The Issue At issue in this proceeding is the reasonable cost to be reimbursed Petitioner, under the provisions of Section 376.3071(12), Florida Statutes, for the development of a Monitoring Only Plan (MOP) program for the Dagam Oil Company (DEP Facility No. 138504146), at 331 23rd Street, Miami Beach, Florida.
Findings Of Fact Background Petitioner, Panhandle Industries, Inc., is a Florida corporation engaged in the business of consulting, engineering and construction. George M. Hidle, a professional geologist licensed in the State of Florida, is the president and sole owner of the Petitioner corporation. In September 1992, Dagam Oil Company, doing business as Sierra Fina, employed Petitioner to do environmental assessment work and prepare a Contamination Assessment Report (CAR) under the then existing Rule 17-770.630, Florida Administrative Code, for a site located at 331 23rd Street, Miami Beach, Florida (DEP Facility No. 138504146).4 That CAR was submitted to DERM (Metropolitan Dade County, Department of Environmental Resources Management) July 13, 1993. (Petitioner's Exhibit 1.) Pertinent to this case, the CAR provides the following background or historical information: . . . PHYSICAL SETTING . . . Sierra Fina is located at 331 23rd Street in Miami Beach, Florida . . . The facility is bordered to the north by Collins Canal, to the east by the light commercial properties, and to the south/southeast by property that once contained Chevron and Fina service stations. . . . * * * . . . FACILITY HISTORY AND OPERATION Sierra Fina was built in 1963. The station originally operated as a Sunoco service station with a 3 bay garage. Dagam Oil Company purchased the facility in March 1981 from Charles Rosenblatt. At the time the station had five underground fuel tanks. . . . * * * . . . PREVIOUS INVESTIGATIONS Dagam Oil Company contracted with another environmental company in November 1988 to collect groundwater samples from . . . five monitoring wells at the facility. Groundwater samples were collected on November 9, 1988 and analyzed by EPA Method 602. Monitoring well MW-3 was also analyzed by EPA Method 610. All five of the wells had hydrocarbon contaminant concentrations in excess of state guidelines. . . . A discharge notification form was mailed to the DER and DERM on December 9, 1988, the date of receipt of the analytical results from the November 9, 1988 groundwater sampling event. . . . * * * . . . INITIAL REMEDIAL ACTIONS [IRA] [The F]ive underground storage tanks [and associated piping] were removed from the facility during March and April 1989 [, and replaced with four new cathodically protected underground petroleum storage tanks]. Approximately 400 cubic yards of contaminated soil was also removed at that time. On March 31, 1989 a composite sample of the soil was collected for analysis . . . Because of limited space at the station, the contaminated soil was hauled to a Metro Trucking Inc. storage yard located at 112th Avenue and 143 Street in Miami. The contaminated soil was landfarmed at this Metro Trucking facility for a period of seven months, during which time the soil was spread onto visqueen and tilled on a regular basis. On November 21, 1989 the soil was resampled and analyzed . . . Results of this second round of analyses met clean fill criteria. Also at the time of tank replacement, a sheen of free floating hydrocarbons was observed on water in the tank pit. A vac truck was used to skim this product from the pit prior to tank replacement. Approximately 2100 gallons of oily water were removed, transported, and disposed of by Cliff Berry, Inc. . . . Other than these IRA activities, no other assessment or remediation work had been performed at the facility until Petitioner was employed in September 1992. Petitioner's CAR concluded that: Soil and groundwater at Sierra Fina are contaminated with gasoline and diesel hydrocarbons. Excessively contaminated soil is confined to an area at the western end of the station building that is approximately 20 feet in width by 30 feet in length, extending down to a water table of between 6 and 8 feet below land surface. No free phase floating product is present on the groundwater underlying this facility. However, dissolved hydrocarbon contamination is present in the groundwater. A dissolved hydrocarbon plume is present in the western half of the site. This plume measures 80 feet in length by 60 feet in width and extends to a depth of less than 22 feet below land surface, yielding approximately 134,640 gallons of hydrocarbon contaminated water. Volume calculations are based on an average depth to groundwater of 7 feet below land surface and an effective soil porosity of 25%. The highest benzene (53.3 ppb) and total napthalenes (752 ppb) concentrations were detected in MW-12. * * * Groundwater within the Biscayne Aquifer beneath Sierra Fina is nonpotable because of salt water intrusion from the Atlantic Ocean. For this reason there are no private or public potable wells in the area. Contamination at Sierra Fina is limited onsite to the western half of the station, and poses no threats to sensitive receptors in the area, with the possible exception of Collins Canal. The cause of hydrocarbon contamination was never determined; however, the most probable source, i.e. previous petroleum tanks and lines, were removed in March and April of 1989. Based on these findings and the data presented about or elsewhere in this report, it is known that soil and groundwater contamination does exist at this facility in concentrations that exceed guidelines specified in Section 17- 770.730(5)FAC; however, the levels of contamination may not warrant the need for any extensive remediation activities at this site. Petitioner's CAR was approved by DERM on October 8, 1993, and Petitioner was directed to submit a Remedial Action Plan (RAP) within 60 days.5 At the time, Mr. Hidle (Petitioner) was aware that the levels of contamination were low or near target levels, and that it was likely that the contamination levels would decrease naturally over time. Consequently, Petitioner elected to seek approval of a Monitor Only Plan (MOP), as opposed to a RAP. Such choice was favored based on the nature and location of the contaminants. In this regard, it was observed that the soil contamination consisted of both gasoline and diesel fuel, with much of the contaminated soil abutting or underneath the building. Excavation and removal of the soil was not an alternative because it would undermine the structural integrity of the building. Moreover, given the fuel mix, vapor extraction was not a viable option. Given Petitioner's choice to pursue approval of a MOP, it gave notice to the Department and DERM on October 18, 1993, as well as November 12, 1993, and December 2, 1993, of its intention to undertake groundwater sampling and soil sampling on the site. Groundwater sampling was undertaken by Mr. Hidle between 1:30 p.m., November 30, 1993, and 2:30 a.m., December 1, 1993,6 at which time he drew water samples for laboratory analysis from 10 monitor wells (MW) and one deep well (DW). A duplicate sample was also retrieved at MWs 12R and 14, and equipment blanks were also obtained for laboratory analysis. Between 8:25 p.m., December 4, 1993, and 3:40 a.m. December 5, 1993,7 Mr. Hidle and a senior technician (Martin Hidle) augured 6 soil borings for use in preparing the MOP and collected one soil sample for laboratory analysis. Petitioner delivered the water samples to the laboratory (Envirodyne, Inc.) on December 2, 1993, and the soil sample on December 6, 1993, for analysis. The laboratory completed its analysis of the water samples on December 13, 1993, and of the soil sample on December 14, 1993, and rendered its written reports (analysis) to Petitioner.8 Upon receipt of the laboratory data, Mr. Hidle completed his preparation of the MOP. (Petitioner's Exhibit 4.) That MOP contained the following conclusions and recommendations: The initial dissolved hydrocarbon plume dimensions were based on data from groundwater sampling events of January and February 1993. Laboratory results from a more recent sampling event (11/30/93) indicate that plume size and hydrocarbon compound concentrations therein have decreased substantially (Table 4-2). Maximum groundwater contaminant concentrations decreased as follows: benzene from 53.3 ppb to 11.1 ppb; BTEX from 111.7 ppb to 20.6 ppb; total naphthalenes from 752 ppb to 246.1 ppb. During the contamination assessment program task a small area of contaminated soil was found to be abutting the western end of the station building (CAR, Fig. 3-1, p. 35). Because of the presence of diesel compounds in the groundwater, it was assumed during preparation of the CAR that the soil too was contaminated with diesel. In early December 1993 PI Environmental personnel installed six additional soil borings (Figure 3-1, SB-16 through SB-21) and collected one soil sample for laboratory analyses. The soil borings were augered in the immediate area of the previously defined contaminated soil plume, and soil samples were analyzed in the field by using a Foxboro OVA 128. Soil samples were collected vertically every two feet, beginning at one foot below ground surface and continuing until the water table was encountered. A soil sample was collected from boring SB-17 at a depth of six feet below land surface. A net OVA reading of 160 ppm was observed from a duplicate sample taken from the same depth. The soil sample was tested by EPA Methods 3540/8100 (diesel compounds) and 9073 (TRPH). Laboratory results indicated that all diesel compounds were below laboratory detection limits, and the TRPH concentration was below normal background readings. Soil contamination was reclassified as being gasoline in origin, because no diesel compounds were detected in the soil sample from SB-17. Section 17-770.200(2) Florida Administrative Code defines excessively contaminated soil, associated with gasoline contamination, as those that have a net OVA/FID reading equal to or greater than 500 ppm. From December 1993 sampling event, a maximum net OVA/FID reading of 316 ppm was obtained from a sample that was collected at five fee below land surface in SB-17. Based on these results, no excessively contaminated soil was found during the most recent sampling event. It is the recommendation of PI Environmental Inc. that a Monitoring Only Plan be implemented at Sierra Fina. This recommendation is based on the following findings: 1) Absence in the study area of any potable water wells within the Biscayne Aquifer because of salt water intrusion from the Atlantic Ocean 2) Absence of free phase hydrocarbons 3) Absence of excessively contaminated soil 4) Substantial decrease in concentrations of dissolved hydrocarbon compounds within the groundwater during the last year, and 5) relatively low levels of hydrocarbon contamination in the groundwater, i.e., based on the November 30, 1993 sampling event, maximum benzene of 11.1 ppb, maximum BTEX of 20.6 ppb, and maximum total naphthalenes of 246.1 ppb. It is our recommendation that groundwater from monitoring wells MW-8, MW-12R, MW-6, and MW-17 be sampled on a quarterly basis. Groundwater from the source area wells, MW-8 and MW-12R, should be analyzed quarterly by EPA Methods 602 and 610. Groundwater from the perimeter wells, MW-6 and MW-17, should be analyzed quarterly by EPB Method 602 and semiannually by EPA Methods 602 and 610. Petitioner submitted the MOP to DERM on January 24, 1994. Pertinent to this case, it is observed that the MOP was a brief document, consisting of only 13 pages of textual material, much of which was a restatement of material contained in the CAR. The balance of the report consisted of 5 "Figures" (three of which were contained in the CAR and one of which is an updated version of a CAR Figure); 2 "Tables" (an update of the Water Table Elevation table contained in the CAR to include the November 30, 1993, data, and an update of the Summary of Groundwater Analyses contained in the CAR to include the November 30, 1993, and December 1, 1993, data); 6 "Geologic Log[s]" (a restating of the soil boring results noted in the field notes for December 4 and 5, 1993); copies of the laboratory (Envirodyne, Inc.'s) reports of groundwater analysis; and the laboratory's report on the soil analysis. In all, while apparently adequate and nicely presented, the MOP does not address a complex or unique issue, and does not evidence the expenditure, or need to expend, an inordinate amount of effort to produce. Petitioner's MOP was disapproved by DERM on May 11, 1994, for the following reasons: A complete round of groundwater analyses, no greater than six months old, is required. Therefore, all wells at this site must be sampled for EPA Method 418.1, and monitoring wells numbered MW-6, MW-9, MW-10, MW-11, MW-13, MW-16, and MW-17 must be sampled for EPA Method 610. Because diesel contamination is present at this site, soil OVA readings above 50 ppm are considered to indicate excessively contaminated soil. Based on this OVA readings obtained for your Contamination Assessment Report (CAR) and this MOP, excessively contaminated soil does exist at this site. Since this coil could be a continuing source of contamination, it must be removed prior to the approval of a MOP. Consequently, Petitioner was directed to submit an addendum to the MOP to address those issues. On June 1, 1994, Petitioner gave notice to the Department and DERM of its intent to collect groundwater samples to address issues raised by DERM's MOP review letter. These samples were collected by Mr. Hidle and a technician (Leo Iannone) between 1:15 p.m. and 10:00 p.m., June 15, 1994.9 Petitioner delivered the water samples to the laboratory (Envirodyne, Inc.) on June 16, 1994. The laboratory completed its analysis and delivered its written reports to Petitioner on or about June 23, 1994. Upon receipt of the laboratory data, Mr. Hidle completed the Monitoring Only Plan Addendum (Petitioner's Exhibit 8), and submitted it to DERM on July 5, 1994. The addendum addressed the additional groundwater analysis that was performed, and with regard to the diesel contamination it observed, as follows: Soil analytical results (MOP, Page 62) are below laboratory detection limits for EPA 610 compounds; however, because groundwater at this facility is contaminated with both gasoline and diesel, we are concurring with DERM by reclassifying excessively contaminated soil as any soil that exhibits net OVA/FID readings of 50 ppm or greater, per Chapter 17-770 FAC. OVA/FID soil analyses were performed in accordance to Panhandle Industries, Inc. approved Comp QAP. Net OVA/FID soil results obtained during the CAR program task are shown in Figure 1-5. A maximum net OVA/FID reading of 887 ppm was obtained during CAR soil assessment activities which ended on November 29, 1992. Figure 1-6 shows net OVA/FID results obtained during the MOP program task. These MOP analyses are current through December 5, 1993. A maximum net OVA/FID of 316 ppm was obtained during this latter event. As is shown in comparison of Figures 1-5 and 1-6, it can be seen that the size of the soil contaminant plume and OVA/FID net soil readings therein have decreased significantly since initiation of the CAR. Also, by observing Figure 1-6, which has a scale of 1" = 20', it is evident that very little soil, if any can be excavated without jeopardizing the structural integrity of the station building. Furthermore, there exist the possibility that some soil contamination may underlie the building itself; therefore, soil excavation would most likely result in only partial removal of the contaminated soil plume. The addendum concluded by recommending that the MOP be implemented as originally proposed, but with additional monitoring to assure a continuing decline in contamination. The addendum, like the MOP, was a brief document and contains only 6 pages of textual material. The balance of the addendum contains 6 "Figures" (all of which appeared in the CAR or MOP); 2 "Tables" (an update of the Water Table Elevations table contained in the MOP to include June 15, 1994, data, and an update of the Summary of Groundwater Analyses contained in the MOP to include the June 15, 1994, data); and the laboratory reports of groundwater analyses. As with the MOP, the addendum did not appear to address any complex or unique issues, and did not evidence the expenditure, or need to expend, an inordinate amount of time to produce. On August 16, 1994, and August 26, 1994, DERM and the Department, respectively, approved the "monitoring only" proposal. The request for reimbursement Petitioner submitted its reimbursement application on or about August 23, 1994, and it was apparently complete on or about April 18, 1996. (Petitioner's Exhibit 11). That application sought recovery of the following sums for the items noted: 6. REMEDIAL ACTION PLAN [MOP and MOP Addendum] PREPARATION . . . Personnel 31442.55 Capital Expense Items Rentals 1127.45 Mileage 68.05 Shipping 35.00 Well Drilling Permits Analysis 3680.00 Miscellaneous 1601.25 REMEDIAL ACTION PLAN PREPARATION TOTAL 37954.30 * * * 13. REIMBURSEMENT APPLICATION PREPARATION Supplementary Forms Personnel 795.00 Capital Expense Items Rentals 15.00 Mileage .80 Shipping 86.81 Well Drilling Permits Analysis Miscellaneous 60.75 APPLICATION PREPARATION TOTAL 958.36 CERTIFIED PUBLIC ACCOUNTANT REVIEW FEE 500.00 APPLICATION GRAND TOTAL 39412.66 By letter (Order of Determination of Reimbursement) of June 27, 1996, the Department responded to Petitioner's reimbursement request as follows: We have completed review of your Reimbursement Application for expenses incurred during the Remedial Action Plan/Monitoring Only Plan program task at this site and have determined that $13,198.70 of the total $39,412.66 requested is allowable for reimbursement. This amount will be paid to the person responsible for conducting site rehabilitation when processing is completed by the Comptroller's Office. Some adjustments to the amount of reimbursement requested have been made. The following list details these adjustments. Citations refer to the specific sections of the enclosed Reimbursement Application Summary Sheets: 1. $24,766.25 in Section 6A, $259.95 in Section 6C, $28.20 in Section 6D and $63.25 in Section 6I were deducted because the total personnel hours (413.15 hours) and the total cost of $39,412.66 claimed for performing a limited scope of work consisting of 78.34 hours of field activities, two rounds of analyses (59 samples) and two letter reports have been determined to be excessive. However, actual field activities (including a reasonable amount of preparation), two rounds of analyses and a reasonable amount of personnel time to prepare two letter reports have been allowed. 2. $162.50 in Section 6A, $9.00 in Section 6E and $331.15 in Section 6I were deducted for costs associated with providing backup for the Contamination Assessment reimbursement application. These costs are not reimbursable in this application which is for the Remedial Action Plan/Monitoring Only Plan program task. $184.80 in Section 6A and $394.56 in Section 6I were deducted for field supplies, ice, conducting database modifications and purchasing office supplies, which are considered to be overhead. These costs are not justified in addition to the loaded personnel rates which already include overhead and profit. $11.76 in Section 6I was deducted because the rate for reproduction ($0.99 per page) has been determined to be excessive. However, $0.15 (per page) has been allowed based on the predominant rate claimed in other reimbursement applications for similar rates. $19.56 in Section 13E was deducted for costs added to the application preparation claimed as a markup. Reimbursement for application preparation is limited to actual costs only. $17.02 was added to the application grand total to cover the cost of reproducing the reimbursement application and invoices and shipping the replacements to the Department. (Petitioner's Exhibit 12.) Petitioner filed a timely challenge to contest the Department's decision. That challenge disputed the Department's action, as set forth in paragraphs numbered 1 through 4 of the letter, but Petitioner did not then, or at hearing, dispute the Department's action with regard to the matters contained in paragraphs numbered 5 and 6 of the Department's letter. (Petitioner's Exhibit 13). Subsequently, at hearing, Petitioner withdrew its request for reimbursement regarding the items contained in paragraph 3 of the Department's letter. (Transcript, page 101). The claim for the cost of preparing the reimbursement application Petitioner's claim for the cost of preparation of the reimbursement application totalled $1,458.36 (including the certified public accountant review fee). The Department proposed to deduct $19.56 (in Section 13E), and to add $17.02 to cover certain costs, as noted in the Department's letter. (Petitioner's Exhibits 12 and 13). Petitioner offered no objection to the Department's decision and, therefore, Petitioner should be awarded $1,455.82, without the need for further discussion, as the cost of preparing the reimbursement application. The claim for the cost of preparation of the MOP and MOP Addendum Petitioner's application for reimbursement claimed 413.15 personnel hours ($31,442.55) were dedicated to the development of the MOP (329.42 hours/$25,500.95) and the MOP Addendum (83.73 hours/$5,941.60). (Respondent's Exhibit 7, and Transcript, pages 188-190). In its initial review, the Department approved 55.67 hours ($3,790.45) for the MOP and 41.92 hours ($2,538.55) for the MOP Addendum, for a total award of $6,329.00. Subsequently, the Department resolved to accept as reasonable, 89 hours ($6,308.00) for the MOP and 83.73 hours ($5,941.60) for the MOP Addendum, for a total award of $12,249.60 for personnel costs.10 The 83.73 hours ($5,941.60) agreed to by the Department for the MOP Addendum was the precise amount Petitioner requested in its reimbursement application; however, the 89 hours ($6,308.00) accepted by the Department for the MOP is clearly less than the 329.42 hours ($25,500.95) Petitioner had requested. With regard to the difference, the Department views the request as excessive. In contrast, Petitioner contends the time requested was reasonable. Here, the Department's view has merit. To support the reasonableness of the hours (labor) claimed, Petitioner pointed to the "Daily Time Log[s]" which were contained within the reimbursement application, and which it contended contain an accurate recording of the hours worked and the task performed. (Petitioner's Exhibits 11, and Transcript, pages 29 through 31). According to Mr. Hidle, all employees of the company were required to keep a notepad on which they were to record the job (customer), hours worked, and task performed. At some future date, perhaps up to a week or more, those entries were ostensibly transferred to the "Daily Time Log." (Transcript, pages 29 through 31, and page 84). Consequently, Mr. Hidle contends Petitioner's "Daily Time Log[s]" may be relied upon to accurately reflect the hours actually worked, and that those hours were reasonably expended. Here, considering the record, Mr. Hidle's testimony is rejected as not credible or, stated otherwise, inherently improbable and unworthy of belief. In so concluding, it is observed that there is nothing of record, either in the exhibits or testimony offered at hearing, that could possibly explain the dichotomy between the number of hours claimed for development of the MOP (329.42) and the number of hours claimed for development of the MOP Addendum (83.73). Notably, neither project was particularly complex, and the tasks performed were reasonably alike. Similarly, it is inherently improbable, given the limited field work and the product produced (the MOP), that production of the MOP could require 329.42 hours or, stated differently, eight and one-quarter weeks, at 40 hours per week. Finally, most of the entries for which substantial blocks of time are assigned contain only vague or general terms to describe the task, such as "literature review," "MOP/RAP preparation," "file review," and "schedule/plan/coordinate RAP/MOP." Such practice renders it impossible to determine what work was actually done, whether the work was duplicative, and whether the time was actually expended or reasonable. Given the record, it must be concluded that the proof offered by Petitioner to support the number of hours claimed for development of the MOP is not credible or persuasive, and that it would be pure speculation to attempt to derive any calculation or meaningful estimate based on such proof. In the end, Petitioner must bear the responsibility for such failure. While Petitioner's proof offers no credible basis upon which to derive the number of hours dedicated to the MOP and their reasonableness, Petitioner obviously dedicated time to the MOP, and to the extent the record provides a reasonable basis on which to predicate an award, it is appropriate to do so. Here, given the lack of credibility of Petitioner's "Daily time Log[s]," as well as the testimony of Mr. Hidle, to provide a basis on which to derive the number of hours actually worked, and then test those hours against the standard of reasonableness, the only option is to award the 89 hours or $6,308.00, which the Department agrees were reasonably expended. Finally, with regard to the miscellaneous cost items, as opposed to personnel hours, rejected by the Department's letter of June 27, 1996, it must be resolved that Petitioner failed to offer, at hearing, any compelling proof that the items rejected by the Department were reasonable expenditures incurred in development of the monitor only program. Consequently, the following sections of Petitioner's reimbursement application have been reduced by the sums stated: $295.95 deducted from Section 6C; $28.20 deducted from Section 6D; $9.00 deducted from Section 6E; and $800.72 deducted from Section 6I. The award for reimbursement Given the proof, Petitioner should be awarded the following sums, for the items indicated, as reimbursement for preparation of the MOP and MOP Addendum: Personnel $12,249.60 Capital Expense Items Rentals 867.50 Mileage 39.85 Shipping 26.00 Well Drilling Permits Analysis 3680.00 Miscellaneous 800.53 TOTAL 17,663.48 For expenses involved in preparation of the reimbursement application, Petitioner should be awarded the following sums for the items indicated: Personnel $ 795.00 Capital Expense Items Rentals 15.00 Mileage .80 Shipping 67.25 Well Drilling Permits Analysis Miscellaneous 77.77 APPLICATION PREPARATION TOTAL 955.82 CERTIFIED PUBLIC ACCOUNTANT REVIEW FEE 500.00 TOTAL FOR APPLICATION PREPARATION 1,455.82 In all, Petitioner should be accorded a total reimbursement of $19,119.30.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered which awards Petitioner the sum of $19,119.30, as reimbursable costs. DONE AND ENTERED this 22nd day of February, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 22nd day of February, 1999.
