The Issue The issue to be resolved in this proceeding concerns whether the above-named Respondents applied pesticide chemicals to a pre-construction application site for pre-treatment for termites and wood-destroying organisms, which was contrary to label instructions, by not applying the specific amount (volume) and concentration designated by the label in alleged violation of Section 482.051(5), Florida Statutes, and Rule 5E-14.106(6), Florida Administrative Code.
Findings Of Fact The Respondents are certified operators and applicators employed by pest control companies in the Panama City area. Stephen W. Daniels holds License No. 43026. Earl G. Pettijohn holds License No. 92006. Mr. Pettijohn is an applicator at Killingsworth Environmental, Inc., and Mr. Daniels is a certified operator for Environmental Security of Panama City. The Petitioner is an agency of the State of Florida charged with regulating the licensure, operations, and practices of pest control operators, applicators, and licensed pest control businesses in the State of Florida. The pre-construction termite treatment in question occurred on October 16, 2001. The treatment or job site was at the new construction of the Northwest Florida Community Hospital at 1360 Brickyard Road, in Chipley, Florida. Two trucks were used on the October 16, 2001, job: one was a truck marked "Killingsworth Environmental," driven by Mr. Pettijohn; the other truck was marked "Atlas" and was driven by Mr. Daniels. The chemical used in the pre-treatment for termites at the job site was a soil pesticide known as "Cyren-TC." The label for Cyren-TC indicates a requirement of 0.50 percent to 1.0 percent concentration, with an aqueous emulsion used for pre-treatment for termites. The laboratory report and analysis of the pesticide sample taken from Mr. Daniels' truck tank, at the hose end, was found to contain 0.38 percent chlorphyrifos (active ingredient), which represents a 24 percent deficiency from the minimal required rate of 0.50 percent per the Cyren-TC label. The Respondents, Mr. Daniels and Mr. Pettijohn, were called by the contractor of the job in Chipley on the evening of October 15, 2001, with his request that they perform a pre-treatment termite treatment the next morning for a monolithic slab described as being of an area of 12,000 square feet. The Respondents, therefore, filled their trucks, mixing the pesticide, based upon that measurement on the evening of October 15, 2001. They arrived at the job site the following morning at 7:15 a.m. They did not use the two trucks to treat any other sites between the filling of the trucks and their arrival on the job site in question on the morning of October 16, 2001. Upon inspecting the job site, Mr. Daniels measured the slab and determined the actual square footage to be approximately 9,300 square feet. That figure is not disputed. The truck Mr. Daniels was driving had a tank and spray capacity of 700 gallons. The 700 gallons was represented by a 500-gallon tank and by an additional 200-gallon tank. The truck was completely filled when it arrived on the job site. The truck Mr. Pettijohn was driving contained a capacity of 600 gallons in two tanks of 300 gallons each. It was completely full when it arrived at the job site. Mr. Owens, the Department's field inspector who testified in support of the Administrative Complaint, did not inspect either truck to determine or estimate their total capacities. He was not aware of how much either truck employed on the job in question actually held in total volume. He also did not observe how much chemical was left over still in the tanks in each truck when the first treatment application effort had concluded, on or shortly before 9:00 a.m., on October 16, 2001. The Respondents applied an aqueous emulsion of Cyren-TC to the 9,300 square foot monolithic slab by spraying a volume from each truck. Mr. Daniels' truck pumped five to seven gallons per minute, and Mr. Pettijohn's truck pumped seven to nine gallons per minute. Both trucks were fitted with gravity-fed pumps. The pumps on each truck would pump a higher volume, closer to seven gallons per minute or nine gallons per minute respectively, as to Mr. Daniels' and Mr. Pettijohn's trucks when the tanks were more nearly full because of the higher pressure feeding the gravity-fed pump. The volume per minute pumping rate would gradually decrease as the level in the tank became lower. Both Mr. Daniels and Mr. Pettijohn started pumping at essentially the same time or within one minute of each other. Mr. Daniels testified that he and Mr. Pettijohn applied the pesticide for 73 minutes measured by the digital clock on his radio. Mr. Daniels determined the amount of time necessary to pump the pesticide on the site from both trucks by taking an average of the output volume of the pumps on each truck. He began timing the application when he pulled the hose to the far end of the slab and turned it on. When the treatment application was complete, Mr. Daniels had approximately 50 gallons of chemical remaining in the 500-gallon tank on his truck. He had not yet used any of the 200-gallon tank on his truck. Mr. Pettijohn had approximately 55 to 60 gallons of chemical left from the two tanks totaling 600 gallons on his truck when he started the application. The testimony as to the amount of chemicals left in the tanks after this first application is unrefuted and is accepted. Mr. Daniels established that, although when the tanks were approaching empty (when the calibration was made by Mr. Owens), at which time Mr. Daniels' tank would only pump at a rate of five gallons per minute, that the pumps would pump at a higher rate, approaching seven gallons per minute as to Mr. Daniels' truck and nine gallons per minute as to Mr. Pettijohn's truck, when the tanks were full. Consequently, if one takes an average of the output volume for each truck of slightly over six gallons per minute for Mr. Daniels' truck and slightly over seven gallons per minute for Mr. Pettijohn's truck, one arrives at an application volume for Mr. Daniels' truck of 438 to 450 gallons of chemical applied. One also arrives at a volume applied for Mr. Pettijohn's truck of approximately 547 gallons if one uses an average application rate of 7.5 gallons per minute. Since the testimony as to the remaining product in the tanks is unrefuted because Mr. Owens did not observe the amount of product left in the tanks on the two trucks, and if one uses an average application rate of 7.5 gallons per minute for