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.
Findings Of Fact On June 17, 1994, Petitioner, City of Stuart (City), filed an application with the Department of Environmental Regulation, predecessor to the Respondent, Department of Environmental Protection (Department), for a permit to maintenance dredge Krueger Creek between the East Ocean Boulevard bridge and Tenth Street. The City proposed to suction dredge 7,500 cubic yards of sediment or spoil material to be placed on nearby retention sites for dewatering. The retention sites were vacant lots in a residential neighborhood. Some 2,500 cubic yards were to remain on the dewatering sites, and the remainder to be taken elsewhere. On June 20, 1994, the Department sent a completeness letter to the City, requesting additional information. On October 4, 1994, the Department received and approved a complete sediment characterization plan. By memorandum dated January 27, 1995, Ligia Mora-Applegate, an employee of the Department, sent out interim soil cleanup goals which were to be used by waste program administrators in determining final cleanup goals. The memorandum listed chemicals and the appropriate health-based goal for each chemical. For arsenic, the cleanup goal for an aggregate residential setting was .711 mg/kg. These goals had been developed by Dr. Stephen Roberts, a toxicologist employed by the University of Florida, under contract with the Department. On February 2, 1995, the Department received additional information from the City, including sediment analysis results, responses to hydrographic questions, a description of operational methods, and revised spoil retention locations. The Department reviewed the analyses submitted by the City. By memorandum dated February 27, 1995, Paul Wierzbicki, a Waste Cleanup Supervisor of the Department, advised Bruce Jerner, the Department employee who was reviewing the City's permit application, that Based on the analyses submitted it does not appear that the sediments will meet the guidance concentration of 0.7mg/kg as the cleanup criteria for soils. An alternative management plan should be proposed for the sediments. On February 28, 1995, the Department advised the City that arsenic concentrations did not meet the Department's guidance criteria for metals at the proposed spoil disposal sites. The Department recommended alternatives for disposal of the spoil material or the performance of a site specific risk assessment for the spoil sites. By letter dated March 14, 1995, Joseph Capra, the applicant's Project Engineer, advised the Department that the City disagreed with the Department's position that the arsenic levels exceeded the state standards based on Rule 17- 775, Florida Administrative Code which allows a maximum concentration of 10mg/kg of arsenic for the cleanup of petroleum contaminated soil at a soil thermal treatment facility. Mr. Capra asked the Department to reconsider its position and consider the application complete. Staff from the Department's waste cleanup section reviewed Mr. Capra's letter and forwarded the following response to Mr. Jerner by memorandum dated March 29, 1995: The allowable maximum concentration of 10mg/kg for Arsenic referred to in the letter applies to petroleum contaminated soils and since this has not been identified as a petroleum contamination site would not necessarily be appropriate in this situation. Site specific risk assessments have always been an alternative when maximum contaminate levels are not otherwise specified. This level for Arsenic may have been used in the past for non-petroleum contaminated sites in lieu of a risk assessment since it is some- what risk based, is established in rule for specific sites, and based on the lack of any other updated risk information; however, the Department has obtained updated risk inform- ation for arsenic which is currently being incorporated into 62-770, F.A.C., the Petr- oleum Cleanup Rule first, with a 62-775 F.A.C., update to follow. The difference in the exposure to aquatic organisms through sediments and direct human exposure by disposal of the dredged material on land has been explained to Mr. Capra along with some of the alternatives, to disposal in a residential area which may allow direct exposure, which may be accept- able to the Department based on further evaluation. The goal is not to jeopardize funding for the project but to provide reasonable assurance the disposal of the dredged material will not present a potential for harm to human health or the environment based on the latest technological information. Recommend Mr. Capra continue evaluating some of the disposal alternatives discussed, assuming Arsenic is the only contaminant of concern, such as: Evaluating background conditions at the original site or an alternate site. Using the material, within acceptable levels (<0.7mg/kg As), at the original site with disposal of the remainder at a lined landfill. Using material, with acceptable levels (<3.1 mg/kg As), at an industrial site with disposal of the remainder at a lined landfill. Using the material on the original site in such a manner as to prevent human exposure as long as ground water contamination is not an issue. Disposal at a lined landfill with approval from the operator. On April 5, 1995 the interim soil cleanup goals were revised and transmitted to the waste program administrators by memorandum from Ms. Mora- Applegate. The goal for soil cleanup with arsenic in a residential setting was 0.7 mg/kg (ppm). By letter dated April 24, 1995, the Department advised Mr. Capra: The data you submitted on February 2, 1995 was reviewed by the DEP Waste Cleanup Section using the 'Updated Interim Soil Cleanup Goals' which were faxed to you on April 7, 1995. These guidance concentrations are in fact the levels which will be used to evaluate the dredged material and its ultimate destination. The Department also advised that the spoil material could be placed at a residential site if the average background arsenic levels at the spoil site met or exceeded the average of the creek sediment samples. The City declined to provide additional information concerning the application. On August 15, 1995, the Department issued a Notice of Permit Denial denying the application for the following reasons: Pursuant to Section 403.918(2), F.S., a permit may not be issued under Sections 403.91-403.929 unless the applicant provides the Department with reasonable assurance that the project is not contrary to the public interest. In determining whether or not the project is contrary to the public interest, the Department shall consider and balance the seven (7) criteria listed in Section 403.918(2)(a), F.S. This project is contrary to the public interest pursuant to Section 403.918(23)(a), F.S. because the project will: adversely affect the public health, safety, or welfare or the property of others; Specifically, the proposed disposal of dredged material with arsenic levels of greater than 0.7 mg/kg on two residential lots presents a potential for human harm based on the Departments (sic) health-based levels. The applicant has failed to demonstrate that site specific backgrounds are greater than or equal to the levels of arsenic in the dredged materials. The Department received a letter of objection on April 21, 1995 from an adjacent property owner requesting denial of the permit unless additional sediment testing is done and a suitable method of disposal is proposed. Therefore, the applicant has not provided reasonable assurance that the project to maintenance dredge is not contrary to or clearly in the public interest pursuant to Section 403.918(2), Florida Statutes. In drafting the notice of denial, Mr. Jerner relied on Ms. Mora-Applegate's memoranda dated January 27 and April 5, 1995, the memorandum from Mr. Wierzbicki dated February 27, 1995, and the memorandum from the waste cleanup section dated March 29, 1995. By memorandum dated September 29, 1995, John M. Ruddell, Director of the Division of Waste Management, sent the District Directors and Waste Program Administrators a list of the soil cleanup goals for Florida. The residential health-based cleanup goal for residential sites for arsenic was 0.7 mg/kg (ppm). In October, 1995, the Department took samples of the creek sediment. Based on the sampling by the City and by the Department, the average arsenic concentration was 1.8 ppm. On January 19, 1996, Mr. Ruddell sent the District Directors and Waste Program Administrators a memorandum concerning the use of the soil cleanup goals set out in the September 29, 1995 memorandum. Mr. Ruddell stated: The Soil Cleanup Goals are intended to be used only as 'goals' for cleanup decisions in corrective actions and should not be used by the agency as rule, standards or to deny or approve permits. The FDEP has found that most business/site owners do not normally have the money or the expertise to establish Site-specific Rehabilitation Levels (SRLs) as allowed by our cleanup Consent Order condi- tions. The soil cleanup goals are intended to be used for site screening purposes, for source removal evaluations, and as guidance during evaluation of remediation alternatives and design considerations for development of Remedial Action Plan (RAP) for a site. The soil cleanup goals can and should be used for cleanup decisions if the default assumptions fit the site-specific situation. * * * The evaluation process should take into consideration the following criteria: the site-specific background levels, the Method Detection Limits (MDLs), the soil cleanup goals, and the site contaminate levels. The site contaminant levels (criterion 4) for each Chemical of Concern (COC) would be compared to the highest value of the first three criteria. If the site contaminant levels are below the highest value, then no remediation is required for that contaminant. If the site contaminant levels are higher than the highest value, then remediation alternatives should be evaluated taking into consideration the specific nature of the site and the responsible party's ability to effectively manage the risk of a particular site contaminant level. FDEP may consider site-specific risk management alternatives that may further modify the guidance levels for the contaminant. These health-based soil goals are evaluated based on the nature and intended use of the site (e.g., residential or industrial) and usually only apply to the upper two feet of soil. If the contaminated soil can be permanently covered with more than two feet of clean soil or otherwise have the exposure pathways restricted, the site may not need further remediation if the contaminated soil is not a source of ground- water contamination. * * * The soil values may be used for other purposes (other media) if indeed the particular application fits the situation (e.g., sediments that upon dredging will be used as soil). Again, an analysis of the specific situation must be performed (i.e., ascertain land use, exposure duration, leachability concerns, background consideration, etc.). The January 29 memorandum also advised that the soil cleanup goal for arsenic on residential sites was changed to 0.8 mg/kg. This is not a significant change from the goal set out in Ms. Mora-Applegate's January 27, 1995 memorandum. The health-based soil cleanup goals for arsenic have not been adopted as rules, and the Department does not presently intend to adopt them by rule. The health-based goals for arsenic are used to define appropriate concentrations for arsenic regarding protecting public health. The levels are default numbers which an applicant may chose to accept by default. Alternatively, the applicant may elect to provide additional information in the form of a site-specific evaluation or of management strategies that would satisfy the Department. A site specific evaluation could result in a change from the default number to a greater or lesser number. Unless the applicant provides site-specific information, the Department will apply the health-based goals for arsenic.
The Issue The issue in this case is whether the Petitioner has the actual experience required for certification as a Class B domestic wastewater treatment plant operator.
