The Issue The issue is whether Respondents should have an administrative penalty imposed, take corrective action, and pay investigative costs for allegedly maintaining a solid waste management facility without a permit and disposing of solid waste in an area subject to periodic or frequent flooding.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background DDD is a corporation registered to do business in the State of Florida. Its president and sole director is William H. Stanton, Jr. The corporation is engaged in the business of "mobil recycling activities" (reduction recycling services for customers). Mr. Stanton owns a two-acre tract of property located in Section 26, Township 28S, Range 24B, on the northwest corner of Mustang Road and Longhorn Drive, Lakeland, Florida. The property is zoned for heavy industrial uses and was formerly used in some form of phosphate mining operations. The Department is the agency charged with the duty of administering and enforcing the provisions of Chapter 403, Florida Statutes, and rules promulgated thereunder. Based upon a complaint made by a Polk County Health Department employee, on October 8, 2001, a Department enforcement coordinator, Steven G. Morgan, inspected Mr. Stanton's property and observed that Respondents had filled and compacted an approximate 150 foot by 300 foot area of the site with 3 to 5 feet of "wallboard type material," which consisted of "both ground up and large pieces of wallboard." In the middle of the filled area was an additional pile of the same material around 20 to 25 feet high. Petitioner's Exhibits A, D, and E are photographs which provide an accurate representation of the site on the date of the inspection. Based on a visual inspection, but without having the benefit of his own laboratory analysis,2 Mr. Morgan concluded that the material was a solid waste made up of discarded industrial products. Under Department rules, the deposit of solid waste on such a site requires a waste facility management permit from the Department. A check of Department records indicated that Respondents do not hold a permit to operate a solid waste management facility. (DDD does hold a valid air pollution permit for grinding concrete.) During his inspection, Mr. Morgan also observed that the land adjacent to the filled area was wet, had a lower elevation than the compacted area, and contained small pockets of standing water. This was confirmed by photographs received in evidence as Petitioner's Exhibits D and E. A DDD employee who was present on the site during the inspection indicated that approximately 900 truck loads of the material had been transported to the site from Plant City after Mr. Stanton had "lost" a lease on the property on which the material had previously been placed. This was confirmed by Mr. Stanton who arrived at the site shortly after the inspection began, and who indicated that he intended to use the compacted wallboard as a sub-base (or foundation) for a wallboard recycling facility. A second site inspection by Mr. Morgan conducted on February 5, 2002, confirmed that the conditions (regarding the piles of fill material but not the standing water) at the site were unchanged from those found on October 8, 2001. On that visit, Mr. Morgan observed the site from his automobile but did not walk the property. Two other site visits were made, one on June 19, 2002, by other Department personnel. Except for a photograph (Petitioner's Exhibit C) dated June 19, 2002, which indicates the piles of material were still intact and had not been removed, the results of those inspections are not of record. Shortly after the initial inspection, the Department's Tampa District Office issued a warning letter to Mr. Stanton describing Mr. Morgan's observations and outlining the potential violations. The letter also invited Mr. Stanton to resolve the matter informally and to present a corrective action plan to mitigate the site. When the matter could not be resolved informally, the Department issued its Notice on October 10, 2002, alleging that Respondents had operated a solid waste facility without a permit and had deposited solid waste in an area prone to flooding. Even though the matter was not informally resolved, Mr. Stanton has cooperated with the Department in good faith throughout the regulatory process. The Material on the Site Invoices received in evidence reflect that the source of the deposited material was James Hardie Building Products in Plant City, Florida, and that the material was described on the invoices as "Dry Waste Material," Wet Waste Material," and "Foreign Material." James Hardie Building Products manufactures HardieBoard, which is a one-half to one-inch thick concrete formulated product used in the construction of homes and other buildings, and HardiePipe, which is used in road and bridge construction, culverts, storm sewers, and concrete pipes. The material being deposited was material used in the manufacture of HardieBoard. Mr. Stanton's long-range plans are to grind up, or recycle, the material (after all necessary permits, if any, are obtained) and then sell it to other persons, including cement manufacturing plants in the area, who will then use it for a variety of purposes, including subbase and base material, cement and concrete re-additive, and cement production. HardieBoard (as well as HardiePipe) is a variable mixture of Portland cement, water, fine silica sand, less than 10 percent cellulose (a non-toxic organic material commonly added to such products as ice cream, shampoo, baby diapers, and rayon clothing), and less than 10 percent of inert materials. The cellulose fibers are added to the concrete to avoid cracking and shrinkage and to reduce the weight of the product. Unlike concrete used for driveways and the like, HardiBoard does not have any large aggregate. Disposal of Solid Waste and Clean Debris Florida Administrative Code Rule 62-701.300(1)(a) prohibits the storing, processing, or disposing of solid waste except at a permitted solid waste management facility. In addition, no solid waste may be stored or disposed of "[i]n an area subject to frequent and periodic flooding unless flood protection measures are in place[,]" or "[i]n any natural or artificial body of water including ground water." Fla. Admin. Code R. 62-701.300(2)(d) and (e). These requirements form the basis for the charges in the Notice. Florida Administrative Code Rule 62-701.200(113) defines solid waste in relevant part as "discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations." Section 403.707(2)(f), Florida Statutes (2003), provides, however, that a permit is not required for "[t]he use of clean debris as fill material in any area." See also Fla. Admin. Code R. 62-701.220(2)(f). "Clean debris" is defined in Florida Administrative Code Rule 62-701.200(15) as: any solid waste which is virtually inert, which is not a pollution threat to ground water or surface waters, is not a fire hazard, and is likely to retain its physical and chemical structure under expected conditions of disposal or use. The term includes brick, glass, ceramics, and uncontaminated concrete including embedded pipe or steel. The term "virtually inert" is not defined by statute or rule. However, the parties agree that in order for a material to be "virtually inert," it must have no potential for leaking contaminants into the groundwater. In addition, if a deposited material releases contaminants into the groundwater thereby posing a threat to human health, it is considered a "threat to [groundwater]" within the meaning of the rule. The rule also provides that the material must not be a fire hazard. Finally, if a material decomposes over time after being used as fill, and releases contaminants into the groundwater, it is not "likely to retain its physical and chemical structure under expected conditions of disposal or use." Therefore, if a material has no potential for leaking contaminants into the groundwater, is not a threat to groundwater, is not a fire hazard, and is not likely to decompose over time, it constitutes clean debris and is exempt from the waste management facility permitting requirements. As noted above, Florida Administrative Code Rule 62- 701.200(15) identifies four materials that are considered to be clean debris: brick, glass, ceramics, and uncontaminated concrete. If a waste product is classified as uncontaminated concrete, it constitutes clean debris and may be used as fill without a permit from the Department. Further, clean debris may be deposited in an area subject to frequent or periodic flooding so long as flood protection measures are taken, or in a natural or artificial body of water so long as other appropriate permits (such as an Environmental Resource Permit) are obtained. Here, the central issue is whether the material deposited on Mr. Stanton's property is solid waste or clean debris. This issue turns on whether the material is virtually inert, is not a pollution threat to groundwater or surface waters, is not a fire hazard, and is likely to retain its physical and chemical structure under expected conditions of disposal or use. Assuming these criteria are satisfied, the material is exempt from Department permitting requirements for solid wastes. On this issue, the Department contends that the material is not virtually inert and is unlikely to retain its physical and chemical structure. Conversely, Respondents assert that the material is clean debris and falls within the category of uncontaminated concrete. Is the Deposited Material Clean Debris? In determining whether a material is virtually inert, or is a pollution threat to ground or surface waters, two extraction procedures have been sanctioned by the United States Environmental Protection Agency to assist in the measurement of the amount of contaminants that will leak from a material: the Toxicity Characteristic Leaching Procedure (TCLP) and the Synthetic Precipitation Leaching Procedure (SPLP). Under both procedures, the material being tested is ground up into small sand-size particles, mixed with an extraction fluid, and tumbled for 18 hours in a rotary agitator while the liquid solution extracts various metals that are found in the solids. The extracted liquid solution is then filtered and analyzed to determine the concentration of metals actually leached from the solids. Under state water drinking standards found in Table 1 of Florida Administrative Code Chapter 62-550, the maximum contaminant levels for chromium and barium (stated in milligrams per liter (mg/L)) are 0.1 mg/L and 2 mg/L, respectively. In reaching its conclusion that the fill material is a solid waste, the Department relied principally on certain tests of the material run by various laboratories between 1998 and 2000, which showed that the amount of chromium and barium leaking out of the product exceeded the State drinking water standards. See Petitioner's Exhibits K, L, M, and O. However, in every one of those tests, the laboratories used the TCLP, rather than the SPLC, which produced a worst case scenario. For the reasons stated below, the TCLP is not the appropriate procedure to be used for this purpose. The TCLP is the more aggressive of the two procedures, uses a much harsher solution than the SPLC, and generally leaches higher concentrations of metals. However, its principal purpose is to determine whether a material should be classified as a hazardous waste based on its leaching properties or characteristics. Using it to predict whether a material will leach into ground water is inappropriate because it will "leach things out in the laboratory that will never leach in the field." This is because it does not mimic conditions in the field and is "just not supposed to be used for this purpose." Therefore, TCLP leachate values should not be applied to drinking water standards. Conversely, the SPLC uses a less harsh solution during the preparation process, evaluates the potential for leaching metals into ground and surface waters, and is designed to provide a more realistic assessment of metal mobility under actual field conditions. In other words, the SPLC simulates what would happen if the sample were exposed to groundwater and rain to determine if under those conditions metals might leach into the water system below. Therefore, the SPLC is the more appropriate procedure to use here to determine whether the HardieBoard material will leach certain metals into the groundwater at levels that exceed State drinking water standards. Even various Department guidance documents provide that the SPLC (rather than the TCLP) should be used to determine if a material will leach metals into the ground water. See Respondents' Exhibits M, N, and O. Respondents' witness Foster collected three samples of HardieBoard deposited by Respondents at another site and submitted them to PPB Environmental Laboratories, Inc., in Gainesville, Florida, for a clinical analysis using the SPLC test. Those results, which have been accepted as being reliable,3 indicate that none of the leachate concentrations for arsenic, barium, cadmium, chromium, lead, mercury, selenium, and silver exceed (or even approach) the drinking water standards. Therefore, the material is virtually inert, and the groundwater quality will not be adversely impacted by use of this material as fill. The parties agree that the material is not a fire hazard. Prior to depositing the material, Mr. Stanton used a commercial waste reduction machine (a Smorcazy Bandit Beast 3680 Horizontal Trough Grinder) to grind or pulverize some of the material into fine particles. As noted earlier, a small amount of cellulose fibers are added to the product during the manufacturing process. The Department contends that after the grinding process occurs, these fibers will separate from the remaining fine particles and dissolve into the ground water. Because of this separation, the Department asserts that the material does not retain its physical or chemical structure after being deposited onto the property. Although cellulose fibers are added to the product during its preparation to strengthen the material (and have been added by cement manufacturers since the 1920s), they are distributed throughout the matrix in the material. This means that the fibers become "part and parcel of the mixture" and will not deteriorate, fall out, or leach out of the material even after routine grinding processes, such as that done by Respondents. As such, the cellulose is not biodegradable, and there is no concern that the cellulose will dissolve into the groundwater. Indeed, HardiePipe, which is used in the construction of culverts, storm sewers, and drainage pipes and has essentially the same constituents as HardieBoard, was approved by the Florida Department of Transportation in 2001 for use on State road and bridge projects. Therefore, it is found that the fill material will retain its physical and chemical structure after being deposited onto the ground. Expert testimony by Dr. McClellan established that the material meets the general definition of concrete, and because it is uncontaminated, it should properly be classified as uncontaminated concrete. As such, the material is clean debris and is not subject to the Department's solid waste management permitting requirements. Finally, the Department points out that the compressive strength (measured in pounds per square inch (PSI)) is much greater for concrete used in driveways than for HardiBoard (2500 PSI versus 20 to 30 PSI), and therefore Hardiboard is not a true concrete product. While the PSI values are indeed substantially different, the load bearing ratio or compressive strength of the material does not determine whether a material falls within the generic category of concrete. Water Issues As noted above, if a material is classified as clean debris, it may be deposited into an area prone to flooding or in a natural or artificial body of water, including groundwater (subject, of course, to other unrelated requirements or safeguards). There is no evidence that the filling occurred in a "natural or artificial water body," or directly into the groundwater. In addition, the evidence demonstrates that in October 2001, the ground next to the filled area had small pockets of standing water measuring no more than a few inches deep. However, when the inspection was made, and the photographs taken, Polk County was experiencing rather heavy rainfall, presumably due to the El Nino phenomenon. Whether these conditions (pockets of standing water) exist on the property only during the rainy season is not of record. Further, prior to the filling, Mr. Stanton contacted both the Southwest Florida Water Management District and the United States Geodetic Survey and he asserted, without contradiction, that neither agency indicated that his property was prone to flooding. In any event, even assuming that the area is subject to "frequent and periodic flooding," the permit requirements or other necessary safeguards, if any, associated with filling clean debris in such an area are not the subject of this proceeding. Investigative Costs A Department representative spent 66 hours investigating this matter for the Department. At a then-hourly rate of $18.54, this totals $1,223.64 in investigative costs. The reasonableness of this amount was not disputed by Respondents.
