The Issue The issues are whether Offshore Shipbuilding, Inc., (Offshore) is entitled to reimbursement from the Florida Coastal Protection Trust Fund, pursuant to Sections 376.011-.21, Florida Statutes, for costs and expenses incurred by Offshore in a spill cleanup at Offshore's Green Cove Springs facility or whether the Department of Natural Resources (DNR) correctly denied Offshore's application for reimbursement.
Findings Of Fact Offshore engages in the business of dry docking and repairing boats, barges and other types of marine vessels. Its primary facility and business offices are in Palatka, but it also leases a facility at the Clay County Port in Green Cove Springs, Florida. The scallop vessel, Theresa R. II (Theresa), was repaired by Offshore at the Green Cove Springs facility from August 2 to August 7, 1991. The vessel was hauled out of the St. Johns River and placed on a dolly located on a marine railway which extends south from the river about 500 feet. Prior to coming to Offshore's facility, Theresa had undergone major reconditioning at another facility. In the course of that work, the vessel's bilges had been pumped out by Envirotech Southeast on May 3, 1991. Envirotech pumped 2,200 gallons of water from the bilge. When the Theresa arrived at Offshore, it did have some water in the bilge. There was oil floating on top of the water and most likely a sludge of waste matter from the painting and scraping had settled to the bottom of the bilge. John Rita, the owner of the Theresa, indicated that he wanted to pump out the bilge onto the ground, but was advised by Offshore that he would need to have it pumped out by a qualified pumper. The repairs to be performed by Offshore included repairs to the sea valve in the engine room where the bilge was also located. Hawkins, an employee of Offshore, could not make that repair until the bilge water level was lowered. Hawkins performed some other tasks and then found that the bilge was empty enough to perform those repairs. He did not know how the bilge water level was lowered and did not see that the bilge had been pumped on the ground and did not see or smell diesel fuel or oil on the ground. On Saturday, August 3, 1991, Rita acknowledges that he pumped water from the bilge over the starboard side of the vessel. Rita says the source of the water was rain and water from the St. Johns River. He did not pump the bilge dry, but pumped enough water to lower the level and permit the repairs. He pumped only water, leaving the solids in the sludge on the bottom and the oils floating on top suspended above the water. Solid materials tend to cling to surfaces and are not easily removed by water. In order to remove solid materials, it is necessary to physically remove them by some sort of tool, like a hoe or shovel. The Theresa was launched on August 7, 1991, around 3:30 p.m. Cleanup around the yard where the Theresa had been began the morning of August 8, 1991. Later that afternoon, an unidentified employee of Offshore reported discovering a spill to Fred Willshier, Offshore's yard superintendent at Green Cove Springs. Willshier called the Palatka office and told Tony Bucknole, Offshore's Vice President and General Manager, about the spill. Bucknole told Pam Barrett, an employee whose duties included environmental matters, personnel and payroll. Willshier reported the spill to Barrett around 3:00 p.m. Bucknole told Barrett to go to the Green Cove Springs yard the next morning on her way to work. Barrett and Willshier examined the spill the morning of Friday, August 9, 1991. The spill contained some oil and smelled of diesel fuel. The area of the spill was approximately 4 or 5 feet from the marine railway next to where the Theresa had been. Various witnesses described the spill as being 30 feet, 50-75 feet and 30 yards from the St. Johns River. No contamination was threatening the river and no spill material had reached the beach area adjacent to the shoreline. Barrett ordered the necessary materials such as barrels and shovels for the removal of the contaminated soil. She told Willshier to remove all the contamination that could be seen, to put the soil in drums, to seal the drums and to label the drums. Soil was removed from the site on August 9 and 10, 1991. The soil was placed into drums without lids, because no lids were available on such short notice. Some of the soil in drums was taken to Palatka and put into a large steel bin. The drums were then taken back to Green Cove Springs for reuse with this spill. The drums were sealed with visqueen and duct tape. No one labeled the drums as to date, source, or number, although some drums were apparently labeled so as to show that they contained soil and diesel fuel or oil. Willshier was supposed to supervise the cleanup, but he does not know who wrote on the drums, how many drums were filled or what happened to those drums. The steel bin at Palatka had no cover. No one knows if it was empty when the drums were emptied into it or if other materials were added after the contents of those drums was put into it. Barrett, who was responsible for the inventory of such materials, didn't know that any of the soil was put in the steel bin. She also could not account for the number of drums or their location immediately after the cleanup was completed. On August 29, 1991, Sgt. Jesse Baker of the Florida Game and Fresh Water Fish Commission and Jane Mears of the Department of Environmental Regulation participated in the execution of a search warrant related to Offshore's handling of hazardous waste at the Palatka facility. That search revealed numerous 55-gallon drums at the Palatka site, many of which were not labeled. Of those drums with labels, some had partially disappeared or were unreadable, some were labeled during the execution of the search warrant and some had more than one label. Additionally, four drums were located next to a derelict tugboat, the Victoria, and the crane operator was in the process of lifting drums of contaminated soil and liquid waste and dumping those contents into the bilge of the Victoria. Sgt. Baker saw several metal bins containing soil, rust, and other waste materials, including one large steel container which was full of soil. These containers of soil were not labeled. Sgt. Baker was informed by Offshore employees that for three days they had been combining the contents of the various drums and there was no way to determine with certainty "what soil came from where." He was also advised that the combined contaminated soils and liquid waste had been placed in the tugboat for ultimate "disposal." Sgt. Baker observed a large quantity of waste material in the Victoria's hold and several crushed metal drums in a dumpster. The next day, August 30, 1991, Ms. Mears and Sgt. Baker inspected the Offshore facility at Green Cove Springs. They found additional drums of contaminated soil and waste material at Green Cove Springs. The condition of the drums was similar, with some having visqueen and duct tape sealing them. The labeling was similarly haphazard or nonexistent. As a result of these inspections, all waste material at both sites was appropriately sealed, labelled, and inventoried. The resulting inventories were offered by Offshore as the only proof that 43 drums of contaminated soil were removed from the spill site. Numerous witnesses, including Ms. Mears and Sgt. Baker, examined the site from which this contaminated soil was allegedly removed. There was no observable hole or depression which would account for removal of soil down to one foot below grade just three weeks earlier. Offshore did not notify the Department of Natural Resources of the alleged spill until January 28, 1992. Offshore did not notify the Florida Marine Patrol or the U.S. Coast Guard of the alleged spill until on or about that same date. Offshore never sought or received authorization or approval of its cleanup activities from the Department of Natural Resources prior to its activities to remove the alleged spill. Offshore first filed an application for reimbursement from the Florida Coastal Protection Trust Fund on February 26, 1992. That application, filed by counsel for Offshore, sought reimbursement of $3,603.93 for expenses allegedly incurred by Offshore in containing and cleaning up a spill of diesel fuel from the Theresa R. II. The application claimed $3,218.75 for labor costs and $385.18 for materials. That application was incorrect about several material facts. First, the date of the alleged spill was August 8-9, 1991, even though the vessel alleged to be responsible for the spill had been launched on August 7, 1991, and even though at hearing, Offshore took the position that the spill occurred on August 3, 1991, when Rita pumped water from the bilge. The second error in the application is the assertion that the spill occurred when the vessel's owner pumped the contents of the fuel tank over the side of the vessel and onto the ground. In fact, only the contents of the vessel's bilge were involved. The application also seeks reimbursement for labor costs for the alleged cleanup of $25.00 per hour and $37.50 per hour for overtime. In fact, the employees who cleaned up the alleged spill were paid only their regular hourly wage. None of the employees were paid even $25.00 per hour. Offshore was claiming its regular hourly charge for repairs performed in its yards rather than the amount actually paid to the employees. That regular hourly charge is based on Offshore's annual average hourly cost for all its services which includes salaries, insurance, overhead, fuel, and other expenses necessary to run the yards, presumably including some profit. Fourth, the application asserts that the contaminated soil had been drummed and transported to the Palatka facility. In fact not all the contaminated soil was drummed or taken to Palatka. It cannot be determined precisely how much soil was removed or where it is now located. Offshore billed Mr. Rita, the vessel's owner, for the cleanup by sending him a bill for $5,887.53 on August 23, 1991. Offshore presented evidence regarding sampling and testing of the contents of certain drums which it alleges contained soil from the alleged spill. Because there is insufficient evidence to establish the true origin of the contents of the various drums and because Offshore was so haphazard in maintaining records of the contents of the drums, the testimony and evidence regarding the sampling and testing is simply not material or probative of any issues significant to the resolution of this reimbursement claim.