Mr. Pettijohn's truck and six gallons per minute or slightly more for Mr. Daniels' truck, one arrives at a figure of between 50 and 60 gallons of product remaining in Mr. Pettijohn's truck, and approximately 50 to 60 gallons remaining in Mr. Daniels' truck if one uses Mr. Daniels' factor of 73 minutes to multiply times that average application per minute rate. Thus, the approximate amount of product remaining in the tanks of both trucks being unrefuted, it is thus established that Mr. Daniels' figure of 73 minutes as the application time is most nearly correct. While the pre-treatment application was being performed, Investigator Owens was parked at a nearby parking area observing the application procedure and timing it with a stopwatch. Mr. Owens determined that Mr. Daniels had pumped for 45 minutes and 30 seconds and Mr. Pettijohn pumped for 45 minutes. Using Mr. Owens' figure of seven gallons per minute for Mr. Pettijohn's truck and five gallons per minute for Mr. Daniels' truck (the lowest pumping rates) for the entire pumping operation (which for the reasons found above is not accurate), Mr. Owens came up with an approximate application volume for Mr. Daniels' truck of 228 gallons and approximately 315 gallons for Mr. Pettijohn's truck. This figure is not realistic when one considers the amount of product left in the tanks of the two trucks at the end of the first application operation. There certainly was not an excess of 250 gallons of product left in the 500-gallon tank of Mr. Daniels' truck and 285 gallons of product left in the tank of Mr. Pettijohn's truck at the end of that first pumping operation on or before 9:00 a.m., on October 16, 2001. It cannot be determined from the testimony and evidence why there is such a great disparity in the time period Mr. Owens postulated for the treatment operation he observed, versus the most accurate 73-minute period established from Mr. Daniels' testimony. After confirming that the Respondents had completed their application effort, Mr. Owens conducted an inspection with regard to both trucks, obtaining information, and filling out necessary paperwork. Mr. Owens then took a sample from Mr. Daniels' truck only when he completed the calibrations of the trucks. That calibration, as found above, noted an application rate of five gallons per minute for Mr. Daniels' truck at a point when there was only approximately 50 gallons of product left in the 500-gallon tank to feed the gravity-supplied pump on Mr. Daniels' truck. Mr. Owens took a sample of the pesticide from the hose-end of the pump on Mr. Daniels' truck and placed it in a 32-ounce jar covered with a lid. The jar was not pre-labeled with a sample number. Mr. Owens taped the lid of the jar, and initialed it, so that the tape seal could not be broken without disturbing his initials and put the jar in the trunk of his car in an ice chest with ice. As a matter of practice, Mr. Owens does not offer a duplicate sample to an operator unless he asked for one and he did not ask Mr. Daniels to sign the tape on the jar. Mr. Owens did not take a chemical sample from Mr. Pettijohn's truck and there is no evidence as to what concentration of pesticide was in the tank on Mr. Pettijohn's truck. In the two pesticide applications on the morning of October 16, 2001, Mr. Pettijohn's truck pumped a total of 600 gallons of product on the site. It is not possible to make a factual determination as to the chemical concentration of the volume of product in Mr. Pettijohn's truck. The water used to mix the chemical for application at the job site was obtained from the water plant in Panama City. It had been, at some point, chemically treated with chlorine. There is no evidence as to any chlorine content in the water, which is chemically treated with chlorine, at least in the potable water stage and possibly in the waste water treatment stage. The sample was collected, as noted above, on October 16, 2001, but was not delivered to the laboratory to be analyzed as to the pesticide concentration until October 26, 2001. There is no indication on the laboratory report of the actual date of processing by the lab, but the final report was issued on November 14, 2001. There was at least a lapse of ten days from collection to analyzation by the laboratory. Testimony was presented concerning a study done by a Clemson University scientist which indicated that chlorine in municipal tap water was enough to degrade pesticides like that involved in this case by a factor of 32 percent in three hours. It has not been established that that occurred here, although logically some chlorine content may have been in the water that was used to mix the chemical. It is also well-known in the pesticide industry that an appropriate reaction and safeguard for a chemical spill of Chlorpyrofos is the application of bleach or chlorine to neutralize or degrade the chemical. It is not clear whether the deficient concentration pumped from the Daniels'-operated truck resulted from only chlorine content in the mix water or by the lapse of time caused by mixing the chemical the evening before it was to be used the following morning (in the interest of arriving at the job site early that morning per the instructions of the contractor). It may have been simply operator error in the proportions of water to chemical which were mixed when the tanks were filled or a combination of these three factors. Moreover, it cannot be determined precisely what concentration was actually deposited on the surface at the job site because Mr. Pettijohn's truck pumped approximately 600 gallons of total volume on the site in two applications and Mr. Daniels' truck pumped approximately 438 to 450 gallons in the first application and approximately 220 gallons in the second application, and the concentration of the chemicals pumped from Mr. Pettijohn's truck is unknown in so far as the evidential record in the case is concerned. Thus, it cannot be definitively determined what concentration of chemical actually was deposited on the surface of the job site. In any event, after Mr. Owens had calibrated the pump on Mr. Daniels' truck and taken his sample, both Mr. Daniels and Mr. Pettijohn rolled up their hoses, got in their trucks, and left the job site. After they left the job site, Mr. Owens notified the builder that the pre-treatment had been inadequate in terms of the volume of pesticide applied and so the builder requested that Mr. Daniels and Mr. Pettijohn return and apply more chemical. They arrived at the job site some 15 to 20 minutes after they had initially left and began spraying the additional chemical in the second application that morning. When Mr. Daniels and Mr. Pettijohn returned to the site, Mr. Daniels told Mr. Owens that he disagreed with Mr. Owens' volume calculations. In any event, Mr. Owens directed both Mr. Daniels and Mr. Pettijohn to pump additional volume onto the site. Thus, at Mr. Owens' direction, they pumped the volumes remaining in their trucks onto the site (with the exception of approximately 30 gallons, which was finally remaining in Mr. Daniels' truck), for a total of approximately 1,280 to 1,300 gallons being pumped on the job site. Thus, in light of the above calculations and findings, the site actually received approximately 280 to 300 gallons more than the prescribed labeled rate.