Findings Of Fact Reimbursement Program The Florida Legislature created the reimbursement program to provide for rehabilitation of as many petroleum contamination sites as possible, as soon as possible. Section 376.3071(12)(a), Florida Statutes. The Legislature intended that those responsible persons who possessed adequate financial ability should conduct site rehabilitation and seek reimbursement in lieu of the state conducting the cleanup. Section 376.3071(12)(c), Florida Statutes (1993). When owners and operators of the site or their designees perform site remediation program tasks under any of the programs created by Chapter 376, Florida Statutes, those entities become entitled to reimbursement from the Inland Protection Trust Fund (IPTF) of their allowable costs at reasonable rates. Section 376.3071(12)(b), Florida Statutes. "Allowable" costs are those which are associated with work that is appropriate for cleanup tasks. Section 376.3071(12)(d), Florida Statutes, requires DEP to: Reimburse actual and reasonable costs for site rehabilitation; and Reimburse interest on the amount of reimbursable costs for applications filed after August 14, 1992, at a rate of 1 percent per month or the prime rate, which- ever is less. Interest shall be paid from the 61st day after an application is filed with the department until the application is paid, provided the department determines the application is sufficient; otherwise, interest shall be paid commencing on the date the application is made sufficient until the application is paid. . . . A site owner or operator may engage the services of firms to perform remediation activities on a site and may designate an entity to receive reimbursement for such work. Section 376.301(14), Florida Statutes. Chapter 17-773, Florida Administrative Code (as revised in April of 1993), contains DEP's rules which were in effect at the time Petitioners submitted the instant applications. This chapter is currently located in Chapter 62-773, Florida Administrative Code. Chapter 17-773, Florida Administrative Code establishes procedures and documentation required to receive reimbursement from the IPTF. Rule 17-773.100(4), Florida Administrative Code. Rule 17-773.100(5), Florida Administrative Code, provides in pertinent part: "review and approval of reimbursement applications shall be based upon the statutes, rules and written guidelines governing petroleum contamination site cleanup and reimbursement which were in effect at the time the work was performed or the records of activities and expenses were generated, as applicable. . . . In order to be reimbursable, an applicant must break charges in an application into applicable units and rates. Rule 17-773.100(5), Florida Administrative Code. DEP has a predominate rate schedule to determine whether an allowable cost is reasonable. DEP bases its predominate rates on a study of average rates that contractors charge for a particular task. Requests for reimbursement must apply to costs which are "integral" to site rehabilitation. Rule 17-773.100(2), Florida Administrative Code. "Integral" costs are those which are essential to completion of site rehabilitation. Rule 17-773.200(2)(11), Florida Administrative Code. After integral costs have been identified and incorporated on a units and rates basis in an invoice, the invoice may be marked up at two levels. These markups are subject to certain limitations established by DEP rule: There can be no more than two levels of markups or handling fees applied to contractor, subcontractor or vendor invoices (Rule 17-773.350(9), F.A.C.); There can be no markups or handling fees in excess of 15 percent for each level of allowable markup applied to contractor, subcontractor or vendor invoices (Rule 17-773.350(10), F.A.C.); and There can be no markups or handling fees applied to invoices between any two entities which have a financial, familial, or beneficial relationship with each other (Rule 17-773.350(11), F.A.C.). In order to be reimbursable, costs must have been actually "incurred." Rule 17-773.700, Florida Administrative Code. "Incurred" means that allowable costs have been paid. Rule 17-773.200(9), Florida Administrative Code. When the "person responsible for conducting site rehabilitation" (PRFCSR) has no financial interest in the site, DEP considers the following costs as incurred when the program task is complete: Reasonable rates, including profits associated with the work performed, claimed for the use of their own personnel or equip- ment with documentation pursuant to Rule 17-773.700(7), F.A.C.; and Allowable markups or handling fees applied to their paid contractor, subcontractor, or vendor invoices pursuant to Rule 17-773.350(9), (10), and (11), F.A.C. Rule 17-773.200(9), Florida Administrative Code. Other rules reference limitations on the ability of an entity to take a markup. Rule 17-773.600(2)(d), Florida Administrative Code, provides in pertinent part: . . . If the person responsible for conducting site rehabilitation manufactured the [capital expense item], or a markup is otherwise prohibited under Rule 17-773.350(9), (10) or (11), Florida Administrative Code, no markup of the equipment shall be allowed. Rule 17- 773.700(5), Florida Administrative Code, provides in pertinent part: Costs claimed in a reimbursement application for the employees, equipment or materials of the site owner, site operator or any entity which has a financial interest in the site or a familial or other beneficial relation- ship with the site owner or operator shall be considered to be in house and reimburse- ment shall be limited to actual costs only. No fee, markup, commission, percentage or other consideration shall be allowed. . . . Rule 17-773.700(7), Florida Administrative Code, provides in pertinent part as follows: Pursuant to Rule 17-773.200(9), Florida Administrative Code, reasonable rates, including profits, may be claimed for the personnel and equipment or other allowable expenses of the person responsible for conducting site rehabilitation as well as allowable markups on paid contractor subcon- tractor and vendor invoices and shall be considered incurred for the purpose of reimbursement provided: The person responsible for conducting site rehabilitation does not have a financial interest in the site pursuant to Rule 17-773.200(7), Florida Administrative Code, or a familial or other beneficial relationship with the site owner or operator; The activities performed were integral to the program task claimed pursuant to Rule 17-773.500, Florida Administrative Code; and Detailed invoices are provided by the person responsible for conducting site rehabilitation that include all subcon- tractor and vendor invoices . . . [which] must identify the person responsible for conducting site rehabilitation and clearly distinguish their costs from those for paid subcontractors or vendors. There are no other provisions in the applicable rules which pertain to markups. A contractor must pay all invoices generated by a subcontractor at 100 percent of their face value prior to submission of an application in order to qualify those invoices for reimbursement. When a contractor pays a subcontractor's invoices, the contractor paying those invoices normally may take one of the allowable levels of markup. Prior to submitting a reimbursement application, a funder or PRFCSR involved in the reimbursement chain must pay the contractor for its invoices and markup. Then, the funder may apply the second allowable markup and submit the reimbursement application for review by DEP and payment from the IPTF. DEP does not contest the second level of markup in these applications. DEP rules restrict reimbursement when parties within the usual "chain" of reimbursement (PRFCSR or funder, contractor and subcontractor) have financial, beneficial or familial relationships with each other or the site owner. The application form requires disclosure of such relationships through the Program Task and Site Identification Form. Rule 17-773.200(1), Florida Administrative Code, provides as follows: "Beneficial relationship (interest)" means a connection or association, excluding an arm's length contractual relationship, which benefits a person or company by yielding a profit, advantage or benefit, or entitlement thereto, exceeding five percent of the person's or company's annual gross income. Rule 17-773.200(6), Florida Administrative Code, provides in pertinent part: "Familial relationship (interest)" means a connection or association by family or relatives, in which a family member or a relative has a material interest. . . . Rule 17-773.200(7), Florida Administrative Code, provides as follows: "Financial relationship (interest)" means a connection or association through a material interest or sources of income which exceed five percent of annual gross income from a business entity. Banks, lending institutions, and other lenders that provide loans for site rehabilitation activities are not considered to have a financial interest in the site on that basis alone. However, as of the effective date of this rule, guarantors of loans to or co-makers of loans with persons signing as responsible party are considered to have a financial interest if the amount of the loan exceeds five percent of the net worth of either company. As used in this definition, sources of income shall not include any income derived through arm's- length contractual transactions. Rule 17-773.200(13), Florida Administrative Code, states as follows: "Material interest" means a direct or indirect interest or ownership of more than five percent of the total assets or capital stock of any business entity. The rules and written guidelines of DEP do not address activities, including financing arrangements, occurring outside of the usual chain of reimbursement, so long as an applicant does not include charges for such activities in an application. Heretofore, DEP has not deducted finance costs that an applicant does not include as a line item in a reimbursement application. Pursuant to Section 376.3071(l2)(m), Florida Statutes, DEP must perform financial audits "as necessary to ensure compliance with this rule and to certify site rehabilitation costs." Rule 17-773.300(1), Florida Administrative Code. DEP performs this audit function: (a) to establish that the PRFCSR incurred the cost; (b) to determine that adequate documentation supports the claimed costs as incurred; and (c) and to review the reasonableness and allowance of the costs. The audit staff interprets the term "incurred" to mean that the applicant paid the costs included in the reimbursement application. Pursuant to Rule 17-773.350(4)(e), Florida Administrative Code, "[i]nterest or carrying charges of any kind with the exception of those outlined in Rule 17-773.650(1), F.A.C." are not reimbursable. The exceptions to the payment of interest set forth in Rule 17-773.650(1), Florida Administrative Code, are not at issue here. An interest rate charge on short-term borrowed capital from an unrelated third-party source is a "cost of doing business." DEP's predominate rates are fully loaded. They include a variable for all direct and indirect business overhead costs such as rent, utilities and personnel costs. DEP includes the cost of short-term borrowed capital in the direct and indirect overhead components of DEP's fully-loaded personnel rates. Rule 17- 773.700(5)(a), Florida Administrative Code. However, DEP never intended for its predominate rate schedule to create an entitlement to reimbursement of claims which are not otherwise actual and reasonable costs of site rehabilitation. Petitioners PRFCSRs are entitled to make application for reimbursement of allowable markups and costs of site rehabilitation that they incur. In these consolidated cases, the site owners or operators designated either Petitioner ET or Petitioner SEI as PRFCSR. The PRFCSR is typically referred to as the "funder" in the reimbursement chain. Petitioner ET is a trust formed in 1993 and domiciled in Bermuda. It acts as a conduit for funds that finance activities associated with Florida's petroleum contamination site cleanup program. The named beneficiaries of the trust are those contractors and subcontractors entitled to payment of costs for activities integral to site rehabilitation and for allowable markups of such costs. The sole trustee of ET is Western Investors Fiduciary, Ltd. (WIFL). WIFL is also the owner and a beneficiary of ET. Any profit that ET derives from funding cleanup projects flows through WIFL to investors who provide funds to finance site rehabilitation. American Environmental Enterprises, Inc. (AEE discussed below) provided the investment funds for the reimbursement applications at issue here. WIFL is a limited liability corporation created and domiciled in Bermuda. The officers of WIFL are: William R. Robins, President; John G. Engler, Vice-President; and Peter Bougner, Secretary. The directors of WIFL are: William R. Robins, John G. Engler, Paul H. DeCoster, Alec R. Anderson and Nicholas Johnson. WIFL's directors are also its shareholders. Petitioner SEI is a corporation incorporated and operating under Florida law. Organized in 1994, SEI acts as a conduit for funds to finance activities associated with Florida's petroleum contamination site cleanup program. The officers and directors of SEI are: William R. Robins, President; John G. Engler, Executive Vice President; and Paul H. DeCoster, Secretary. William R. Robins is the sole shareholder of SEI. SEI was specifically created to meet the needs of American Factors Group, Inc.'s (AFG discussed below) Florida investors. Respondent DEP is the agency charged with the duty to administer the IPTF and Chapter 376, Florida Statutes. Financing Entities American Factors Group, Inc. (AFG) is a privately held corporation incorporated and operating under New Jersey law. AFG is not a party to this proceeding. AFG, acts as the servicing agent for contracts associated with factoring activities and other types of financing operations. AFG, through one of its divisions, Environmental Factors (EF), entered into financing contracts with entities in the reimbursement process: (a) Petitioners ET and SEI, funders; (b) Gator Environmental, Inc. (Gator), general contractor; and (c) Tower Environmental, Inc. (Tower), prime subcontractor. Through these agreements, EF or its assignee bought the rights of ET, SEI, Gator, and Tower to future reimbursement payments at a percentage of the face value of the relevant invoices. The officers of AFG are: William R. Robins, President; John G. Engler, Vice President; and Paul H. DeCoster, Secretary. Bleak House, Inc. (Texas) owns the stock of AFG. American Environmental Enterprises, Inc. (AEE) is incorporated and operating under Nevada law. AEE is not a party to this proceeding. AEE, as the assignee under the EF contracts, is a third-party provider of capital to various entities in the reimbursement process, including Petitioners. The officers of AEE are: William R. Robins, President; John G. Engler, Vice-President; and Paul H. DeCoster, Secretary. Bleak House, Inc., (Nevada) owns the stock of AEE. Bleak House, Inc., (Nevada) is incorporated and operating under Nevada law. Bleak House, Inc. (Texas) is incorporated and operating under Texas law. Officers of both corporations are William R. Robins, President; John G. Engler, Vice President; and Paul H. DeCoster, Secretary. Magazine Funding, Inc. owns the stock of both Bleak House corporations. Magazine Funding, Inc. is incorporated and operating under Nevada law. Officers of Magazine Funding, Inc. are William R. Robins, President; John G. Engler, Vice-President; and Paul H. DeCoster, Secretary. Family Food Garden, Inc. owns the stock of Magazine Funding, Inc. Family Food Garden, Inc. is incorporated and operating under Massachusetts law. Officers of Family Food Garden, Inc., are William R. Robins, President; and Paul H. DeCoster, Secretary. Six shareholders own the stock of Family Food Garden, Inc. None of these shareholders are related by familial ties to the officers or directors of the aforementioned companies or any relative thereof. Each of these companies -- ET, SEI, WIFL, AEE and AFG (including EF) share common officers and directors. Each of the companies maintain their own books and business records, file their own tax returns, and maintain records in accordance with the laws of the jurisdiction in which they were established. They operate pursuant to their respective bylaws or trust agreement. ET, WIFL, and SEI do not have common assets with AEE or AFG (including EF). ET, WIFL and SEI do not have a beneficial, financial, or familial relationship with AEE or AFG (including EF) as Rule 17-773.200, Florida Administrative Code, defines those terms. Despite the facial organizational and structural integrity of ET, WIFL, SEI, AEE and AFG, the officers and directors of AFG and/or AEE created Petitioners, in large part, for the benefit of AFG and/or AEE as a means to invest funds in Florida's petroleum contamination site cleanup program. The primary purpose of each funder is to maximize the profits of AFG and its investors. AFG has other investment vehicles (funders) which it uses at times depending on the needs of its investors. AFG waits until the last instance before deciding which entity it will designate as funder in any particular factoring scenario. AFG usually does not make that decision until the day AFG's designated funder issues a funder's authorization to the general contractor. At the hearing, Mr. Stephen Parrish, a vice president of AFG, testified as the party representative for ET and SEI. WIFL and SEI have no employees. EF or AFG responded to DEP's request for Petitioners to provide additional information about the financing scheme utilized here using stationary bearing EF's or AFG's letterhead. Nineteen of the letters written on ET's behalf refer to ET as an affiliate of AEE. At least five of the letters written on SEI's behalf refer to ET as the funder and AEE as ET's affiliate. The greater weight of the evidence indicates that AFG and/or AEE negotiated less than arms-length contractual agreements with ET, WIFL, and SEI. Petitioners admit that they are "affiliates" of AEE and AFG through contractual agreements. However, there are no written factoring contracts between Petitioners and AFG such as the ones that exist between AFG, Gator and Tower. The only documented evidence of agreements between Petitioners and AFG are transactional based bills of sale representing the sale to AEE of Petitioners' right to receive reimbursement from the IPTF. AFG created these bills of sale for bookkeeping purposes. AFG did not even go to the trouble of tailoring the form for the bills of sale for their stated purpose. For all practical purposes, Petitioners are under the management and control of AEE and AFG. Petitioners and AFG disclosed their affiliation in meetings with DEP staff and through correspondence and other documentation, including but not limited to: (a) letter to DEP dated July 13, 1994 from AFG's counsel; (b) Addendum to Certification Affidavit signed by a Certified Public Accountant in each application; (c) Funder's Authorization; (d) letters sent to DEP between August 14, 1995 and November 19, 1996. Factoring and the Factoring Transactions Factoring is the purchase and sale of an asset, such as an account receivable, at a discount. An account receivable reflects the costs that a business charges after rendering a service but before the entity responsible for payment pays for that service. When a contractor completes a rehabilitation task, the contractor's invoice is an account receivable until it receives payment. In these consolidated cases, AEE provided short-term operating capital