioner. On March 4, 1997, the water sample was received by the Petitioner's food laboratory for analysis. The sample remained in the custody and control of the laboratory staff. The analysis of the water sample was initiated within 30 hours of collection. Upon analysis, the water sample was found to contain 21 coliforms per 100 ml. Florida's safe water standards require a total absence (zero) coliforms. The water sample was contaminated with coliforms and was not appropriate for human consumption. The analysis was performed in accordance with the protocol established by Petitioner. By certified letter, return receipt, dated March 17, 1997, Respondent was notified, among other things; that the water sample was adulterated; that ID Tag No. 5890 was required to be cleaned and sanitized; and that another sample was required to be taken. After the analysis of the water sample showed adulteration, Respondent's president contacted an independent laboratory, Spectrum Laboratories, Inc., (Spectrum), approved by Petitioner, and requested that an analysis of the dispensed water by Machine ID Tag No. 5890. Spectrum forwarded the necessary items to Respondent's president in order for him to obtain a water sample and informed him of the procedure and process in obtaining the sample. On March 19, 1997, Respondent's president obtained the water sample in accordance with Spectrum's instructions and forwarded the sample to Spectrum. On March 20, 1997, Spectrum performed an analysis of the water sample and found no coliforms. On or about March 24, 1997, Respondent's president forwarded the results of Spectrum's analysis to Petitioner. On March 25, 1997, a second vended water sample was taken by Petitioner's same inspector from Machine ID Tag No. 5890, using the same procedure and process as before. Also, the water sample was shipped for analysis to Petitioner's food laboratory in Tallahassee using the same procedure and process. The collection and shipping procedure and process were again in accordance with protocol established by Petitioner. On March 26, 1997, the second water sample was received by the Petitioner's food laboratory for analysis. Upon analysis, the second water sample was found to contain 18 coliforms per 100 ml. The water sample was contaminated with coliforms and was not appropriate for human consumption. The analysis was again performed in accordance with the protocol established by Petitioner. By certified letter, return receipt, dated April 10, 1997, Respondent was notified, among other things, that the second water sample was adulterated; that Machine ID Tag No. 5890 would be taken out of service until the source of the contamination was found; and that Machine ID Tag No. 5890 would be immediately placed under a "Stop Use" order. By Stop Use Order dated April 11, 1997, Respondent was notified, among other things, that Machine ID Tag No. 5890 could not be used. Respondent was further notified that Machine ID Tag No. 5890 could resume being used after a showing of no contamination from a water sample taken by Petitioner's inspector and analyzed by Petitioner's food laboratory. Respondent cooperated fully with Petitioner in correcting the problem. Respondent complied with all of Petitioner's requests. On April 16, 1997, a third vended water sample was collected by Petitioner's inspector from Machine ID Tag No. 5890. The same collection procedure and process were followed as in the previous two collections. The same procedure and process were followed in forwarding the water sample to Petitioner's food laboratory as in the previous two collections. All procedures and processes were in accordance with protocol established by Petitioner. On April 17, 1997, Petitioner's food laboratory performed an analysis of the third water sample. The analysis was performed in accordance with the protocol established by Petitioner. Petitioner's laboratory found no coliforms. The water sample was not contaminated and was appropriate for human consumption. Respondent was notified of the results of Petitioner's third analysis. Petitioner permitted the use of Machine ID Tag No. 5890 to resume.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order: Finding that the Wima Corporation violated Subsections 500.459(4)(f), and 500.04(1), Florida Statutes (1995), and Rule 5K-9.005, Florida Administrative Code. Imposing a $500 administrative fine against Wima Corporation. DONE AND ENTERED this 7th day of April, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 7th day of April, 1998.
The Issue Whether Respondent's permit for disposal of septic tank sludge should be revoked, as set forth in letter of the Volusia County Health Department, dated February 15, 1979. This case was originally set for hearing on June 21, 1979, pursuant to Notice of Hearing, dated March 30, 1979. On June 20, Respondent Philip G. Koan orally advised the Hearing Officer that he wished to withdraw his request for hearing. He was advised by the Hearing Officer to submit a written withdrawal of the petition and that the scheduled hearing would be cancelled pending receipt. On June 21, Respondent orally advised the Hearing Officer that he had changed his mind after reflection and now desired that the hearing be rescheduled. Since no written withdrawal of the petition or voluntary dismissal had been filed, the case was renoticed for hearing to be held on September 10, 1979. At the commencement of the hearing on that date, Petitioner moved to dismiss the case for lack of jurisdiction claiming that the petition had been dismissed by Respondent by his oral communication to the Hearing Officer on June The motion was denied because the proceeding had never been formally terminated by action of the Respondent or the Hearing Officer.
Findings Of Fact On October 5, 1978, Respondent Koan Septic Tank, Inc., Deland, Florida, submitted an application to the Volusia County Health Department for a permit to operate a septic tank cleaning service and temporary privy service. The application reflected the equipment which the applicant intended to use for the operation. Petitioner's application form contained a block entitled "Method and Place of Disposal." The applicant inserted the words "Smith Farm and Greens Dairy Grove" on the form. On November 7, 1978, Larry Herman, a sanitation aide for the County Health Department, performed an inspection of Respondent's facilities and equipment, and prepared a report on a mimeographed form headed "Septic Tanks and Privy Pump Truck Inspection." This form had a block entitled "Method and Place of Disposal." The inspector entered the words "Smith Farm - Greens Diary (sic), dumped & tilled." Although Herman testified that he had made no special inquiry at the time of his inspection as to the intended method of sludge disposal, he was aware that Respondent's customary method at its Smith Farm location was to "bury" the sludge into the ground by spreading and mechanical tilling. However, he recalled having conversations with Respondent's owner, Philip G. Koan, concerning disposal of sludge by the action of worms, prior to and after his inspection. On the other hand, both Koan and another officer of the corporation testified that Koan advised Herman at the time of the latter's inspection that the worm method of disposal would be used at the Greens Dairy location and that he expressed no objections. It is found that Herman was advised of Respondent's proposed method of disposal at the time of the inspection; however, he was not authorized to approve or issue permits. (Testimony of Herman, Gnann, Koan, Page, Petitioner's Exhibits 1-2) On November 7, 1978, the Volusia County Health Department issued a permit authorizing Respondent to operate its establishment. The permit reflected an expiration date of September 30, 1979, and provided that violation of any applicable health law would revoke the permit. No conditions were attached to the permit, nor did it indicate any required method of sludge disposal. (Testimony of Page, Petitioner's Exhibit 3) Respondent has been in the business of manufacturing, installing and servicing septic tanks for approximately eighteen years. In addition, Koan conducted a business involving the sale of worms. In the fall of 1978, he had approximately 12,000 pounds worms on hand. He had conducted various experiments at his business premises utilizing worms to dispose of manure and septic tank sludge. He found that the worms would eat the sludge material and excrete the same, resulting in worm "castings" or material which resembles potting soil with no residual odor. He had also placed worms in clogged septic tank drain fields and found that they later became unclogged, thus resulting in his conclusion that worms had disposed of the septic tank material in the tank. He further discovered that odors associated with septic tank sludge dissipated in a very short time when worms were present in the material, and observed that one pound of worms would "digest" or dispose of one pound of sludge in approximately twenty-four hours. Therefore, prior to receiving the county permit, he deposited the 12,000 pounds of worms in a trench located at the Greens Dairy location. After receiving the permit, Respondent dumped septic tank sludge in the trench approximately three times a week. The trench was about four feet wide, one foot deep, and 200 feet long. A screen was placed over the top of the ditch. However, it did not prevent access to files. (Testimony of Koan, Warnock, Petitioner's Exhibits 8-9) On December 12, 978, the owner of a skating rink adjacent to Respondent's Green Dairy property complained to the County Health Department concerning the presence of odors and flies at her establishment which had been the subject of customer complaints. A county sanitarian inspected the sludge operation on that date and found that there was some odor and a few flies in the immediate vicinity, but no fly larvae was observed. The ditch was full of sludge at the time. Some spillage has occurred in the driveway on the property. The location is approximately two to three hundred feet from the rear of the skating rink. A further inspection by the county Director of the Environmental Health Section was made on December 27. As a result, he wrote Respondent on December 28 that, although the inspection showed that flies and odors were minimal at the time, he could foresee an escalation of the same during certain periods, together with increased complaints from local businessmen. The letter further stated that the use of septic tank sludge for enriching a "worm bed" was in violation of Chapter 10D6.29, Florida Administrative Code, and Chapter 386 Florida Statutes, and was a sanitary nuisance which must be abated. A further complaint in January, 1979, followed by another county inspection revealed essentially the same conditions that existed at the time of the prior inspection, and prompted a second letter from the Environmental Health Section director to Respondent on January 31, 1979, wherein he was advised to cease dumping septic tank sludge at the Greens Dairy location within fourteen days and commence using the county sanitary landfill for such purposes. As a result of this letter, Respondent stopped dumping at the location on or about February 2. On February 15, another county letter was sent to Respondent which advised that its permit for disposal of septic tank sludge was revoked, subject to a request for hearing, as being in violation of Chapter 10D6.29(1) and (3)(c), Florida Administrative Code, and Chapter 386.041(1)(e), Florida Statutes. The stated grounds for proposed revocation were that Respondent was employing an unsatisfactory and unacceptable method and place for disposal of waste, and was maintaining a condition capable of breeding flies, mosquitoes and other insects capable of transmitting diseases. The letter further stated that Respondent was not tilling the sludge as had been stated on the permit application and that the potential for breeding flies was evident due to concentration and lack of covering with soil. (Testimony of Tyndall, Van Ulzer, Page, Camp, Koan, Petitioner's Exhibits 4-7) During the approximate three-month period from November 1978 through January 1979 when Respondent was dumping sludge, a strong and distinctive odor and an unusually large number of flies were experienced on the skating rink premises nearby. After the dumping stopped in early February, both problems disappeared. However, other odors incident to the presence of hogs and chickens at farms in the area also produced a noxious odor in and around the skating rink. The odor produced by the dumping of sludge dissipates rapidly after dumping. The absence of fly larvae in and around the ditch shows that flies were not breeding there during the period of dumping operations, but does not rule out the potential for such breeding in the future. (Testimony of Munshower, Tyndall, Coffin, Branton, Tontone, Warnock, Hunt, Stipulation) The Volusia County Health Department issues permits involving the disposal of sludge only when a treatment method of burial, incineration, or sanitary landfill is used in the operation, as prescribed by Respondent's Rule 10D-6.29, Florida Administrative Code. However, long-standing policy permits disposal by mechanical tilling of the sludge into soil as a "modified" method of burial. This method cuts the sludge with a disc and harrow and mixes it into the soil to a depth of approximately four inches. It also produces a temporary odor when the sludge is first spread on the soil. The county has no policies concerning the use of worms to dispose of sludge and does not consider it to be an acceptable method of disposal. The County Health Department has not conducted any scientific tests to determine the presence of pathogens in soil which has been mechanically tilled with sludge. (Testimony of Page) When sludge is placed over a "worm bed" and has settled, the material begins moving as the worms eat the sludge. The residue of the digestive process is sold as a soil conditioner which meets State Department of Agriculture requirements and which contains plant nutrients. Earth worms multiply rapidly when feeding on sludge. Respondent had approximately 50,000 pounds of worms in its trench when it ceased operations in February 1979. This method of sludge disposal has not been accepted generally by health authorities as a recognized and acceptable procedure. (Testimony of Koan, Warnock, Hunt, Tontone, Nemeyer, supplemented by Respondent's Exhibit 1)
Recommendation That Respondent's Permit No. 18362 be permitted to remain in effect until its expiration date provided that it disposes of sludge and/or contents from septic tanks in an acceptable method, as provided in Rule 10D-6.29, F.A.C. DONE AND ENTERED this 26th day of September, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 904/488-9675 COPIES FURNISHED: Robert Eisenberg, Esquire Department of HRS District IV Counsel 5920 Arlington Expressway Post Office Box 2050 Jacksonville, Florida Craig James, Esquire Post Office Drawer DD Deland, Florida 32720 Department of HRS Attn: Eric J. Haugdahl 1317 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether the costs incurred by the Florida Department of Environmental Protection for the removal and disposal of certain hazardous substances may be recovered from Respondent pursuant to Chapters 376 and 403, Florida Statutes.