Findings Of Fact By application filed September 16, 1991, James H. Redden applied for certification as a Class B domestic wastewater treatment plant operator. At the time of the application, Mr. Redden was employed as a laboratory technician at a Class B Collier County regional wastewater treatment facility. From August 15, 1978, to July 31, 1989, Mr. Redden was employed at the Colgate-Palmolive Company facility at Jeffersonville, Indiana. The Colgate-Palmolive treatment facility is an Indiana Class D industrial wastewater treatment plant. Mr. Redden is certified by the State of Indiana as a Class D industrial wastewater treatment plant operator. During his employment at the Jeffersonville facility, Mr. Redden held positions as an associate chemist, senior chemist/plant microbiologist, and wastewater treatment plant supervisor. His duties included daily operations and supervision of personnel, scheduling and performance of maintenance activities, budgeting, ordering, materials balance, sludge management, laboratory analysis, quality assurance and quality control programs, and compliance with various state and federal reporting requirements. Mr. Redden has no experience either in the operation of a drinking water or domestic wastewater treatment plant, or at a DER-permitted industrial wastewater treatment plant.
Recommendation Based on the foregoing, it is hereby: RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the application of James H. Redden for certification as a Class B wastewater treatment plant operator. DONE and RECOMMENDED this 9th day of April, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1992. APPENDIX The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner: The Petitioner did not file a proposed recommended order. Respondent: The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2-4. Rejected, unnecessary. COPIES FURNISHED: Carol Browner, Secretary Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 James H. Redden 1362 Chesapeake, Avenue Naples, Florida 33962 Francine M. Ffolkes, Esq. Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32399
The Issue Whether Okaloosa County has provided reasonable assurances that its proposed sewage treatment plant and an associated reclaimed water reuse system will not cause pollution significantly degrading the waters of the unnamed stream on the project site and/or the Santa Rosa Sound and that therefore the County's application for a permit to construct such facilities should be granted on the basis of assurances of compliance with applicable rule and statutory criteria.
Findings Of Fact On October 16, 1987, Respondent, Okaloosa County, submitted an application to Respondent, Department of Environmental Regulation, to construct a wastewater treatment plant and related reclaimed water reuse facilities on a site located in southwestern Okaloosa County. The Petitioner is an individual citizen residing in Okaloosa County, Florida. He is the owner of real property which adjoins the northern boundary of the proposed project site. Mr. Ward has used this property as his principal residence for approximately 8 years. The proposed project site is located in southwest Okaloosa County contiguous to the western boundary of the County. The site comprises approximately 45 acres of land bounded on the west by Rosewood Drive and on the south by State Highway 98. The areas to the north and east are residential construction. The site is currently a densely wooded area vegetated with a variety of flora indigenous to the area. The site is essentially bisected by a small fresh water stream system which enters the site at the northwestern corner and runs diagonally to the southeastern corner where it flows through a series of culverts under State Highway 98. The stream system constitutes waters of the state subject to the Department's regulatory jurisdiction. In addition, there is an isolated wetland area of variable size in the northwestern section of the project site. The wetland area is not subject to the Department's regulatory authority. The stream system mentioned above intersects with another larger stream approximately 1000 feet southeast of the project site. These combined streams then meander into a tidal basin which empties into the Santa Rosa Sound approximately 2500 feet south of the project site. The Santa Rosa Sound has been designated as Class II waters of the state. The unnamed stream system on site, as well as the larger stream that it joins south of the site, are designated as Class III waters of the State. Southern Okaloosa County occupies a region of moderate elevation (0-70 feet above sea level) extending along a strip 10 or 15 miles wide along the coast of the Gulf of Mexico. Soils in this area are predominately fine sands low in organic matter. When dry, most of the soils have rapid internal drainage characteristics. The Plant The proposed plant is intended to treat sewage generated by the County's Western subregional service area. Initially, it will treat the flow currently handled by approximately 1400 septic tank systems and 9 package treatment plants within the area. The collection system which will transport the wastewater will be comprised of approximately 98,500 linear feet of 8 to 12 inch diameter gravity sewers. The transmission facilities to convey the raw wastewater from the new collection system will include the construction of approximately 29,400 linear feet of 4 to 10 inch diameter force main, 14 pump stations and approximately 32,100 linear feet of 8 to 12 inch diameter gravity interceptors. By the end of its first year of operation, the proposed facility is projected to receive and treat approximately 750,000 gallons per day ("GPD"). The projected flow through the wastewater facility in the year 2007 is 1,000,000 GPD. The proposed facility is best described as a 1,000,000 GPD capacity oxidation ditch treatment plant with nitrification and denitrification facilities. Reclaimed water reuse will be accomplished by a rapid infiltration basin system (RIB). Sludge from the system will be dewatered by a mechanical belt press system and disposed of at the County landfill. In order to address the question of potential odors which result from the operation of the plant, the facility was located as near the center of the property as possible in order to give as much buffer area as possible between the facility and the surrounding residential area. In addition, the design of the treatment facility incorporates a preprocess aeration tank equipped with an activated carbon airstripper system which is specifically designed to remove the odor from the wastewater influent. The treatment facility was also located near the center of the property in order to keep any noise resulting from the operation of the plant as far away from the surrounding area as possible. The plant utilizes noiseless gravity flow techniques and does not incorporate any blower or pump technology which usually cause a significant amount of noise in wastewater treatment plants. It is expected that the noise level from the operation of this facility would be less than the noise level generated from the traffic on State Highway 98 nearby. The plant is designed to minimize the adverse effects resulting from odors, noise, aerosol drift and lighting. The entire facility is enclosed by a fence. The facility is designed and does comply with the Florida Administrative Code requirements for protection from flooding. The proposed site is at a higher elevation than the established 100 year flood elevation for the area. The plant is designed so that every operational component of the plant has a backup system. The plant is equipped with an emergency generator capable of supplying sufficient power to operate the plant in the event of a power failure. The design of the plant complies with the standards provided by the Environmental Protection Agency for mechanical reliability. The information submitted for the Department's review in relation to the County's construction permit application addressed all the information required in Rule 17-6.037(10), Florida Administrative Code. The proposed plant facility is designed to leave a buffer zone approximately 200 feet wide between the reclaimed water reuse system and the stream system located on the project site. The construction plan prohibits any construction activities and/or clearing within the buffer area. This buffer area contains all the jurisdictional areas which are related to the stream system. The Treatment Process The waste treatment process proposed for this facility consists of secondary treatment, basic disinfection and pH control as defined in Rule 17- 6.060(1)(a)3, (c) and (d). The basic treatment process technology used in the proposed plant is described as a carousel activated sludge process. This process is a superior method of wastewater treatment because of its inherent stability, its reaction to shock and toxic loadings and the degree of process control that is available to the operator. The effluent limitations that the Department has established for this facility require that the effluent, after disinfection, contain not more than 20 mg/1 Biological Oxygen Demand ("BOD") and 20 mg/1 Total Suspended Solids ("TSS"). In addition, effluent standards require a basic level of disinfection which shall result in not more than 200 fecal coliform values per 100 ml of effluent sample. The chlorine residual in recovered water shall be maintained at 0.5 mg/1 minimum, after 15 minutes contact time at peak flow. The pH level in the effluent must be maintained in a range between 6.0 Q and 8.5. The County will be required to retain a Class B operator certified under the provisions of Chapter 17-16, Florida Administrative Code for day-to- day maintenance and operation of the treatment facilities. In addition, the facility must be staffed for a minimum of 16 hours per day, seven days a week by at least a Class C operator certified under the same provisions. A Class B operator shall be on call during all periods that the plant is unattended. At a minimum, the facility must produce reclaimed water which complies with water quality standards provided in Rule 17- 3.404, Florida Administrative Code, as it interacts with groundwater in the established zone of discharge ("ZOD"). The estimated ZOD is an area defined by the boundaries of the facility. These standards are essentially equal to drinking water standards provided in Rule 17-22, Florida Administrative Code. Because the soils under the site are rapid sands, the Department does not rely on them to significantly reduce total nitrogen in the reclaimed water through interaction with the soils and the groundwater table under the rapid infiltration basins. As a result, the proposed facility is limited to a Total Nitrogen limitation of 7 mg/1. This limitation is significantly less than the Department's rapid rate land application treatment standard for Total Nitrogen which is 12 mg/1 in the effluent, with no more than 10 mg/1 in the ground. The proposed plant is capable of producing the 7 mg/1 level under all flow conditions. The Rabid Infiltration Basins In conjunction with the County's application for a construction permit for the wastewater treatment plant itself, the County submitted an application for a reclaimed water reuse system construction permit for a system designed to handle the maximum plant discharge of 1,000,000 gallons of reclaimed water per day. The system is composed of a series of five rapid infiltration basins (RIB's) or percolation ponds designed to receive the daily reclaimed water loads from the operation of the plant and allow the water to percolate into the groundwater beneath the project site. The ponds are proposed to be used so that not all the ponds are working at the same time. On any given day, there will be 3 ponds receiving effluent from the plant and 2 ponds receiving no effluent. The proposed system of rapid infiltration basins is the best approach to effluent disposal on this particular site in consideration of a variety of site specific criteria. While the Department's adopted guidance standards for percolation pond location specifies that areas with average depths to the groundwater table of 10 feet or more are desirable, the guidance document provides that areas with lesser depths may be acceptable. Computer models using highest projected groundwater levels and highest reasonably projected mounding effects related to the effluent disposal system indicate that while at times there may be less than 3 feet of vertical separation between the top of the groundwater mounds beneath any one of the percolation ponds and the floor of those ponds, it is not expected that the groundwater level will intersect the bottoms of the infiltration basin and that an acceptable margin will be