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered assessing a fine against Respondent Stephen W. Daniels in the amount of $350.00, and it is further recommended that the Administrative Complaint as to Respondents Earl G. Pettijohn and Environmental Security of Panama City be dismissed. DONE AND ENTERED this 3rd day of January, 2003, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 January, 2003. COPIES FURNISHED: Robert O. Beasley, Esquire Litvak & Beasley, LLP 220 West Garden Street, Suite 205 Post Office Box 13503 Pensacola, Florida 32591-3503 Jack W. Crooks, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street Room 520, Mayo Building Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street Mail Stop 38 Tallahassee, Florida 32399-0800
The Issue The issue presented is whether Respondents, Holmes Dirt Service, Inc., and William J. Holmes, are in violation of various rules and regulations as alleged in the Notice of Violation issued by Petitioner, Department of Environmental Protection (Department).1
Findings Of Fact The Parties The Department is charged with the duty to administer and enforce the provisions of Chapter 403, Florida Statutes, and the rules promulgated thereunder in Chapter 62, Florida Administrative Code. Respondent, Holmes Dirt Service, Inc. (Holmes, Inc.), is a Florida corporation authorized to do business in the State of Florida. Holmes, Inc., along with William J. Holmes (Holmes), is responsible for the operation and management of a solid waste facility permitted by the Department under the name "Holmes Fill Dirt Landfill" (Facility). Holmes is a citizen of the State of Florida. Holmes was also the Director of Holmes Dirt Service, Inc. Background On or about August 24, 1998, the Department issued Permit/ Certification No. SO42-0133361-001 to Holmes Fill Dirt Landfill for the operation and management of a C & D disposal facility. The permit was sent to the attention of Holmes and had an expiration date of August 24, 2003. This was a renewal permit, with the initial permit issued in or around 1993. On or about June 26, 2000, Respondents notified the Department that the facility was temporarily closed. The Facility has remained closed since that time. Holmes, Inc., and Holmes own and operate the Facility known as Holmes Fill Dirt Landfill Holmes testified by deposition that he received a Conditional Use Permit from Marion County to operate the Facility. This permit expired on June 1, 2000. The Facility has been closed since at least June 1, 2000, although it has not been officially closed pursuant to Department rules.2 The Facility has not received any additional C & D material after June 1, 2000. On December 17, 2001, the Department issued a Notice of Violation to Holmes, Inc., and Holmes. On June 3, 2002, Respondents requested an administrative hearing before the Division. Count I-Failure to Provide Department with Adequate Financial Assurance Documentation In Count I, the Department alleges "that from June 2000, to the present, Respondents have failed to provide the Department with adequate financial assurance documentation." On June 4, 2001, the Department sent Respondents a letter advising that the financial assurance documentation was inadequate. (Respondents admit the letter was sent, but deny their documentation was inadequate.) The Department specifically contends that Respondents did not provide an annual update of the closing costs to the Department and that the assurance bond, previously issued in 1998, see Finding of Fact 11, was no longer acceptable to the Department. Rule 62-701.730(11), Florida Administrative Code, requires an owner or operator of an off-site construction and demolition debris disposal facility to provide to the Department proof of financial assurance "issued in favor of the State of Florida in the amount of the closing and long-term care cost estimates for the facility." This information is required to be submitted with the permit application for the facility. Financial assurance is required should the State of Florida have to take over closure or long term care of a facility. On May 29, 1998, Holmes, Inc., and Holmes (as Vice President of Holmes Inc.) entered into a Trust Agreement with United Southern Bank, as Trustee, to provide financial assurance for the Facility. This agreement contained a cost estimate of $76,551.72 for closure and post-closure of the Facility. On April 29, 1998, a bond was executed between Holmes, Inc., and Frontier Insurance Company (Frontier) in this amount. Thus, when the C & D permit was renewed in 1998, Respondents obtained financial assurance in the form of a closure cost/long-term care bond from Frontier. Rule 62-701.630(3), Florida Administrative Code, pertaining to "cost estimates for closure," provides that the owner or operator shall estimate the total closure cost for the permitted potions of the landfill for the period in the operation "when the extent and manner of its operation make closing costs most expensive." Rule 62-701.630(4)(a)-(d), Florida Administrative Code, pertaining to "cost adjustments for closure," requires the financial assurance to be updated annually to account for the inflation factor of 1.01. Once a bond is in place, as here as of 1998, these subsections require the permittee, here Holmes Inc., to provide the Department, on an annual basis, with an update to the closure cost, which includes the inflation factor. Additionally, the Department requires notification from the owner or operator that the annual update has been made. Prior to 2001, there was no set time for a facility to report this information. As of 2001, each facility was required to report by March 1 of each year. In 2000, the Department's