Findings Of Fact The Department is the administrative agency of the State of Florida charged with the responsibility of administering and enforcing the provisions of Chapters 376 and 403, Florida Statutes. Ver-Mar is a company incorporated under the laws of the State of Florida. Since 1966, Ver-Mar has engaged in several different businesses, including the following: plating, boat building, and electro-plating. At all times material hereto, the activities of Ver-Mar were directed by Humberto Garcia. Mr. Garcia's father and uncle are partners in the business although both have retired and are not actively involved in the day-to-day operations of Ver-Mar. At all times material hereto, Ver-Mar's address was 5005 North Lois Avenue, Tampa, Florida (Lois Avenue property). Mr. Garcia's family purchased the Lois Avenue property in 1966, and has owned the property since that time. When the Garcia's purchased the Lois Avenue property in 1966, there was an existing plating business on the site. Mr. Garcia and/or his family continued to operate the plating business until the late 70's. After the Garcia's closed the plating business, all of the plating equipment and solutions were sold and removed from the Lois Avenue property. In late 70's Ver-Mar's focus shifted from plating to building boats. Ver-Mar was actively involved in building commercial boats from the late 70's to 1991. In 1986 or 1987, while still engaged in boat building, Ver-Mar decided to also engage in electro-polishing. To accomplish this, Ver-Mar had electro-polishing tanks installed on the Lois Avenue property. Ver-Mar engaged in electro-polishing of certain fabricated equipment, namely rudders and struts, to put on the boats built by Ver-Mar. Electro-polishing is a process that involves the removal of ferrous metal from the surface of the stainless steel. In 1991, Ver-Mar ceased to operate its boat building and electro-polishing businesses. At about this time, Humberto Garcia became involved in another company that he owned, "Fresh Off the Boat," a seafood company that received seafood from St. Vincent, West Indies and Venezuela. As a result of Mr. Garcia's involvement and responsibilities related to this company, Mr. Garcia was not in the United States most of the time between 1991 and 1996. During the time Mr. Garcia was out of the country, the facilities and some of the equipment for building boats and electro-polishing remained on the Lois Avenue property, but no boats were being built on that property. On November 24, 1996, shortly after midnight, the Department was notified by the Hillsborough County Sheriff's Office that eight drums had been discovered abandoned in Shimberg Park (the park) in Tampa, Florida. The park is located near a residential neighborhood and school. At about 8:30 a.m. on November 24, 1996, Jeff Tobergte, of the Department's Bureau of Emergency Response, responded to the call. When he arrived at the park, Mr. Tobergte observed eight 55-gallon drums on the ground in a wooded area of the park. The drums were in fair to poor condition and approximately 10-15 gallons of oil, sludge, and oily soil from two of the drums had leaked on the ground. Mr. Tobergte immediately called Laidlaw Environmental Services (Laidlaw), the Department's emergency response contractor in the Tampa region, to properly dispose of the drums and their contents. When Laidlaw personnel arrived at the park later that day, they stabilized the drums to prevent further leakage. After stabilizing the drums, the drums were numbered one through eight for the purpose of identification and samples were collected from the drums for analysis. Laidlaw also excavated soil contaminated by the two leaking drums and placed the soil in two additional drums. Laidlaw personnel then overpacked the drums, removed them from the park, and took them to Transfer Service and Disposal Facility (TSDF), an off-site hazardous waste storage facility, for further analysis of the samples. Based on initial observations, it was determined that Drum No. 1 contained waste oil, water and oily sludge; Drum No. 2 contained waste oil and water; Drum No. 3 contained oil, water and sludge; Drum No. 4 contained a bright green acidic liquid, oil, and tannish colored sludge; Drum No. 5 contained a dull green acidic liquid and sludge; Drum No. 6 contained waste oil, water and sludge; and Drum Nos. 7 and 8 contained oily soil, sludge and oily leaves. Drum No. 1 contained the marking for Reichold, but there was no obvious lot number marked on the drum. Drum No. 2 was marked "Reichold" with "Lot No. 91-045-1036." Drum No. 3 contained the marking, "PolyGard, Inc., 5010 Coolidge Avenue, Tampa, Florida," and "#G1000 CCE Product and Lot # 91-023-0205," and had a label marked, "flammable liquid." Drum Nos. 4 and 5 were marked with the name "Vigo." Drum No. 6, a blue poly drum, was marked "DOT 34-55." Drum Nos. 7 and 8 were red poly drums marked "Greek Golden Peppers in Brine." The laboratory analysis concluded that Drum Nos. 1, 2, and 3 had flash points of less than 140 decrees Fahrenheit. Drum Nos. 4 and 5 had a pH of 1.4 and 1.9, respectively. Also, the sulfate levels in Drum Nos. 4 and 5 indicated the presence of sulfuric acid. Chlorides were detected, but it was not known if they were from salt originally in food products. The waste codes D007 (chromium) and D008 (lead) were added to Drums Nos. 4 an 5 based on the total levels found in the samples. At the storage facility, personnel placed Drum No. 5 in a stainless steel salvage drum. At some point after November 24, 1996, and while Drum No. 5 was still at TSDF, the green acid mixture in Drum No. 5 corroded the stainless steel drum in which it was overpacked and the acid mixture leaked onto the floor of the storage facility. The mixture crystallized as it dried on the floor of the storage facility. This process indicated that a salt was mixed in with the acid. The green color of the mixture indicated that the salt was probably mixed with nickel, rather than ethylene glycol (antifreeze) as was suspected initially. Thereafter, Tobergte requested that Laidlaw analyze the samples for the presence of nickel and copper, which are common in plating solutions. The results of the analysis showed that the drums contained nickel and copper. Tobergte contacted Reichold and Polygard in an attempt to trace the drums through the lot numbers listed on the drums. Through his investigation, Tobergte learned that Reichold, the name on Drum Nos. 1 and 2, is a company that manufactures resin, a substance used in building boats. Moreover, Torbergte learned that Reichold sold Lot No. 91-045-1036, the lot number on Drum No. 2, to Polygard, a company located in Tampa, that distributes and sells resin in the Tampa Bay area. Thereafter, Tobergte requested that PolyGard prepare a list of its customers in the Tampa area, including adjoining cities, who had purchased resin from PolyGard that had lot numbers and product numbers that corresponded to the numbers on Drum Nos. 2 and 3. PolyGard agreed to provide Mr. Tobergte with the requested customer list as soon as it was compiled. Next, Tobergte contacted Vigo, a food importer in Tampa, Florida, whose name appeared on two of the abandoned drums found at the park. Tobergte asked for a list of customers to whom it had sold 55-gallon Vigo drums. The Vigo representative indicated that the company handles many drums every month and sells empty drums to a large number of people, including other drum dealers. Although the Vigo representative gave Tobergte a customer list, Vigo indicated that the list was not "necessarily" complete. Prior to his receiving the PolyGard customer list, Tobergte drove in a four-mile area near the park looking for an automotive shop that had on it premises both resin drums and Vigo food drums. Mr. Tobergte established the parameters of his initial search on three factors. First, based on his initial observation and analysis, Mr. Tobergte believed the contents in the abandoned drums in the park may have been generated by an automotive shop. Second, Mr. Tobergte's opinion was that the use of both resin drums and Vigo drums was unusual. Third, the decision to limit the search to a four-mile area near the park was based on Mr. Tobergte's experience that abandoned drums are typically generated in the area near the place of abandonment. While it is typical for abandoned drums to have been generated by persons or businesses in relatively close proximity to the site of abandonment, this is not always the case. There have been cases where abandoned drums have been generated from nearby cities. In the initial search for possible "suspects," Mr. Tobergte found no automotive shops in Tampa and within four miles of the park that had resin drums and Vigo food drums. On December 16, 1996, Polygard provided the requested customer list to the Department. According to the list, between January 1993 and March 1993, and April 1995 and June 1995, inclusive, PolyGard sold resin to twenty-two customers located in Florida. Of the twenty-two customers, five were in Tampa; two in St. Petersburg; two in Hudson; two in Lakeland; and two in New Port Richey and/or Port Richey. PolyGard also listed one customer each in the following Florida cities: Tarpon Springs, Hudson, Lakeland, Lake Wales, Chiefland, Hernando and Fern Park. There were two customers listed for whom cities were not listed. However, based on other identifying information provided by PolyGard, these customers appeared to be in or near the Tampa area. Ver-Mar was on the customer list provided to the Department by PolyGard. Printed next to Ver-Mar was the name Jose Garcia. After receiving the PolyGard list, Mr. Tobergte drove by or visited several of the Tampa businesses on the PolyGard list searching for a location that had both resin drums and Vigo food drums and waste materials similar to those found in the abandoned drums. None of the businesses that Tobergte drove by or visited appeared to have resin drums and Vigo drums on the property. However, when Mr. Tobergte went to the Lois Avenue property, he saw resin drums on the property. Though the business was closed, the drums were visible through a locked fence that enclosed the property. The only business sign located on the Lois Avenue property was one which read, "Santo Domingo Garage." After leaving the Lois Avenue property, Mr. Tobergte reviewed the Florida Secretary of State's computer corporate records related to Ver-Mar. These records revealed that at one time, Ver-Mar was listed as "Ver-Mar Plating" and the address of record was the Lois Avenue property. Moreover, the corporate records revealed that Mr. Garcia "has been involved with numerous businesses throughout the years, many of which are seafood companies, including an active company called 'Fresh Off the Boat,'" with the same address as Ver-Mar's, 5005 North Lois Avenue. After Mr. Tobergte made several trips to the Lois Avenue property, on March 17, 1998, he eventually found the Santa Domingo Garage open. While there, he met with Zacharias Guiterrez, owner of the garage. Mr. Guiterrez told Mr. Torbergte that he leased the space that his business occupied from Ver-Mar and had rented the property for the previous eight years. While at the Santo Domingo Garage, Mr. Torbergte observed both Reichold drums and PolyGard drums that contained waste oil. Mr. Torbergte asked Mr. Guiterrez how he disposed of the waste oil produced by his garage. In response to this inquiry, Mr. Guiterrez stated that Mr. Garcia was responsible for waste disposal. However, at hearing Mr. Guiterrez testified that he is responsible for the disposal of any waste oil generated by his business. Moreover, Mr. Guiterrez testified that neither Mr. Garcia nor anyone connected with Ver-Mar ever arranged for the disposal of waste oil generated by Santo Domingo Garage. Mr. Guiterrez stated that he was to "take care of everything." Moreover, Mr. Guiterrez stated that he uses Tim Oil Recovery to dispose of waste oil generated by his garage. Notwithstanding, this claim, Mr. Guiterrez produced no receipts evidencing such disposal. Though Ver-Mar had no visible business signs on the Lois Avenue property, Ver-Mar was located next to Santo Domingo Garage on another part of the Lois Avenue property. On Ver-Mar's part of the property, there were two tanks which Mr. Tobergte believed were plating tanks. During Mr. Tobergte's March 17, 1997, visit to the Lois Avenue property, he interviewed Humberto Garcia regarding the investigation of the eight abandoned drums. Mr. Garcia explained that the two tanks were for electropolishing. According to Mr. Garcia, one of the tanks was the electro-polishing rinse bath and the other one was the electro-polishing bath. Plating and electro-polishing do not involve the same processes. In electro-polishing, the lead liner on the tank is the cathode and is the receiver of the ions; this process requires the use of low voltage and high amperage. Tanks used for plating are different from tanks for electro-polishing. Tanks for elecro-polishing are fiberglass with lead liners and react well with acid. Plating tanks are made of steel and are usually lead lined. Also, the electro-polishing baths are different in chemical composition from plating baths. The solutions in Ver-Mar's electro-polishing baths are sulfuric acid, phosphoric acid, and Electro-Glo, a patented premixed compound. Due to the limited use of the electro- polishing bath, as of March 17, 1997, the electro-polishing bath had never been refilled or refurbished. Some time after 1991 and while Mr. Garcia was out of the country, someone got rid of the rectifier, the energy source used for the electro-polishing bath. Although the Ver-Mar electro-polishing baths had not been in use since 1991, they contained the chemical solutions necessary for that process. The electro-polishing bath was in a covered area. However, the electro-polishing rinse bath at Ver- Mar is only partially protected from rain. Consequently, it is possible for rainwater to fall into the rinse bath. Nonetheless, because of the evaporation rate and the size of the tank, the electro-polishing rinse bath has not overflowed. The rinse tank is twice as large as it appears because it is partially buried in the ground. White resin drums from Reichold and Polygard as well as two Vigo food product drums were on the Ver-Mar part of the Lois Avenue property, but none contained waste material. Ver-Mar purchases the resin to use in the boat building process. Humberto Garcia has purchased hundreds of Vigo food drums over the years. Mr. Garcia