to Gator and Tower at an interest rate equal to the discount percentage of the relevant invoice (account receivable). Gator and Tower did not sell their account receivables to AEE. Instead, AEE, as the assignee of EF, purchased a contractual right to receive Gator's and Tower's reimbursement payments. In exchange, AEE advanced Gator and Tower a discounted amount of their invoices. The discounted amount of an invoice represents a loan from AEE to Gator and Tower. The difference between the face amount of the invoice and the discounted amount of the invoice represents interest. A discount percentage and an interest rate are equivalent. The amount of the discount represents interest on the loan or advance provided by AEE. It is an interest expense to the contractor or subcontractor. The Factoring Agreements On or about April 25, 1994, EF and Tower entered into a Prime Subcontractor Factoring Agreement. On or about July 8, 1994, EF and Tower executed an addendum to the Prime Subcontractor Factoring Agreement. The addendum required Tower to sell to EF Tower's right to receive payments from Gator. In return, EF agreed to advance Tower a discounted amount equal to 97 percent of the face amount of Tower's invoices. Tower agreed to repay EF 100 percent of the face amount of the invoices upon receipt of payments from Gator. The discounted amount of each invoice represents a loan from AEE to Tower. A bill of sale evidenced the sale of Tower's right to receive payment on each application. On or about July 8, 1994, EF and Gator entered into a General Contractor Factoring Contract. On or about July 13, 1994, EF and Gator entered into an Addendum to General Contractor Factoring Agreement. This addendum required Gator to sell EF Gator's right to receive payments from ET or SEI. In return, EF agreed to advance Gator a discounted amount equal to 88 percent of the face amount of Gator's invoices. Gator agreed to repay EF 100 percent of the face amount of the invoices upon receipt of payments from the funder. The discounted amount of each invoice represents a loan from AEE to Gator. A bill of sale evidenced the sale of Gator's right to receive payment on each application. The financing of the pending reimbursement applications involved the following interrelated transactions though not necessarily in this order: AEE as the assignee of EF purchased the right of ET, SEI, Gator and Tower to receive reimbursement for their services at a discount. ET, SEI, Gator and Tower agreed to repay AEE in full. Tower prepared and submitted to Gator an invoice for services provided by Tower and its subcontractors. Tower also prepared and submitted to Gator a reimbursement application for the program task. AEE advanced Tower the agreed upon discount amount. Tower used these funds to pay its subcontractors and vendors. AEE advanced Gator the agreed upon discount amount. Gator used these funds to pay Tower. Tower repaid AEE in full. Gator prepared an invoice for services provided by Gator, Tower and Tower's subcon- tractors including a 15 percent markup and submitted it with the reimbursement application either to ET or SEI. AEE advanced ET or SEI the discounted amounts as agreed. ET or SEI paid Gator in the full amount of Gator's invoice plus markup. Gator repaid AEE in full. ET or SEI prepared an invoice for its services plus the services of Gator, Tower, and Tower's subcontractors and a 15 percent markup. ET or SEI submitted the reimbursement application to DEP. When ET or SEI receives reimbursement from the IPTF, they will remit the total payment to AEE. The on-site work on each project was complete or substantially complete prior to Gator's involvement. In regards to some applications, the relevant dates on the subcontract/purchase order, Gator invoice, and Tower invoice are the same. The amount of time between AEE's payment of the advances and Gator's and Tower's subsequent remittance of 100 percent of the face amount of their invoices to AEE varied from a few days to a few weeks. The Agency Statement--Factoring Petitioners submitted the subject applications to DEP between July 18, 1994 and February 17, 1995. The financing scheme utilized in these applications was unique. Prior to the receipt of these applications, DEP never had reviewed reimbursement applications using the type of factoring scheme at issue here. In fact, the instant cases present a scenario never contemplated by DEP when it promulgated its rules and written policies. In the instant applications, the "chain of reimbursement" included: ET and SEI as funders or PRFCSRs, Gator as the named general contractor, Tower as prime subcontractor, and numerous subcontractors and vendors. As stated above, DEP was also aware that AFG and AEE (including EF) were "affiliated" with ET and SEI and would ultimately receive all reimbursement payments from the IPTF. 56 When Petitioners submitted the subject applications, no rule or written policy disallowed reimbursement for the face amount of contractors' and subcontractors' invoices when they sold their right to payments, i.e. the receivables, at a discount. When Petitioners submitted the subject applications, DEP had rules that restricted the ability of an entity to apply markups on invoices when a familial, financial or beneficial affiliation existed between a contractor, subcontractor, PRFCSR and the site or site owner, or when such relationships existed amongst those entities in the chain of reimbursement. However, there were no rules or written guidelines restricting reimbursement, based upon financial transactions occurring outside of the chain of reimbursement, if the applicant did not pass the costs of such transactions to DEP in an reimbursement application. In that regard, DEP usually dealt only with what was apparent in an application. If an application had a line-item claim for interest, DEP would not pay that claim under the rule limiting the payment of interest. Otherwise, DEP generally did not deal with costs, including interest, for which the applicant did not seek reimbursement. The applications in the subject cases did not contain line-item claims for interest. However, the difference between the face value of the invoices and the amount for which Gator and Tower sold their right to receive reimbursement for those invoices clearly represents interest. Tower's invoices appear to represent work that was integral to site remediation which was broken down into appropriate Eunits and rates. There is no evidence that the prime subcontractor, subcontractors and vendors intentionally inflated their invoices to cover the cost of financing. However, they did agree to accept a lesser amount then the face amount of their invoices for their services prior to the filing of the applications. In September and October of 1993, Paul DeCoster wrote letters to DEP describing a proposed financing scheme in which AFG would purchase the account receivables of contractors engaged in site rehabilitation. Mr. DeCoster wrote a follow-up letter dated October 4, 1993. In this letter, Mr. DeCoster proposed that AFG would charge the contractor a finder's fee which would be in addition to the 15 percent financing "markup" taken by the investor providing the financing. This proposal referenced a funder, FEC, whose parent was AFG. The transactions between the entities in the instant applications did not involve a finder's fee or a funder identified as FEC. In October of 1993, Will Robins met with DEP staff to discuss the manner in which the reimbursement program would apply to a proposed financing scheme. In this proposal, AFG would charge contractors an application/initiation fee and/or a commitment fee. The transactions between the entities in the instant applications did not involve an application/initiation fee and/or a commitment fee. After that meeting, counsel for AFG sent DEP a letter dated November 4, 1993. The letter acknowledges that the existing rules did not "specifically address the types of situations that arise when providing capital for cleanup activities through funding groups such as AFG." The letter identifies ET as the proposed funder through which AFG would finance cleanups. AFG would receive the ultimate reimbursement payment from the IPTF. At that time DEP was concerned that the proposed application/initiation fee was a "kickback" which DEP should deducted from the funder's markup. In January of 1994, counsel for AFG wrote a letter to DEP describing a financing scheme which differs in some respects from the financing scheme at issue here. This letter states that AFG intended to purchase receivables of the funder and the general contractor at a discount. Under this plan, the general contractor and the funder would claim the two markups. The subcontractors would pay AFG a finder's fee. The letter reveals that AFG, its affiliates, and investors would recover the cash equivalent of both levels of markups plus a fee from subcontractors for funding the high costs or risky projects. The transactions between the entities in the instant applications did not involve a finder's fee. On July 13, 1994, counsel for AFG wrote DEP to explain some modifications in the details to the proposed plan for the purchase and sale of receivables at a discount. This letter informed DEP that AFG would have a financial affiliation with the funder (ET) which would exist outside the chain of reimbursement and which would have no effect on either the markups or the overall reimbursement amount reflected in any application. All contracts within the chain of reimbursement (between ET, SEI, Gator, Tower, and its subcontractors) would be negotiated in arms-length transactions. The letter states: In this plan the subcontractors will perform their work on the site and will prepare their invoices in a manner consistent with any publicly or privately financed cleanup. Those invoices will be complied and forwarded to the general contractor for its review and the general contractor will add on the markup allowed by rule to the subcontractor's bills. The reimbursement application will then be forwarded to the funder who will ensure that all bills have been paid and who will be identified as the "person responsible for conducting site rehabilitation" on the reimbursement application. The funder will take the second markup allowed by rule, and will submit the reimbursement application to the Department of Environmental Protection for processing. Reimbursement will ultimately be paid by the Department to the funder in accordance with the reimbursement application. At no step in this process will the Department relinquish any authority to review and approve either the scope and nature of the clean-up or the rates charged by the contractors and subcontractors. Commencing on August 31, 1994, DEP began to develop a policy regarding the use of factoring as a financing mechanism in the reimbursement program. DEP personnel exchanged numerous documents regarding the subject of factoring. In one of those memoranda dated September 2, 1994, Charles Williams, DEP's Reimbursement Administrator, indicated that "we absolutely need to have a Big Meeting to decide what to do once and for all." In November 1994, DEP provided AFG's counsel with an informal opinion of how DEP would handle a factored application as described by Will Robins of AFG in an earlier meeting with DEP staff. The statement was that the difference between the amount that a contractor accepted in payment for his services, which was a discounted amount after factoring, . . . and the face value of the invoice which was claimed and marked up in the application was determined to be a carrying charge or interest, which is specifically disallowed for reimbursement in the reimbursement rule. American Factors Group. Inc. and the Environmental Trust v. Department of Environmental Protection, DOAH Case No. 95-0343RU, Final Order issued July 24, 1995. DEP advised AFG's counsel that it would deal with factored applications involving other entities on a case by case basis. On December 20, 1994, John Ruddell, DEP's Director of the Division of Waste Management, sought permission from DEP's Policy Coordinating Committee to promulgate a rule amendment to Chapter 62-773, Florida Administrative Code (formally Chapter 17-773). A draft rule accompanied the request. Mr. Ruddell developed the draft rule in compliance with Chapter 94-311, Section 6, Laws of Florida, which required DEP to revise its reimbursement rule. The draft rule provided that nothing in this Chapter shall be construed to authorize reimbursement for the face amount of any bill or invoice representing incurred costs when the receivable has been sold at a discount. In all such cases, reimbursement shall be limited to the actual discounted amount accepted by the provider of the goods or services. . . . The draft rule had the effect of prohibiting factoring as a mechanism for financing site rehabilitation work. The draft rule did not single out any other financing mechanism. DEP did not promulgate that draft rule. DEP requested that Petitioners furnish additional information regarding the instant applications. Between March 1, 1995 and November 17, 1995, Petitioners responded to DEP's requests with letters bearing AFG's or EF's letterhead. The letters state that prior to filling the applications, ET (and in some cases SEI) paid Gator for the face amount of the invoices plus Gator's markup. Gator then paid the subcontractors for the face amount of their invoices. Prior to these payments, AEE, an affiliate of ET, purchased the right to receive the amount due to Gator from ET or SEI and the right to receive the amount due to subcontractors from Gator. In each case, AEE bought the right to receive at a discount. According to the financing scheme, ET or SEI received sufficient funds from AEE to make the payments to Gator. ET, in turn, was obligated to pay AEE following its receipt of the funds claimed in the reimbursement application. On or about April 21, 1995, Bruce French, Environmental Manager in DEP's Bureau of Waste Cleanup, developed a memorandum discussing the proper handling of factored and/or discounted reimbursement applications. Mr. French initially sent the memorandum to Charles Williams, DEP's Reimbursement Administrator in DEP's Bureau of Waste Cleanup. The memorandum states that: invoices from subcontractors, vendors, suppliers and/or the general contractor which were paid a factored (e.g., discounted) amount by a third party capital participant (e.g., funder) represents the actual amount incurred by that entity and subsequently by the general contractor. DEP subsequently disseminated the memorandum to all application reviewers to acquaint them with DEP's policy on invoices or applications involving factoring as the financing mechanism. DEP did not direct the policy on factoring towards any individual company. DEP intended it to apply to "any combination of a general contractor, management company, funder and responsible party" in any situation in which a third party capital provider paid those program participants or suppliers a factored (discounted) amount of their invoices. The policy memorandum directed DEP reviewers to deduct costs from an application in an amount equal to the difference in the face value of an invoice and the amount paid for the right to receive payment under that invoice. The language of the policy set forth in the April 21, 1995 memorandum was broad and did not condition DEP's position on factoring on any affiliation between any parties. Between August 14, 1995 and February 2, 1996, DEP took action on the 45 applications at issue here. As reflected in those notices, DEP denied reimbursement of costs claimed in those applications because of the factoring of the supporting invoices and because "the difference between the face amount of the supporting invoices and the amount factored represents interests or carrying charges which are specifically excluded from reimbursement pursuant to Rule 62- 773.350(4), F.A.C." DEP deducted from the cost of each application an amount equal to the amount of the discount on each relevant invoice. When DEP issued the denial letters, it had not adopted the policy against factoring by the rulemaking procedure required in Section 120.54, Florida Statutes. The notices reflected a basis of denial of costs that was consistent with DEP's policy as reflected in the December 20, 1994 Draft Rule and the April 21, 1995 memorandum. This non-rule policy, which generally applied to all factoring schemes was not apparent from the rules in effect at that time. The Agency Statement--Markup/Value Added Policy Funders and contractors are entitled to take a markup of paid contractor and subcontractor invoices for allowable costs at reasonable rates. The invoices must represent actual and reasonable costs which are integral to site remediation. Contractors usually are entitled to a first-tier 15 percent markup for supervising and/or coordinating on-site remediation, for investing capital while awaiting reimbursement by paying subcontractors' invoices, and for assuming liability for the performance of the subcontractors. Funders normally are entitled to a second-tier 15 percent markup as an incentive to provide funds to finance the work. Markups are expressly subject to limitations set forth in Section 17- 773.350(9), (10) and (11), Florida Administrative Code. There are no other specific or implied limitations on markups in the rules or written guidelines. Requiring each entity that receives a markup in the reimbursement chain to pay contractor, subcontractor, and vendor invoices helps ensure that each level in the reimbursement chain pays the entity at the next lowest level in full. In these cases, each level in the reimbursement application chain "technically" paid the entity at the next lowest level. DEP policy in effect at the time Petitioners submitted the instant applications for reimbursement was to allow markups of paid invoices at two levels. However, DEP was not aware of situations where general contractors claimed markups for work that was complete before they ever became involved in the projects. With regard to all of the pending reimbursement applications, Gator applied a 15 percent markup to all of Tower's invoices including the invoices of Tower's subcontractors and vendors. With regard to a minimum of 30 of the 45 sites, Gator clearly did not supervise, manage or direct any of the on-site remediation activities. In fact, Gator did not become involved until after Tower had undertaken and completed these tasks. In at least 30 of the instant cases, Tower was acting as the general contractor when all of the on-site remediation took place. However, Tower could not apply a 15 percent markup to the invoices for its own services. Gator made it possible for Petitioners to claim the markup on Tower's invoices. As to the 15 sites at which Gator allegedly had some type of involvement with on-site remediation activities, the record contains no evidence regarding the specific activities or the level of Gator's involvement on any particular project. Gator performed some type of minimal due diligence review of Tower's site work. Gator allegedly reviewed Tower's technical and administrative files, cross-referenced technical and administrative files with the applications which Tower prepared, made visits to some job sites, and prepared a deficiency letter to determine the appropriateness of the scope of Tower's work. However, all of these functions were repetitious of the work performed by Tower and the certified public accountant attesting to the Certification Affidavit. Tower was a qualified engineering consulting firm that employed its own engineers and geologists. Gator's employee that reviewed the technical