The Issue Whether Amendments to Rules 17-2.600 and 17-2.710, Florida Administrative Code are invalid by virtue of being an invalid exercise of delegated legislative authority. Whether the economic impact statement prepared by the Department was adequate.
Findings Of Fact The proposed amendments to Rule 17-2.600 and 17-2.710, Florida Administrative Code (the Rule) were published in the February 17, 1989 Florida Administrative Weekly, and were adopted by the Environmental Regulation Commission on March 22, 1989. MEDX timely filed a petition to challenge the Rule on March 13, 1989, prior to adoption. Promulgation of the Rule resulted from Senate Bill 1192 later codified as Section 403.704(31), Florida Statutes, which directed the department to initiate rulemaking to address the management of biohazardous waste and biological waste within the state. This statute requires such rules to address on-site and off-site incineration as well as regulation of such waste from the point of original to final incineration. The Rule here involves only the incineration of this waste. Rule 17-712, Florida Administrative Code regulates off-site handling, transportation and disposal of biological waste, while proposed Rule 10D-104 (by DHRS) will regulate on-site handling and disposal of biological waste. Biohazardous waste is generally any solid or liquid waste which may present a hazard of infections to humans. Biological waste is solid waste that causes or has the capacity of causing disease and infection, and includes, but is not limited to, biohazardous waste, diseased or dead animals, and other waste capable of transmitting pathogens to humans or animals. The Rule sets emission and operating standards for incinerators which burn biological waste. The Rule sets different standards for different size incinerators, with the result that incinerators with a capacity of 500 pounds per hour (pph) or less, if properly constructed and operated, are likely to be able to meet the standards and the rules without the use of additional pollution control devices, such as scrubbers, depending upon the waste stream being incinerated. Incinerators with capacities of more than 500 pph are unlikely to be able to meet the standards in the Rule without the use of additional pollution control devices such as scrubbers, although it is possible that some may be able to meet these standards. The incineration of a ton of biological waste in several 500 pph capacity incinerators without scrubbers is likely to emit more total particulates and hyrdogen chloride (HCl) into the air than would be the same ton of biological waste burned in a 2,000 pph incinerator equipped with a scrubber. All biological waste incinerators, of whatever size, would be subject to all other applicable ambient air quality standards in addition to the minimum emission standards in the Rule and would be further subject to pollution limitations established for each area. Proposed Rule 17-712 and Department of Health and Rehabilitative Services proposed Rule 10D-104, which together regulate the storage, treatment and disposal of biological waste, are likely to substantially increase the number of biological waste generators regulated by the State of Florida and are likely to increase the amount of biological waste regulated by the State of Florida. It is, therefore, likely that the amount of biological waste incinerated in the state, as well as the persons contracting with biological waste incinerator facilities, will increase as a result of these rules. Currently, all incinerators with capacities of less than 50 tons per day (which includes all biological incinerators in this state) are exempt from air emission standards, with the exception of visible emissions and odor. The Rule, by setting standards for particulate emissions and HCl emissions, as well as setting standards for residence time, carbon dioxide emissions, monitoring, operator training, and start-up and shut-down procedures, will impose more stringent requirements on all biological waste incinerators than currently exist, regardless of the size of the incinerator. MEDX is a biohazardous waste transportation and disposal company founded in 1978. MEDX has two incinerators at its Miami facility with a combined capacity of 4500 pph. The older unit is rated at 2000 pph and the newer one at 2500 pph. During the last fiscal year, MEDX invested approximately 3.5 million dollars in its Dade County facility for pollution control devices, buildings and water containment. The Dade County facility incinerates all biological waste treated by MEDX in Florida. Biological waste from northern and central Florida is collected by trucks operating out of Lakeland, Florida, from where this waste is transported on larger trucks to the Dade County facility for incineration. As a result of emission control problems MEDX entered into a consent decree with Dade County in which MEDX agreed to equip its two Dade County incinerators with anti-pollution equipment (scrubbers) in 1989 at a cost of approximately $300,000 each. Prior to promulgating the Rule, DER held workshops at which MEDX and all other interested parties were invited to participate and were given the opportunity to present evidence regarding the Rule and the economic impact of the Rule. Additionally, the Department considered studies by the Environmental Protection Agency, looked at incinerators operating in Florida, consulted with other professionals in the field, contacted other states and looked at their rules, and solicited written comments from affected parties. As a result of these studies, it was concluded that the most important factor in reducing harmful emissions is to ensure good combustion. This is addressed in the Rule by requiring 1800 degrees F. operating temperature in the upper chamber, for a residence time of one second, with constant monitoring of this temperature and to require the use of trained incinerator operators. It was further concluded that good combustion could be further ensured by monitoring carbon monoxide (CO) emissions and establishing a requirement that CO emissions not exceed 100 parts per million. Manufacturers of incinerators were contacted to determine the minimum particulate emission attainable without control devices and these manufacturers agreed their incinerators could, if properly operated, attain a particulate limitation of 0.1 grain per dry standard cubic foot corrected to 7 percent oxygen. Accordingly, this standard was adopted. A majority of these incinerators burn hospital waste which generally contains large quantities of polyvinyl chlorides (plastics) which, when burned, produces HCl. The amount of HCl emissions can be controlled to a large extent by controlling the amount of plastic that is put into the waste stream. Federal regulations for hazardous waste facilities require the hydrogen chloride emissions not exceed four pounds per hour. If the incinerator can't meet that limitation they have to provide 99 percent elimination. Since most incinerators with a capacity of less than 500 pph can meet this limitation of HCl emission, that standard was adopted and is consistent with the Federal rule. Biohazardous waste incinerators are controlled air incinerators. Waste is loaded into a lower chamber which partially burns the waste creating a smoke which is burned and consumed in the upper chamber leaving, theoretically, carbon dioxide, nitrogen and water vapor. However, even the best incinerator cannot reach complete combustion and some particulates remain. Also the burning of plastics which contains chlorine results in the emission of HCl. Small incinerators with a capacity of less than 500 pph are generally referred to as batch incinerators because they are loaded with a batch of waste to burn and when that process is completed the incinerator is turned off, the ashes are removed and the incinerator is ready for another batch. Batch incinerators are usually run for 10 - 12 hours per day. Another type incinerator is the continuous burn incinerator. This type incinerator generally has a capacity greater than 500 pph and is characterized by some mechanism which can continuously feed waste material into the incinerator and remove ashes without shutting dawn the incinerator. In preparing the Rule DER conducted a survey of existing incinerators in Florida which dispose of biohazardous wastes and found the vast majority of these facilities have a capacity of less than 500 pph and a majority have a capacity of less than 200 pph (Exhibits 6 and 23). Installing pollution control devices (scrubbers) on small incinerators with capacity less than 500 pph is not economically feasible because the amount of emission reduction will not justify the cost of the scrubbers. On the other hand, larger incinerators benefit from economies of scale which allows scrubbers to be cost effective in reducing pollutants. Without controls and assuming the same combustion, an incinerator with a capacity of 2,000 pph will emit four times the pollutants of a 500 pph capacity incinerator, assuming both operate the same number of hours per day. Accordingly, the concentration of harmful emissions will be much higher in the vicinity of the large incinerator than in the vicinity of the small incinerator. The concentration of HCl, for example, is more significant in determining the adverse impact than is the quantity of HCl emitted. Petitioner's contention that the Rule will result in a proliferation of small incinerators and therefore lead to increased air pollution instead of a diminution of such pollution cannot be so. There is presently no control over any of these incinerators burning biohazardous wastes, except for visible emissions and odor; and even if the Rule did not limit the emissions which require scrubbers on the larger incinerators, the Rule would improve air quality simply by setting standards which will improve combustion in all of these incinerators. By limiting total emissions of HCl and particulates, the Rule will result in improved air quality. ECONOMIC IMPACT STATEMENT Pursuant to Section 120.54(2), Florida Statutes, an Economic Impact Statement (EIS) was prepared by the Department prior to adoption of the Rule. Section 120.54(2)(b), Florida Statutes provides the Economic Impact statement shall include: An estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork; An estimate of the cost or the economic benefit to all persons directly affected by the proposed action; An estimate of the impact of the proposed action on competition and the open market for employment, if applicable; A detailed statement of the data and method used in making each of the above estimates; An analysis of the impact on small business as defined in the Florida Small and Minority Business Assistance Act (FSNBA) Act of 1985. There is no issue that the EIS properly addresses the cost to the agency. The estimated cost to persons affected by the Rule, in addition to permit fees, was estimated by the Department at $20,000 to $40,000 annually for incinerators with a capacity greater than 500 pph. This figure was arrived at by annualizing the cost of a scrubber over a 20 year period, and adding the annual operating costs of that scrubber. The costs for incinerators with a capacity of 500 pph or less was estimated as a one-time expense of $15,000 to $20,000 to modify the incinerator to meet the retention time required by the Rule. No evidence was presented to refute the accuracy of these figures. MEDX contends the EIS is fatally defective because it fails to include the transportation costs associated with the operation of large off-site incinerators. While MEDX obviously incurs large transportation costs in treating in its Dade County facility biohazardous wastes generated in the Florida panhandle, for example, the same costs are not involved in treating waste generated in South Florida. Even if the Rule may result in small incinerators having a cost advantage in some areas over regional incinerators many miles away, it does not follow that large regional incinerators which are required to install scrubbers cannot compete economically with small incinerators located in the same general area, or that the EIS is fatally defective for not including such costs. Economies of scale will offset some of the additional costs involved in having to install scrubbers. In addition to not including transportation costs, the EIS also did not include the cost of facility siting or construction which could vary greatly depending on whether the facility is on-site or off-site. The EIS addresses only the costs of complying with the Rule. The Rule sets emission and operating standards and the EIS addresses only the costs associated with complying with those standards. Petitioner also challenges the statement in the EIS that the proposed revisions would benefit the public in reducing emissions in the air. The fallacy of that argument is pointed out in finding 23 above.
Recommendation From the foregoing it is concluded that amendments to Rule 17-2.600 and 17- 2.710, Florida Administrative Code are not invalid exercises of delegated legislative authority and that the Economic Impact Statement adequately reflects the economic impact of the rules on the agency, the public, and the regulated community affected by the rule. It is, therefore, ORDERED that MEDX's challenge to Rule 17-2.600 and 17-2.710, Florida Administrative Code be dismissed. DONE AND ENTERED this 12th day of June, 1989, in Tallahassee, Leon County, Florida. K.N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1989. APPENDIX Treatment Accorded Petitioner's Proposed Findings Included in HO #1 and #2. Included in HO #2. Included in HO #7. Included in HO #1. Included in HO #7. Included in HO #10. Included in HO #11. Rejected as speculation and unreasonable. Accepted. Included in HO #18. Included in HO #19. 12, 13, 14. Included in HO #20. 15, 16. Included in HO #18. Accepted in principle. However, this finding is predicated upon the fact that incomplete combustion will occur when the temperature in the upper chamber is less than 1800 degrees F. Accepted. Included in HO #4. Accepted, but irrelevant to the validity of the Rule. Rejected. The Rule requires monitoring. Included in HO #4. Rejected. 24, 25. Included in HO #4. Included in HO #5. Included in HO #6. Included in HO #7. Same as 20. Same as 20. Same as 20. See HO #27. Same as 20. Accepted. First two sentences accepted. Remainder rejected as mere opinion. Rejected insofar as not included in HO #5, #6 and #9. Same as 20. Same as 20. Rejected. First paragraph accepted; remainder rejected. Rejected insofar as in conflict with HO #4, #5, #6, #7, #14 and #17. Accepted insofar as compatible with HO #22. Same as 20. Accepted as the testimony of Dr. Fishkind; conclusions that EIS inadequate rejected. Rejected as argument. 47-53. Rejected. Treatment Accorded Respondent's Proposed Findings Included in HO #1. Included in HO #2 and #4. Included in HO #8 and #9. Included in HO #6. Included in HO #7. 6, 7. Included in HO #13. Accepted. See HO Conclusion of Law 5. Included in HO #24. Included in HO #25. Included in HO #26. Included in HO #28. Accepted insofar as included in HO #23. Accepted insofar as included in HO #22 and #23. Accepted insofar as included in HO #23, #27 and #28; otherwise rejected as irrelevant. Accepted, but irrelevant to validity of Rule. Included in HO Conclusion of Law 5. Included in HO #16, #21, #27 and #28. Rejected as argument. Included in HO #23. Same as 16. Included in HO #17 and #22. Included in HO #14 and #17. Accepted. Accepted insofar as included in HO #14; otherwise rejected as argument. Rejected as argument. Accepted insofar as included in HO #17, #22 and #23. Included in HO #15. Included in HO #12; otherwise rejected as argument. COPIES FURNISHED: Paul H. Amundson, Esquire Julie Gallagher, Esquire 204 B South Monroe Street Tallahassee FL 32301 Chris McGuire, Esquire Betsy Hewitt, Esquire Suite 654 2600 Blairstone Road Tallahassee, FL 32301 William D. Preston, Esquire Laura B. Pearce, Esquire 123 South Calhoun Street Tallahassee, FL 32301 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carroll Webb Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, FL 32399-1300 Liz Cloud Chief Bureau of Administrative Code Room 1802, The Capitol Tallahassee, FL 32399-1300
The Issue The issue in this case is whether the Notice of Violation (NOV) and Orders for Corrective Action (OCA) filed by the Department of Environmental Protection (DEP) against Respondents, Thomas Kerper (Kerper) and All Salvaged Auto Parts, Inc. (ASAP) , in DEP OGC File No. 02-0447 should be sustained.