uses these Vigo drums in his fishing business and either sells or gives the drums to other fishermen. Mr. Garcia found these drums useful because they did not rust. At the time Mr. Tobergte visited the Lois Avenue property, there were only two Vigo drums at Ver-Mar's shop, both of which were being used as garbage receptacles. With Mr. Garcia's permission, the Department took samples from the electro-polishing bath and from the electro- polishing rinse bath. The laboratory tests indicated that the electro-polishing bath had a pH of about 0, using pH paper and that the electro-polishing rinse bath had a pH of 4-5, using pH paper. On March 18, 1997, another sample was taken from Drum No. 5 and compared to the samples taken from the electro- polishing bath and the electro polishing-rinse bath. Tobergte believed that the mixture in Drum No. 5 was a mixture of a plating bath solution and plating rinse water. Furthermore, he believed that the mixtures in Drum Nos. 4 and 5 were not the result of a single-event simple dilution event, but resulted from adding to the mixture several times. Consequently, Tobergte expected the results to show that the concentrations of the chemicals and metals in Drum No. 5 were in between the concentrations in the electro-polishing bath and the electro- polishing rinse bath. The concentrations of chemicals found in the electro- polish rinse bath, Drum No. 5, and the electro-polishing bath are summarized below. Except for the pH category, the numbers in the report represent particles per million. (Electro Polishing (Drum No. 5) (Electro Rinse Bath) Polishing Bath) PH (units) 5.9 units 1.9 units 0.1 units chromium (Cr) 0.0405 95.5 5200 copper (Cu) 0.05 5200 2090 nickel (Ni) 0.08 190 2750 lead (Pb) 0.0156 57.5 3.04 molybdenum (Mo) ND (<0.05) 3.5 100 phosphate (PO) 10.2 3600 57,000 sulfate (SO) 49.6 14,100 258,000 chloride (CI) 4.74 1830 ND (<1000) According to the Department, the data in paragraph 38 above "shows that there is an excellent correlation" between the plating solutions and Drum No. 5, notwithstanding the fact that the concentrations of lead and copper were higher in Drum No. 5 than in the electro-polishing bath. In regard to the increased concentration of lead, the Department's report stated that the lead concentration was "likely due to the fact that the lead concentration will tend to increase from the continued use of lead as an anode." The report also indicated that the lead concentration "would increase as time goes on and that a waste or used solution would be expected to show an elevated level of lead." The Department indicated at hearing that the increased concentration of lead was the result of the use of lead as a cathode. Furthermore, the Department acknowledged that the electro-polishing bath is highly acidic because phosphoric and sulfuric acids are used in the electro-polishing solution. Consequently, in the Department's view, when the metal is placed in the acidic solution, the metals dissolve into the solution. Moreover, it is the Department's opinion that because the lead liner on the electro-polishing bath is immersed in acid, some of the lead dissolves in the solution, and that this dissolution increases the concentration of the metal in the solution. According to the Department, this is the reason that the waste solution would contain more lead and copper than a fresh solution. According to Mr. Garcia, in the electro-polishing process, lead is a cathode. Ver-Mar used a fiberglass tank with a lead liner in the electro-polishing process. In electro- polishing, a positive load is put on the part to be polished and a negative load is put on the lead liner. The lead is negatively charged from an outside energy source. In Ver-Mar's case, the outside energy source was a rectifier. The ions from the stainless steel part to be polished travel through the solution in the electro-polishing bath and is deposited on the lead. As a result, the lead liner is plated with the nickel and chromium and whatever other metal that was on the stainless steel part that was being polished. This protects the lead from the acid and when the current is turned off, the chromium and nickel remain bonded to the lead and is not easily removed in a .1 pH acid. Ver-Mar's electro-polishing bath tank has a copper rod on top that serves as a conductor of electricity. The rod is held in place by a small copper wire that is about one-fourth of an inch thick. This copper wire makes contact with the rod and the part that is being polished. Thus, some of the acid in the bath solution touches the copper. This is reflected in the data in paragraph 38 above which shows that the concentration of copper in the electro-polishing bath was 2090 ppm. However, the increased concentration of copper in Drum No. 5 was 5200 ppm. This data does not appear to be consistent with the assumption that Drum No. 5 contained a dilution of the electro-polishing rinse bath that had a copper concentration .05 and the electro- polishing bath solution that had a copper concentration of 2090 ppm. With regard to the fact that the concentration of copper is higher in Drum No. 5 than in the electro-polishing bath or the rinse bath, the Department attributes this increase to the copper wire being inserted into the solution and to copper being a component of the solution. Based on these assumptions, the Department concludes that the concentration of copper can vary. The Department determined that the presence of chloride in the Drum No. 5, though the amount in the electro-polishing bath was negligible, was "likely due to salt from the food product residue in the Vigo drums" or could have been from sea water residue from Garcia's fishing business. As a part of his investigation, Mr. Tobergte called plating and electro-polishing businesses located in the Tampa- St. Petersburg area to find out if they used molybdenum in their plating baths. All of the businesses contacted by Tobergte indicated that they did not use this chemical in their baths. According to Mr. Garcia, the presence of molybdenum is not unusual, and in a "lot of plating businesses," tanks are made of stainless steel and the tank is a cathode. First, certain kinds of steel contain molybdenum. Thus, if the stainless steel part containing molybdenum is placed in the bath, small amounts of molybdenum may be in the bath solution. Finally, as to Ver- Mar, there is a possibility that molybdenum may have been in the Electo-Glo, the free-mixed compound which was part of electro- polishing bath solution. During his years as a hazardous waste inspector in south Florida, Mr. Tobergte visited between fifteen and twenty plating shops in that area. However, he does not recall visiting shops or businesses engaged in electro-polishing or that had electro-polishing tanks. Ver-Mar does not typically generate waste oil in its boat building business. The only exception was an instance when Ver-Mar was refitting an older boat at the Ver-Mar yard. As part of that job, waste oil and fuel had to be removed and disposed of properly. On March 17, 1997, the day of the interview with Mr. Tobergte, Mr. Garcia provided the Department with a copy of a May 11, 1995, manifest showing that on May 11, 1995, Florida Waste Environmental Services was paid to remove and dispose of 602 gallons of petroleum. Beginning in 1991, Humberto Garcia became very involved in the fishing business. The nature of this enterprise required Mr. Garcia to be out of the country most of the time. Consequently, between 1991 and most of 1996, except for brief periods of time, Mr. Garcia was not in the United States. While Humberto Garcia was out of the country and working in the fishing business, Ver-Mar was not engaged in building boats or electro- polishing. In November 1996, Mr. Garcia returned to Tampa for an extended period after he secured a contract to build four ferries for the Phillipines. There was a hole behind the garage which appeared to be about the size of the amount of dirt in Drums Nos. 7 and 8. Dogs are often on the property; however, the hole behind the garage did not appear to be caused by the dogs in that the dirt from the hole was not piled up around the hole. As part of his investigation Tobergte requested invoices from PolyGard for products purchased by Ver-Mar. In response to this request, PolyGard provided an invoice and bills of lading that corresponded to resin purchases that appeared to be connected to Ver-Mar. One invoice and bill of lading provided by PolyGard reflect that Ver-mar purchased resin on April 3, 1995. The same invoice indicated that the products listed on the invoice, including resin, were shipped to "Ver-[M]ar, P. O. Box 15834, Tampa, Florida." However, the bill of lading that corresponded with the invoice indicated that the products, including the resin, were shipped to the Tampa Port Authority and sold to Carribean Fisheries in St. Vincent, West Indies. In fact, the products were taken to the Port Authority and shipped to St. Vincent. In another bill of lading issued by PolyGard, dated March 9, 1993, resin with Lot No. 91-023-0205 PolyGard was among several products listed on the form. According to the bill of lading, the merchandise was to be shipped to "Jose Garcia [at] Ver-Mar." No address was listed on the form and it is unknown if, where, and to whom the products were delivered. A corresponding invoice was not presented at hearing. Mr. Humberto Garcia has an uncle named Jose Garcia, but does not know if this uncle actually purchased the materials or what he did with them if he did purchase them. Also, it is not known whether Jose Garcia was in Tampa when products were purchased from PolyGard on March 9, 1993, because at various times, he stays in Okeechobee, Miami, and Tampa. Although this uncle "tinkers" with boats, Jose Garcia has no key to the Lois Avenue property and is not authorized to work on boats at that property. Furthermore, no boats were built on the Lois Avenue property while Humberto Garcia was out of the country. Mr. Humberto Garcia neither authorized the purchase of nor paid for the materials listed on the March 9, 1993, bill of lading. During the time Humberto Garcia was working out of the country, there was at least one instance where an unauthorized purchase was made on the Ver-Mar account. A PolyGard invoice dated June 3, 1993, shows that materials, including resin, were purchased at PolyGard and billed to Ver-Mar at P. O. Box 15834, Tampa, Florida 33614. However, the invoice notes that the materials were to be shipped to Brac Aquatics, Del Metro Stevadors, 200 AE Port Drive, Tampa, Florida. This charge was not authorized by Mr. Garcia. Ver-Mar has authorized the purchase of products on its account to be shipped places other than the Lois Avenue property. There were times when Ver-Mar purchased resins and other products for export. On these occasions, PolyGard would deliver the materials to the Tampa Port Authority to be shipped to the West Indies. Laidlaw submitted a certificate of disposal to the Department, showing that the drums had been disposed of properly. Laidlaw sent a bill to the Department for $10,665 for the response of Laidlaw to the incident. The Department incurred total costs of $11,907.84 from the Water Quality Assurance Trust Fund for the removal and proper disposal of the drums and their contents. Prior to Humberto Garcia's receiving a letter from the Department seeking reimbursement for the costs incurred for the removal and disposal of the eight abandoned drums, he was unaware that the drums had been moved to the park. Humberto Garcia attended the University of South Florida where he majored in chemistry. In early 70's, Mr. Garcia started an industrial waste program for the City of Winter Park. As a result of his working in an environmental program, Mr. Garcia believes that he has a good rapport with members of the environmental community and would not hesitate to call for assistance in the removal and disposal of hazardous wastes. Prior to the incident which is the subject of this case, neither Mr. Garcia nor Ver-Mar has been the subject of any action involving a violation of Chapters 376 and 403, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order finding that Respondent is not liable for reimbursing the Department for costs incurred in removing and properly disposing of the abandoned drums and their contents which are the subject of Incident No. 96-SW-0619. DONE AND ENTERED this 12th day of August, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1998. COPIES FURNISHED: Kisha Pruitt Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Humberto Garcia, pro se Secretary, Ver-Mar, Inc. 5005 North Lois Avenue Post Office Box 15834 Tampa, Florida 33684 Kathy Carter, Agency Clerk Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Pursuant to an Invitation to Bid issued by the Respondent, Palm Beach County School Board ("School Board") dated February 21, 1990, the School Board solicited bid proposals for the award of contracts to supply the schools under the School Board's jurisdiction with three separate items: milk and milk products, milkshake mix, and juice products. The contracts were to cover the period June 16, 1990 through July 15, 1991. The award of the contracts for two of the three items included in the Invitation for Bid, milkshake mix and juice products, are not at issue in this proceeding. (For purposes of the Recommended Order, references to the "Contract" refer only the proposed award of a contract for Item 1 of the Invitation to Bid.) Petitioner, Land-O-Sun Dairies, Inc. ("Land-O-Sun") and Intervenor, John Hart Distributors, Inc. ("John Hart") submitted bids pursuant to the Invitation to Bid. The bid opening took place on March 21, 1990. The School Board posted the bid tabulations on April 9, 1990. The bid tabulation along with the recommendation to award the contract to the lowest bidder, Land-O-Sun, was scheduled to go before the School Board for final action at its May 2, 1990 meeting. However, prior to presentation to the School Board for award of the contract, the bid tabulation was "pulled". Within seventy-two hours of posting the bid tabulations, the School Board's Department of Purchasing advised the School's Board Department of School Food Services that it had some concerns regarding milk delivery by the Petitioner, who was the apparent low bidder for the contract. As a result, the School Board's Department of Purchasing "pulled" the bid posting in order to review those concerns. By letter dated April 10, 1990, John Hart expressed dissatisfaction with the School Board's decision