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 is whether Respondent's Construction and Demolition Debris Disposal Facility Permit No. 003397-013-SO (the Permit) should be revoked and the facility closed for the reasons stated in the Department of Environmental Protection's (Department's) Notice of Revocation (Notice) issued on July 31, 2014.
Findings Of Fact A. The Parties, the Property, and the Dispute The Department administers and enforces the provisions of chapter 403 and the rules promulgated thereunder, including those applicable to construction and demolition debris (C & D) disposal facilities. Respondent is a Florida limited liability corporation that owns real property located at 6990 Rolling Hills Road, Pensacola, Escambia County (County), Florida. The large, odd- shaped parcel (whose exact size is unknown) is south-southwest of the intersection of Interstate 10 and Pensacola Boulevard (U.S. Highway 29) and has Class III fresh surface waters running in a northeast-southwest direction through the middle of the property. See Resp. Ex. 28. The entire site is surrounded by a six-foot tall fence or is separated from adjoining properties by natural barriers. A railroad track borders on the eastern side of the parcel; the western boundary fronts on Rolling Hills Road; and the northern boundary appears to be just south of West Pinestead Road. Id. The area immediately south of the parcel appears to be largely undeveloped. See Dept. Ex. 40. The Emerald Coast Utilities Authority (ECUA), a local government body, has an easement that runs along the eastern side of the property adjacent to the railroad track on which a 48-inch sewer pipe is located. An older residential area, known as Wedgewood, is located northeast of the facility on the north side of West Pinestead Road. Id. The closest Wedgewood homes appear to be around 400 or 500 feet from the edge of Respondent's property. A community and recreational center, the Marie K. Young Center, also known as the Wedgewood Center, serves the Wedgewood community, is northwest of the facility, and lies around 500 feet from the edge of the property. Established in 2012 where a school once stood, it has more than 200 members. Although non- parties, it is fair to say that the Wedgewood community and County strongly support the Department's efforts to revoke Respondent's permit. Respondent acquired the property in 2007. At that time, an existing C & D disposal facility (the facility) was located on the property operating under a permit issued by the Department. The Permit was renewed in February 2013 and will expire in early 2018. Besides the general and specific conditions, the renewed Permit incorporates the terms and conditions of a Consent Order executed in November 2012, as well as detailed requirements relating to the operation of the facility, water quality monitoring, an odor remediation plan, financial assurance and cost estimates, and closure of the facility. The latter requirements are found in four Appendices attached to the Permit. The facility operates under the name of Rolling Hills Construction and Demolition Recycling Center. All material received by the facility is disposed of in an active disposal pile known as cell 2, located in the middle of the northern section of the parcel. Cell 1, southwest of cell 2 and just east of Rolling Hills Road, was closed a number of years ago by the prior operator. Respondent operates the only C & D facility in the County.1/ It currently serves around 50 to 60 active customers, employs 16 persons, and operates between the hours of 7:00 a.m. and 5:00 p.m. The former manager, Charles Davidson, who had overseen operations since 2010, was replaced in June 2014, and Respondent blames him for ignoring or failing to address most of the problems encountered during the last three years. Since June, the managing partner of the LLC, Scott C. Miller, has overseen the operations. Unlike Class I or III landfills, a C & D landfill may accept only construction and demolition debris. Construction and demolition debris is defined as "discarded materials generally considered to be not water soluble and non-hazardous in nature." § 403.703(6), Fla. Stat.; Fla. Admin. Code R. 62- 701.200(24). Debris includes not only items such as steel, glass, brick, concrete, asphalt material, pipe, gypsum wallboard, and lumber that are typically associated with construction or demolition projects, but also rocks, soils, tree remains, trees, and other vegetative matter that normally result from land clearing or land development operations. Id. No solid waste other than construction and demolition debris may be disposed of at the facility. See Fla. Admin. Code R. 62- 701.730(4)(d). To address and resolve certain violations that predated the renewal of the Permit, the Department and Respondent entered into a Consent Order on November 14, 2012. See Dept. Ex. 2. These violations occurred in 2011 and included the storage and/or disposal of non-C & D debris, and a failure to timely submit an appropriate Remedial Action Plan (RAP). Id. Among other things, the Consent Order required that within a time certain Respondent submit for Department review and approval an RAP; and after its approval to "continue to follow the time frames and requirements of Chapter 62-780, F.A.C." Id. Those requirements included the initiation of an active remediation system and site rehabilitation within a time certain, and the continued monitoring and related corrective action for any water quality violations or impacts. Id. To ensure that it has the financial ability to undertake any required corrective action, the Permit requires Respondent to provide proof of financial assurance for the corrective action program cost estimates. See Fla. Admin. Code 62-701.730(11)(d); § 2, Spec. Cond. F.1. This can be done through a number of mechanisms, such as a performance bond, letter of credit, or cash escrow. The Permit also requires Respondent to provide proof of financial assurance to demonstrate that it has the financial ability to close the facility and otherwise provide for the long-term care cost estimates of the facility. See Fla. Admin. Code R. 62-701.630; § 2, Spec. Cond. F.2. Rather than using a cash escrow or letter of credit, Respondent has chosen to use a performance bond for both requirements. These bonds must be updated annually to include an inflation adjustment. Given the many requirements imposed by the Permit and Consent Order, in 2013 and 2014 several follow-up site inspections of the facility were conducted by the Department, and a review of the operations was made to determine if the various deadlines had been met. Also, in 2014, the Department received complaints from the County and neighboring property owners, almost exclusively by those residing in the Wedgewood community, regarding offensive odors emanating from the facility. Based on field observations, the review of operations, and odor complaints, on July 31, 2014, the Department issued a Notice containing eight counts of wrongdoing. The Notice was issued under section 403.087(7)(b), which authorizes the Department to revoke a permit when it finds the permit holder has "[v]iolated law, department orders, rules, or regulations, or permit conditions." To Respondent's consternation, the Department opted to use that enforcement mechanism rather than initiating an enforcement action under section 403.121 or executing another consent order, both of which would likely result in a sanction less severe than permit revocation.2/ The Notice contains the following charges: exceeding surface water quality standards in rules 62-302.500 and 62- 302.530 (Count I); failing to implement an RAP as required by the Consent Order and Permit (Count II); failing to provide adequate financial assurances for facility closure costs (Count III); failing to provide financial assurances for the corrective action required by the RAP (Count IV); failing to reduce on-site and off-site objectionable odors and to implement a routine odor monitoring program (Count V); disposing non-C & D waste on site (Count VI); failing to remove unauthorized waste (Count VII); and disposing solid waste outside of its permitted (vertical) dimension of 130 feet National Geodetic Vertical Datum (NGVD) (Count VIII). These allegations are discussed separately below. Although the Notice is based on violations that occurred on or before July 31, 2014, the undersigned denied the Department's motion in limine that would preclude Respondent from presenting mitigating evidence concerning circumstances surrounding the violations and efforts to remediate them after July 31, 2014. Given that ruling, the Department was allowed to present evidence to show that Respondent's remediation efforts have not been successful and that some violations still existed as of the date of final hearing. Respondent disputes the allegations and contends that most, if not all, are either untrue, inaccurate, have been remedied, or are in the process of being remedied. As noted above, Respondent considers the revocation of its permit too harsh a penalty in light of its continued efforts to comply with Department rules and enforcement guidelines. It contends that the Department is acting at the behest of the County, which desires to close the facility to satisfy the odor complaints of the Wedgewood residents, and to ultimately use the property for a new road that it intends to build in the future. Count I - Water Quality Violations The Notice alleges that two water quality monitoring reports filed by Respondent reflect that it exceeded surface water quality standards at two monitoring locations (MW-2 and SW-6) sampled on August 26, 2013, and at one monitoring location (MW-2) sampled on March 4, 2014. The Notice alleges that these exceedances constitute a failure to comply with Class III fresh surface water quality standards in rules 62-302.500 and 62- 302.530 and therefore violate conditions in the Permit. These standards apply in areas beyond the edge of the discharge area (or zone of discharge) established by the Permit. To ensure compliance with water quality standards, when the Permit was renewed in 2013, a Water Quality Monitoring Report (Appendix 3) was attached to the Permit. It required Respondent to monitor surface water for contamination, identify the locations at which samples must be collected, and specify the testing parameters. All of these conditions were accepted by Respondent and its consultant(s). The monitoring network, already in place when Respondent purchased the facility, consists of six ground water monitoring wells and three surface water monitoring stations. The surface water stations, which must be sampled to determine compliance with water quality criteria, are SW-5, a background location, and SW-6 and MW-2, both compliance locations located outside the zone of discharge. A background location is placed upstream of an activity in order to determine the quality of the water before any impacts by the activity. A compliance location is placed downstream of an activity to determine any impacts of the facility on surface water. The Water Quality Monitoring Plan and Permit require Respondent to submit semi-annual water quality reports. To conduct the preparation and filing of the reports, Respondent used an outside consulting firm, Enviro Pro Tech, Inc. (EPT). On November 5, 2013, EPT submitted a Second Semi-Annual 2013 report. See Dept. Ex. 5. According to Mr. Miller, who now oversees operations at the facility, EPT did not provide Respondent a copy of the report, or even discuss its findings, before filing it with the Department. A Department engineer reviewed the report and noted that surface water samples exceeded the Class III Fresh Water Quality Standards for iron, copper, lead, zinc, nickel, and mercury at SW-6 and for iron at MW-2. See Dept. Ex. 6. A copy of the Department's report was provided to Respondent and EPT. Notably, the report indicated that background levels were lower than the down-gradient results. Under Department protocol, if the samples at the compliance locations exceed both the regulatory levels and the background, there is a violation of water quality standards. This accepted protocol differs from Respondent's suggested protocol that the background level should be added to the regulatory standard before a comparison with the sample results is made. In sum, except for the reported nickel value at SW-6, a violation which the Department now says it will not pursue, all exceedances shown on Department Exhibits 5 and 6 are violations of the standards. On April 1, 2014, EPT submitted a First Semi-Annual 2014 report. See Dept. Ex. 7. A Department engineer reviewed the report and noted that the surface water samples at one monitoring location, MW-2, did not meet water quality standards for iron; however, background levels for iron were much higher than downstream. See Dept. Ex. 8. No other exceedances were shown. Although the Department engineer considered the higher background level for iron to be an "inconsistency" since it varied from the prior reports, the reported iron value was treated as a violation when the Notice was drafted. In its PRO, however, the Department concedes that it did not establish a violation of standards for iron, as alleged in paragraph 7 of the Notice. While having no concerns with sampling taken at MW-2, Respondent's expert contends that the reported values for SW-6 are unreliable because the samples taken from that location were turbid and filled with large amounts of suspended solid matter. He noted that the well is located in a wetland area that is "clogged with vegetation." The expert estimated the turbidity at the site to be in the range of 480 to 500 Nephelometric Turbidity Units (NTUs) and believes the sample was taken in a "high turbid sediment laden area," thus rendering it unreliable. However, at the time of the sample collection, turbidity was measured at 164 NTUs, or much less than the amount estimated by the expert. See Dept. Ex. 5, p. 147. There is no rule or procedure that disallows the use of turbid samples. In fact, they can be representative of actual water quality. Also, rule 62-302.500(2)(d) provides that if an applicant for a C & D permit believes that turbid samples are not representative of water quality, it may use filtered samples by establishing a "translator" during the permitting process. Respondent did not request a translator during the permitting process, nor is any such translator provision found in the Permit. The expert also criticized EPT for holding the 2013 sample for iron for 22 days after collection before reanalyzing it without providing any explanation for this delay. A reasonable inference to draw from the data, however, is that iron was present in the original sample at levels that required dilution and reanalysis. Respondent's expert testified that even though off- site stormwater is discharged onto the property, no offsite monitoring locations exist, and therefore any offsite exceedances would not be reported. He also criticized the sampling locations that were selected by EPT. In fairness to Respondent, a repositioning of the monitoring network and retesting of the samples might have produced more favorable results. But these are measures that should have been addressed long before this proceeding was initiated. Finally, Respondent's expert testified that the implementation of its RAP, now partially completed, will cure all of the reported exceedances. Assuming this unrefuted testimony is true, it should be taken into account in determining an appropriate penalty. Count II - Failure to Implement an RAP In this Count, the Department alleges that after the issuance of an RAP Approval Order on July 3, 2013, Respondent was required to implement the RAP within 120 days. The Notice alleges that as of July 31, 2014, the RAP had not been implemented. An RAP was first filed by Respondent on November 15, 2010. See Dept. Ex. 3. When the Department determined that changes to the RAP were necessary, the Consent Order imposed a requirement that an RAP addendum be filed within 150 days. The date on which the addendum was filed is not known. However, an RAP Approval Order was issued on July 3, 2013. See Dept. Ex. 4. The terms and conditions in the RAP were incorporated into the renewed Permit. The work required by the RAP consists of two phases, with all work to be completed within 365 days, or by early July 2014. Phase I related to the initiation of an active remediation system within 120 days, or by October 31, 2013. This phase requires Respondent to install a pump and treat system at the facility, which will withdraw contaminated groundwater through recovery wells, pump the water to aeration basins to treat the water, and then re-infiltrate the treated water back into the ground. As noted below, the system was not operational until the second week in December 2014. Respondent's failure to implement the approved RAP by the established deadline constitutes a violation of rules 62- 780.700(11) and 62-780.790 and Permit conditions, as charged in the Notice. While Respondent concedes that it did not comply with the deadline for implementing the RAP, it points out that work on Phase I was begun in a timely manner. However, on October 16, 2013, or just before the 120 days had run, a Notice of Violation was issued by the County. See Resp. Ex. 2. The effect of the Notice of Violation was to halt much of the work on Phase I until Respondent obtained a County stormwater permit. Respondent asserts that this was responsible for all, or most, of the delay. The record shows that the EPT consultant did not apply for the County permit until September 10, 2014, or almost one year after the Notice of Violation was issued. Additional information was required by the County, which was supplied on October 23, 2014, but final sealed documents were not filed by the consultant until around Thanksgiving. The permit was issued by the County "a week or so" before the final hearing. Respondent attributes the delay in applying for a County permit to its former manager and his failure to coordinate with the EPT engineers assigned to the project. It also claims that the County failed to process the application in an expeditious fashion. However, the facts suggest otherwise. Once the permit was issued, Phase I was completed on December 8, 2014, and it was operational at the time of the final hearing. Respondent's expert, hired in August 2014, has proposed a modification to the RAP that would avoid impacting the existing stormwater pond. However, the modification must be reviewed and approved by the Department, and as of the date of the hearing, it had not been formally submitted. The Department asserts that the only reason the modification is being sought is to reduce the cost of a performance bond. In any event, in its PRO, Respondent does not argue that the proposed modification excuses its 13-month delay in completing the requirements of Phase I, or the second phase of the project, which should have been completed by early July 2014. Count III - Failure to Provide Financial Assurance This Count alleges that Respondent failed to provide the required annual 2014 financial assurance mechanism that demonstrates proof of financial assurance for closure and long- term cost estimates of the facility. At the beginning of 2014, Respondent had