maintained. Initially, there was some dispute among Department staff concerning the suitability of the project site to handle the hydraulic loading rates proposed for the facility's pond system. After a significant amount of analysis of the relevant factors affecting site suitability in this regard and after Department staff managed to get the computer program which analyzes this data working properly, the relevant data indicates that the site is suitable for the proposed wastewater treatment plant as designed. Surface and Ground Water Impact The proposed facility is designed to meet applicable Department water quality standards necessary to prevent unacceptable degradation of the water quality in both the unnamed stream system on site and the Santa Rosa Sound. At the Department's request, the County had an independent study performed to assure that the operation of the facility would not have the effect of degrading nearby surface waters. This study, done by Larry Jacobs and Associates, supports the County consultant's projections that, under worst case conditions (highest observed groundwater levels plus maximum effluent loading), approximately 32,000 additional gallons per day of groundwater may enter the stream system as a result of operation of the RIB system. These studies were conducted to address the Department's concern about the potential for increased nitrogen loading into both the stream system and the Santa Rosa Sound as a result of increased groundwater contributions to the stream system on site. The effluent disposal study submitted by the County as part of its application concludes that, discounting any possible reduction of Total Nitrogen content of the effluent as it travels through the ground before its discharged into the stream system, the Total Nitrogen concentration of the groundwater predicted to reach the stream should be diluted at the lowest observed flow volumes in the system to a concentration of less than 1 mg/1 when it reaches the confluence of the two streams approximately 1,000 feet south of the project site. The projection is an improvement in surface water conditions when compared with currently observed average concentrations of Total Nitrogen in the stream system and Santa Rosa Sound of 1.24 mg/1. The performance of existing package plants in the area is generally poor. In fact, one treatment plant was ordered to close, forcing the relocation of residents in its service area. Another plant has continuing groundwater nitrate violations. In addition, the evidence shows that the performance of the septic tank systems in the area is not acceptable to the Environmental Protection Agency. The majority of the population is served by septic systems that fail under high groundwater conditions. The Director of the Okaloosa County Health Department has certified that 60% of the residents in the County West Service Area have failed septic tanks and that the remaining 40% have septic tanks in imminent danger of failing. Three of the eight existing treatment plants are under either Court or Consent orders to cease operations. The United States Environmental Protection Agency has found that the County West area has an immediate need to provide collection, transmission, and treatment facilities to protect surface and groundwaters and eliminate a public hazard. Existing concentration of Total Nitrogen in Santa Rosa Sound and the waterways on and adjacent to the site are attributed to discharge of inadequately treated wastewater from existing septic tanks, existing wastewater treatment plants and stormwater runoff in the area. It is unlikely that the nitrogen concentration in the Santa Rosa Sound will increase as a result of the operation of the proposed facility since whatever wastewater treated at the facility will be eliminated from discharging into the affected waterbodies from other, less efficient treatment facilities. The proposed facility design incorporates a total of seventeen monitoring wells or stations on and around the site. Two wells will monitor background groundwater quality upgradient from the percolation pond system. Twelve wells will monitor groundwater quality down gradient from the percolation pond system as it leaves the established zone of discharge. Two more stations will monitor surface water quality in the on-site system above and below the site. In addition, there is one intermediate monitoring well within the zone of discharge. Samples from these wells will be used to provide quarterly data reports to the Department indicating status of the following parameters in the ground water; water level, pH, BODs, Fecal Coliform, Total Nitrogen, Nitrate/Nitrate and Chloride. The surface water monitoring will provide annual data reports to the Department on the following parameters: Chemical/Physical - Total Nitrogen, Nitrate/Nitrate, Total Phosphorus, Dissolved Oxygen, Temperature and pH Biological Assessment - macroinvertebrate population per species, species diversity per square meter. These data reports will be submitted regularly to the Department in conjunction with operational monitoring data from the treatment plant to allow assessment of the impact of the plant operation on the environment and compliance with permit conditions. Clearly the County has provided reasonable assurances that the proposed plant and related facilities will not cause pollution significantly degrading the waters of the State.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order Granting the application of Okaloosa County to construct a wastewater treatment facility and related reclaimed water reuse system at the proposed site in southwestern Okaloosa County, Florida, and issuing permits in accordance with the conditions as set forth in the Department's Intent to Issue and draft permit dated August 1, 1988. DONE and ENTERED this 1st day of June, 1989, in Tallahassee, Florida. DIANNE CLEAVINGER 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 1st day of June, 1989. APPENDIX Petitioner's paragraph 1 of his Proposed Findings of Facts (titled Closing Statement) did not contain any factual statements. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Facts are subordinate. All the evidence contrary to the suitability of the Project site was explained by other more credible evidence. The facts contained in paragraphs 1-29 of Respondent's Proposed Findings of Facts are adopted in substance, in so far as material. COPIES FURNISHED: Ron Ward Qualified Representative For J. P. Ward 10 Rosewood Drive Mary Esther, Florida 32569 John R. Dowd, Esquire Representing Okaloosa County P. O. Box 404 Shalimar, Florida 32579 Steven K. Hall, Esquire Assistant General Counsel Representing the Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 (A Dale H. Twachtmann, Secretary State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue presented is whether Petitioner is eligible to participate in the Department's Drycleaning Solvent Cleanup Program.
Findings Of Fact Petitioner, Webbs Cleaners, has operated as a dry cleaning facility for approximately twenty-five years under the consecutive ownership of two brothers, Joseph Smith and Michael Smith. Joseph Smith owned the property and business from approximately 1975 through 1986, when he sold the business to Michael Smith. Michael Smith sold the business back to Joseph Smith in February 1999. At all times Joseph Smith retained ownership of the real property. Both owners operated Webbs Cleaners under the corporate structure of JCS, Incorporated. The corporation is a small business, never having earned one million dollars or more of gross revenue in any year. Webbs Cleaners is a full-service laundry and dry cleaning business, operating at 1601 Broadway, Riviera Beach, Florida. The dry cleaning business requires the use of a primary cleaning solvent called "perchloroethylene," commonly known as "perc." Webbs stores its supply of perc in the storage tanks of the dry cleaning machine. At the time of the Department's inspection, Webbs' dry cleaning machine had three separate storage tanks: a working tank, a distilling tank, and a fresh tank. Each tank had a volume capacity of approximately thirty to forty gallons. At the time in question, Phenix Supply Company was Webbs' supplier. Phenix delivered perc to Webbs by truck and usually filled the dry cleaning machine by pump. When a shipment arrived, a lid would be removed on top of the dry cleaning machine and a hose run from the supply truck to the dry cleaning machine inside Webbs Cleaners. Perc was then pumped from the truck directly into the dry cleaning machine's fresh storage tank. Because of the volumes usually delivered, perc was seldom delivered in five-gallon Dowper cans. When perc was delivered in Dowper cans, the cans were wheeled into the store on a hand truck and emptied into the storage tanks of the dry cleaning machine. Due to the exorbitant cost of perc, the Smith brothers always made sure every last drop of perc was emptied from the Dowper cans and placed into the dry cleaning machine. All Dowper cans were left "bone dry," stored behind the dry cleaning machine, and returned to Phenix on the next delivery. In the past, the Smith brothers have left empty Dowper cans outside the store on the days they were to be picked up by the supplier or to temporarily make extra room in the secondary containment area. Dry cleaning facilities generate various types of hazardous waste, which require proper disposal. Such wastes include: filters, filtered lint, bottom still residue (sludge and fatty acids), separator wastewater, mop water and fluorescent light bulbs. Webbs contracted with MCF to dispose of its hazardous wastes generated from the dry cleaning process. The hazardous wastes were placed in fifteen-gallon black drums supplied by MCF. Pursuant to new regulations, Michael Smith installed a secondary containment system under and completely around his dry cleaning machine in August 1996. Secondary containment has been in place around Webbs' dry cleaning machine since that time. On November 6, 1997, at approximately 7:00 a.m., Michael Smith placed two empty Dowper cans outside behind the dry cleaning facility so they could be picked up by Phenix. He also placed a five-gallon clear plastic container partially full of soap outside with the two Dowper cans. At approximately 8:30 a.m. that day, Leslie Smith from the Department and Susan Gash from Palm Beach County appeared unannounced at Webbs to conduct an inspection. They noticed the secondary containment around the dry cleaning machine. Facility inspections conducted by Leslie Smith are routine in nature, but extensive. Due to the difficulty in remembering all the details investigated at each facility, Leslie Smith uses a simple checklist system. Called an Inspection Exit Summary, the checklist quantifies deficiencies needing correction. The entire facility inspection report is condensed to a basic evaluation process whereby Leslie Smith simply adds all items marked with an "x," and the total number indicates the number of corrective responses which should be received from the owner/operator of the dry cleaning facility by a specified date. Information is then exchanged with the owner/operator for each item marked with an "x." Leslie Smith's routine is always the same. During a typical inspection she first asks for the facility operator, then notes what type of equipment is in use, requests to have any containers opened, takes photographs, and requests copies of business records. The first photograph is always of the dry cleaning unit, confirming if there is secondary containment around the unit and the type of unit in use. When she sees a closed container outside of the secondary containment area, she asks the facility operator to open it so she can see if it is empty. She "makes a big deal" out of determining whether containers have contents in them. Susan Gash was an environmental specialist with Palm Beach County. At the time of the Webbs inspection, Gash performed inspections for the County's wellfield protection code. She attended the inspection with Leslie Smith because she was being trained on State-related compliance issues. Because Gash was present, Leslie Smith made her own inspection more rigorous than usual. During the inspection, Leslie Smith and Susan Gash questioned Michael Smith about the contents of one black fifteen-gallon drum and about the three containers behind the facility. Joseph Smith acquired the black drum, located in the rear of the building, in approximately 1976. When purchased, it contained dry cleaning soap, which is not a hazardous substance. Since it was emptied, the drum has been used on-site for storing sandbags. Webbs is located in an area prone to flooding during heavy rain, and the sandbags are used to help protect the front and rear entrances of