Findings Of Fact 1. The real property located at 3141 Sharpe Road, Apopka, Florida, is owned by the heirs of Donald Joynt, who owned it for the 30 years prior to his death in 2002. The property consists of approximately 40 acres in the shape of a right triangle with the west side bordered by Sharpe Road, the south side by a potting soil business, and the northeast side (the hypotenuse of the right triangle) bordered by a railroad track. Prior to his death, Joynt used the property primarily for the purpose of operating a junkyard and recycling business ultimately entitled Don's Auto Recycling. 2. At some time before 2000, Joynt became desirous of selling his property. He offered it to a neighbor named José Luis Benitez for $600,000. Benitez counter-offered for between $350,000 and $400,000 because he thought it would cost $200,000 to $250,000 to clean the property up. Joynt rejected the counter-offer, and asked Benitez to help him find a buyer who would pay more than Benitez. At some point, Joynt listed the property with a real estate broker for $600,000. 3. In 1999, Kerper was operating an automobile parts salvage business at a location near Joynt's property. Kerper needed a new location to move his business and inventory. A real estate broker showed him Joynt's property. The broker told Kerper that the seller's broker said the property was clean and had no environmental problems. The broker also told Kerper that Orange County had recently purchased an easement for $300,000 to run a drainage ditch through the property to a local lake, which was true. While this gave Kerper some level of assurance, the broker advised Kerper to have an environmental assessment done before going forward with the sale. 4. After being shown the property by the broker, Kerper spoke with Joynt directly. It was agreed that they could save the real estate commission and split the savings by waiting until the listing expired. Joynt personally assured Kerper that there were no environmental issues, as evidenced by Orange County's purchase of the easement for a drainage ditch. In late March of 2000, after expiration of the real estate commission, Kerper and Joynt entered into an informal agreement allegedly written on a scrap of paper, which was not placed in evidence. Kerper testified that the agreement was for him to buy the property for $500,000, with $100,000 down, and the balance payable over time at seven percent interest. He also testified that the required $100,000 down payment would be payable in installments, with $25,000 payable whenever Joynt cleaned 25 percent of the site to make it usable by Kerper for his business operations. 5. When it came time for Kerper to move onto Joynt's property, Kerper discovered that Joynt had not done any clean-up or removed any of his property from the site. Used cars, car parts, and tires that belonged to Joynt remained throughout the site. According to Kerper, it was agreed that Kerper would help Joynt clean off the western half of the property, which was split approximately in half by a stream, while Joynt worked on cleaning off the eastern half of the property.” 6. Starting from the gate at Sharpe Road, Kerper began removing junk from the western side to the eastern side of the site for Joynt to remove from the property. Pieces of equipment and used car parts that had been left there by Joynt were removed from this section of the property. When enough space was cleared off, Kerper began setting up his auto salvage operations on the western side. He used a bulldozer to level the driveways and spread powdered concrete where the ground was soft. He also used the bulldozer to level an area near the scale house, which was on the western side of the property, but continued to be used by Joynt for Don's Auto Recycling business. In doing this work, his workers encountered steel reinforcement bars, which Kerper had them cut with a torch. Some tires and battery casings also were visible in the ground. Kerper had several truckloads of fill dumped in the area and installed a concrete pad for storing and dismantling automobiles. 7. In September or October of 2000, Kerper was evicted from his prior business location, and he had to move to Joynt's property regardless of its condition. As he increased business operations on the cleared spaces, Kerper continued to clear more space on the western side of the property. Another concrete pad was installed farther to the north. Eventually, Kerper was operating ASAP on approximately ten acres on the western side of the 40-acre site. 8. As Kerper continued to move north, his heavy equipment began encountering assorted kinds of buried material. When a buried propane tank exploded, Kerper stopped working his heavy equipment in the area and confronted Joynt. Joynt denied any knowledge of buried tanks and stated they must have been placed there by someone else. Joynt told Kerper he would let Kerper move his operations to the east side of the property when Joynt finished cleaning it up, and then Joynt would finish clearing the western side for Kerper. Kerper agreed, and continued making payments on the required down payment. According to Kerper, he eventually paid $90,000 of the down payment. 9. By August of 2001, Kerper began to have serious misgivings about Joynt's promises and the condition of the site, and he decided to seek advice. Kerper hired David Beerbower, vice-president of Universal Engineering, to perform an assessment of the northern portion of his side of the site (in the vicinity where the exploding tanks were encountered). During his assessment on August 20, 2001, Beerbower observed various automotive parts including numerous crushed fuel tanks, antifreeze containers, and motor oil containers being excavated from the upper three feet of soil. It was determined by Beerbower, and stated in his written report to Kerper, dated September 21, 2001, that these parts appeared to have been buried there several years ago. This determination, which DEP does not dispute, was based on the high level of compaction of the soil found around these items that could be attributed to either the passing of a significant amount of time or a bulldozer passing over the items. Since the excavations Beerbower observed were in a separate location from where Kerper had already bulldozed, the soil compaction around these items could not be attributed to Kerper's bulldozing. It was stated in Beerbower's letter that the “amount of buried automotive debris qualifies this area essentially as an illicit landfill." ad 10. Mark Naughton from the Risk Management Division of the Orange County Environmental Protection Division (OCEPD), which runs the petroleum storage tank and cleanup program for Orange County under contract with DEP, was also present during the time Beerbower conducted his assessment. Naughton agreed with Beerbower's assessment that Kerper is not liable for the assessment or remediation of this area. Naughton also advised Kerper to move ASAP off Naughton's property and to seek legal advice from attorney Anna Long, who used to be the Manager of OCEPD. 11. Meanwhile, according to Kerper, Joynt changed his position and began to maintain that it was Kerper's responsibility to clean up the western side of the property. Given the newly-discovered environmental condition of the property, Kerper did not feel it was in his best interest to purchase the property "as is," and contacted Long to help him negotiate to extricate himself from his arrangement with Joynt. While negotiations proceeded, Kerper began to scale down ASAP's operations in anticipation of relocating. Kerper began fixing up more whole automobiles for resale, and had a car crusher used in connection with ASAP's business begin crushing more cars for removal from the site for recycling. 12. Eventually, Long had Beerbower conduct another assessment of portions of Joynt's property to try to establish responsibility for contamination as between Kerper and Joynt. On 10 February 13, 2001, Beerbower took a surface water sample froma "drain pipe under the north driveway," a soil sample "where the car crusher was," and another soil sample from "the sandblasting area." The evidence was not clear as to the exact location of these samples, particularly the soil samples, as described in Beerbower's written report to Long dated March 11, 2002. But it appears that the "car crusher" refers to the location of Respondents' car crusher operation in the northern part of the site, just across the northern driveway; it appears that the sandblasting area refers to a location used by Joynt on the eastern side of the property, but located just east of the trailers used by Kerper for his offices. These samples were analyzed and found not to contain volatile organic compounds (VOC) or total recoverable petroleum hydrocarbons (TRPH) in excess of Florida's cleanup target levels. 13. Kerper continued to operate his junkyard until the beginning of March of 2002. On March 5, 2002, Long filed a citizen's complaint with OCEPD on Kerper's behalf. While acknowledging that Kerper was operating on the site at the same time as Joynt in recent years, the complaint alleged Kerper's discovery that Joynt had been burying waste batteries, tires, and gasoline tanks on the property and covering the burial sites with broken concrete pieces. The complaint alleged that Kerper had been moving his personal property off of the site since August of 2001, when he backed out of his "lease to purchase" agreement 11 with Joynt, and would be "completely off the property by 3/10/02." 414. It is not clear exactly when Kerper and ASAP were completely off the property. The testimony and evidence on the point is inconsistent. Kerper, after some confusion, placed the date at March 9, 2002. His wife said it was March 2, 2002. An attorney representing Kerper and ASAP in an eviction proceeding filed by Joynt and his wife, filed a notice "that as of the evening of March 15, 2002, [ASAP had] vacated the property." In any event, the evidence seemed clear that Kerper and ASAP did not go on Joynt's property on or after March 15, 2002. 15. On March 15, 2002, DEP representatives inspected Joynt's property in response to Long's complaint. Kerper remained outside the front gate of the property and did not participate in the inspection. This inspection covered the entire property including the section that had been occupied by Kerper and ASAP. 16. doynt told the DEP inspectors that Respondents were responsible for a 55-gallon drum found tipped over on its side on the western half of the site and leaking a substance that appeared to be used oil from a hole in the side of the drum. DEP's inspectors righted the drum, which still was partly full of its contents. There also were several other unlabeled 55-gallon drums and 5-gallon containers "of unknown fluids"; a burn pile containing burned oil filters, battery casings, and electrical 12 wiring; other broken battery casings; and an area of dark-stained soil which appeared to be soaked with used oil. Joynt accepted responsibility for other contamination on the site, but told DEP that Kerper and ASAP were responsible for these items. Kerper denied the allegations. 17. As to the leaking oil drum, Kerper first contended that DEP did not prove that the overturned drum contained used oil. But the evidence was clear that DEP's inspectors were ina position to determine that the liquid was oily. Respondents also contended that the drum would have been empty, not still partly full, if Kerper or ASAP had left it on its side at the site when they vacated the property several days earlier. Kerper alleged that Joynt could have put the hole in the drum and turned it over shortly before the arrival of DEP's inspectors. But, as stated, it was not clear when Kerper and ASAP vacated the site, and it was not clear from the evidence that Respondents were not responsible. 18. Similarly, the other unlabeled drums and containers were in a part of the site occupied and used by Respondents. Despite Kerper's denials, it is not clear from the evidence that they belonged to Joynt or that they were placed where DEP found them after Respondents vacated the site. Testimony that Respondents had containers properly labeled "used oil," "antifreeze," and "gasoline" inside one of the trailers on the site did not negate the existence of unlabeled drums and 13 containers on the site. However, there was no proof whatsoever as to what the closed drums and containers held. But some were open, and DEP's inspectors could see that these held an oily substance (possibly hydraulic fluid), mixed with other substances. 19. As to the dark-stained soil, none of it was tested, and Respondents contended that it was just naturally darker in color or possibly wet from water or some other liquid, DEP's witness conceded could explain the color variation. (Natural reasons such as different soil or rainwater probably do not explain the color variations in the site.) Joynt told DEP's inspectors that the discoloration seen by them on March 15, 2002, was froma hydraulic hose on a piece of heavy equipment that burst earlier. The evidence was not clear who Joynt was saying owned and operated the equipment. But Respondents also blamed Joynt's employees for repeatedly blowing hoses on aged heavy equipment all over the site. It is found that the dark-stained soil probably was the result of one or more releases of hydraulic fluid or motor oil. However, the testimony and evidence was not clear that all of the releases were Joynt's doing and that Respondents bear no responsibility at all for the releases observed on March 15, 2002, in the areas where Respondents were operating. 20. Respondents were able only to produce documentation of proper disposal of 232 gallons of oily water through IPC/Magnum, 14 dated February 13, 2002, and 29 batteries through Battery World, dated March 8 and 14, 2002. 21. The testimony of Kerper and others was that Respondents generally removed gasoline from automobiles and placed it ina marked container for reuse within a day or two by Respondents and their employees. The testimony was that used oil and antifreeze generally also were removed from automobiles and placed in marked containers until proper disposition. The testimony was that batteries were removed from automobiles and that most were given to one of the employees to sell for a dollar apiece. There was no documentation to support this testimony. 22. There was testimony that, when Respondents had cars crushed, E & H Car Crushing Co., Inc., managed the collection and proper disposition of gasoline, used oil, and batteries. But the documentation placed in evidence contained no description of the wastes removed, but only provided a weight calculation of the materials removed from Respondents’ facility. 23. There was testimony that Gabriel Lynch, who was properly licensed, removed freon from automobiles at Respondents’ facility every two to three days, or upon request. Respondents would trade the freon Lynch recovered and used in his business, Gabe's Auto Tech, for repair work on Respondents' vehicles. However, no documentation of these transactions was produced. (Lynch testified that he did not know it was required that he provide documentation to Respondents.) 15 24. Runoff from where Respondents were operating on Joynt's property entered the stream running north-south through the center of the property. Neither Joynt nor Respondents had a stormwater permit or an exemption from stormwater permitting. 25. Kerper argued that his duties were limited to managerial responsibilities for ASAP, and that he was not at any time responsible for ASAP's day-to-day operations and did not conduct any activities that may or could have resulted in hazardous waste or petroleum discharge violations so as to be liable as an "operator." But the evidence was clear that Kerper was involved in ASAP's day-to-day operations. 26. While the evidence did not totally absolve Respondents from the allegations in the NOV, several people testified on Respondents' behalf as to their practice of properly disposing of hazardous materials generated by his business. For example, Rafael Rivera, a former employee, testified that Kerper would get mad at him if any gas or oil was spilled and left on the ground or was not disposed of properly. Meanwhile, it appeared that environmental problems at Joynt's site existed for years before the arrival of Respondents. Mrs. Sandra Lovejoy, a neighboring property owner for the past 30 years, testified that she had experienced problems with her water quality, such as a foul smell or funny taste, for many years before Respondents moved onto Joynt's property. An inspection was conducted by OCEPD in September of 2000, in response to Lovejoy's complaint regarding 16 fuel odor and a drinking well which was no longer in service. In part, OCEPD's written report on the complaint found "[m]any spots of surficial petroleum contamination . . . from gasoline, motor oil and other petroleum products leaking or spilled from the junk vehicles" at Don's Auto Recycling and included a recommendation "referring this site to the FDEP task force that has been put together to inspect and deal with junk yard facilities," although "[n]o Petroleum Cleanup issues were found at [that] time." For reasons not explained by the evidence, it does not appear that Don's Recycling was referred to any task force, or that OCEPD followed up on the reported contamination. 27. Respondents contend that this entire proceeding against them was part of a vendetta against Kerper for going to the local television station to expose the condition of the site, the failure of OCEPD and DEP to follow up on the September 2000, report and recommendation, and Orange County's purchase of a north-south drainage easement through the western portion of the property in 2000. The evidence did not prove this contention. However, it is clear that Joynt was responsible for the condition of most of the 40-acre site, not Respondents, and that Joynt shared responsibility with Respondents for the conditions alleged in the NOV. 28. While this case has been pending, Joynt's heirs have cooperated with DEP in cleaning up the site, and DEP acknowledged in its PRO that several items in the OCA--specifically, those 17 relating to Counts II, III, and VII of the NOV--are moot and unnecessary in light of Respondents' eviction from the property and subsequent cleanup operations by Joynt's heirs. It also is suggested that the corrective actions requested in DEP's PRO to address Counts IV, V, and VI of the NOV--relating to failure to document proper disposal of wastes--are unnecessary. It seems clear that, to the extent such disposals occurred, any available documentation would have been placed in evidence during the final hearing. Ordering that they be produced within 30 days of the Final Order, as suggested in DEP's PRO, would be a futile act. 29. Count VIII of the NOV alleged costs "of not less than $500. In its PRO, DEP requested recovery of $1,367.31 of costs. Some of these costs--$867.31--were itemized in the PRO. The balance appears to relate to the $500 alleged in the NOV. There was no evidence introduced at the final hearing as to any of these alleged costs, and the costs itemized in the PRO seem to represent travel costs of counsel for DEP.
Conclusions David J. Tarbert, Esquire Jason Sherman, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Albert E. Ford II, Esquire Webb, Wells & Williams, P.A. 994 Lake Destiny Road Suite 102 Altamonte Springs, Florida 32714
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order providing: 1. Under Count I of the NOV, Respondents shall be jointly and severally liable, along with Donald Joynt and Don's Auto Recycling, for cleaning up the releases of used oil evidenced by the discolored soils photographed by DEP's inspectors on 24 March 15, 2002 (DEP Exhibit 20, photographs 5 and 7 on page 2 of the exhibit). As such, they shall be responsible, along with Donald Joynt and Don's Auto Recycling, for implementation of DEP's Initial Site Screening Plan to assess and remove all contaminated soils resulting from those releases. If the results of the Initial Site Screening indicate that further assessment and/or remediation of the contamination is required, Respondents shall also participate, along with Donald Joynt and Don's Auto Recycling, in completing the required work, consistent with the "Corrective Actions for Contaminated Site Cases" (DEP Exhibit 16). 2. Counts II through VIII of the NOV are dismissed. 3. Respondents' Motion for Attorney's Fees and Costs is denied. DONE AND ENTERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Vane ya J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2003. 25
The Issue The ultimate issue to be resolved in this proceeding is whether the Department of Environmental Regulation should issue a permit to Broward County authorizing construction of the proposed Cell 14 extension of the Broward County landfill located in the Town of Davie, Florida. Broward County and the Department of Environmental Regulation contend that Broward County has provided reasonable assurance that the proposed facility will meet the requirements of the Department's rules and regulations and not cause pollution in contravention of the Department's standards. The Town of Davie contends that the proposed facility will not meet the Department's requirements and will result in pollution in contravention of the Department's standards.