an $836,000.00 financial performance bond in place for closure and long-term costs. The Permit requires that on or before March 1 of each year Respondent revise the closure cost estimates to account for inflation in accordance with rule 62-701.630(4). See § 2, Spec. Cond. F.2. Once the estimates are approved, the performance bond must be updated within 60 days. In this case, an increase of around $18,000.00 was required. The annual inflation adjustment estimate was not submitted until April 15, 2014. The Department approved the cost estimates the following day and established a due date of June 16, 2014, for submitting a revised financial assurance. Respondent did not have a revised performance bond in place until a "week or two" before the hearing. Other than Respondent's manager indicating that he had a new bonding agent, no evidence was presented to mitigate this violation. The failure to timely update its financial assurance for closure and long-term costs constitutes a violation of rule 62-701.630, as charged in the Notice. Count IV - Financial Assurances for Corrective Action In the same vein as Count III, the Notice alleges that Respondent failed to maintain a financial assurance mechanism to demonstrate proof that it can undertake the corrective action program required under the RAP. Respondent was required to submit proof of financial assurance for corrective actions within 120 days after the corrective action remedy was selected. On July 3, 2013, the RAP Approval Order selected the appropriate remedy. On August 8, 2013, the Department approved Respondent's corrective action program cost estimates of $566,325.85 and established a deadline of October 31, 2013, for Respondent to submit this proof. When the Notice was issued, a corrective action bond had not been secured, and none was in place at the time of the final hearing. This constitutes a violation of rule 62-701.730(11)(d) and applicable Permit conditions. Respondent's manager, Mr. Miller, concedes that this requirement has not been met. He testified that he was not aware a new bond was required until he took over management of the facility and met with Department staff on June 17, 2014. Due to the Notice, Mr. Miller says he has had significant difficulty in securing a bond. He explained that the bonding company is extremely reluctant to issue a bond to an entity faced with possible revocation of its permit, especially if such revocation might occur within a matter of months. Mr. Miller says the bonding company wants 100 percent collateralization to put a bond in place. Nonetheless, he is confident that a bond can be secured if only because its cost will dramatically drop when the RAP project is completed. However, even at hearing, he gave no timeline on when this requirement will be fulfilled. Count V - Objectionable Odors One of the driving forces behind the issuance of the Notice is the complaint about off-site objectionable odors. A considerable amount of testimony was devoted to this issue by witnesses representing the Department, County, Wedgewood community, and Respondent. The Notice alleges that during routine inspections in April, May, and July 2014, mainly in response to citizen complaints, Department inspectors detected objectionable odors both at the facility and off-site. The Notice further alleges that Respondent failed to immediately take steps to reduce the odors, submit an odor remediation plan, and implement that plan in violation of rules 62-296.320(2) and 62-701.730(7)(e) and section 2, Specific Condition E of the Permit. Notably, the Department has never revoked a landfill permit due solely to objectionable odors. Several Department rules apply to this Count. First, objectionable odors are defined in rule 62-210.200(200). Second, a C & D facility must control objectionable odors in accordance with rule 62-296.320(2). Finally, if odors are detected off-site, the facility must comply with the requirements of rule 62-701.530(3)(b). That rule provides that once off-site odors have been confirmed, as they were here, the facility must "immediately take steps to reduce the objectionable odors," "submit to the Department for approval an odor remediation plan," and "implement a routine odor monitoring program to determine the timing and extent of any off-site odors, and to evaluate the effectiveness of the odor remediation plan." These same regulatory requirements are embodied in the Permit conditions. See § 2, Spec. Cond. E. At least occasionally, every landfill has objectionable odors emanating from the facility. As one expert noted, "The trick is, how can you treat it." The technical witnesses who addressed this issue agree that the breakdown of drywall, wall board, and gypsum board, all commonly recycled at C & D facilities, will produce hydrogen sulfide, which has a very strong "rotten egg" type smell. The most effective techniques for reducing or eliminating these odors are to spray reactant on the affected areas, place more cover, such as dirt or hydrated lime, on the pile, and have employees routinely patrol the perimeters of the property and the active cell to report any odors that they smell. Although the facility has been accepting waste products for a number of years, the last seven by Respondent, there is no evidence that the Department was aware of any odor complaints before April 2014. While not an active participant in the operations until recently, Mr. Miller also testified that he was unaware of any citizen complaints being reported to the facility prior to that date. However, in response to citizen complaints that more than likely were directed initially to the County, on April 14, 21, and 24, 2014, the Department conducted routine inspections of the facility. During at least one of the visits, objectionable odors were detected both on-site, emanating from cell 2, and off-site on West Pinestead Road, just north of the facility. See Dept. Ex. 14. Because the inspector created a single report for all three visits, he was unsure whether odors were detected on more than one visit. After the inspection report was generated, Department practice was to send a copy by email to the facility's former manager, Mr. Davidson. A Department engineer who accompanied the inspector on at least one visit in April 2014 testified that she has visited the site on several occasions, and on two of those visits, the odor was strong enough to make her physically ill. On a follow-up inspection by the Department on May 22, 2014, the inspector did not detect any objectionable odors. See Dept. Ex. 17. In June 2014, however, a County inspector visited the Wedgewood Center area in response to a complaint that dust was coming from the facility. He testified that he detected a rotten egg type smell on the Wedgewood Center property. At a meeting attended by Mr. Miller and County and Department representatives on June 17, 2014, the Department advised Respondent of its findings and provided Mr. Miller with copies of the inspection reports. On July 1, 2014, the Department conducted a follow-up inspection of the facility. The inspector noted a hydrogen sulfide odor on the north, south, and west sides of the disposal area of the facility, and on the top of the disposal pile at the facility. See Dept. Ex. 18. Another inspection conducted on July 9, 2014, did not find any objectionable odors. See Dept. Ex. 19. On July 18, 2014, the Department conducted a follow-up inspection of the facility. The inspector again noted objectionable odors at the facility but none off-site. Id. On July 24, 2014, Department inspectors noted objectionable odors on top of the pile, the toe of the north slopes, and off-site on West Pinestead Road. See Dept. Ex. 20. An inspection performed the following day noted objectionable odors on top of the pile and the toe of the north slopes, but none off-site. Id. The Notice, which was already being drafted in mid-July, was issued a week later. In response to the meeting on June 17, 2014, Respondent prepared a draft odor remediation plan, made certain changes suggested by the Department, and then submitted a revised odor remediation plan prior to July 31, 2014. A Department engineer agrees that "in the strict sense it meets the requirements of the rule" and "could work," but there are "two or three things that still needed . . . to be submitted in order for it to be completely approvable." For example, she was uncertain as to how and when dirt cover would be applied, and how erosion would be controlled. Although the plan was filed, it was never formally approved or rejected, and the "two or three things" that the witness says still needed to be done were never disclosed to Respondent. Under these circumstances, it is reasonable to accept Respondent's assertion that it assumed the plan was satisfactory and complied with the rule. After the Notice was issued, Respondent set up a hotline for community members to call and report odors. A sign on the property gives a telephone number to call in the event of odors. At an undisclosed point in time, Respondent began requiring employees to walk the perimeter of the facility each day to monitor for odors; spreading and mixing hydrated lime to reduce the odors around the facility; and increasing the amount of cover applied to the working face of the facility. The parties agree that these measures are the best available practices to monitor and eliminate objectionable odors at a C & D facility. Despite these good faith measures, Mr. Miller acknowledged that he visited the facility during the evening a few days before the final hearing in December 2014 and smelled hydrogen sulfide around the ECUA sewer pipe and "a very mild level" by the debris pile. Respondent does not deny that odors were emanating from the facility during the months leading up to the issuance of the Notice. But in April 2014, the County experienced a 500- year storm event which caused significant flooding and damaged a number of homes. Because Respondent operates the only C & D facility in the County and charges less than the County landfill, it received an abnormal amount of soaked and damaged C & D debris, which it contends could have generated some, if not all, of the odors that month. Given the magnitude of the storm, this is a reasonable explanation for the source of the odors at that time. Respondent also presented evidence that an underground ECUA sewer pipe that runs on the eastern side of the property was damaged during the storm, causing it to rupture and be exposed. Although ECUA eventually repaired the damaged pipe at a later date, the pipe is still exposed above ground. Until the pipe was repaired, Respondent's assumption that it likely contributed to some of the odors detected by the Department appears to be valid. Finally, Respondent's expert attributes some of the odors to biological degradation from other sources both on-site and off-site, including a large wetland area running through the middle of the property. To a small degree, County testing later that fall confirms this assertion. The County has also been an active participant in the odor complaint issue. In response to complaints received from residents of Wedgewood, in July 2014 it began collecting hydrogen sulfide data using a device known as the Jerome 631X Hydrogen Sulfur Detector. This equipment is used to monitor for the presence of hydrogen sulfur. On July 21 and 22, 2014, samples were taken documenting that hydrogen sulfide was coming from the facility. In early September the County set up a fixed station at the Wedgewood Center, around 500 feet from the edge of Respondent's property, to continuously and automatically collect the data. During September and October 2014 the detector reported the presence of hydrogen sulfide at that location 64 percent of the days in those months, and this continued into the month of November. Seventy-five percent of the exceedances occurred when wind was blowing from the south, or when winds were calm. The data also reflected that when the wind was blowing from the meter to the facility, or to the south, hydrogen sulfide was still detected on some occasions. A resident of the Wedgewood community testified that on multiple occasions she has smelled objectionable odors in her home and yard and at the Wedgewood Center, and that these odors have been emanating from the facility for a number of years. Because of the odors, she says fewer citizens are participating in programs hosted by the Wedgewood Center.3/ The evidence establishes that before the Notice was issued, Respondent filed an odor remediation plan that was never rejected; therefore, the allegation that a plan was not submitted has not been proven. However, objectionable odors were detected off-site in June and July 2014, or after the April inspection reports were provided to the facility, and they continued throughout much of the fall. Therefore, the Department has established that the plan was not properly implemented. These same findings sustain the allegation that steps were not immediately taken to reduce the objectionable odors. Counts VI and VII - Disposal and Failure to Remove Unauthorized Waste Counts VI and VII allege that on April 14, 2014, the Department documented the disposal of prohibited or unauthorized waste, including waste tires; and that on July 18, 2014, the Department conducted a follow-up inspection that documented the disposal of unauthorized waste, including waste tires, clothing, shoes, and Class I waste, including one electronic item and a grill, in violation of rule 62-701.730(4)(d). The Permit specifies that the facility can only accept for disposal C & D debris. See § 2, Spec. Cond. C.2. Another condition provides that if unauthorized debris is spotted after a load is received, the unpermitted waste should be removed and placed in temporary storage in a bin at the sorting area. See § 2, Spec. Cond. C.3. The Operations Plan spells out these procedures in great detail. Photographs received in evidence show that during the inspection on April 14, 2014, the following unauthorized items were observed at the facility: tires, a basketball goal, Quiklube material, chromated copper arsenate treated wood, a toy, and a crushed electronic item. See Dept. Ex. 22. Photographs received in evidence show that during an inspection on July 18, 2014, the following unauthorized items were observed at the facility: blanket or clothing, a shoe, a bag of Class I garbage, several bags of household garbage, furniture, an electronic item and garbage, drilling mud, a suitcase, and tires. See Dept. Ex. 23. Respondent's expert, who has trained numerous spotters, including a current Department inspector, established that a de minimis amount of unpermitted waste, which is easily hidden in the debris, is not unusual and would not constitute a violation of the rule. For example, when a building is torn down, numerous thermostats containing mercury vile will be in a C & D container but very difficult to see. Also, workers at construction sites may throw small amounts of leftover food in the pile of debris that goes to the facility. However, he agrees that most, if not all, of the items observed during the two inspections would not be considered de minimis. Respondent does not deny that the unauthorized waste was present on two occasions. However, it contends that one would expect to find some of the items in a C & D dumpster. It also argues that the amount of unauthorized waste was minimal and not so serious as to warrant revocation of its Permit. The evidence supports a finding that on two occasions Respondent violated two conditions in its Permit by accepting non-C & D waste and failing to remove it. Therefore, the charges in Counts VI and VII have been proven. Count VIII - Facility Outside of Permitted Dimensions This Count alleges that on May 22, 2014, the Department conducted an inspection of the facility in response to a complaint that Respondent had disposed of solid waste outside its permitted (vertical) limit of 130 NGVD; that on July 25, 2014, the Department had a survey performed at the facility that confirmed this violation; and that this activity violated section 2.3 of the facility's Operation Plan and Specific Condition C.10 in the Permit. Section 2.3 provides that "the proposed upper elevation of waste at the [facility] will range up to 130-feet, NGVD, which is slightly above original grade[,]" while Specific Condition C.10 provides that "[t]he final (maximum) elevation of the disposal facility shall not exceed 130 feet NGVD as shown on Attachment 3 - Cell 2 Closure Grading Plan." Respondent admits that on July 25, 2014, the maximum height of the disposal pile exceeded 130 feet NGVD. However, it argues that, pursuant to Specific Condition C.10, which in turn refers to the Permit's Cell 2 Closure Grading Plan, the 130-foot height limitation comes into play only when cell 2 is being closed and is no longer active. This interpretation of the conditions is rejected for at least two reasons. First, a disposal pile in excess of the established height would trigger concerns about the integrity of the foundation of the facility. When the 130-foot ceiling was established by the Department at the permitting stage, it was based on calculations that the ground could support the weight of the waste. Second, the facility's financial assurance calculations are based on a set dimension of the site; these calculations would likely be impacted if there were no height restrictions. The Department's interpretation is more reasonable and limits the height of the pile to no more than 130 feet NVGD at any time when the cell is active. The Department has established that Respondent violated Permit conditions by disposing of waste outside its maximum permitted height of 130 feet NVGD. To Respondent's credit, its new consultant, Charles Miller, completed preparation of a height reduction plan on September 3, 2014. See Resp. Ex. 4. Although Mr. Miller says the plan was being implemented at the time of final hearing, it has never been formally submitted to the Department for approval. Under the plan, Respondent proposes to extract all of the existing waste from the pile in the next two years. To reduce the volume of new waste being accepted, Respondent recently purchased a Caterpillar bulldozer, low-speed grinder, and Trommel screener. New waste will be shredded, screened to separate sand and dirt from the material, and then ground and compacted. Mr. Miller anticipates that the facility can achieve up to an eight to one (or at a minimum a five to one) reduction in the size of the waste. This will dramatically reduce the height of the pile and bring it well below 130 feet at closure. But whether cell 2 is now below 130 feet NGVD is unknown. In any event, these proposed remediation steps should be taken into account in assessing an appropriate penalty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order revoking Respondent's C & D Permit. DONE AND ENTERED this 2nd day of March, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2015.
The Issue The issue to be determined in this case is whether CJC Properties, Ltd. (CJC), is eligible for state restoration funding assistance under the Petroleum Contamination Participation Program or the Florida Petroleum Liability and Restoration Insurance Program for one or more discharges of gasoline at DEP Facility No. 378943938 (“the facility”).