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources enter a Final Order and therein DENY the reimbursement claim filed by Offshore Shipbuilding, Inc., and DISMISS the petition filed herein. DONE and ENTERED this 18th day of December, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 18th day of December, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3946 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Offshore Shipbuilding, Inc. 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1 & 2(1); 3(8); 4(9); 5(2); 13(2); 17 & 18(4); 19-22(5); 24(5); 29(3); 32(3); 35(3); 38(6); 42 & 43(8); 45(8); 48(10); 59(9); 60(10); 86(9); and 103(11). 2. Proposed findings of fact 6, 10-12, 14, 16, 25-27, 30, 31, 33, 39, 40, 46, 47, 49, 50, 56, 61-64, 71-74, 76-79, 83, 87-93, 95, 107, 108, 111, 121, 122, 136, 187-192, 198, 216-219, 221, and 222 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 7, 8, 15, 23, 28, 34, 36, 37, 41, 52, 53, 58, 65- 67, 69, 70, 75, 80, 84, 85, 94, 97-100, 102, 117, 124-132, 141-184, 186, 193- 197, 199-215, 220, 223-236, and 238-240 are irrelevant. 4. Proposed findings of fact 9, 44, 51, 55, 57, 68, 96, 101, 104-106, 109, 110, 112-116, 118-120, 123, 133-135, 137-140, 185, and 237 are unsupported by the credible, competent and substantial evidence. 5. Numerous proposed findings of fact, including but not limited to, 151-153, 155-157, 159, 160, 167, 218, and 219 are mere summaries of testimony and are not appropriate as findings of fact. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Natural Resources 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2(1); 3-7(24-28); 9(29); 10 & 11(27); 12(22); 13(23); 15 & 16(2); 19(3); 20(3); 21(6); 22 & 23(7), 24(8); 25 & 26(9); 28(9); 29 & 30(10); 32 & 33(12); 34(14); 35(12); 36(14); 43(15); 44 & 45(16); 46(17); 47 & 48(18); 49 & 50(16); 51(19); 54(21); and 65(30). 2. Proposed findings of fact 1, 8, 14, 17, 27, 31, 37, 38, 41, 42, 55, 56, 60, and 61 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 18, 39, 40, 52, 53, 57-59, and 62-64 are irrelevant, primarily for the reasons stated in Finding of Fact 30. COPIES FURNISHED: Virginia B. Wetherell Executive Director Department of Natural Resources 3900 Commonwealth Boulevard, MS-10 Tallahassee, FL 32399-3000 Kenneth Plante, General Counsel Department of Natural Resources 3900 Commonwealth Boulevard, MS-10 Tallahassee, FL 32399-3000 L. Kathryn Funchess Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard, MS-35 Tallahassee, FL 32399-3000 Robyn A. Deen Sidney F. Ansbacher Attorneys at Law Brant, Moore, Sapp, MacDonald & Wells Post Office Box 4548 Jacksonville, FL 32202
The Issue Whether Petitioner, Miami Yacht Divers, Inc., is entitled to reimbursement for cleanup costs.
Findings Of Fact The Respondent is the state agency charged with the responsibility of administering claims against the Florida Coastal Protection Trust Fund. Petitioner is a company located in Dade County, Florida, which performs commercial diving operations. Such operations include oil pollution containment and clean-up. At all times material to the allegations of this case, Dan Delmonico was the principal officer or owner for the Petitioner who supervised the operations of the company. In April of 1993, Mr. Delmonico discovered a fuel discharge next door to the premises of Defender Yacht, Inc., a company located on the Miami River in Dade County, Florida. The source of the discharge was an abandoned sunken vessel. This derelict vessel had no markings from which its ownership could be determined. Upon discovering the vessel, Mr. Delmonico did not contact local, state, or federal authorities to advise them of the discharge. Instead, Mr. Delmonico contacted several colleagues whose help he enlisted to assist him to clean up the discharge. In this regard, Mr. Delmonico procured the services of a diver and a crane company to remove the vessel from the water. Additionally, Mr. Delmonico utilized a boom and oil absorbent clean-up pads to remove the discharged fuel from the water. In total, Mr. Delmonico maintains it took four work days to complete the removal of the discharge and the salvage of the derelict vessel. At no time during this period did Mr. Delmonico contact local, state, or federal authorities to advise them of the foregoing activities. No official from any governmental entity supervised or approved the clean-up operation or salvage activity which is in dispute. After the fact Petitioner filed a reimbursement claim with the United States Coast Guard. Such claim was denied. Upon receipt of such denial, Petitioner filed the claim which is at issue in the instant case. In connection with this claim with Respondent, Petitioner submitted all forms previously tendered to the Coast Guard including the standard claim form, labor receipts, rental receipts, supply receipts, trailer and storage receipts, cash expenses, a job summary, and photographs. On or about September 20, 1996, Respondent issued a letter denying Petitioner's claim for reimbursement for expenses associated with the above-described salvage and clean-up activities. The grounds for the denial were the Petitioner's failure to obtain prior approval for the activities and the absence of "good cause" for the waiver of prior approval. Additionally, the Respondent maintained that Petitioner had failed to provide evidence that a pollutant discharge existed and that the removal of the vessel was necessary to abate and remove the discharge. It is undisputed by Petitioner that prior approval for the clean-up activities was not obtained. Petitioner timely disputed the denial and was afforded a point of entry to challenge such decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Petitioner's claim for reimbursement. DONE AND ENTERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. J. D. Parrish 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 31st day of December, 1997. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathelyn M. Jacques Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 N. Paul San Filippo, Esquire Seidensticker & San Filippo Parkway Financial Center 2150 Goodlette Road, Suite 305 Naples, Florida 34102
The Issue The issue for determination is whether Petitioner is liable for the costs and expenses incurred by Respondent in responding to a pollutant discharge, occurring on November 6, 1992, at the waters off John Lloyd State Park, Dania, Florida, and for damages to natural resources resulting from the pollutant discharge.
Findings Of Fact On November 6, 1992, a DC-7 airplane crashed off the Atlantic Coast of Florida, more particularly, 100 yards from John Lloyd State Park, and one quarter of a mile north of Dania Pier in Dania, Florida. The DC-7 was a chartered cargo airplane and had departed from Miami International Airport. The DC-7 was chartered from Claudio Castillo by Miguel Delpino, United States General Manager of Aerochago Airlines, to carry cargo for Aerochago Airlines. Even though Aerochago Airlines owned aircraft, its aircraft was unavailable due to maintenance work being performed. During the flight from Miami International Airport, the DC-7 developed engine trouble, i.e., two of its engines failed. The aircraft began to lose altitude. In an attempt to regain altitude, the captain of the aircraft dumped 3,000 gallons of aviation fuel. However, the DC-7 failed to regain altitude and crashed. Remaining on the crashed aircraft were 3,000 gallons of aviation fuel and 150 gallons of motor oil. When the DC-7 crashed, only the crew and two passengers were on board. One of the passengers was Mr. Castillo. On the same day of the crash, the Florida Marine Patrol (FMP) of the Department of Natural Resources, now the Department of Environmental Protection (DEP), arrived at the crash scene at 3:20 a.m. and investigated the crash. The DEP had four employees investigating the crash: three FMP officers and one employee from the Office of Coastal Protection. The remaining aviation fuel and motor oil in the crashed DC-7 was discharging into the coastal waters. The DEP employees attempted to abate the discharge. The equipment necessary for the employees' investigation of the crash and abatement of the discharge and the cost for the equipment were the following: (a) a DEP vehicle at a cost of $7.00; (b) a twin engine vessel at a cost of $120.00; (c) an underwater sealant kit at a cost of $16.66; (d) scuba tanks at a cost of $9.00; and (e) photographs at a cost of $24.00. The total hours expended by DEP's four employees were 36 hours, at a cost of $685.84. Due to the DC-7 leaking aviation fuel and motor oil into Florida's coastal waters, removal of the aircraft from the Atlantic Ocean was necessary. DEP contracted with Resolve Towing and Salvage (RTS) to remove the DC-7. RTS is a discharge cleanup organization approved by DEP. RTS' contractual responsibilities included removal of the entire DC-7 aircraft and all debris within 100 yards of the center of the aircraft; disposal of the aircraft; plugging the engines to help stop the leakage; and removal and delivery of the engines which failed to the National Transportation Safety Board (NTSB) and the Federal Aviation Authority (FAA). Because the submerged DC-7 was located in an environmentally sensitive coral and sea-plant area, RTS was required to use extreme care in removing the aircraft. The contractual cost was fixed at $34,000.00 A DEP employee, Kent Reetz, was at the scene of the crash during RTS' cleanup. His responsibility was to monitor the removal of the DC-7 by RTS and to ensure that the aircraft's removal was in compliance with DEP's standards. During