Findings Of Fact Broward County presently operates a landfill known as the Davie Landfill on a tract of land comprising 200 acres within the Town of Davie, Broward County, Florida. The existing sanitary landfill includes 13 cells which cover approximately 20 acres on the northeastern portion of the site. The landfill had an original design elevation of50 feet. The Department of Environmental Regulation, in a separate permitting proceeding, has authorized an increase to the height of the existing landfill to 90 feet. The permit authorizing increasing the height of the existing landfill has been challenged by the Town of Davie and is the subject of a separate proceeding before the Division of Administrative Hearings. The site which includes the landfill also has a sludge lagoon and trash landfill located in close proximity to the sanitary landfill. The sludge lagoon was used until sometime in 1981 for disposal of septic tank clean-out, sludges, grease trap waste, and wastewater treatments. The trash landfill was designed primarily for disposal of yard trash. The existing landfill has vertical side slopes of 3.5 to l. In other words, the height of the landfill increases along sides by i foot for every 3.5 feet traveled horizontally. Through this application, Broward County is seeking approval to expand its sanitary landfill by adding a proposed Cell 14. Cell 14 would constitute a Class I landfill since it will receive in excess of 20 tons of solid waste per day. The proposed Cell 14 would be constructed along the existing western face of Cells 1 through 13. It would ultimately be constructed to a height of 90 feet and would be capped with an impervious substance. The western side slope of the proposed cell would also be 3.5 to 1. Cell 14 would cover approximately 11 acres, bringing the total size of the sanitary landfill to just over 30 acres. With Cell 14, the sanitary landfill would continue to operate until approximately 1986. Containing leachate and preventing it from entering surface or ground waters is a most important consideration in determining whether to permit sanitary landfills. Leachate is water that has passed through refuse and been contaminated by the refuse. If significant amounts of leachate from Cell 14 enters into surface and ground waters, violations of the Department's water quality standards would be likely. Several features have been designed into Cell 14 to prevent introduction of leachate into surface and ground waters. The base of the cell would have a high density polyethylene liner to prevent percolation of Leachate that collects at the bottom of the cell into groundwater. A leachate collection system consisting of pipes and manholes has been devised. As leachate collects at the base of the cell, it will be dumped into tank trucks and carried to nearby wastewater disposal plants where it will be treated. A stormwater collection system has been designed so that initial stormwater runoff will be pumped to the leachate collection system and tested. If significant pollutants are contained in the stormwater runoff, it can continue to be pumped into the leachate collection system and ultimately removed to off-site treatment plants. If there are not significant pollutants in the runoff, runoff will be collected in a swale system and ultimately percolate into groundwater. Water that leaves the site in this manner is not likely to cause violations of Department of Environmental Regulation standards either in surface or ground waters. Numerous technological advances have occurred since Cells 1 through 13 of the Davie Landfill were designed and constructed. These cells have a designed-in leachate collection system. The system presently functions adequately, except that the liners under the earlier cells appear to be breaking down. It is apparent that the liner under Cells 1 through 4 has deteriorated to the extent that all leachate from these cells is not collected in the leachate collection system, but enters the groundwater below the landfill. Leachate from a landfill of this sort and magnitude that enters groundwater is likely to cause pollution in violation of the Department's standards. Leachate is presently entering the groundwater from Cells 1 through 4. The nature of the liner under the remaining original cells is not known. It is thought to be made of asphalt. Many forms of asphalt, obviously including the kind that was used to line Cells 1 through 4, are not capable of containing Leachate for an extended period of time. If the liner breaks down, the leachate collection system under all of the original cells will no longer function, and leachate will enter the groundwater, causing violations of Department of Environmental Regulation standards. There will not be an impervious liner between the existing cells of the Davie Landfill and the proposed Cell 14. It has been estimated that the cost of such a liner would be prohibitive. There will be limerock placed between the existing cells and the proposed cell; however, limerock is permeable. Some Leachate from Cell 14 will seep into the existing cells. Some of the leachate from the proposed Cell 14 that enters the existing Cells 1 through 4 will find its way into groundwater under the landfill. Leachate that enters the remaining cells will also find its way into groundwater if the liner under these cells breaks down as the liner under Cells 1 through 4 has broken down. If Leachate from the proposed Cell 14 enters groundwater under the site of the landfill, it is likely to cause pollution in violation of Department of Environmental Regulation standards. Groundwater in the area of the Davie Landfill flows generally from the northwest to the southeast. Some of the groundwater from the site of the sanitary landfill is likely to find its way into a canal which is located just to the south of the site. this is the C-11 Canal. If leachate from the proposed Cell 14 enters groundwater under the site of the landfill, it is likely to ultimately cause violations of Department of Environmental Regulation standards in the C-11 Canal. Except for the fact that the liners under the existing cells of the sanitary landfill are subject to deterioration, the leachate collection system can function appropriately. The leachate collection system for the proposed Cell 14 can also function without allowing introduction of leachate into surface and ground waters. The leachate collection systems utilize pipes that are presently buried under the existing landfill and will be further buried by the construction of Cell 14. The pipes that are presently being used, and are proposed to be used, are designed to withstand pressure greater than would be imposed on them. Furthermore, they are being placed in such a manner (surrounded by rock and utilizing ball joints) as to reduce the pressure imposed upon them. It is possible that one of the pipes could break and that leachate could thus escape from the Leachate collection system. This possibility is not a likely one, however, given the design parameters of the pipes and the nature of their installation. The fact that the leachate collection system for existing cells of the Davie Landfill would be buried under the proposed Cell 14 does not raise a significant danger that the system will break down. Again, the design parameters of the pipes and the nature of their installation render breakage unlikely. The sludge pit that is located just to the southwest of the sanitary landfill and the trash landfill that is located just to the south of the sanitary landfill offer potentially severe threats to the integrity of ground and surface waters on and off of the site. The sludge pit is a hazardous waste site. The trash landfill is not designed to prevent substances placed on the landfill from percolating into groundwater. It does not appear that construction of the proposed Cell 14 addition to the sanitary landfill would increase the risk of pollution that the sludge pit and trash landfill present. It does not appear that construction of the proposed Cell 14 would cause significant additional surface or ground water flows that would increase the risk of material from the sludge pit or the trash landfill from entering surface or ground waters. The applicant has failed to provide reasonable assurance that its proposed addition to the Davie Landfill will not result in violations of Department of Environmental Regulation standards contained in Chapters 17-3, 17- 4, and 17-7, Florida Administrative Code. While the proposed cell has been designed with appropriate liners and with an appropriate leachate collection system, its location abutting an existing landfill which does not have an adequate liner preventing percolation of leachate into groundwater increases the risk of that occurring. It appears that the only means of preventing or reducing that risk is either to close off the existing cells, or to place a liner between the existing cells and any addition in order to prevent flows of Leachate from new landfill activities into the existing cells.
The Issue The issues in this case concern the question of whether implementation of the consent agreement threatens the substantial interests of Petitioners in the surface waters and ground water resources at and around Seaboard's used oil facility located off Route 314A in Oklawaha, Marion County, Florida. Petitioner, State of Florida, Department of Environmental Regulation, gave public notice of its intent to implement a consent agreement with Respondent. The other Petitioners opposed the agreement asserting that the waters of the State were threatened by the agreement and requested a final hearing.
Findings Of Fact On March 7, 1988, Seaboard's used oil facility located off Route 314A in Oklawaha, Marion County, Florida, on Little Lake Bryant was inspected by a DER representative. At the time of the inspection pools of used oil were observed on the ground. Four 4,000 gallon above-ground tanks were being used to store used oil. Additionally, several old tank-truck bodies were used to store petroleum produces. These tanks did not have an impervious containment area to prevent used oil from spilling directly onto the ground and to prevent free runoff of precipitation. An underground tank (made from a septic tank) was being used to temporarily store water contaminated with used oil, which was gravity drained from the bottom of the used oil transport trucks. No impervious containment existed around the opening of the underground tank to prevent any spillage during transfer from directly reaching the ground. The underground tank was plugged and has no connection to a drain field. This tank is located in a flood plain. A 2,000 gallon above-ground tank and a 3,000 gallon above-ground tank were used to store water contaminated with used oil from the pumped underground tank. DER, in response to the March 7, 1988 inspection and subsequent site visits, negotiated a consent agreement with Seaboard. The consent agreement was executed on March 30, 1989 by Seaboard and filed with DER's Clerk on April 12, 1989. A copy of the consent agreement may be found as DER's Exhibit 1 admitted into evidence. The consent agreement specifies corrective actions to be taken by Seaboard, subject to DER approval, in order to address the problems identified at Seaboard's used oil facility. Paragraph 10 of the consent agreement addresses protection against spills directly reaching the ground. Impervious containment is required by the agreement for all above-ground used oil storage tanks but not the old truck bodies. Impervious containment is required for product transfer areas where transport trucks, pumps and hoses would operate, but not in the vicinity of the old truck bodies. A concrete containment dike surrounding the above-ground tanks is required to control drainage of rain, snow, sleet, fog, etc., but not around the truck bodies. (DER's Exhibit 1). The concrete pads already poured by Respondent are not impervious and the sides of these containment areas are not high enough to contain a major tank failure. Paragraph 11 of the consent agreement addresses operation of the underground tank in order to prevent leaks. Seaboard is required to provide protection against spillage during product transfer between transport trucks and the underground tank and provide for cleanup of spilled material. Nothing addresses the problems of the tank lying in a flood plain. (DER's Exhibit 1). Paragraph 12 of the consent agreement requires Seaboard to implement "Preliminary Contamination Assessment Actions". These actions provide the framework for determining if the problems identified at Seaboard's used oil facility have resulted in contamination of the soil, surface waters and ground water. The actions required are subject to prior DER approval. The actions represent standard conduct in these and similar types of cases. (DER's Exhibit 1). If the surveys and tests required by the agreement indicate soil, sediment, surface water or ground water contamination, DER can pursue any or all of the following: (1) institute an administrative proceeding requiring further assessment and cleanup; (2) institute a civil action in circuit court; or (3) perform the necessary corrective actions at the facility and recover the costs of such actions from Respondent, Seaboard. (DER's Exhibit 1). Notice was given of DER's proposed consent agreement with Seaboard by publication in the Ocala Star Banner of August 10, 1989. The Petitioners live around Little Lake Bryant, Oklawaha, Florida, where Seaboard's used oil facility is located. The Petitioners timely filed the petitions leading to the present hearing. The Petitioners are Helen V. Pierce, Mr. and Mrs. Marvin Pierce, Mr. and Mrs. Maurice Warner, Mr. and Mrs. Robert J. Painter, Sr., Mr. and Mrs. William E. Hartman, Mr. and Mrs. Bruce Hallman, Mr. Robert J. Painter, Jr., Mr. and Mrs. Elmer Weinheimer, Mr. and Mrs. Henry Allan Gwin, Mr. and Mrs. Edwin Jones, and Mr. and Mrs. Daryl N. Driscoll. Mr. and Mrs. Elmer Weinheimer and Mr. and Mrs. Marvin Pierce, Petitioners in this case, did not attend the hearing. The other Petitioners attended the hearing. Introduction of waste oil into the waters of Little Lake Bryant would endanger the waters of the lake around which all of the Petitioners live. They use this lake for recreational purposes.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the DER enter a Final Order approving a consent agreement incorporating the following four recommendations: installation of impervious areas with high enough walls to retard a spill under all tanks; removal of the underground tank from the flood plain; installation of monitoring wells in sufficient quantity in new and old areas; and frequent inspection. DONE AND ORDERED this 24th day of January, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1990. COPIES FURNISHED: Mr. Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Otis Ted Holly Route 4, Box 851 Silver Springs, FL 32688 Francine M. Ffolkes, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Elbert Gray Route 1, Box 1293A Oklawaha, FL 32679 =================================================================
The Issue Whether Petitioner's drycleaning facility (Nu-Look One Hour Dry Cleaning) is eligible to participate in the Drycleaning Solvent Cleanup Program.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner and His Facility Petitioner David Kim is a fifty-one-year-old college graduate. He moved from his native Korea to the United States in October of 1971 and has lived in this country ever since. For approximately the past ten years, Mr. Kim has owned and operated a drycleaning business, Nu-Look One Hour Dry Cleaning, which operates out of a facility located at 2968 Jog Road in Greenacres, Florida (Petitioner's Facility). Petitioner is the business' only full-time employee. (There is one other employee. That employee works on a part-time basis.) Petitioner is at the Facility approximately 70 to 72 hours per week. (The Facility is open for business from 7:00 a.m. to 7:00 p.m., Monday through Saturday.) Petitioner's Knowledge, Prior to January 1, 1997, of Secondary Containment Requirements In or about March of 1995, the Department of Environmental Protection (Department) mailed a document describing interim registration requirements for drycleaning facilities to every known drycleaning facility in Florida, including Petitioner's Facility. In addition to providing information about registration requirements, the document gave the following "brief description of the Drycleaning Solvent Cleanup Program": Drycleaning Contamination Cleanup The 1994 Florida Legislature established, under Chapter 376 of the Florida Statutes (F.S.), a state funded program to cleanup properties that are contaminated with drycleaning solvents caused by drycleaning and wholesale supply facilities. The statute also provides limited immunity from enforcement of state and local environmental regulations that require cleanup of certain discharges of drycleaning solvents. The revenue source for the program is provided by a gross sales receipt law (which became effective October 1, 1994), registration fees, and a per gallon tax on perchloroethylene imported or produced in the state of Florida. Highlights of the program are: . . . LIABILITY For eligible facilities, costs incurred by the state for site rehabilitation will be absorbed at the expense of the fund. Eligibility in this program may relieve the owner and/or operator from state and local action to compel site restoration. Eligibility in this program will not relieve the owner and/or operator from federal government action or from current waste management requirement. Petitioner registered his Facility with the Department after learning that he was required to do so. Department staff compiled a mailing list containing the addresses of all drycleaning facilities (including Petitioner's Facility) registered with the Department (Mailing List). In March of 1996, the Department mailed to each of the registered facilities listed on the Mailing List (including Petitioner's Facility) copies of a March 1996 Drycleaning Solvent Cleanup Program Update (March 1996 Update), together with a brochure providing general Drycleaning Solvent Cleanup Program (Program) information. It is presumed that Petitioner received these materials at his Facility absent any credible evidence to the contrary.2 The March 1996 Update provided, in pertinent part, as follows: The Drycleaning Solvent Cleanup Rule (Rule 62-781, Florida Administrative Code) has been adopted. The rule will become effective on March 13, 1996, and at this time, the Department will begin accepting applications to the Program. A copy of the rule and the forms [are] enclosed. To apply to the Drycleaning Solvent Cleanup Program, the enclosed application form and site screening form must be completed in accordance with the instructions and guidance manual that are attached. The application package must be accompanied by the required attachments and must be signed. . . . The registration fee of $100 was due on December 31, 1995. In February 1996, the Department mailed a second notice to all registered facilities that did not submit their payment. Non-payment of the annual registration fee may affect program eligibility. Also enclosed are a general program information document and a document which offers guidelines for compliance with the secondary containment requirement. Be sure to check out the FDEP's toll-free, Fax-On- Demand System for the Drycleaning Solvent Cleanup Program. This system is updated as new information is available. Currently, the system will allow you to receive this March 1996 program update, registration forms, guidance for secondary containment and copies of the rule and forms by facsimile. The FDEP Fax-On-Demand System is available 7 days a week, 24 hours a day, by calling (800) 789- 4502. The "general information" contained in the brochure that accompanied the March 1996 Update included the following: Program Application The Drycleaning Solvent Cleanup Program Rule (62-781, Florida Administrative Code) specifies requirements for application to the program and provides forms for application to the program and documentation of contamination. The rule becomes effective on March 14, 1996. The Department will begin accepting applications on this date. Eligibility and Priority Ranking Section 376.3078(3), Florida Statutes identifies certain criteria that must be met in order for a site to be eligible for the program. Once the Department has reviewed the program application and determined that a site has met these requirements, then the Department will score the site in accordance with the scoring system in the statute. The score that a site receives will determine the order in which the Department will begin site rehabilitation activities. For eligible sites, costs incurred by the state for site rehabilitation will be absorbed at the expense of the fund minus a deductible amount as specified in the law. Eligibility in this program will not relieve the owner, operator or real property owner from federal actions or from current waste management requirements. General Program Requirements An important goal of the Drycleaning Solvent Cleanup Program is to protect the environment from future contamination by drycleaning solvents. In order to achieve this goal, the 1995 Florida Legislature passed requirements for prevention of contamination that apply to all operating drycleaning facilities. In addition to these requirements, the owner, operator and real property owners of drycleaning facilities and wholesale supply facilities have certain responsibilities according to the law. Failure to comply with these requirements may affect a site's eligibility. Some of these responsibilities and requirements are summarized below. Secondary containment The deadlines to install secondary containment and the type of containment both depend on when the facility commenced operations: Facilities that begin operation on or after January 1, 1996, must be equipped with secondary containment when the business begins operation. Secondary containment for these facilities must consist of rigid and impermeable containment vessels installed beneath each machine or equipment in which drycleaning solvents are used. Facilities that began operations prior to January 1, 1996, must be equipped with secondary containment by January 1, 1997. Secondary containment for these facilities must consist of rigid and impermeable containment vessels, or a dike around each machine or item of equipment in which drycleaning solvents are used. All facilities, regardless of when operation began, must install secondary containment around any solvent or waste solvent storage areas by January 1, 1997. The secondary containment for storage