information in Tower's files was not a Florida professional engineer. He was not qualified as a certified public accountant to determine whether a charge was within DEP's reasonable rates. The Gator employee was a Florida professional geologist but he did not sign and seal the deficiency letter as such. There is no reference in DEP's rules or written policies to a deficiency letter. AFG required Gator to prepare the deficiency letter within two days of the date on which EF provided Gator with the opportunity to review a completed task. This two-day turn around time allegedly afforded efficiency of payment. The deficiency letters were limited to the question of whether the scope of Tower's services were reimbursable. Gator did not begin its review of an reimbursement application until after Gator received an invoice from Tower. The relevant subcontract/purchase order issued by Gator to Tower, the Tower invoice and the Gator invoice often were prepared on the same day. Gator "technically" paid the invoices at the next lowest level with money that AEE advanced. When Gator received payments from ET or SEI, it immediately repaid AEE before ET or SEI submitted the applications to DEP or soon thereafter. Pursuant to the addenda to the factoring contracts, Tower, not Gator, contributed to a reserve trust account which AEE will use to cover any reimbursement shortfalls. Gator allegedly indemnified the funder and guaranteed its own work but did not assume a risk of loss on Tower's work. On most if not all of the applications, Gator performed no meaningful management or supervisory functions. Gator's primary purpose in these consolidated cases was not to afford AFG a level of comfort as to the appropriate scope of the individual program tasks but to ensure that third-party investors maximized their profits. On September 1, 1994, Restoration Assistance, Inc., an entity under contract with DEP to review reimbursement applications, issued a memorandum to its reviewers directing them to complete their review and do a "total denial" on "Gator Environmental packages." The memorandum advised the reviewers that "Bruce" was drafting canned language to use in DEP's denial statement. On or about April 21, 1995, DEP presented its reviewers with a memorandum setting forth an initial overview of a "value added" policy for markups taken by a "management company" involved in site remediation activities. The memorandum indicated that DEP would allow reimbursement of claims for actual project management work and value-added services. The memorandum further provided that DEP would allow markups to a management company which only provided cash-flow services for a majority of the program task period even if the management company performed no other service. However, DEP would deny a markup if the management company provided such services during a "one month time period." DEP intended for the April 21, 1995 memorandum to acquaint DEP reviewers with the emerging DEP policy on markups. DEP's rules and written guidelines do not address the distinction made in the April 21, 1995 memorandum regarding the timing during which a management company could provide cash flow services and still be entitled to a markup. On October 20, 1995, Charles Williams issued a DEP policy memorandum for reviewers to use in reviewing reimbursement applications. Through that memorandum, DEP finalized and implemented the "value added" policy. The memorandum states that if the "GC" [general contractor] was involved with the management of the project during the course of the actual work by subcontractors, [DEP] rules do not preclude them from applying a markup. However, if the "GC" came along after the work was completed by other contractors and their involvement was more of a due diligence exercise to faciltiate (sic) a funding arrangement by a third party, then the "GC" markup would not be justified, though a markup by the actual funder listed as the PRFCSR could be allowed." Prior to the establishment of the "value added" policy on October 20, 1995, DEP made no inquiry as to whether a contractor provided value added services which were not reflected in an application in order to be entitled to a markup. DEP applied the "value added" policy to all pending applications (including the ones at issue here) resulting in a deduction of Gator's markup in all of the subject cases. The Department of Banking and Finance reviewed and issued a report (Comptroller's Report) on the Petroleum Contamination Site Cleanup Reimbursement Program on November 29, 1994. This report addressed the issue of markups in the reimbursement program. The Comptroller's Report recognized that DEP found the multiple markup structure to be beneficial in that it "attracts the involvement of companies whose role in cleanup projects is limited to providing funds to finance the work [and] attracts investors who provide funds which might not otherwise be available--thus facilitating cleanup of contaminated sites." The report acknowledges that a prime contractor "might have only limited direct involvement in the cleanup, having engaged subcontractors for most or all of the actual work." The Comptroller's Report did not address whether a contractor would be entitled to a markup if it became involved after all site work was complete. The Petroleum Efficiency Task Force's (PETF) final report concerning financing for reimbursement contractors issued on August 17, 1994. This report discussed DEP's policy of allowing two markups on paid invoices. The report recognized that "funders must be able to rely on the skills and knowledge of contractors to minimize reimbursement shortfalls." The PETF recommended for future consideration that "the Department should provide in rulemaking that contractors who take the first-tier 15 percent markup on subcontracted work must adequately supervise the work." When the PETF issued this final report, there was no existing rule that established any level of on site supervision or any other specific criteria for applying one of the two allowable levels of markup, other than paying invoices for integral site rehabilitation work. DEP's rules and written guidelines did not substantively change with regard to the "value added" policy from the April 22, 1993 revision of Chapter 17-773, Florida Administrative Code, to the October 20, 1995 memorandum which established a non-rule limitation on the ability of an entity to apply a markup to paid invoices. The "value added" policy is not reflected in any rule or written guideline, and would not be made available to a participant in the reimbursement program who requested program information. The "value added" agency statement is a non-rule policy which has the effect of a rule. DEP intends to apply the policy in all cases where a contractor's service adds no value to a project. DEP did not anticipate the need for such a rule when it promulgated the current rules. The Agency Statement Standard During the 1994 Legislative Session, the Florida Legislature directed that "no later than January 1, 1995, DEP shall review and revise rules related to the pollutant storage tanks programs . . . ." Chapter 94-311, Section 6, Laws of Florida. DEP understood that legislative instruction to include rule revisions related to the reimbursement program. On April 7, 1994, the Office of Statewide Prosecution issued a Statewide Grand Jury Report. The final report concerning financing of reimbursement contractors was prepared for the Florida Petroleum Efficiency Task Force on August 17, 1994. The Office of Controller issued its report on the Petroleum Contamination Site Cleanup Reimbursement Program on November 29, 1994. All of these reports offered suggestions for changes to the reimbursement rule. DEP first learned about factoring from presentations by Paul DeCoster and Will Robins in 1993. After these meetings, Petitioner proposed several factoring plans as proposed schemes to finance petroleum contamination site cleanup projects. Petitioners did not finalize the exact financing scheme they intended to use until July of 1994. Petitioners filed the first applications on July 18, 1994. By that time, DEP was aware that the factoring company was affiliated with the funders. DEP was also aware that the factoring company would receive the difference between the face amount of an invoice and the discount amount of that invoice. However, DEP was not aware of the exact nature of the relationships between AFG, AEE, EF, ET, WIFL, SEI, Gator and Tower. DEP was unable to evaluate all aspects of Petitioners' factoring plan without supplemental information about the details of the purchase and sale of receivables as they related to each application. DEP requested additional information from the applicants to determine if the costs were actually incurred. As a result of the information that DEP received, it reviewed all transactions to determine whether the costs claimed in the applications were actual and reasonable. On December 20, 1994, John Ruddell, Director of DEP's Division of Waste Management, sought permission from DEP's Policy Coordinating Committee to promulgate a rule amendment to Chapter 62-773, Florida Administrative Code (formerly Chapter 17-773, Florida Administrative Code). A draft rule accompanied the request. DEP intended the draft rule to comply with the legislative mandate contained in Chapter 94-311, Section 6, Laws of Florida. By that time, Petitioners had filed 41 of the subject applications. The 1994 draft rule provided that if a program participant sold a receivable at a discount, reimbursement would be limited to the actual discounted amount accepted by the provider of the goods or services rendered. The draft rule eliminated markups of contractor and subcontractor invoices. The December 20, 1994 memorandum to DEP's Policy Coordinating Committee did not indicate any deficiency in the existing delegated legislative authority that would prevent DEP from implementing the changes to the draft rule. DEP policy coordinating committee declined to approve the initiation of rulemaking procedures. Instead, it directed DEP staff to draft a bill for the 1995 legislative session. DEP based this decision on a determination that it would take too long to correct the numerous problems through the rulemaking process. The 1995 Legislative Session made several changes to the reimbursement program, particularly as it related to the direction of future site remediation activities. Chapter 95-2, Laws of Florida, passed the 1995 Legislative Session and changed the program from reimbursement of completed work to requiring pre-approval of work before it commenced. The 1995 Legislative Session did not make any relevant amendment to the reimbursement payment procedures in Section 376.3071(12), Florida Statutes. During the period between adjournment of the 1995 Legislative Session and February 2, 1996, DEP took action on each of the 45 applications that are the subject of this proceeding. Meanwhile, DEP focused its attention on making the necessary changes to switch from a reimbursement program to the new pre- approval program. It is not unreasonable to believe that such a significant change in a large program would take an agency some time to educate itself and the program's participants, prepare documentation and forms, and take steps to begin implementation. On March 22, 1996, approximately six and one-half months (198 days) after the petition for administrative hearing in Case No. 95-4606, and almost 21 months after the effective date of Chapter 94-311, Laws of Florida, DEP published its notice of rule development in the Florida Administrative Weekly. DEP filed the notice of rule development specifically "in response to litigation pending before the Division of Administrative Hearings" in the 45 cases that are the subject of this proceeding. In these consolidated cases, DEP did not have sufficient time prior to March 22, 1996 to acquire the knowledge and experience reasonably necessary to address, through the rulemaking process, the policy statements relative to factoring and markups based on value added services. Certainly, related matters were not sufficiently resolved to enable DEP to initiate rulemaking to address the policies set forth in the March 21, 1995 and October 20, 1995 memoranda until the spring of 1996. DEP is currently using the rulemaking procedure expeditiously and in good faith to adopt rules which address these non-rule policies. Additionally, the record indicates that it was not possible for the agency to initiate rulemaking in time to give Petitioners advance notice of the new policies. Petitioners filed the last applications in February of 1995 before DEP had time to fully evaluate the factoring plan. The time it took DEP to develop the detail or precision in the establishment of the policies set forth in the March 21, 1995 and October 20, 1995 memoranda was reasonable under the circumstances.
The Issue The issue in this case is whether the Petitioner has the actual experience required for certification as a Class B domestic wastewater treatment plant operator.
Findings Of Fact By application filed September 16, 1991, James H. Redden applied for certification as a Class B domestic wastewater treatment plant operator. At the time of the application, Mr. Redden was employed as a laboratory technician at a Class B Collier County regional wastewater treatment facility. From August 15, 1978, to July 31, 1989, Mr. Redden was employed at the Colgate-Palmolive Company facility at Jeffersonville, Indiana. The Colgate-Palmolive treatment facility is an Indiana Class D industrial wastewater treatment plant. Mr. Redden is certified by the State of Indiana as a Class D industrial wastewater treatment plant operator. During his employment at the Jeffersonville facility, Mr. Redden held positions as an associate chemist, senior chemist/plant microbiologist, and wastewater treatment plant supervisor. His duties included daily operations and supervision of personnel, scheduling and performance of maintenance activities, budgeting, ordering, materials balance, sludge management, laboratory analysis, quality assurance and quality control programs, and compliance with various state and federal reporting requirements. Mr. Redden has no experience either in the operation of a drinking water or domestic wastewater treatment plant, or at a DER-permitted industrial wastewater treatment plant.
Recommendation Based on the foregoing, it is hereby: RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the application of James H. Redden for certification as a Class B wastewater treatment plant operator. DONE and RECOMMENDED this 9th day of April, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 9th day of April, 1992. APPENDIX The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner: The Petitioner did not file a proposed recommended order. Respondent: The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2-4. Rejected, unnecessary. COPIES FURNISHED: Carol Browner, Secretary Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 James H. Redden 1362 Chesapeake, Avenue Naples, Florida 33962 Francine M. Ffolkes, Esq. Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32399
The Issue The issue is whether Respondent is guilty of discharging untreated septage at a site that Respondent was not permitted to use, in violation of Rule 10D-6.052(7)(b), Florida Administrative Code; and operating two septic pumping trucks, even though authorized to operate only one such vehicle, in violation of Rules 10D-6.052(2)(a) and 10D-6.052(1), Florida Administrative Code; and, if so, what penalty should be imposed.
Findings Of Fact Since 1989, Respondent has been a registered septic tank contractor. Petitioner annually issues Respondent a separate permit to pump, transport, and dispose of septage. Petitioner or its predecessor has disciplined Respondent on two occasions. On November 15, 1994, Respondent paid a $500 fine after the issuance of an administrative complaint for discharging improperly treated septage, and, on August 19, 1996, Petitioner issued a final order imposing a $500 fine and 90-day suspension against Respondent for repairing a septic tank system without a permit. Respondent’s attempts to explain away these violations were unpersuasive. At the time in question, Respondent’s permits allowed him to operate only one truck in transporting septage--a 1988 Ford--and to discharge septage only at one location--Hunter Land Application Site. Respondent’s permits also required him to stabilize septage only at one location--A-1 Septic Tank Service’s Lime Stabilization Facility. On August 15, 1997, Respondent operated or caused to be operated the permitted 1988 Ford truck and another unpermitted truck for the purpose of receiving and transporting septage that Respondent had pumped from septic tanks. Respondent and one of his employees drove the loaded trucks to J. R. Brooks & Sons Ranch, where they landspread the septage that they had been transporting. They dumped at this site about 8000 gallons of raw septage containing condoms, tampons, vegetable matter, and other items of the type normally found in unscreened septage pumped from septic tanks and grease traps. Petitioner had not approved the J. R. Brooks site for discharge of septage pumped from septic tanks. The Department of Environmental Protection (DEP) had designated the J. R. Brooks site for use by Resource Tech, which transported wastewater residuals from the Dade County Municipal Treatment Plant and discharged them at the J. R. Brooks site. The permit allowed Resource Tech to discharge wastewater residuals with only minimal levels of pathogens. DEP calculates the carrying capacity of sites such as the J. R. Brooks site based on the amount of material that they receive from permitted, disclosed discharges. After learning that the J. R. Brooks site had received unpermitted discharges, DEP determined that it must close the site and find a new one due to public-safety concerns. Respondent also failed to stabilize the septage with lime prior to discharging it on the J. R. Brooks site. The purpose of adding lime to septage is to kill pathogens. The J. R. Brooks site drains through ditches into nearby wetlands. From there, runoff drains into the Estero Bay. The untreated septage discharged by Respondent presents a greater threat to wildlife and public safety than do the wastewater residuals remaining after wastewater treatment that Residual Tech was authorized to discharge at the site. At the time of the hearing, Respondent was negotiating the sale of the business, but the buyers needed to operate under Respondent’s certificate until they could qualify to obtain one. However, Respondent admitted that he had someone else available to qualify the buyers’ operation for a certificate.
Recommendation It is RECOMMENDED that the Department of Health enter a final order revoking Respondent’s certificate as a septic tank contractor. DONE AND ENTERED this 9th day of September, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1998. COPIES FURNISHED: Susan Mastin Scott Chief Legal Counsel Department of Health Post Office Box 9309 Fort Myers, Florida 33902-9309 John Charles Coleman Coleman & Coleman Post Office Box 2089 Fort Myers, Florida 33902 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle Southeast Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle Southeast Tallahassee, Florida 32399-1703
The Issue The issue to be determined in this case is whether the Notice of Intent to Issue Order Requiring Access to Property (“Access Order”) issued by the Department of Environmental Protection (“Department”) and directed to Glenda Mahaney, as the property owner, is a valid exercise of the Department’s authority.