the removal of the DC-7 from the water, the fuselage ruptured, scattering debris which was dangerous to the public and to the coral and sea-plants. DEP determined that RTS was not responsible for the fuselage rupturing, but that the rupture was caused by several storms, prior to the aircraft's removal, and by the aircraft being submerged for an extended period in salt water. DEP contracted with RTS to remove the dangerous debris emitted when the fuselage ruptured. The contractual cost was fixed at $9,050.00 The total contractual cost between DEP and RTS was $43,050.00. DEP paid RTS from the Coastal Protection Trust Fund. In responding to the pollutant discharge, DEP incurred a total cost of $43,912.50. DEP assessed damages to the natural resources based upon the amount of pollutants discharged which were 3,000 gallons of aviation fuel and 150 gallons of motor oil. Using the statutory formula, DEP assessed damages to the natural resources in the amount of $57,898.72. Based upon the costs incurred by DEP in responding to the pollutant discharge in the amount of $43,912.50 and the damages to the natural resources in the amount of $57,898.72, DEP sought reimbursement and compensation from Mr. Castillo in the total amount of $101,811.22. DEP invoiced Mr. Castillo for reimbursement of the costs and for compensation for the damages. DEP provided Mr. Castillo with detailed and itemized expense documents for the costs that it had incurred in responding to the pollutant discharge. The documents showed the expenses incurred, what each expense represented, and the formula for computing each expense. Further, DEP provided Mr. Castillo with a document showing the amount of the damages to the natural resources, the formula for computing the damages, and how the damages were computed. The charter of November 6, 1992, was not the first time that Mr. Delpino had chartered the same DC-7 from Mr. Castillo. Prior to and, again, at the previous charter, Mr. Castillo represented to Mr. Delpino that he, Mr. Castillo, was the owner of the DC-7. The owner of a chartered aircraft is responsible for obtaining the aircraft's crew and insurance and for maintaining the aircraft. For the previous charter, Mr. Castillo was responsible for obtaining the DC-7's crew and the insurance and for maintaining the aircraft. Mr. Delpino had no reason to expect the charter for November 6, 1992, to be any different. Furthermore, Mr. Castillo did not inform Mr. Delpino that the responsibilities would be different. For the present charter, as before, Mr. Castillo handled all matters relating to the crew, insurance, and maintenance. Regarding the insurance, Mr. Castillo presented to Mr. Delpino an insurance certificate which, after the crash, was discovered to be false. Also, regarding maintenance, prior to the crash, the two engines which failed were to be removed and repaired, but, although they were removed, they were returned without being repaired. Mr. Castillo was the owner of the DC-7. Also, the crash of the DC-7 was investigated by several federal governmental agencies, including the FAA, the U.S. Coast Guard, and the NTSB. Both the Coast Guard and the NTSB issued reports on the crash, which identified Mr. Castillo as the owner of the DC-7. Mr. Castillo was responsible for the discharge of the 3,000 gallons of aviation fuel and 150 gallons of motor oil from the DC-7 into Florida's coastal waters.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection (DEP) enter a final order assessing Claudio Castillo $43,912.50 for costs related to DEP responding to the pollutant discharge on November 6, 1992, at Florida's coastal waters off John Lloyd State Park, Dania, Florida, and $57,898.72 for damages to natural resources resulting from the pollutant discharge--all totaling $101,811.22. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997.
Findings Of Fact On September 15, 1976, Manatee Energy Company submitted to the Department of Environmental Regulation, through the Manatee County Pollution Control Department, an application to construct an air pollution source in connection with a crude splitter to be built at Port Manatee, Manatee County, Florida. On October 15, 1976 the Department of Environmental Regulation requested additional information from the Manatee Energy Company concerning its application. The primary response of the Manatee Energy Company to this request for additional information was hand carried to the Department of Environmental Regulation on November 3, 1976, at which time a meeting was held between representatives of the Department of Environmental Regulation and the Manatee Energy Company to discuss whether the additional information satisfactorily responded to the request. On November 9, 1976, representatives of the Manatee Energy Company met with representatives of the Manatee County Pollution Control Department to discuss the additional information and the status of the application. The Department of Environmental Regulation considered the application complete and, in fact, all requested additional information was received by the Department of Environmental Regulation no later than November 22, 1976. By letter dated December 14, 1976, to the Department of Environmental Regulation, the Manatee County Pollution Control Department recommended approval of the permit sought by the Manatee Energy Company. On February 17, 1977, the Department of Environmental Regulation issued a Notice Of Intent To Issue Its Final Agency Order approving the permit application for construction of the air pollution source sought by the Manatee Energy Company. This Notice Of Intent contained the statement that the final agency order approving the application would be adopted and issued by the district manager unless an appropriate petition for hearing was filed on or before February 20, 1977, pursuant to the provisions of Section 120.57, Florida Statutes. On February 17, 1977, the Manatee Chapter of the Izaak Walton League filed a Petition And Request For Public Hearing And Other Relief. At the time the petition was filed on February 17, 1977, neither the Manatee Chapter of the Izaak Walton League nor its parent organization, the Izaak Walton League of America was a corporation not for profit organized and operating under the laws of the state of Florida. However, at the time the petition was filed on February 17, 1977, the parent organization, the Izaak Walton League of America was a corporation not for profit organized in a state other than Florida. The Manatee Chapter of the Izaak Walton League has never filed a corporate charter or articles of incorporation with the Florida Secretary of State under that corporate name. Further, the Izaak Walton League of America has never filed a corporate charter or articles of incorporation with the Florida Secretary of State under that corporate name. On May 18, 1977, the Manatee Chapter of the Izaak Walton League of America, Inc. filed its articles of incorporation, as a corporation not for profit, with the Florida Secretary of State. The Manatee Chapter of the Izaak Walton League is chartered by the Izaak Walton League of America. The Manatee Chapter is a sub unit of the national organization. Members of the Manatee Chapter do not join the Manatee Chapter, but rather, join the national organization, the Izaak Walton League of America, and then affiliate themselves with the local chapter. According to the president of the Manatee Chapter of the Izaak Walton League their charter from the national organization requires that before the local chapter takes any legal action it must inform the national organization for their approval. In this case, the Manatee Chapter of the Izaak Walton League did inform the national organization, the Izaak Walton League of America, and received their approval, before filing the petition which initiated this proceeding. At no time pertinent to this cause had the Manatee Chapter of the Izaak Walton League, or the national organization, the Izaak Walton League of America, filed with the Florida Secretary of State a duly authenticated copy of its charter or articles of incorporation, together with the requisite fee and received from the Secretary of State a permit to carry on in Florida the objects and purposes of its incorporation as required by Section 617.11, Florida Statutes. As of the date of this hearing, July 21, 1977, the Department of Environmental Regulation has neither approved nor denied the application for permit by the Manatee Energy Company. The Notice Of Intent To Issue by the Department of Environmental Regulation and the filing of the Petition And Request For Public Hearing And Other Relief by Petitioner, Manatee Chapter of the Izaak Walton League, occurred 87 days after the receipt by the Department of Environmental Regulation of the timely requested additional information in connection with the application.
Recommendation Therefore, it is hereby RECOMMENDED: That the application for a permit to construct an air pollution source by the Manatee Energy Company which is the subject of this proceeding be granted and issued forthwith with the provision that an operating permit will not issue until such time as the Port Manatee Port Authority has taken the necessary corrective steps to eliminate the present violation of the ambient air quality standard with regard to particulates. ENTERED this 10th day of January, 1978, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Judith S. Kavanaugh, Esquire 543 Tenth Street, West Bradenton, Florida 33505 Terry Cole, Esquire Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Roger D. Schwenke, Esquire Post Office Box 3239 Tampa, Florida 33601
The Issue Did the Respondent, State of Florida, Department of Community Affairs, Florida Housing Finance Agency (the Agency), act fraudulently, arbitrarily, illegally or dishonestly in exercising review criteria Nos. 3, 4 and 7 to evaluate Petitioner, Spectra Engineering and Research, Inc. (Spectra), in the Agency's Request For Proposal (RFP) entitled Environmental Review Services for Home Investment Partnership Program, FHFA 96/05?