areas must be either a rigid and impermeable vessel, or a surrounding dike. The rigid and impermeable vessels shall be constructed of metal or other material that cannot be permeated by drycleaning solvents, according to manufacturer product use and limitation recommendations. All diked containment areas must be sealed or otherwise made impervious to drycleaning solvents, including floor surfaces, floor drains, floor joints and inner dike walls. Concrete or asphalt floor surfaces are not impervious to drycleaning solvents. The Department recommends the installation of containment vessels rather than the installation of dikes, because the containment vessels offer greater security from releases. A separate information sheet with additional information about secondary containment was mailed to all registered drycleaning facilities in March 1996. For More information This General Program Information document along with other program information is available through the FDEP Fax-On-Demand System. Sometime in or shortly before May of 1996, Petitioner attended a Department presentation concerning the Program that was given in Palm Beach County [Department Presentation). Among those who spoke to the attendees at the Department Presentation was Leslie Smith, the Department's Southeast District Representative for the Program. Another speaker was a representative of HSA Environmental, a consulting firm hired by the Department to assist it in implementing the Program. At the Presentation (which was similar in format to Department presentations given in other parts of the state), the attendees were given an explanation of secondary containment requirements, including installation deadlines. In July of 1996, the Department mailed to each registered facility (including Petitioner's Facility) copies of a July 1996 Drycleaning Solvent Program Update (July 1996 Update), together with a detailed memorandum entitled, "What you need to know about . . . Secondary Containment Requirements for Drycleaning Facilities." It is presumed that Petitioner received these materials at his Facility absent any credible evidence to the contrary. The July 1996 Update provided, in pertinent part, as follows: The Drycleaning Solvent Cleanup Program Rule (Rule 62-781, Florida Administrative Code) became effective on March 13, 1996. The Department is now accepting applications to the Program. Application to the program is optional. A copy of the rule and forms was mailed to all registered drycleaning facilities and wholesale supply facilities in March. If you did not receive a copy or need additional copies, please call the Department's Fax-On-Demand system at (800) 789-4502, or contact the Department at (904) 488-0190, or the District Office. Also the forms can be downloaded from the Internet from the location http://www.dep.state.fl.us/waste/programs/ dryclean/index.htm To apply to the Drycleaning Solvent Cleanup Program, the application form and site screening form must be completed in accordance with the instructions and guidance manual. The application package must be accompanied by the required attachments and must be signed. Forms that have been altered in any way or application packages that are incomplete will be returned to the applicant. Application packages that are returned will delay the processing of the application. Therefore, it is important that the application packages be complete and that the forms are not altered. Information on environmental consultants that are available to complete the site screening portion of the application may be obtained from local drycleaning associations. Because of the expected volume of applications that the Department will initially receive, it may take the Department several weeks to determine if a site is eligible for the program. The Department will mail a letter of determination of program eligibility to the applicant once the review process is complete. . . . Be sure to check out the FDEP's toll-free, Fax-On-Demand System for the Drycleaning Solvent Cleanup Program. This system is updated as new information is available. Currently, the system will allow you to receive this June [sic] 1996 program update, registration forms, guidance for secondary containment and copies of the rule and forms by facsimile. The FDEP Fax-On-Demand System is available 7 days a week, 24 hours a day, by calling (800) 789-4502. The memorandum accompanying the July 1996 Update contained the following information regarding secondary containment requirements: Section 376.3078(7)(a) and (b), Florida Statutes, requires owners or operators of drycleaning facilities to provide secondary containment of drycleaning solvents. Below are answers to several questions about secondary containment requirements. What is secondary containment? The purpose of secondary containment is to prevent releases of drycleaning solvents to the environment and reduce contamination of soils and groundwater. The secondary containment requirements provide for temporary containment of accidental spills or leaks until appropriate response actions are taken by the owner/operator to abate the source of the spill and remove the product from all areas on which the product has accumulated. When is secondary containment required to be in place and what type of containment is required? The deadlines to install containment and the type of containment both depend on when the facility commenced operations: Facilities that begin operation on or after January 1, 1996, must be equipped with secondary containment when the business begins operation. Secondary containment for these facilities must consist of rigid and impermeable containment vessels installed beneath each machine or item of equipment wh[ere] drycleaning solvents are used. Facilities that began operation prior to January 1, 1996, must be equipped with secondary containment by January 1, 1997. Secondary containment for these facilities must consist of rigid and impermeable containment vessels, or a dike around each machine or item of equipment wh[ere] drycleaning solvents are used. All facilities, regardless of when operations began, must install secondary containment around any solvent or waste solvent storage area by January 1, 1997. The secondary containment for storage areas must be either a rigid and impermeable vessel, or a surrounding dike. The rigid and impermeable vessels shall be constructed of metal or other material that cannot be permeated by drycleaning solvents, according to manufacturer product use and limitation recommendations. All diked contained areas must be sealed or otherwise made impervious to drycleaning solvents, including floor surfaces, floor drains, floor joints and inner dike walls. Concrete or asphalt floor surfaces are not impervious to drycleaning solvents. For information about acceptable sealants for diked surfaces, please see question #4 below. The department recommends the installation of containment vessels rather than the installation of dikes, because containment vessels offer greater security from releases. How much secondary containment capacity do I need? All machines and equipment that have a tank capacity of greater than one quart and all areas in which solvents or wastes that contain solvents are stored, must have secondary containment. Containment structures must be able to contain at least 110% of the capacity of each such machine or item of equipment and each storage area. The capacity of a machine or equipment is the capacity of the largest single tank in the machine or equipment. The capacity of a solvent or waste storage areas is the volume of the largest container. Floor surfaces should be sealed underneath and at least two feet around all machines or equipment that have a tank capacity of one quart or less and are not within a secondary containment structure. Containment vessels and equipment must be mounted in such a way as not to compromise the integrity of the containment vessel. Outdoor storage areas must be roofed or otherwise protected from the accumulation of rainfall. What types of floor sealants are acceptable? In order to maintain a secondary containment dike that is impervious to drycleaning solvents, all floor surfaces, floor drains and floor joints within the diked area must be sealed with a solvent-resistant sealer and/or caulking compound (sealant). The Department does not recommend any specific floor sealers or sealants. However, the sealer and sealant must be compatible with and resistant to all solvents used at the facility for a contact period of at least 72 hours, according to manufacturer product use and limitation recommendations. The sealant must be applied and maintained in accordance with manufacturer specifications. Sealant specifications and a record of application dates must be maintained at the facility. What is required if a spill occurs outside of a containment area Upon discovery of any spill outside of a containment area, the owner or operator of any drycleaning facility or wholesale supply facility must immediately: 1) Initiate and complete actions to abate the source of the spill, remove the discharged solvents from all indoor and outdoor surfaces, remove all discharged solvents and dissolved solvents from any septic tank or catch basin in which the solvent has accumulated, remove affected soils; and, 2) Report the spill or discharge to the State Warning Point, by calling (904) 413-9911. The Department issues this guidance in order to assist owners and operators of drycleaning facilities in complying with Florida law. These guidelines and any future revisions can be obtained through the Department's Fax-on- Demand system by calling (800) 789-4505 (24hours/day). If you have any questions regarding these guidelines you may call (904) 488-0190, or write to: Drycleaning Solvent Cleanup Program Florida Department of Environmental Protection Mail Station 4520 2600 Blair Stone Road Tallahassee, Florida 32399-2400 In December of 1996, the Department mailed to each registered facility (including Petitioner's facility) copies of a December 1996 Drycleaning Solvent Program Update (December 1996 Update), which read as follows: The Drycleaning Solvent Cleanup Program Rule (Rule 62-781, Florida Administrative Code) became effective March 13, 1996. The Department is continuing to accept applications to the Program. Application to the program is optional. Copies of the rule and forms were mailed to all registered drycleaning facilities and wholesale supply facilities in March. If you did not receive a copy, or need additional copies, please call the Department's Fax-On-Demand system at (800) 789-4502, or contact the Department at (904) 488-0190, or the District Office. Also, the forms can be downloaded from the Internet from the location: http://www.dep.state.fl.us/waste/programs/ dryclean/index.htm To apply to the Drycleaning Solvent Cleanup Program, the application form and site screening form must be completed in accordance with the instructions and guidance manual. The application package must be accompanied by the required attachments and must be signed. It is important that the application packages be complete and that the forms are not altered. Forms that have been altered or application packages that are incomplete will be returned to the applicant. Application packages that are returned will delay the processing of the application. The Department will mail a letter of determination of program eligibility to the applicant once the review process is complete. Information on environmental consultants that are available to complete the site screening portion of the application may be obtained from local telephone or professional directories or local drycleaning associations. Please note that Section 376.3078(7)(a) and (b), [now 376.378(9)(a) and (b)] Florida Statutes, requires owners or operators of drycleaning facilities to install secondary containment of drycleaning solvents, including petroleum-based solvents. Secondary containment requirements provide for containment of accidental spills or leaks until appropriate response actions are taken by the owner/operator to abate the source of the spill and remove the product from all areas on which the product has accumulated. The statute requires that all facilities, regardless of when operations began, shall have secondary containment installed around any solvent or waste solvent storage area by January 1, 1997. Additional details regarding secondary containment requirements are available through the Department's Fax- On-Demand System. Be sure to check out the FDEP's toll-free, Fax-On-Demand System for the Drycleaning Solvent Cleanup Program. This system is updated as new information is available. Currently, the system will allow you to receive program updates, registration forms, guidance for secondary containment and copies of the rule and forms by facsimile. The FDEP Fax-On-Demand System is available 7 days a week, 24 hours a day, by calling (800) 789- 4502. It is presumed that Petitioner received the December 1996 Update at his Facility absent any credible evidence to the contrary. As a result of his attendance at the Department Presentation and his receipt of the above-described informational material from the Department, Petitioner was on notice, in advance of the statutorily-imposed January 1, 1997, secondary containment installation deadline, of his obligation to have secondary containment installed at his Facility by January 1, 1997. The Preparation, Filing, and Denial of Petitioner's Application In or about late May of 1996, following the Department Presentation, Petitioner retained the services of HSA Environmental (HSA) to assist him in applying for the admission of his Facility to the Program. Although Petitioner may have believed that HSA "would do or advise him of all work that was necessary at [his Facility] to get [the Facility] into the [P]rogram," the evidence fails to establish that HSA agreed, in writing or otherwise, to install secondary containment at his Facility. On June 12, 1996, an HSA employee visited Petitioner's Facility to take a soil sample for testing and analysis in order to determine whether there was contamination by dry cleaning solvents on the site. On or about October 30, 1996, HSA sent Petitioner the following letter: In reference to this program, your complete Drycleaning Solvent Cleanup Program Application for this facility is pending due to the following reasons: ? We have not received your application with the required signatures. Please provide the missing information checked above as soon as possible so that we may complete your application and submit to the Florida Department of Environmental Protection. If documents are provided with this letter, please complete that portion that is marked and return the documents to this office. Upon receipt of the above information, your completed Drycleaning Solvent Cleanup Program Application, which includes the Site Screening Report, with required attachments, will be submitted within ten (10) working days with copies provided to you. Thank you for your assistance in this matter. If you have any questions about the information requested on your application in general, please contact us directly. On or about January 29, 1997, HSA sent Petitioner another letter. It read as follows: In reference to this program, your facility was inspected by HSA on June 12, 1996, and the Site Screening Report was completed on July 8, 1996, but your package has been placed in our PENDING FILE. The reason for this is that we have not received your application with the required information and appropriate signatures. Several telephone calls have been made and letters have been sent requesting this information without success. Further, your account shows an outstanding balance of $1300.00. Enclosed is an Application with instructions. Please complete this application, sign Item 18a, 18b and 19 as marked and return it to me in the enclosed self-addressed envelope. Do not worry about obtaining the signature of the Real Property Owner. I will take care of getting his/her signature. Upon receipt of the application and full payment, your completed Drycleaning Solvent Cleanup Program Application will be submitted to the State of Florida Department of Environmental Protection (FDEP). It is in your best interest to take care of this matter quickly. As it stands now you qualify for a $1000.00 deductible when the actual cleanup of your facility starts. This $1000.00 deductible applies until June 30, 1997, and all applications received by FDEP prior to this date will qualify for it. On July 1, 1997, this deductible will be increased to $5000.00 per facility. Therefore, I think you can see that it's in your best interest to have your package submitted prior to June 30, 1997 and qualify for the $1000.00 deductible. In addition, I need you to verify (to include date completed) that you have installed secondary containment structures around or beneath each machine and each area where drycleaning solvents or waste are stored; and, that the floor surfaces of the facility have been sealed. If you have not had secondary containments installed or the floor sealed, then I need to verify that this has been contracted for, provide documentation supporting same, and provide the dates when it will be completed. Thank you for your assistance in this matter. If you have any questions about the information requested or your application in general, please contact me directly. Petitioner subsequently signed a completed Drycleaning Solvent Cleanup Program Application (Application). The Application, which had been completed with HSA's assistance, was filed with the Department on or about April 24, 1997. On the Application, negative answers were given to the following questions: Have secondary containment structures been installed around or beneath each machine or item of equipment in which drycleaning solvents are used? Have secondary containment structures been installed around or beneath each area where drycleaning solvents or waste which contains drycleaning solvents are stored? Have the floor surfaces of the drycleaning facility been sealed or otherwise rendered impervious in any area in which solvents may leak, spill, or otherwise be released? The Application further reflected that, as of the date the Application was completed and signed (on or about April 22, 1997), the Facility was operating as a drycleaning facility. No information was provided at hearing contradicting the foregoing information provided in Petitioner's Application. Post-Application Inspections of Petitioner's Facility Following the filing of the Application with the Department, on July 24, 1997, Rasik Chokshi, an Environmental Specialist II employed by the Florida Department of Health (DOH), conducted an inspection of Petitioner's Facility to determine whether it was in compliance with clean air requirements. (DOH conducts such inspections pursuant to an agreement that it has with the Department.) Petitioner was present at the Facility during the inspection. When conducting inspections of drycleaning facilities, Mr. Chokshi routinely notes whether secondary containment requirements have been met. During his July 24, 1997, inspection of Petitioner's Facility, Mr. Chokshi observed that there was no secondary containment in the drycleaning machine, storage, waste, and spotting board areas of the Facility. Following his inspection, Mr. Chokshi made Petitioner aware of the observations he (Mr. Chokshi) had made regarding the lack of appropriate secondary containment in the Facility. He informed Petitioner that such secondary containment should have been in place by January 1, 1997, and that Petitioner therefore needed to remedy the situation "as soon as possible." Petitioner agreed that secondary containment was needed, and, in response to Mr. Chokshi's inquiry, indicated that he would have the work completed in two months, to which Mr. Chokshi stated, "okay."3 On August 14, 1997, Leslie Smith, an Environmental Specialist with the Department who inspects drycleaning facilities from Ft. Pierce to Homestead,4 conducted a routine inspection of Petitioner's Facility. This was her first visit to the Facility. Ms. Smith's inspection revealed various violations which she noted on an Inspection Exit Summary Form that was mailed to Petitioner the next business day following the inspection. Among the violations she noted were the following: No secondary containment is provided for the drycleaning machine. No secondary containment is provided for the waste containers. No secondary containment is provided for solvent based spotters over one quart in volume. Floors [covered by ceramic tile, with a "very porous" grout] are not sealed. Before leaving the Facility on August 14, 1997, Ms. Smith discussed these violations with Petitioner. Petitioner agreed, in writing, "to provide written documentation of efforts to address the[se] deficiencies" on or before September 5, 1997. Some time between August 14, 1997, and August 30, 1997, Petitioner, at a cost of $1,850.00, had the necessary work done to correct the secondary containment deficiencies noted by Ms. Smith during her inspection. Nonetheless, he did not provide Ms. Smith, by September 5, 1997, with written documentation that such work had been done. On October 13, 1997, Mr. Chokshi paid another visit to Petitioner's facility. During this inspection, he was accompanied by Louis Valcarenghi, a Department Air Pollution Inspector. Ms. Smith had asked Mr. Valcarenghi to look for the presence of secondary containment at the Facility during his inspection. Mr. Valcarenghi's inspection revealed that the Facility was in compliance with air pollution control requirements, and he so informed Petitioner before leaving the Facility. During his inspection of the Facility, Mr. Valcarenghi observed that "[s]econdary containment ha[d] been installed for the dry cleaning machine, waste containers and spotting areas." By memorandum dated October 13, 1997, he advised Ms. Smith of such installation. Denial of Petitioner's Application By letter dated March 20, 1998, the Department advised Petitioner that the Facility was ineligible to participate in the Program. The failure to install secondary containment at the Facility by January 1, 1997, was cited as a reason for the Department's determination of ineligibility. The Department's Enforcement of Secondary Containment Requirements In response to concerns expressed by the owners and operators of drycleaning facilities (through their representatives) about their ability to meet the statutorily- imposed January 1, 1997, secondary containment deadline, John Ruddell, the Director of the Department's Division of Waste Management, sent the following memorandum, dated December 13, 1996 (December 13, 1996, Memorandum) to