Findings Of Fact Petitioner Glenda Mahaney is a natural person and the owner of the property identified in the Access Order. The Department is the state agency which has been granted powers and assigned duties under chapters 376 and 403, Florida Statutes, for the protection and restoration of air and water quality and to adopt rules and issue orders in furtherance of these powers and duties. Background The groundwater beneath a parcel of land adjacent to Petitioner’s property was contaminated with petroleum when the land was used in the past for auto salvage operations. Initial groundwater sampling near the border of Petitioner’s property showed groundwater contamination by gasoline constituents which exceeded Groundwater Cleanup Target Levels (“GCTLs”). In other words, the contamination was at levels that required cleanup. However, later sampling showed the concentration of contaminants had decreased below GCTLs, probably as a result of natural attenuation. The existing data suggests that any groundwater contamination beneath Petitioner’s property is probably now at a level that would not require cleanup. However, the Department issued the Access Order because the Department is not certain about the contamination beneath Petitioner’s property and because Petitioner has continually requested further investigation. Petitioner believes contamination from the auto salvage site has caused illness in a tenant and even contributed to other persons’ deaths. However, no expert testimony was received on this subject and no finding is made about whether contamination exists on Petitioner’s property which has caused illness or death. The Department’s Site Investigation Section wants access to Petitioner’s property in order to determine whether contamination has migrated beneath Petitioner’s property and, if it has, the extent and concentration of the contaminants. The Department wants to: (a) install up to five temporary groundwater monitoring wells, (b) collect groundwater samples from the wells, (c) collect a groundwater sample from Petitioner’s potable water well, and (d) remove the monitoring wells after the sampling. The Access Order includes terms related to advance notice, scheduling, and related matters. Liability Although Petitioner believes petroleum contamination is present and wants it cleaned up, she objects to the provision of the Access Order related to liability. Paragraph 9(e) of the Access Order provides: Ms. Mahaney shall not be liable for any injury, damage or loss on the property suffered by the Department, its agents, or employees which is not caused by the [sic] negligence or intentional acts. Petitioner insists that she should not be liable under any circumstances for injuries or damages suffered by Department’s agents or employees who come on her property for these purposes. She demands that the Department come onto her property “at their own risk.” At the final hearing, the Department stated that it did not intend to impose on Petitioner a level of liability different than the liability that would already be applicable under Florida law. The Department offered to amend Paragraph 9(e) of the Access Order to indicate that Petitioner’s “liability, if any, shall be determined in accordance with Florida law.” Scope of the Investigation Petitioner objects to the proposed groundwater sampling because she does not believe it is extensive enough. Petitioner also believes the Department should test for soil contamination. The Department’s expert, David Phillips, testified that the proposed monitoring well locations were selected based on the direction of groundwater flow in the area and the wells are along the likely path of migration of any contaminated groundwater from the former auto salvage site. Another Department witness, Tracy Jewsbury, testified that no soil contamination was found on the auto salvage site, so the Department has no reason to expect there would be soil contamination on Petitioner’s property that came from the auto salvage operation. The Department will use the data collected from the wells to determine if contamination is present and whether future contamination assessment and/or remediation activities are necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection withdraw the Access Order or, alternatively, that Paragraph 9(e) of the Access Order be amended to provide that Ms. Mahaney’s potential liability, if any, shall be determined in accordance with Florida law. DONE AND ENTERED this 15th day of November, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2017. William W. Gwaltney, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Glenda Q. Mahaney Post Office Box 123 Mount Dora, Florida 32756 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Robert A. Williams, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed
The Issue The issues are whether Respondent violated Florida Administrative Code Rules 64E-6.022(1)(b)2., 64E-6.022(1)(d), and 64E-6.022(1)(p) by repairing an onsite sewage disposal system without a permit, resulting in missed inspections, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with enforcing the statutory and regulatory provisions pertaining to the practice of septic tank installations and repairs in Florida. See § 381.0065(3), Fla. Stat. (2003). Repair of onsite sewage treatment and disposal systems must be performed under the supervision and control of a registered septic tank contractor. Respondent is the qualifying registered septic tank contractor for All Florida Septic Tank Service, Inc., having been issued the registration number SR00011389. Respondent has 15 years of experience in the field of septic system construction and repair. The qualifying registered septic tank contractor for Simmons Septic and Tractor Service, Inc., is Joey Wayne Simmons. The qualifying registered septic tank contractor for AA Septic Tank Service, Inc., is Billy Wayne Joyner. However, Mr. Simmons, Mr. Joyner, and Respondent work closely together, sometimes working together on a job and/or acting as the qualifying registered septic tank contractor on each other's behalf. On September 2, 2003, the septic disposal system at the residence of Jack Young was not functioning properly. Mr. Young contracted with one of the above-referenced septic tank services to repair the system. On September 2, 2003, Respondent and another employee of All Florida Septic Tank Service, Inc., along with two employees from AA Septic Tank Service, Inc., went to Mr. Young's residence to repair Mr. Young's onsite sewage disposal system. No one applied for a permit to make any repairs to Mr. Young's system. With Respondent acting as the registered septic tank contractor, the men used a backhoe to dig up the septic tank, which was buried three feet in the ground. Respondent then repaired the pump and ran a new one and one-quarter force main line to the existing header because the old line had been compromised by roots. Respondent also cleaned roots from inside the distribution box. Respondent then sealed the tank and directed the men to cover it up. No one called Petitioner's local office, the Duval County Health Department, to request an inspection of the repair before covering the tank. The work on Mr. Young's septic system involved the replacement of an effluent transmission line. It required a permit because it constituted more than a minor repair to the pump and distribution box. Respondent should not have performed the work without a permit from the Duval County Health Department. Because there was no permit, there was no request for inspection by the Duval County Health Department. When the work was completed, Mr. Young gave Respondent a check in the amount of $1,000, payable to Mr. Simmons. The check reflected payment for repair to the filter bed, otherwise known as the drainfield. Respondent indicated his receipt of the check by signing the AA Septic Tank Service, Inc.'s Daily Truck Log and Maintenance Report. In February 2004, Mr. Young's septic system began to fail once again due to root blockage in the lines. Respondent advised Mr. Young that a permit would be required in order to make any further repairs. Mr. Young refused to pull a permit or to pay for any additional costs. On February 17, 2004, Mr. Young contacted Petitioner to report the failure of his system's drainfield. On February 18, 2004, Petitioner's inspector confirmed that Mr. Young's drainfield had failed and was causing a sanitary nuisance. During the hearing, Respondent admitted that there are no disputed issues of material facts in this case. He stated that he agreed with everything. However, he did not agree that the work he performed for Mr. Young required a permit from and inspections by Petitioner's Duval County Health Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order, finding that Respondent violated the standards of practice and imposing an administrative fine in the amount of $1,000. DONE AND ENTERED this 6th day of December, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 6th day of December, 2005. COPIES FURNISHED: Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 James L. Smith All Florida Septic Tank Service, Inc. 8300 West Beaver Street Jacksonville, Florida 32220 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. John A. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issues in this case are whether Respondent, Nemi, Inc., should pay a $500.00 administrative fine for maintaining an unpermitted stationary installation that is reasonably expected to be a source of water pollution (Count I); whether it should pay an administrative fine of $9,500.00 for failing to submit a completed Site Assessment Report (SAR) within 270 days of discovery of the discharge of chemical solvents (Count II); whether it should pay investigative costs and expenses in the amount of $1,500.00 incurred by Respondent, Department of Environmental Protection (Department) (Count III); and whether it should take corrective action, as described in the Department's Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (Notice of Violation) issued on January 23, 2009.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent is a for-profit corporation registered to do business in the State. Respondent's president and registered agent is Neil Schuberg, who represented the corporation at hearing. Respondent is the owner of a 1.1-acre parcel of real property located at 6801 Northwest 17th Avenue, Fort Lauderdale, Florida. The property is situated in what is known as the Gateway Industrial Center just south of the City of Pompano Beach and midway between the Florida Turnpike and Interstate 95. The parcel is rectangular shaped and is approximately 90 feet wide by 180 feet long. The property is further identified by the Broward County Property Appraiser as Parcel Identification Number 494209050040. A one-story warehouse and parking lot are located on the property, which is currently leased by Respondent to a testing laboratory. The evidence shows that for at least since 1981 David R. Ligh owned the property until his death. After he died, his widow, Elsie M. Ligh, sold the property in 1994 to Clayton John Pierce subject to a mortgage in the amount of $167,640.00. Mr. Pierce began operating a business on the premises known as Combined Roof Services, Inc. In 1995, Mr. Pierce decided to sell the property. A potential buyer, S & S Propeller Company, retained the services of Buck Eco-Logic, Inc., an environmental consulting firm, to prepare an environmental site assessment for the purpose of "determining the suitability of property for ownership by [S & S Propeller Company]." When it first inspected the site in July 1995, Buck Eco-Logic, Inc., discovered three thirty-five gallon drums and a twenty-gallon black plastic tub, all labeled "hazardous waste" and reflecting that they had contained tetrachloroethene (also known as perchloroethylene) waste. This is a chemical solvent that is typically used by dry cleaning establishments. The labels carried the name and "EPA ID number" of Family Dry Cleaners located at 6804 Stirling Road, Davie, Florida, an address which appears to be around ten to twelve miles south of the subject property. The three drums were lying on their sides on the northern end of an asphalt parking area beneath overgrown Brazilian pepper trees and were empty; the empty twenty-gallon tub was located inside the building on the property. Soil borings on the property performed by Buck Eco- Logic, Inc., revealed concentrations of tetrachloroethene at 10,613 parts per billion, which exceed allowable standards. Tetrachloroethene and its breakdown products are a solid waste, as defined by Florida Administrative Code Rule 62-701.200(113). A Phase I Environmental Site Assessment (Phase I ESA) dated August 13, 1995, was prepared by the consulting firm and sets forth in detail the results of its inspection. See Department Exhibit 2. The sale was never consummated. Later that year, Mr. Pierce engaged the same consulting firm to perform a Phase II Environmental Site Assessment of the property. That assessment revealed concentrations in groundwater ranging from 8,840 parts per billion to 173,000 parts per billion of tetrachloroethene, which exceed the State Clean Soil Criteria and State Maximum Contaminant Levels. The report, issued on October 13, 1995, was received in evidence as Department Exhibit 3. On October 30, 1995, a Mr. Pivnick, an attorney with the firm of Dombroff & Gilmore, P.A., which represented Mr. Pierce, notified the Department by letter that the empty drums and tub had been discovered on the property. The letter also attached a copy of the Phase I ESA. Mr. Pivnick was instructed by the Department to contact the local police department to report the incident as well as the state warning system for reporting discharges to the environment. Also, the Department contacted other local agencies and the United States Environmental Protection Agency (EPA). In October 1995, Mr. Pierce vacated the premises and ceased operating Combined Roof Services, Inc. In January 1996, he began leasing the property to Sun Valley Industries, also a roofing repair business, until that firm vacated the premises in December 1997. With the use of grant monies, the Department engaged the services of International Technology Corporation to prepare a Preliminary Investigation Report (PIR) for the property. That report was issued on February 13, 1997. See Department Exhibit The PIR recommended that additional monitoring of the site (through shallow monitoring wells, soil samples, groundwater samples, and groundwater flow direction) be made to quantify the presence of chlorinated solvents. Again with the use of grant monies, in 1997 the Department engaged the services of Post, Buckley, Schuh & Jernigan, Inc., to prepare a Site Inspection Report (Report) for the subject property. The Report was issued in March 1998. See Department Exhibit 5. Excessive tetrachloroethene, Cis-1, 2- dichloroethene, and trichloroethylene were detected in ground water samples, while tetrachloroethene was detected in all seven soil samples. On April 2, 1998, Ms. Ligh assigned the mortgage on the property to Nemi, Inc., for around $100,000.00. Mr. Schuberg explained that he was able to purchase it at a discount because Mr. Pierce had ceased making payments on the mortgage and had warned Ms. Ligh that if she foreclosed on the mortgage, she would be responsible for cleanup costs on the property exceeding a million dollars. While Mr. Schuberg acknowledged that he was aware of a contamination problem on the property, he says the mortgage was purchased as an investment, and he never thought he would actually acquire the property because he believed Mr. Pierce would continue to make the mortgage payments. After failing to make payments on the mortgage, on September 21, 1999, Mr. Pierce executed a Warranty Deed in Lieu of Foreclosure in favor of Nemi, Inc. Based on conversations with Mr. Pierce at that time, Mr. Schuberg says he was under the impression that the spill was much smaller than it actually was, and that it would be cleaned up by the Department. At hearing, Mr. Schuberg characterized Mr. Pierce as "a hustler and a liar." After Mr. Pivnick's report of contamination was received, the Department, along with the Broward County Department of Natural Resource Protection, initiated an investigation (probably in late 1995 or early 1996) in an attempt to verify the source of the contamination. Because Family Dry Cleaners "was on the top of [its] list," the Department first sought to determine whether that firm had actually deposited the drums and tub on the subject property. It learned that in 1994, or a year before the contamination was reported to the Department, Family Dry Cleaners had been evicted by its landlord, Lincoln Park. According to the Department, this "led to a dead- end" as far as Family Dry Cleaners was concerned. However, that business had been replaced by another tenant, Liberty Dry Cleaners. The Department then attempted to ascertain whether Lincoln Park or the new tenant might have been responsible for transporting the drums and tub to the subject property and dumping the waste. However, the Department was unable to confirm that either of the two had done so. Photographs of the drums and tub were made by Buck Eco- Logic, Inc., when it conducted an assessment in July 1995. Because the empty drums and tub were later removed from the site by unknown persons, the Department was only able to review the photographs when it conducted its investigation. Photographs of the drums indicated that they were larger than the twenty-gallon drums normally used by a dry cleaning establishment, and the labels on the drums were not perforated or dot matrix, which are more typical of those used by dry cleaners. For this reason, and because the empty tub was found inside the building on the property, the Department attempted to determine if Mr. Pierce had purchased the contaminants for use in his operations; it was not able to confirm this fact. The Department also contacted local law enforcement officials to see whether a criminal investigation could be launched. As noted above, however, the drums and tub had been removed by unknown persons while Mr. Pierce still had possession of the property and there was no forensic evidence for law enforcement officials to examine. The result of the investigation was that the Department was unable to determine who deposited the drums on the site or the exact location where the contents were first dumped. Although Respondent contended that the Department could have easily determined who removed the empty drums and tub from the subject property by examining the manifests of the carriers who engage in that type of business, the Department investigator did not attempt to do this since the yellow pages in the telephone directory reflected at least six pages of transporters in this type of business. Further, there is no evidence that a commercial transporter was even involved. For all of these reasons, the Department looked to the current owner of the property, Respondent, as the entity responsible for site rehabilitation since there were, and still are, contaminants leaching into the groundwater and aquifer system. Specifically, as of 2007, or twelve years after the discharge occurred, the groundwater on Respondent's property was still contaminated with tetrachloroethene, trichloroethylene, and cis-1, 2-dichloroethene exceeding the Department's groundwater standards. Also, the same contaminants exceeded the Department's soil cleanup target levels based on ground water criteria. Because rainfall and surface water continue to come into contact with the contaminated soil, and there is no liner or impervious cap in place, the installation is reasonably expected to be a source of water pollution. On September 12, 2001, the Department sent a letter by certified mail to Respondent advising that contamination was present on the property, that there were "possible violations of law for which you may be responsible," and that a Preliminary Contamination Assessment (PCA) must be filed within sixty days from the date of the letter. See Department Exhibit 6. Although a meeting of the parties was held on October 4, 2001, a PCA was never filed. 