Findings Of Fact The RFP On February 26, 1996, the Agency mailed the RFP to prospective vendors. The services it sought from the vendors were as follows: SERVICES SOUGHT: Environmental Assessment Review services to be provided on each HOME project shall provide environmental reviews of projects and applicable activities and assist the Agency HOME staff in the identification and evaluation of the likely impacts of the projects on the environment and vice versa. The Environmental Assess- ment Review Agency shall also ensure that requirements of the Florida Statutes, Florida Administrative Code, and the Florida Housing Finance Agency Act are met by all reviews; submitting periodic status reports to the Agency; inspecting the development site; advising the Agency as to the environmental feasibility of development; documentation of required HUD forms submitted and generally providing such assistance and services to the Agency as are generally provided by an Environmental Assessment Review Agent. Reviews shall be completed on HUD Environmental Assessment Format II (see attached Exhibit B). It has been determined by the Agency that the services herein cannot be more specifi- cally defined and, in fact, the Agency contemplates the offerors providing a description of the services that can be rendered as a part of their competitive process. The Agency received responses to the RFP from Spectra; the Florida Planning Group, Inc.; Post, Buckley, Schuh and Jernigan, Inc.; Genesis Group, Inc.; Jim Stidham and Associates; William H. Bishop Engineers, Inc.; and Anderson Columbia Environmental, Inc. The RFP set forth criteria for selection as: The ability of the offeror to provide the services described herein in all relevant parts of the state. The demonstrated technical competence, expertise, innovative ability and experience of the offeror in providing the services described herein. The effect of the selection of the offeror on the Agency's ability to administer its HOME program. The offer or offers that is/are the most advantageous to the Agency and the public, taking into consideration the criteria set forth herein. The availability and ability of a minority-owned business. Qualification of individuals assigned to this account. The individuals who Shall be assigned to this account shall be designated in writing. The Agency's prior experience with the offeror. Any costs to the Agency or the borrower which will be incurred as the result of the offeror's selection. Whenever identical bids are received, preference shall be given to a certified Minority Business Enterprise in the event that its proposal is scored equal to the otherwise highest scoring proposal pursuant to Section 287.057(10), Florida Statutes. The vendors were also provided some insight into the purpose of the program that they would serve in a category in the RFP entitled "Background Information" which stated: The Agency makes mortgage loans to developers of rental and single family housing from funds out of the State of Florida's HOME Investment Partnership Program ("HOME"). The loans are make [sic] at below market interest rates and are secured by mortgages on the properties financed. As required by receiving a federal HOME allocation, the Program requires a HUD Environmental Assessment Review pursuant to guidelines outlined in 24 CFR Part 58 (Environmental Review Procedures for Title I Community Development Block Grant Programs). The vendors were reminded that the contract award would be based upon the following: This contract shall be awarded to the offeror(s) who is (are) determined in writing to be the most advantageous to the State taking into consideration the criteria set forth in this Request for Proposals. Notification shall be in the form of a written Notice of Award. The Agency reserves the right to reject any and all proposals, to negotiate price and to make such awards as are necessary to best serve the public's interest. To further assist the Agency in deciding the outcome in its competitive bidding process, it established a scoring matrix which set forth the following selection criteria, each criterion having a maximum score of 10 points: CRITERIA FOR SELECTION (10 POINTS MAXIMUM EACH) POINTS Is there a breakdown of support services and assistance to be provided to the Agency? Is it detailed? Does the offeror have experience performing HUD Environmental Assessments? Is Work Schedule reasonable for services sought? Can the offeror provide the services in all relevant parts of the state? Are there copies of Resume's included describing personal qualifications? Is there a list of three previous clients with contact name and telephone numbers used as references? There must be a description of the similar work by the offeror. Is the work similar to that which is requested in the RFP? Does the offeror have prior experience with the Agency? If yes, evaluate the experience. ADDITIONAL POINTS (20 POINTS) Is the offeror a certified Minority Business Enterprise with certification included in RFP? To review the proposals the Agency formed a committee. Shane Acevedo was the Community Assistance Consultant for the HOME program and he coordinated the issuance, receipt and review of the responses to the RFP and served on the committee. Other committee members were Angela Hatcher, HOME Program Administrator; Tom Tinsley, Guarantee Program Administrator within the Agency; Audrey Byrne, Planning Manager; and Wanda Anderson, now Wanda Marie Toote, Planner IV. With the exception of Tom Tinsley, the committee members had immediate familiarity with the HOME program. Each committee member was granted an ample opportunity to review the responses to the RFP. That review process was separately conducted by individual committee members. In that process they were allowed to make notes concerning their impressions about the vendor's responses to the RFP. Following the review performed by the individual committee members, the committee assembled and discussed the responses by the vendors and assigned scores to the individual vendors by using the scoring matrix. In this process the committee arrived at a consensus for scoring, rather than taking the individual impressions by the committee members and arriving at an aggregate score for the respective criteria in the scoring matrix. The outcome of their deliberations awarded the Florida Planning Group 70 points, Post Buckley 65 points, Genesis Group 60 points, Jim Stidham 50 points, William Bishop Engineers 50 points, Spectra 40 points, and Anderson Columbia 35 points. The agency decided to use the three highest scorers as its consultants for the environmental assessments. Through its formal protest on April 29, 1996, Spectra challenges the scores assigned to it under criteria Nos. 3, 4 and 7. It contends that it should have received the maximum 30 points for the criteria. In comparing the respective scores received for criterion No. 3, "Is work schedule reasonable for services sought?", Genesis Group received 10 points, Jim Stidham received 0 points, William Bishop received 10 points, Anderson Columbia received 0 points, Spectra received 0 points, Florida Planning Group received 10 points and Post Buckley received 10 points. In comparing the respective scores received for criterion No. 4, "Can the offeror provide the services in all relevant parts of the state?", Genesis Group received 10 points, Jim Stidham received 10 points, William Bishop received 5 points, Anderson Columbia received 5 points, Spectra received 0 points, Florida Planning Group received 10 points and Post Buckley received 10 points. In comparing the respective scores received for criterion No. 7, "Does the offeror have prior experience with the Agency? If yes, evaluate the experience", Genesis Group received 10 points, Jim Stidham received 0 points, William Bishop received 0 points, Anderson Columbia received 0 points, Spectra received 0 points, Florida Planning Group received 10 points and Post Buckley received 5 points. In this category a vendor need not have had specific prior experience in the State of Florida's Home Investment Partnership Program. The vendor could be credited for prior experience with the Agency in its administration of other programs. In the informal discussions between the parties, through correspondence dated June 12, 1996, the Agency offered to award additional points to Spectra for criteria Nos. 4 and 7. In each instance the Agency offered 5 additional points for a total of 10 points bringing the overall score to 50 points. The basis for this overture was to "give Spectra the benefit of the doubt." At hearing the Agency continued to express its commitment to awarding the 10 additional points without further explanation beyond the fact that the agency made this gesture after consulting its counsel. The Agency has arbitrarily assigned the 10 additional points. Nonetheless, Spectra should be credited with those points and allowed to advance its claim that the Agency acted inappropriately in not awarding the balance of available points for those two criteria. To resolve Spectra's claims, a more critical discussion of the Agency's actions in performing the evaluation of Spectra's response to the RFP in the assignment of scores for criteria Nos. 3, 4 and 7 follows. Criterion No. 3 Is work scheduled reasonable for services sought? The basis for determining whether the proposed work schedule by the vendor was a reasonable estimate considering the services to be provided was premised upon the need to meet the requirements of the Florida Statutes, Florida Administrative Code and the Florida Housing Finance Agency Act and the need for the vendor to generally provide assistance and services to the Agency that are generally contemplated as being provided by Environmental Assessment Review Agents. With this in mind, the committee reasonably concluded that estimates for conducting environmental review assessments should be no less than 60 days. Any vendor whose estimate was less than 60 days received no points. As reported, a number of vendors, including Spectra, did not receive points for this criterion. In its response at 2.4.9, Detailed Work Schedule, Spectra stated: We estimate to complete each environmental assessment project within 10 working days from Notice-to-Proceed. However, depending on unforeseeable circumstances and on project complexity, some assessments may take a longer time to complete. The following is our project schedule. Spectra then included a chart with bar graphs. In that chart project tasks were identified as data collection and review, telephone/fax request for additional project information, site visits and site photographs, completion of HUD checklist and report preparation and recommendation. The bar graph portion of the chart for those projects was described as "targeted completion time (in days)". The numbers under the completion times were from 1 to 14. Some of Spectra's estimates for categories of project tasks overlapped. For that reason