to award a separate contract for each of the three items contained in the Invitation of Bid. John Hart also expressed a concern that some of the low bidders did not meet the qualifications in Paragraph Q of the Invitation of Bid. The School Board did not consider this April 10, 1990 letter to be a formal protest under Section 120.53, Florida Statutes because it did not contain the specificity required under the statute and also because the bid tabulations was "pulled" within seventy-two hours after posting. After representatives from the School Board's Department of Purchasing met with Land-O-Sun's representatives and resolved the concerns, the School Board decided to re-post the bid tabulation. The bid tabulation was posted for a second time on May 16, 1990. The bid tabulation posted on May 16, 1990 indicated an intent on the part of the Superintendent of Schools to recommend the award of the contract for Item 1 under the Invitation to Bid to Land-O-Sun, the low bidder for that item. Subsequent to the second posting, John Hart submitted an affidavit to the School Board affirming that it had not been convicted of a public entity crime as defined in Section 287.133(1), Florida Statutes. That affidavit was not included with the initial bid package submitted by John Hart. John Hart contacted certain representatives of the School Board and advised them that the other bidders for the contract would not be able to truthfully submit a similar affidavit. The bid form specifically stated that, by signing the bid form, each of the bidders certified that they had not been convicted of a public entity crime. However, none of the bid packages included an affidavit specifically attesting to lack of conviction of a public entity crime. Paragraph Q of the Invitation to Bid ("Paragraph Q") provides as follows: Q. PUBLIC ENTITY CRIMES: Bidder by virtue of bidding and signature on page one (1) of Invitation to Bid: Authorized Signature (Manual), certifies that they have not been convicted of a public entity crime as defined in Section 287.133 of the Florida State Statutes. A public entity crime as defined in Section 287.133 of the Florida State Statutes includes a violation of any state or federal law by a person with respect to and directly related to the transaction of business with any public entity in Florida or with an agency or political subdivision of any other state or with the United States, including, but not limited to, any bid or contract for goods or services to be provided to any public entity or such agency or political subdivision and involving antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy or material misrepresentation. In addition, bidders certify that they have not been suspended and/or debarred from Federal Programs per Executive Order 12549 of February 18, 1986. Thus, pursuant to Paragraph Q, persons or entities "convicted of a public entity crime" as defined in Section 287.133, Florida Statutes or debarred/suspended from federal programs pursuant to Executive Order 12549 of February 18, 1986 were excluded from the bidding process and not eligible to bid. Within seventy-two hours of the posting of the bid tabulation, on May 16, 1990 the posting was "pulled" because of the allegations made by John Hart that the other bidders could not provide an affidavit verifying that they had not been convicted of a public entity crime. After John Hart suggested to School Board officials that the other bidders did not meet the requirements of Paragraph Q, counsel for the School Board contacted the other bidders and requested them to submit affidavits verifying that they had not been convicted of a public entity crime. In response to the request from the School Board's attorney, Land-O-Sun filed an affidavit which was signed by Mary Callahan on behalf of Land-O-Sun on May 16, 1990. The notary certificate for that affidavit is dated May 15, 1990. However, the evidence estabished that the affidavit was actually executed in the presence of the notary on May 16, 1990. That affidavit was executed after consultation with the general counsel for the company, Brian Kelly, who determined that Land-O-Sun should indicate affirmatively in the affidavit that it had been charged and convicted of a public entity crime as defined in Chapter 287 of the Florida Statutes but that it had not been placed on Florida's convicted vendor list. Attached to the affidavit was an explanation of the circumstances surrounding the conviction. Subsequent to the time that the affidavit was submitted to the School Board, Mr. Kelly has reviewed Chapter 287, Florida Statutes and has concluded that, in his opinion, Land-O-Sun has not been convicted of a public entity crime as defined therein since Land-O-Sun was not charged with the crime prior to July 1, 1989. Therefore, Mr. Kelly believes that he erroneously instructed the Land-O-Sun employees to affirmatively indicate on the affidavit that Land-O-Sun had been convicted of a public entity crime. After receipt of the executed affidavits from the various bidders, the bid results were again posted on May 23, 1990 indicating an intent on the part of the School Board's Department of Purchasing to recommend the award of the contract to the low bidder, Land-O-Sun. Subsequent to the May 23 posting of the bid tabulation, John Hart timely submitted a written Notice of Protest on May 25, 1990. That Notice of Protest objected to the award of the contract to Land-O-Sun on the grounds that Land-O-Sun was not a qualified bidder under the terms of the Invitation to Bid. On June 1, 1990, an informal hearing was held between representatives of the School Board and John Hart to discuss the bid protest. (This June 1, 1990 hearing will referred to as the "Informal Hearing.") Land-O-Sun was not notified of the June 1, 1990 Informal Hearing and was not present during that hearing. At the Informal Hearing, John Hart provided the School Board representatives with information regarding a guilty plea entered by Land- O-Sun to a charge of an antitrust violation of price rigging in connection with a contract to provide milk and milk products to the School Board of Pinellas County between August, 1985 and August, 1986. John Hart also provided the School Board representatives with information indicating Land-O-Sun had been placed on a list of vendors prohibited from doing business with the federal government. Based upon the information presented by John Hart at the June 1, 1990 Informal Hearing, the general counsel for the School Board sent a letter dated June 4, 1990 to all bidders advising them that the Superintendent of Schools intended to recommend rejection of the bid submitted by Land-O-Sun for Item 1 and to recommend award of the contract for that item to John Hart. The parties were advised that they could contest this recommendation by filing a written request for an administrative hearing within seven days from the date of receipt of the letter in which case the recommendation would be abated until after a hearing was completed. Land-O-Sun timely requested a hearing within the time frame set forth in the letter. In its May 25, 1990 Notice of Protest, John Hart also challenged the proposed award of the contract on the grounds that the bid instructions were confusing. In the June 4, 1990 notification to the bidders, the general counsel for the School Board rejected John Hart's contention that the bid instructions were confusing. No evidence was presented in this case regarding the contention that the bid instructions were confusing. Land-O-Sun was not provided with an opportunity to respond to or refute the information provided by John Hart at the Informal Hearing until after it received the June 4, 1990 notification of the proposed change in the recommendation and the formal administrative hearing process was initiated. Prior to this formal administrative hearing, Land-O-Sun provided the School Board with information regarding investigations by both state and federal authorities concerning the Pinellas County bid rigging case. After reviewing the information, the School Board was uncertain whether Land-O-Sun was a qualified bidder so it decided to refer the case to the Division of Administrative Hearings to conduct a formal hearing. Land-O-Sun purchased the assets of Pet Dairy in December, 1985. At the time of the purchase, Pet Dairy, through one of its employees, Lee F. Hallberg ("Hallberg"), was involved in a conspiracy with various other dairy companies to rig bid prices in connection with the award of contracts to supply milk, dairy products and fruit juices to the School Board of Pinellas County. The conspiracy commenced sometime prior to May of 1985 and involved contracts with the Pinellas County School Board for the school year beginning August, 1985 through August, 1986. The contracts were awarded in August, 1985, before Land-O-Sun acquired the assets of Pet Dairy. There is no indication that Land-O-Sun was aware of the existence of the conspiracy at the time of the purchase. After Land-O-Sun acquired Pet Dairy in December of 1985, Mr. Hallberg remained with the company for an additional period of time and the company continued to supply products to the Pinellas County School Board pursuant to the contract for the 1985/1986 school year. In 1987 or early 1988, Land-O-Sun was one of a number of dairy companies that was investigated by the Attorney General for the State of Florida in connection with the dairy industry school milk bidding process. A federal investigation also was begun. From the time it first became aware of the investigation, Land- O-Sun cooperated fully with both the state and federal investigators. After extensive negotiations, Land-O-Sun entered into a Settlement Agreement with the Florida Attorney General's Office on February 24, 1988. Pursuant to that Settlement Agreement, Land-O-Sun paid $225,843.36 to the State of Florida antitrust litigation fund. The state agreed not to bring civil or criminal charges against Land-O-Sun. The state also signed a Covenant Not to Sue Land-O-Sun and informed the Pinellas and Sarasota School Boards that Land-O-Sun had settled with the state and had cooperated with the investigation. The federal investigation focused on the same conduct and contract as the state investigation and resulted in criminal antitrust charges being filed against Land-O-Sun pursuant to a Criminal Information dated June 19, 1989 (the "Information"). That Information was filed in connection with a plea arrangement which had been negotiated over several months preceeding the filing of the Information. In accordance with that plea arrangement, Land-O-Sun entered a guilty plea in United States v. Land-O-Sun Dairies Inc., Case No. 89-116-Cr-T13(A) in U.S. District Court for the Middle District of Florida. on July 25, 1989 to the Information charging that a single violation of Section 1 of the Sherman Antitrust Act involving a conspiracy to rig school milk contract bids in Pinellas County for the 1985-1986 school year. In accordance with the plea arrangement, Land-O-Sun was fined $325,000 and the guilty plea settled all civil or criminal charges which could have been brought against Land- O-Sun as a result of the federal investigation. The fines and penalties imposed against Land-O-Sun as a result of the federal and state investigations were minor in comparison with the fines imposed against the various other companies involved in the conspiracy. Hallberg was the only individual employee of Land-O-Sun who was charged with any crime in connection with the price rigging conspiracy. Hallberg was terminated by Land-O-Sun as a result of the information obtained during the state and federal investigation. Following the entry of the guilty plea to the federal criminal charge, Land-O-Sun was debarred from bidding on procurement and sales contracts of the executive branch of the federal government and placed on a list of parties excluded from federal procurement and non-procurement programs. However, there is no evidence that Land-O-Sun was debarred under Executive Order 12549, which is the provision referred to in Paragraph Q. Land-O-Sun's debarment from contracting with the Executive Branch of the Federal Government in no way affected its right to bid on state contracts. Land-O-Sun has not been placed on the State of Florida's Convicted Vendor List. The Convicted VEndor's Lists is provided for in Section 287.133(3)(d), Florida Statutes, which was enacted by the 1989 Florida's Legislature session. It is not clear whether the List has, in fact, been established at this point in time. Land-O-Sun's conviction was not disclosed on the bid proposal submitted by Land-O-Sun in response to the Invitation to Bid. In addition to the Affidavit described in Findings of Fact 18 above, employees of Land-O-Sun have executed affidavits on at least two other occasions indicating that Land-O-Sun has been convicted of a public entity crime. Each of those affidavits were executed after consultation with the company's general counsel, Brian Kelly. Mr. Kelly has subsequently changed his opinion as to whether Land-O-Sun's conviction falls within the definition of a public entity crime under Section 287.133, Florida Statutes. The value of the contract for Item 1 of the Invitation to Bid is approximately $1.27 million. Land-O-Sun's bid proposal for Item 1 was approximately six thousand six hundred dollars less than the bid proposal submitted by John Hart. John Hart held the contract for supplying milk, milk products and milk shake mix to the School Board for the school year June 16, 1989 through June 16, 1990. In fulfilling that contract, John Hart has utilized some dairy products produced by Land-O-Sun. Since the expiration of the contract for the 1989/1990 school year, John Hart has continued to provide milk, milk products and milk shake mix to the School Board. John Hart has never been convicted of any bid rigging or other public entity crime. The School Board is concerned that awarding the contract to Land-O-Sun may somehow jeopardize federal funding for its breakfast program. However, no evidence or legal authority has been presented to establish that any such funding would be jeopardized by the award of the contract to Land-O-Sun.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Palm Beach County School Board enter a Final Order awarding the contract for Item 1 in Invitation to Bid #91C-5R to Land-O-Sun Dairies, Inc. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of August, 1990. J. STEPHEN MENTON 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 22nd day of August, 1990.