Tallahassee office notified its Central District Office that the financial assurance for the Holmes Fill Dirt Landfill was inadequate. On June 14, 2000, the Central District Office mailed a letter to the Holmes facility notifying Respondents that there was a problem with financial assurance in that as of June 1, 2000, Frontier was no longer listed as an acceptable surety and, as a result, Respondents were requested to "submit proof of alternate financial assurance," or risk an enforcement action. A letter dated November 15, 2002, from Frontier to Judith Holmes, who is listed in the letter as the President of Holmes Dirt Service, Inc., was sent to Respondents to notify them that premiums were still due and outstanding on their closure/long-term care financial assurance bond for the past two years. This letter also informs that it was the position of Frank Hornbrook of the Department "that all of the requirements covered by our bond have not been satisfied and our bond has not been officially closed by the obligee. As a result, this bond still carries liability and premiums due." (The Department does not release a bond until a facility is officially closed and the Facility is not officially closed.) Invoices for "01/02 and 02/03 renewal premium due" were enclosed with the letter. Holmes admitted that the premium is past due and that he has no money to pay the premium. Even though the bond renewal premiums are past due, there is no persuasive evidence that Frontier has been relieved of its obligations under the bond issued in 1998. Rather, the Department wants a replacement bond from Respondents, but the original bond will remain in place until a replacement bond is furnished by Respondents. In fact, the Department will look to Frontier for potential payment under the 1998 bond, if necessary. However, Respondents have not provided the Department with the inflation update financial assurance in 2001. As a result, the current financial assurance for Holmes Fill Dirt Landfill is inadequate. Count II- Failure to Provide Ground Water Monitoring Reports The Department alleged that from "June 2000 to June 2001, Respondents failed to sample and analyze the ground water in accordance with the approved ground water monitoring plan for two consecutive sampling events." Respondents admit these allegations. Apparently, the last report was submitted to the Department in 2000. The Department does not allege that the ground water on and off-site violate Department rules. Holmes testified during a deposition that "the water tests have been clean. . . . until he stopped the sampling process." Holmes says he does not have "any money"--"[he is] broke." Count III-Objectionable Odors The Department alleged that "[d]uring the period June 2000 to the present, the Department has received numerous complaints from residents in the area, alleging objectionable odors emanating from the landfill." Respondents deny that there have been "objectionable odors." Chapter 62-701, Florida Administrative Code, pertains to "Solid Waste Management Facilities." Rule 62-701.730(7)(e), Florida Administrative Code, provides that C & D debris disposal facilities "shall be operated to control objectionable odors in accordance with Rule 62-296.320(2), F.A.C. If objectionable odors are detected off-site, the owner or operator shall comply with the requirements of paragraph 62-701.530(3)(b), F.A.C."3 Rule 62-701.200(84), Florida Administrative Code, incorporates the definition of "objectionable odors" found at Rule 62- 210.200(181), Florida Administrative Code. "Odor" is defined as "[a] sensation resulting from stimulation of the human olfactory organ." Rule 62- 210.200(182), Florida Administrative Code. Rule 62- 210.200(181), Florida Administrative Code, defines an "objectionable odor" as "[a]ny odor present in the outdoor atmosphere which by itself or in combination with other odors, is or may be harmful or injurious to human health or welfare, which unreasonably interferes with the comfortable use and enjoyment of life or property, or which creates a nuisance." Rule 62-296.320(2), Florida Administrative Code, provides that "[n]o person shall cause, suffer, allow or permit the discharge of air pollutants which cause or contribute to an objectionable odor." See also Rule 62-210.200(19)-(20), Florida Administrative Code. Joint Exhibit I is a study currently being done by Professor Timothy Townsend, Ph.D., of the University of Florida, Department of Environmental Services, which states that disposal of drywall, which contains gypsum, has caused hydrogen sulfide generation ("rotten egg" smell) at numerous C & D landfills in Florida. (Dr. Townsend is recognized as an authority on landfills.) Further, the primary constituents in the gas creating the problem is, among other reduced sulfur compounds, hydrogen sulfide. The main ingredient for these compounds is gypsum drywall. The study finds that hydrogen sulfide possesses a very strong odor at very low concentrations and is known to be toxic at high concentrations. The discussion of human health impact with regard to odor problems is raised and culminates with the observation that while hydrogen sulfide concentrations in ambient air surrounding C & D waste landfills are less than those thought of as harmful, some studies indicate that long- term exposure even to low concentrations can have a health impact.4 Holmes admitted that there is an odor problem at the Facility caused by gypsum and drywall and that the odor is worse in rainy weather. Holmes also admitted attempting to correct the problem by previously inviting individuals from the University of Florida to the facility, but reported that there was nothing they could do at that time, except for keeping the area covered with dirt. Individuals residing near the Facility offered opinion testimony that they suffered various problems resulting from the odor emanating from the Facility. Neighbor Charles F. LaBell, who resides 500 to 600 feet from the landfill, testified that the odor began as a rotten egg smell and evolved into what they "assumed was a hydrogen sulfide" odor. Mr. LaBell testified to being familiar with the odor of hydrogen sulfide due to his work experience at a wastewater treatment plant. Mr. LaBell further stated that the odor was unpredictable and not constant, but he equated rainy periods and "foggy mornings" with times when the odor would occur. The neighbors have found that outdoor activities have been severely impacted, resulting in a loss of use of