the data collection and review was described as being involved with the first 3 days. The telephone/fax requests for additional project information took place between day 1 and day 5. The site visits and site photographs took place between day 6 and day 8. The completion of HUD checklist took place from day 3 to day 6 and report preparation and recommendations took place from day 3 to day Alternatively, if the chart was read to describe individual tasks that were separate and apart, the total number of days reflected is approximately 24. Either version of the chart and considering the narrative in the proposal would reasonably lead the committee members to conclude that the estimate for completing the work was less than 60 days. Consequently, it was not inappropriate for the committee to assign 0 points to Spectra for criterion No. 3. Those vendors who received points for criterion No. 3 offered estimates to complete the work between 77 and 115 days. Those vendors received 10 points for their estimates. The other vendors who did not receive points either offered no estimate of days needed to complete the work or between 14 and 21 days to complete the work. Criterion No. 4. Can the offeror provide the services in all relevant parts of the State? The RFP does not describe what is meant by "all relevant parts of the state." In response to criterion No. 3 at 2.2 in its proposal, entitled "Ability of Firm to Provide Required Services in Relevant Part of the State," Spectra indicated: We did, in our past contract with the Agency, demonstrate our ability to provide the required services in relevant parts of the state. Project locations included: Dade County, the Town of Century, Holmes County, Hillsborough County, City of Leesburg, Okaloosa County, Leon County, Walton County, Gadsden County, and the City of Palmetto. In implementing the projects, we gathered pertinent project information and also interacted with relevant, environmental regulatory and other offices. We have established practical channels of communi- cation with appropriate regulatory-agency personnel. Therefore, we know feasible approaches to fast information-gathering which will quicken project completion. Moreover, proper planning and effective task-coordination will enable us to prudently allocate our resources and to assign our staff. Our location close to the Agency's Tallahassee office will enable us to promptly attend meetings or to respond to project matters. This will maintain smooth project flow. In addition, we have performed related services for other clients in several Florida counties, including Duval County, Franklin County, Bay County, Liberty County, Citrus County, Washington County, among other areas. These projects are described in detail in Section 2.5: Related Project Experience. Spectra had a HOME contract with the Agency in 1993, as renewed in 1994, and had provided services in projects that are listed in Spectra's response to criterion No. 3. On the face of the response information is provided which would seem to comply with the most expansive reading of the term "in all relevant parts of the State." Rather than credit Spectra for its ability to provide services as described in its response to criterion No. 3, the committee concluded that Spectra should not receive points based upon two considerations. First, the Agency had received complaints from project managers for whom Spectra was responsible to perform environmental assessments under their 1993 and 1994 contract with the Agency at the various locations. The project managers complained that Spectra expected the project managers to take form letters from Spectra seeking information necessary for the environmental assessments. Spectra would then anticipate that the project managers would decide who to contact to get the necessary information to perform the environmental assessments and transmit the form letters from Spectra to the appropriate persons for those persons who had been contacted to provide Spectra the necessary information requested in the form letters. The project managers in Hillsborough County, Gadsden County and Osceola County complained about this practice. They expressed the feeling that Spectra should know the appropriate contact persons to assist Spectra in conducting the environmental assessments or should go to the individual locations and find out who should be contacted. Project managers felt that the task of identifying appropriate persons to assist in carrying out the environmental assessments was as anticipated in the contract between the Agency and Spectra for the years 1993 and 1994. These practices by Spectra were seen by the committee as evidence of the possible inability to make site visits in projects contemplated under the RFP and considered in criterion No. 4. The committee was also concerned that in carrying out the duties under the 1993 and 1994 contracts for environmental assessments Spectra had not always performed site visits required in the projects that they were assigned. On one occasion principals within Spectra, Peter and Christopher Okonkwo, conceded to Robert Ippolito, HOME Program Administrator, that Spectra had not always made the necessary site visits for the projects that it was assigned under the 1993 and 1994 contract with the Agency. By contrast, the Florida Planning Group, another vendor under the 1993 and 1994 HOME contract, in seeking the assistance of others in performing environmental assessments, identified the necessary contacts to provide input concerning the environmental assessments and transmitted form letters to the specific contacts soliciting the needed information. On the other hand, 2.3.5 to the Spectra response to the RFP which graphically represents the persons that would be assigned to conduct the consulting work for the Agency identifies what would appear to be sufficient numbers of employees to conduct the task in places to be served throughout the state. The issue is raised as to whether the prior experience as described between the Agency and Spectra overcomes what on the face of the response to the RFP seems an adequate response to the requirements in criterion No. 3. The prior experience is more persuasive in determining the Agency did not act arbitrarily in assigning 0 points when it made its assessment. Again, Spectra should be allowed to take advantage of the 5 additional points that were assigned to it through the informal process for unspecified reasons. Criterion No. 7 Does the Offeror Have Prior Experience with the Agency? If yes, evaluate the experience. As explained, Spectra had prior experience with the Agency and identified that experience in response to the RFP. The committee determined to award no points for this criterion. Among the reasons for awarding no points was the attempt by Spectra to enroll project managers in the process of gaining necessary information for the environmental assessments that has been discussed in relation to criterion No. 4. As with the circumstance in criterion No. 4, Mr. Ippolito explained that it was common and acceptable to gather information from local project managers or officials related to names and phone numbers of potential contact persons that could assist in performing the environmental assessment. However, according to Mr. Ippolito, that practice should not extend to sending project managers blank form letters and requesting that the project manager identify the persons whom the blank letters should be sent to, have the project managers fill in the names and forward the letters to the contact person for Spectra's benefit. This was the problem the committee saw in its criticisms associated with Spectra's response to criteria Nos. 4 and 7. In association with criterion No. 7, the committee also expressed concern about the past willingness of Spectra to perform functions known as State Clearinghouse Acceptance and legal adds in newspapers, as part of the environmental assessments. This was in association with the 1993 and 1994 contracts. This criticism by the committee was not well-founded. Whether under the terms in the 1993 and 1994 contract to perform environmental assessments for the HOME program Spectra was obligated to provide services related to the State Clearing House Acceptance and legal adds in newspapers was debatable. The Agency eventually convinced Spectra that it should perform those tasks associated with the State Clearing House Acceptance and legal adds in newspapers. To some extent the Agency forgave that requirement to perform. To characterize the nature of the discussions between the Agency and Spectra which led Spectra to perform State Clearing House Acceptance and provide for legal adds in newspapers as an indication that Spectra was reluctant to meet the mandates for performing environmental assessments, or that Spectra could not be counted on or was unwilling to do the two tasks, constitutes an arbitrary act by the Agency. Nonetheless, its other reason for awarding Spectra 0 points for criterion No. 7 when performing the evaluation was sufficient justification. As with criterion No. 4, Spectra is entitled to the five additional points which it was granted through informal settlement discussions.
Recommendation Upon consideration of the findings of fact and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which awards Spectra 10 additional points in total for criteria Nos. 4 and 7 and otherwise denies Spectra relief. DONE and ENTERED this 21st day of October, 1996, in Tallahassee, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1996. COPIES FURNISHED: Mark T. Mustian, Esquire Gregory T. Stewart, Esquire Maureen McCarthy Daughton, Esquire Harry F. Chiles, Esquire Nabors, Giblin and Nickerson, P.A. 315 South Calhoun Street, Barnett Bank Building, Suite 800 Post Office Box 11008 Tallahassee, FL 32302 Angela Hatcher, Administrator Florida Housing Finance Agency 227 North Bronough Street, Suite 5000 Tallahassee, FL 32301-1329 Peter Okonkwo, President Spectra Engineering & Research, Inc. 345 South Magnolia Drive, Suite E-25 Tallahassee, FL 32301 Stephanie M. Gehres, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, FL 32399-2100 James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, FL 32399-2100 Informational Copies: Florida Planning Group, Inc. 9471 BayMeadows Road, Suite 401 Jacksonville, FL 32256 Genesis Group, Inc. Building 1, Suite 200 820 East Park Avenue Tallahassee, FL 32301 Post, Buckley, Schuh & Jernigan, Inc. 9432 BayMeadows Road, Suite 250 Jacksonville, FL 32256 William H. Bishop Engineers, Inc. 715 North Calhoun Street Tallahassee, FL 32303 Jim Stidham & Associates, Inc. Post Office Box 3547 Tallahassee, FL 32303 Anderson Columbia Environmental, Inc. Post Office Box 1386 Lake City, FL 32056
The Issue The issue for determination in this case is whether Florida Administrative Code Rule 62-302.300(6) is an invalid exercise of delegated legislative authority because the rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency.