The Issue The issue to be resolved in this proceeding concerns whether the applicant, Craig Watson, has provided reasonable assurances in justification of the grant of an Industrial Waste Water Facility permit for a rotational grazing dairy to be located in Gilchrist County, Florida, in accordance with Section 403.087, Florida Statutes, and the applicable rules and policies of the Department of Environmental Protection. Specifically, it must be determined whether the applicant has provided reasonable assurances that the operation of the industrial waste water facility at issue will comply with the Department's ground water quality standards and minimum criteria embodied in its rules and relevant policy, including draft permit conditions governing the proposed zone of discharge for the project. It must be determined whether the ground water beyond the proposed zone of discharge will be contaminated in excess of relevant state standards and criteria and whether the water quality of the G-II aquifer beneath the site will be degraded. Concomitantly it must be decided whether the applicant has provided reasonable assurances that the proposed project will comply with the Department's effluent guidelines and policy for dairy operations as industrial waste water facilities, pursuant to the Department's policy enacted and implemented pursuant to its rules for granting and implementing industrial waste water facility permits, as they relate to dairy operations.
Findings Of Fact The Respondent Craig Watson has applied for an Industrial Waste Water Facility permit to authorize the construction and operation of an 850-cow, rotational grazing dairy, with accompanying dairy waste management system, to be located in Gilchrist County, Florida. The system would be characterized by ultimate spray application of waste effluent to pastures or "paddocks" located on a portion of the 511-acre farm owned by Mr. Watson. The rotational grazing method of dairy operation is designed to prevent the ground water quality violations frequently associated with traditional dairy operations. Traditional dairy operations are often characterized by intensive livestock use areas, which result in denuding of vegetation and consequent compacting of the soil, which prevents the effective plant root zone uptake method of treating dairy waste and waste water for prevention of ground water quality violations. Such intensive use areas are typically areas around central milking barns, central feeding and watering troughs, and other aspects of such operations which tend to concentrate cows in relatively small areas. The rotational grazing dairy attempts to avoid such problems by dividing a dairy farm's surface area into numerous pastures which cows can graze upon with constant and frequent rotation of cows between such pastures. This avoids overgrazing or denuding of the cover crop upon which cows graze, which is so necessary to proper treatment of wastes through root zone uptake. A rotational grazing dairy is designed to re-cycle cow manure for use as fertilizer to grow and re-grow the forage established on the site in the paddocks or pastures. The rotational grazing method is based on the theory that nutrients from cow manure can be captured in the root zone and uptaken as fertilizer for the plant upon which the cattle graze. The waste from the barn area is collected in a waste storage pond or lagoon and sprayed as liquid effluent on the grassy cover crops established in the various pastures, as is the sludge or more solid waste removed periodically from the waste storage lagoon. The applicant, the 511 acres and the project itself would use approximately 440 acres of that tract. The site is approximately 6 miles south of the Santa Fe River. The majority of the soil on the site consists of fine sand and clay-sand type soils. The dairy would contain approximately 850 cows. Lactating cows (cows being milked) would be grazed in some 36 pastures divided by fencing. They would be grazed in the pastures approximately 85 percent of the time and lactating cows would be in the milk and feed barn located in the center of the lactating cow pastures approximately 15 percent of the time. The manure from the barn, approximately 15 percent of the total animal waste, would be collected and placed in the collection lagoon for spray irrigation on the forage crops grown in the pastures. The remaining 85 percent of the waste would result from direct deposition on the pastures by the cows. The rotational grazing dairy would contain permanent watering troughs in each of the 36 pastures. This creates the possibility of numerous "high intensity areas" or areas characterized by a high level of cattle traffic. This circumstance can result in denuding the cover crop or grasses around such water trough areas which would result in a failure, for that area, of the root-zone-uptake means of waste treatment of nitrates. In order to minimize that eventuality, the cattle would be rotated on a frequent basis from paddock to paddock in an effort to maintain nitrate balance and maintain the sanctity of the cover crop, as would the option of employing movable watering troughs so that areas of denudment of the grass or forage cover can be avoided. Manure would be flushed from the milking and feeding barn with approximately 2,000 to 5,000 gallons of water after each milking and at the end of each shift. Wastewater would then flow into a sand trap or filter and thence through an underground pipeline into an 80 foot x 84 foot concrete-lined storage lagoon. The final site of the storage lagoon has not been firmly determined. The site proposed in the application is located in part over a depression which is a suspected karst feature or area that may be subject to sink hole formation. Therefore, consideration should be given locating the waste lagoon so as to avoid that depression and the permit should be conditioned on installation of the lagoon so as to avoid known karst features. Effluent from the storage lagoon would be applied to 245 acres of pasture with a movable spray gun. The settled sludge from the lagoon would be spread on the same land periodically. The primary grass crop on the site intended for cattle forage would be Coastal Bermuda grass. Coastal Bermuda grows through a large part of the year and is normally dormant, in the climate prevailing in the Gilchrist and Alachua County area, from mid-October until early March. There would thus be little nutrient uptake during that time but to off-set that dormant state rye, wheat, rye grass, sorghum and other small grains could be grown on the site during the winter months in order to continue the waste treatment function of the cover crops. MANAGEMENT PLAN The Department currently does not have in effect a specific rule requiring dairies in north Florida to obtain permits to construct and operate per se, although such a rule does prevail for dairies in the Okeechobee Basin in south Florida. Since 1990, however, the Department has, by policy, required permits for new dairy facilities in the Suwannee River Water Management District as industrial waste water facilities. This policy is derived from the general regulatory authority contained in Section 403.087, Florida Statutes, and Chapter 62-670, Florida Administrative Code.1 The Department policy is described in a letter in evidence from the Department to applicant Watson containing the required conditions on any grant of the permit, to which the applicant has agreed. Those requirements are as follows: Management Plan A site-specific plan, with design calculations, providing for collection, storage and disposal of all wastewater from milking parlor and of runoff from the 25-year 24-hour storm event from all "high intensity" areas within the dairy farm. The calculations should include stormwater computer model SCS TR-55 or similar. Supporting documentation for the plan shall include but not be limited to the following: Water budget and balance, detailed and itemized. Nutrient budget, including wastewater and solids management. Crop management plan with projected crop nutrient uptake rates. Herd management plan, including locations of barns, travel lanes, feed areas, pastures, and management of dry cows and heifers. Treatment and disposal system details, construction details and methods, pumping systems and capacities, irrigation system details, lagoon design and capacity, and site plans. Ground Water Monitoring Plan Determination of ground water depth, variability and direction(s) of flow. Topographic site plan which includes the location of facility property boundaries, sinkholes and cooling ponds. Ground penetrating radar (GPR) if located within Suwannee River Water Management District. Site borings for determination of soil properties, depth and extent of low permeability zones, and confirmation of GPR results. Proposed locations, construction, and development criteria for monitor wells. Inventory of potable wells within 1/2 mile of site. Determination of current ground water quality and compliance. Such plan shall be prepared in accordance with the standards of the USDA NRCS, at a minimum, and shall include detailed instructions for construction, operation, and maintenance of wastewater/runoff collection, storage and disposal systems. DEP Exhibit 1. The various expert and fact witnesses for the Respondents described in their testimony the constituency of that Management Plan and the reasons, within their various scientific discipline areas and their personal factual knowledge concerning why it should be required for the site and project at issue. The 850-cow herd which would be contained on the proposed dairy consists of 550 lactating cows which are milked on a daily basis but also contains 80 dry cows and 220 heifers. Thus some 300 cattle on the dairy will not be milked at any given time and consequently will not contribute to use of the high intensity barn area and the waste collected in the anaerobic lagoon to the extent that those non-milking cattle are not fed and watered in the central barn area. Their waste would more typically be deposited directly on the pastures by those cattle themselves. 10 The project is proposed to provide for on-site containment of all wastes generated by the dairy. There will be no discharge of effluent or other pollutants from the dairy to "waters of the state." The proposed permit requires that no surface water runoff be permitted from the dairy site. The anaerobic or waste collection lagoon is designed to contain all effluent from the milking barn and other high intensity cattle areas in the event of a 25-year, 24-hour storm occurrence. Additionally, a safety factor of one-foot of "free-board" or additional wall height on the anaerobic lagoon is to be provided as an additional safety factor over and above the level expected to be achieved by the above-referenced storm event. The adequacy of the design capacity of the lagoon system is not in dispute. The proposed project and design calls for four monitoring wells to be located along the northern boundary of the property, which is essentially co-extensive with the boundary of the discharge zone at issue. There would be three compliance wells and one background sampling well. The Department's expert geologist, Mr. Davis, was of the belief that an intermediate monitoring well would not be necessary since the four wells would in his view be sufficient to enforce water quality standards. Those wells are located down-gradient according to the known direction of the ground water flow underneath the site, as required by Rule 62-522.600(6), Florida Administrative Code. Although no intermediate wells are provided for by the plan, they have been required at the other two rotational grazing dairies already permitted by the Department in the Suwannee River Water Management Region at least one of which was within a mile of the outstanding Florida water of the Suwannee River. Intermediate monitoring wells at other dairies have shown increased levels of nitrate, although there is no evidence to show that nitrate levels have exceeded state standards at the boundaries of those dairies or their discharge zones. In any event, however, the totality of the expert testimony demonstrates that intermediate wells would provide an efficacious early warning system to predict increases in nitrate contamination. Thus adjustments in the waste and commercial fertilizer nitrate application could be made so that prevention of violation of nitrate standards, by the time waste water migrated to compliance wells around the boundary of the site, could be effected. This would have a substantial predictive value to avoid future nitrate contaminant violations before they occur and they should be installed as a condition on permitting. The proposed dairy design and operation involving rotational grazing is undisputed to be more beneficial to environmental water quality considerations than a traditional cattle confinement type of dairy. The rotational grazing dairy is characterized by cattle spending minimal time in high intensity milking, feeding, and watering areas. Additionally, there will be a significantly lower level of nutrient loading on the pastures with little accumulation of effluent on the land surface. In fact, the deposition of waste through spray irrigation and through the urination and defecation of the cattle directly will still result in a deficit in nitrates needed for adequate plant growth of the grass, and other crop, ground cover necessary for feeding the cattle and making the operation succeed in a waste treatment sense as well. Consequently, it will have to be supplemented by the addition of some commercial fertilizer, the costs of which will result in a natural incentive for the farmer/applicant to ensure that the nutrient loading on the pastures is at a low, environmentally acceptable level in terms of potential contamination of ground water. The proposed dairy has been demonstrated to be consistent with the Natural Resources Conservation Services' requirements and policies concerning dairies and rotational grazing dairies. It is also undisputed that phosphorus is not of an environmental concern with this application and project. There is sufficient iron and aluminum coating on the soils involved so that excess phosphorus will be retained on the site and it is undisputed that nitrogen is the only limiting