the facility. The five-gallon soap container and two Dowper cans located outside behind the facility were on the ground in a small area between the wall of the next building and a concrete wall between three and three and one-half feet high. The soap container made of clear, white plastic visibly contained liquid. Since soap is not a hazardous solvent, that container is not at issue in this proceeding. The two Dowper cans at issue are gray, five-gallon cans. On the morning of the inspection, these two empty Dowper cans and the five-gallon soap container had been located within the secondary containment area inside the facility. Because he needed more room, Michael Smith placed the two Dowper cans and the soap container outside between the two walls. He would never have placed the Dowper cans outside if they still contained any perc because perc is hazardous and must be stored within secondary containment and because perc is very expensive and anything of value placed outside his premises in Riviera Beach would be stolen. For whatever reasons, Leslie Smith chose not to follow her normal routine during the Webbs inspection. Although she always made a "big deal" out of determining whether containers had contents and had the facility operators open them to verify their contents or determine that they were empty, she did not request that any containers at Webbs be opened for inspection. At the final hearing, she testified that she had no authority to open containers to determine contents. Leslie Smith initially testified that she tried to pick up the Dowper cans but could not lift them because full Dowper cans weigh forty to fifty pounds. She later testified that she could not recall whether she tried to pick them up, shake them, or kick them because she has no recollection after three years. Her notes reflect that the cans were full but do not indicate how she knew that or why she assumed that. On the other hand, Susan Gash testified that even after three years she has a specific memory of taking her left foot, placing it at the top edge of a Dowper can, and pushing it to determine if the can were empty by rocking it back and forth and listening for splashing. She recalls hearing splashing and that Leslie Smith walked around her, bent over, and picked up the can to determine if it were empty. Leslie Smith's testimony conflicts with portions of her own testimony and that of Susan Gash. It is unlikely that Susan Gash rocked one of the Dowper cans back and forth since the Department's own photograph reflects the three cans snuggled tightly into a small area between the wall of the next building and a concrete wall which the uncontroverted testimony describes as three to three and one-half feet high. Further, even if credibility is afforded to their testimony, only one can was discussed, and two Dowper cans are at issue in this proceeding. When asked by Leslie Smith and Gash about the cans, Michael Smith told them the Dowper cans were "bone dry." He did not see Leslie Smith or Susan Gash lift, push, or kick the cans. Gash told him to put the cans inside the facility, and he did so while the inspectors were still at the facility. He had no difficulty lifting or carrying the empty Dowper cans. Leslie Smith believes that containers of perc not within secondary containment have the largest potential for harm to the environment that she could encounter at a dry cleaning facility. Yet, she did not react to the situation with any immediate concern. She did not direct Michael Smith to place the outside cans inside the secondary containment area. She did not contact Michael Smith or re-visit the site at any later time. She did not direct the Department's hazardous waste employees to the site until three months later. It can only be concluded that Leslie Smith did not believe the Dowper cans contained any perc. Accordingly, the two Dowper cans were empty on the day in question and did not need to be stored within secondary containment. Another alleged violation during the November 1997 visit involves a waste drum, which Leslie Smith noted was only partially within the secondary containment area. However, she has no recollection, and her notes do not reflect, whether the drum contained any waste. Webbs is not guilty of gross negligence regarding the waste drum. The last alleged violation during the inspection refers to whether a container of picrin, which is used for spotting, was outside the secondary containment area and contained solvents equal to more than one quart in volume. Leslie Smith has no recollection, and her notes do not reflect, the volume of the contents in the container. Webbs is not guilty of gross negligence regarding the container of picrin. The Department's inspection exit summary potentially contains information a facility operator needs in order to know what corrective action, if any, is required. Leslie Smith concedes that without a copy of the inspection exit summary, there would be a great deal of confusion as to what a dry cleaning facility would be required to do to respond appropriately to her investigation. The Department mailed Webbs' copy of the summary to the wrong address. Michael Smith did not provide any documentation to the Department after Leslie Smith's inspection because it was his understanding that the Department would return after thirty days to re-inspect his premises to verify that any corrective action had been taken. Leslie Smith later reported to the Department's Tallahassee office that Michael Smith had failed to provide a "characterization" or hazardous waste determination report that she had instructed him to obtain from a professional testing source as to the contents of the empty Dowper cans. After learning from Michael in early 1998 that the Department had performed an inspection at Webbs, Joseph Smith went to the Department's local office and obtained a copy of the inspection report. He then took photographs showing that all corrective actions had been taken and delivered them to the Department. Thereafter, he received no contact from the Department and assumed that nothing further was needed. In early 1998, Webbs replaced its dry cleaning machine with a new machine and a new secondary containment system. The machine and secondary containment system were purchased and installed simultaneously as a single unit and are still in use. In February 1998, Susan Gash performed a re-inspection of Webbs for Palm Beach County. She found the facility to be in compliance with all requirements. She found no containers behind the building. In approximately December 1998, Joseph Smith hired a civil engineer to determine if Webbs needed to participate in the Department's Drycleaning Solvent Cleanup Program. Soil borings were taken, and testing revealed that the site had some dry cleaning solvent contamination. An application for eligibility in the program was completed and jointly filed by both Joseph Smith, the property owner, and Michael Smith, the owner of the dry cleaning business at that time. The application was filed under the name of Webbs Cleaners. Webbs Cleaners has never been fined or had any administrative action taken against it. Webbs Cleaners has never willfully discharged solvents or willfully concealed any discharge. Webbs Cleaners has never been found to have violated any local, State, or federal law regulating the operation of a dry cleaning facility. From August 1996 through the time of the final hearing in this cause, Webbs has continuously used secondary containment systems under and around the dry cleaning machine and where solvents and waste materials containing solvents have been used or stored.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered determining that Webbs Cleaners is eligible to participate in the Department's Drycleaning Solvent Cleanup Program. DONE AND ENTERED this 25th day of August, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 25th day of August, 2000. COPIES FURNISHED: Inguana Varslavane-Callahan, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Kevin S. Hennessy, Esquire Lewis, Longman & Walker, P.A. 1700 Palm Beach Lakes Boulevard Suite 1000 West Palm Beach, Florida 33401-2006 Kathy C. Carter, Agency Clerk Office of General Counsel 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether Respondent's permit for disposal of septic tank sludge should be revoked, as set forth in letter of the Volusia County Health Department, dated February 15, 1979. This case was originally set for hearing on June 21, 1979, pursuant to Notice of Hearing, dated March 30, 1979. On June 20, Respondent Philip G. Koan orally advised the Hearing Officer that he wished to withdraw his request for hearing. He was advised by the Hearing Officer to submit a written withdrawal of the petition and that the scheduled hearing would be cancelled pending receipt. On June 21, Respondent orally advised the Hearing Officer that he had changed his mind after reflection and now desired that the hearing be rescheduled. Since no written withdrawal of the petition or voluntary dismissal had been filed, the case was renoticed for hearing to be held on September 10, 1979. At the commencement of the hearing on that date, Petitioner moved to dismiss the case for lack of jurisdiction claiming that the petition had been dismissed by Respondent by his oral communication to the Hearing Officer on June The motion was denied because the proceeding had never been formally terminated by action of the Respondent or the Hearing Officer.
Findings Of Fact On October 5, 1978, Respondent Koan Septic Tank, Inc., Deland, Florida, submitted an application to the Volusia County Health Department for a permit to operate a septic tank cleaning service and temporary privy service. The application reflected the equipment which the applicant intended to use for the operation. Petitioner's application form contained a block entitled "Method and Place of Disposal." The applicant inserted the words "Smith Farm and Greens Dairy Grove" on the form. On November 7, 1978, Larry Herman, a sanitation aide for the County Health Department, performed an inspection of Respondent's facilities and equipment, and prepared a report on a mimeographed form headed "Septic Tanks and Privy Pump Truck Inspection." This form had a block entitled "Method and Place of Disposal." The inspector entered the words "Smith Farm - Greens Diary (sic), dumped & tilled." Although Herman testified that he had made no special inquiry at the time of his inspection as to the intended method of sludge disposal, he was aware that Respondent's customary method at its Smith Farm location was to "bury" the sludge into the ground by spreading and mechanical tilling. However, he recalled having conversations with Respondent's owner, Philip G. Koan, concerning disposal of sludge by the action of worms, prior to and after his inspection. On the other hand, both Koan and another officer of the corporation testified that Koan advised Herman at the time of the latter's inspection that the worm method of disposal would be used at the Greens Dairy location and that he expressed no objections. It is found that Herman was advised of Respondent's proposed method of disposal at the time of the inspection; however, he was not authorized to approve or issue permits. (Testimony of Herman, Gnann, Koan, Page, Petitioner's Exhibits 1-2) On November 7, 1978, the Volusia County Health Department issued a permit authorizing Respondent to operate its establishment. The permit reflected an expiration date of September 30, 1979, and provided that violation of any applicable health law would revoke the permit. No conditions were attached to the permit, nor did it indicate any required method of sludge disposal. (Testimony of Page, Petitioner's Exhibit 3) Respondent has been in the business of manufacturing, installing and servicing septic tanks for approximately eighteen years. In addition, Koan conducted a business involving the sale of worms. In the fall of 1978, he had approximately 12,000 pounds worms on hand. He had conducted various experiments at his business premises utilizing worms to dispose of manure and septic tank sludge. He found that the worms would eat the sludge material and excrete the same, resulting in worm "castings" or material which resembles potting soil with no residual odor. He had also placed worms in clogged septic tank drain fields and found that they later became unclogged, thus resulting in his conclusion that worms had disposed of the septic tank material in the tank. He further discovered that odors associated with septic tank sludge dissipated in a very short time when worms were present in the material, and observed that one pound of worms would "digest" or dispose of one pound of sludge in approximately twenty-four hours. Therefore, prior to receiving the