Findings Of Fact The Parties The Department is the state agency authorized under Chapter 403, Florida Statutes, to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency, the Department administers the National Pollution Discharge Elimination (NPDES) permitting program in Florida. The Department promulgated the rules in Florida Administrative Code Title 62 that are applicable to the permitting of wastewater discharges. FOPB is a non-profit Alabama corporation established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the president of FOPB. Jacqueline Lane and James Lane live on property adjacent to Perdido Bay. IP owns and operates a paper mill in Cantonment, Escambia County, Florida. IP is the applicant for the Department authorizations that are the subject of DOAH Case Nos. 08-3922 and 08-3923. Background When this rule challenge was filed, DOAH Cases Nos. 08-3922 and 08-3923 (the permit cases) involved challenges by these same Petitioners to four Department authorizations for IP: an NPDES permit, a Consent Order, an approved exemption for the experimental use of wetlands pursuant to Florida Administrative Code Rule 62-660.300, and a waiver related to the experimental use of wetlands. IP later withdrew its request for the experimental use of wetlands exemption and the related waiver. Petitioners were ordered to show cause why their claim regarding the invalidity of Florida Administrative Code Rule 62- 660.300 was not rendered moot by IP’s withdrawal of its request for the exemption. Subsequently, the challenge to the validity of Florida Administrative Code Rule 62-660.300 was dismissed as moot. At the commencement of the final hearing on June 22, 2009, FOPB and James Lane announced that they were withdrawing their rule challenges except with respect to Florida Administrative Code Rule 62-302.300(6), and that the only legal ground being asserted for the invalidity of the rule is that it is vague and vests unbridled authority in the Department. Petitioners’Standing Jacqueline Lane, James Lane and a substantial number of the members of FOPB swim, boat, and make other uses of Perdido Bay. Perdido Bay would be affected by IP's wastewater effluent. The challenged rule was applied by the Department to determine that IP's proposed industrial wastewater discharge was in the public interest. The Challenged Rule Florida Administrative Code Rule 62-302.300, is entitled "Findings, Intent, and Antidegradation Policy for Surface Water Quality." Subsection (6) of the rule states: Public interest shall not be construed to mean only those activities conducted solely to provide facilities or benefits to the general public. Private activities conducted for private purposes may also be in the public interest. Most of the permits that are issued by the Department are issued to private entities whose primary purposes are personal uses or the production of private incomes and profits, rather than solely to provide facilities or benefits to the general public.
The Issue The issue to be determined in this case is whether CJC Properties, Ltd. (CJC), is eligible for state restoration funding assistance under the Petroleum Contamination Participation Program or the Florida Petroleum Liability and Restoration Insurance Program for one or more discharges of gasoline at DEP Facility No. 378943938 (“the facility”).
Findings Of Fact The Facility CJC is a Florida Limited Partnership. It is the current owner of property located at 5691 U.S. Highway 27 North, in Tallahassee. Prior to CJC’s acquisition of the property, the property was owned by Carolyn J. Chapman, John W. Chapman, Jane Chapman Latina, and Carolyn Chapman Landrum (“the Chapmans”). The property was leased to various entities and operated as a gas station. The tanks and dispensers remained in service until November, 1995. The last operator of the facility was Lake Jackson 76, Inc. There were five underground petroleum storage tanks at the facility. Before 1991, one of the tanks at the facility was used for regular, leaded, gasoline. When leaded gasoline was phased out, the tank was used for unleaded gasoline. Site Assessments and Sampling Data On November 30, 1995, the Chapmans employed Petroleum Contractors, Inc., to remove the five storage tanks. During the tank removal, Environmental and Geotechnical Specialists, Inc. (“EGS”) performed an assessment to determine whether the facility was contaminated with petroleum or petroleum products. The Underground Storage Tank Removal Report prepared by EGS noted that all five tanks appeared to be intact. Soils in the tank pit wall and bottom were not discolored. No significant contamination was observed directly below the tanks. Soil from the tank pit was stockpiled on the site. EGS observed no significant signs of contamination of this soil. The soil stockpile was also screened with a Flame Ionization Detector Organic Vapor Analyzer (OVA). No organic vapors were detected. An OVA detects any organic vapor, but is used as a screening tool to find petroleum vapors. Department rules require that an OVA reading be performed both unfiltered and filtered. The filtered reading screens out everything but methane and is “subtracted” from the unfiltered reading to determine the presence of petroleum vapors. Twenty-four soil samples were taken from various depths at nine locations in the tank pit. These samples were tested using an OVA. Nine of the soil samples, taken from four locations, had corrected OVA readings indicative of petroleum contamination. EGS concluded that “soil contamination detected in the tank pit is likely the result of a leak in the piping” between the dispensers and the tanks. Soil samples were also taken from three borings in the vicinity of the dispenser island and OVA-tested. In boring D-2, organic vapors were detected from the surface to a depth of approximately seven feet. The OVA readings from D-2 declined with depth. EGS reported that “some contamination was detected beneath a dispenser; however, it does not ‘appear’ to significantly extend below six (6) feet.” EGS did not report both filtered and unfiltered OVA readings for the soil samples taken from the dispenser area, as it had done for soil samples taken from the tank pit and the stockpile. For the dispenser area soil samples, EGS reported a single OVA reading for each sample, without indicating whether the reading was “corrected” after filtering. For this reason, the Department contends that these data are unreliable. CJC points out that EGS stated in the text of its report that the soil samples were filtered. CJC also argues that, because the filtered OVA readings for soil samples taken from the tank pit area were not different from their unfiltered readings, the OVA readings for the soil samples from the dispenser area would not have changed after filtering. The preponderance of the evidence is that the contamination in the dispenser area was petroleum. Based on EGS’ findings during the tank removal in November 1995, Petroleum Contractors, Inc., filed a Discharge Reporting Form on December 1, 1995, stating that there had been a discharge of unleaded gasoline at the facility. In January 1996, the Chapmans applied to participate in FPLRIP based on the discharge reported on December 1, 1995. By order dated January 26, 1996, the Department determined that the reported discharge was eligible for state-funded remediation assistance under FPLRIP. In 1997, another consultant, Levine Fricke Recon (LFR) conducted a site assessment at the facility and submitted its Interim Site Assessment Report to the Department. As part of its own soil sampling at the site, LFR collected a “direct push” soil boring in the dispenser island area, near the place where EGS had reported organic vapors. The boring data showed no petroleum vapors until the interval 16-to-20 feet below ground surface. LFR also collected and analyzed groundwater samples from the site. It reported that a sample taken from beneath the former diesel dispenser contained lead. Because lead occurs naturally in soils, its presence in a water sample does not confirm that a discharge of leaded gasoline occurred. In 1998, LFR conducted a second assessment of the facility site. It installed and sampled four shallow monitoring wells, designated MW-1S through MW-4S, and three deep monitoring wells, designated MW-2D through MW-4D. Groundwater samples from MW-3S and MW-3D were analyzed for lead, ethylene dibromide (EDB), and 1,2-Dichloroethane. All three substances are usually detected in a groundwater sample contaminated with leaded gasoline. On August 28, 1998, LFR submitted its Interim Site Assessment II to the Department, which shows lead and EDB were found in a sample taken from MW-3S, but not 1,2-Dichloroethane. LFR did not conclude or express a suspicion in either of its two assessment reports that leaded gasoline had been discharged at the facility. The deadline for submitting a Discharge Reporting Form or written report of contamination was December 31, 1998. A site assessment report received by the Department before January 1, 1999, which contained evidence of a petroleum discharge, was accepted by the Department as a “report of contamination.” The petroleum discharge information received by the Department before January 1, 1999, consisted of the Underground Storage Tank Removal Report, the FPLRIP claim, the Interim Site Assessment Report, and the Interim Site Assessment Report II. Post Deadline Site Assessment Data After the statutory deadline, LFR submitted its Interim Site Assessment III. This report includes January 1999 groundwater sampling data from four monitoring wells which show the presence of low levels of EDB. When EDB is found in a groundwater sample, it is a common practice to re-sample the well from which the