Findings Of Fact The Facility CJC is a Florida Limited Partnership. It is the current owner of property located at 5691 U.S. Highway 27 North, in Tallahassee. Prior to CJC’s acquisition of the property, the property was owned by Carolyn J. Chapman, John W. Chapman, Jane Chapman Latina, and Carolyn Chapman Landrum (“the Chapmans”). The property was leased to various entities and operated as a gas station. The tanks and dispensers remained in service until November, 1995. The last operator of the facility was Lake Jackson 76, Inc. There were five underground petroleum storage tanks at the facility. Before 1991, one of the tanks at the facility was used for regular, leaded, gasoline. When leaded gasoline was phased out, the tank was used for unleaded gasoline. Site Assessments and Sampling Data On November 30, 1995, the Chapmans employed Petroleum Contractors, Inc., to remove the five storage tanks. During the tank removal, Environmental and Geotechnical Specialists, Inc. (“EGS”) performed an assessment to determine whether the facility was contaminated with petroleum or petroleum products. The Underground Storage Tank Removal Report prepared by EGS noted that all five tanks appeared to be intact. Soils in the tank pit wall and bottom were not discolored. No significant contamination was observed directly below the tanks. Soil from the tank pit was stockpiled on the site. EGS observed no significant signs of contamination of this soil. The soil stockpile was also screened with a Flame Ionization Detector Organic Vapor Analyzer (OVA). No organic vapors were detected. An OVA detects any organic vapor, but is used as a screening tool to find petroleum vapors. Department rules require that an OVA reading be performed both unfiltered and filtered. The filtered reading screens out everything but methane and is “subtracted” from the unfiltered reading to determine the presence of petroleum vapors. Twenty-four soil samples were taken from various depths at nine locations in the tank pit. These samples were tested using an OVA. Nine of the soil samples, taken from four locations, had corrected OVA readings indicative of petroleum contamination. EGS concluded that “soil contamination detected in the tank pit is likely the result of a leak in the piping” between the dispensers and the tanks. Soil samples were also taken from three borings in the vicinity of the dispenser island and OVA-tested. In boring D-2, organic vapors were detected from the surface to a depth of approximately seven feet. The OVA readings from D-2 declined with depth. EGS reported that “some contamination was detected beneath a dispenser; however, it does not ‘appear’ to significantly extend below six (6) feet.” EGS did not report both filtered and unfiltered OVA readings for the soil samples taken from the dispenser area, as it had done for soil samples taken from the tank pit and the stockpile. For the dispenser area soil samples, EGS reported a single OVA reading for each sample, without indicating whether the reading was “corrected” after filtering. For this reason, the Department contends that these data are unreliable. CJC points out that EGS stated in the text of its report that the soil samples were filtered. CJC also argues that, because the filtered OVA readings for soil samples taken from the tank pit area were not different from their unfiltered readings, the OVA readings for the soil samples from the dispenser area would not have changed after filtering. The preponderance of the evidence is that the contamination in the dispenser area was petroleum. Based on EGS’ findings during the tank removal in November 1995, Petroleum Contractors, Inc., filed a Discharge Reporting Form on December 1, 1995, stating that there had been a discharge of unleaded gasoline at the facility. In January 1996, the Chapmans applied to participate in FPLRIP based on the discharge reported on December 1, 1995. By order dated January 26, 1996, the Department determined that the reported discharge was eligible for state-funded remediation assistance under FPLRIP. In 1997, another consultant, Levine Fricke Recon (LFR) conducted a site assessment at the facility and submitted its Interim Site Assessment Report to the Department. As part of its own soil sampling at the site, LFR collected a “direct push” soil boring in the dispenser island area, near the place where EGS had reported organic vapors. The boring data showed no petroleum vapors until the interval 16-to-20 feet below ground surface. LFR also collected and analyzed groundwater samples from the site. It reported that a sample taken from beneath the former diesel dispenser contained lead. Because lead occurs naturally in soils, its presence in a water sample does not confirm that a discharge of leaded gasoline occurred. In 1998, LFR conducted a second assessment of the facility site. It installed and sampled four shallow monitoring wells, designated MW-1S through MW-4S, and three deep monitoring wells, designated MW-2D through MW-4D. Groundwater samples from MW-3S and MW-3D were analyzed for lead, ethylene dibromide (EDB), and 1,2-Dichloroethane. All three substances are usually detected in a groundwater sample contaminated with leaded gasoline. On August 28, 1998, LFR submitted its Interim Site Assessment II to the Department, which shows lead and EDB were found in a sample taken from MW-3S, but not 1,2-Dichloroethane. LFR did not conclude or express a suspicion in either of its two assessment reports that leaded gasoline had been discharged at the facility. The deadline for submitting a Discharge Reporting Form or written report of contamination was December 31, 1998. A site assessment report received by the Department before January 1, 1999, which contained evidence of a petroleum discharge, was accepted by the Department as a “report of contamination.” The petroleum discharge information received by the Department before January 1, 1999, consisted of the Underground Storage Tank Removal Report, the FPLRIP claim, the Interim Site Assessment Report, and the Interim Site Assessment Report II. Post Deadline Site Assessment Data After the statutory deadline, LFR submitted its Interim Site Assessment III. This report includes January 1999 groundwater sampling data from four monitoring wells which show the presence of low levels of EDB. When EDB is found in a groundwater sample, it is a common practice to re-sample the well from which the sample was taken. Of the wells that showed the presence of EDB, only MW- 10D was re-sampled, after January 1, 1999. There was no EDB present in the groundwater when MS-10D was re-sampled. In June 2000, as part of the remediation of the contamination at the facility, an area of contaminated soil was removed to a depth of 14 feet. The area of soil removed included the former dispenser area. In January 2003, the Department notified CJC that the $300,000 FPLRIP funding cap would soon be reached. In March 2003, CJC signed a Funding Cap Transition Agreement, acknowledging that “At no time will the DEP be obligated to pay for cleanup of this discharge any amount that exceeds the funding cap.” CJC further acknowledged that it “is responsible for completing the remediation of the discharge in accordance with Chapter 62-770, F.A.C.” In 2005, CJC re-sampled one of the monitoring wells for lead and EDB. Neither substance was present. The site is not currently being actively remediated. Periodic groundwater sampling indicates that concentrations of contaminants are dropping. No further active remediation has been proposed. The cost to complete remediation is a matter of speculation. The record evidence is insufficient to make a finding about future remediation costs. Eligibility Determinations On September 2, 2003, CJC submitted a PCPP Affidavit to the Department, seeking state funding under PCPP. On October 30, 2003, the Department denied CJC eligibility for PCPP funding on the basis that the contamination was covered under FPLRIP and, therefore, was excluded from funding under PCPP. The Department has never granted PCPP eligibility for the cleanup of a discharge previously being funded under FPLRIP. Apparently, in 2005, CJC hired Glenn R. MacGraw, an expert in the assessment of petroleum-contaminated sites, to review the EGS and LFR assessments. In a letter to CJC’s attorney dated August 19, 2005, MacGraw expressed the opinion that “at least 2 discharges have occurred on this site, one in the former tank area, and one in the former dispenser area.” MacGraw’s opinion that there had been a discharge of leaded gasoline was based on the detection of EDB and lead in the groundwater. He also thought the presence of methyl tetra-butyl ether (MTBE) in groundwater samples taken from the tank pit area showed a tank leak of unleaded gasoline. CJC requested FPLRIP funding for the other alleged discharges at the facility. On March 23, 2006, the Department issued a letter formally stating its disagreement that there were other reported discharges and denying eligibility for FPLRIP funding. On March 30, 2006, the Department issued an Amended Order of Ineligibility under PCPP. The amended order added a second ground for denial, that the reported discharge was not shown to have occurred before January 1, 1995. Whether There Was A Second Discharge Eligible for Funding CJC argues that the presence of lead and EDB in the groundwater sample taken from MW-3S shows that there was a discharge of leaded gasoline at the facility. However, LFR reported that the well screen for MW-3S had probably been damaged during installation, because a significant amount of filter sand was observed in the purge water. The Department contends, therefore, that the source of the lead detected in the groundwater sample from MW-3S could have been (naturally) in the soil that entered the well. The Department also discounts the detection of EDB in the groundwater sample because EDB is an ingredient of some pesticides and can show up in groundwater when pesticide has been applied to the overlying land. Furthermore, EDB was not detected in the groundwater sample taken from MW-3D, a deeper well located near MW-3S. MacGraw does not think the EDB came from a pesticide application, because the EDB contamination at the site occurs in an elongated “plume,” in the former dispenser area, whereas one would expect to see EDB distributed evenly over the site if the source was a pesticide application. MacGraw mapped the plume of EDB by using data obtained after the discharge reporting deadline. Michael J. Bland, a Department employee and expert in geology and petroleum site assessment, believes the data from the facility are insufficient to confirm the presence of EDB or its distribution. LFR reported in its Interim Site Assessment that no significant soil contamination was found near the dispenser island. Groundwater samples from MW-3D, a deep monitoring well near MW-S3, showed no EDB, lead, or 1,2-dichlorothane. Bland opined that, if the detection of EDB in the shallow well was reliable, EDB would have been detected in the deep well, too, because EDB is a “sinker.” EDB is persistent in groundwater, so when it is not detected when a well is re-sampled, reasonable doubt arises about the detection in the first sample. Of all the wells sampled in 1999 that showed EDB, only MW-10D was re-sampled in 2003. When the well was re-sampled, there was no EDB. CJC contends that EDB was not found in the re-sampling of MW-10D because of the soil removal in 2000, but the Department contends that the soil removal would not have affected the presence of EDB in MW-10D, because the well is significantly down-gradient of the area of soil removal. It was undisputed that the presence of 1,2- dichoroethane in MW-S3 was not reliably determined. There is insufficient evidence in the record to establish that the contamination reported in the dispenser area is the source of contamination which persists at the facility. The reported contamination only affected the top six feet of soil. The soil removal to a depth of 14 feet in that area in 2000 should have fully remediated the reported contamination. The data upon which CJC relies in claiming eligibility under FPLRIP or PCPP for a second discharge are, at best, incomplete and ambiguous. CJC failed to prove by a preponderance of the evidence that a discharge of leaded gasoline occurred. CJC also failed to prove that the reported contamination in the dispenser is associated with a discharge that still exists to be remediated with state assistance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order determining that CJC is ineligible to participate in the Petroleum Cleanup Participation Program for the discharge reported to the Department on December 1, 1995, and that CJC has not demonstrated eligibility to participate in the Petroleum Cleanup Participation Program or the Florida Petroleum Liability and Restoration Program for any other discharges. DONE AND ENTERED this 9th day of July, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 9th day of July, 2008.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's "groundwater monitoring plan," embodied as a condition in the present operating permit, should be modified at the behest of the Department of Environmental Regulation.
Findings Of Fact On October 2, 1985, the Department issued to Charlotte County a permit to operate a Class I Sanitary landfill, pursuant to Section 403.087 and 403.707, Florida Statutes. A groundwater monitoring plan was part of that permit. One of the purposes of the groundwater monitoring plan was to detect any leachate plume of pollutants which might migrate off the site of the landfill in the groundwater. In accordance with the groundwater monitoring plan, as part of its conditions, the landfill has four monitoring wells, MW-1 - MW-4. One of those monitoring wells, MW-1, was established as a background well. Two of the monitoring wells, numbers 2 and 4, were installed as "interceptor" and "intermediate" wells. The fourth monitoring well is a "compliance well." The purpose of the background well at the landfill site is to determine the quality of the groundwater as it comes onto or enters the property subject to the operating permit. Specific condition number 2 of the monitoring plan incorporated, in the permit, required that once a year, beginning with the first quarter, sampling wells MW-1 and MW-2 should be analyzed for certain synthetic, organic compounds. Eight synthetic, organic compounds (SOCs) were tested for in accordance with Rule 17-22.104(1)(g), Florida Administrative Code. Those compounds were as follows: Trichloroethylene; Tetrachloroethylene; Carbon Tetrachloride; Vinyl Chloride; 1, 1, 1-Trichloroethane; 1, 2-Dichloroethane; Benzene; and Ethylene-dibromide. On December 9, 1985, the Department received the results of the chemical analysis performed by its laboratory in Tallahassee on the samples collected by district personnel on August 5, 1985. Those test results indicate the presence of the following compounds in well MW-1: Ethylbenzene at a concentration of 1.0 micrograms per liter, Methylenechloride at a concentration of 4.5 micrograms per liter, Trichloroethane at a concentration of 3.2 micrograms per liter, Toluene at 2 micrograms per liter, Xylene at 2.4 micrograms per liter, and Acetone at 40 micrograms per liter, as well as other "purgables" at an aggregate of 30 micrograms per liter. On the basis of this analysis, the Department informed the County that it would modify the County's groundwater monitoring plan by requiring it to monitor for "purgables", (synthetic, organic compounds) in all four wells on a quarterly basis. The original groundwater monitoring plan had required monitoring for the eight original SOCs in two of the four wells on an annual basis. This proposed modification would thus modify the conditions of the landfill operation permit held by the County. Since the samples taken on August 5, 1985, further tests have been performed on water samples taken from the four subject wells at the landfill site by both the County and the Department. On December 9, 1985, the County obtained water samples from wells MW-1 and MW-2, which were analyzed for the eight primary SOCs enumerated in the original water monitoring plan. That analysis showed the following: MW-1 1, 1, 1-Trichloroethane - 1.8 micrograms per liter MW-2 1, 1, 1-Trichloroethane - 4.1 micrograms per liter 1, 2-Dichloroethane - 1.1 micrograms per liter The Department took water samples on January 16, 1986, from all four wells. Results of the analyses for SOCs showed that as of that date, MW-1, which had been the well testing "positive," which resulted in the proposed change in the permit and monitoring plan was, on January 16, free of synthetic, organic compounds. Wells MW-2 and MW-3 were also free of purgables. The analysis of water sample from well MW-4 showed that it contained 4.67 micrograms per liter of Benzene, 1.58 micrograms per liter of Chlorobenzene, and 8.27 micrograms per liter of 1, 2- Dichloroethane. Sampling the wells MW-1 and MW-2 on March 13, 1986, the County analyzed for the complete list of "purgables" or SOCs with the result that well MW-1 was shown to contain 1.8 micrograms per liter of Ethylbenzene and 2.7 micrograms per liter of Toluene. Well MW-2 contained 1.3 micrograms per liter of Ethylbenzene and 2.0 micrograms per liter of Toluene. Almost two months later, on May 5, 1986, the Department sampled wells MW-1, MW-3 and MW-4, finding that MW-1 contained no purgables; MW-3 contained 1 microgram per liter of Methylenechloride (an isolated occurrence of this compound); and well MW-4 contained 1 microgram per liter of Chlorobenzene, 2 micrograms per liter of 1, 3-Dichlorobenzene, 10 micrograms per liter of Toluene, 2 micrograms per liter of Cis-1, 2, Dichloroethane and 6 micrograms per liter of "other purgables. Thus, it can be seen that in the August 1985 test, the first monitoring well tested, MW-1, contained SOCs. At the later test performed in December, that well contained SOCs in the form of Trichloroethane and yet on January 16, 1986, the well was free of detectable SOCs. On March 13, 1986, however, that well was shown to contain Ethylbenzene and Toluene. On the other hand, on the May 5, 1986, sample, the well contained no detectable purgable compounds. On the December 9 test, it can be seen that well MW-2 contained Trichloroethane and Dichloroethane and yet on January 16 was free of any detectable SOCs. However, on March 13, 1986, well MW-2 contained Ethylbenze and Toluene. Well MW-3 was free of SOCs at the December test, but on May 5, 1986, contained Methylenechloride, although in a very slight concentration, which could have resulted from contaminated testing equipment. Well MW-4 contained, in December, the above-noted concentrations of Benzene, Chlorobenzene, and Dichloroethane. On March 13, 1986, wells MW-3 and MW-4 were not tested. The Department's test of May 5, 1986, sampled MW-1, MW-3 and MW-4. On that date MW-4 contained Chlorobenzene, Dichlorobenzene, Toluene, Dichloroethane, and "other purgables." Thus, in consecutive samples taken and analyzed by the Department and the County since the date of its proposed modification of the groundwater monitoring plan, it has appeared that organic compounds detected in one sampling did not appear or were below the detection limits in subsequent analyses and yet showed up in other monitoring wells. It is especially significant, however, that well MW-4, which is the well farthest "down" the groundwater gradient and is indeed the compliance well for assessing whether the landfill is performing within the regulatory bounds of its operating permit has, whenever tested, demonstrated the presence of the above-noted contaminants. The fact that some wells demonstrate the presence of contaminants and on a later test, test negative for those contaminants was shown by the Department to likely occur because of variables attributable to rainfall. The amounts and occurrence of rainfall' can play a significant role in determining whether the concentrations in any amount exist in the monitoring wells and can determine in part what concentrations are found in samples from those monitoring wells. The compounds move through the soil or reside in the soil and the rainfall may cause certain compounds to be washed or leached out of the soil in varying amounts and at varying rates. Sampling shortly after a heavy rainfall might result in detection of certain compounds not detectable during a dry period or might increase the amounts detectable. The absence or slight concentrations of the subject contaminants in a well which increase with later samples would indicate that the leachate or contaminant "plume" in the groundwater is passing through that well. The down gradient well, MW-4, is the compliance well and is located down gradient from the perimeter ditch around the landfill. On both the samples taken in January and in May, that well was shown to be contaminated with SOCs as depicted above. Thus, it has been established that there are some leachate contaminant plumes moving in the groundwater through the location of that well, which establishes the likelihood that the leachate in the landfill will migrate off site by the flow of the groundwater. Thus, since DER issued the proposed modification of the monitoring plan, four additional groundwater samplings have revealed more SOCs at the landfill site. SOCs have been found in all wells at one time or another in detectable amounts. The presence or absence of SOCs and the varying amounts present at various sampling times at various wells is explained by variations in the migration rate of the contaminants due to variations in frequency and amount of rainfall percolating into and flowing through the substrate in which the wells are located. Groundwater in the area of the landfill is not well-protected from waste contamination. The landfill is located in an area where the groundwater table is one to two feet above the surface level during the wet season and only four to five feet below the surface level in the dry season. The landfill is not lined with clay or another impervious or semi-impervious material which could retard the migration of contaminants from the landfill itself into the groundwater acquifer. Because of this, ground water can migrate upward into the waste in the landfill during the wet season and the waste in the landfill can percolate into the groundwater acquifer in a downward and outward direction during the dry season. Additionally, the south and west slopes of the landfill are exposed and waste is thus exposed to the water contained in the perimeter ditch around the landfill, which water is connected hydrologically to the groundwater acquifer. The landfill is the only public solid waste disposal site in Charlotte County and thus receives all manner of waste, including some hazardous waste. Leachate contaminant plumes have already developed on the landfill site and may be in the process or may already have migrated off the site. This site is the only municipal landfill in the seven-county South Florida District of the Department where the SOCs are being detected in the groundwater. The groundwater in the area outside the landfill is designated as G-II, which is usable as a drinking water source. It is appropriate to sample the groundwater more frequently in the vicinity of such a landfill when that groundwater is designated as a drinking water supply. Although well number 1 was originally designated as a background well to check the background chemical status of the water before it migrates down gradient to the landfill site, that well, although located generally up gradient of the groundwater flow, has been shown to contain SOCs which in all probability emanated from the landfill. This is because the County has periodically added water from the landfill itself into the perimeter ditch around the landfill causing groundwater flow to move in both directions laterally from the ditch. Finally, although the Petitioner contends that some of the contamination found in the samples is a result of improper testing and contamination with laboratory solvents, the potential for laboratory contamination of the samples and sampling equipment is a possible explanation (although not proven) only for those SOCs found that are common laboratory solvents. Only Methylchloride, which occurred in one isolated sample, and the compound Toluene fit into this category of possible laboratory contaminants. The remaining SOCs found in the samples are not common laboratory solvents and therefore are present in the samples due to their presence in the groundwater itself from which the sample was taken.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the modified groundwater plan proposed by the Department in the December 18, 1985, letter to Charlotte County should be adopted into the groundwater monitoring plan for the Charlotte County landfill. DONE and ORDERED this 19th day of November 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November 1986. APPENDIX - CASE NO. 86-0084 Petitioner's Proposed Findings of Fact 1 - 18. Accepted Rejected as not established by the evidence presented. Accepted, but dispositive of the material issues presented. Rejected as to its asserted import. Accepted, but not dispositive of the material issues presented. Accepted. Accepted. Rejected as not dispositive of the material issues presented. Accepted, but not in itself dispositive. Accepted. Accepted. Accepted, but not dispositive of the material issues presented. Accepted, except as to the last clause. Accepted. Rejected as to its asserted import. Accepted, but not dispositive of the materia issues presented. Respondent's Proposed Findings of Fact 1 - 20. Accepted. COPIES FURNISHED: Matthew G. Minter, Esquire Assistant County Attorney Charlotte County 18500 Murdock Circle Port Charlotte, Florida 33948 Douglas L. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern generally whether the Respondents named above are liable for the contamination and violations alleged in the Petitioner, Department of Environmental Regulation's (DER) Notice of Violation and Amended Notice of Violation, pursuant to the relevant provisions of Chapter 403, Florida Statutes, and the rules contained in Title 17, Florida Administrative Code, as relevant to this proceeding and treated herein.