16. On April 27, 2006, March 12, 2007, and July 3, 2007, the Department issued Warning Letters to Respondent advising that an enforcement action would be initiated unless Respondent provided a SAR within a time certain. See Department Exhibits 7, 8, and 9. (The record is silent as to why no formal activity occurred between October 2001 and April 2006.) Exhibit 8 reflects that on November 21, 2006, "analysis results of sampling of one monitoring well were received by the Department." A meeting was later conducted by the parties on January 16, 2007, at which time Respondent agreed to "draft a suitable letter of [its] intentions with regard to conducting the required assessment and send it to the Department on or before January 31, 2007." There is no record of such a letter being sent. In August 2007, Respondent contracted with Florida Environmental Engineering, Inc., to perform a "limited site assessment report." In March 2008, that firm submitted to the Department a Preliminary Site Assessment Report (PSAR) See Department Exhibit 10. For this service, Respondent paid around $16,000.00. On March 21, 2008, the Department advised Respondent by letter that the PSAR was incomplete and that further information should be provided by April 30, 2008. See Department Exhibit 11. An Addendum to the PSAR was provided on May 5, 2008. See Department Exhibit 12. This report cost Respondent an additional $3,000.00. The PSAR indicated that contaminants (dichloroethene and trichloroethylene) in the water and soil on the property exceeded Department groundwater and soil cleanup target standards and levels. The report concluded, however, that "the discharge to the site is from an offsite source" (west of the property) and that "the property owner is no longer a responsible party." On August 27 and then again on October 22, 2008, the Department issued letters to Respondent advising that "there is not enough data to support the assumption that the discharge is offsite and the contamination is from an offsite source located west of the property." The Department reached this conclusion because, among other reasons, "[t]he contamination does not seem to be delineated towards the northern and southern portions of the site," "[t]here are no horizontal delineation wells to [the] north," the "iso contour maps provided appear to show the vertical delineation of the contamination but not horizontal delineation [of the plume]," "additional monitoring points need to be [added]," and "the onsite monitoring well, MW-2, shows a very high concentration of Perchloroethylene (PCE) at 81,000 ug/L [microgram per liter] and other contaminants, while the MW-1 does not exhibit groundwater contamination to that extent." See Department Exhibits 14 and 15. In plainer language, Respondent's report was deficient in that all contamination sources were not identified; it failed to delineate the horizontal and vertical extent of soil and groundwater contamination; and it failed to recommend a remedial action to clean up the contamination. The two letters advised that the site assessment was incomplete and that additional information described in the letters must be submitted by November 14, 2008. To date, Respondent has failed to submit the required information. According to Mr. Schuberg, to perform a study that would supply the additional information requested by the Department would cost him around $100,000.00, an amount he is unwilling to pay. More than 270 days has expired since a discharge was discovered on Respondent's property, and it has failed to submit a complete SAR, as described in Florida Administrative Code Rule 62-780.600(8). See also Table A, Fla. Admin. Code R. Ch. 62-780, which prescribes the specific time frame (within 270 days after the discharge is discovered) for submitting this report. The Department has incurred expenses in the amount of $1,500.00 while investigating this matter. See Department Exhibit 17. This amount is not disputed. As corrective action, the Department requests that within ninety days of the effective date of this Final Order, Respondent submit a complete SAR which addresses the deficiencies specified in the Department's August 27, 2008, letter. See Department Exhibit 14. To complete the SAR, additional soil and groundwater samples need to be collected to determine the vertical and horizontal extent of contamination, all source areas must be identified, and a remedial action must be developed to abate the contamination. Finally, the contaminated soil must be removed from the property so that it will no longer discharge into the groundwater. The Notice of Violation requests that upon approval of the SAR, Respondent "shall commence and complete in a timely fashion all further tasks" required by Florida Administrative Code Rule Chapter 62-780. These corrective actions are reasonable and are hereby approved. In calculating the penalty, Respondent has assessed a $500.00 administrative penalty for Respondent maintaining a stationary installation that is reasonably expected to be a source of water pollution without a permit. This is based upon a violation of Section 403.121(5), Florida Statutes, which makes it unlawful to not comply with a regulatory statute's requirement. Under Section 403.121(6), Florida Statutes, the Department has also assessed a $500.00 per day penalty against Respondent for failing to file a SAR for nineteen days, for a total of $9,500.00. When added to the $500.00 previously assessed, the total administrative penalty is $10,000.00, which is the maximum allowed in this type of proceeding. See § 403.121(2)(a), Fla. Stat. Throughout this process, Mr. Schuberg has contended that the responsibility for cleanup lies with the person or entity actually responsible for placing the drums and tub on the property in 1995. He says that the evidence clearly shows that Family Dry Cleaners is the responsible party. However, the Department and local authorities were never able to confirm who actually dumped the waste on the subject property. Although Mr. Schuberg says it will take "[i]n the hundreds of thousands of dollars" to clean up the site, the evidence shows that when he purchased the mortgage in 1998 and assumed ownership in 1999, he knew the property was contaminated. Mr. Schuberg further stated that because his consultant could never get "answers" from the Department, the consultant was instructed to stop work. However, Mr. Schuberg never contacted the Department to get clarification about what was required. At hearing, Mr. Schuberg also offered a lay opinion that his consultant's report filed in March 2008 proves that in 1995 the contents of the drums and tub were dumped on an offsite asphalt road adjacent to the property, surface water runoff then carried the chemical solvents onto his property, and the empty drums and tub were left in the parking lot. The Department's expert did not agree with this supposition, and there is no expert testimony to confirm the accuracy of this theory. Respondent has also contended that the property should be cleaned up with state funds. As pointed out by a Department witness, however, one problem is that the property does not meet the definition of a dry cleaner and thus cannot qualify for funds under that program. Then, too, a state-funded cleanup is a last resort which is used only after the Department has exhausted all enforcement remedies. Also, in this era of tight budgets, the Department has a finite amount of funds to use for this purpose, and is limited to cleaning up only a few sites per year. Finally, the responsible party must first acknowledge by affidavit that it lacks the necessary resources to clean up the property before the Department "may" seek cleanup funds. Respondent has not yet filed such an affidavit or admitted liability. In terms of mitigating evidence, Mr. Schuberg conceded that he has not done "a whole lot" to address the contamination problem since acquiring the property in 1999. In 2008, he did expend around $20,000.00 in having a PSAR and Addendum prepared for the Department. In all other respects, he steadfastly refuses to spend any more money on assessments or take responsibility for the cleanup since he believes that Family Dry Cleaners is the entity responsible for site rehabilitation.
The Issue Whether Amendments to Rules 17-2.600 and 17-2.710, Florida Administrative Code are invalid by virtue of being an invalid exercise of delegated legislative authority. Whether the economic impact statement prepared by the Department was adequate.
Findings Of Fact The proposed amendments to Rule 17-2.600 and 17-2.710, Florida Administrative Code (the Rule) were published in the February 17, 1989 Florida Administrative Weekly, and were adopted by the Environmental Regulation Commission on March 22, 1989. MEDX timely filed a petition to challenge the Rule on March 13, 1989, prior to adoption. Promulgation of the Rule resulted from Senate Bill 1192 later codified as Section 403.704(31), Florida Statutes, which directed the department to initiate rulemaking to address the management of biohazardous waste and biological waste within the state. This statute requires such rules to address on-site and off-site incineration as well as regulation of such waste from the point of original to final incineration. The Rule here involves only the incineration of this waste. Rule 17-712, Florida Administrative Code regulates off-site handling, transportation and disposal of biological waste, while proposed Rule 10D-104 (by DHRS) will regulate on-site handling and disposal of biological waste. Biohazardous waste is generally any solid or liquid waste which may present a hazard of infections to humans. Biological waste is solid waste that causes or has the capacity of causing disease and infection, and includes, but is not limited to, biohazardous waste, diseased or dead animals, and other waste capable of transmitting pathogens to humans or animals. The Rule sets emission and operating standards for incinerators which burn biological waste. The Rule sets different standards for different size incinerators, with the result that incinerators with a capacity of 500 pounds per hour (pph) or less, if properly constructed and operated, are likely to be able to meet the standards and the rules without the use of additional pollution control devices, such as scrubbers, depending upon the waste stream being incinerated. Incinerators with capacities of more than 500 pph are unlikely to be able to meet the standards in the Rule without the use of additional pollution control devices such as scrubbers, although it is possible that some may be able to meet these standards. The incineration of a ton of biological waste in several 500 pph capacity incinerators without scrubbers is likely to emit more total particulates and hyrdogen chloride (HCl) into the air than would be the same ton of biological waste burned in a 2,000 pph incinerator equipped with a scrubber. All biological waste incinerators, of whatever size, would be subject to all other applicable ambient air quality standards in addition to the minimum emission standards in the Rule and would be further subject to pollution limitations established for each area. Proposed Rule 17-712 and Department of Health and Rehabilitative Services proposed Rule 10D-104, which together regulate the storage, treatment and disposal of biological waste, are likely to substantially increase the number of biological waste generators regulated by the State of Florida and are likely to increase the amount of biological waste regulated by the State of Florida. It is, therefore, likely that the amount of biological waste incinerated in the state, as well as the persons contracting with biological waste incinerator facilities, will increase as a result of these rules. Currently, all incinerators with capacities of less than 50 tons per day (which includes all biological incinerators in this state) are exempt from air emission standards, with the exception of visible emissions and odor. The Rule, by setting standards for particulate emissions and HCl emissions, as well as setting standards for residence time, carbon dioxide emissions, monitoring, operator training, and start-up and shut-down procedures, will impose more stringent requirements on all biological waste incinerators than currently exist, regardless of the size of the incinerator. MEDX is a biohazardous waste transportation and disposal company founded in 1978. MEDX has two incinerators at its Miami facility with a combined capacity of 4500 pph. The older unit is rated at 2000 pph and the newer one at 2500 pph. During the last fiscal year, MEDX invested approximately 3.5 million dollars in its Dade County facility for pollution control devices, buildings and water containment. The Dade County facility incinerates all biological waste treated by MEDX in Florida. Biological waste from northern and central Florida is collected by trucks operating out of Lakeland, Florida, from where this waste is transported on larger trucks to the Dade County facility for incineration. As a result of emission control problems MEDX entered into a consent decree with Dade County in which MEDX agreed to equip its two Dade County incinerators with anti-pollution equipment (scrubbers) in 1989 at a cost of approximately $300,000 each. Prior to promulgating the Rule, DER held workshops at which MEDX and all other interested parties were invited to participate and were given the opportunity to present evidence regarding the Rule and the economic impact of the Rule. Additionally, the Department considered studies by the Environmental Protection Agency, looked at incinerators operating in Florida, consulted with other professionals in the field, contacted other states and looked at their rules, and solicited written comments from affected parties. As a result of these studies, it was concluded that the most important factor in reducing harmful emissions is to ensure good combustion. This is addressed in the Rule by requiring 1800 degrees F. operating temperature in the upper chamber, for a residence time of one second, with constant monitoring of this temperature and to require the use of trained incinerator operators. It was further concluded that good combustion could be further ensured by monitoring carbon monoxide (CO) emissions and establishing a requirement that CO emissions not exceed 100 parts per million. Manufacturers of incinerators were contacted to determine the minimum particulate emission attainable without control devices and these manufacturers agreed their incinerators could, if properly operated, attain a particulate limitation of 0.1 grain per dry standard cubic foot corrected to 7 percent oxygen. Accordingly, this standard was adopted. A majority of these incinerators burn hospital waste which generally contains large quantities of polyvinyl chlorides (plastics) which, when burned, produces HCl. The amount of HCl emissions can be controlled to a large extent by controlling the amount of plastic that is put into the waste stream. Federal regulations for hazardous waste facilities require the hydrogen chloride emissions not exceed four pounds per hour. If the incinerator can't meet that limitation they have to provide 99 percent elimination. Since most incinerators with a capacity of less than 500 pph can meet this limitation of HCl emission, that standard was adopted and is consistent with the Federal rule. Biohazardous waste incinerators are controlled air incinerators. Waste is loaded into a lower chamber which partially burns the waste creating a smoke which is burned and consumed in the upper chamber leaving, theoretically, carbon dioxide, nitrogen and water vapor. However, even the best incinerator cannot reach complete combustion and some particulates remain. Also the burning of plastics which contains chlorine results in the emission of HCl. Small incinerators with a capacity of less than 500 pph are generally referred to as batch incinerators because they are loaded with a batch of waste to burn and when that process is completed the incinerator is turned off, the ashes are removed and the incinerator is ready for another batch. Batch incinerators are usually run for 10 - 12 hours per day. Another type incinerator is the continuous burn incinerator. This type incinerator generally has a capacity greater than 500 pph and is characterized by some mechanism which can continuously feed waste material into the incinerator and remove ashes without shutting dawn the incinerator. In preparing the Rule DER conducted a survey of existing incinerators in Florida which dispose of biohazardous wastes and found the vast majority of these facilities have a capacity of less than 500 pph and a majority have a capacity of less than 200 pph (Exhibits 6 and 23). Installing pollution control devices (scrubbers) on small incinerators with capacity less than 500 pph is not economically feasible because the amount of emission reduction will not justify the cost of the scrubbers. On the other hand, larger incinerators benefit from economies of scale which allows scrubbers to be cost effective in reducing pollutants. Without controls and assuming the same combustion, an incinerator with a capacity of 2,000 pph will emit four times the pollutants of a 500 pph capacity incinerator, assuming both operate the same number of hours per day. Accordingly, the concentration of harmful emissions will be much higher in the vicinity of the large incinerator than in the vicinity of the small incinerator. The concentration of HCl, for example, is more significant in determining the adverse impact than is the quantity of HCl emitted. Petitioner's contention that the Rule will result in a proliferation of small incinerators and therefore lead to increased air pollution instead of a diminution of such pollution cannot be so. There is presently no control over any of these incinerators burning biohazardous wastes, except for visible emissions and odor; and even if the Rule did not limit the emissions which require scrubbers on the larger incinerators, the Rule would improve air quality simply by setting standards which will improve combustion in all of these incinerators. By limiting total emissions of HCl and particulates, the Rule will result in improved air quality. ECONOMIC IMPACT STATEMENT Pursuant to Section 120.54(2), Florida Statutes, an Economic Impact Statement (EIS) was prepared by the Department prior to adoption of the Rule. Section 120.54(2)(b), Florida Statutes provides the Economic Impact statement shall include: An estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork; An estimate of the cost or the economic benefit to all persons directly affected by the proposed action; An estimate of the impact of the proposed action on competition and the open market for employment, if applicable; A detailed statement of the data and method used in making each of the above estimates; An analysis of the impact on small business as defined in the Florida Small and Minority Business Assistance Act (FSNBA) Act of 1985. There is no issue that the EIS properly addresses the cost to the agency. The estimated cost to persons affected by the Rule, in addition to permit fees, was estimated by the Department at $20,000 to $40,000 annually for incinerators with a capacity greater than 500 pph. This figure was arrived at by annualizing the cost of a scrubber over a 20 year period, and adding the annual operating costs of that scrubber. The costs for incinerators with a capacity of 500 pph or less was estimated as a one-time expense of $15,000 to $20,000 to modify the incinerator to meet the retention time required by the Rule. No evidence was presented to refute the accuracy of these figures. MEDX contends the EIS is fatally defective because it fails to include the transportation costs associated with the operation of large off-site incinerators. While MEDX obviously incurs large transportation costs in treating in its Dade County facility biohazardous wastes generated in the Florida panhandle, for example, the same costs are not involved in treating waste generated in South Florida. Even if the Rule may result in small incinerators having a cost advantage in some areas over regional incinerators many miles away, it does not follow that large regional incinerators which are required to install scrubbers cannot compete economically with small incinerators located in the same general area, or that the EIS is fatally defective for not including such costs. Economies of scale will offset some of the additional costs involved in having to install scrubbers. In addition to not including transportation costs, the EIS also did not include the cost of facility siting or construction which could vary greatly depending on whether the facility is on-site or off-site. The EIS addresses only the costs of complying with the Rule. The Rule sets emission and operating standards and the EIS addresses only the costs associated with complying with those standards. Petitioner also challenges the statement in the EIS that the proposed revisions would benefit the public in reducing emissions in the air. The fallacy of that argument is pointed out in finding 23 above.