portions of their property and diminished enjoyment of their outdoor life. Neighbor Donald L. Strickland confirmed Mr. LaBell's testimony, stating, in part, "You can't go outdoors, you can't stand it." James Bradner, an employee with the Department for twenty-three years and current manager of the Department's solid and hazardous waste program, offered opinion and expert testimony on the issue of odor problems at C & D debris disposal facilities. Mr. Bradner has served in a technical advisory capacity to a technical awareness group on odors caused by gypsum drywall in C & D debris facilities and has had experience at various C & D debris facilities in the State of Florida contending with odor problems. Mr. Bradner has experienced hydrogen sulfide odors at water treatment plants and would characterize the odor as a rotten egg odor. He has also had experience with C & D debris disposal facilities dealing with gypsum-related odor problems and testified that there are various methods to deal with the odor problems, such as putting an impervious cap (excluding water and liquids) of a clay liner and actually closing the Facility. Mr. Bradner has never been on the Facility site. The Department's rules do not define "health." Odor is a subjective measure, according to Mr. Bradner. Department employee John Turner was responsible for taking air samples in order to assess the odor problems at the Facility. Mr. Turner has been with the Department for 26 years, and in his experience with the Department, has smelled the rotten egg odor of hydrogen sulfide at sewage treatment plants and municipal solid waste facilities. Mr. Turner met with neighbors residing near the Facility as a results of complaints of odor. He visited the Facility five times to collect air samples. He detected an odor during his initial three visits, but did not take any samples because the aired smelled was not representative of a strong odor. For Mr. Turner, during each visit, the odor was the same in quality. There was some variation in strength. "It was periodic in some cases and less periodic in other cases." He collected samples during his fourth and fifth visits, but the "samples were below the minimum detection levels for the method." Mr. Turner offered no scientific evidence that would indicate that the air was harmful on the dates when samples were taken and analyzed. Nevertheless, Mr. Turner opined that the odor was objectionable in accordance with the definition found in Rule 62-210.200(181), Florida Administrative Code, on all five occasions. Count IV-Failure to Control Access The Department alleged that "access to the Facility was not completely controlled." Respondents deny the allegation. Rule 62-701.730(7)(c), Florida Administrative Code, provides: "Operation requirements. Owners and operators of construction and demolition debris disposal facilities shall comply with the following requirements by May 1, 1997, or at the time of permit issuance, whichever is sooner: . . .(c) Access to the disposal facility shall be controlled during the active life of the facility by fencing or other effective barriers to prevent disposal of solid waste other than construction and demolition debris." Department employee Gloria-Jean DePradine testified that Florida Rules require that all C & D facilities have an effective barrier so as to prevent unauthorized disposal of waste. An effective barrier could be fencing, although the Department does not require a specific type of fencing. It depends on the situation. Holmes originally owned a 46-acre tract (the property). The Facility is located on 13 acres of this property. Holmes resided on the property until he sold his residence in 2000 to Valentina Ellis. The property has an earthen berm along Highway 42, the southern boundary of the property, which is a barrier. The entrance to the property is controlled by a gate, which provides access to the property. There is no fence separating the Facility from the residence. A fence exists along the perimeter of the property. The property is in the same condition today as when the Department originally issued the permit in 1993. When the Facility was permitted and operated by Holmes, the Department found the access control to be acceptable. However, when a portion of the property (10 acres) was sold to Ms. Ellis, access was no longer being controlled completely because Holmes had provided the necessary security for the Facility, being the owner of the entire 46-acre tract. Because there are two separate property owners, Ms. Ellis can now directly enter the Facility property, or any other members of the public that entered her property, could enter the Facility and dump unauthorized waste. Randall Cunningham has been employed with the Department since May 1999, and has been working in the solid waste section since October 2000. On November 19, 2001, Mr. Cunningham conducted an inspection of the Facility site in response to an odor complaint and found that there was no barrier between the property owned by Ms. Ellis and the Facility. Mr. Cunningham was able to drive from Ms. Ellis’ property onto the landfill. Mr. Cunningham saw a fence leading onto Ms. Ellis' driveway with a swinging gate attached to a post, which was attached to a fence. Mr. Cunningham did not visit the Facility while it was in operation. There is no effective barrier between Ms. Ellis' property and the Facility. Additionally, the Facility is not yet officially closed. Count V-Investigative Costs The Department alleged that it incurred expenses of not less than $500 while investigating this matter. Investigative costs are recoverable pursuant to Section 403.141(1), Florida Statutes, which states: "Whoever commits a violation specified in s. 403.161(1) is liable to the state for . . . reasonable costs and expenses of the state in tracing the source of the discharge, [and] in controlling and abating the source and the pollutants. " Mr. Bradner’s salary is approximately $35.00 per hour. He spent approximately 20 to 30 hours on this case which would total approximately $700.00. Mr. Turner’s salary is approximately $25.00 per hour. Mr. Turner visited the Facility on five separate occasions in order to attempt to collect an air sample. It took him an hour and a half, to one hour and 45 minutes to get to the Facility. He usually spent approximately one half hour at the Facility. The Department conducted the two sampling events referred to above, which were sent to a lab in Los Angeles for analyses. Each analysis cost $250.00.