Findings Of Fact DER is an agency of the State of Florida charged, under Chapter 403, Florida Statutes, and related rules, with preventing and alleviating environmental contaminations, as pertinent hereto, including such issues involving ground waters of the State of Florida. The property in question in this proceeding is located at the northwest corner of Blount and Guillemard Streets in Pensacola, Florida. The legal description of that property and the state of the title of the property is as described in the Prehearing Stipulation filed by the parties at page two thereof. The Belleaus are the current owners of the real property at that location. Crown is the owner and operator of a commercial laundry and dry cleaning business situated on that property in the building(s) located thereon. Crown is a corporation authorized to do business in the State of Florida and is a "person" within the meaning of Section 403.031(5), Florida Statutes. American Linen is a corporation authorized to conduct business in the State of Florida and is also a "person" within the meaning of that Statute. American Linen obtained the property by purchase by corporate warranty deed from Rentex (RCD) on April 23, 1979. It operated a commercial laundry at the property from that date until June 3, 1985, when it sold the laundry business to Crown and the real property upon which it operated to the Belleaus. In November of 1971, RCD, a Delaware corporation and a 100 percent-owned subsidiary of Rentex Services corporation (RSC), also a Delaware corporation, acquired the property. RCD owned and operated a commercial laundry and dry cleaning business on the property until April 23, 1979, on which date it sold the laundry business and property to American Linen. It actually operated a dry-cleaning service on the property during only 1974 and early 1975. Sketchley Delaware, Inc. (SDI), a Delaware corporation, purchased RSC, which then became a 100 percent- wholly-owned subsidiary of SDI in 1982. RCD, however, remained a 100 percent-wholly-owned subsidiary of RSC until 1983. In March of 1983, SDI merged with RSC, and the resulting corporation was named "Sketchley Services, Inc." RCD continued as a corporation, 100 percent-wholly-owned as a subsidiary of Sketchley. In October of 1983, RCD merged into Sketchley, and Sketchley survived. Respondent Sketchley has never held title to nor conducted any form of business on the property in question. On March 29, 1991, Sketchley was renamed "Jura Services, Inc." (Jura) and was converted to a close corporation under Delaware law. This controversy had its origins in May of 1986 when a representative of DER performed a routine sampling of tap water at the DER district office in Pensacola. Those samples were subjected to chemical analysis which revealed the presence of PCE, a widely-used solvent often associated with dry-cleaning operations. That tap water came from the public water supply for the City of Pensacola, supplied by a network of potable water wells. Upon learning of the PCE content in the water supply, DER began an investigation to attempt to locate its source. Analysis of a number of the Escambia County Utilities Authority (ECUA) wells (PW-6, PW- 8, PW-9, and east well) contained quantities of PCE in excess of the maximum contaminant levels for drinking water authorized by DER's rules. Those wells were taken out of service in June of 1986, subjected to carbon filtration which ultimately removed the PCE from the water supply for those wells, and the wells have since been put back in public service. A ground water investigation was undertaken by DER to determine the source of contamination in the upper portion of the sand and gravel aquifer and in the production zone of the deeper Floridian aquifer which supplies those wells. A total of 29 ground water monitoring wells (MW) were installed and sampled. An analysis of these was prepared (87-04 report). On February 7, 1987, DER and representatives of the utilities authority and Crown, the operator of the laundry facility, conducted an inspection and clean-out of the surge tank located in the floor of the Crown laundry building. A chemical analysis of three samples of liquid residue in the bottom of the tank revealed the presence of PCE in those sediments in concentrations of 1,952 parts per billion (PPB), 108.5 PPB, and 50 PPB. Additionally, one of the samples revealed trichloroethene at 34 PPB and 1, 2 dichloroethene at 52,800 PPB. Under certain conditions, these last two-named compounds are produced as bi-products of the breakdown of PCE. Based upon this inspection and the investigation of other potential sources, DER took the position that the surge tank at Crown had discharged waste water containing PCE into the adjacent soils and that PCE migrated into ground water produced by the ECUA's public water supply wells, PW-6, PW-8, PW-9, and "east well". Although not stipulating that the samples were representative or to the conclusions to be drawn from the analytical results of testing the samples, the parties stipulated that proper physical and technical procedures and methods were used in the collection, preservation and analysis of all of the samples and the laboratory results were consequently stipulated into evidence. Jura, American Linen, Crown, and the Belleaus had no actual knowledge that any PCE had been deposited in the surge tank between 1971 and the date in 1979, when American Linen bought the facility. A commercial laundry has been operated on the subject property since 1971. The laundry was operated by RCD at that time, and in the summer of 1974 and during at least part of 1975, a dry-cleaning operation, in addition to laundry, was conducted by RCD at the site. The dry-cleaning operation involved the use of PCE. This was the only period of time when dry-cleaning operations were conducted on the property until 1985 when Crown conducted a dry-cleaning operation. Crown's operation, however, made no use of PCE, but rather, Crown used "stoddered solvent" as its dry- cleaning fluid. During American Linen's ownership and operation of the laundry at the site, no dry-cleaning operations, whatever, were conducted. At no time during American Linen's ownership and operation of the laundry at the site nor during the Belleaus ownership, and Crown's operation, of the laundry facility was any PCE used or stored on the property. Since laundry operations commenced at the site, the waste wash water from the laundry was discharged to the surge tank located beneath the floor of the Crown building. That tank intercepts and stabilizes wash water prior to its discharge to the municipal sanitary sewer system. The surge tank also served as a component of the laundry operation as a thermal recovery system. Although the surge tank and the commercial laundry and dry-cleaning businesses which have been operated at the site constitutes an "installation" for purposes of Section 403.031(4), Florida Statutes, the tank has never been used for the intentional storage or disposal of any "hazardous substances", as defined in Section 403.703(31), Florida Statutes, by any of the Respondents. The tank has never been used for the intentional disposal of any hazardous substances by American Linen, Crown, the Belleaus, or Jura. During normal laundry operations, lint, sand and other sediment accumulated in the bottom of the surge tank over a period of time. When the accumulated quantity of sediment became too great so as to interfere with the operation, the liquid and the sediments were removed periodically by a vacuum truck and manual labor, using shovels, buckets, and a dumptruck. The surge tank was cleaned out several times over the pertinent years, including 1976, 1978, or 1979 (before American Linen's purchase), as well as in 1980-81, 1983, 1987, 1990 and 1991. It was possibly cleaned in 1972 or 1973, as well. In the 1976 clean-out, the surge tank was cleaned thoroughly enough that the workers reported searching for loose change on the concrete floor of the tank. DER must prove a violation of Section 403.161(1)(a) or (b), Florida Statutes, in order to establish liability for purposes of Section 403.141(1), Florida Statutes, and Section 403.121(2), Florida Statutes. DER has also sought, as of the time of hearing, to impose liability on the Respondents, pursuant to Section 403.727(4), Florida Statutes, which imposes strict liability on the owner and operator or former owner and operator of a facility at which a release to the environment of a hazardous substance has occurred. Section 403.161(1)(a), Florida Statutes, provides that it is prohibited for a person to cause pollution so as to harm or injure human health or welfare, animal, plant, or aquatic life, or property. In this proceeding, DER did not establish with competent, substantial evidence that the alleged pollution by PCE caused any harm or injury to human health or welfare, animal, plant, or aquatic life, or property. No risk assessment was conducted to determine the potential harm or actual harm. No testimony was presented with regard to the possible health effects or injurious impacts of PCE in the environment. There was no evidence shown to establish what amount of PCE in the environment or ground water might cause or potentially cause such harm to human health or any of the other injurious effects referenced in the above-cited Statute. DER has not adduced any evidence of a preponderant nature to show that any Respondent is thus liable for a violation of Section 403.161(1)(a), Florida Statutes. Section 403.161(1)(b), Florida Statutes, provides that it is a violation to fail to comply with any rule of DER. Section 403.161(1)(b), Florida Statutes, is implemented with regard to ground water through former Rule 17-4.245(2), Florida Administrative Code, now Rule 17- 28.700, Florida Administrative Code, which provides a cause of action for violation of ground water standards. In order to maintain a cause of action under that Rule, DER must prove that the Respondents violated either Rule 17-3.402(1), Florida Administrative Code (the "Free From" Rule), or Rule 17-3.404(1)(a), Florida Administrative Code, which sets forth the ground water criteria alleged in the NOV and Amended NOV to have been violated. Concerning Rule 17-3.402(1), Florida Administrative Code, which establishes narrative, minimum health effects-based criteria applicable to ground water, DER has alleged that the Respondents failed to comply with this Rule, but introduced no evidence concerning any health effects of PCE in the ground water. DER produced no evidence whatever regarding the concentration, if any, of PCE, which may be carcinogenic, mutagenic, teratogenic, or toxic, or which would pose a serious danger to the public health, safety or welfare, or create a nuisance, or impair the reasonable and beneficial use of any adjacent ground water. Even assuming that some amount of PCE was released from the surge tank at some period of time, DER failed to present any evidence regarding the quantity of PCE which may have been released, and the concentration in the ground water which could have resulted from a release from the Crown property. It simply was not proven that the concentration shown in the wells, at which samples were taken, all resulted from any release, if any, which came from the Crown property. Thus, DER failed to adduce evidence which can demonstrate in a preponderant way a violation of the "Free From Rule" cited above or which would support its cause of action under Section 403.161(1)(b), Florida Statutes, with regard to alleged violation of this Rule. DER has also alleged that the Respondents violated Rule 17-3.404(1)(a), Florida Administrative Code, cross- referencing and incorporating former Rule 17-22.104(1)(g), Florida Administrative Code, now Rule 17-550.310(2)(d), Florida Administrative Code, which sets forth the ground water standard, in the form of maximum contaminant level (MCL) for PCE. In order to demonstrate a violation of Rule 17-3.404(1)(a), Florida Administrative Code, as to each Respondent, DER had to prove that the Respondents caused a release of PCE to the ground water, resulting in a concentration of PCE in the ground water greater than the MCL established by the Rule. Effective May 23, 1984, DER thus established 3 parts per billion as the MCL for PCE in drinking water and as the water quality standard for PCE applicable in Class G- II ground water, which is the classification of the ground water underlying the Crown property, and occurring at all of the supply wells and monitor wells involved in this proceeding. In order to demonstrate a violation of the MCL by release of PCE from the laundry property, DER had the burden of proving: (a) that PCE entered the surge tank; (b) that the surge tank, in fact, released it to the environment and to the ground water; (c) that the release of PCE occurred during the ownership and/or operation of the laundry by one or more of the Respondents; and (d) that the amount of PCE entering the ground water during ownership and/or operation of each Respondent caused the concentration of PCE in the ground water to exceed the MCL in effect at the time of each Respondent's ownership and/or operation. Proof of PCE in the Tank Rentex installed a dry-cleaning machine at the Crown facility during mid-1974. It was equipped with two PCE holding tanks with PCE being used as the cleaning solvent in the dry-cleaning process. There was a storage tank, four to five feet tall, which stored pure PCE. The other tank was an eight to ten foot tall "cooker" tank used to heat and reconstitute PCE used in the dry-cleaning process. The machine was located near the rear of the Crown building, close to the floor drains and the wash room. The dry-cleaning machine was dismantled and removed from the Crown facility to another dry-cleaning establishment in Baltimore sometime in late 1974 or the early part of 1975. The thrust of DER's case is that spills of PCE occurred from the dry-cleaning machine and its operation at the Crown facility which were allowed to enter the surge tank and thence leaked into the soil, the environment and the ground water. Indeed, several boil-overs of PCE occurred during the period of 1974 and early 1975, when the dry-cleaning operations were being conducted at the facility. Witnesses, Mathias and Hedrick, for DER, established that one spill of PCE in the amount of four to five gallons also occurred, along with several boil-overs from the laundry machine during that time period; however, the actual amount of PCE spilled or boiled over from the dry-cleaning machine and its operation was not established by DER. Mr. Mathias worked as a maintenance man at the facility during the relevant period when dry-cleaning operations were conducted by RCD. He established that there were several boil-overs of PCE from the cooker tank and that when PCE boiled over from the top of the machine, some quantity would be sprayed onto the floor which was then hosed off into the floor drains, which communicate with the surge tank. He was unable to quantify the amount of PCE spilled on the laundry floor or which reached the surge tank, however. He was not able to definitively establish how many boil-overs he witnessed nor their severity in terms of the amount of PCE which was resultingly spilled on the floor of the laundry. He did not witness any spills of PCE other than those occurring in conjunction with boil-over events. Mr. Hedrick was also a maintenance man at the facility during RCD's period of ownership and its dry- cleaning operations. He knew of one incident in mid-1974 in which four to five gallons of PCE were spilled directly onto the floor of the laundry due to a hose connecting the holding tank to the cooker tank being inadvertently disconnected. That PCE was washed with a hose into the floor drains and thence into the surge tank. Mr. Hedrick could recall only two boil-overs of PCE from the dry- cleaning machines. These incidents involved PCE spraying over the top of the cooker tank but did not involve the release of any significant amount of PCE onto the floor. Mr. Hedrick established that employees were careful in handling the chemical because it was very expensive and they were careful not to waste it. After boil-over events which he described, he observed the level of the PCE in the holding tank, which did not appear to drop much as a result of the boil-overs. He was also responsible for refilling PCE into the holding tank as necessary. His experience was that he was not required to add PCE to the machine as the mere result of a boil-over because the boiling PCE escaped from the top of the machine mostly as foam with very little actual volume of PCE being discharged during such a boil- over event. Mr. Hedrick's testimony is corroborated by that of Dr. Mercer, an expert in hydrogeology, dense, non-aqueous phase liquid behavior (DNAPL), and the fate and transport of chemicals in the subsurface environment, presented by Jura. Dr. Mercer established that in a boil-over event, the PCE escaping from the top of the machine is pure PCE, chemically, but it escapes in the form of a foam or mist very near the boiling point of approximately 250 Fahrenheit. Because it is very volatile, most of the PCE escaping from the machine in a boil-over event, due to its volatility enhanced by its high heat, dissipates into the atmosphere. Whatever PCE did not volatilize would spread in a thin film over the floor of the facility and, because it was still a warm fluid, would continue to volatilize into the atmosphere. The small amount which did not volatilize would be washed into the floor drains and correspondingly diluted prior to entry into the surge tank, where it would be further diluted by the large volume of warm water present in the tank which would enhance dissolution and dilution. Consequently, the boil-overs would have produced only dissolved PCE entering the tank in small quantities, most of which would be flushed from the tank into the city sanitary sewer system through the outfall line exiting from the wall of the surge tank. Thus, the testimony of these witnesses establishes that only one spill of four to five gallons of PCE occurred in 1974, most of which was washed into the floor drains and into the surge tank. It was not established that the boil- over events materially contributed to the volume of PCE entering the surge tank during the dry-cleaning operations conducted in 1974 and early 1975. No PCE was shown to have been deposited in the surge tank after dry-cleaning operations ceased in 1974 or at the latest in early 1975 during the RCD ownership and operation of the facility. It was not shown that PCE was released or discharged to the environment by any other means since that time at or on the property or facility. Release of PCE to the Environment DER has thus established that some four to five gallons of PCE from a spill entered the surge tank in 1974 and that some minor quantities from boil-overs entered the tank through wash down of the laundry floor. DER also has the burden to establish the next evidentiary link; that the PCE was released from the surge tank to the environment. The surge tank consists of a poured concrete floor with concrete-block walls with a plaster or cement covering on the outside of the tank. The concrete-block mortar joints and concrete with which the tank is constructed are porous materials, although the specific porosity has not been quantified. The extent of coverage, the integrity and continuity of the exterior cement or plaster layer over the outside of the tank, and for the life of the tank, is not established. The surge tank was constructed in 1969 in conjunction with the construction of the laundry building. It is 20 feet long by 10 feet deep by 9 feet wide. It is stipulated that the surge tank leaks wash water at some rate because of the porosity of the materials and because of cracks and fissures which have opened in its walls since its construction. Testing of the tank in 1971 revealed that it leaked, at that time, at the rate of 6.5 gallons per day. No evidence establishes what the leakage rate before 1991 might have been. There is no direct evidence of a release of PCE from the surge tank to the soil or ground water. Michael Clark testified in this regard, as a member of the Operations Response Team of DER. In his opinion, DNAPL or "separate phase" PCE (undissolved PCE) had escaped from the tank into the ground water; however, he testified that he performed no calculations to determine the quantity of PCE which would have had to enter the surge tank in order to create a release of separate phase PCE. Mr. Clark assumed in the gravamen of his testimony that the contents of a 55- gallon drum of PCE had been released to the surge tank in a spill, in performing his analysis of the potential for release of PCE from the surge tank. He admitted, however, that the release of 55 gallons of PCE had been only hypothetical and no evidence was presented in this case to establish that 55 gallons of PCE had been spilled or otherwise placed in the surge tank. Mr. Clark was neither offered nor qualified as an expert in hydrogeology or any other field of expertise which could establish that he had any expertise in the movement of chemicals in the environment or in ground water or soils, nor as to the chemical state of those chemicals while in the soils or ground water at any point in time. Mr. Clark's opinion that separate phase PCE was released to the soil and then the ground water from the surge tank and that it resulted in the contamination found in the public water supply wells at issue, as well as in the monitoring wells, is not supported by competent, substantial evidence. Inasmuch as Mr. Clark's opinion testimony did not demonstrate, by preponderant evidence, that separate phase PCE was released to the environment from the tank and there being no direct evidence of such a release, then inferential evidence must be used to establish whether such a release occurred. PCE was shown to be present in the tank in 1974 based upon the above-described events. The presence of PCE has been detected in the ground water immediately downgradient of the Crown property, as well as in the public drinking water supply wells and the monitoring wells, downgradient of the Crown facility. That evidence, together with the evidence concerning the porous nature of the materials of which the tank is constructed and the tank's condition, which has deteriorated over time, is sufficient to support an inference that some undetermined quantity of dissolved PCE escaped from the surge tank over some undetermined points or periods of time. DER, however, did not adduce evidence which could establish an inference that a release of dissolved PCE or separate phase PCE from the tank would be sufficient to cause the violations of the MCL for PCE found at the monitoring points in the vicinity of the Crown property nor is the evidence sufficient to establish when the releases, if any, which may have contributed to a violation of the MCL for PCE at the monitoring or sampling points may have occurred. The lack of sufficient evidence to support such an inference is pointed out by the testimony of witnesses Mathias and Hedrick, testifying for DER, concerning the quantity of PCE which entered the tank and by the testimony of Jura's expert witness, Dr. James Mercer, regarding the behavior of PCE upon entering the tank and upon a release to the environment. The finding that the evidence is insufficient to support an inference that the tank released sufficient PCE to cause a violation of the MCL for PCE is further supported by the evidence that DER did not exclude, through its PCE source investigation, other