county permit, he deposited the 12,000 pounds of worms in a trench located at the Greens Dairy location. After receiving the permit, Respondent dumped septic tank sludge in the trench approximately three times a week. The trench was about four feet wide, one foot deep, and 200 feet long. A screen was placed over the top of the ditch. However, it did not prevent access to files. (Testimony of Koan, Warnock, Petitioner's Exhibits 8-9) On December 12, 978, the owner of a skating rink adjacent to Respondent's Green Dairy property complained to the County Health Department concerning the presence of odors and flies at her establishment which had been the subject of customer complaints. A county sanitarian inspected the sludge operation on that date and found that there was some odor and a few flies in the immediate vicinity, but no fly larvae was observed. The ditch was full of sludge at the time. Some spillage has occurred in the driveway on the property. The location is approximately two to three hundred feet from the rear of the skating rink. A further inspection by the county Director of the Environmental Health Section was made on December 27. As a result, he wrote Respondent on December 28 that, although the inspection showed that flies and odors were minimal at the time, he could foresee an escalation of the same during certain periods, together with increased complaints from local businessmen. The letter further stated that the use of septic tank sludge for enriching a "worm bed" was in violation of Chapter 10D6.29, Florida Administrative Code, and Chapter 386 Florida Statutes, and was a sanitary nuisance which must be abated. A further complaint in January, 1979, followed by another county inspection revealed essentially the same conditions that existed at the time of the prior inspection, and prompted a second letter from the Environmental Health Section director to Respondent on January 31, 1979, wherein he was advised to cease dumping septic tank sludge at the Greens Dairy location within fourteen days and commence using the county sanitary landfill for such purposes. As a result of this letter, Respondent stopped dumping at the location on or about February 2. On February 15, another county letter was sent to Respondent which advised that its permit for disposal of septic tank sludge was revoked, subject to a request for hearing, as being in violation of Chapter 10D6.29(1) and (3)(c), Florida Administrative Code, and Chapter 386.041(1)(e), Florida Statutes. The stated grounds for proposed revocation were that Respondent was employing an unsatisfactory and unacceptable method and place for disposal of waste, and was maintaining a condition capable of breeding flies, mosquitoes and other insects capable of transmitting diseases. The letter further stated that Respondent was not tilling the sludge as had been stated on the permit application and that the potential for breeding flies was evident due to concentration and lack of covering with soil. (Testimony of Tyndall, Van Ulzer, Page, Camp, Koan, Petitioner's Exhibits 4-7) During the approximate three-month period from November 1978 through January 1979 when Respondent was dumping sludge, a strong and distinctive odor and an unusually large number of flies were experienced on the skating rink premises nearby. After the dumping stopped in early February, both problems disappeared. However, other odors incident to the presence of hogs and chickens at farms in the area also produced a noxious odor in and around the skating rink. The odor produced by the dumping of sludge dissipates rapidly after dumping. The absence of fly larvae in and around the ditch shows that flies were not breeding there during the period of dumping operations, but does not rule out the potential for such breeding in the future. (Testimony of Munshower, Tyndall, Coffin, Branton, Tontone, Warnock, Hunt, Stipulation) The Volusia County Health Department issues permits involving the disposal of sludge only when a treatment method of burial, incineration, or sanitary landfill is used in the operation, as prescribed by Respondent's Rule 10D-6.29, Florida Administrative Code. However, long-standing policy permits disposal by mechanical tilling of the sludge into soil as a "modified" method of burial. This method cuts the sludge with a disc and harrow and mixes it into the soil to a depth of approximately four inches. It also produces a temporary odor when the sludge is first spread on the soil. The county has no policies concerning the use of worms to dispose of sludge and does not consider it to be an acceptable method of disposal. The County Health Department has not conducted any scientific tests to determine the presence of pathogens in soil which has been mechanically tilled with sludge. (Testimony of Page) When sludge is placed over a "worm bed" and has settled, the material begins moving as the worms eat the sludge. The residue of the digestive process is sold as a soil conditioner which meets State Department of Agriculture requirements and which contains plant nutrients. Earth worms multiply rapidly when feeding on sludge. Respondent had approximately 50,000 pounds of worms in its trench when it ceased operations in February 1979. This method of sludge disposal has not been accepted generally by health authorities as a recognized and acceptable procedure. (Testimony of Koan, Warnock, Hunt, Tontone, Nemeyer, supplemented by Respondent's Exhibit 1)
Recommendation That Respondent's Permit No. 18362 be permitted to remain in effect until its expiration date provided that it disposes of sludge and/or contents from septic tanks in an acceptable method, as provided in Rule 10D-6.29, F.A.C. DONE AND ENTERED this 26th day of September, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 904/488-9675 COPIES FURNISHED: Robert Eisenberg, Esquire Department of HRS District IV Counsel 5920 Arlington Expressway Post Office Box 2050 Jacksonville, Florida Craig James, Esquire Post Office Drawer DD Deland, Florida 32720 Department of HRS Attn: Eric J. Haugdahl 1317 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue is whether Petitioner is entitled to an operating permit for an existing domestic wastewater treatment facility operating in Naples.
Findings Of Fact On May 10, 1991, Respondent issued Petitioner a five- year permit to operate a 0.3 million gallon per day (GPD) domestic wastewater treatment plant known as the Rookery Bay facility in Naples. This permit, which is number DO11-187204, allowed Petitioner to operate an extended aeration plant, using chlorine for basic disinfection and disposing of the reclaimed water in two percolation ponds. The 1991 permit required Petitioner to allow Respondent access to the facility for inspections at reasonable times, notify Respondent of any violations of any permit conditions, maintain total chlorine residual of at least 0.5 milligrams per liter (mg/L) of effluent sample after at least 15 minutes’ contact time at maximum daily flow, maintain annual average effluent quality values for carbonaceous biochemical oxygen demand (CBOD) and total suspended solids (TSS) of not more than 20 mg/L of effluent sample with maximum effluent quality concentrations of 60 mg/L in any single effluent sample, maintain a monthly average effluent quality value for fecal coliform of not more than 200 per 100 ml of effluent sample with a maximum effluent quality value of 800 per 100 ml in any single effluent sample, notify Respondent of any discharge from the percolation pond overflows, and monitor influent loading to the facility and apply for a permit modification if the monthly average influent flows approach or exceed the design capacity of 0.3 MGD or if the facility violates treatment standards. Respondent also issued Petitioner a five-year permit to operate a 0.15 GPD domestic wastewater treatment plant at the Rookery Bay facility. This permit, which is number DO11-167093, allowed Petitioner to operate a contact stabilization process plant. On December 29, 1995, Petitioner submitted a renewal application for permit number DO11-167093. Although the permit number references the smaller tank, the renewal application requests a permitted capacity of 0.3 MGD. By Notice of Permit Denial dated February 9, 1996, Respondent denied the permit application on the ground that Petitioner could not provide reasonable assurance that it would operate the facility in compliance with state standards based on a “continued and long standing pattern of noncompliance and violation of . . . rules and standards.” Petitioner’s operation of the Rookery Bay treatment plant has been poor. Respondent has brought an enforcement action against Petitioner, which signed a consent final judgment in January 1994. The consent final judgment required Respondent to pay $4500 in civil penalties. As it applied to the Rookery Bay facility, the consent final order required Petitioner to evaluate the facility to discover the causes of past violations and modify the facility to eliminate these violations. But Petitioner has not complied with material provisions of the consent final judgment. Petitioner’s operator has been held in contempt of court several times for violations at Rookery Bay and a nearby smaller treatment facility known as Port au Prince. Petitioner has several times refused Respondent’s representatives reasonable access to the Rookery Bay facility. At least twice, Petitioner has failed to advise Respondent of equipment failures that resulted in violations of treatment standards. On January 11, 1995, Petitioner cut off the power for several hours to a lift station pump serving a nearby a condominium complex. Predictably, the sewage backed up and overflowed into the street. Petitioner failed to restore the power timely or remove the overflowed sewage. On several occasions, raw or inadequately treated sewage has leaked from the tanks at the Rookery Bay facility. Petitioner has failed to eliminate this problem over the course of its five-year operating permit. On numerous occasions, Respondent’s representatives have detected violations of effluent quality. These violations have arisen inadequate detention time in the chlorine contact chamber. Consequently, the TSS and CBOD levels have repeatedly exceeded permitted standards. The parties dispute the adequacy of the capacity of the Rookery Bay facility. There is considerable evidence, including one statement in the application, that suggests that the facility’s capacity is seriously inadequate. Either the capacity of the Rookery Bay is, and has been, inadequate--in which case at least some of the violations are attributable to overcapacity operation--or, if the facility has had adequate capacity, the operational competence of Petitioner is below the minimum level necessary to provide reasonable assurance of proper operations at this facility in the future. Most likely, the Rookery Bay facility lacks adequate capacity, at least part of the year, and Petitioner lacks the minimum requisite competence to operate the facility in a responsible manner. The strongest evidence in the record suggests that the Rookery Bay facility serves, during peak season, 1500 mobile home connections and 400 apartment connections. These connections generate about 377,500 GPD of raw sewage. A slightly lower value is probable after consideration of the likely presence of recreational vehicles among the mobile home count. But this reduction, even without adjustment for dry-season infiltration and inflow, would not yield sufficient savings in raw sewage as to provide reasonable assurance that the Rookery Bay facility has adequate capacity to serve the present demand or adequate capacity to serve the demand projected over the five-year term of the permit that Petitioner seeks. Even if one were to credit Petitioner’s volume-to- capacity calculations, the results fail to constitute reasonable assurance of violation-free operation of the Rookery Bay facility. Petitioner's calculations leave little if any margin for error at present demand levels, and, given Petitioner’s singularly poor operating history at this facility, these calculations provide poor assurance of compliant operation of this troubled facility.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioner’s renewal application for a domestic wastewater treatment operating permit for the Rookery Bay facility. DONE AND ORDERED in Tallahassee, Florida, this 9th day of May, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1997. COPIES FURNISHED: Sanford M. Martin 2500 Airport Road, Suite 315 Naples, Florida 34112-4882 Thomas I. Mayton, Jr. Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether the Petitioner owes sales and/or use tax as set forth in the Respondent's Notice of Decision dated May 12, 2008, and, if so, the amount that is owed.