factor in the design of the dairy. NITROGEN BALANCE The specific concern with regard to the application and the dairy operation is nitrate leaching below the root zone of the crops grown on the surface of the dairy. The dairy is designed to use nitrogen and nitrates by growing crops in the pastures which will then be eaten by the dairy cows, so that the nitrogen is re-cycled with the resulting animal wastes being used as fertilizer for the same grass or crops which the cattle continuously graze. It is anticipated that the amount of nitrogen produced by the dairy cows will be insufficient to optimize that plant growth. Therefore, additional fertilizer will be required to be applied to the land surface in the pastures at times. The additional nitrogen fertilizer will only be applied when testing of soil, and particularly plant tissue analysis, which will be done a regular basis, shows that application of commercial fertilizer is needed to supplement the natural cattle-waste nitrogen. Nitrogen is a concern because if too much of it is applied to the land surface, it may leach below the plant root zone and eventually migrate to ground water. Nitrogen in high concentrations can be potentially harmful to human health, so state drinking water standards have been established for nitrogen with regard to the issuance of industrial waste water permits. The state drinking water standard for nitrate is ten parts per million at the zone of discharge, that is, the zone of discharge into the ground water aquifer. The dairy is designed in such a way that nitrate levels will not exceed water quality standards. The design is determined by reviewing nitrogen balances and making sure that excess nitrogen will not leach past the root zone. The engineers evaluating and designing the project for the applicant, and testifying concerning it, arrived at a "mass balance" to estimate the nitrogen amounts on the site. This mass balancing is required by the Department in the required estimating of the pounds of nitrate leachate. Nitrogen can be removed from the dairy operating system through atmospheric losses or "volatilization" particularly from the urine component of nitrogen application. It can be removed through milk losses, whereby nitrogen is removed from the digestive system of the cattle through its being bound up to some extent in the milk produced by the cattle and sold off the dairy site, as well as some minimal leaching of nitrate through the soil. The nitrogen that is not removed by volatilization to the atmosphere (excluding the small amount re-deposited by rainfall) will be cycled through the cows and the crops along with any supplemental nitrogen applied from time to time in order ensure optimal plant growth. The mass balance, or amount of pounds of nitrate in the leachate, was determined by considering the amount of water flowing through the system. The re-charge rate was established by the applicant's engineer Mr. Holloway to be 17 inches. This means that there will be 17 inches of rainfall leaching below the root zone of the cover crops to reach ground water. The re-charge rate can be determined by computing the average of the evapo-transpiration and average rainfall and subtracting the difference. It can also be calculated by employing computer models such as the "GLEAMS" model. Mr. Holloway, the applicants engineer, used both sources or methods and reached the figure 17 inches. The GLEAMS model is a computer model that uses local data to determine water budgeting and recharge rates. Mr. Holloway also used a 50 percent volatilization rate for the nitrate losses when determining his mass balance. The applicant's experts also considered the plant uptake rates and concluded that the uptake rate would be between 500 and 700 pounds of nitrogen uptaken per year, per acre, by the plant cover. In order to be conservative and to install a sufficient safety factor in the system to avoid overloading it with nitrates and endangering ground water quality, they employed a lower uptake rate in their calculations and recommendations to the applicant, and thus to the Department, as to the amount of nitrogen applied per acre, per year, from all sources to only be 400 pounds. The conditions imposed by the Department in the "free-form" consideration process and draft permit thus limits the total pounds of nitrogen permissibly applied to this site to 400 pounds per acre, per year. Those 400 pounds of nitrogen are represented by 260 pounds applied from manure from the livestock and no more than 140 pounds applied from commercial fertilizers purchased by the farmer, Mr. Watson. The 400 pounds of nitrogen per acre, per year, as a condition on the permit is less than that allowed at the other rotational grazing dairies previously designed by Mr. Holloway and approved. Additionally, Mr. Cordova of the Department established that there are no rotational grazing dairies that have a higher nitrogen deficit than the Watson dairy. This further provides a significant safety factor not present in other approved dairies. Atmospheric losses of nitrogen up to 80 percent have been documented with similar dairy operations. Atmospheric losses can occur through both volatilization and de-nitrification. Volatilization is the process where nitrogen is removed from the system by the ammonia in the waste products, changing into a gaseous state and migrating into the atmosphere as a volatile gas. De-nitrification is the process where microbes, principally in the absence of oxygen (anaerobic) reduce nitrates to nitrogen gas and to possibly N2O, which is a volatile, and then allow it to escape into the atmosphere. The applicant has agreed, as a condition to the permit, to apply soil testing and crop tissue analysis as well as quarterly reviewing of the monitoring wells before he determines to supplement the natural fertilizer deposited from the animals with additional commercially purchased fertilizer. The commercially purchased fertilizer would represent a substantial investment in purchase costs and in labor costs for its application. This is an additional safety factor because the applicant clearly would not have an interest in applying any more fertilizer than was absolutely needed to secure optimum plant growth for grazing purposes and nitrogen uptake or waste treatment purposes. This is a further method which will prevent excessive nitrate nutrients from being deposited on the site and possibly into the ground water. Dr. Bottcher, an expert witness for the applicant, testified that he expected nitrate levels at the zone of discharge within the boundaries and beneath the surface of the dairy farm to be between 4 and 6 parts per million. Mr. Holloway expected within a reasonable degree of certainty that on a long term average, with about 4,000 pounds of nitrate leaching below the root zone system, that the concentration directly below the farm beneath the root zone would be between 2 and 3 parts per million. Indeed, the proposed operation would be similar to the existing condition at the Watson farm involving grazing beef cattle on a system of pastures, with row crop operations. Row crops typically have a higher impact of nitrates than the proposed dairy operation would have and beef cow grazing would have a similar impact, although it would be slightly less. Thus the proposed operation is similar in its nitrate impact to the existing conditions at the site. Moreover, the applicant is limited by the permit conditions already agreed to, to spray manure on the spray field area at the rate of less than one half of an inch. The spraying to that limitation would probably take from two to five hours per week. One of the important safety mechanisms in achieving a nutrient balance on the dairy site and in its operation, so as to ensure that ground water quality violations do not occur, is the application rate of nitrate to the land surface. As shown by Dr. Bottcher's testimony, the farmer may increase crop production by applying more fertilizer during seasons of heavy growth of the plant cover. The application rate can then be decreased when there is less growth and, therefore, less need for nutrients to grow the cover crops. A smaller application rate will increase the volatilization rate by avoidance of the infiltration of the nitrate bearing effluent into the soil through hydraulic action and through the saturation mechanism, since a smaller amount of application would tend to leave more of the effluent within less than one inch of the land surface, or on the land surface, thereby allowing it to be volatilized more readily. This circumstance will decrease the amount of nutrient leaching below the root zone and thus prevent the nitrates from being transmitted to the ground water. A number of crops can be grown successfully and appropriately on the site in order to provide the grazing forage needed for the operation of the dairy. Examples, depending upon the season of the year, are rye, wheat, grain sorghum, and various grasses, including Coastal Bermuda grass. Coastal Bermuda is a perennial grass, high in protein available for livestock and is already established on the site. The various other crops can be grown as well and some that grow in the winter months, such as rye, will be grown by Mr. Watson. The growing of the various cover forage crops are limited by the limitation in the permit which is conditioned on maintaining a cover crop growth situation where the average annual uptake is at least 400 pounds per acre (the evidence reveals that in reality it would be more on the order of 500 to 700 pounds per acre, per year). Dr. Pollman and Dr. Upchurch, expert witnesses for the Petitioners, question the nitrogen balancing and leachate predictions arrived at by the applicant's expert witnesses, as well as those of the Department. Neither Drs. Pollman nor Upchurch had any prior experience or expertise with testing for a nitrogen balancing on rotational grazing dairies. Instead they utilized various models to attempt to predict leachate amounts. Dr. Pollman's modeling utilized formulas prepared by the applicant's experts. His modeling showed a high percentage of the predicted outcomes to be actually within regulatory standards for nitrates, even though all of his estimates failed to take into account the variable inclusion or application rate for nitrogen through commercial fertilizer which will only be applied on an as needed basis after appropriate plant tissue and soil tests show that commercial fertilizer should be applied. Likewise, Dr. Upchurch's modeling results were also mostly within acceptable standards for nitrate concentrations unless one assumes that the nitrogen application rates exceed the amounts allowed under the permit, which will not be the case in reality because obviously the permit limits must be complied with. Dr. Upchurch also utilized a model, "NLEAP," which was neither designed nor calibrated to be used for predictive capabilities and is still considered experimental by the NRCS. WASTE LAGOON The applicant proposes to construct a waste storage lagoon designed to hold seven days' waste water generation capacity or 26,000 gallons per day. In addition to that required storage for a 25-year, 24-hour storm event, an additional safety factor of one foot of free board has been designed into the lagoon system. The lagoon will be constructed with 6 inch thick, fiber-reinforced concrete. No evidence was offered by the Petitioners that the lagoon design itself was faulty or inappropriate, rather the Petitioners contend that there is a chance that a surface failure beneath the lagoon, by the result of a sink hole developing, particularly in the present preliminary location proposed for the lagoon, could cause the lagoon to crack. The applicant will, however, in order to ensure that the area is suitable for the lagoon have the appropriate engineer "over-excavate" the site in order to minimize the change of a sink hole developing. Additionally, soil borings will be done beneath the surface to provide additional assurance that the lagoon will not fail due to voids or sink holes being present beneath it. Because the lagoon is presently preliminarily located in an area that appears to embody an old, inactive karst depression, consideration should be given to altering the site of the lagoon slightly so as to avoid this area, after soil borings and other investigation is done to ascertain whether the area poses a risk of lagoon failure. Additionally it must be pointed out that because the applicant would need to expend a substantial investment to rebuild the lagoon in the event of such a failure, he has a strong incentive to locate the most suitable geological placement for the lagoon in any event. GEOLOGIC SITE CHARACTERISTICS It is undisputed that the geology underlying the surface of the dairy site is karst in nature: that is, it is characterized by a sub-strate of limestone which can, through the dissolution process caused by percolating water, be susceptible to fissures, voids, underground conduits and sink holes. This, however, is true for essentially all areas used for agriculture in the Suwannee River Area Water Management District, the area to which the subject above- referenced policy concerning installation and permitting of dairies applies. Because of the karst nature of the area, sink holes and other potential surface openings to the ground water could occur at the site. It is most significant, however, that both Mr. Holloway's and Dr. Kwader's testimony established that the soil layer at the site was more than sufficient to protect the ground water. In fact, the soil layer averages from 45 to 50-feet thick over the underlying limestone sub-strate of the Ocala Formation. Further, the proposed permit and its conditions would require a management plan which, with the conditions already placed on the permit and recommended herein, will adequately deal with the possibility of sink holes, "pipes" or "chimneys" developing on the site. The dairy design success is derived essentially from the sufficient nutrient uptake in the root zone of the plant cover, balanced with careful control of the application rates of both the natural fertilizer from the cows and the commercial fertilizer which will supplement it from time to time. Any possibility that the treatment zone for nitrates associated with the plant root zone would be by-passed