the lead enforcement officers in the Department's district offices: In the past few weeks, the department has received requests for an extension of the January 1, 1997 deadline for secondary containment from the Neighborhood Cleaners Association, Southeast Fabricare and the Florida Drycleaners Coalition. The reason stated in the request for this extension is a shortage of contractors to complete installation of containment vessels. The statute has been in effect since October 1995; so drycleaner owners and operators have had sufficient notice of the requirement. In addition, drycleaning owners and operators have been reminded of the deadline by notices mailed to each registered drycleaning facility. The department does not have authority to extend this statutory deadline. Drycleaning facility owners missing the deadline are subject to enforcement. However, due to the apparent shortage of vendors and installation contractors, as asserted by the Florida Drycleaning Coalition, Directors of District Management may wish to consider exercising a short term deferral of enforcement action. In determining whether to make such a deferral, the following conditions should be considered: The facility owner or operator should demonstrate that the facility began operations prior to January 1, 1996. Facilities that began operation after that date were required to have secondary containment when operation commenced. The facility owner should have a signed, binding contract, in accordance with Florida Statutes, which cannot be canceled or modified without substantial loss, that was executed by January 1, 1997. The installation shall be completed by April 30, 1997.5 Any such deferral should be limited to the requirements of Section 376.3078(7)(a) [now 376.3078(9)(a)]. No secondary containment requirements under federal or local laws and regulations should be affected by a deferral granted pursuant to the conditions above. The Department has applied the guidelines set forth in the December 13, 1996, Memorandum, not only in exercising its enforcement authority, but also in making Program eligibility determinations, notwithstanding that the memorandum does not expressly address the issue of Program eligibility.6 Facilities that have met the three "conditions" set forth in the December 13, 1996, Memorandum have been deemed eligible by the Department to participate in the Program, even though these facilities did not have the required secondary containment as of January 1, 1997. Petitioner's Facility is not similarly situated to these facilities inasmuch as it meets neither the second "condition" ("signed, binding contract" for secondary containment installation prior to January 1, 1997) nor the third "condition" (completion of installation by April 30, 1997) prescribed in the December 13, 1996, Memorandum. In making Program eligibility determinations, the Department has examined, in addition to the timeliness of secondary containment installation, the nature and sufficiency of the secondary containment devices installed at the facility. The sufficiency of a particular secondary containment device depends on the purpose it is intended to serve. For example, to provide suitable secondary containment for a drycleaning machine, it is necessary to install around the machine a metal pan or other similar structure that cannot be permeated by drycleaning solvents. In the area around a spotting board, where such rigid structures would present a tripping hazard, the Department has reasonably determined that such structures are unnecessary and that floor sealant provides adequate secondary containment. The Department, in determining Program eligibility, has distinguished between the failure to timely install sufficient secondary containment and the failure to maintain sufficient secondary containment that has been timely installed. The former (which is what we have in the instant case), but not the latter, has resulted in a finding by the Department of ineligibility to participate in the Program. Petitioner has failed to demonstrate that the Department, in the past, has knowingly allowed any facility to participate in the Program under circumstances substantially identical to those present in the instant case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order finding that that Petitioner's Facility is not eligible to participate in the Program. DONE AND ORDERED this 4th day of May, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 4th day of May, 1999.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Tamaron wastewater treatment facility (facility), located at 3800 Gatewood Drive, Sarasota, Florida, serves the Tamaron residential subdivision which was originally developed by U. S. Homes Corporation in 1976. The subdivision presently consists of 499 homes and was completely built out in the mid-1980's. The facility was originally owned and operated by U. S. Homes Corporation. Tamaron Utilities, a nonprofit entity comprised of the 499 homeowners, acquired the facility in November, 1987. At that time, the facility's existing operating permit was transferred to Tamaron Utilities. The facility is overseen by an elected board of volunteer homeowners. The Department is the agency of the State of Florida that is authorized to regulate domestic wastewater treatment and disposal facilities and permit their construction and operation. It is the successor agency to the Department of Environmental Regulation. By letter dated November 10, 1987, the Department notified Tamaron of the requirements of Chapter 87-303, Laws of Florida (Grizzle-Figg Amendment), which amended Section 403.086, Florida Statutes, and of the Department's intention to modify Tamaron's operating permit to incorporate a schedule of compliance with Section 403.086, Florida Statutes, as amended by Chapter 87-303, Laws of Florida. On August 23, 1988, an operating permit (D058-141783), which contained secondary water treatment requirements, was issued to the facility. Specific condition 7 of the permit required that the facility be in compliance with the Grizzle-Figg Amendment by October, 1990, or eliminate discharge to surface waters. On September 5, 1990, Tamaron filed an application with the Department to renew its domestic waste water treatment and disposal systems operation permit. Tamaron did not consider its facility as discharging waste into one of the specifically named water bodies set forth in the Grizzle-Figg Amendment or to "water tributary thereto" and thereby required to meet the advanced waste treatment criteria set forth in the Grizzle-Figg Amendment. However, in an abundance of caution, Tamaron proceeded to bring its facility into compliance with the advanced waste treatment criteria as set forth in the Grizzle-Figg Amendment. After numerous requests for additional information and several meetings between Tamaron and the Department, the Department issued its Notice of Permit Denial on April 9, 1991, asserting that Tamaron had not provided: (a) reasonable assurance that the requirements of Section 403.086(1)(c), Florida Statutes, mandating advanced waste treatment (AWT) before discharge to certain designated surface waters, would be met and; (b) reasonable assurance that the discharge to those certain designated surface waters would result in minimal negative impact as required by Section 403.086(5)(a), Florida Statutes. The facility continues to operate under its secondary treatment permit No. DO58-141783. The facility consists of a wastewater treatment plant designed for secondary treatment, with tertiary filtration. The design capacity of the facility is 155,000 gallons per day (0.155MGD) with actual flows of slightly over 100,000 gallons per day (0.100MGD+). Three percolation ponds surround the facility comprising the primary effluent disposal method for the facility. The Tamaron subdivision has a series of excavated surface water bodies (stormwater lakes), hydraulically connected, which eventually discharge at the northeast corner of the subdivision into Phillippi Creek. The direct path of surface water flow is from the subdivision's stormwater lakes to Phillippi Creek. These stormwater lakes are in multiple ownership. Under Department policy, stormwater systems permitted by the Department, its predecessor DER, or a water management district solely as stormwater treatment facilities under Chapter 17-25, Florida Administrative Code, are not considered "waters of the State". However, stormwater systems built prior to Chapter 17-25, Florida Administrative Code, permitting requirements, were considered "waters of the State" if they discharge more frequently than a twenty five year, twenty-four hour storm event. See Petitioner's exhibits 13 & 15. Tamaron's stormwater system was built prior to Chapter 17-25, Florida Administrative Code, permitting requirements, and was designed to discharge at a ten year, twenty-four hour storm event which is more frequent than a twenty five year, twenty-four hour storm event. Discharge of water into Phillippi Creek from the subdivision's stormwater lakes is fairly frequent; however, the volume of the discharge is low. Phillippi Creek is a natural surface water which eventually flows into Roberts Bay. Roberts Bay is a specifically named water body in the Grizzle-Figg Amendment (Section 403.086(1)(c), Florida Statutes). Since September, 1989, Tamaron has retained William Murchie, P.E. of AM Engineering, to evaluate the design and operation of the facility in order to comply with appropriate regulatory requirements. The facility provides biological treatment through a contact stabilization utilizing an activated sludge. This process typically provides high quality advanced secondary biological treatment. A chemical feed tank system utilizing ferrous sulfate was added to the facility several years ago to chemically precipitate out total phosphorus to meet the advanced waste treatment requirements. High-level disinfection is achieved in the large chlorine contact chamber and through two tertiary filters. At the design flow of 0.155MGD, the chlorine contact chamber provides nearly 80 minutes of contact time, while actual contact time for existing flows, not including time in filters, is calculated at 110 minutes. Upon leaving the chlorine contact chamber and the biological treatment components of the facility, the chlorinated effluent is directed through two tertiary filters to reduce the biochemical oxygen demand (BOD) and total suspended solids (TSS). After the tertiary filters, the effluent passes through the sample block where it is sampled for TSS, BOD and chlorine and is then piped sequentially into the first, second and third percolation ponds. The percolation ponds span two acres and provide residence time of 35 to 45 days, during which time the effluent is further biologically treated and nitrogen is reduced. From the percolation ponds, the effluent is pumped into a low pressure system which uniformly distributes effluent over two nitrogen reduction filters. The nitrogen reduction filters are located north of the plant and are immediately adjacent to one of the subdivision's stormwater lakes. The nitrogen reduction filters consist of deep sand beds covered with Bermuda grass to provide high nitrogen uptake. The irrigation of the two nitrogen reduction filters is alternated every half day. These nitrogen reduction systems were modified in October/November, 1990, by adding 3 to 3 1/2 feet of clean sand with a permeability rate of 28 feet per day, planting Bermuda grass, and installing an irrigation/distribution system. These filters replaced two sand pits with shallow layers of very coarse sand, after initial testing demonstrated the sand pits to be inadequate in removing nutrients consistent with statutory requirements. In January, 1992, an underdrain system utilizing perforated pipe was installed in the nitrogen reduction filters to create an aerobic zone and to provide a representative sample port after nutrient reduction in the filters. This sample port, used for the biweekly monitoring, consists of a single solid pipe, that collects effluent from the perforated pipes, with a tap to prevent discharge into the adjacent stormwater lake, except during sampling events. The biweekly sampling event results in effluent being discharged from the pipe for approximately 30 minutes to flush the pipe so as to get a proper sample. The underdrain sampling port at the nitrogen reduction filters replaced two earlier monitor wells between the nitrogen reduction filter and the stormwater pond, which proved ineffective because of their location. The perforated underdrains are situated in filter bed sand of medium grain size with a permeability rate 100 feet per day and located below 3 - 3 1/2 feet of clean sand with a permeability rate of 28 feet per day and above very permeable layers of sand, stone and coarse shell. (See Tamaron's exhibit 23 and Department's exhibit 14) The very permeable layers of sand, coarse shell, the perforated pipe and the single solid pipe are all located above the ground water table. Since the perforated pipe and sample port are both located above the ground water level and the surface of the adjacent stormwater lake, it is unlikely that the effluent sample taken from the sample port would be influenced by the ground water or a back flow of water from the adjacent stormwater lake. The coarse shell layer situated below the nitrogen reduction filters extends to the edge of the adjacent stormwater lake. Therefore, the effluent, other than the effluent trapped in the perforated pipe and carried to the sample port, that is irrigated onto the nitrogen reduction filters passes through the sand and into the coarse shell layer. The effluent is then transported laterally through the coarse shell layer to the underground edge of the adjacent stormwater lake where there is a subsurface discharge into the adjacent stormwater lake. Since the discharge to the stormwater lakes is primarily subsurface in nature, the logical compliance point to measure effluent parameters would be the underground sample port which collects the effluent prior to subsurface discharge into the stormwater lake. See Petitioner's exhibit 15. The direction of ground water flow at the facility is towards the north to the adjacent stormwater lakes as evidenced by the hydraulic gradient of the site determined using ground water table elevations. The location for sampling effluent from the facility for compliance with secondary standards was described in Specific Condition 5 of Tamaron's previous permit No. D058-141783 dated August 23, 1988. Specific Condition 5 states that the discharge from the chlorine contact chamber shall be sampled in accordance with Chapter 17-19, Florida Administrative Code, (now Chapter 17-601, Florida Administrative Code), for compliance with the stated secondary limits. The facility's tertiary filters are located after the chlorine contact chamber. Tamaron samples effluent for compliance with secondary standards (BOD,TSS, chlorine) at the sampling box after disinfection and tertiary filtration. Tertiary filtration is designed to achieve a more efficient removal of TSS and BOD. The resulting effluent is usually of higher quality than secondarily treated effluent. A secondary plant with tertiary filtration is referred to as an "advanced secondary treatment" plant. Data presented by Tamaron titled Tamaron 1991-1993 Data On FDER Permit Compliance (Tamaron's exhibit 17, page 1 of 2) shows reported values, sampled after tertiary filtration at the sample box, which suggest that secondary treatment parameters, including fecal coliform, are not being exceeded. The data actually shows a very high removal rate for the parameters sampled. The United States Environmental Protection Agency issued a National Pollutant Discharge Elimination System (NPDES) permit, number FL0042811, to Tamaron for the facility with an effective date of June 1, 1991, which authorized Tamaron to discharge from the facility to the receiving waters named Phillippi Creek to Roberts Bay in accordance with the effluent limitation, monitoring requirements and other conditions set forth in the permit. Since the facility was located in the Grizzle-Figg Amendment area of Florida certain changes were made from the draft permit to the final permit. Those changes appear in the Amendment To The Statement Of Basis At The Time Of Final Permit Issuance which is made a part of the final permit. The amendment provides for changes in Part I, Effluent Limitations and Monitoring Requirements. These changes, among other things, require that the Grizzle-Figg Amendment annual limits of 5 mg/l BOD, 5mg/l TSS, 3mg/l total nitrogen and 1mg/l total phosphorus be added to the effluent limits to adequately maintain water quality standards, and added monitoring requirements and measurement frequency regulations to give the basis for permit limits and conditions in accordance with Chapters 17-302, 17-600 and 17-601, Florida Administrative Code. Data presented by Tamaron titled Tamaron 1991-1993 Data On NPDES Permit Compliance (Tamaron's exhibit 17, page 2 of 2) show reported values sampled after nitrogen reduction filters which suggest that the maximum values for AWT parameters, including fecal coliform, are not being exceeded, particularly after January, 1992, when Tamaron began sampling effluent collected by the perforated underdrains at the sample port. Tamaron has been monitoring and reporting compliance under its final NPDES permit and providing copies to the Department. There was no evidence that Tamaron was ever in violation of its NPDES permit. Tamaron submitted documentation to the Department with its permit application that demonstrated high-level disinfection within the facility was being achieved. However, TSS was being sampled after the application of the disinfectant. Using this procedure, the facility continued to achieve high- level disinfection until the permit denial. After the permit denial, the facility resumed basic disinfection which was required under Tamaron's permit for secondary treatment. This same data indicates that there was compliance with the requirements for fecal coliform. The record is not clear as to the frequency and number of samples taken to provide the data for reporting compliance with the NPDES permit and the data presented in Petitioner's exhibit 17, page 2 of 2. However, there was no evidence, other than sampling for TSS after the disinfectant was added, that Tamaron was not complying with its NPDES Permit that required, among other things, that the monitoring requirements and measurement frequency of the Department's rules and regulations be followed by Tamaron. Tamaron has modified and upgraded the facility in order to achieve a treatment process which will produce effluent of a quality for discharge under the Grizzle-Figg Amendment. Tamaron has provided reasonable assurances, although not absolute assurance, that the facility can comply with the discharge permit requirements of Chapter 403, Florida Statutes, including Section 403.086, Florida Statutes, notwithstanding the testimony of Jay Thabaraj to the contrary concerning Tamaron's sampling technique and its method of obtaining high-level disinfection which can be addressed as a specific condition, if necessary. Studies conducted by the Tamaron's engineer included in Petitioner's exhibit 21 indicates that there was no adverse impact to the stormwater lakes from the facility's wastewater treatment and disposal system. Tamaron has provided reasonable assurances that the point of discharge is a reasonably access point, where such discharge results only in minimal negative impact.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order granting Tamaron an operating permit for its facility as secondary treatment facility. In the alternative, that the Department enter a final order granting Tamaron an operating permit for its facility that requires compliance with the advanced waste treatment criteria set forth in Section 403.086(4), Florida Statutes, that, in addition to any general or specific conditions that are normally required, contains specific conditions that: (a) contains specific instructions on sampling technique, sampling frequency and reporting as set forth in Rule 17- 740(1)(b)2., Florida Administrative Code, and (b) sets forth compliance with high-level disinfection, with a time limit for compliance, that accomplishes the intent of the rule, if not the strict letter of the rule, without total redesign of the facility. DONE AND ENTERED this 3rd day of May, 1994, in Tallahassee, Florida. WILLIAM R. CAVE 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 3rd day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2968 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner, Tamaron's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(5,6); 5(6); 6(7); 8(12); 10(8); 11-12(13-25,38); 13(31-34); 14(8); 15(13); 16(14); 17-18(15); 19(36); 20(16); 21(17); 22(18); 23(19); 24(20); 25(21);26(22); 32(32,7); 33(33); 34(32,32); 36(31); 39-40(34); 41(36); 42- 43(34); 44(35); 47(4); and 51(10). Proposed findings of fact 27-31, and 35 are conclusions of law rather than findings of fact.. Proposed findings of fact 45, 46, 48-50, 56, 57, 59, and 61-72 are arguments rather than findings of fact. Proposed findings of fact 7, 9, 37, 38, 52-55, 58 and 60 are neither material nor relevant. Respondent, Department's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1,6); 2(2); 3(4,10); 5(9); 6(9,10); 8(11); 9-17(18-27); 18(8); 19(13); 20(5); 21(17); 22(30); 23(31); 24(14); 25(17); 26(18-23); 27(34); and 32(35,38). Proposed finding of fact 4 is neither material nor relevant but see Findings of Fact 18-25. Proposed findings of fact 7, 31 and 33 are arguments rather than findings of fact. Proposed findings of fact 28-30 are conclusions of law rather than findings of fact. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Charles G. Stephens, Esquire C. Robinson Hall, Esquire Enterprise Plaza, Suite 1516 101 E. Kennedy Blvd. Tampa, Florida 33602 Francine Ffolkes, Esquire Office of General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issues to be resolved in this proceeding concern whether the Petitioner has standing to bring this action and, therefore, whether the Intervenor has standing; whether the applicant has provided reasonable assurances of its entitlement to a construction permit for the facility; whether the applicant is precluded from availing itself of a separate biohazardous waste storage general permit through notification to the Department; whether the Petitioner is entitled to challenge the notice requirements of the general permit; and whether the facility to be permitted should be characterized as a biological waste incineration facility or a biohazardous waste treatment facility.