Conclusions Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore ORDERED: Respondents shall forthwith comply with all Department rules regarding solid waste management as related to the disposal of C & D debris. Respondents shall correct and redress all violations in the time periods required below and shall comply with all applicable rules in Chapters 62-296 and 62-701, Florida Administrative Code. Within 30 days of the effective date of this Final Order, Respondents shall prevent unauthorized waste disposal at the Facility, and shall provide access control by the use of fencing, gates, or other effective barriers on the portion of property that is contiguous with property owned by Ms. Valentina Ellis. Within 30 days of the effective date of this Final Order, Respondents shall obtain adequate financial assurance and shall provide the Department with proof of financial assurance issued in favor of the State of Florida, in the amount of the closing and long-term care cost estimates for the Facility, if the 1998 renewal bond is no longer in full force and effect. (If the renewal bond is in full force and effect, Respondents shall provide the Department with an appropriate financial update.) Otherwise, proof of financial assurance shall consist of one or more of the following instruments which, comply with the requirements of Rule 62-701.630(6), Florida Administrative Code: trust fund agreement; certificate of deposit; surety bonds guaranteeing payment; surety bonds guaranteeing performance; irrevocable letter of credit; closure insurance; or financial test and corporate guarantee. Respondents shall continue to monitor and analyze the ground water at the Facility in accordance with the approved monitoring plan through the active life of the Facility, and for five years after closure activities are completed. The ground water monitoring results shall be submitted to the Department for review within 45 days of each sampling event. Respondents shall control any objectionable odors emanating from the Facility in accordance with Rule 62- 296.320(2), Florida Administrative Code. Since strong odors have been detected off-site, beyond the disposal area boundary, Respondents shall comply with the requirements of Rule 62- 701.530(3)(b), Florida Administrative Code. See Endnote 3. Therefore, within 30 days of the effective date of this Final Order, Respondents shall implement a routine monitoring program to determine the timing and the extent of any off-site odors. If the monitoring program confirms the existence of objectionable odor, Respondents shall submit to the Department for approval an Odor Remediation Plan (Plan) within 60 days of confirmation of objectionable odors. The Plan shall describe the nature and extent of the problem and the proposed remedy. The Plan shall be implemented within 30 days of approval. Upon review of the Plan, the Department may request additional information. Any additional information shall be submitted to the Department within 30 days of receipt of the Department’s written request. If additional information is not submitted in a timely manner, the Department will approve or deny the Plan as submitted. Upon approval, the Plan shall be incorporated herein and made part of this Final Order and the Respondents shall implement the conditions in the Plan pursuant to an approved schedule. If the proposal is denied, Respondents shall submit a new plan or modifications to the plan within 30 days and the review process shall continue as detailed herein. Respondents shall submit monthly reports to the Department. The reports shall include all data collected during the monitoring. The first report shall be submitted to the Department within 45 days of the implementation of the plan and shall continue every 30 days thereafter. Respondents are ordered to close the Facility within 60 days of this Final Order, unless the time is extended by the Department. Respondents shall implement closure activities in accordance with Rule 62-701.730(9)(b)(c)(d) and (10), Florida Administrative Code. Closure activities shall include, but not be limited to the following: Grade and compact the disposal area to eliminate ponding, promote drainage and minimize erosion. Establish and maintain side slopes no greater than three feet horizontal to one foot vertical rise in all above-grade disposal areas. Establish and maintain final cover consisting of a 24-inch thick layer of clean soil, the upper six inches of which shall be capable of supporting vegetation. Seed and/or plant vegetative cover over the disposal area. Respondents shall monitor the effectiveness of the cover for a minimum of five years following completion of closure activities, and acceptance by the Department. Within 30 days of the completion of the closure activities, Respondents shall provide the Department with "Certification of Closure Construction Completion" and a final survey report, conducted by a Professional Land Surveyor in accordance with Rule 62-701.610(3) Florida Administrative Code, if the disposal operation has raised the elevation higher than 20 feet above natural land surface. Within 60 days of the effective date of this Order, Respondents shall pay $3,000.00 to the Department for the administrative penalties assessed above. Payment shall be made by cashier's check or money order payable to the "State of Florida Department of Environmental Protection" and shall include thereon the OGC Case No.: 01-1946 and notation "Ecosystem Management and Restoration Trust Fund." The payment shall be sent to the Department of Environmental Protection, Central District Office, 3319 Maguire Boulevard, Suite 232, Orlando, Florida 32803-3767. In addition to the administrative penalties, within 60 days of the effective date of this Final Order, Respondents shall pay $500.00 to the Department for costs and expenses. Payment shall be made by cashiers check or money order payable to "State of Florida Department of Environmental Protection" and shall include OGC Case No. 01-1946 thereon with the notation "Ecosystem Management and Restoration Fund." The payment shall be sent to the Department of Environmental Protection, Central District Office, 3319 Maguire Boulevard, Suite 232, Orlando, Florida 32803-3767. Respondents will remain liable to the Department for any damages resulting from the violations alleged herein and for the correction, control, and abatement of any pollution emanating from Respondents' Facility. Respondents may request and the Department may extend the time limits imposed by this Final Order. DONE AND ORDERED this 24th day of December, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 24th day of December, 2002.