Recommendation From the foregoing it is concluded that amendments to Rule 17-2.600 and 17- 2.710, Florida Administrative Code are not invalid exercises of delegated legislative authority and that the Economic Impact Statement adequately reflects the economic impact of the rules on the agency, the public, and the regulated community affected by the rule. It is, therefore, ORDERED that MEDX's challenge to Rule 17-2.600 and 17-2.710, Florida Administrative Code be dismissed. DONE AND ENTERED this 12th day of June, 1989, in Tallahassee, Leon County, Florida. K.N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1989. APPENDIX Treatment Accorded Petitioner's Proposed Findings Included in HO #1 and #2. Included in HO #2. Included in HO #7. Included in HO #1. Included in HO #7. Included in HO #10. Included in HO #11. Rejected as speculation and unreasonable. Accepted. Included in HO #18. Included in HO #19. 12, 13, 14. Included in HO #20. 15, 16. Included in HO #18. Accepted in principle. However, this finding is predicated upon the fact that incomplete combustion will occur when the temperature in the upper chamber is less than 1800 degrees F. Accepted. Included in HO #4. Accepted, but irrelevant to the validity of the Rule. Rejected. The Rule requires monitoring. Included in HO #4. Rejected. 24, 25. Included in HO #4. Included in HO #5. Included in HO #6. Included in HO #7. Same as 20. Same as 20. Same as 20. See HO #27. Same as 20. Accepted. First two sentences accepted. Remainder rejected as mere opinion. Rejected insofar as not included in HO #5, #6 and #9. Same as 20. Same as 20. Rejected. First paragraph accepted; remainder rejected. Rejected insofar as in conflict with HO #4, #5, #6, #7, #14 and #17. Accepted insofar as compatible with HO #22. Same as 20. Accepted as the testimony of Dr. Fishkind; conclusions that EIS inadequate rejected. Rejected as argument. 47-53. Rejected. Treatment Accorded Respondent's Proposed Findings Included in HO #1. Included in HO #2 and #4. Included in HO #8 and #9. Included in HO #6. Included in HO #7. 6, 7. Included in HO #13. Accepted. See HO Conclusion of Law 5. Included in HO #24. Included in HO #25. Included in HO #26. Included in HO #28. Accepted insofar as included in HO #23. Accepted insofar as included in HO #22 and #23. Accepted insofar as included in HO #23, #27 and #28; otherwise rejected as irrelevant. Accepted, but irrelevant to validity of Rule. Included in HO Conclusion of Law 5. Included in HO #16, #21, #27 and #28. Rejected as argument. Included in HO #23. Same as 16. Included in HO #17 and #22. Included in HO #14 and #17. Accepted. Accepted insofar as included in HO #14; otherwise rejected as argument. Rejected as argument. Accepted insofar as included in HO #17, #22 and #23. Included in HO #15. Included in HO #12; otherwise rejected as argument. COPIES FURNISHED: Paul H. Amundson, Esquire Julie Gallagher, Esquire 204 B South Monroe Street Tallahassee FL 32301 Chris McGuire, Esquire Betsy Hewitt, Esquire Suite 654 2600 Blairstone Road Tallahassee, FL 32301 William D. Preston, Esquire Laura B. Pearce, Esquire 123 South Calhoun Street Tallahassee, FL 32301 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carroll Webb Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, FL 32399-1300 Liz Cloud Chief Bureau of Administrative Code Room 1802, The Capitol Tallahassee, FL 32399-1300
The Issue Whether Beker Phosphate Corporation should be granted a hermit to construct an industrial waste water facility pursuant to chapter 403, Florida Statutes. By application, dated April 8, 1975, Beker Phosphate Corporation (hereinafter Beker) , sought a permit to construct an industrial waste water facility in Manatee County, Florida, from the Department of Pollution Control (now and hereinafter DER) . The application was received on April 11 and, after advising Beker that the application was incomplete a meeting was held on May 9th between DER and Beker representatives with the result that Beker filed a new application dated June 11, that was received by the DER in July. Further meetings were held in the fall of 1975 and additional in formation was received as to the application. On December 16, 1975, DER secretary. Jay W. Landers, Jr., issued a Notice Of Intent To Grant A Permit With Conditions. The conditions were unspecified in the letter of intent (Exhibit 1.) Subsequently, on December 23 and December 24, 1975, Sarasota County (hereinafter Sarasota) and the Town of Longboat Key (hereinafter Longboat Key), respectively, filed petitions with the DER alleging that their substantial interests would be adversely affected by approval of the permit application and setting forth in their petitions certain disputed questions of fact for determination. After a prehearing conference, Amended Petitions were filed by those parties to clarify and expand on such questions of fact and to resolve procedural matters. Additionally, during this period, George Browning, III, of Sarasota, Florida was granted status as an intervenor.
Findings Of Fact Beker proposes to construct a phosphate rock mine and beneficiation plant on a tract of approximately 11,000 acres in a predominately agricultural and ranching area of Manatee County about 10 miles from Myakka City, Florida. The mining will be performed by two dredges. One will mine overburden and return it to the mined-out area and the other will mine phosphate rock matrix which will be pumped to the beneficiation plant. The plant will consist essentially of two circuits. The first is a washer where the matrix pumped from the dredging operation is partially cleaned of clay and fine sand, and the coarser phosphate particles "pebbles" are separated as a product. The "fines" from the washing operation consist of small phosphate rock particles, sand, and clay. This mixture will be treated in the second section of the plant by "flotation" methods to recover the small phosphate rock particles as a product. During initial operation, the sand and clay will be stored in a temporary waste material storage area, but as the mining proceeds and the dredge pits open up, the sand and clay material will be pumped back to the dredge pits so that sand, and overburden will be mixed and redeposited to reclaim the land. Approximately 8 million gallons of fresh water per day will be drawn from the Floridian aquifer to be used in the flotation circuits. From the plant the water flows in two types of streams--one containing sand suspended in water and one containing clay suspended in water. Both streams flow into a settling pond surrounded by an earthen dam where sand and clay solids settle to the bottom. The clarified water is then decanted through six spillway structures into a hydraulic recirculation ditch outside the dam and flows back to the plant for re-use. The ponds and canals that make up the hydraulic circuit are planned to have sufficient capacity to contain rainwater falling on the site and pond system during the wet season when there are heavy rainfalls (approximately from May to September). Excess water will be decanted from the hydraulic recirculation ditch through a structure into a pipe and then discharged into Wingate Creek. The settling pond will occupy approximately 225 acres and its capacity will be about 8,458 acre- feet. The pond itself can be used to act as a reservoir and water can be built up in the pond during periods of high rainfall. It will not be necessary to release the water at any particular time. It can be released at will when the effluent contains a minimum of pollutant materials (Exhibit 1). Matrix is an unconsolidated mixture of phosphate pebbles and boulders of partly phosphatized limestone, quartz and clay. The washing operation removes unwanted oversized material and fine clays. The purpose of the flotation plant is to recover fine phosphate rock that might otherwise be lost. In the flotation process, flotation reagents, including sulfuric acid, number 2 fuel oil, tall oil, sodium hydroxide, and amines are used for treatment. The wastes are then moved to the settling pond where over a period of time the "slimes", (sands and clays) will settle to the bottom forming an impervious layer which will seal the pond. The settling process removes more than 90 percent of the contaminants from the influent. The coarser clay particles settle first and many of the fine particles settle in a process called "flocculation" by which electrical forces bring the particles together. However, some of the particles will not flocculate and remain suspended in the water. These extremely small particles constitute the total suspended solids that remain in the effluent when it is discharged from the settling area. They probably will not settle out entirely during their course from Wingate Creek into the Myaaka River and eventually to the Gulf of Mexico. However, even if it were assumed that such materials would settle somewhere between the point of discharge and Charlotte Harbor, over the entire 20 year proposed life of the mine they would form a deposit much less than 1/10th of an inch. Although it is technically possible to treat water to the degree that it would result in distilled water, realistic concepts of treatment establish that an additional settling or "polishing" pond for the proposed facility might not improve the quality of the wastewater finally discharged in state waters to any appreciable degree. Alternative proposals for the reduction of pollutants by additional processing, such as the intentional growth of water hyacinths in settling areas or use of chemical coagulants would result in creating other waste materials and thus be counterproductive (Testimony of Bromwell; Exhibit 1). The applicant's discharge of wastewater to Wingate Creek will average approximately 3.19 million gallons per day. However, since discharge will be effected primarily during periods of excessive rainfall, actual discharges can reach a maximum of about ten million gallons per day during this period. The effluent contained in such discharge will meet the test of at least 90 percent removal of organic and inorganic wastes specified by Rule 17-3.04(1), Florida Administrative Code, when measured by the influent into the settling pond and the effluent leaving that area. This treatment, however, will not produce an effluent equivalent to that produced by the "highest quality municipal waste treatment." The highest degree of treatment that has been reached by municipalities is "advanced waste treatment" as defined in Rule 17-3.04(2)(b), Florida Administrative Code. The water quality characteristics of the effluent will meet the standards of Rule 17-3.05 as to concentrations of those pollutants reasonably anticipated to be fond in the wastewater based on samples taken where the waters are discharged into Wingate Creek (Testimony of Gilgallon, Davis, Edwards, Heinzman, Bromwell, Bartow, Wellford, Exhibit 1). In preparing the application, no consideration was given to the need of meeting treatment standards for highest quality municipal waste treatment or advanced waste treatment. Neither did the recommending official of the DER, Mr. Edwards, then Regional Administrator for the Southwest Region, consider this standard because he had been advised by the DER legal staff that Rule 17-3.04(2) did not apply to Wingate Creek since it was not a tributary to one of the bodies of water listed in subparagraph (c) of the rule 17-3.04(2). This determination was based upon Resolution No. 74-83, September 17, 1974, of the Florida Pollution Control Board that was issued after legal challenges had been made to an interpretation by the Department of Pollution Control legal staff that Rule 17-3.04(2) required advanced wastewater treatment for industrial waste discharges. The Board, in its resolution, determined that since evidence had not been taken concerning treatment standards for industrial waste discharges at the time of adoption of the effluent standards for sanitary waste contained in Rule 17-3.04(2), the advanced wastewater treatment standards in the aforesaid rule would not be enforced against industrial dischargers pending full hearings on a new Rule to clearly express the Board's intent in this regard (Testimony of Gilgallon, Edwards; Exhibit 1). Special conditions that the Southwest Region, Department of Environmental Regulation, recommends should be attached to any issuance of a construction permit, other than standard conditions and those relating to other types of permits, are as follow: Approval by DER prior to the construction of any above grade phosphatic clay storage facility other than the initial settling pond. Removal efficiencies for oil and grease shall be a minimum of 90 percent and shall not exceed 14 milligrams per liter measured in the discharge effluent. Discharge effluent to Wingate Creek shall meet the water quality standards of Chapter 17-3.05(2) at the point of discharge prior to mixing with the receiving stream. Further treatment of the discharge will be required in the event compliance with proviso (c) above cannot be achieved or significant degradation of the receiving stream occurs as determined by the DER. In addition to required routine monitoring, a detailed analysis of the untreated and treated wastewater to be conducted once on representative samples during (1) month of July and (2) month of February. Such analyses shall, as a minimum, include all the parameters listed in 17-3:05(2). Applicants shall conduct an investigation into total retention possibilities of the effluent including, but not limited to, the following areas: recharge wells retention and storage of excess water during the "wet" season with subsequent reuse during the "dry" season for process and/or irrigation purposes. A report of these investigations shall be submitted prior to submission of operation permit application The location of monitoring wells shall be down gradient from the settling pond. Detailed proposal, subject to the DER approval, regarding exact location and number of wells to adequately ascertain the impact of seepage to be submitted no later than 90 days prior to commencement of operation. Bond to be posted for damages that may result from a clay settling area dam failure. Oral and written communications from the public were received at the hearing and included the following: Announcement by the County Attorney, Manatee County, that the county did not plan to appeal the DER Notice of Intent to Grant the permit (Statement of E.N. Fay, Jr.). The Division of Recreation and Parks, Department of Natural Resources, fears that the construction of the phosphate mine up-stream from the Myaaka diver State Park poses a serious potential threat to its aquatic habitat due to the possibility of a dam failure. It also fears that pollutants from the project will tend to settle as the river waters flow through the two lakes in the park. It therefore, opposes the construction until assurance can be given that proper safeguards have been taken to prevent such problems (Testimony of Alverez). The Longboat Key Garden Club believes that the project would involve too much water consumption and also that phosphate mining should be halted until further government studies are made to assure that the safety and health of the populace and the environment will not be endangered through polluted runoff and phosphate spills (Testimony of Monroe). The Save Our Bays Association in Manatee County has collected petitions from citizens in Manatee County requesting a referendum on a ballot this November for or against phosphate mining. The Association believes that such a vote should be taken before final decision is made on the subject. Its spokesman fears that if the quality and quantity of the drinking water is disrupted, it will interfere with continued tourist trade (Testimony of Howard Greer). The Palma Sola Parks Association opposes the Beker Application until there is greater assurance of environmentally safe mining (Testimony of Blankenship) A former physical and health education director is concerned about the fact that there has not been sufficient data collected on the effect of radioactive materials in runoff and waste. She believes there should be more research in these areas and asked that the public be protected from such hazards (Testimony of Mary Kay Greer). The Manasota-88 project for environmental qualities of 1968 and 1988 believes that issuance of the permit should be withheld until health implications can be determined concerning potential hazards to the Myakka and Manatee Rivers' watersheds (Exhibit 7). A former member of the Manatee County Planning Commission that approved the Beker application prior to action by the County Commission of Manatee County is in favor of the proposed project because Beker's plan to impound water will augment the water facilities of the county (Testimony of Reasoner). The City of Bradenton believes that since it is being required to meet advanced water treatment standards of discharge for sanitary sewage, Beker Phosphate Corporation should be required to meet similar standards (Testimony of Mayor A.K. Leach). A member of the Myakka City Civic Association who is an adjacent land owner to Beker Phosphate Corporation feels that the project is necessary in order to produce jobs for individuals in that area of the county (Testimony of Mizell). The U.S. Fish and Wildlife Service is concerned that proposed construction of two dams by the applicant will destroy approximately (4) acres of mangrove areas, three acres of pasture land and about 185 acres of bottom land or hardwood habitat. It recommends an alternative method of backup levies constructed around the primary settling bases on the applicant's land to contain any spills and prevent destruction of the streams and associated wetlands (Testimony of Johnston) The Conservation Council of Manatee County believes that Beker's unique mining and reclamation plan will help the farming industry and also create necessary water reserviors and recreation areas, and therefore endorses its proposal to mine in Manatee County (Testimony of Kent, Exhibit 14). Petitions were submitted at the hearing from approximately 3,000 individuals living in Manatee and Sarasota Counties opposing the issuance of the permit because they believe that phosphate mining is dangerous to the quality and supply of the water and endangers the health of the people (Composite Exhibit 9, Testimony of Humphrey).
The Issue The issue in this case is whether the Notice of Violation (NOV) and Orders for Corrective Action (OCA) filed by the Department of Environmental Protection (DEP) against Respondents, Thomas Kerper (Kerper) and All Salvaged Auto Parts, Inc. (ASAP) , in DEP OGC File No. 02-0447 should be sustained.