sample was taken. Of the wells that showed the presence of EDB, only MW- 10D was re-sampled, after January 1, 1999. There was no EDB present in the groundwater when MS-10D was re-sampled. In June 2000, as part of the remediation of the contamination at the facility, an area of contaminated soil was removed to a depth of 14 feet. The area of soil removed included the former dispenser area. In January 2003, the Department notified CJC that the $300,000 FPLRIP funding cap would soon be reached. In March 2003, CJC signed a Funding Cap Transition Agreement, acknowledging that “At no time will the DEP be obligated to pay for cleanup of this discharge any amount that exceeds the funding cap.” CJC further acknowledged that it “is responsible for completing the remediation of the discharge in accordance with Chapter 62-770, F.A.C.” In 2005, CJC re-sampled one of the monitoring wells for lead and EDB. Neither substance was present. The site is not currently being actively remediated. Periodic groundwater sampling indicates that concentrations of contaminants are dropping. No further active remediation has been proposed. The cost to complete remediation is a matter of speculation. The record evidence is insufficient to make a finding about future remediation costs. Eligibility Determinations On September 2, 2003, CJC submitted a PCPP Affidavit to the Department, seeking state funding under PCPP. On October 30, 2003, the Department denied CJC eligibility for PCPP funding on the basis that the contamination was covered under FPLRIP and, therefore, was excluded from funding under PCPP. The Department has never granted PCPP eligibility for the cleanup of a discharge previously being funded under FPLRIP. Apparently, in 2005, CJC hired Glenn R. MacGraw, an expert in the assessment of petroleum-contaminated sites, to review the EGS and LFR assessments. In a letter to CJC’s attorney dated August 19, 2005, MacGraw expressed the opinion that “at least 2 discharges have occurred on this site, one in the former tank area, and one in the former dispenser area.” MacGraw’s opinion that there had been a discharge of leaded gasoline was based on the detection of EDB and lead in the groundwater. He also thought the presence of methyl tetra-butyl ether (MTBE) in groundwater samples taken from the tank pit area showed a tank leak of unleaded gasoline. CJC requested FPLRIP funding for the other alleged discharges at the facility. On March 23, 2006, the Department issued a letter formally stating its disagreement that there were other reported discharges and denying eligibility for FPLRIP funding. On March 30, 2006, the Department issued an Amended Order of Ineligibility under PCPP. The amended order added a second ground for denial, that the reported discharge was not shown to have occurred before January 1, 1995. Whether There Was A Second Discharge Eligible for Funding CJC argues that the presence of lead and EDB in the groundwater sample taken from MW-3S shows that there was a discharge of leaded gasoline at the facility. However, LFR reported that the well screen for MW-3S had probably been damaged during installation, because a significant amount of filter sand was observed in the purge water. The Department contends, therefore, that the source of the lead detected in the groundwater sample from MW-3S could have been (naturally) in the soil that entered the well. The Department also discounts the detection of EDB in the groundwater sample because EDB is an ingredient of some pesticides and can show up in groundwater when pesticide has been applied to the overlying land. Furthermore, EDB was not detected in the groundwater sample taken from MW-3D, a deeper well located near MW-3S. MacGraw does not think the EDB came from a pesticide application, because the EDB contamination at the site occurs in an elongated “plume,” in the former dispenser area, whereas one would expect to see EDB distributed evenly over the site if the source was a pesticide application. MacGraw mapped the plume of EDB by using data obtained after the discharge reporting deadline. Michael J. Bland, a Department employee and expert in geology and petroleum site assessment, believes the data from the facility are insufficient to confirm the presence of EDB or its distribution. LFR reported in its Interim Site Assessment that no significant soil contamination was found near the dispenser island. Groundwater samples from MW-3D, a deep monitoring well near MW-S3, showed no EDB, lead, or 1,2-dichlorothane. Bland opined that, if the detection of EDB in the shallow well was reliable, EDB would have been detected in the deep well, too, because EDB is a “sinker.” EDB is persistent in groundwater, so when it is not detected when a well is re-sampled, reasonable doubt arises about the detection in the first sample. Of all the wells sampled in 1999 that showed EDB, only MW-10D was re-sampled in 2003. When the well was re-sampled, there was no EDB. CJC contends that EDB was not found in the re-sampling of MW-10D because of the soil removal in 2000, but the Department contends that the soil removal would not have affected the presence of EDB in MW-10D, because the well is significantly down-gradient of the area of soil removal. It was undisputed that the presence of 1,2- dichoroethane in MW-S3 was not reliably determined. There is insufficient evidence in the record to establish that the contamination reported in the dispenser area is the source of contamination which persists at the facility. The reported contamination only affected the top six feet of soil. The soil removal to a depth of 14 feet in that area in 2000 should have fully remediated the reported contamination. The data upon which CJC relies in claiming eligibility under FPLRIP or PCPP for a second discharge are, at best, incomplete and ambiguous. CJC failed to prove by a preponderance of the evidence that a discharge of leaded gasoline occurred. CJC also failed to prove that the reported contamination in the dispenser is associated with a discharge that still exists to be remediated with state assistance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order determining that CJC is ineligible to participate in the Petroleum Cleanup Participation Program for the discharge reported to the Department on December 1, 1995, and that CJC has not demonstrated eligibility to participate in the Petroleum Cleanup Participation Program or the Florida Petroleum Liability and Restoration Program for any other discharges. DONE AND ENTERED this 9th day of July, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2008.
The Issue Whether Respondent committed an unfair employment practice by discriminating against Petitioner on the basis of race, in violation of chapter 760, Florida Statutes (2012), and Title VII of the Civil Rights Act.
Findings Of Fact Mr. Nepton is a Hispanic man who worked as a collector for CCS from November, 2011, to February, 2012. CCS is a collection agency that employs approximately 80 collectors, who are divided into departments based on the different accounts they service. Mr. Nepton was originally hired to work under the supervision of Julio Castellon, and then was transferred to a unit supervised by Danielle Santilli. All of the work collectors perform is via telephone; persons who have outstanding bills are called in order to attempt collection of the debt. During his training in Ms. Santilli's department, he received most of his training from Ms. Santilli. According to Mr. Nepton, during these training sessions, Ms. Santilli made derogatory comments about Hispanic people. If the person being called was Hispanic, she would mention that Hispanic people were stupid, dumb, and never paid their bills. Mr. Nepton claims that the comments were made throughout his entire training, which lasted approximately one month. He claims that he reported his dislike of the derogatory comments to Ariel Castellon, a supervisor. Ms. Santilli testified, and denied ever making any derogatory or inappropriate remarks about Hispanics. Mr. Castellon also denied any knowledge of Ms. Santilli making any such remarks, and testified that Mr. Nepton never complained of any such comments while he worked at CCS. Lori French testified that in her capacity as the Human Resources Director, she never received any type of complaint regarding Ms. Santilli from any employee. The undersigned credits the testimony of the CCS employees, finding it consistent and credible in light of the scant evidence produced by Mr. Nepton. Mr. Nepton did not produce a single witness who could corroborate his testimony, despite the fact that the collectors worked in an open area, in close proximity to each other. The employee handbook instructed employees to report any workplace harassment of any type with the Human Resources Department. Mr. Nepton never filed such a complaint with the Human Resources Department. On February 1, 2012, Mr. Nepton received a call from a patient of a hospital inquiring as to whether the account was paid in full. Mr. Nepton requested the patient's date of birth, but the patient asked why that information was necessary. Mr. Nepton raised his voice and became argumentative with the patient. When Mr. Nepton was asked about the phone call by his supervisor, he became argumentative in the presence of the other collectors. On February 2, 2012, Mr. Nepton met with management regarding the incident on the previous day. He became agitated, raised his voice, and pointed his finger in the supervisor's face. Mr. Nepton, who was on probationary status, was discharged from his employment on that date.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief. DONE AND ENTERED this 19th day of December, 2012, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2012.