potential sources of PCE contamination in the ground water, other than Crown, particularly in view of the evidence concerning the cone of influence of the "east well" and the location of the contamination in the PW-9 well, located upgradient from the Crown facility. Dr. Mercer testified concerning the behavior of separate phase PCE with regard to the spill of four to five gallons of pure PCE from the holding tank, as found above. He established that because PCE is very volatile, much of the spill would have volatilized into the atmosphere, although at a slower rate than the boiling temperature of PCE released during boil-over events, as described herein. The spilled PCE, which did not volatilize, would have been washed down with a hose, diluting it and dissolving it in water prior to its entry into the floor drains and the surge tank. In the floor drains and in the tank, some of the PCE would have been entrained or bound up in the lint present in those locations; and some of the PCE would have made its way to the surge tank. Because of prior dilution and dissolution, a relatively small amount of pure PCE would have entered the surge tank. The presence of warm water in the tank would have promoted more dissolution and dilution of the chemical, such that most of the four to five gallons of pure PCE spilled would have become mostly dissolved PCE upon entry into the tank. Some of that would have then been washed out into a sanitary sewer system through the outfall line. Since separate phase PCE is denser than water, any of it in that form entering the tank would sink to the bottom of the waste water in the tank, coming to rest on the layer of sand, lint and other sediments on the bottom of the tank. Dr. Mercer established that any separate phase PCE from the referenced spill would thus form a layer on top of accumulated sediments at the bottom of the tank, approximately .14 inches thick, assuming that it was evenly distributed over the bottom of the tank. In order for separate phase PCE to penetrate the pore spaces in the sediments, it would have to displace the waste water or wash water already occupying those pore spaces. If the layer, established by Dr. Mercer, was as thin as .14 inches thick, such a thin layer would not penetrate the pore spaces of the sediments because they would be filled already with wash water. That thin layer of separate phase PCE would not exert sufficient hydraulic pressure to displace that water because of the capillary pressure barrier formed between the water in the pore spaces and the separate phase PCE layer on top of the sediments. The capillary pressure effect is the pressure difference between two liquids, which creates a capillary pressure barrier, inhibiting the penetration of separate phase PCE into the pore spaces of the sediments. Dr. Mercer testified that a thickness of 4.7 inches of separate phase PCE, resting on top of the sediments, would be necessary to overcome the capillary pressure barrier between the wash water and the pore spaces of the saturated sediments and the separate phase PCE layer lying on top of those sediments. Therefore, most of the separate phase PCE would remain as a layer on top of the sediments. Dr. Mercer opined that if separate phase PCE does not reach the sediments in the bottom of the tank in sufficient volume to maintain the movement of the chemical through that porous medium, the separate phase PCE, which does settle to the top of the sediments, will tend to dissolve over time, partially into the wash water above the layer of PCE at the bottom of the tank and partially into the water occupying the pore spaces within the layer of sediments in the bottom of the tank. Any separate phase PCE, which dissolves into the overlying wash water, will become extremely diluted. Eventually, most of that dissolved PCE would be discharged through the tank's outfall to the public sanitary sewer system. Any separate phase PCE, which is able to overcome the capillary pressure barrier and move into the pore spaces of the sediments, by displacing wash water within those spaces, would become trapped within those pore spaces, because of an effect known as "residual saturation". When a separate phase liquid moving through a porous medium is not of sufficient volume to maintain its movement, it tends to physically break apart into globules of separate phase liquid within those pore spaces. As more globules form within the spaces, the movement of the separate phase liquid decreases until at some point the flow stops. When the flow stops, the globules of separate phase liquid become trapped within the spaces. The point at which a sufficient percentage of pore spaces are filled with globules of separate phase liquid is called "residual saturation". Because of the effect of residual saturation on any separate phase PCE at the bottom of the tank, Dr. Mercer concluded that separate phase PCE within the pore spaces of the sediments would be unable to flow and would effectually be trapped in the sediments in the bottom of the tank until those sediments were removed, either through dissolution into the wash water in the tank as flushing occurs through use of the tank over time or when the sediments were removed during clean-outs of the tank. Therefore, little, if any, separate phase PCE could have been released from the tank to the environment. Dr. Mercer's testimony was unrefuted and thus demonstrates that most PCE entering the tank would dissolve into the wash water already present, flow through the outfall to the sewer system, or become dissolved in the free water and water occupying the pore spaces in the sediments at the bottom of the tank. The evidence supports the finding that little, if any, PCE would be released to the soil surrounding or underlying the tank as a result of the spill of four or five gallons of PCE from the dry-cleaning machine. No evidence was presented to establish the quantity of PCE which could have escaped from the tank as a result of the spill of four or five gallons of PCE into the tank nor was any evidence presented which would establish during what period of time the release to the environment may have occurred. Charles Ferst testified as an expert in environmental engineering concerning the amount of PCE which may be released from the tank over time. Mr. Ferst testified that the leakage rate of the surge tank likely increased over time until reaching the current rate established in the evidence of 6.5 gallons per day, as determined by the 1991 test. Although the surge tank leaked at earlier periods, Mr. Ferst could not determine when the tank started leaking and could not calculate the leakage rate at any period of time prior to 1991 nor could any other witness. Based upon standard construction practices and the materials used in the tank at the time of its construction in 1969, Mr. Ferst opined that the tank leaked more after 1980 than in earlier years. Using that assumption and the fact that the sediments in the bottom of the tank were cleaned out several times between 1974 and 1991, he calculated the maximum amount of PCE which could have escaped from the tank after 1980. Mr. Ferst's calculations, however, are based upon a number of unsupported assumptions. Although he establishes that the tank leaked more in later years than in earlier years, his calculations and assumptions do little to establish how much PCE may have been released during any particular period of time; and little weight can be given to his conclusions regarding the specific amounts of PCE allegedly released at particular periods of time. DER did not present any evidence concerning the amount of PCE which could have escaped from the tank, even assuming that the tank leaked since 1974, when it was shown that some PCE had been placed in the tank. DER failed to prove that any amount of PCE which may have leaked out of the tank was sufficient to cause a violation of the MCL for PCE, and it did not inferentially demonstrate that any PCE which may have leaked out of the tank caused a violation of the MCL, because it simply failed to show that the violation levels found in the various wells where samples were drawn, solely resulted from contamination emanating from the Crown tank. DER failed to adduce evidence sufficient to carry its burden of proving a violation of the ground water standard for PCE caused by a release of PCE from the Crown property. Source of Contamination DER must prove that a release of PCE from the tank caused or contributed to the PCE contamination found in the public water supply wells and the monitoring wells. Dr. Mercer testified that if it is assumed that the tank is a source of contamination and the PCE concentration data collected by DER is used, the travel time of PCE from the surge tank to one of the monitoring wells, MW-3, where the highest concentrations were found, would indicate a release occurring many years prior to 1969, the year in which the Crown building and surge tank were constructed. Dr. Mercer therefore concluded that the surge tank at the Crown facility was likely not the sole or even the primary source of PCE contamination found by DER. In attempting to determine the source of the PCE discovered in the subject water supply wells, DER conducted soil sampling in suspected areas of contamination. This soil sampling revealed only two significant areas of PCE contamination in soils, neither of which was near the Crown property. DER then also selected monitoring well locations based upon ease of accessibility in order to determine the source of the contamination quickly. The monitoring wells were placed in the deep, intermediate, and shallow zones of the aquifer system underlying downtown Pensacola. Near the Crown facility, however, the intermediate zone was not present; instead, there was a shallow zone separated from the deep zone by a confining unit of relatively-impervious material. DER demonstrated that the shallow, intermediate and deep aquifer systems within the downtown Pensacola area are contaminated with PCE and PCE-derived breakdown compounds at widely-varying concentrations. DER did not prove, however, that one or more discreet plumes of PCE contamination exist. Mr. Clark, testifying for DER, attempted to calculate the travel time of contaminants found in MW-3 based upon their being released to the ground water from the Crown facility. Although Mr. Clark indicated this to be, in his belief, between 1970 and 1980, he admitted that he only estimated the travel time of ground water, as opposed to PCE, from the Crown property. Moreover, he averaged high hydraulic conductivity values for monitoring wells quite distant from the Crown property, near PW-9, and ignored data from closer, more relevant wells. Dr. Mercer, however, testified that the method used by DER to calculate travel time, which relies on conductivity values too far away from the suspected source and wells of concern, and averages only those high-conductivity values, while ignoring more pertinent values, provides a less accurate result. Hydraulic conductivity values are used to calculate ground water velocities, which can then be used to calculate travel times over a certain distance. Dr. Mercer testified that using the hydraulic conductivity values obtained from monitoring wells in close proximity to an assumed source and which reveal the presence of PCE in significant concentrations, which DER did not do, produces a much slower ground water velocity than that calculated by DER because the hydraulic conductivity values used are much lower. Averaging the hydraulic conductivity values obtained from monitoring wells which indicated significant concentrations of PCE in close proximity to the Crown facility to calculate travel time for PCE produced an estimate of 37 years for PCE released from the surge tank to reach MW-3. Thus, the PCE would have had to have been released prior to 1969 when the surge tank and the laundry facility were built (or from a different location). Because of this, it was not definitively shown that the PCE found in MW-3 came from the surge tank at the Crown facility. Dr. Mercer's testimony, because of his higher level of training, expertise and experience in hydrogeology and the fate and transport of chemicals in ground water, is accepted over that of Mr. Clark. Mr. Ross Mitchell testified regarding DER's search, which he conducted for facilities within the downtown Pensacola area which used or could have been the sources of a release of PCE. That investigation apparently concentrated on dry-cleaning establishments because DER opined that PCE was commonly used in such operations. Mr. Mitchell described his source investigation as "quick and dirty". He indicated that he did not follow up with every lead that he developed and that he established a "ball park" area within which to conduct his investigation. In fact, his investigation concentrated on a specific geographic area, in which other DER personnel had told him high concentrations of PCE had been found in ground water. As part of his investigation, he relied upon verbal representations by owners and operators regarding whether their facilities had ever used PCE. He made no effort to confirm those representations, other than cross-checking, in some instances, whether a given facility had been identified by a PCE supplier as a facility to which it had supplied PCE. However, he did not obtain customer lists from suppliers of PCE and was only able to get fragmentary information from the suppliers. Mr. Mitchell made no effort to verify whether PCE had ever been used at many of the facilities he had identified. He simply looked for readily- available evidence. That investigation was completed before DER became aware that PCE had been used at the Crown facility. Once that knowledge was obtained, Mr. Mitchell assumed that it would be the source of the PCE contamination found. He did not follow up regarding any of the other facilities which were on his list of suspect locations. He acknowledged at hearing that several of the suspect facilities, other than Crown, had not actually been eliminated as potential sources and acknowledged that he had not considered possible sources, other than dry-cleaning establishments, such as refuse dumpsters at facilities which had been identified as using or having used PCE. He did no environmental sampling around dumpsters at such facilities to detect spillage and did not investigate any records of any of the facilities he had investigated to determine whether they had purchased or used PCE. Mr. Mitchell located four dry cleaners, all upgradient of the PCE contaminated drinking water wells operated by ECUA. Among the dry cleaners suspected as potential sources of the contamination, only the Crown facility was located hydraulically downgradient of PW-9. In order for the contamination to travel from the Crown surge tank to PW-9, the pumping regimen employed by ECUA's supply wells would have to reverse the direction of ground water flow or hydraulic gradient. Dr. Mercer's calculations demonstrated that the pumping regimen employed by ECUA could not have reversed the gradient so as to pull contaminants from the Crown facility upgradient to be captured by PW-9. Dr. Mercer and Mr. Clark both agreed that the "east well" pumps continuously throughout the year. PW- 9 does not pump continuously. When the "east well" is pumping, it will capture anything that would be in the subsurface in the vicinity of the Crown facility; and its capture zone would extend upgradient as far as PW-9. Mr. Clark admitted that he had no calculations to support his conclusion that ECUA's pumping of PW-9 could have reversed the gradient in the subsurface to draw contaminants from the Crown facility to PW-9. Accordingly, it is concluded that DER did not adduce sufficient evidence to prove that the Crown facility could be the source of contamination in PW-9. The source investigation conducted by DER was inadequate to definitively determine whether the Crown facility was the source of PCE contamination or not. DER did not collect adequate soil and ground water samples throughout the area of known contaminations so as to pinpoint a specific source or sources for the contamination. No soil samples were collected from the immediate area around potential sources identified in close proximity to PW-9, for instance, such as the other four dry-cleaning establishments. Instead, once DER found PCE in MW-3 in high concentrations, it apparently focused all of its efforts on the Crown facility, assuming it to be the source of contamination. There are other upgradient PCE users (TCE), identified in Exhibit 6 which have not been ruled out as sources by competent evidence and that exhibit also shows that there may be three older dry cleaning sites in the downtown area with underground solvent tanks, which the record does not prove to have been investigated and ruled out as sources. Since Crown was shown not to be the source of PCE contamination at PW-9, there could be sources of PCE contamination other than Crown which better account for conditions observed in the ground water in downtown Pensacola. DER simply failed in its investigation to adequately rule out other potential sources of contamination within the cone of influence of the public water supply wells, PW-6, PW-8, the "east well", and PW-9. It is as likely as not, for example, that PCE emanating from whatever source or sources contaminated PW-9 (potentially four different dry-cleaning establishments) was also drawn hydraulically downgradient and into the "east well" and other wells. The record reflects that the "east well", for instance, when it is pumping, has a capture zone which extends as far as and including PW-9. DER failed to adequately investigate that potential explanation, as well as other potential sources of the contamination, including the stormwater pond, and thereby failed to prove that contamination emanating from the Crown facility, more likely than not, caused the contamination observed in the ECUA wells, or at least all of it, to the extent of its violating the MCL for PCE in the sites sampled. DER also seeks to impose liability on the Respondents pursuant to Section 403.727(4), Florida Statutes, which imposes strict liability on the current or former owner or operator at the time of disposal of any hazardous substance, as to a facility at which a release of hazardous substances has occurred. PCE is a hazardous substance, as that term is used in Section 403.727, Florida Statutes. However, Section 403.727, Florida Statutes, did not become effective until 1980; and PCE was not listed as a hazardous substance until 1984. DER has failed to prove in what quantity or during what period of time PCE may have been released from the surge tank at the Crown facility. It has established that PCE was only placed in the surge tank during 1974 and 1975 and not since, well before the effective date of this statutory provision and the listing of PCE as a hazardous substance. It has produced evidence from which it is inferred that a certain amount of dissolved PCE in laundry waste water leaked from the tank. It has not been established when the leakage started nor in what quantities PCE dissolved into the wash or waste water may have leaked into the surrounding soil, nor what rate (continuously increasing, decreasing, or static) the leakage occurred. Thus, the most that may be inferred is that leakage of dissolved PCE in an unknown concentration occurred sometime after 1974, but it has not been proven that PCE, as a hazardous substance, has been released into the environment during a specific period of time when each of the Respondents owned and/or operated the Crown facility. Thus, DER has failed to adduce evidence sufficient to carry its burden of proving a release of a hazardous substance, subjecting any of the Respondents to liability under Section 403.727, Florida Statutes. In any event, the Respondents were not on notice of the need to defend against a charge under that statutory section since the NOV and the Amended NOV did not inform them that such would be the basis of any purported liability alleged by DER. DER contended, for the first time at hearing, that the Respondents are liable for violation of the hazardous waste disposal rules. DER alleged at hearing that PCE, as a waste, is a listed hazardous waste, either as a spent solvent or a discarded commercial chemical. No such allegations were included in the NOV or the Amended NOV. However, Dr. Mercer established that any PCE which may have been released into the environment from the surge tank was in dissolved form and not as separate phase PCE. Dissolved PCE has not been shown to be a hazardous waste. Therefore, there is no evidence of record to support a finding that improper disposal of hazardous waste occurred at any point or points in time relevant to his proceeding. Moreover, Mr. Clark testified that he conducted a hazardous waste inspection of the Crown facility in 1982. Mr. Clark determined at that time that there was no hazardous waste being generated in the building or being stored in the building. DER has failed to demonstrate that any hazardous waste was generated or stored on the Crown property or disposed of into the surge tank at anytime by any of the Respondents. Finally, no evidence has been presented in this case that any of the Respondents had actual or constructive knowledge of the presence of PCE in the surge tank or of whether or not any release to the surge tank had occurred between 1971 and 1979 or any knowledge of any use or discharge of PCE to the surge tank prior to the commencement of DER's investigation in this action. Only RCD may be presumed to have had knowledge of the spillage of PCE which was discharged to the surge tank in 1974 and 1975, which entity was Jura's predecessor, ultimately merged into the corporation now known as Jura Services, Inc. Additionally, DER seeks in this proceeding only to be reimbursed for the costs of the investigation and tracing of the source of contamination and not for any natural resources damages nor any adjudication of the extent of liability for such damages, except insofar as the Order for Corrective Action which DER seeks to have imposed in this case reserves DER the opportunity to seek a determination after completion of corrective action of the extent to which the Respondents may be liable for natural resources damage, if any.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that DER enter a Final Order dismissing the Amended NOV against all Respondents. DONE AND ENTERED this 5th day of November, 1992, in Tallahassee, Leon County, Florida. Hearings Hearings P. MICHAEL RUFF Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 5th day of November, 1992. 5985 APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-3077 & 88- Petitioner's Proposed Findings of Fact 1-16. Accepted. Rejected as contrary to the preponderant evidence of record and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted but not dispositive. Rejected as contrary to the preponderant weight of the Hearing testimony and evidence and subordinate to the Officer's findings of fact on this subject matter. Rejected for the same reason. Accepted but not in itself dispositive of the material findings issues and subordinate to the Hearing Officer's of fact on this subject matter. Rejected as not in accordance with the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. 23-27. Accepted but not in themselves materially dispositive. 28-30. Accepted but not in themselves materially dispositive. 31-34. Accepted. 35-40. Accepted but not in themselves materially dispositive. 41-50. Accepted but not in themselves materially dispositive. 51. Accepted but not in itself dispositive and subordinate to the Hearing Officer's findings of fact on this subject matter. 52-53. Accepted. Accepted as to the DER intent in placement of the wells. Accepted but not materially dispositive standing alone. Accepted. Accepted to the extent that Crown Laundry has been shown source by circumstantial evidence to be inferentially a of the contamination found in the various wells mentioned but not the sole source nor the source actually causing this made on violation of appropriate standards and otherwise proposed finding of fact is subordinate to those this subject matter by the Hearing Officer. Rejected as not entirely in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted as to the levels of chemical depicted in this the proposed finding of fact but not as to the material import of the proposed finding of fact concerning tank being the cause of the excession of the MCL standards. Accepted but not itself dispositive of material issues presented. 61-62. Accepted. Accepted except that the presence of these chemicals in excession of the MCL inside the tank does not constitute a violation of any pertinent legal authority. Accepted. Accepted to the extent that the walls of the tank are a continuing source of PCE. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted in terms of the amount spent but rejected otherwise as being, in effect, a conclusion of law. Rejected as constituting a conclusion of law and not a proposed finding of fact. Rejected as constituting a recitation of a portion of the fact pleadings at issue and not as a proposed finding of which is materially dispositive of any issue. Rejected as not constituting a material proposed finding of fact but rather a recitation or discussion of the remedies sought by the Petitioner. Rejected as immaterial in this proceeding. Accepted but not dispositive. Rejected as constituting a conclusion of law and not a proposed finding of fact. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accordance with the preponderant weight of the evidence. Respondent, American Linen Supply Company's Proposed Findings of Fact 1-21. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted but not as probative that leakage could have raised the level of PCE in the monitoring and production well samples above the maximum contaminant level. Accepted. Accepted but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted but not itself dispositive. 27-28. Accepted. Respondents, Belleaus and Crown Laundry and Dry Cleaners, Inc.'s Proposed Findings of Fact 1-21. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and to some extent, as speculative. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted but not itself dispositive of material issues. Accepted. Respondent, Jura Services, Inc.'s Proposed Findings of Fact 1-63. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. 66-68. Accepted. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Jack Chisolm, Esq. Richard Windsor, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 William D. Preston, Esq. Thomas M. DeRose, Esq. HOPPING, BOYD, ET AL. 123 S. Calhoun Street P.O. Box 6526 Tallahassee, Florida 32301 Thomas P. Healy, Jr., Esq. MAYER, BROWN & PLATT 190 South LaSalle Street Chicago, Illinois 60603 John W. Wilcox, Esq. Derek B. Spilman, Esq. RUDNICK & WOLFE 101 East Kennedy Blvd. Suite 2000 Tampa, Florida 33602 Jeffrey C. Bassett, Esq. BARRON, REDDING, ET AL. Box 2467 Panama City, Florida 32401