Findings Of Fact 1. The real property located at 3141 Sharpe Road, Apopka, Florida, is owned by the heirs of Donald Joynt, who owned it for the 30 years prior to his death in 2002. The property consists of approximately 40 acres in the shape of a right triangle with the west side bordered by Sharpe Road, the south side by a potting soil business, and the northeast side (the hypotenuse of the right triangle) bordered by a railroad track. Prior to his death, Joynt used the property primarily for the purpose of operating a junkyard and recycling business ultimately entitled Don's Auto Recycling. 2. At some time before 2000, Joynt became desirous of selling his property. He offered it to a neighbor named José Luis Benitez for $600,000. Benitez counter-offered for between $350,000 and $400,000 because he thought it would cost $200,000 to $250,000 to clean the property up. Joynt rejected the counter-offer, and asked Benitez to help him find a buyer who would pay more than Benitez. At some point, Joynt listed the property with a real estate broker for $600,000. 3. In 1999, Kerper was operating an automobile parts salvage business at a location near Joynt's property. Kerper needed a new location to move his business and inventory. A real estate broker showed him Joynt's property. The broker told Kerper that the seller's broker said the property was clean and had no environmental problems. The broker also told Kerper that Orange County had recently purchased an easement for $300,000 to run a drainage ditch through the property to a local lake, which was true. While this gave Kerper some level of assurance, the broker advised Kerper to have an environmental assessment done before going forward with the sale. 4. After being shown the property by the broker, Kerper spoke with Joynt directly. It was agreed that they could save the real estate commission and split the savings by waiting until the listing expired. Joynt personally assured Kerper that there were no environmental issues, as evidenced by Orange County's purchase of the easement for a drainage ditch. In late March of 2000, after expiration of the real estate commission, Kerper and Joynt entered into an informal agreement allegedly written on a scrap of paper, which was not placed in evidence. Kerper testified that the agreement was for him to buy the property for $500,000, with $100,000 down, and the balance payable over time at seven percent interest. He also testified that the required $100,000 down payment would be payable in installments, with $25,000 payable whenever Joynt cleaned 25 percent of the site to make it usable by Kerper for his business operations. 5. When it came time for Kerper to move onto Joynt's property, Kerper discovered that Joynt had not done any clean-up or removed any of his property from the site. Used cars, car parts, and tires that belonged to Joynt remained throughout the site. According to Kerper, it was agreed that Kerper would help Joynt clean off the western half of the property, which was split approximately in half by a stream, while Joynt worked on cleaning off the eastern half of the property.” 6. Starting from the gate at Sharpe Road, Kerper began removing junk from the western side to the eastern side of the site for Joynt to remove from the property. Pieces of equipment and used car parts that had been left there by Joynt were removed from this section of the property. When enough space was cleared off, Kerper began setting up his auto salvage operations on the western side. He used a bulldozer to level the driveways and spread powdered concrete where the ground was soft. He also used the bulldozer to level an area near the scale house, which was on the western side of the property, but continued to be used by Joynt for Don's Auto Recycling business. In doing this work, his workers encountered steel reinforcement bars, which Kerper had them cut with a torch. Some tires and battery casings also were visible in the ground. Kerper had several truckloads of fill dumped in the area and installed a concrete pad for storing and dismantling automobiles. 7. In September or October of 2000, Kerper was evicted from his prior business location, and he had to move to Joynt's property regardless of its condition. As he increased business operations on the cleared spaces, Kerper continued to clear more space on the western side of the property. Another concrete pad was installed farther to the north. Eventually, Kerper was operating ASAP on approximately ten acres on the western side of the 40-acre site. 8. As Kerper continued to move north, his heavy equipment began encountering assorted kinds of buried material. When a buried propane tank exploded, Kerper stopped working his heavy equipment in the area and confronted Joynt. Joynt denied any knowledge of buried tanks and stated they must have been placed there by someone else. Joynt told Kerper he would let Kerper move his operations to the east side of the property when Joynt finished cleaning it up, and then Joynt would finish clearing the western side for Kerper. Kerper agreed, and continued making payments on the required down payment. According to Kerper, he eventually paid $90,000 of the down payment. 9. By August of 2001, Kerper began to have serious misgivings about Joynt's promises and the condition of the site, and he decided to seek advice. Kerper hired David Beerbower, vice-president of Universal Engineering, to perform an assessment of the northern portion of his side of the site (in the vicinity where the exploding tanks were encountered). During his assessment on August 20, 2001, Beerbower observed various automotive parts including numerous crushed fuel tanks, antifreeze containers, and motor oil containers being excavated from the upper three feet of soil. It was determined by Beerbower, and stated in his written report to Kerper, dated September 21, 2001, that these parts appeared to have been buried there several years ago. This determination, which DEP does not dispute, was based on the high level of compaction of the soil found around these items that could be attributed to either the passing of a significant amount of time or a bulldozer passing over the items. Since the excavations Beerbower observed were in a separate location from where Kerper had already bulldozed, the soil compaction around these items could not be attributed to Kerper's bulldozing. It was stated in Beerbower's letter that the “amount of buried automotive debris qualifies this area essentially as an illicit landfill." ad 10. Mark Naughton from the Risk Management Division of the Orange County Environmental Protection Division (OCEPD), which runs the petroleum storage tank and cleanup program for Orange County under contract with DEP, was also present during the time Beerbower conducted his assessment. Naughton agreed with Beerbower's assessment that Kerper is not liable for the assessment or remediation of this area. Naughton also advised Kerper to move ASAP off Naughton's property and to seek legal advice from attorney Anna Long, who used to be the Manager of OCEPD. 11. Meanwhile, according to Kerper, Joynt changed his position and began to maintain that it was Kerper's responsibility to clean up the western side of the property. Given the newly-discovered environmental condition of the property, Kerper did not feel it was in his best interest to purchase the property "as is," and contacted Long to help him negotiate to extricate himself from his arrangement with Joynt. While negotiations proceeded, Kerper began to scale down ASAP's operations in anticipation of relocating. Kerper began fixing up more whole automobiles for resale, and had a car crusher used in connection with ASAP's business begin crushing more cars for removal from the site for recycling. 12. Eventually, Long had Beerbower conduct another assessment of portions of Joynt's property to try to establish responsibility for contamination as between Kerper and Joynt. On 10 February 13, 2001, Beerbower took a surface water sample froma "drain pipe under the north driveway," a soil sample "where the car crusher was," and another soil sample from "the sandblasting area." The evidence was not clear as to the exact location of these samples, particularly the soil samples, as described in Beerbower's written report to Long dated March 11, 2002. But it appears that the "car crusher" refers to the location of Respondents' car crusher operation in the northern part of the site, just across the northern driveway; it appears that the sandblasting area refers to a location used by Joynt on the eastern side of the property, but located just east of the trailers used by Kerper for his offices. These samples were analyzed and found not to contain volatile organic compounds (VOC) or total recoverable petroleum hydrocarbons (TRPH) in excess of Florida's cleanup target levels. 13. Kerper continued to operate his junkyard until the beginning of March of 2002. On March 5, 2002, Long filed a citizen's complaint with OCEPD on Kerper's behalf. While acknowledging that Kerper was operating on the site at the same time as Joynt in recent years, the complaint alleged Kerper's discovery that Joynt had been burying waste batteries, tires, and gasoline tanks on the property and covering the burial sites with broken concrete pieces. The complaint alleged that Kerper had been moving his personal property off of the site since August of 2001, when he backed out of his "lease to purchase" agreement 11 with Joynt, and would be "completely off the property by 3/10/02." 414. It is not clear exactly when Kerper and ASAP were completely off the property. The testimony and evidence on the point is inconsistent. Kerper, after some confusion, placed the date at March 9, 2002. His wife said it was March 2, 2002. An attorney representing Kerper and ASAP in an eviction proceeding filed by Joynt and his wife, filed a notice "that as of the evening of March 15, 2002, [ASAP had] vacated the property." In any event, the evidence seemed clear that Kerper and ASAP did not go on Joynt's property on or after March 15, 2002. 15. On March 15, 2002, DEP representatives inspected Joynt's property in response to Long's complaint. Kerper remained outside the front gate of the property and did not participate in the inspection. This inspection covered the entire property including the section that had been occupied by Kerper and ASAP. 16. doynt told the DEP inspectors that Respondents were responsible for a 55-gallon drum found tipped over on its side on the western half of the site and leaking a substance that appeared to be used oil from a hole in the side of the drum. DEP's inspectors righted the drum, which still was partly full of its contents. There also were several other unlabeled 55-gallon drums and 5-gallon containers "of unknown fluids"; a burn pile containing burned oil filters, battery casings, and electrical 12 wiring; other broken battery casings; and an area of dark-stained soil which appeared to be soaked with used oil. Joynt accepted responsibility for other contamination on the site, but told DEP that Kerper and ASAP were responsible for these items. Kerper denied the allegations. 17. As to the leaking oil drum, Kerper first contended that DEP did not prove that the overturned drum contained used oil. But the evidence was clear that DEP's inspectors were ina position to determine that the liquid was oily. Respondents also contended that the drum would have been empty, not still partly full, if Kerper or ASAP had left it on its side at the site when they vacated the property several days earlier. Kerper alleged that Joynt could have put the hole in the drum and turned it over shortly before the arrival of DEP's inspectors. But, as stated, it was not clear when Kerper and ASAP vacated the site, and it was not clear from the evidence that Respondents were not responsible. 18. Similarly, the other unlabeled drums and containers were in a part of the site occupied and used by Respondents. Despite Kerper's denials, it is not clear from the evidence that they belonged to Joynt or that they were placed where DEP found them after Respondents vacated the site. Testimony that Respondents had containers properly labeled "used oil," "antifreeze," and "gasoline" inside one of the trailers on the site did not negate the existence of unlabeled drums and 13 containers on the site. However, there was no proof whatsoever as to what the closed drums and containers held. But some were open, and DEP's inspectors could see that these held an oily substance (possibly hydraulic fluid), mixed with other substances. 19. As to the dark-stained soil, none of it was tested, and Respondents contended that it was just naturally darker in color or possibly wet from water or some other liquid, DEP's witness conceded could explain the color variation. (Natural reasons such as different soil or rainwater probably do not explain the color variations in the site.) Joynt told DEP's inspectors that the discoloration seen by them on March 15, 2002, was froma hydraulic hose on a piece of heavy equipment that burst earlier. The evidence was not clear who Joynt was saying owned and operated the equipment. But Respondents also blamed Joynt's employees for repeatedly blowing hoses on aged heavy equipment all over the site. It is found that the dark-stained soil probably was the result of one or more releases of hydraulic fluid or motor oil. However, the testimony and evidence was not clear that all of the releases were Joynt's doing and that Respondents bear no responsibility at all for the releases observed on March 15, 2002, in the areas where Respondents were operating. 20. Respondents were able only to produce documentation of proper disposal of 232 gallons of oily water through IPC/Magnum, 14 dated February 13, 2002, and 29 batteries through Battery World, dated March 8 and 14, 2002. 21. The testimony of Kerper and others was that Respondents generally removed gasoline from automobiles and placed it ina marked container for reuse within a day or two by Respondents and their employees. The testimony was that used oil and antifreeze generally also were removed from automobiles and placed in marked containers until proper disposition. The testimony was that batteries were removed from automobiles and that most were given to one of the employees to sell for a dollar apiece. There was no documentation to support this testimony. 22. There was testimony that, when Respondents had cars crushed, E & H Car Crushing Co., Inc., managed the collection and proper disposition of gasoline, used oil, and batteries. But the documentation placed in evidence contained no description of the wastes removed, but only provided a weight calculation of the materials removed from Respondents’ facility. 23. There was testimony that Gabriel Lynch, who was properly licensed, removed freon from automobiles at Respondents’ facility every two to three days, or upon request. Respondents would trade the freon Lynch recovered and used in his business, Gabe's Auto Tech, for repair work on Respondents' vehicles. However, no documentation of these transactions was produced. (Lynch testified that he did not know it was required that he provide documentation to Respondents.) 15 24. Runoff from where Respondents were operating on Joynt's property entered the stream running north-south through the center of the property. Neither Joynt nor Respondents had a stormwater permit or an exemption from stormwater permitting. 25. Kerper argued that his duties were limited to managerial responsibilities for ASAP, and that he was not at any time responsible for ASAP's day-to-day operations and did not conduct any activities that may or could have resulted in hazardous waste or petroleum discharge violations so as to be liable as an "operator." But the evidence was clear that Kerper was involved in ASAP's day-to-day operations. 26. While the evidence did not totally absolve Respondents from the allegations in the NOV, several people testified on Respondents' behalf as to their practice of properly disposing of hazardous materials generated by his business. For example, Rafael Rivera, a former employee, testified that Kerper would get mad at him if any gas or oil was spilled and left on the ground or was not disposed of properly. Meanwhile, it appeared that environmental problems at Joynt's site existed for years before the arrival of Respondents. Mrs. Sandra Lovejoy, a neighboring property owner for the past 30 years, testified that she had experienced problems with her water quality, such as a foul smell or funny taste, for many years before Respondents moved onto Joynt's property. An inspection was conducted by OCEPD in September of 2000, in response to Lovejoy's complaint regarding 16 fuel odor and a drinking well which was no longer in service. In part, OCEPD's written report on the complaint found "[m]any spots of surficial petroleum contamination . . . from gasoline, motor oil and other petroleum products leaking or spilled from the junk vehicles" at Don's Auto Recycling and included a recommendation "referring this site to the FDEP task force that has been put together to inspect and deal with junk yard facilities," although "[n]o Petroleum Cleanup issues were found at [that] time." For reasons not explained by the evidence, it does not appear that Don's Recycling was referred to any task force, or that OCEPD followed up on the reported contamination. 27. Respondents contend that this entire proceeding against them was part of a vendetta against Kerper for going to the local television station to expose the condition of the site, the failure of OCEPD and DEP to follow up on the September 2000, report and recommendation, and Orange County's purchase of a north-south drainage easement through the western portion of the property in 2000. The evidence did not prove this contention. However, it is clear that Joynt was responsible for the condition of most of the 40-acre site, not Respondents, and that Joynt shared responsibility with Respondents for the conditions alleged in the NOV. 28. While this case has been pending, Joynt's heirs have cooperated with DEP in cleaning up the site, and DEP acknowledged in its PRO that several items in the OCA--specifically, those 17 relating to Counts II, III, and VII of the NOV--are moot and unnecessary in light of Respondents' eviction from the property and subsequent cleanup operations by Joynt's heirs. It also is suggested that the corrective actions requested in DEP's PRO to address Counts IV, V, and VI of the NOV--relating to failure to document proper disposal of wastes--are unnecessary. It seems clear that, to the extent such disposals occurred, any available documentation would have been placed in evidence during the final hearing. Ordering that they be produced within 30 days of the Final Order, as suggested in DEP's PRO, would be a futile act. 29. Count VIII of the NOV alleged costs "of not less than $500. In its PRO, DEP requested recovery of $1,367.31 of costs. Some of these costs--$867.31--were itemized in the PRO. The balance appears to relate to the $500 alleged in the NOV. There was no evidence introduced at the final hearing as to any of these alleged costs, and the costs itemized in the PRO seem to represent travel costs of counsel for DEP.
Conclusions David J. Tarbert, Esquire Jason Sherman, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Albert E. Ford II, Esquire Webb, Wells & Williams, P.A. 994 Lake Destiny Road Suite 102 Altamonte Springs, Florida 32714
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 providing: 1. Under Count I of the NOV, Respondents shall be jointly and severally liable, along with Donald Joynt and Don's Auto Recycling, for cleaning up the releases of used oil evidenced by the discolored soils photographed by DEP's inspectors on 24 March 15, 2002 (DEP Exhibit 20, photographs 5 and 7 on page 2 of the exhibit). As such, they shall be responsible, along with Donald Joynt and Don's Auto Recycling, for implementation of DEP's Initial Site Screening Plan to assess and remove all contaminated soils resulting from those releases. If the results of the Initial Site Screening indicate that further assessment and/or remediation of the contamination is required, Respondents shall also participate, along with Donald Joynt and Don's Auto Recycling, in completing the required work, consistent with the "Corrective Actions for Contaminated Site Cases" (DEP Exhibit 16). 2. Counts II through VIII of the NOV are dismissed. 3. Respondents' Motion for Attorney's Fees and Costs is denied. DONE AND ENTERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Vane ya J. LAWRENCE JOHNSTON 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 19th day of December, 2003. 25