Findings Of Fact The following facts were included in the stipulation of facts included in the parties' Joint Prehearing Statement: Bests is a domestic corporation headquartered in Broward County, Florida. Bests is a cleaning and maintenance company. The company contracts with customers to clean non-residential buildings only. The majority of the customers are government agencies and state colleges. The company hires subcontractors for some of the services such as pressure cleaning, window cleaning, grounds maintenance and landscaping. The Department is the agency of state government authorized to administer the tax laws of the State of Florida. § 213.05, Fla. Stat. (2008).1 The Department is authorized to prescribe the records to be kept by all persons subject to taxes under Chapter 212, Florida Statutes. Such persons have a duty to keep and preserve their records, and the records shall be open to examination by the Department or its authorized agents at all reasonable hours, pursuant to Section 212.12(6), Florida Statutes. The Department is authorized to conduct audits of taxpayers and to request information to ascertain their tax liability, if any, pursuant to Section 213.34, Florida Statutes. On October 3, 2005, the Department initiated an audit of Bests to determine whether Bests was properly collecting and remitting sales and use tax to the Department. The audit period was from September 1, 2002, through August 31, 2005. The audit determined liability existed in four areas2: Exhibit A01 - cleaning contracts for which documentation supporting the claimed exempt nature of the transaction could not be produced; Exhibit B01 - paper products and hand soaps purchased by Bests in performance of the facility custodial service contract with Florida Atlantic University; Exhibit B02 - items purchased by Bests for general use in the operation of its business, such as office supplies, automobile and truck expenses, repair and maintenance to equipment, computer services, etc. Only the amount assessed in Exhibit B01 is at issue. On July 26, 2006, the Department sent Bests its Notice of Intent to Make Audit Changes ("NOI"), with schedules, showing that Bests owed to the Department additional sales and use tax in the amount of $195,540.35, penalty in the amount of $41,885.11, and interest through July 27, 2006, in the amount of $41,514.08, making a total assessment in the amount of $285,939.54. Additional documentation was provided by Bests, resulting in revisions to the NOI. On January 16, 2007, the second and final revised NOI was issued. The amount of sales and use tax due had been adjusted to $47,473.46 and interest in the amount of $12,536.88. The penalty amount was waived in its entirety. On January 25, 2007, the Department issued its Notice of Proposed Assessment. Bests timely filed a written protest of the Department's proposed assessment. On May 12, 2008, the Department issued the Notice of Decision ("NOD") in response to the protest by Bests, sustaining the assessment in its entirety. By check dated July 9, 2008, Bests remitted $12,500.00 to the Department to be applied to the assessment found in Exhibits A01 and B02. The following facts are based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding: On May 1, 2003, Florida Atlantic University issued a Request for Proposal ("RFP") for facility custodial services at its Boca Raton, Florida, campus. Section 5 of the General Conditions of the RFP, advised that it was "a public corporation of the State of Florida [that] does not pay Federal Excise or Sales taxes on direct purchases of services."3 Florida Atlantic University has been considered a tax-exempt entity for the purposes of this proceeding. Section 3.0.0 of the RFP described the scope of work covered by the RFP, and, in general, required that the contractor be "fully responsible for providing services called for in this RFP."4 The scope of work described for restrooms and locker rooms included cleaning, polishing, washing, dusting, mopping, and scrubbing, and, pertinent to this case, the contractor was specifically required to "[e]mpty waste receptacles and change liner," and "[r]estock dispensers: soap, paper towel, toilet tissue and sanitary napkins."5 Section 4.4.8 of the RFP specified the supplies that were to be furnished by the contractor: Services shall include all equipment, supplies and materials to include liquid hand soap of a bactericidal type, paper towels, toilet tissue, toilet seat covers, sanitary napkins, wax bags, plastic bags for waste paper baskets, all cleaners, waxes, deodorants and other cleaning materials to perform the contract services. . . . * * * Contractor shall be responsible for keeping soap, paper towel, sanitary napkin and toilet tissue dispensers adequately filled at all times. * * * SUPPLIES AND MATERIALS All product selection and usage must be approved by the Director. Minimally, the following products are used (no equivalents without the approval of the Director): Johnson Softcare Multi-fold Natural Scott Towels JRT/JRT Escort Tissue Merfin paper towel rolls . . .[6] Section 4.5.0 of the RFP specified the cleaning standards that must be met by the contractor. Pertinent to this proceeding, general cleaning standards for restrooms included the following requirements: d. Dispensers & Receptacles - All supply dispensers shall be filled. . . . Waste receptacles shall be emptied and supply dispensers shall be refilled. . . . All toilet stalls shall be furnished with toilet seat cover dispensers. The Contractor shall be responsible for maintaining them and making certain that they are properly stocked at all times.[7] Finally, Section 1 of the "Special Conditions" portion of the RFP provides: Florida Atlantic University's Physical Plant Department ("Department") requires the services of a Facilities Services Contractor to provide Facility Custodial Services at a firm square foot price for cleaning services in designated buildings on FAU's Boca Raton Campus. FAU is also requesting unit prices to enable adding additional areas to the contract, and per man-hour prices for adding additional staffing services to the contract as needed.[8] Section 9(d) of the "Special Conditions" portion of the RFP provides with respect to contract service costs: "This RFP seeks firm pricing for facilities management services on both existing and future buildings. The fixed fee will be broken down as indicated on the forms. Charges for additional services will be provided on the forms as unit prices."9 The Contract Services Costs form to be submitted with proposals is found in Section 5.3.1 of the RFP, and the instructions provide: "The below listed annual fixed costs are quoted for the provision of necessary management, supervision, labor, material, supplies, equipment, vehicles, and all related items to perform the work described in the Scope of Work and Specifications contained herein and as related to the initial areas of coverage. "10 Bests was awarded the contract for custodial services at the Boca Raton campus, and Florida Atlantic University entered in the Agreement for Services, with services to begin on August 9, 2003, and end on June 30, 2006. In the agreement, Bests agreed to provide custodial services in accordance with the provisions of the RFP, and it agreed to be "responsible to provide all material, labor, equipment and supplies necessary to provide custodial and cleaning services for designated buildings on Florida Atlantic University's Boca Raton Campus."11 The agreement also provided that the total amount payable under the agreement would not exceed $3,500,000.00, with the amount "determined in accordance with the Vendor's price proposal dated May 29, 2003, incorporated and attached herein as Attachment A, and based on estimated usage." Bests calculated the total annual cost to include on the Contract Service Costs form, first, by examining the buildings included in the RFP and calculating the annual cost per square foot of providing the cleaning and maintenance services specified in the RFP. Bests separately calculated the annual cost of the paper products and hand soap to be used to fill the restroom dispensers by examining demographic data about the users of the restroom facilities, as well as the hours of usage, and added it to the annual cost per square foot of providing the services specified in the RFP to arrive at its total annual costs. Bests purchases the paper supplies and soap used to fill the restroom dispensers from a supplier, who delivers the supplies directly to the storage room at the Florida Atlantic University Boca Raton campus used by Bests to store their cleaning materials and supplies. These paper products are used by Bests to refill the restroom dispensers, as required by the RFP. The Department set forth the facts and legal grounds on which it based it assessment of use tax for the paper products and soap used to fill the restroom dispensers in the Notice of Decision dated May 12, 2008, in which it concluded "that the taxpayer is the ultimate consumer [of the paper products and hand soap] and therefore liable for use tax on all taxable cleaning supplies."12 The Department based this conclusion on the following reasoning: "As shown, the laws governing sales and use tax makes [sic] the purchaser obligated to pay a use tax at the moment taxable goods and services are purchased for its own use. Take toilet tissue, paper towels, feminine napkins and hand soap for instance. These items are purchased by the taxpayer, removed from their container by the taxpayer, then unwrapped from the original packaging and placed in service by placing them in paper towel holders or toilet tissue holders located in the area being cleaned (e.g. restroom) by the taxpayer. At no time during the term of the agreement does the taxpayer's customer know the quantity of items used, nor does the taxpayer's customer personally handle these items. The taxpayer takes issue with these items being subject to use tax because the taxpayer does not personally dispose of these items. . . . [I]t is not the ultimate act resulting in the disposal of the items that triggers the tax. It is the taxpayer's use during the cleaning process that makes the taxpayer the ultimate consumer.[13] Summary The evidence establishes that the services Bests agreed to perform under the Agreement for Services with Florida Atlantic University included cleaning the restrooms in the buildings covered by the agreement, refilling the restroom dispensers, and providing the paper products and soap to be used in refilling the restroom dispensers. The evidence establishes that, taken in the context of the RFP as a whole, the purchase of the paper products and soap supplies is incidental to the main purpose of Bests agreement with Florida Atlantic University, which is to provide custodial services. The Department's contention that the paper products and soap used to refill the restroom dispensers at the Florida Atlantic University Boca Raton campus are cleaning supplies taxable to Bests is rejected. The cleaning supplies taxable to Bests are such things as mops, brooms, sweepers, cleaning agents, chemical, solvents, and rags, that it uses and consumes in performing cleaning services for Florida Atlantic University, and Bests does not contest the tax assessment on such items. Bests did not use or consume the paper products and soap, or otherwise exercise the rights of ownership over these products, simply because its employees removed them from the room in which they were stored, removed them from their packaging, and placed them in the restroom dispensers. Bests never exercised any rights of ownership over the products at issue, and the Department's contention that the taxable event in this case occurred when "the items were delivered to Bests and Bests put those items into operation" is rejected.14 First, the evidence establishes that delivery of the paper products and soap was made to a storage room on the Florida Atlantic University Boca Raton campus and that Bests left in the storage room the paper products and soap remaining at the time the Florida Atlantic University contract was complete. Second, Bests did not consume or use the products simply by placing them in the restroom dispensers. Placing them in the dispensers was part of custodial service Bests provided under the agreement with Florida Atlantic University; the mere fact that Bests was required as part of its Agreement for Services with Florida Atlantic University to purchase the paper products and soap did not render Bests the user or consumer of the products. Rather, the evidence establishes that Florida Atlantic University provided the paper products and soap for the use of its students and staff, both for sanitation purposes and for the convenience and comfort of its students and staff. Florida Atlantic University, therefore, used the paper products and soap as part of the business of operating a university, and, were it not for its tax-exempt status, Florida Atlantic University would be responsible for paying Florida's sales and use tax on the paper products and soap. Finally, the Department's contention that Bests did not "sell" the paper products and soap to Florida Atlantic University because they were not separately priced in its proposal or separately listed in the invoices submitted to Florida Atlantic University is rejected. The RFP pursuant to which Bests submitted its proposal specifically required that the total cost of providing the cleaning services and supplies, including the paper products and soap used to fill the restroom dispensers, were to be included on the Contract Service Costs form, and the evidence establishes that Bests asked Florida Atlantic University if it could invoice the paper products and soap separately and was told that they could not.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue issue a final order withdrawing the sales and use tax assessment against Bests Maintenance and Janitorial Services, Inc., for the audit period extending from September 1, 2002, through August 31, 2005. DONE AND ENTERED this 3rd day of February, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 3rd day of February, 2009.