Findings Of Fact The Petitioner, Hamilton County Board of County Commissioners ("County"), is the governing body of Hamilton County, a political subdivision of the State of Florida. The operation of the political subdivision of Hamilton County is conducted by and through its duly-elected Board of County Commissioners. The County conducts a variety of official functions, including but not limited to, the levy and collection of taxes, construction and maintenance of county-owned buildings, roads, bridges and other facilities, the funding and maintenance of county recreational parks and related facilities, and the funding and operation of county health and welfare programs, as well as the regulation and disposal of solid waste and sewage. TSI is a Florida corporation organized to specialize in the construction and operation of incineration facilities, including biohazardous waste incineration facilities. The project sub judice is the first incinerator facility proposed for construction by TSI. The corporation and its directors, officers or operational personnel have not participated in the construction or operation of any type of incinerator facility in the past. DER is an agency of state government charged with the responsibility of regulating the quantity and quality of emissions from facilities such as the incinerators involved in the case at bar, and with reviewing applications for permits for the construction and operation of air pollution source facilities, including incinerators, as well as biohazardous waste disposal and treatment facilities and solid waste resource recovery and management facilities. Its reviewing responsibility is performed by weighing such permit applications against the yardsticks set forth in Chapter 403, Florida Statutues, and Rule Chapters 17-2, 17-4, 17-6, 17-701 and 17-712, F.A.C., which it employs to determine, among other parameters, whether a particular air pollution source facility can be reasonably assured to comport with the standards embodied in those rule chapters. The Intervenor, City of Jasper ("Jasper"), is a municipality located within Hamilton County, Florida. The Jasper Industrial Park is the site of the proposed biohazardous waste incinceration facility. That site is within the city limits of Jasper. Description of Facility and Process Incineration is the most commonly used procedure for treating medical waste. The combustion of waste is especially appropriate for hospital "redbag" waste, also known as medical waste. The combustion of medical waste destroys pathogens infectious materials and spores. TSI proposes to burn medical waste in two Basic Model 3500 biohazardous waste incinerators. The incinerators will be enclosed within a large building at the Jasper Industrial Park in Jasper, Florida. Each has a charging capacity of 35 tons per 24-hour day. The proper incineration of medical waste requires a residence time of one second in a secondary chamber, having a temperature of at least 1,800 degrees Fahrenheit. These time and temperature requirements will be achieved by the proposed Basic incinerator. The incinerator's loading door will not open until the secondary chamber temperature reaches 1,800 degrees Fahrenheit. Unlike other systems, the patented Basic incinerator system has three combustion zones in the incinerator, the main chamber, the secondary chamber, and the tertiary chamber. By means of these three stages, the Basic incinerator minimizes emissions of hydrocarbons, CO and nitrogen oxide. It is characterized by a "ram feeder" which allows the waste material to enter the incinerator through an air lock so as not to disturb control of the air within the furnace. It also has a "mechanical pulse hearth" which moves and tosses the burning material while moving it through the incinerator, shaking it up, much like logs in a fireplace. It thus mixes the waste material in the air for more complete combustion. Finally, a backhoe-type device digs the ashes out of the ash pit for disposal after combustion. The third stage of the Basic incinerator changes vapors coming from the main chamber to superheated gas. The "thermal exciters" in the third stage increase turbulence and mixing in this upper zone. With the addition of air in this third stage of burning, the gas burns like natural gas, thereby completely destroying the products of incomplete combustion from the previous stages. The gas will have a residence time of at least one second in the last combustion chamber, at no less than 1,800 degrees Fahrenheit, as required by Rule 17- 2.600(1)(d)4.A., F.A.C. The Basic incinerator is designed with an air lock door which prevents it from opening until the chamber temperature reaches the required 1,800 degrees Fahrenheit. This insures more complete combustion of waste and insures that the ignition of waste does not commence until the last combustion chamber temperature requirement of Rule 17-2.600(1)(d)4.D., F.A.C., is attained. After the tertiary stage, the gases resulting from combustion go to a heat recovery boiler system incorporating a heat exchanger involving water- filled tubes. The superheated gas flows past these heat exchanger tubes which reduce the gas temperature to approximately 250 degrees Fahrenheit. This serves to start condensing the HCL acid gas so that it will be amenable to reduction and conversion by the injection of finely-powdered lime on the way to the "baghouse" scrubber device. Additionally, at this stage, a portion of the superheated gases are recirculated to the combustion chamber for further exposure to combustion temperatures in order to achieve optimum burnout of all combustible materials. When the superheated gases reach the boiler-heat recovery, steam- generating device, they are at approximately 1,800 degrees Fahrenheit. In part, they consist of metallurgical fumes containing salts, oxides, heavy metals, leads and zincs. In order to prevent these salts from clogging the boiler, the cooling device reduces their temperature so that the oxides and metals form powders. Then if any of the resultant powder adheres to the boiler tubes, conventional coal-blowing equipment blows the resulting powders on through the boiler to the emission control device or "baghouse". This, in turn, maintains the temperature reduction efficiency of the boiler heat exchanger. Because of the various combustion stages or chambers incorporated in the incinerator, as well as the heat exchanger and gas recirculation feature, the Basic incinerator prevents burning particulate particles from entering the baghouse and burning holes in the Gortex filter bags. This, of course, insures optimum emission control efficiency. After the combustion gases exit the heat exchanger-boiler device, their temperature has been reduced to approximately 250 degrees Fahrenheit. Lime is injected at this point, which reacts with the HCL acid gas and neutralizes it in part; the reaction occurring as the gas flows toward the baghouse, with the reaction being completed on the surface of the Gortex bags of the baghouse, as the lime collects thereon. The County does not contest that the Basic Model 3500 incinerator, as proposed, will perform in a manner that will satisfy most of the criteria set forth in Rule 17-2.600(1)(d), F.A.C. It will achieve approximately 95% burnout in the combustion chambers. Mr. Cross, the County's expert witness, was concerned that DER had no criteria for a standard of "burnout" of the bottom ash. In fact, DER interprets the term "complete combustion" (in the above Rule), as requiring ash burnout of approximately 95%. The Basic incinerator will achieve 95% burnout. The high rate of burnout is achieved both by the multiple combustion chambers and the use of the moving pulse hearth which constantly shakes or stirs the burning material, ending with chains suspended at the end of the pulse hearth to impede bulky waste materials from exiting the combustion chamber before they are completely combusted. Odor is controlled, in accordance with Rule 17- 2.600(1)(a)2., F.A.C., by using air for combustion purposes which is drawn by blowers from the storage area of the untreated waste. The combustion blowers pull air from the waste storage area into the incineration system. The best means of odor control is by burning, which this incinerator will achieve. The County agrees that CO emissions from the incinerators will not exceed 100 parts per million by volume, dry basis, corrected to 7% 02, on an hourly average basis. Thus, CO will be within acceptable regulatory limits and is not at issue in this proceeding. Pursuant to stipulation, the only emissions at issue with regard to the proposed facility and permit are visible emissions, particulate matter and hydrochloric acid (HCL). Particulate matter consists of finely divided solids or liquid, and the hydrochloric acid is formed when chlorinated plastics are burned. Emissions are reduced in two ways. First, emissions from the stack of the incinerator will be diluted by ambient air which dilution increases as the stack height above ground increases. Airborne emissions are also reduced by directing combustion gases through pollution control equipment before they exit the stack. The pollution control equipment proposed for the incinerators at issue is an acid gas, dry lime scrubber baghouse, with dry lime injection. The incinerator facility cannot meet particulate and hydrochloric acid standards without the addition of a pollution control device, such as a dry lime scrubber baghouse. The baghouse is the best available technology for controlling particulates and hydrochloric acid, as well as controlling metals emissions. The baghouse works much like a vacuum cleaner with a vacuum cleaner bag to trap particulate matter. Baghouses have been in use since 1970, and the technology has been scientifically demonstrated and accepted. The proposed baghouse would consist of a multiple number of bags in excess of ten feet long. They are made of fiberglass, coated with Gortex, a permeable membrane material. They have an air to cloth ratio of 3 to 1. The Gortex bags are capable of trapping 99.5% of particles in the range of 1/10th of a micron in diameter. They are, thus, capable of trapping cigarette smoke, for instance, and are resistant to acids, certain alkalines, and temperatures up to 500 degrees Fahrenheit. The bags are wrapped around a wire cage and attached to a steel plate, anchoring them to the flues, which conduct the gases to them. All of the flue gases enter the baghouse and go through the bags and then exhaust to the atmosphere through the stack. The bags, thus, trap most particulate matter and metals. Additionally, lime will be injected into the flue gas stream for acid control before the flue gases reach the bags. The lime dust, a base, reacts with HCL, an acid, to produce calcium salts, which are PH neutral. The dry lime will be conducted from a silo or other means of storage in the form of fine dust or talc which enters a metering hopper so that the amount of lime injected into the system can be controlled. The lime is injected immediately after the gases are condensed and cooled to a 250 degree Fahrenheit level. This causes optimum reaction of the acid gases with the lime which then travel together to the bags. The Gortex bags are coated by the lime dust which further enhances the HCL removal reaction. Because of the recirculation of the superheated gases and the cooling of them through the heat exchanger device, it is very unlikely that any sparks or embers from the incinerator chambers will land on the bags to burn holes in them and, thus, reduce their efficiency. This is an inherent advantage of the design of the Basic incinerator when used with the Gortex' baghouse scrubber. There is a biohazardous waste incineration facility in operation at Stroud, Oklahoma. It uses a Basic incinerator also employing an acid gas, dry lime scrubber baghouse, in essence like the one proposed here. That incinerator has been tested for visible emissions, particulate matter emissions, and HCL emissions. The tests occurred while the incinerator was actually combusting twice the amount of medical waste proposed for the proposed incineratcrs. The visible emissions test at that facility resulted in an opacity of less than 5% (visible emissions). The PM test resulted in 0.014 grains per dry standard cubic foot. HCL emissions from the incinerator were tested at 43.6ppm (parts per million). The Stroud system thus achieved a 97.2% removal of HCL. A medical waste incineration facility is located at Fairfax, Virginia, which uses a baghouse and lime injection system. The Fairfax facility test results also establish that a baghouse lime injection system reduced particulate matter and HCL emissions to below the Florida standards. Experts testifying on behalf of both the applicant and the County agree that the design characteristics and pollution control capabilities of various lime injection systems and baghouses differ markedly. Certain baghouse designs would not be appropriate for the pollution control application at issue. The County's expert noted that the method of lime injection is a critical component of overall HCL control. Certain baghouses incorporate intermittent lime injection systems which are effective for protecting the individual baghouse components, but inappropriate for HCL removal purposes. The applicant's expert, Mr. Basic, also recognized the importance of the type of lime injection system involved. Various baghouse manufacturers inject lime at differing points within the system; and certain injection applications are, in his opinion, inappropriate for effective HCL control. Temperature is a critical factor in the effectiveness of the lime injection procedure in neutralizing the acid gases (HCL). The method proposed by the applicant of cooling the gases to approximately the range of 250 degrees Fahrenheit before injection of the lime has been shown to be effective in neutralizing the HCL gases at issue, when coupled with the Gortex-laminated, fiberglass bags upon which further neutralization will occur as the dry lime powder is deposited thereon and the gas passed through it. The baghouse cleaning system is also a component of major importance. Baghouse cleaning involves the removal of calcium chloride particulate buildup from the surface of the filter bags. They eventually become clogged with the precipitate, reducing the systems effectiveness unless they are periodically cleaned. Baghouses can be cleaned while the incineration system is shut down which is known as "off-line cleaning". They can also be cleaned during operation by "on-line cleaning". "Pulse-jet" cleaning involves taking a portion of the bags off line with a damper system bypassing the flue gases to other bags which remain in operation. The bags taken off line are then injected with a rapid pulse or pulses of compressed air, thereby removing the calcium chloride cake from the bags. The County's expert opined that pulse-jet cleaning is less effective than off-line cleaning and that it also requires a dedicated air compressor, as air from within the plant may contain moisture, oil or other contaminants, which are inappropriate for injection into the baghouse since they may permanently clog or otherwise harm the bag material. The applicant's expert, Mr. Basic, expressed like concerns regarding the baghouse cleaning system. He testified at length about the characteristics and appropriateness of on-line versus off-line cleaning. He established that off-line cleaning, also knowh as "reverse air" or "reverse jet" cleaning, is the most effective under the situation prevailing in this project and, in essence, agreed with the County's expert on this subject. Reverse air cleaning involves both the incinerator and the air pollution control system being shut down, with air from the blower being blown in reverse through the bags to remove the calcium carbonate residue. Mr. Basic's testimony establishes that a reverse air, off- line cleaning process can maintain the effectiveness of the Gortex- fiberglass filter bags and, thus, assure that emission and ambient air standards are continuously met by the facility. Stack Emissions Modeling of the stack emission results predicted at the facility with the originally-proposed 40-foot stack height was performed by Mr. David Buff, the applicant's expert witness in this regard. The model he employed demonstrated compliance with all ambient air quality standards set forth in Chapter 17-2, F.A.C. There is no ambient air quality standard in the rules at the present time for HCL, however. DER does have a policy, established without dispute in this record, that an acceptable ambient level of HCL would be 150 micrograms per cubic meter for a three-minute value and 7 micrograms per cubic meter on an annual average. Shortly prior to hearing, a "re-modeling" of the stack and resultant emissions was done, postulating a stack at 98 feet high. Five years of meteorological data from the Valdosta, Georgia, weather station were used to include such factors as prevailing winds, etc., which modeling ultimately demonstrated a three-minute maximum HCL concentration of 16.4 micrograms per cubic meter. This resulted in a maximum HCL concentration at ground level of a factor of 10 below the 150 micrograms per cubic meter level, which is acceptable under DER policy. The average annual impact of HCL concentrations would be 0.2 micrograms per cubic meter, well below the acceptable level of 7 micrograms per cubic meter annual average. Mr. Buff's model also predicted a maximum annual average impact at any location in the vicinity of the proposed incinerator of HCL at .16 micrograms per cubic meter. This maximum value is a factor of more than 40 below the administrative level of 7 micrograms per cubic meter on an annualized basis. A spatial distribution of the annual average hydrochloride concentrations in the vicinity of the incinerator demonstrates an annual average concentration declining to 0.09 micrograms per cubic meter in the direction of the City of Jasper. The 98-foot stack proposed by TSI thus meets all ambient air requirements. Although the stack height was changed from the 40 feet shown in the application to 98 feet, all other design elements of it, such as stack diameter, stack temperature, and gas flow rate, remain unchanged. The modeling of the 98-foot stack included all of the design criteria found in the application. There is, in essence, no dispute regarding the efficacy of the modeling performed by Mr. Buff. All modeling and modeling results were not controverted. In addition to the main stack, there is an emergency relief stack, also known as a "dump stack". The dump stack does not have pollution control equipment. It is opened when the system is first started up in order to purge the system. No waste is burned at that time. The stack is also opened after a shutdown during a cooldown period after all waste has been removed from the furnace. The likelihood that the relief stack will operate outside of a startup and cooldown period is very slight. The facility will have an electrical generator backup emergency power source in case of power failure. The primary reason for the stack's opening, power loss, is thus eliminated by the system as proposed. There is a relief valve in the steam line so that if steam pressure in the boiler exceeds operating pressure, the system can be relieved through the relief valve with the only loss being steam which would have to be replenished with soft water. Such a malfunction would not result in the emergency stack opening, however. The only other circumstance under which the emergency stack would open, and vent gases to the atmosphere without emission control, would be a malfunction of the blower or induced draft fan system which pulls the gases out of the main stack. This could be caused by failure of the drive belts or a burnout of a motor. With proper maintenance, the belts will not fail and the motors will function for years without replacement. In an emergency situation, however, if a shutdown does occur, the frequency of the pulse hearth can be increased to push the waste stream into the quench pit in approximately 20 minutes, thus, eliminating emission of pollutants through the stack. The County's expert, Mr. Cross, also agreed that most of the causes of the opening of the emergency dump stack have been eliminated by the proposed Basic design. In any event, even in an emergency situation where the dump stack must open, the inherent design capabilities of the incinerator, related to operating temperature, residence time and the multiple combustion chambers, result in only one part per million CO, as well as very low nitrogen oxide and hydrocarbon levels being emitted from the facility even with no other pollution emission control provisions. In the event the emergency stack opens, the highest HCL emissions occur immediately, but then quickly drop to acceptable levels. This is so because combustion of materials immediately in the furnace would be finished, but no other charging of the furnace would occur until the malfunction is alleviated. Rule 17-2.250, F.A.C., allows, in any case, with an emergency opening of dump stack, the excession of permit limits for up to two hours. The results of modeling the operation of the dump stack at a 40-foot height and at 30 pounds per hour of HCL emissions shows that the 7,500 threshold limit value ("TLV"), which the Occupational Safety and Health Administration ("OSHA") sets to protect worker safety, will not be exceeded anywhere off the plant property, which boundaries lie 50 meters or more from the stack location. The HCL administrative level set by DER (by policy) of 150 micrograms per cubic