by the effluent as a result of sink holes or other types of fissures developing can be resolved by proper management practices, which the conditions proposed for the permit and those recommended herein will insure are implemented. For instance, if sink holes, other depressions or holes develop in the site, they will be filled with soil to a depth of five feet, with an impervious clay cap on top of that and then a layer of top soil to allow for re-establishment of the root zone on the surface. The permit should be so conditioned. Moreover, if sink holes or other voids develop that are too large to be so filled and pose a risk of migration of effluent below the root zone to rapidly to the ground water, they will be fenced off and cows will not be allowed in the area. The area will be removed from the irrigation application process until repairs are made, under the presently proposed conditions on the permit. An additional condition should be imposed whereby any sink holes or other voids or similar breaks in the ground surface which pose a risk of effluent rapidly migrating to ground water should be bermed around the circumference to prevent effluent or stormwater laden with nitrates from the land surface from entering the fault or cavity. The applicant is required under the proposed conditions on the permit to report to DEP any sink holes which develop within a certain period of time in the barn area. Cows are not to be permitted to enter into any of the sink hole areas by additional fencing, if necessary. If sink holes develop in the spray field there can be no discharges of fertilizer or irrigation on those areas until the sink holes have been repaired in the manner referenced above. The phosphate pits on the site will also be fenced to prevent discharges past the root zone potentially caused by cattle entering the pits. Additionally, berms are required to be constructed around the phosphate pits to prevent surface water from storm events or other means by which nitrates from the ground surface can be transported into the pits and then possibly to ground water. Any holes which may develop, also called "piping failures," around the periphery of the phosphate pits should be treated in a similar manner to prevent the migration of surface water into those holes whether or not they communicate with the phosphate pits themselves by fencing and berming. These arrangements coupled with the fact that the phosphate pits are characterized by a sufficient soil layer in the bottom of the pits between the bottom surface of the pits and the water table or aquifer will constitute reasonable assurance that the pits will not result in a conduit or path for nitrate-laden, surface water to migrate past the root zone directly into the ground water aquifer. Mr. Holloway, an engineer, testifying for the applicant conducted soil borings on the site to verify the Natural Resources Conservation Service (NRCS) surveys as accurate and to ensure that an adequate root zone for treatment purposes existed. Additionally, the NRCS did a ground penetrating radar survey or study on the property. The Petitioners also did a separate ground penetrating radar study performed by Mr. Windschauer. The Petitioners study identified a number of karst-type "anomalies" on the property. The number of anomalies located by Windschauer was not unusual for a such a karst geologic area, but, in any event, all of them had adequate soil depth to support the crops necessary to establish the root zone and maintain the nitrogen balancing. Soil borings were conducted, as well on four of the anomalies, under Dr. Upchurch's supervision. They confirmed that there was adequate soil depth to support crops and protect groundwater. The conditions already imposed on the permit to which the applicant has agreed, require a minimum of five feet of soil depth to ensure adequate treatment including the soil below the root zone and that soil depth and plant cover will have to be maintained even if repairs are necessary to karst anomalies or "sink holes," or the dairy will have to cease operation. The soil depth on the dairy is approximately 45-50 feet and the water table is approximately 55 feet below the ground surface. While the Department's expert, Mr. Davis, is satisfied that the location of the monitoring wells and the number of wells are adequate to monitor compliance with water quality standards for groundwater at the site, the draft permit conditions allow for a change in the number and the location of the monitoring wells. The evidence in the case, including that which shows that an intermediate well at another similar dairy site has shown elevated nitrate levels (although it has not been shown that other conditions are similar to those proposed in this permit application and in the evidence) would indicate that it would be prudent to install intermediate monitoring wells, upgradient, within the dairy site to serve as an early warning, predictive mechanism to avoid water quality violations at the boundary of the zone of discharge. This will allow time for steps to be taken, through various adjustments in the operation, to prevent any violations of the ten parts per million nitrate groundwater standard. The permit is recommended to be so conditioned. Dr. Kwader performed a photolinear trace analysis. He indicated that he did not find any particular linear features such as fractures. A fracture in the limestone stratum is significant in that it can provide a conduit or preferential pathway through the sub-surface rock and thus transfer contaminants from one point to another at a more rapid rate than simple percolation through soil and pores in the rocks. This could result in excessive nitrates being deposited in the groundwater aquifer before an adequate treatment time and mechanism has had its effect on the nitrates. A fracture or conduit flow will, however, cause dilution and Mr. Davis, for the Department, testified that he did not expect a higher concentration of nutrients in a fracture than in the surrounding rock. Additionally, there will be substantial dilution once the nutrients reach the aquifer and begin moving laterally. The dilution will be proportional to the water moving through the conduit, meaning that if the fracture is relatively large, then the concentration of nutrients will be proportionately smaller because of the higher volume of water. Such linear features or fractures are difficult to observe through 50 or more feet of soil existing at the site above the rock stratum and the top surface of the aquifer. Dr. Upchurch, for the Petitioners, also performed a photolinear trace analysis and identified two areas as being highly probable, in his belief, for linear fracture features beneath the farm and surrounding area. He believes there is a possibility of a number of other fractures beneath the Watson property, although the evidence does not definitely identify such nor the measures or precise locations of any such postulated fractures. The Watson property, however, is not unlike any of the surrounding karst terrain with respect to such potential linear fracture features and, in fact, much of north Florida can be so characterized. Moreover, Dr. Upchurch himself agreed that only a limited area of the Watson farm would be impacted by such features, and further, if they are present, they will not impact the nutrient balance aspect of the dairy design because it will perform above many feet of soils separating it from the fractures, if they exist. Limestone pinnacles protruding to the land surface can provide preferential pathways for water to migrate downward to the groundwater aquifer in a manner similar to that posed by a sink hole. They can also function as a break in the soil and plant root zone covering the spray effluent treatment area if allowed to remain exposed. Limestone was observed within one of the mine pits and in a sink hole. It is not clear whether it is a pinnacle which leads down to the sub-strate containing the aquifer or is merely a remnant boulder. In any event, these pinnacles or limestone outcroppings or boulders, whatever they prove to be, will not result in a preferential pathway for water to migrate to the aquifer because the management plan conditioning the permit requires that any limestone protruding to the surface be sheared off and replaced with top soil and vegetation. The permit conditions require that at least five feet of soil overlaid by vegetation must be present for all areas in the spray field. No exposed groundwater was observed in any of the sink holes. In fact the aquifer water level would be at least ten to twenty feet below the bottom of any pit or sink hole observed on the property. An additional 50-foot buffer from the property boundary surrounds all of the paddocks, providing an additional safety factor before the outside boundary of the zone of discharge is reached. The proposed dairy is located approximately six miles south of the Sante Fe River at its nearest point. The Sante Fe River is an outstanding Florida waterway in accordance with Rule 62-302.700(9)(i)27, Florida Administrative Code. The dairy site is not within the flood plain of the river and there will be no surface water discharged from the dairy, including none to the Sante Fe River. Any impact the dairy might have on a water quality in the Sante Fe River would come from groundwater flowing from the site to river. Groundwater beneath the dairy site flows first in a northeasterly direction thence apparently swinging more northerly in the direction of the river, more or less in a "banana shape" flow pattern and direction. Current permitting requirements for such a dairy require that the groundwater leaving or flowing from the zone of discharge must meet "drinking water standards." Those standards are codified in Rules 62-520.400 and 62-522.400, Florida Administrative Code. Those standards require that nitrates not exceed the standard or level of ten parts per million. Dr. Bottcher's expert opinion, which is accepted, is that the dairy design and operation will provide adequate protection to the Sante Fe River with that perameter in mind. He also established that reasonable assurances exist that the river will be adequately protected and not significantly be degraded alone or in combination with other stationary installations in addition to the dairy in question. The dairy waste management system has been established by preponderant evidence to abate and prevent pollution of the groundwater to the extent required by the applicable statutes, rules and policies, in that water or pollution will not be discharged from the dairy in violation of the above-referenced standard. Especially because of the great thickness of soil cover and because of the conditions and protective measures designed into the draft permit, and the project and recommended as conditions herein, in order to prevent effluent from bypassing the root zone treatment area due to karst features the preponderant, credible geological and hydro- geological evidence, including that of Mr. Davis, shows, within a reasonable degree of professional certainty, that there are not conditions concerning the hydro-geology or geology in the area of the site as to make it unsuitable for the proposed dairy operation in the manner conditioned and recommended herein. SECTION 120.57(1)(E) - FINDINGS The specific permitting requirements for the rotational grazing dairy at issue are embodied in a policy followed by the Department as far back as 1990. Those requirements are not contained in a Department rule. Rather, the policy is presumably enacted pursuant to the statute referenced by the parties, including the Department, in this case as the general pollution abatement statute, Section 403.087, Florida Statutes. The action of the Department in announcing its intent to grant the permit may be deemed an agency action "that determines the substantial interest of a party and that it is based on an un-adopted rule . . ." to the extent that one might deem this policy, consistently followed in a substantial area of the state since 1990, an un-adopted rule for purposes of Section 120.57(e)(1), Florida Statutes. In that context, the agency must demonstrate that the un-adopted rule comports with the statutory definitional of characteristics of a valid rule. Thus the agency must present proof that its un-adopted rule or "policy" would be valid as a rule. In that context the evidence adduced by the Department and indeed by both Respondents, since they presented a joint case, shows that the policy at issue is within the powers, functions and duties delegated by the legislature in Section 403.087,Florida Statutes, which is a generalized grant of authority designed to give the Department the power to regulate in a way to abate the pollution of waters of the state, including groundwater. It has also been adequately shown that the policy or un- adopted rule does not enlarge, modify or contravene the specific provisions of that law being implemented but rather provides sufficient regulatory details so that the general principals, stated in that statute, can be carried out in terms of the installation, regulation and operation of the subject dairy project. It has been adequately proven that the rule is not vague and that it establishes adequate standards for agency decisions on whether or not to permit such a rotational grazing dairy. It does not vest unbridled discretion in the agency nor constitute an arbitrary or capricious act or policy imposition, because the standards and requirements advanced by the Department as being necessary under this policy or un-adopted rule, for a permit to be granted, must, of legal and factual necessity, be predicated on competent, scientific expert and factual evidence. That has been shown, which likewise meets the requirement that the un-adopted rule be supported by competent and substantial evidence. Likewise, the evidence shows that under the circumstances, given the great public necessity in protection of the groundwater and the Floridian aquifer, that the requirements placed upon a grant of a permit for this project and the conditions placed upon its construction and operation do not impose, under the circumstances, excessive regulatory costs on the regulated person, Mr. Watson, or the governmental entity where the project is located, in other words, Gilchrist County.