The Issue Whether Alachua County Environmental Protection Department discriminated against Tilak B. Shrestha based upon his race or national origin, in violation of Title VII of the Federal Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992, by releasing Mr. Shrestha from his temporary assignment through Temp Force with the Alachua County Environmental Protection Department and by not hiring Mr. Shrestha for the position of Senior Environmental Specialist within the Alachua County Environmental Protection Department.
Findings Of Fact The State of Florida funds the Petroleum Cleanup Program (Petroleum Program) which is focused on removing petroleum contaminants from various sites within the State of Florida. The Department of Environmental Protection (DEP) administers the Petroleum Program, also known as the Underground Storage Cleanup Program. In 12 counties, including Alachua, Florida contracts with the county to manage the Petroleum Program. The Alachua County Environmental Protection Department (Alachua DEP) manages the Petroleum Cleanup sites in Alachua County. Mr. Chris Bird has been the director of the Petroleum Program since 1993. He has worked with Alachua County since 1986. In the 1994-1995 fiscal year, the Florida Legislature was facing a deficit; therefore, the Legislature significantly reduced the funding for the Petroleum Program. As a result, DEP froze the Petroleum Program, and dropped several active sites. The lack of funding resulted in downsizing at both the county and state levels at the beginning of 1995. At the beginning of 1995, the Alachua DEP had three funded positions in the Petroleum Program. Mr. Alex Vieira occupied the position of full-time Professional Engineer. The Alachua DEP also had funding for an administrative position and a full-time Environmental Engineer/Geologist. The Environmental Engineer/Geologist position was vacant at the beginning of 1995. The Alachua DEP originally advertised for the position. However, when the State reduced funding for the Petroleum Program, the Alachua DEP decided not to fill the position with a permanent employee and ultimately froze this permanent position. In order for the Petroleum Program to continue at a minimum level of operation, the Alachua DEP hired temporary employees through Temp Force, a temporary employment agency. Temp Force served as an independent contractor for the Alachua DEP. Temp Force provided Mr. Tilak Shrestha and Mr. Mike Shuler to the Alachua DEP Petroleum Cleanup Program. Mr. Shuler began working at the Alachua DEP through Temp Force two months prior to Mr. Shrestha's Temp Force assignment to the Petroleum Program. At the time of the assignment through Temp Force, Shrestha was not credentialed as a Ph.D. Mr. Shrestha and Mr. Shuler were employees of Temp Force, received their paychecks from Temp Force and acquired no benefits from Alachua County. Mr. Shrestha worked as a Temp Force employee for six months at Alachua DEP and was assigned to various projects at the Alachua DEP. As supervisor for the Petroleum Program, Mr. Vieira assigned projects to both Mr. Shrestha and Mr. Shuler. Mr. Shrestha described his working conditions during his assignment through Temp Force with the Alachua DEP as "good, no complaints," and "good on average." In 1995, the Florida legislature ultimately reduced funding for the Petroleum Program from $1.2 million to approximately $250,000. When the Alachua DEP received notice of these funding cuts, Mr. Bird advised Mr. Vieira that he needed to release one of the Temp Force employees from his assignment with the Alachua DEP. Mr. Vieira retained Mr. Shuler and informed Mr. Shrestha that he would no longer be working on the Petroleum Cleanup assignment through Temp Force. Mr. Shrestha's assignment through Temp Force with the Alachua DEP was terminated on August 10, 1995. During Fall 1995, the legislature substantially changed the law and administration pertaining to the Petroleum Program, both at the county and state levels. In October 1995, Ms. Pegeen Hanrahan became the Petroleum Program supervisor following Mr. Vieira's resignation. Ms. Hanrahan earned a Bachelor's degree in Environmental Engineering and Sociology and a Master's degree in Environmental Engineering. She is a registered Professional Engineer and a certified Hazardous Materials Manager. She began working for Alachua County in 1992 as an Environmental Engineer and later served for three years as Hazardous Materials Program Supervisor for Alachua County. When Ms. Hanrahan became supervisor of the Petroleum Program in Fall 1995, the Petroleum Program had essentially entered a "stand-by" mode. The Alachua DEP declined to send any additional work to its sub-contractors. Therefore, the technical duties involved in the Petroleum Program were reduced and the administrative duties became more important. During the Fall of 1995, there were no permanent employees on staff. Mr. Shuler remained as the only temporary employee in the Petroleum Program and according to Ms. Hanrahan was doing a "perfectly adequate job." Based on the new and reduced Petroleum Program budget for the 1995-1996 fiscal year, the Alachua DEP acted in October 1995 to establish the position of Senior Environmental Specialist in lieu of the Environmental Engineer/Geologist position. The position was advertised in December 1995. The main role of the Senior Environmental Specialist was to assist the Professional Engineer in the area of the administration involved in the Petroleum Program. The duties included filing reports, tracking sites, and submitting task orders and invoices to the office in Tallahassee. Due to the increasing changes in the Petroleum Program, the Alachua DEP required a Senior Environmental Specialist who understood the Petroleum Program's administrative tasks, as well as the State policies pertaining to the Petroleum Program. The Senior Environmental Specialist candidate was required to have a technical background in fields including, but not limited to, engineering, biology or geology. The Professional Engineer, not the Specialist, was assigned the technical review of the Petroleum Program. An applicant's understanding of the technical and administrative duties was necessary. In 1995, the Alachua DEP advertised the position of Senior Environmental Specialist, which included printing an advertisement in the local newspaper, per the County regulations. The Alachua DEP described the administrative tasks of Senior Environmental Specialist to include: preparing reports; making recommendations; receiving and investigating complaints; conducting performance evaluations; counseling, hiring and terminating employees. The Alachua DEP described the knowledge, skills, and abilities of the Senior Environmental Specialist to include: thorough knowledge of the technical methods and procedures involved in the administration of environmental regulations, programs, and policies; knowledge of local, state, and federal rules, regulations, and ordinances related to environmental protection; ability to create concise, clear, and succinct technical reports; and ability to research technical problems, formulate recommendations, and compile related reports. The Alachua DEP described the minimum qualifications for the position of Senior Environmental Specialist as: Bachelor's degree in environmental or natural science, civil or environmental engineering, geology, or hydrology, or related field, and two years' professional level environmental-related experience; or any equivalent combination of related training and experience. The County received 14 applications for the position as Senior Environmental Specialist from applicants, which included Mr. Shrestha and Mr. Shuler. Ms. Hanrahan was supervisor of the Petroleum Program in January 1996 and responsible for the hiring of the Senior Environmental Specialist. She received an Application Referral Document from personnel, stating that each of the applicants met the County's minimum requirements for the position of Senior Environmental Specialist. Upon receipt of the re?sume's and applications, Ms. Hanrahan initially screened the applicants for those who had petroleum-related experience. She narrowed the applicants to four individuals, who included Mr. Shrestha, Mr. Shuler, and two others. On January 22, 1996, Ms. Hanrahan conducted a telephone interview of each of the four applicants who passed the initial screening. The telephone interview was customary hiring practice within the Alachua DEP. During the telephone interview, Ms. Hanrahan asked each applicant the same series of ten questions, designed to test the applicant's level of knowledge regarding technical and administrative aspects of the position of Senior Environmental Specialist. Mr. Shrestha answered five out of a possible eleven answers correctly. This was the second highest score out of the four applicants. Shuler achieved the highest score, answering eight-and-one-half out of eleven answers correctly. Three interview questions specifically addressed administrative issues. Question six asked, "What does RBCA stand for?" Question seven stated, "This year the Florida Petroleum Cleanup Program has adopted a new mechanism for review and approval of work on petroleum contaminated sites. Can you tell me what that program is called?" Question nine stated, "Give two examples of policy decisions under RBCA." Mr. Shrestha failed to answer question six, seven or nine correctly. Mr. Shrestha's failure to correctly answer each of the administrative questions indicated to Ms. Hanrahan that he was unaware of the changes within the Petroleum Program. Another purpose of the telephone interview was to assess the applicants under pressure. Ms. Hanrahan also sought to evaluate how the applicants responded to her authority. During the telephone interview, Mr. Shrestha challenged Ms. Hanrahan regarding the relevance of the questions to the position of Senior Environmental Specialist and she noted his argumentative attitude during the interview. He conceded at the hearing that he did ask her about the relevancy of the questions. Based upon his argumentative tone, Ms. Hanrahan questioned Mr. Shrestha about his ability to accept her supervisory decisions. She decided not to hire Mr. Shrestha for the position of Senior Environmental Specialist based on his limited knowledge of the administration of the Petroleum Program, a factor essential to the position of Senior Environmental Specialist, and his inability to accept her authority as supervisor. Ms. Hanrahan was also aware of critical statements that Mr. Shrestha allegedly had made to female co-workers during his assignment through Temp Force at the Alachua DEP. Ms. Robin Hallbourg is currently employed as Senior Environmental Specialist with the Alachua DEP. Ms. Hallbourg has been with the Alachua County DEP for 15 years. Ms. Hallbourg worked with Mr. Shrestha at the Alachua DEP during Mr. Shrestha's assignment through Temp Force. Ms. Hallbourg testified that Mr. Shrestha told her that "she should be home with her child" and that she "should allow a man to have her job." After this conversation, Ms. Hallbourg discussed his statements with others in the Alachua DEP, including Ms. Hanrahan. Ms. Hanrahan recalled the discussion with her. Ms. Hanrahan hired Mr. Shuler for the position of Senior Environmental Specialist because he proved himself to be the most qualified candidate during the interview process. Ms. Hanrahan kept an interview log on which she noted Mr. Shuler's strong qualifications for the position of Senior Environmental Specialist. She noted his "excellent experience in the Petroleum Cleanup Program and his significant applicable training and experience in program administration." Ms. Hanrahan also noted that his "application and interview showed strong computer skills." Mr. Shuler's Bachelor's degree in Microbiology met the education requirements for the position of Senior Environmental Specialist. Moreover, at the time of Shuler's application, there had been a growing emphasis placed on bi-remediation, which is currently a regularly used process. Given Ms. Hanrahan's education, training,and experience as a Professional Engineer, she determined that a Bachelor's degree in Microbiology was an appropriate background for the