The Issue The issue is whether Florida Petroleum Markers and Convenience Store Association (Florida Petroleum) is entitled to reasonable attorney’s fees and costs pursuant to Section 120.595(2), Florida Statutes, and if so, in what amount.1
Findings Of Fact Introduction Florida Petroleum is the prevailing party in the underlying rule challenge and requests an award of reasonable attorney's fees pursuant to Section 120.595(2), Florida Statutes.2 Florida Petroleum prevailed in DOAH Case No. 05-0529RP on one of two challenged proposed rule revisions to Florida Administrative Code Chapter 62-770, which governs cleanup of petroleum contamination. Proposed rule 62-770.220(3)(b) was held to be an "invalid exercise of delegated legislative authority." Proposed rule 62-770.220(4), was "not an invalid exercise of delegated legislative authority, except insofar as notice must be given every five years to persons other than 'local governments and owners of any property into which the point of compliance is allowed to extend,' as provided in Section 376.3071(5)(b)2., Florida Statutes."3 The Department argues that its actions were "substantially justified" because there was a reasonable basis in law and fact at the time its actions were taken. The proposed rules were approved by the Environmental Regulation Commission (ERC) on February 2, 2005, which is the time when the Department's "actions were taken." The Department does not argue that special circumstances exist that would make the award of fees unjust. Department Contamination Programs The Department's Division of Waste Management is comprised of the Bureau of Petroleum Storage Systems, the Bureau of Waste Cleanup, and the Bureau of Solid and Hazardous Waste. The Bureau of Petroleum Storage Systems administers the state's petroleum contamination cleanup program. This cleanup program encompasses the technical oversight, management, and administrative activities necessary to prioritize, assess, and cleanup sites contaminated by discharges of petroleum and petroleum products from petroleum storage systems. There are approximately 23,000 petroleum-contaminated sites statewide. Florida Administrative Code Chapter 62-770 establishes petroleum contamination site cleanup criteria. These criteria are established for the purposes of protecting the public health and the environment and for determining, on a site-specific basis, the rehabilitation program tasks that comprise a site rehabilitation program and the levels at which a rehabilitation program task and site rehabilitation program may be deemed complete. Fla. Admin. Code R. 62-770.160(8). The petroleum contamination cleanup program incorporates risk-based corrective action (RBCA) principles to achieve protection of human health, public safety, and the environment in a cost-effective manner. The phased RBCA process is iterative and tailors site rehabilitation tasks to site-specific conditions and risks. Fla. Admin. Code R. 62-770.160(8). The Bureau of Waste Cleanup administers the state's drycleaning solvent cleanup program. This program is for the cleanup of property that is contaminated with drycleaning solvents as a result of the operations of a drycleaning facility or wholesale supply facility. Florida Administrative Code Chapter 62-782 establishes drycleaning solvent cleanup criteria, established for the purposes of protecting the human health, public safety and the environment under actual circumstances of exposure and for determining, on a site-specific basis, the rehabilitation program tasks that comprise a site rehabilitation program and the levels at which a rehabilitation program task and site rehabilitation program may be deemed complete. Fla. Admin. Code R. 62-782.150(1). The drycleaning solvent cleanup program, like the petroleum contamination cleanup program, the brownfield site rehabilitation program, and the global RBCA contamination cleanup program mentioned below, incorporates RBCA principles to achieve protection of human health and the environment in a cost-effective manner. Fla. Admin. Code R. 62-782.150(1) and 62-785.150(1). In 2003, the Legislature adopted Section 376.30701, Florida Statutes, which authorizes the Department to adopt rule criteria for the implementation of what is referred to as "global RBCA," which extends the RBCA process to contaminated sites where legal responsibility for site rehabilitation exists pursuant to Chapter 376 or Chapter 403, Florida Statutes. Global RBCA is a cleanup program for contaminated sites that do not fall within one of the Department's other contamination cleanup programs. Department Rulemaking Efforts After the passage of Section 376.30701(2), Florida Statutes, the Department initiated rulemaking to develop Florida Administrative Code Chapter 62-780 (global RBCA). Section 376.30701(2) established July 1, 2004, as the date the Department was to adopt rule criteria to implement the global RBCA contamination cleanup program. At the same time, the Department initiated rulemaking with respect to revisions to Florida Administrative Code Chapters 62-770 (petroleum), Chapter 62-782 (drycleaning solvents), and Chapter 62-785 (brownfields). This decision was predicated on the similarities among the four waste cleanup programs and the Department's desire to ensure a consistent approach across the four programs and pursuant to one large rulemaking effort. As such, the Department sought to include the same notification provisions in each rule for consistency purposes. (T 33-34, 55). However, the Department also recognized at the time that the notice provision for RBCA for petroleum contamination cleanups, i.e., Section 376.3071(5)(b)2., was different from the notice provisions for RBCA cleanups for the drycleaning solvent (Section 376.3078(4)(b)), brownfields (Section 376.81(1)(b)), and global RBCA (Section 376.30701(2)(b)) programs. (T 69, 115, 126-129). In each of these three statutes, the Legislature expressly expanded the class of persons to whom notice is required to be given and expressly referred to a specific type of notice to be given (actual or constructive) depending on the class of persons designated to receive notice. Each of the latter statutes was enacted after, and presumably with knowledge of Section 376.3071(5)(b)2., which was materially amended in material part in 1996 to add, in part, the notice provision. See Ch. 96-277, § 5, at 1131, 1135-1136, Laws of Fla. In May 2004, the Department became aware of concerns with regard to on-going efforts to assess the groundwater contamination at the former American Beryllium plant in Tallevast, Manatee County, Florida. (The party's refer to the city as Tallavast, whereas the Transcript (T 36) and DEP Exhibit 1 refer to the city as Tallevast.) For approximately two years, the owner of the plant, Lockheed Martin, had been conducting an on-going assessment of the extent of the solvent (trichloroethylene) contamination. The Department was concerned that there were residential areas located adjacent to and in the immediate vicinity of the former industrial plant. In May 2004, it became apparent that there were problems with certain assumptions concerning the assessment of the groundwater contamination. First, there had been an erroneous assumption that the contamination plume was small and located predominantly on-site. Second, based on well surveys, there was an assumption that there were no human health exposure points in the form of contaminated off-site potable water wells. Significant concerns arose when it became apparent the contamination plume was more extensive than anticipated and had migrated off-site. These concerns were exacerbated when it became apparent that groundwater contamination was impacting off-site potable water wells. Tallevast residents raised concerns that they were being exposed to contamination and that they were never properly notified by the Department, upon the initial discovery of the groundwater contamination. Tallevast residents were also concerned about whether the Department had failed to properly notify then once it was discovered the groundwater contamination had migrated off-site. The problems experienced at Tallevast emphasized to the Department the need to explore available avenues to enhance public notification procedures as a whole.4, 5 The Department asserted as to a reasonable basis in fact for the proposed rules, that contamination affecting Tallevast residents provided an impetus for the Department in May 2004 to address notification of contamination to affected off-site property owners. The situation in Tallevast arose because well surveys failed to indicate the extent of the contamination plume and that residents were using private wells for potable water. The Department's objective was to make sure that if there was exposure potential, the potentially affected parties should be notified. The Department seems to agree that the failure to discover the contamination of the potable wells in Tallevast occurred during the assessment phase of the cleanup and that it had not yet gotten to the stage of determining the remediation strategy. (T 45-46). The Department's stated concerns regarding Tallevast are not specifically addressed by proposed rule 62-770.220(3)(b) and (4). (T 74-75, 95-96). The Department’s procedure for granting a temporary extension of the point of compliance is that the responsible party will propose such an extension in its remedial action plan. (The four cleanup programs provide for the establishment of a TPOC.) The Department will then issue its notice of intended agency action, notice of the agency action will be provided to the enumerated persons, and the persons receiving notice will have a 30-day comment period. (T 149-155). (Pursuant to proposed rule 62-770.220(3)(a), the person responsible for site rehabilitation (PRSR) "shall provide" actual notice "to the appropriate County Health Department and all record owners of any real property into which the point of compliance is allowed to extend . . . ." In this regard, as Mr. Chisolm testified, the process is "similar to a permit.") Mr. Sole testified that, in the course of rulemaking, Florida Petroleum argued to the Department that the "petroleum statute under 376.3071 is different as it addresses the temporary point of compliance. It's not as prescriptive as the other statutory provisions for Risk-Based Corrective Action and the dry-cleaning, the Brownfields, and now the Global RBCA [statutes]. And their concern was that because it's not as prescriptive, [the Department] should not be establishing these additional notice provisions, such as constructive notice . . . But their fear was or concerns . . . were that you're going to engender a lot of litigation that's unnecessary because, as soon as you say the word 'contamination,' somebody is going to want to sue me . . . . And I understood that position. But at the same time, the lessons that we learned were that failure to provide that notice, unfortunately, can cause exposure and can cause a public health concern; and [the Department] needed to balance the two." (T 63-64, 122). Mr. Chisolm testified, in part, about the development of the constructive notice provision in proposed rule 62- 770.220(3)(b) and explained that the global RBCA, brownfields, and drycleaning solvent statutes required constructive notice to residents and business tenants of impacted properties.6 Mr. Chisolm further explained: So, if you're going to give notice to the legal owners of a piece of property, many cases there are tenants there. And they may not get the word, and they may be the ones that are drinking the water. The same with business tenants. So the idea was let's give notice to the people who are going to be or potentially going to be affected by this contamination, which is, after all, under the property which they may be inhabiting and using. So that was the purpose for the rule change in this case. Let's give notice to everybody who could potentially be affected by the rule, by the contamination beyond the property boundaries . . . . The whole idea behind RBCA, Risk- Based Corrective Actions, is that, if there's no exposure, there's no risk. There's no danger to the individual, to any individual. (T 116-117).