meter will be exceeded in an area out to approximately 400 meters from the stack. Beyond 400 meters, the level is less than that and drops off rapidly thereafter so that at 800 meters, under the model prediction, the level of HCL concentration would be only 57 micrograms per cubic meter and at 2,000 meters, 37 micrograms per cubic meter. The county prison site, the Hamilton County landfill, recreation park, middle school, county road camp, senior citizens center, other schools and a nursing home, of which concern was expressed about proximity to incinerator emissions, are all 900 meters or more from the site of the incinerator and the location of the stack. It has thus been established that ambient HCL concentrations will not reach the prohibited level of 150 micrograms per cubic meter for the three-minute average at any of these locations. The permit applied for is a "minor source construction permit". Such a permit allows the applicant to construct the source, having an initial startup and performance compliance testing period to demonstrate that the facility can meet emission standards provided for in the permit and related rules. After demonstrating compliance, the applicant can then seek an operating permit. The test methods required as conditions by DER's proposed grant of the permit and the "draft permit" are standard ones sanctioned by the U.S. EPA. They are reliable and acceptable and have undergone independent testing and development and are used by all states. Thus, the combustion chamber exit temperature must be monitored for the purpose of determining if the unit complies with the 1,800 degree Fahrenheit rule, the criteria for complete combustion. Oxygen must also be monitored for the purpose of determining if the incinerator is operating properly and achieving good combustion which is essential to control of hydrocarbons, nitrogen oxides, CO and other pollutants. When oxygen falls below certain levels, the computerized micro- processor monitoring system shuts down the loader to prevent charging of the furnace until combustion standards are again reached to prevent insufficient combustion due to low oxygen and excession of pollutant limits. In order to insure that the CO limit of 100 parts per million is not exceeded, a continuous CO monitoring capability will be installed within the incinerator. The lower the CO, the better the combustion efficiency. Although the rules require a 100 parts per million limit, CO test results at the Stroud facility, which is essentially identical to the one proposed, averaged 1.1 parts per million. Test results at the Stroud facility also demonstrated that the dry lime scrubbers installed there accomplish high HCL and particulate removal. The Stroud facility meets all Florida rule standards. Mr. Cross acknowledged that the test results on that facility demonstrate that dry lime scrubbers on medical waste incinerators "will do the job". Design details of the 98-foot stack and the lime injection baghouse scrubber facility were not included in their entirety in the application and the evidence adduced. Design details of the 98-foot stack, however, were provided in the application on page 6 as to the 40-foot stack. The changing of the stack height to 98 feet does not change the remaining design details, and they are still valid and have been proven so. Although no design or plans for the lime injection baghouse proposed have been adduced, the testimony of Mr. Basic establishes that such a facility will meet all pertinent emission standards prevailing in the Florida rules and policies, as such a facility did in the Stroud tests. Mr. Basic's testimony was unrefuted and establishes that the dry lime injection baghouse scrubber facility, such as he proposes and about which he is knowledgeable, based upon his manufacture, installation and operation of other incineration facilities, will reasonably assure that all pertinent disputed emission standards will be met (for particulate matter, opacity and HCL). Mr. Basic, as equipment vendor for the project, has responsibility for the entire incineration facility. He will oversee construction, installation and testing of the incinerators and emission control equipment (baghouse and stacks). He has guaranteed that all Florida emission standards will be met as the manufacturer and vendor for the project. A grant of the permit at issue should be conditioned upon Mr. Basic performing, as testified at the hearing and as agreed to by the applicant, as overseer for the construction, installation and testing of the proposed facility. Specific Condition No. 14 in DER's notice of intent to grant the permit requires the applicant to test the resultant ash to see if it is hazardous. Ash from the proposed facility must be tested in accordance with 40CFR 262.11, which requires testing and characterization of the waste. Ash from the proposed facility will be tested; and if it tests as hazardous, it will be handled as hazardous waste by sending it to an approved hazardous waste landfill or treatment facility. In any event, it has been stipulated by the applicant that the ash will not be deposited in a Hamilton County landfill; and the permit should be so conditioned. Most ash coming from infectious waste incineration is non-toxic. Controlled air incineration produces a sterile ash, which is a non-combustible residue, and may be disposed of in an ordinary landfill. Ash tested at the Stroud facility, after burning medical waste of the type to be incinerated in the instant facility, tested as non-hazardous. The ash will be removed from the facility in closed containers. Storage of Biohazardous and Biomedical Wastes DER regulates biohazardous waste incineration under the air permitting program, requiring an air permit, as sought in the instant case. DER does not require a separate solid waste treatment and sewage permit. Biomedical waste is regarded as a special waste which requires an element of care beyond solid waste, but does not require the extraordinary care required of hazardous waste. Sections 17-712.420 and 17-712.800, F.A.C., deal with the permitting of biohazardous waste storage. There are two ways in which an applicant can notify DER of its intent to use a general permit for the storage of biohazardous waste: It can apply for a general permit by notifying DER on a specific form of its intent to use a general permit for the storage of the waste; or It can include the information as part of an air permit application. With either option, there is no difference in the way DER processes the two types of notification. DER reviews the information submitted to make sure that it indicates that the facility will meet the requirements of Rule 17-712.420, F.A.C. The DER district waste program administrator, Mr. Mike Fitzsimmons, established in his testimony that the applicant has met the qualifications for the general permit for biohazardous waste storage. Five areas have been designated for storage of the biomedical waste to be incinerated at the TSI facility. It is anticipated that most of these areas will normally be empty. The storage areas are available, however, in case one of the incinerators is inoperative for any reason. There are contingency plans for re-routing the waste in the event one or both incinerators are inoperative for a significant period of time. Area A is the primary area of the facility where boxes are loaded onto a conveyor system and continuously fed into the furnaces. Area B is considered a secondary storage area where palletized boxes can be stored pending their placement onto the conveyor system for charging into the incinerators. The secondary area here can also be used for backup storage. Areas C and D are truck unloading docks,. The trucks, themselves, also can be used for storage capacity. Area E on Exhibit 7, the permit drawings, shows an outdoor storage area which will hold a number of trucks which transport the biohazardous waste. All of the trucks bringing waste into the facility will remain locked until brought to the unloading dock for unloading and incineration of their contents. The loading docks for the trucks located at the back of the facility are designed with drainage to prevent storm water runoff. Both the indoor and outdoor storage areas will be concrete. The concrete joints will be grouted and sealed, and the concrete will have an impermeable sealant placed on it. To maintain a sanitary condition, the area will be swept daily; and any spill area will be disinfected. The indoor areas will be disinfected weekly regardless of spills. Access to the proposed facility will be restricted to prevent entry of unauthorized persons. The outer perimeter will be enclosed with an 8-foot cyclone fence. It will be monitored with closed-circuit television. The building itself will only be accessible by authorized persons. The fence and all of the entrances will be marked with the international biohazardous symbol with the words "biohazardous wastes or infectious wastes". The facility will be operated so as to prevent vermin, insects or objectionable odors offsite. All materials will be packaged according to Rule 17-712.400(3), F.A.C. Refrigeration is not contemplated because EPA guidelines on management of infectious waste do not recommend refrigeration. Instead, storage times will be kept as short as possible prior to incineration. There will be minimal handling of boxes at the facility. Semi-trailers will be unloaded by means of an extendo conveyor system which will convey the boxes directly to the incinerators. If a box is dropped, breaks or a spill occurs, the area will be disinfected immediately. All floor drains, which will be installed both indoors and outdoors, will have a slight slope in the direction of the drain so that the floors can be scrubbed and hosed down and disinfected with all liquid material being flushed down those drains. Liquid waste created by the disinfection process can be safely disposed of thereafter in the city sanitary sewer system. The storm water management system on the site and the drainage sewage system are entirely separate, however. Employees will be required to wear either rubber or plastic gloves and white disposable clothing. All biohazardous waste generators (hospitals, etc.) and transport companies will be required to put the waste in "red bags", strong plastic bags. The medical waste will be required to be sealed in strong plastic bags, which are then placed by the generator of the waste in sealed cardboard boxes having a 275-pound bursting strength. All boxes must be marked with the name and address of the generator of the waste (hospital, etc.). The transporter of the waste, typically a trucking company, will be required to keep the trailers transporting the waste locked and the boxes intact and unopened. The applicant, as a condition of the permit, will not accept delivery of any waste shipments not so packaged and maintained. In fact, in addition to the rules governing the packaging and transport of biomedical waste contained at 17- 712.400, 17-712.410, F.A.C., TSI will require, by written contract, generators and transporters of the biomedical waste to insure delivery of waste properly packaged in accordance with Florida law regardless of which State the waste is generated and transported from. Additionally, the applicant will maintain records of waste origins and shipments in accordance with Rule 17-712.420(7), F.A.C., in its computerized record system. A detailed contingency plan will be prepared for the proposed facility by Lloyd H. Stebbins, P.E., an expert in environmental incident planning. The contingency plan will include more detail than is required by the biohazardous waste rules. The plan will address how medical waste is handled in order to insure public safety and the safety of employees as it is transported to and enters the plant and how ash will be safely handled when it exits the plant. Mr. Stebbins will also prepare an operation plan which will include personnel training in disinfection procedures and a description of those procedures for submittal to DER as a condition of a grant of this permit. That operation plan will contain procedures for all three types of disinfection methods authorized by Rule 17-712, F.A.C. This will enable the applicant to have the flexibility to use all three procedures, hot water, sodium hypochlorite, iodine or an EPA approved germicide. Mr. Stebbins will direct and provide training to insure that personnel comply with the regulations concerning disinfection and proper application of disinfectants. As an additional safety factor, the facility is designed to operate efficiently at approximately 85% of its actual capacity in order to allow for "down time" and maintenance. Standing TSI has challenged the County's standing to participate in this proceeding, asserting that Hamilton County, through its duly-elected Board of County Commissioners, does not possess a substantial interest in the outcome of this proceeding different from that of the public generally. It contends that the concerns various members of the general public might have concerning location and installation of the incinerator facility are the only concerns that the County has in participating in this proceeding; and, therefore, that the County has no substantial interest of its own justifying its standing to be a party to this proceeding. The record, however, reveals a strong citizen opposition in the County and City of Jasper to the applicant's proposed project. During the public comment portion of these proceedings, it became obvious that the citizens of Hamilton County have a variety of health and safety concerns which have engendered wide spread opposition to the applicant's project. Principal concerns are the matters of transportation and potential spillage of infectious hospital- generated medical wastes which the incinerator will be treating. Additionally, a strong concern has been expressed by various citizens of Hamilton County and the City of Jasper, concerning potential HCL emissions and their potential negative health effects on residents of the city and county, particularly those who utilize the many publicly-owned facilities located in proximity to the project site. These facilities include a middle school, a senior citizen center, a county road camp or prison, the county landfill, county equipment, a bridge and other buildings, as well as the fact that the material to be incinerated will be transported on trucks through a residential area. Additionally, the Hamilton County Correctional Institution is immediately adjacent to the proposed project site and employs several dozen county residents. Concerns were also expressed about increased traffic flow resulting from trucks bringing waste through the county and city to the proposed incinerator site, as well as the health and safety of the citizens who will be employed at the proposed facility itself, and the lack of sufficient emergency equipment and facilities within Hamilton County. Many citizens expressed their opposition to the proposed facility at the public comment portion of the hearings, through petitions submitted to their city council and the board of county commissioners and at public meetings conducted by those two governmental bodies. Thus, it can be inferred that there is a concensus of opposition by citizens of the city and the county which has been expressed to their respective governing commissions, who are the Petitioner and Intervenor in this proceeding. There is no question that the proposed project has the potential to cause some pollution or degradation of air and water in Hamilton County and the City of Jasper. Section 125.01(1), Florida Statutes, delegates broad powers and duties to county governments. Those powers and duties are enumerated in the Conclusions of Law below and include such authority as to establish and administer programs of air pollution control; to provide for and regulate waste and sewage disposal; to operate solid waste disposal facilities pursuant to Section 403.706(1), Florida Statutes; to establish, coordinate and enforce zoning and such business regulations as are necessary for public protection; to perform other acts not inconsistent with the law which are in the common interest of the people of the county, and to exercise all powers and privileges not specifically prohibited by law.
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 aguments of the parties, it is therefore, RECOMMENDED that DER enter a final order approving TSI's applications for permits for the subject two biological waste incineration facilities in accordance with the conditions specified in the notice of intent to grant the permit and enumerated in this Recommended Order. DONE AND ENTERED this 24th day of July, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6824 Petitioner's Proposed Findings of Fact: 1. Accepted. 2-11. Accepted, although not necessarily dispositive of material issues presented, standing alone. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not, in itself materially dispositive of material disputed issues. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject[matter and as not directly relevant in the de novo context of this proceeding. 15-22. Accepted. 23. Accepted, but not itself materially dispositive. 24-31. Accepted, but in themselves materially dispositive of disputed issues and subordinate to the Hearing Officer's findings of fact on this subject matter. 32-43. Accepted. 44-48. Accepted, but subordinate to the Hearing Officer's findings of fact on these subject matters and not, standing alone, dispositive of material disputed issues. 49. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and contrary to the preponderant weight of the evidence. 50-55. 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. 58-64. 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, contrary to the preponderant weight of the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 68-73. Accepted. Respondent, TSI Southeast, Inc.`s Proposed Findings of Fact: 1-15. Accepted. 16. Rejected, as a discussion of testimony and not a finding of fact. 17-52. Accepted. 53-70. Accepted. 71-73. Rejected, as not materially dispositive of disputed issues in the de novo context of this proceeding. 74-75. Accepted. 76. Rejected, as unnecessary and immaterial. 77-123. Accepted. 124-129. Accepted, but not themselves dispositive of the material disputed issue of standing. Respondent, DER's Proposed Findings of Fact: 1-41. Accepted. COPIES FURNISHED: Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 David D. Eastman, Esq. Patrick J. Phelan, Esq. Parker, Skelding, Labasky & Corry 318 North Monroe Street Tallahassee, FL 32301 John H. McCormick, Esq. McCormick & Drury 2nd Street at 2nd Avenue Northeast Jasper, FL 32052 Ross A. McVoy, Esq. Vivian F. Garfein, Esq. Fine, Jacobson, Schwartz, Nash, Block & England Suite 348 315 South Calhoun Street Tallahassee, FL 32301 William H. Congdon, Esq. Department of Environmental Regulation Twin Tower Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
The Issue The issue for determination is whether Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 is eligible for state-administered cleanup under the Drycleaning Solvent Cleanup Program pursuant to Section 376.3078, Florida Statutes.
Findings Of Fact Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 (Respondent Cleaners) operates as a drycleaning facility at 1197 West 35th Street, Hialeah, Florida. Colombina Holding Company, N.V., Inc. (Intervenor) is the owner of the real property located at 1197 West 35th Street, Hialeah, Florida. Respondent Cleaners made application with the Florida Department of Environmental Protection (Respondent DEP) for state-administered cleanup under the Drycleaning Solvent Contamination Cleanup Program (Drycleaning Cleanup Program). By letter dated October 25, 1996, Respondent DEP notified Respondent Cleaners, among other things, that its application was approved and that it was eligible to participate in the Drycleaning Cleanup Program. Prior to Respondent Cleaner's approval to participate in the Drycleaning Cleanup Program, Metropolitan Dade County (Petitioner) issued to Respondent Cleaners a Notice of Violation and Orders for Corrective Action (NOV) for contamination at the drycleaning facility. The NOV required Respondent Cleaners to assess and remediate the contamination and to pump out and clean a soakage pit. Having received the NOV, Respondent Cleaners obtained the services of an environmental consultant to assess the contamination on the site and to propose a plan of remediation. Respondent Cleaners maintained contact with Petitioner and advised Petitioner of the progress. Petitioner required Respondent Cleaners to submit a Contamination Assessment Report (CAR) and IW Process Change Plans for the facility. Respondent Cleaners complied with the requirement. By letter dated November 21, 1996, counsel for Respondent Cleaners made inquiry to Respondent DEP as to whether pump out or cleaning of contamination in a soakage pit was included within the Drycleaning Cleanup Program. On November 20, 1996, Petitioner's Department of Environmental Resources Management (DERM) conducted a routine inspection and a receptor survey of Respondent Cleaners. No violations were observed by the inspector. Respondent Cleaners has not remediated the contamination at the facility site.
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 finding Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 eligible to participate in the Drycleaning Solvent Contamination Cleanup Program. DONE AND ENTERED this 21st 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 21st day of April, 1998.