position. In addition, Mr. Shuler had the technical knowledge of processes, performance of groundwater sampling, and drilling, as well as other relevant technical knowledge pertaining to the position of Senior Environmental Specialist. Additionally, due to his continued assignment in the Alachua DEP, he was aware of the new administrative duties required of a Senior Environmental Specialist. Ms. Hanrahan had personally observed Mr. Shuler from October 1995 until January 1996, and was extremely satisfied with his performance. As part of the usual hiring process, Ms. Hanrahan submitted her interview log, personnel action form, and applications to the personnel department to support her hiring decision. Mr. Bird approved the hiring decision in his capacity as director, and the personnel department, budget department, and Equal Employment Office then approved the decision. Since his hire, Mr. Shuler has been commended by the Alachua DEP and his supervisors. Ms. Hanrahan informed Mr. Shrestha that he had not been hired for the position during a telephone conversation on January 23, 1996. She did not base her decision to hire Mr. Shuler over Mr. Shrestha on the basis of race or national origin. Ms. Hanrahan is fully aware of Alachua County's Equal Employment Opportunity policy through her position as advisor on the Equal Opportunity Advisory Committee. There is no evidence of any discriminatory hiring decision. In fact, on the same day that Ms. Hanrahan hired Mr. Shuler for the position of Senior Environmental Specialist, she also hired Mr. Gus Olmos for the position of Environmental Engineering Supervisor. Mr. Olmos is from Panama and is Hispanic. Moreover, Dr. Prasad Kuchibhotla is a Professional Engineer with a Bachelor's, Master's and Ph.D. in Chemical Engineering. He is from India and is Asian. Alachua County hired Dr. Kuchibhotla in 1997 and is the current Petroleum Cleanup Program Manager for Alachua DEP. Dr. Kuchibhotla currently has a Senior Environmental Specialist working for him within the Petroleum Program. As was the case in December 1995, the current Specialist's primary duty is to assist him with the detailed administrative tasks involved with the Petroleum Program. On January 27, 1997, Mr. Shrestha filed a formal Charge of Discrimination. The charge was date stamped as received by the Florida Commission on Human Relations on January 30, 1997. Mr. Shrestha is currently employed with Bell South in Atlanta, Georgia. He earns $47,000 per year and receives health benefits.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Petitioner, Tilak B. Shrestha is not entitled to any relief relating to his charge of discrimination under Title VII of the Federal Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992. DONE AND ENTERED this 2nd day of August, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 2nd day of August, 2000. COPIES FURNISHED: Tilak B. Shrestha 3579-C Meadowglen Village Lane Doraville, Georgia 30340 Robert M. Ott, Esquire County Litigation Attorney Post Office Box 2877 Gainesville, Florida 32602 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact The Department of Transportation, pursuant to its decision to procure certain sewer line cleaning equipment, issued an Invitation to Bid to potential vendors of such equipment. The specifications in that Invitation to Bid which are at issue in this proceeding concern the specified ability of the machine being proposed to vacuum gutters while being driven or, that is, in motion. The other specification at issue was that the machine had to be a standard production model with five of such machines in service for one year prior to May 1988. The sewer line cleaner specified had to have a nine cubic yard capacity. The bids were received, including that of Vac-Con, Inc. and Jet Vac Sanitary Service. The bid results were posted on June 3, 1988, noticing the Department's intent to award the contract for the nine cubic yard sewer line cleaner to Vac- Con, Inc. Jet Vac Sanitary Service timely filed a formal protest of that intended bid award on June 17, 1988. The Petitioner's formal protest was transmitted to the Division of Administrative Hearings and duly came on for hearing. The Petitioner is contending that the Vac-Con model V290 storm sewer line cleaner does not meet the specifications in the Invitation to Bid because it will not vacuum gutters while in motion in the configuration set forth in Vac-Con's published specifications for its standard models. It asserts, in conjunction with this argument, that the alternative configuration proposed by Vac-Con would in effect render this a nonstandard production model of which Vac- Con has not had five in service prior to May 1988, which would represent a departure from the bid specifications and thus result in a non-responsive bid. The Respondent, however, contends that the alternative configuration proposed by Vac-Con is merely an options package to an existing standard production model machine and thus is in conformance with the specification. The Respondent has been advised by Vac-Con that the V290 machine will perform as specified and that at least five machines have been so configured and have been in service for the required one year or greater period. It is stipulated that Jet Vac Sanitary Service was the next lowest bidder after Vac-Con and has standing to protest the Intent to Award. Jet Vac was a responsive bidder. It is also stipulated that the configuration of the model V290 depicted in Vac-Con's promotional material itself will not meet the specifications set forth in Respondent's Invitation to Bid. The dispute is whether the Vac-Con machine, as optionally modified, as proposed by Vac-Con, meets the specification concerning the machine being a standard production model. In response to the Invitation to Bid, Vac-Con, Inc. submitted a bid for its Vac-Con model V290. It accompanied that bid with a written statement of the model specifications which coincided with the specifications required by the Invitation to Bid. It specified, that is, that it would comply with the requirement that the vehicle be able to vacuum gutters while being driven in motion. Jet Vac in turn submitted a bid which was responsive, but it was not the lowest bid. Vac-Con, Inc., in other bids submitted in the past year as well as in its advertising literature, describes the V290 model of sewer line cleaner as one in which the vacuum compressor is driven by the truck engine, that is the engine which provides the motive power to the vehicle. In order to operate the vacuum compressor as described in that literature, the rear axle of the truck has to be disengaged, with the result that the unit cannot vacuum and drive at the same time. This configuration of the V290 model which has the vacuum being operated by the truck engine or chassis engine, is the normal type of unit offered by Vac-Con in its vehicle demonstrations and literature, as recently as one week prior to trial. In order for the V290 to comply with the bid specifications at issue, it must be reconfigured so that the vacuum compressor is run by an auxiliary engine and not the motive power engine. The power available to operate the vacuum compressors which vacuum trash from gutters and so forth, would be reduced from the chassis engine which, in the normal configuration of that model, operates the vacuum compressors. The reconfiguration whereby the vacuum compressors would be run off the auxiliary engine, and not the motive engine, would require a reversal of the V-belt drives used by the normal unit. This alternate configuration would be obvious to the casual observer. The intent of the term "standard production model" in the specifications at issue is to ensure that a machine purchased will have ready availability of manufacturer's replacement parts out of stock. This serves to prevent the purchaser from having to do development work on new models which are not in standard production runs and do not have inventories of spare parts in the manufacturer's stock as yet. Because the alternate configuration of the unit, whereby it would vacuum while moving, running its vacuum equipment off of its auxiliary engine, requires new engineering and reevaluation of the power of the V290's auxiliary motor, the specification language requiring a "standard production model" and requiring that five such units be operational in the field, requires in this instance that five units in the alternate configuration at issue be found to have been in satisfactory field service for one year. The written description submitted by Vac-Con, Inc. in response to the bidding documents, describes a machine which complies with the specification requiring the ability of the machine to vacuum while it is in motion. That description was specially prepared for purposes of this bid. Indeed it is not a machine represented, at the time of the bid, in the company's advertising literature, catalog data or other published brochures and like sources of information in order to verify that indeed Vac-Con did have five units in the alternative configuration in satisfactory service. The Department's representative, Mr. Burt, telephoned individuals whose names had been supplied him by Vac-Con as being persons who could verify that the alternative, which could vacuum in motion with the vacuum blower run off the auxiliary engine, was indeed in service. Using these names supplied him by Vac-Con and names of persons some of those people in turn gave him, who had such altered machines operating in satisfactory service, Mr. Burt telephoned each of the individuals whose names had thus been furnished by Vac-Con and its customers. He thus confirmed that there were indeed at least five units in service in the field, for at least one year, which had the ability to vacuum gutters while in motion, with the vacuum equipment being operated by the auxiliary engine on the machine. The Department has a policy of relying upon the representations of its suppliers. It does not inspect each piece of equipment before it writes a purchase order after awarding a bid. It instead reserves the right to reject any piece of equipment that does not meet specifications, after purchase. The Department does not wish to get into an adversary relationship with its suppliers and, in turn, vendors typically do not want an adversary or unfavorable relationship with the Department and do not want future disqualifications from bidding based upon any lack of integrity or misrepresentations in responding to bid specifications. Accordingly, the representations made on the bidding document have historically been quite accurate and have a high degree of probability of reliability. Hence, the Department has not, in the exercise of its discretion, followed a policy of physically inspecting each piece of equipment and independently verifying its existence or capabilities. It rather has effectively, in the past, relied upon the vendor's representations regarding the capacities or capabilities of equipment. In fact, the Department has neither the staff nor the time to make any further pre-award investigations, especially due to the nationwide market and indeed, to some extent, international market, in which it seeks to procure equipment of all sorts. In any event, being satisfied that the equipment would perform as represented and verifying that at least five such configured machines were in active field service for a year or more, the Department concluded that, in the exercise of its discretion, that the specifications had been adequately responded to and that the award should be made to Vac-Con as lowest, most responsive bidder. Insufficient proof to the contrary was offered at the hearing.
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 a Final Order be entered awarding the contract for Florida DOT Bid Number MY3188B5 to Vac-Con, Inc. DONE and ENTERED this 8th day of December, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1988. COPIES FURNISHED: Ray Heath William B. Singleton Jet Vac Sanitary Services Post Office Box 186 New Smyrna Beach, Florida 32070 Bruce A. Campbell, squire Senior Litigation Attorney Office of General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Kaye N. Henderson, P.E., Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