The Issue The issue for determination is whether Redd’s Cleaners, DEP Facility No. 139502588 is eligible for state-administered cleanup under the Drycleaning Solvent Cleanup Program pursuant to Section 376.3078, Florida Statutes.
Findings Of Fact Metropolitan Dade County (Petitioner) is a political subdivision of the State of Florida. Pursuant to Chapter 24, Metropolitan Dade County Code, Petitioner regulates, among other things, the use, storage, and disposal of industrial wastes and hazardous substances in Dade County. Sekoff Investments, Inc. (Intervenor) is a Florida corporation and is the owner of commercial real property located at 5821 Ponce de Leon Boulevard, Coral Gables, Florida. Intervenor is a "real property owner" as defined by Section 376.301(25), Florida Statutes (1995). Florida Department of Environmental Protection (Respondent DEP) is an agency of the State of Florida. Pursuant to Chapters 20, 376, and 403, Florida Statutes, Respondent DEP has jurisdiction, among other things, over the regulation and protection of the State's surface waters, groundwater, and other natural resources. From 1956 to December 1994, Intervenor leased its property to "drycleaning facilities," as that term is defined by Section 376.301(8), Florida Statutes (1995), which operated under the name "Redd's Cleaners" (Respondent Cleaners). Intervenor was not an owner of the drycleaning facilities, nor did it participate in their management or operation. Intervenor's property has never been served by sewers and has a septic tank. Intervenor's property is not in an area served by private drinking water wells or in a cone of influence of a County wellfield. Starting in 1988, Petitioner began inspecting drycleaning facilities and requiring them to obtain operating permits pursuant to Section 24, Metropolitan Dade County Code. On February 28, 1989, Petitioner issued Operating Permit No. IW5-3387-88 to Jen-Dan, Inc., d/b/a Respondent Cleaners. Operating Permit Nos. IW5-3387-89, IW5-3387-90, IW5-3387-91, IW5-3387-92, and IW5-3387-94 were subsequently issued for the period between April, 1989 through April, 1995. On October 14, 1993, Petitioner collected soil and groundwater samples from the septic tank and storm drain/soakage pit at Intervenor's property and discovered elevated levels of perchloroethylene, a "drycleaning solvent," as that term is defined by Section 376.301(9), Florida Statutes (1995). On March 15, 1994, Petitioner issued Respondent Cleaners and Intervenor a Notice of Violation and Orders for Corrective Action (NOV). The NOV provided that the presence of drycleaning solvents in the septic tank and storm drain/soakage pit violated Sections 24-11, 24-13, 24-14, 24-26, and 24-55, Metropolitan Dade County Code, and ordered Respondent Cleaners and Intervenor to submit a formal plan for the assessment and cleanup of the drycleaning solvent contamination. The cited provisions of the Dade County Code generally provide that it is unlawful to throw, drain, run, seep, or otherwise discharge industrial or liquid wastes into septic tanks, sewers, or waters of the County; to cause or maintain a nuisance or sanitary nuisance as defined by the Metropolitan Dade County Code; or to violate any provision or condition of an operating permit. Intervenor hired the environmental consulting firm, REP Associates, Inc., which prepared and submitted to Petitioner a Contamination Assessment Plan (CAP) dated April 21, 1994. By letter dated May 5, 1994, Petitioner approved the CAP with modifications, and required the immediate pump out and disposal of the contaminated contents of the septic tank and storm drain/soakage pit. In May and June, 1994, Intervenor began collecting soil, groundwater, and sediment samples from the septic tank and storm drain, and installed a groundwater monitoring well, as required by the CAP. The test results disclosed the presence of drycleaning solvents in the soils and groundwater at Intervenor's property. The contaminants in the septic tank and storm drain/soakage pit were a source or a likely source of soil and groundwater contamination at the facility. On May 8, 1994, Respondent DEP announced that it was suspending all enforcement actions against drycleaning facilities based on the Florida Legislature's anticipated passage of the Florida Drycleaning Solvent Contamination Cleanup Act (Drycleaning Act). On June 3, 1994, the Drycleaning Act became effective. On August 23, 1994, Petitioner mailed Intervenor and Respondent Cleaners a Final Notice Prior to Court Action stating that they were not in strict compliance with the deadlines set forth in the NOV. On September 22, 1994, Intervenor submitted to Petitioner a Report of Sampling and Analysis summarizing the results of the work performed in May and June, 1994. By letter dated September 23, 1994, Intervenor further advised Petitioner that it would be applying for participation in the Drycleaning Solvent Contamination Cleanup Program (Drycleaning Cleanup Program) as soon as Respondent DEP promulgated the necessary implementation rules. Intervenor proposed that Petitioner approve a no further action plan pending its notice of eligibility under the Drycleaning Act. By letter dated September 30, 1994, Petitioner disapproved Intervenor's no further action plan. Petitioner again notified Intervenor and Respondent Cleaners that they must immediately remove and dispose of the contents of the septic tank and storm drain. In December, 1994, Intervenor evicted Respondent Cleaners. Since that date, the former drycleaning facility has remained vacant. On July 18, 1995, Intervenor's environmental consultants removed and properly disposed of the contents of the septic tank and storm drain. 18.1 On October 3, 1995, Intervenor's consultants advanced new soil borings and installed a new groundwater monitoring well. Groundwater samples were collected on October 24, 1995. 19.2 On February 21, 1996, Intervenor submitted its Contamination Assessment Report Addendum to Petitioner, summarizing the results of the work performed in July and October, 1995, and requesting a monitoring only plan (MOP). By letter dated February 29, 1996, Petitioner disapproved Intervenor's proposed MOP. 20. In March 1996, Respondent DEP began to accept applications for the Drycleaning Cleanup Program. Intervenor submitted its application for Respondent Cleaners on March 8, 1996. 21.3 By letter dated June 11, 1996, Respondent DEP approved Intervenor's application and determined that Respondent Cleaners' drycleaning facility was eligible to participate in the Drycleaning Cleanup Program. By Petition for Formal Administrative Hearing served July 11, 1996, Petitioner appealed Respondent DEP's eligibility determination. According to Petitioner, Intervenor's failure to timely comply with Petitioner's order to assess and remediate Respondent Cleaners constitutes gross negligence in the operation of the cleaner, thereby precluding its eligibility in the Drycleaning Cleanup Program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order finding Redd's Cleaners, DEP Facility No. 139502588 eligible to participate in the Drycleaning Solvent Contamination Cleanup Program.DONE AND ENTERED this 14th day of May, 1997, in Tallahassee, 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 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1997.