Findings Of Fact The Department (DER) is the regulatory agency of Florida charged with the duty and authority to administer and enforce Chapter 403 and Sections 376.30-376.319, Florida Statutes, and rules and regulations promulgated thereunder. Hendry is a Florida corporation that has been conducting business in excess of 60 years. The two main aspects of its business are the dredging operation and the shipyard. Hendry's site can be loosely described as an industrial site. The shipyard division performs approximately one-half its work for governmental entities, particularly the U.S. Coast Guard, which operations are largely ship refurbishing. Hendry has a Coast Guard certificate enabling it to receive mixtures containing oil and oily water waste. A significant portion of Hendry's ship refurbishing work involves repairing/replacing steel on ships which has deteriorated due to salt water exposure. That work frequently requires cutting, welding and burning. Prior to commencing the refurbrushing work, the ships must be certified as safe. In certifying a ship as being safe, the bilge area is pumped of used oil or waste oil which collects in standing waste water and oil. Also, before that works commences, the ship is defueled. Currently, Hendry's practice is to subcontract the pumping of waste oil from the ships bilge, which waste oil is pumped directly into the tanker truck of the subcontractor. Hendry no longer pumps or stores waste oil on site. In the past, the waste oil and water from the ship's bilge was pumped from the ship through a pipeline from the dry dock across the property to a 10,000 gallon above-ground storage tank. During December 1987, the U.S. Coast Guard observed a fuel spill on the water at Petitioner's facility. Based on that observation, Respondent conducted site inspections of Petitioner's facility during March and April 1988. The fuel spill was occasioned by Petitioner's refurbishment of a tuna boat at its site. Petitioner subsequently received a warning notice regarding alleged violations in its petroleum storage tanks and contamination. The transfer pipeline is of steel construction. Between 1980 and 1984, the pipeline leaked. In 1984, the pipeline was rerun with PVC line and in 1986, it was refitted with 4 inch steel pipe. The 10,000 gallon above-ground tank is located in Area 1. The removal of waste oil occasionally resulted in accidental spills. After 1985, a smaller, above-ground tank was installed adjacent to the 10,000 gallon tank to provide a storage tank for draining off water from the 10,000 gallon tank. The small tank was used to receive only water drained from the 10,000 gallon tank. Prior to installation of the small tank, a retention pond was used to drain water from the 10,000 gallon tank. The retention pond had a 2 foot berm with a visqueen liner. In October 1988, Hendry submitted an EDI Program Notification Application, a prerequisite for EDI reimbursement eligibility, under the program for costs associated with cleanup of certain petroleum contamination. In May 1989, Hendry submitted a document entitled Preliminary Contamination Assessment III Specific Areas--Task IV Rattlesnake Terminal Facility--Westshore Boulevard, Hillsborough County prepared by Mortensen Engineering, Inc. That document included reports of analysis of oil and groundwater samples taken from the site in January, March and April 1989, demonstrating extensive contamination of soil and groundwater including "free product" in monitoring wells MW-2, MW-4 and MW-4A. By letter dated November 9, 1989, the Department informed Hendry of its determination that the facility had been denied EDI reimbursement based on specific enumerated findings. Hendry entered into a stipulation with the Department on October 16, 1990, "regarding the conduct of this case and the basis for denial. " Attached to the stipulation is a sketch of the facility grounds showing a rough division of the area into four separate areas. Area 1 has two waste tanks. One was a large 10,000 gallon closed tank approximately 20 feet high and 12 feet in diameter; the other contained a volume of approximately 1,500-2,000 gallons and was an open tank. Petitioner's practice was to pump bilge in the dry dock area, located west of "Area 2" and direct the waste through underground pipes to the 10,000 gallon tank. The smaller tank was used to "bleed" water from the larger tank. Bilge waste is approximately two-thirds water. Area 2 was the location of Hendry's diesel tank farm. In the stipulation, the Department agreed to withdraw two of the seven specific grounds for the denial, namely denial of site access and failure to report discharges. Likewise, Hendry agreed to withdraw "Area 4" from its application for EDI eligibility. In the stipulation, Hendry was informed of a then recent amendment to Section 376.3071(9), which offered certain applicants who had been earlier determined ineligible for participation in the EDI program, standards and procedures for obtaining reconsideration of eligibility. The amendment required the facility to come into compliance, certify that compliance and request reconsideration prior to March 31, 1991. Additionally, compliance was to be verified by a Department inspection. Pursuant to paragraph 5(b) of the stipulation, these standards and procedures were specifically to be applied to Areas 2 and 3 at the facility. Hendry did not make a written request for reconsideration of the denial of eligibility with respect to Areas 2 and 3 on or before March 31, 1991 or at anytime subsequently. Hendry also did not come into compliance with the underground or above-ground storage tanks system regulations on or before March 31, 1991 in that Hendry failed to register a 560-gallon above-ground diesel storage tank which was onsite on that date as required by Rule 17-762.400, Florida Administrative Code. Hendry also failed to notify the Department of the Hillsborough County Environmental Protection Commission (HCEPC), as the administrator of a designated local program at least thirty days prior to closure of the storage tank system, pursuant to Subsection 376.3073, Florida Statutes. These determinations were made on April 1, 1991 by Hector Diaz, inspector in the HCEPC tanks program. Hendry submitted a registration form for the 560-gallon tank on November 18, 1991, which was of course subsequent to the March 31, 1991 deadline. Hendry stored petroleum products and waste material including petroleum constituents in the above-ground tanks until approximately March 25, 1991 when it initiated tank removal. Hendry's above-ground storage tanks, which were in use at its facility for approximately three years after extensive soil contamination was documented, were without secondary containment. In November 1991, Hendry submitted a document entitled Supplemental Preliminary Contamination Assessment Report, prepared by Keifer-Block Environmental Services, Inc. (Supplemental PCAR). The stated purpose of the study was solely to determine whether hazardous constituents were present in groundwater in Areas 2 and 3. The report included laboratory analysis of groundwater samples taken from the site in August 1991 including monitoring wells located in Area 3. The results of these analysis reflect that Area 3 is contaminated solely with heavy metals, lead and chromium. No petroleum hydrocarbon contamination was detected in Area 3. In the area adjacent to Area 2, seven of eight monitoring wells show chromium or lead contamination. Hendry had, and continues to have, a practice of removing paint from vessels by blasting them with a gritty material known as "black beauty." This practice takes place in the dry dock area near Areas 2 and 3. The waste blast grit/paint chip mixture is vacuumed or shoveled into wheelbarrels or a frontend loader and dumped into an open pile. Occasionally, the waste blast grit/paint mixture is blown about or spilled. Waste "black beauty" has been observed scattered on the ground throughout the facility. Paints sometime contain heavy metals, specifically, lead and chromium. The concentrations and distribution of lead and chromium contamination at the site are consistent with Hendry's long-standing practice of grit-- blasting paint from ships and other vessels and allowing the metal-contaminated paint and waste mixture to fall to the ground. Areas 2 and 3 are contaminated with substances other than petroleum or petroleum products, namely heavy metals. Costs associated with cleanup of lead and chromium are not reimburseable under the EDI program. Paragraph 5(c) of the stipulation allowed Hendry an opportunity to establish eligibility for Area 1 by providing information regarding operating practices at two above-ground storage tanks and a retention pond in that area demonstrating that contamination in that area is predominantly from leaks or unintentional spills of petroleum products from the tanks in that area. Hendry did not provide the required information. On January 27, 1992, Hendry submitted to the Department an affidavit executed by its principal, Aaron Hendry, which Hendry contends fulfills the requirements of paragraph 5(c) of the stipulation. Hendry, the principal who executed the affidavit, is an affiant with a legal and financial interest in the outcome of the EDI eligibility determination. The executed affidavit did not contain specific information with respect to "operating practices at the tanks and retention ponds as required by the stipulation." Specifically, the affidavit is silent as to: What the tanks were made of; When, how and by whom they were installed; What piping, leak detection or overfill protection was associated with them; What repairs or alterations had been made to them; What inventory reconciliation methods were used; Where the materials came from which was put into the tanks; In what manner, how often, and by whom material was put into the tanks; In what manner, how often, and by whom material was removed from the tanks; Disposition of material removed from the tanks; When, how, by whom and why the retention pond was dug; How and for what period of time the retention pond was used; How, often and by whom inspections of the tanks were conducted; When and how leaks occurred and were discovered at the tanks; When and how spills occurred and were discovered at the tanks; What records, including reports to state or local agencies, insurance claims, newspaper accounts, and so forth were kept with respect to leaks or spills at the tanks; What cleanup efforts were made at the time of any leaks or spills; Documentation related to registration of the tanks with state or local agencies; and Documentation with respect to any removal of the tanks, including any description of the condition of the tanks when, or if, removed. For years, the facility's retention pit was used as a "waste pit" namely, a rectangular hole in the ground, approximately 30 feet by 120 feet by 3 feet, for direct discharge of bilge waste piped from vessels at the dry dock area to the waste pit, prior to installation of the storage tank systems. After installation of the large tank in Area 1, the retention pit was used to bleed water from the bilge tank. In the past, the Department has denied eligibility to facilities where a retention pond was used for disposal of petroleum related waste and cleanup of contamination resulting from use of a retention pond. Hendry's affidavit nor other documentation submitted to the Department prior to the EDI redetermination or at hearing establishes that the bilge waste taken from the storage tanks was "a liquid fuel commodity" or recycled into such a commodity. By letter dated June 9, 1992, the Department notified Hendry that reconsideration of its EDI eligibility request for Areas 2 and 3 was denied and that the affidavit of Aaron Hendry submitted with respect to Area 1 did not satisfy the requirements of the stipulation. Thereafter, Hendry challenged the Department's denial of reconsideration and EDI eligibility which joins the issue for this proceeding. The hazardous waste allegation discovered during an inspection of Hendry's facility on April 14, 1988, resulted in a consent order which was entered as a final order of the Department on November 21, 1990. The consent order allowed Hendry an opportunity to demonstrate that not all areas at the facility were hazardous waste disposal areas and, thus, not all areas would be subject to closure and cleanup under the permitting requirements of Subsection 403.722, Florida Statutes and the remediation standards set forth in Chapter 17-730, Florida Administrative Code. To establish appropriate remediation standards and procedures which would be applicable to various areas, Hendry was required to prepare a property diagram designating areas at the property exhibiting any of the following types of contamination: Areas contaminated solely by petroleum or petroleum products or used oil which is not hazardous waste; Areas contaminated by materials which are not hazardous waste; Areas contaminated by the past or present disposal of hazardous waste. The consent order allows contamination assessment and remediation pursuant to the standards and procedures set forth in Chapter 17-770, Florida Administrative Code, for areas contaminated solely by petroleum or petroleum products. (Petitioner's Exhibit 5, paragraph 11.) The consent order requires contamination assessment and remediation pursuant to the Department's corrective action and groundwater contamination cases for all areas at the facility contaminated by used oil which is not hazardous waste or by hazardous material. (Petitioner's Exhibit 5, paragraph 12.) The consent order requires contamination assessment and remediation pursuant to a closure permit with a contingent post-closure plan to close the areas at the facility contaminated by the disposal of hazardous waste. In response to the consent order to delineate areas on the property exhibiting various types of contamination, Hendry submitted the supplemental PCAR. By letter dated March 19, 1992, the Department responded to the supplemental PCAR with a determination that: Area 1 can be assessed and remediated through the standards set forth in Chapter 17-770, Florida Administrative Code. Contamination in Areas 2 and 3 includes heavy metals, which are hazardous materials. Thus, Areas 2 and 3 should be assessed and remediated through the corrective action process for groundwater contamination cases. A hazardous waste facility closure permit application should be submitted for assessment and remediation of Area 4, which, because of the presence of Dichloroethylene, a hazardous substance and chlorinated solvent, should be expanded to include the location of monitoring well MW KBMW-2. Hendry had a practice of cleaning electrical motors by placing such motors on the ground outside the electrical repair shop near Area 4. The motors were sprayed with Trichloroethylene, a waste solvent, which was allowed to runoff into the soil. At the time of this practice, the intention was to leave the solvent contamination unchecked. The Department, pursuant to directives from the United States Environmental Protection Agency (EPA), characterizes the disposition of hazardous waste to the environment as a result of intentional, ongoing industrial practices as "disposal of hazardous waste" within the meaning of Subsection 475.703(21), Florida Statutes and 40 CFR 260.10. The consent order allowed Hendry an opportunity to challenge the Department's determination with respect to delineation of the various areas by filing a petition per paragraph 21 of the order for formal administrative hearings. Hendry filed its petition with respect to the March 19, 1992 letter, which petition is the subject of DOAH Case No. 92-2312.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent, Department of Environmental Regulation, issue a Final Order in these consolidated cases concluding that 1) the contamination areas at issue herein are not eligible for EDI reimbursement under Subsections 376.3071(9) and (12), Florida Statutes; 2) that Petitioner cleanup the contamination in Areas 1, 2 and 3 under the guidance document entitled "Corrective Actions for Groundwater Contamination Cases"; and 3) that Area 4 be expanded to include the location of monitoring well MW KBMW-2 and closed through a hazardous waste closure/post closure permit application process. DONE AND ENTERED this 26th day of April, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 26th day of April, 1993. APPENDIX Rulings on Petitioner's proposed findings of fact: Paragraph 14, partially adopted in Paragraph 13, Recommended Order. Paragraph 19, rejected, contrary to the greater weight of evidence and speculative. Paragraph 20, rejected, unnecessary. Paragraph 21, rejected, contrary to the greater weight of evidence, Paragraphs 24-28, Recommended Order. Paragraph 22, partially adopted, Paragraphs 13 and 14, Recommended Order. Paragraph 23, partially adopted, Paragraph 15, Recommended Order. Paragraph 29, partially adopted, Paragraph 18, Recommended Order. Paragraphs 31, 32, 35, 48, 49, 51, 52, 60, 62 and 73 rejected, unnecessary. Paragraph 33, adopted in part, Paragraph 23, Recommended Order. Paragraph 38, adopted in part, Paragraph 23, Recommended Order. Paragraph 41, rejected, contrary to the greater weight of evidence and the two cases cited at hearing where Respondent exercises his discretion are distinguishable from Petitioner's failure to timely apply. Paragraph 43, rejected, unnecessary and/or argument. Paragraph 45, rejected, contrary to the greater weight of evidence. Paragraph 50, rejected, contrary to the greater weight of evidence, Paragraphs 37-39, Recommended Order. Paragraph 54, rejected, not probative. Paragraph 55, rejected, not probative. Paragraphs 56 and 57, rejected, contrary to the greater weight of evidence, Paragraphs 30 and 31, Recommended Order. Paragraphs 58 and 59, rejected, contrary to the greater weight of evidence, Paragraphs 23 and 24, Recommended Order. Paragraph 61, rejected, speculative and unnecessary. Paragraph 63, rejected, speculative. Paragraph 67, rejected, not probative. Paragraph 68, rejected, contrary to the greater weight of evidence, Paragraphs 30 and 31, Recommended Order. Paragraph 69, rejected, not probative. Paragraph 70, adopted in part, Paragraph 23, Recommended Order. Paragraph 72, rejected, irrelevant and not necessary to the issues posed. Paragraph 74, rejected, contrary to the greater weight of evidence and unnecessary. Paragraph 75, rejected, contrary to the greater weight of evidence, Paragraph 53, Recommended Order. Paragraph 76, rejected, contrary to the greater weight of evidence, Paragraph 53, Recommended Order. Paragraph 77, rejected, contrary to the greater weight of evidence, Paragraph 53, Recommended Order. Paragraphs 78 and 79, rejected, irrelevant and unnecessary. Paragraph 80, rejected, not probative. Rulings in Respondent's proposed findings of fact: Paragraphs 2 and 3, adopted in part, Paragraph 9, Recommended Order. Paragraph 12, adopted in part, Paragraph 23, Recommended Order. Paragraph 23, adopted in part, Paragraph 32, Recommended Order. Paragraph 27, adopted in part, Paragraphs 38 and 39, Recommended Order. Paragraph 30, rejected, unnecessary. COPIES FURNISHED: Thomas J. Patka, Esquire Rory C. Ryan, Esquire HOLLAND & KNIGHT 200 South Orange Ave - Suite 2600 Post Office Box 1526 Orlando, Florida 32802 Agusta P. Posner, Esquire Lisa Duchene, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399 2400 Virginia B. Wetherell Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399 2400 Daniel H. Thompson, Esquire Acting General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399 2400
The Issue The issues in this case are whether Respondent violated certain rules of the Department of Environmental Protection (Department) related to petroleum contamination site cleanup criteria as alleged in the Department’s Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (NOV); whether Respondent is liable for the administrative fines and investigative costs assessed by the Department; whether mitigation of the administrative fine is appropriate; and whether Respondent should be required to take the corrective action described in the NOV.