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 granting the permit requested by Craig Watson to construct and operate the proposed dairy waste management system in accordance with the draft permit proposed by the Department, including the general and specific conditions attached and incorporated therein and also including the general and specific conditions recommended to be adopted and implemented for the proposed system in this Recommended Order, based upon the preponderant, persuasive, credible evidence. DONE AND ENTERED this 23rd day of February, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 23rd day of February, 1999.
The Issue Whether Respondent is indebted to Petitioners for agricultural products and, if so, in what amount?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties Petitioners are producers and sellers of tomatoes. They own and operate Sunfresh Farms in Florida City, Florida. Respondent is a dealer in agricultural products. The Controversy The instant case involves two separate transactions involving the sale of tomatoes pursuant to verbal agreements between Petitioners (as the sellers) and Respondent (as the buyer). Both transactions occurred in January of 1995. The First Transaction (Petitioners' Invoice Number 5270) Under the terms of the first of these two verbal agreements (First Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 96 boxes of cherry tomatoes for $12.65 a box (which was the market price at the time). In accordance with the terms of the First Agreement, Petitioners delivered 96 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 23, 1995. Respondent accepted the delivery. Respondent sold these 96 boxes of cherry tomatoes to a local produce house, which subsequently sold the tomatoes to another local produce house. The tomatoes were eventually sold to a company in Grand Rapids, Michigan. On January 28, 1995, five days after Petitioners had delivered the 96 boxes of cherry tomatoes to Respondent, the tomatoes were inspected in Grand Rapids, Michigan. According to the inspection certificate, the inspection revealed: "Decay (3 to 28 percent)(mostly early, some advanced stages);" "Checksum;" and "Average approximately 85 percent light red to red." Petitioners have yet to be paid any of $1,214.40 Respondent owes them (under the terms of the First Agreement) for the 96 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the agreement. The Second Transaction (Petitioners' Invoice Number 5299) Under the terms of the second verbal agreement at issue in the instant case (Second Agreement), Respondent agreed to purchase from Petitioners, and Petitioners agreed to sell to Respondent (FOB), 132 boxes of ("no grade") cherry tomatoes for $12.65 a box. In accordance with the terms of the Second Agreement, Petitioners delivered 132 boxes of cherry tomatoes to Respondent (at Petitioners' loading dock) on January 27, 1995. Respondent accepted the delivery. Respondent sold 84 of these 132 boxes of cherry tomatoes to a Florida produce house, which subsequently sold the tomatoes to a company in Houston, Texas. These 84 boxes of cherry tomatoes were inspected in Houston, Texas, on January 31, 1995, four days after Petitioners had delivered them to Respondent. The defects found during the inspection were noted on the inspection certificate. Petitioners have yet to be paid in full for the 132 boxes of cherry tomatoes they delivered to Respondent in accordance with the terms of the Second Agreement. Respondent tendered payment (in the form of a check) in the amount of $811.20, but Petitioners refused to accept such payment because it did not represent the full amount ($1,669.80) Respondent owed them (under the terms of the Second Agreement) for these cherry tomatoes. (Although they have not endorsed or cashed the check, Petitioners are still holding it in their possession.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding that Respondent is indebted to Petitioners in the amount of $2,884.20, (2) directing Respondent to make payment to Petitioners in the amount of $2,884.20 within 15 days following the issuance of the order, (3) indicating that the $811.20 check that was previously tendered to Petitioners by Respondent (and is still in Petitioners' possession) will be considered partial payment of this $2,884.20 indebtedness, if Respondent advises Petitioners, in writing, that it desires the check to be used for such purpose and if it provides Petitioners written assurance that the check is still a valid negotiable instrument; and (4) announcing that if payment in full of this $2,884.20 indebtedness is not timely made, the Department will seek recovery from the Farm Bureau, Respondent's surety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of February, 1996. STUART M. LERNER, 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 2nd day of February, 1996.
The Issue The ultimate issue is whether Olcott Dairy is exempt from permitting requirements regarding treatment and disposal of wastewater from its dairy operation. If it is not exempt, the remaining issue is whether Olcott Dairy must apply for a wastewater treatment and disposal permit from the Department of Environmental Regulation (DER) in order to continue operation.
Findings Of Fact During the early part of 1990, Earl Olcott proposed to construct and operate the Olcott Dairy in Gilchrist County, Florida, near the intersection of State Road 138 and U.S. Highway 129. In response to Olcott's proposal, DER sent Olcott a letter dated February 26, 1990, which advised that he could "either apply for a construction permit covering the treatment and disposal of dairy wastes using the enclosed industrial waste application or pursue an exemption from permitting." Based on the options given to him by DER, Olcott submitted a request for an exemption on March 23, 1990. The request included all the necessary engineering information and drawings. Essentially Olcott proposed a concrete lined waste storage pit sized to prevent the 25-year 24-hour storm event from overflowing and spray irrigation system for distributing the wastes to a hayfield. By letter dated March 26, 1990, DER exempted the proposed dairy from permitting requirements subject to certain conditions. Based on the exemption, Olcott purchased and constructed the proposed dairy, including the waste storage pit. Olcott Dairy commenced operations on January 26, 1991, and continues to operate. On November 8, 1990, the Petitioners wrote to DER about the Olcott Dairy, inquiring about the granting of the exemption to Olcott and seeking a point of entry to challenge the exemption. DER advised that "because these facilities are exempt by rule, the Department does not believe it has taken any action that would be subject to the provisions of Section 120.57 or 403.412(5), F.S." Mr. Olcott was copied on this letter. The Petitioners filed their Petition for Formal Administrative Proceedings on January 3, 1991. NFPOA is comprised of 45 members who live in the area of Olcott Dairy. On April 11, 1991, NFPOA incorporated as a Florida corporation not-for-profit. The purpose of the group, as stated in the Articles of Incorporation, is to protect "the environmental health of the land, air and water in North Florida." Petitioner Eron Carver lives directly across the road from Olcott Dairy and relies for drinking water on wells that pump from the groundwater aquifer lying beneath his home as well as beneath the Olcott Dairy. He also fishes in the Santa Fe River, an Outstanding Florida Water (OFW). After the filing of the Petition, DER wrote to Olcott on February 5, 1991, advising that the decision on the exemption was proposed agency action only and that "no action may be taken on the above exemption" until DER issued a Final Order on entitlement to the exemption. Regrettably for Mr. Olcott, action had already been taken based on the exemption and on DER's letter of December 7, 1990, which had indicated that the exemption was already granted and not subject to challenge by the Petitioners. The dairy was already in operation. The March 26, 1990, letter which found Olcott entitled to an exemption did not advise that the action was proposed and not final. Instead the letter clearly authorized Olcott to proceed with construction and operation of the wastewater management system as proposed and subject to the stated conditions because the proposed project was exempt from DER's permitting requirements. The December 7, 1990, letter clearly reinforced that the exemption was granted and not subject to challenge. On March 1, 1991, DER inspectors went to Olcott Dairy to review the wastewater management system in use. They found that the storage pit had overflowed and that no spray irrigation system had been built. Instead, the wastes were being applied to the field from a tank truck which was being driven slowly over the same 10-foot wide area with its tank valve open. On April 29, 1991, DER advised Olcott by letter that it was no longer supporting the exemption because an exemption was not appropriate and a groundwater discharge permit was necessary. The reasons given for this change in position were New information which shows that dairy activities pose a threat of groundwater contamination; Condition 4 was being violated by Olcott's waste application rates; Condition 7 was violated because the system design engineer failed to certify that the system was constructed to meet the design criteria; The waste management system being operated differed from the proposed design because the wastes were being applied by a tank truck; and The storage pit had apparently overflowed. The primary reason for DER's change was the new information derived from a study of dairies in North Central Florida. This study of dairies similar to Olcott indicated that existing waste management practices of dairies in the Suwannee River Basin have a potential to contaminate groundwater with elevated levels of nitrates and to cause off-site contamination. Specifically, the study found that groundwater beneath more than 45% of the dairies studied had nitrate levels exceeding the state standard of 10 mg/l, with nitrate levels as high as 140 mg/l recorded. Nitrate is a pollutant that can cause health problems in humans, particularly children. The area in which Olcott Dairy is located is highly vulnerable to groundwater contamination because of the underlying Karst geology. Additionally the aquifer under the dairy flows, under normal conditions, toward the Santa Fe River, an OFW. The ground application of wastes by Olcott Dairy allows percolation of wastes, which threatens violation of groundwater standards beyond the boundaries of the dairy. It also threatens to impair the water quality of the Santa Fe River, a contiguous water body. The only way these threats can be evaluated is to require that the waste management system undergo a complete review as part of the permit application process. By its letter of March 26, 1990, DER led Olcott to believe that the exemption was final and that the dairy could operate indefinitely pursuant to the exemption from permitting. Olcott has taken all of its actions in reliance on DER's representations regarding permitting requirements and DER's authority to determine entitlement to exemptions. In reliance on the exemption given in the March 26, 1990, letter, Mr. Olcott expended sums in purchasing the property for the dairy and in building the dairy, including the waste management system currently in place. He will be required to expend additional sums for preparation and filing of a permit application and for installation of monitoring wells and other equipment which may be required to qualify for a permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order and therein: Deny Olcott Dairy's request for an exemption from permitting requirements. Waive permit application fees from Olcott for its permit application and cooperate with Olcott in processing and conditioning for intended approval the permit for which Olcott must apply. RECOMMENDED this 26th day of July, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0750 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted Jointly by Petitioners, North Florida Property Owners Association and Eron W. Carver and by Respondent Department of Environmental Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(5); 3(6); 5(13); 6- 8(14); 9&10(15); 12(16); 13&14(17); and 15(9). Proposed finding of fact 4 is subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 11 is unsupported by the competent, substantial evidence. COPIES FURNISHED: John K. McPherson Attorney at Law McPherson & Coffey, P.A. 22 South Main Street Gainesville, FL 32601 Earl Olcott Olcott Dairy Route 2, Box 417 Brandford, FL 32008 William H. Congdon Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