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 Whether the Petitioner's application to participate in the Drycleaning Solvent Cleanup Program with regard to its Kendale Lakes facility should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Environmental Protection is the state agency responsible for administering the Drycleaning Solvent Cleanup Program set out in Section 376.3078, Florida Statutes (1995). Dryclean USA is a Florida corporation and is the owner of commercial real property located at 14099 Southwest 88th Street in Miami, Florida. Dryclean USA is an operator of a drycleaning facility at that location, as those terms are defined in Sections 376.301(8) and (21), Florida Statutes. The facility, known as the Kendale Lakes facility, has been operated by Dryclean USA as a drycleaning facility for approximately twenty years. Drycleaning establishments use solvent in the cleaning process. Tetrachloroethylene, also known as perchloroethylene, is a commonly used drycleaning solvent and is considered a hazardous substance. Tetrachloroethylene is saturated in water at 150,000 parts per billion. The drycleaning process produces lint that can contain tetrachloroethylene; contact water, which is water that has, at some point during the drycleaning cycle, come into contact with tetrachloroethylene; and sludge from the mechanism that separates pure tetrachloroethylene from water and solid materials produced during the drycleaning process. In addition, tetrachloroethylene accumulates in the filters used in the drycleaning machine. These substances must be disposed of as hazardous waste. Steiner Atlantic Corporation is one of the largest distributors of drycleaning equipment in the country, and Dryclean USA purchases its equipment from this company. The drycleaning machine in the Kendale Lakes facility was purchased from Steiner Atlantic and has been in use at the Kendale Lakes facility since 1991. The machine is a third-generation machine that uses closed-loop technology. Tetrachloroethylene is introduced into the system from a pressurized container that is connected to the drycleaning machine through quick-disconnect valves. The tetrachloroethylene is pumped directed into the machine so that it does not come into contact with the air. Once the cleaning cycle is completed, tetrachloroethylene and water are extracted from the clothes, heated, and turned into a vapor. The vapor is routed across condensing coils that chill the vapor and turn it back into a liquid. The liquid goes into a separator, where the tetrachloroethylene and the water are separated; the tetrachloroethylene is returned to the drycleaning machine and the water, called separator water, is collected in a hazardous waste drum, which is hauled off the site by a company which is licensed to dispose of hazardous waste. Steiner Atlantic develops training programs for its customers and for a number of years has worked with Dryclean USA to develop training programs for Dryclean USA managers and employees. The Dryclean USA training programs are among the most extensive programs that Steiner Atlantic has developed and rank among the best in the country. The training for Dryclean USA managers both now and in 1995 consists of an intensive three-week program. In addition to courses on how to manage the business, Dryclean USA managers are trained in the operation and maintenance of all the equipment in the drycleaning facility, including the drycleaning machine, and in the legal requirements for handing hazardous waste. The program also includes training in environmental and safety issues, as well as hands-on instruction on the proper handling of tetrachloroethylene and equipment that comes into contact with tetrachloroethylene. Managers are provided with on-going training in addition to the initial training program. Dryclean USA also has a training program in hazardous waste management for all of its employees, and this program was in place in 1995. All of Dryclean USA's employees receive this training from in-house training personnel or from district managers, and the employees must read a training manual, watch a video, and pass several tests that deal with handling hazardous waste. The employees are taught that tetrachloroethylene and substances contaminated with tetrachloroethylene must be disposed of in hazardous waste containers, which are then hauled away and disposed of by a hazardous waste disposal company. Managers at the Dryclean USA facilities are responsible for ensuring that tetrachloroethylene and substances contaminated with tetrachloroethylene are disposed of properly. All Dryclean USA employees receive training in handling spills of tetrachloroethylene and substances contaminated with tetrachloroethylene, although the manager is the person responsible for ensuring-that spills are handled correctly and in accordance with the following procedures. First, all employees who will not participate in cleaning up the spill are evacuated from the premises. Certain designated employees, including the manager, use the spill kit provided in each facility to contain and absorb the spill. The spill kit consists of safety equipment for the employees handling the spill and of absorbent cloth, such as comforters or blankets, to absorb the tetrachloroethylene. The cloth used to absorb the spill is put through the drycleaning cycle to extract the tetrachloroethylene. Dryclean USA requires that all spills, no matter how small, be immediately reported to the Dryclean USA maintenance department, which promptly dispatches an engineer to assist with the spill if it is the result of an equipment malfunction. Additionally, the employees are required to keep internal records of any spill that is less than one quart and to report to the state any spill in excess of one quart. These procedures are set out both in the Dryclean USA Written Hazard Communication Program manual provided to all employees and in the Dryclean USA Emergency Contingency Plan posted on the bulletin board at each Dryclean USA facility. No spills were reported at the Kendale Lakes facility in April or May 1995. In addition to the training given to managers and other employees, the maintenance manager of Dryclean USA is also the environmental officer, and he performs semi-annual audits of each facility operated by Dryclean USA with respect to health, safety, and environmental standards. During these audits, the environmental officer ensures that the employees of each facility are aware of the procedures for the routine collection and disposition of substances contaminated with tetrachloroethylene and of the emergency contingency plan for handling spills of tetrachloroethylene and substances contaminated with tetrachloroethylene. No deficiencies were found at the Kendale Lakes facility during the 1995 audits. In 1994, the soil and groundwater at the Kendale Lakes facility was found to be contaminated by tetrachloroethylene. At that time, Dryclean USA was leasing the property, but, upon learning of the contamination, it purchased the property. Dryclean USA notified DERM of the contamination, and, in the spring of 1994, it retained the U.S. Environmental Group, an environmental consulting firm that, among other things, performs contamination assessments and develops and institutes remediation plans for sites contaminated with tetrachloroethylene. U.S. Environmental Group prepared a contamination assessment report delineating the area of contamination in the soil and groundwater around the Kendale Lakes facility. It also developed and implemented an interim remedial measures plan for both soil and groundwater contamination. Neither DERM nor U.S. Environmental Group nor any other agency or entity has identified the source of the contamination at the Kendale Lakes site. When U.S. Environmental Group began its assessment of the contamination in 1994, it did not find any discharge occurring from the drycleaning system in place at that time and so concluded that the contamination was historical. DERM assigned Nicholas Simmons as project manager for the Kendale Lakes site. In the spring of 1995, Mr. Simmons held the position of Hydrogeologist II in DERM's hazardous waste remediation program. His primary responsibilities in this position were to review contamination assessment reports, remedial action plans, and other documents relating to contaminated sites in Dade County and to make recommendations as to whether the reports and plans should be approved or disapproved. He was project manager for a number of sites contaminated with drycleaning solvents. Before he became a Hydrogeologist II with DERM, Mr. Simmons was a Pollution Control Inspector I with that agency, and his responsibilities included making field inspections of industrial facilities in Dade County, including drycleaning establishments. During his time as a pollution control inspector, Mr. Simmons visited approximately 20 to 30 drycleaning sites, although he did not personally inspect all of them. On April 28, 1995, Mr. Simmons made a visit to the Kendale Lakes facility in his capacity as DERM project manager to observe U.S. Environmental Group install a new monitoring well inside the facility. While at the facility, Mr. Simmons decided to make a cursory inspection to see if he could locate a source of the contamination at the site. He was unsuccessful in this respect, but he found several "items of concern" at the facility, none of which constituted a violation of any federal, state, or local laws, rules, or regulations or involved a discharge of tetrachloroethylene into the soil or groundwater. One "item of concern" he identified during his April 28 inspection was what appeared to be a leak from a pipe connected to the drycleaning machine. The liquid dripping from the pipe was clear and was dripping into a three-gallon bucket. Mr. Simmons did not take a sample of the liquid to determine if it was contaminated with tetrachloroethylene, nor did he observe the method of disposal of the liquid. The temporary manager, who was manager at the Kendale Lakes facility only one day per week, told him that he presumed the liquid was disposed of as hazardous waste. Mr. Simmons prepared a memorandum dated April 28, 1995, to Mark Pettit, a DERM code enforcement officer, in which he reported in detail the inspection, the observations he made, and the conversations he had with Dryclean USA employees during his visit to the Kendale Lakes facility on that date. Mr. Simmons visited the Kendale Lakes site again on May 2, 1995, to observe U.S. Environmental Group install equipment for a soil vapor extraction pilot test. Mr. Simmons took the opportunity to re-inspect the facility. Monica Resconi, the manager of the Kendale Lakes facility, was present during this inspection. In addition, Eddie Rodriguez, then-president of Dryclean USA, was present during most of the May 2 inspection. Mr. Simmons observed that clear liquid was still dripping from the pipe connected to the drycleaning machine into a small bucket. Mr. Simmons asked for and received permission from Ms. Resconi and Mr. Rodriguez to take a sample of the liquid in the bucket, and he submitted it for testing to the DERM laboratory. The laboratory analysis established that the sample contained 220.5 parts per billion of tetrachloroethylene. Mr. Simmons did not ask Ms. Resconi or Mr. Rodriguez how this liquid was disposed of, and he did not observe anyone actually disposing of the liquid. During Mr. Simmons' May 2 visit to the Kendale Lakes facility, he also observed a whitish liquid in a drum labeled "Hazardous Waste" that was located close to the drycleaning machine. A hose connected the drycleaning machine and the drum, but Mr. Simmons did not know whether there was liquid traveling through the hose or whether liquid would travel from the machine to the drum or vice versa. He also observed what appeared to be the same liquid in a puddle on the floor. He asked Ms. Resconi what the liquid was, and she put her hand into the puddle and identified the liquid as water. She wiped it up with a rag. Mr. Simmons did not observe her disposing of the rag, and he did not take a sample of either the liquid in the drum or the liquid on the floor. When Mr. Simmons showed Mr. Rodriguez the dripping liquid he had first observed on April 28 and the area where he had observed the puddle of whitish liquid, Mr. Rodriguez immediately called the maintenance manager for Dryclean USA, and a maintenance technician and the maintenance supervisor were promptly sent to the Kendale Lakes facility. They reported to the maintenance manager that the liquid dripping from the pipe was water that had condensed on the outside of a refrigerator pipe because some of the insulation was missing. They also reported that there were no other leaks from the drycleaning machine. When he inspected the machine the following day, the maintenance manager found that the insulation on the pipe had been replaced and that the pipe was no longer dripping. He also found no other leaks in the drycleaning machine. Finally, Mr. Simmons observed a yellow bucket just inside the back door of the facility during his May 2 inspection. The bucket contained dirty water and a mop with a green handle. He asked Ms. Resconi what the bucket contained, and she explained that it was water that had been used to mop the floor of the facility. When he asked how this water was disposed of, Ms. Resconi stated that it was thrown out the back door. Mr. Simmons asked for and received permission from Ms. Resconi and Mr. Rodriguez to collect a sample of the water in the bucket, but the sample he took was not acceptable for analysis and was discarded. For some time prior to Mr. Rodriguez's meeting with Mr. Simmons, Dryclean USA's policy regarding the disposal of mop water required that water used to mop the front, or store area, of the facility be discarded down the toilet and that water used to mop the back area of the facility where the drycleaning equipment was located be discarded in hazardous waste containers. When Mr. Simmons told Mr. Rodriguez on May 2 that he was concerned that the water in the mop bucket might contain tetrachloroethylene, Mr. Rodriguez responded by directing Ms. Resconi to dispose of all mop water in the hazardous waste containers. Mr. Simmons prepared a memorandum dated May 2, 1995, to Mark Pettit, a DERM code enforcement officer, in which he reported in detail the inspection, the observations he made, and the conversations he had with Dryclean USA employees during his visit to the Kendale Lakes facility on that date. In accordance with Mr. Simmons' recommendation, a detailed inspection of the Kendale Lakes facility was ordered. On May 11, 1995, Heather Wright, an inspector with DERM's hazardous facilities section, visited the facility to perform this inspection. Ms. Resconi was not at the facility, but Ms. Wright met with Brad Clayton, the temporary manager at Kendale Lakes, and with Steve Lundy, Dryclean USA's district manager responsible for the Kendale Lakes facility. Ms. Wright made a detailed inspection of the facility on May 11, 1995, and found that the floor around the drycleaning machine was dry and that there was no evidence of leaks from the drycleaning machine. Mr. Lundy discussed with Ms. Wright the procedure for cleaning up spills of tetrachloroethylene or substances known to be contaminated with tetrachloroethylene, and he told her that spills were picked up with absorbent cloth, which was then put into the drycleaning machine to extract the tetrachloroethylene from the cloth. He also told her that any other materials known to be contaminated with tetrachloroethylene were disposed of in hazardous waste druMs. Ms. Wright questioned Mr. Lundy on the method of disposing of water in the mop bucket, which was located just inside the back door of the facility. He told her that it was thrown out the back door of the facility, but he also told her that spills were not cleaned up with the mop, which was used only to mop the floors of the facility. Ms. Wright collected a sample of the water in the mop bucket and submitted it to the DERM laboratory for testing. The laboratory analysis established that the sample contained 121,928 parts per billion of tetrachloroethylene, an amount close to saturation.3 Ms. Wright did not observe the manner in which the employees of the Kendale Lakes facility disposed of the water in the mop bucket. Ms. Wright prepared an Incident Report dated May 11, 1995, in which she reported in detail the inspection, the observations she made, and the conversations she had with Dryclean USA employees during her visit to the Kendale Lakes facility on that date. When Mr. Rodriguez learned that the sample of water taken from the mop bucket at the Kendale Lakes facility contained almost 122,000 parts per billion of tetrachloroethylene, he instituted a new policy regarding the handling of mop water at all Dryclean USA facilities. Pursuant to a memo dated June 8, 1995, the new procedure requires that two mop buckets be maintained in each Dryclean USA facility, one to be used exclusively for mopping in the front "store" portion of the facility and one to be used exclusively for mopping in the back of the facility where the drycleaning equipment is located. The bucket used for mopping the back of the facility must be red, and the mop used must have a red handle. The water in the bucket used to mop the front of the facility must be discarded into the toilet, and the water in the red bucket, as well as the mop heads, must be disposed of as hazardous waste. According to samples taken by U.S. Environmental Group in November 1996, the level of tetrachloroethylene in samples of groundwater taken from Monitoring Well Number 2, located just outside the back door of the Kendale Lakes facility, was 499 parts per billion, a very small amount but one which was significantly higher than the samples taken from other monitoring wells at the Kendale Lakes site. This indicates that there has been a discharge of tetrachloroethylene in the vicinity of the back door of the facility, but the contamination in this area is in the form of pockets of pure tetrachloroethylene in the soil under the asphalt in the back of the facility. This is not consistent with the discharge of tetrachloroethylene that is dissolved in water. From 1994, when it began working at the Kendale Lakes facility, until the present, U.S. Environmental Group has found no indication of additional or increased contamination from tetrachloroethylene at the Kendale Lakes facility. On April 1, 1996, Dryclean USA applied to the Department for a determination that its Kendale Lakes facility was eligible to participate in the Drycleaning Solvent Cleanup Program. As part of its review process, the Department requested that DERM provide answers to certain questions relating to the Kendale Lakes facility. One of the questions was whether DERM was aware of any "willful" discharge of contaminated materials at the Kendale Lakes site; DERM answered "Unknown." Also in response to the Department's inquiries, DERM provided the Department with materials that included the inspection reports submitted by Mr. Simmons and Ms. Wright in late April and early May 1995 and the laboratory analysis of the mop water sample taken by Ms. Wright on May 11, 1995. The Department relied on the information received from DERM in reviewing the application. In a letter dated August 2, 1996, the Department notified Dryclean USA that its application for the Kendale Lakes facility was denied because it had determined that Dryclean USA had willfully discharged drycleaning solvents "onto the soils or into the waters of the State." The sole basis for this conclusion was the information in Mr. Simmons' and Ms. Wright's reports that Ms. Resconi and Mr. Lundy stated during the inspections on May 2 and May 11, respectively, that the water in the mop bucket found beside the back door of the facility was routinely thrown out of the back door and on the laboratory results showing that the sample of water taken from the mop bucket on May 11, 1995, contained approximately 122,000 parts per billion of tetrachloroethylene. The parties have stipulated that, except for the issue of whether there has been a willful discharge of drycleaning solvent at Dryclean USA's Kendale Lakes facility subsequent to November 1, 1980, the application at issue in this proceeding satisfies all of the statutory criteria to establish Dryclean USA's eligibility to participate in the Drycleaning Solvent Cleanup Program for that facility. The evidence presented by the Department is not sufficient to support a finding that there were willful discharges of drycleaning solvent at the Kendale Lakes facility subsequent to November 19, 1980. The evidence does not establish that spills of tetrachloroethylene and substances contaminated with tetrachloroethylene were routinely cleaned up with a mop and the mop water discharged out the back door of the Kendale Lakes facility. Dryclean USA's employees received extensive training in the proper disposal of hazardous waste and the proper method for handing spills of tetrachloroethylene and substances contaminated with tetrachloroethylene, and its managers were given additional training that included information on the legal and environmental aspects of tetrachloroethylene contamination. There was no plausible reason suggested by the evidence for Ms. Resconi to flout the policies and procedures established by her employer. Furthermore, the evidence presented by the Department is simply too tenuous to establish, as the Department proposes, that Ms. Resconi admitted to Mr. Simmons that spills of tetrachloroethylene and substances contaminated with tetrachloroethylene were routinely cleaned up with a mop and the mop water discharged out the back door of the Kendale Lakes facility.4 At most, the evidence establishes that water used to mop the floor of the Kendale Lakes facility was most likely discharged out the back door until May 2, 1995, when Mr. Rodriguez directed Ms. Resconi to dispose of all mop water at the facility in the hazardous waste containers, and that, on May 11, 1995, the water in the mop bucket contained a significant amount of tetrachloroethylene. There is no evidence that Dryclean USA or its employees knew that the water in the mop bucket on May 11, 1995, contained tetrachloroethylene or that the water in the mop bucket on May 11, 1995, was discharged out the back door of the facility or that any mop water containing tetrachloroethylene was discharged out the back door of the facility. In fact, the uncontroverted evidence is that there has been no increase in the level of tetrachloroethylene contamination at the Kendale Lakes facility since at least 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a Final Order granting the Drycleaning Solvent Cleanup Program Application submitted by Dryclean USA of Florida, Inc., for its facility located at 14099 Southwest 88th Street, Miami, Florida. DONE AND ENTERED this 2nd day of January, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 2nd day of January, 1998.