Findings Of Fact The Parties The Department is the state agency charged with the power and duty to administer and enforce the provisions of Chapters 376 and 403, Florida Statutes (2008),1 and the rules promulgated in Florida Administrative Code Title 62, pertaining to petroleum contamination. Respondent Z.K. Mart, Inc., is a Florida corporation, and owns and operates a retail fueling facility (DEP Facility No. 8507091) located at 5077 Normand Boulevard, Jacksonville, Florida (“the facility”). In January 2004, soil sampling in conjunction with the removal of an underground petroleum storage tank at the facility showed petroleum contamination. Respondent reported the contamination to the Department in a Discharge Report Form on January 29, 2004. Respondent removed the tank that was the source of the contamination, conducted source removal activities, and submitted various reports to the Department, including a Site Assessment Report (SAR), submitted in February 2006. In March 2006, the Department determined the SAR was incomplete and requested that Respondent submit a SAR addendum. To date, Respondent has not submitted the SAR addendum. Respondent’s insurer, Mid-Continent Casualty Company, refused coverage for the assessment and cleanup costs associated with the reported discharge, asserting that the contamination “arose out of” the tank removal. Respondent contends that the contamination occurred before the tank removal. In October 2004, Respondent sued Mid-Continent in the circuit court for Duval County for wrongful denial of coverage. Respondent requested that the Department also file suit against Mid-Continent, pursuant to Section 376.309(2), Florida Statutes, for violating financial responsibility requirements. In December 2008, the Department sued Mid-Continent. The litigation is ongoing. Respondent spent over $300,000 to remove 2,503 tons of contaminated soil and to conduct site assessment activities associated with the reported contamination. In August, September, and October 2006, Respondent filed financial affidavits and additional materials with the Department in support of Respondent’s claim that it was unable to pay for additional assessment work. By letter dated November 3, 2008, the Department rejected Respondent’s claim that it was financially unable to undertake the requested site assessment. Respondent submitted a financial affidavit prepared by Abdul Khan, the vice president and secretary of Z.K. Mart, Inc., which states that the net income of Respondent was $36,479 at the end of 2005. Financial information for later years, including 2008, was also submitted by Respondent. However, no financial analysis was included. No evidence was submitted to establish the estimated costs of future site assessment activities. It cannot be determined from the financial information in the record whether Respondent is currently financially able to conduct additional site assessment activities. The Department states in the NOV that Count I constitutes a violation of Florida Administrative Code Rule 62- 770.800(5). That rule provides that it is a violation of Chapters 376 and 403, Florida Statutes, for a responsible party to fail to submit additional information or meet any time frame “herein.” The Department explained that Count I was intended to charge Respondent with failing to complete site assessment. The only applicable time frame in Florida Administrative Code Rule 62-770.800, entitled “Time Schedules,” is in subsection (3), which requires a responsible party to submit additional information within 60 days of the Department’s request for the information. That violation, however, is more specifically charged in Count II. Count II of the NOV charges Respondent with violating Florida Administrative Code Rule 62-770.600(11), which states that, if a SAR is incomplete, the Department shall inform the responsible party and the responsible party shall submit a SAR addendum within 60 days. Counts I and II charge Respondent with the same offense, failing to submit requested information within 60 days of the request. As stated in the Conclusions of Law, Respondent cannot be made to pay administrative fines under a duplicate charge. Count III of the NOV charges Respondent with liability for the Department’s investigative costs of $500 incurred in conjunction with this enforcement matter. These are nominal costs and were never disputed by Respondent.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact The Department of Agriculture and Consumer Services (Petitioner) is charged with the administration and enforcement of Chapter 500, Florida Statutes, together with the rules promulgated thereunder, relating to food and water sanitation within the State of Florida. Wima Corporation (Respondent) is a water vending machine operator and is located at 4252 Northwest 55th Street, Coconut Creek, Florida. The president of Respondent is Donald Epstein. Respondent has been in the water vending business since 1980 and has never received any notification that its water has caused anyone to become ill. Respondent is the owner and operator of a water vending machine, Identification Tag No. 5890 (Machine ID Tag No. 5890), located at Lyons Amoco, Lyons Road and Glades Road, Boca Raton, Florida. Machine ID Tag No. 5890 dispenses drinking water, potable water that originates from an approved municipal provider and is processed by reverse osmosis. The drinking water is sold to the general public. Approximately 20 to 50 vends per day are dispensed from Machine ID Tag No. 5890 to the general public who provide their own container for collecting the water. A vend is one gallon of water. On March 3, 1997, one of Petitioner's sanitation and safety inspectors (inspector) collected a vended water sample from Machine ID Tag No. 5890. The inspector collected the first "slug" of water from the spout of Machine ID Tag No. 5890 the same as a paying public consumer. The first "slug" of water is the first water that the first paying public consumer would receive from Machine ID Tag No. 5890. Petitioner's inspector collected 100 ml of water in a sanitary container, sealed the container, and immediately packed the container in ice in order to refrigerate the water sample. The water sample remained in the custody and control of Petitioner's inspector until it was shipped, packed in ice, to Tallahassee, Florida, via Greyhound Bus, for analysis by Petitioner's food laboratory. The shipping process was in accordance with protocol established by Petitioner. On March 4, 1997, the water sample was received by the Petitioner's food laboratory for analysis. The sample remained in the custody and control of the laboratory staff. The analysis of the water sample was initiated within 30 hours of collection. Upon analysis, the water sample was found to contain 21 coliforms per 100 ml. Florida's safe water standards require a total absence (zero) coliforms. The water sample was contaminated with coliforms and was not appropriate for human consumption. The analysis was performed in accordance with the protocol established by Petitioner. By certified letter, return receipt, dated March 17, 1997, Respondent was notified, among other things; that the water sample was adulterated; that ID Tag No. 5890 was required to be cleaned and sanitized; and that another sample was required to be taken. After the analysis of the water sample showed adulteration, Respondent's president contacted an independent laboratory, Spectrum Laboratories, Inc., (Spectrum), approved by Petitioner, and requested that an analysis of the dispensed water by Machine ID Tag No. 5890. Spectrum forwarded the necessary items to Respondent's president in order for him to obtain a water sample and informed him of the procedure and process in obtaining the sample. On March 19, 1997, Respondent's president obtained the water sample in accordance with Spectrum's instructions and forwarded the sample to Spectrum. On March 20, 1997, Spectrum performed an analysis of the water sample and found no coliforms. On or about March 24, 1997, Respondent's president forwarded the results of Spectrum's analysis to Petitioner. On March 25, 1997, a second vended water sample was taken by Petitioner's same inspector from Machine ID Tag No. 5890, using the same procedure and process as before. Also, the water sample was shipped for analysis to Petitioner's food laboratory in Tallahassee using the same procedure and process. The collection and shipping procedure and process were again in accordance with protocol established by Petitioner. On March 26, 1997, the second water sample was received by the Petitioner's food laboratory for analysis. Upon analysis, the second water sample was found to contain 18 coliforms per 100 ml. The water sample was contaminated with coliforms and was not appropriate for human consumption. The analysis was again performed in accordance with the protocol established by Petitioner. By certified letter, return receipt, dated April 10, 1997, Respondent was notified, among other things, that the second water sample was adulterated; that Machine ID Tag No. 5890 would be taken out of service until the source of the contamination was found; and that Machine ID Tag No. 5890 would be immediately placed under a "Stop Use" order. By Stop Use Order dated April 11, 1997, Respondent was notified, among other things, that Machine ID Tag No. 5890 could not be used. Respondent was further notified that Machine ID Tag No. 5890 could resume being used after a showing of no contamination from a water sample taken by Petitioner's inspector and analyzed by Petitioner's food laboratory. Respondent cooperated fully with Petitioner in correcting the problem. Respondent complied with all of Petitioner's requests. On April 16, 1997, a third vended water sample was collected by Petitioner's inspector from Machine ID Tag No. 5890. The same collection procedure and process were followed as in the previous two collections. The same procedure and process were followed in forwarding the water sample to Petitioner's food laboratory as in the previous two collections. All procedures and processes were in accordance with protocol established by Petitioner. On April 17, 1997, Petitioner's food laboratory performed an analysis of the third water sample. The analysis was performed in accordance with the protocol established by Petitioner. Petitioner's laboratory found no coliforms. The water sample was not contaminated and was appropriate for human consumption. Respondent was notified of the results of Petitioner's third analysis. Petitioner permitted the use of Machine ID Tag No. 5890 to resume.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order: Finding that the Wima Corporation violated Subsections 500.459(4)(f), and 500.04(1), Florida Statutes (1995), and Rule 5K-9.005, Florida Administrative Code. Imposing a $500 administrative fine against Wima Corporation. DONE AND ENTERED this 7th day of April, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1998.
The Issue The issue is whether Respondent, TD Del Rio, LLC, should pay for investigative costs and expenses and undertake corrective actions that are demanded by the Department of Environmental Protection (Department), as set forth in the Amended Notice of Violation and Orders for Corrective Action (Amended NOV).
Findings Of Fact Background The Department has the authority to institute an administrative action to abate or correct conditions that may create harm to the environment. In this case, it filed an Amended NOV directing the existing and prior owner of certain property to undertake cleanup and cost recovery to redress the discharge of petroleum products and disposal of hazardous waste. The property is located at 4810 South 50th Street, Tampa, Florida, measures approximately 200 by 800 feet, and is further identified as Parcel Number U-03-30-19-1Q3-000112-00001.0. The property is located in an industrial area. Mr. Dearing operated a metal recycling facility on the property during the 1990s. The facility received scrap waste and passed waste through mechanical shears that shredded the waste for sorting and recycling. The Amended NOV alleges that all contamination on the property occurred while Mr. Dearing owned the property. The charges related to his activities have been resolved in a settlement agreement prior to the final hearing in this matter. The terms of the settlement are not of record. TD Del Rio, LLC, is a limited liability company formed in April 2012. It serves as a pension fund for a self-directed Individual Retirement Account for Mr. McRae. The company acquired ownership of the subject property in September 2012 by purchasing a tax deed from Hillsborough County. Respondent agrees that there has been a "discharge," as defined under section 376.301(13), Florida Statutes, of hazardous substances and pollutants (petroleum or petroleum products) on the property prior to September 1, 2012. Such discharges have not been assessed, remediated, or abated. Respondent agrees there has been a "disposal," as defined under section 403.703(9), of hazardous waste into and upon the property prior to September 1, 2012. Respondent agrees that the property is a "facility," as defined under section 376.301(19). Respondent agrees that the property is a "hazardous waste facility," as defined under section 403.703(15). Environmental Testing Pursuant to a contract with the Department, on April 24 through 26, 2012, Ecology & Environmental, Inc. (E & E), performed a detailed inspection of the property to determine if former recycling activities conducted at the property have impacted soil and groundwater beneath the property. The inspection collected samples of soil, sediment, and groundwater. The inspection was conducted in accordance with guidance documents set forth by the United States Environmental Protection Agency regarding sampling locations, sample types, sampling procedures, use of data, data types, and field quality assurance/ quality control samples. Just before E & E issued a final report, Respondent purchased the property at a Hillsborough County tax deed sale. On November 12, 2012, E & E issued a 532-page Comprehensive Environmental Response, Compensation, and Liability Information System Site Inspection Report (Report) detailing analytical results of soil, sediment, and groundwater sampling performed at the property. See Jt. Ex. 1. E & E concluded that the activities conducted prior to April 2012 impacted the soil, sediment, and groundwater at the property. The Department has adopted Soil Cleanup Target Levels (SCTLs), which are derived based on exposure to the human body. The SCTLs account for inhalation, ingestion, and absorption of contamination into people's bodies. The presence of hazardous substances above these levels presents a threat to persons who come into contact with the substances. If a site has no polychlorinated biphenyls (PCBs) or arsenic exceeding the SCTLs, there is no requirement for the owner to complete an assessment or manage exposure at the site. The testing reveals that the following substances are present in the property's soil from both zero to two feet and two to four feet below land surface at concentrations above the Department's SCTLs: arsenic, barium, cadmium, chromium, lead, carbazole, benzo(a)antracene, benzo(a)pyrene, benzo(a)pyrene toxic equivalents, and PCBs. The commercial/industrial SCTL for PCBs is 2,600 ug/kg. This target level is based upon human exposure to PCB contaminants eight hours per day. The residential SCTL, based on 24 hours of exposure per day, is 500 ug/kg. PCBs are found across the majority of the site at concentrations ranging from 940 ug/kg to 38,000 ug/kg, over times higher than the industrial SCTL and 76 times higher than the residential SCTL for soil of 500 ug/kg. The hazardous substances located in the upper two feet of land surface present the greatest potential for exposure due to potential inhalation, ingestion, and absorption of the substances. Some potential exposure pathways include foot traffic on the property stirring up dust which people present on site could then come into skin contact with or inhale. Any work done in or around the site that is intrusive in nature could present exposure pathways. In addition to soil contamination, the following hazardous substances are present in sediment on the property: arsenic, barium, cadmium, chromium, lead, mercury, silver, volatile organic compounds, semi-volatile organic compounds, and PCBs. The following hazardous substances and petroleum products are present in groundwater on the property at concentrations exceeding the Department's Groundwater Cleanup Target Levels (GCTLs): arsenic, barium, xylenes, carbon tetrachloride, isopropylbenzene, methyl tertiary butyl ether, tetrachloroethene, and trichloroethene. For one well sample, the 2012 investigation also reported an exceedance of PCBs of 1.2 ug/kg in groundwater. The presence of tetrachloroethylene and PCBs in groundwater is a specific concern at the property. PCBs are not readily soluble in water; however, tetrachloroethylene can act as a carrier for the PCBs and mobilize this contaminant to a greater extent vertically from the source area. This is a concern for the area surrounding the property given that the Floridan aquifer, which is a source of potable water for Hillsborough County, is located approximately 300 feet below ground surface in the surrounding area. Because Respondent has not completed a Site Assessment Report (SAR), the full extent of PCBs and other contamination in soil, sediment, and groundwater, including the contaminants' potential threat to the Floridan aquifer, is not known. Respondent did not present any evidence to contradict the findings and conclusions in the Report. Moreover, Respondent has stipulated that there has been a discharge of hazardous substances and petroleum products on the property prior to its purchase of the property in September 2012. Pre-Purchase Investigation of the Property by Respondent In order to minimize liability for petroleum contamination, Mr. McRae must have undertaken "all appropriate inquiry into the previous ownership and use of" the property before he purchased it, as required by section 376.308(1)(c). Mr. McRae failed to do so. Mr. McRae is the founder, manager, and registered agent of the company and has acquired at least 20 other properties through tax deed sales. He also has bought properties contaminated with petroleum prior to the purchase of the instant property. In addition, he has owned at least 30 gas stations and has hired environmental contractors to remove petroleum tanks for previous gas stations that he bought. Mr. McRae's grandson-in- law, Matthew Moralejo, has no official title with the company, but he helps in running the business, has communicated with the Department, and bought property, including the one at issue here, at Mr. McRae's direction. Mr. McRae and Mr. Moralejo acknowledge that, before the purchase, they conducted very little research into the property, searching only for things "easily accessible or identified with the property," such as code enforcement issues or liens. They conducted visual research of the property by driving by it and looking at its condition. When the property was purchased, "the place was a wreck" and "just full of overgrowth and junk." Good commercial practice in the purchase of property upon which potentially contaminating activities have occurred entails consultation with a person with appropriate knowledge and experience. Before purchasing the property, Mr. McRae did not consult with an environmental attorney or environmental consultant regarding the potential liability associated with property used as a metal recycling site. If Mr. McRae had hired an environmental consultant to assist him in assessing the likelihood of contamination at the property, it would have been standard practice to find public records about the property, including any prior enforcement actions taken against prior owners and operators of the property, all of which were public record. A consultant likely would have recommended that Mr. McRae conduct a site assessment in accordance with Florida Administrative Code Chapter 62-780. Section 376.308(1)(c) requires that in determining whether all appropriate inquiry was undertaken by a purchaser of contaminated property, it is necessary to consider the "specialized knowledge or experience of the defendant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection." Mr. McRae has no specialized knowledge of sites contaminated with hazardous substances. However, as noted above, he has extensive experience regarding the regulation, assessment, and remediation of petroleum-contaminated sites. He has bought multiple properties through tax deed sales, and he has owned at least 30 gas stations. He has hired environmental contractors to remove petroleum tanks from properties he owned. He also is familiar with the Early Detection Incentive Program instituted by the Department, under which the Department remediates petroleum- contaminated sites. The purchase price of the property in 2002 was $200,000.00, the purchase price in 2012 was $133,100.00, and the taxable value of the property in 2015 was $408,106.00. Past information about the property was reasonably ascertainable. Ownership history of the site is available from the Hillsborough County Property Appraiser's Office, Hillsborough County Clerk of the Circuit Court, and Hillsborough County Environmental Protection Commission (EPC). Information regarding regulatory actions taken at the property also was reasonably ascertainable. There were many documents in existence at the time Respondent purchased the property that showed contamination was present on the property. They included a 1995 warning letter from the EPC to previous owners of the property detailing petroleum contamination present on the property, a 1996 EPC request for a previous owner to submit a plan to address onsite soil contamination, and a field investigation conducted by the Department in April 2012, or five months before Respondent purchased the property. There is no evidence that the documents referenced above were not "reasonably ascertainable information." Although a visual inspection by a lay person would not disclose the presence of contamination at the property, Mr. McRae should have known to seek information regarding past enforcement history and site investigation performed at the property. Post-Purchase Actions After buying the property, Respondent dug up debris including tires that were approximately four feet below the soil surface. After removing debris from the contaminated soil, Respondent spread the disturbed soil. To make the property more attractive to prospective tenants, Respondent then spread up to four inches of gravel around the property. This amount of gravel did not cover the entirety of the contaminated area and did not break the exposure pathway that the contaminants presented to people on the property. According to a Department expert, two feet of clean fill over the contaminated area would have been an acceptable intermediate step to break the exposure pathway. After spreading the gravel on the property, Respondent leased the property to three tenants: a landscape business; a portalet company; and a storage container facility. The portalet company and storage container tenants both use the property as storage facilities, including loading and unloading portalets and storage containers, when needed. The contaminants present in the soil present a potential for incidental exposure to workers on the site, especially given that workers are constantly stirring up dust by loading and unloading equipment on the property. Department Communications with Respondent On February 14, 2014, the Department sent Mr. McRae a letter informing him that the Department had information indicating that contaminants may have been released or discharged at the property. The letter referenced the 2012 E & E Report, which documented metals, volatile organic compounds, semi- volatile organic compounds, and PCBs in site soils, sediments, and/or groundwater above SCTLs, Sediment Quality Assessment Guidelines, or GCTLs. The letter stated that failure to submit an SAR within 180 days of receipt of the letter, or by August 14, 2014, may subject Respondent to enforcement action to compel such compliance. Matthew Moralejo responded by email on July 17, 2014, and stated, in part, that "we have never conducted any type of business that would have led to the contamination of said property." The same day, the Department responded by email directing Mr. Moralejo to the Department's public database, OCULUS, that provides reports and correspondence regarding facilities regulated by the Department. The Department provided a link to the 2012 Report and the name of a contact person to discuss Respondent's liability as the current property owner, as well as possible cleanup programs that are available when the current owner is not the one causing the contamination. On September 29, 2015, the Department sent another letter, with attachments, to Mr. McRae. The Department stated that "[s]ome limited site assessment activities have been performed [by E & E] at the site historically; however, the work completed and the documents submitted to date do not constitute a complete [SAR] as required by Rule 62-780.600, F.A.C." The Department again requested an SAR, and, in the alternative, offered a meeting to discuss the issues associated with the letter. Again, the letter warned Mr. McRae that if an SAR was not filed within the timeframes required by the rule, he may be subjected to an enforcement action. In August 2016, Mr. Chamberlain, a Department geologist, met with Mr. McRae and Mr. Moralejo at the property. During the meeting, Mr. Chamberlain took photographs of the site and explained his concerns with the property. Specifically, he informed them that the SAR was still outstanding; and he recommended that Respondent hire an environmental consultant to assist them in the site rehabilitation process. In October 2016, Respondent hired an environmental consultant, Mr. Doherty. On November 29, 2016, the Department emailed Mr. Doherty reminding him that an SAR was due by December 13, 2016. Three days later, Mr. Doherty asked that he be given a six-month extension to file an SAR; the Department authorized only a four-month extension, or to April 3, 2017. Mr. Doherty never conducted any sampling at the property and he did not submit an SAR. Mr. McRae explained at hearing that the consultant "never did [any] work, so he didn't get paid." On May 25, 2017, the Department sent another letter to Mr. McRae stating that it had not received an SAR, and, as a final request prior to initiating enforcement action, requested that he provide a summary of all site assessments completed since September 29, 2015, complete installation of groundwater monitoring wells and conduct sampling within 90 days, and submit an SAR by October 23, 2017. Respondent did not comply with any of those requests. To date, an SAR has not been submitted and a site assessment has not been conducted. The Department then issued an NOV, as amended. Given the numerous letters and emails sent to Respondent, and various site inspections, the Department has incurred costs and expenses of at least $500.00 investigating this matter. Respondent does not dispute this amount. Respondent's Defense Respondent essentially contends it is an innocent third-party purchaser because it had nothing to do with the recycling activities conducted on the property during the 1990s. It argues that the clean-up costs requested by the Department equal or exceed the value of the property and are cost prohibitive. In its PRO, Respondent contends that if the Department reached a settlement with Mr. Dearing, whose company is responsible for the hazardous waste discharge in the 1990s, this should relieve Respondent from any responsibility. It asks that the Department use "compassion" in dealing with him.
Conclusions For Petitioner: Paul Joseph Polito, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 For Respondent: TD McRae, pro se Matthew Moralejo, pro se TD Del Rio, LLC 4608 East Columbus Drive Tampa, Florida 33605-3210
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order sustaining the charges in Counts I, II, and III of the Amended NOV. It is further RECOMMENDED that within 30 days of the final order, Respondent TD Del Rio, LLC, shall commence a site assessment and submit an SAR in accordance with rule 62-780.600. Respondent shall assess and clean up all hazardous substance contamination and petroleum contamination at the property in accordance with chapter 62-780 and the timeframes therein. It is further RECOMMENDED that within 90 days of the effective date of the final order, Respondent shall pay $500.00 to the Department for costs and expenses. Payment shall be made by cashier's check or money order payable to the "State of Florida Department of Environmental Protection" and shall include thereon the notations "OGC Case No. 17-1090" and "Ecosystem Management and Restoration Trust Fund." The payment shall be sent to the State of Florida Department of Environmental Protection, Southwest District, 13051 North Telecom Parkway, Suite 101, Temple Terrace, Florida 33637. DONE AND ENTERED this 24th day of July, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2019. COPIES FURNISHED: Paul Joseph Polito, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) TD McRae TD Del Rio, LLC 4608 East Columbus Drive Tampa, Florida 33605-3210 Noah Valenstein, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