Findings Of Fact The Department (DER) is the regulatory agency of Florida charged with the duty and authority to administer and enforce Chapter 403 and Sections 376.30-376.319, Florida Statutes, and rules and regulations promulgated thereunder. Hendry is a Florida corporation that has been conducting business in excess of 60 years. The two main aspects of its business are the dredging operation and the shipyard. Hendry's site can be loosely described as an industrial site. The shipyard division performs approximately one-half its work for governmental entities, particularly the U.S. Coast Guard, which operations are largely ship refurbishing. Hendry has a Coast Guard certificate enabling it to receive mixtures containing oil and oily water waste. A significant portion of Hendry's ship refurbishing work involves repairing/replacing steel on ships which has deteriorated due to salt water exposure. That work frequently requires cutting, welding and burning. Prior to commencing the refurbrushing work, the ships must be certified as safe. In certifying a ship as being safe, the bilge area is pumped of used oil or waste oil which collects in standing waste water and oil. Also, before that works commences, the ship is defueled. Currently, Hendry's practice is to subcontract the pumping of waste oil from the ships bilge, which waste oil is pumped directly into the tanker truck of the subcontractor. Hendry no longer pumps or stores waste oil on site. In the past, the waste oil and water from the ship's bilge was pumped from the ship through a pipeline from the dry dock across the property to a 10,000 gallon above-ground storage tank. During December 1987, the U.S. Coast Guard observed a fuel spill on the water at Petitioner's facility. Based on that observation, Respondent conducted site inspections of Petitioner's facility during March and April 1988. The fuel spill was occasioned by Petitioner's refurbishment of a tuna boat at its site. Petitioner subsequently received a warning notice regarding alleged violations in its petroleum storage tanks and contamination. The transfer pipeline is of steel construction. Between 1980 and 1984, the pipeline leaked. In 1984, the pipeline was rerun with PVC line and in 1986, it was refitted with 4 inch steel pipe. The 10,000 gallon above-ground tank is located in Area 1. The removal of waste oil occasionally resulted in accidental spills. After 1985, a smaller, above-ground tank was installed adjacent to the 10,000 gallon tank to provide a storage tank for draining off water from the 10,000 gallon tank. The small tank was used to receive only water drained from the 10,000 gallon tank. Prior to installation of the small tank, a retention pond was used to drain water from the 10,000 gallon tank. The retention pond had a 2 foot berm with a visqueen liner. In October 1988, Hendry submitted an EDI Program Notification Application, a prerequisite for EDI reimbursement eligibility, under the program for costs associated with cleanup of certain petroleum contamination. In May 1989, Hendry submitted a document entitled Preliminary Contamination Assessment III Specific Areas--Task IV Rattlesnake Terminal Facility--Westshore Boulevard, Hillsborough County prepared by Mortensen Engineering, Inc. That document included reports of analysis of oil and groundwater samples taken from the site in January, March and April 1989, demonstrating extensive contamination of soil and groundwater including "free product" in monitoring wells MW-2, MW-4 and MW-4A. By letter dated November 9, 1989, the Department informed Hendry of its determination that the facility had been denied EDI reimbursement based on specific enumerated findings. Hendry entered into a stipulation with the Department on October 16, 1990, "regarding the conduct of this case and the basis for denial. " Attached to the stipulation is a sketch of the facility grounds showing a rough division of the area into four separate areas. Area 1 has two waste tanks. One was a large 10,000 gallon closed tank approximately 20 feet high and 12 feet in diameter; the other contained a volume of approximately 1,500-2,000 gallons and was an open tank. Petitioner's practice was to pump bilge in the dry dock area, located west of "Area 2" and direct the waste through underground pipes to the 10,000 gallon tank. The smaller tank was used to "bleed" water from the larger tank. Bilge waste is approximately two-thirds water. Area 2 was the location of Hendry's diesel tank farm. In the stipulation, the Department agreed to withdraw two of the seven specific grounds for the denial, namely denial of site access and failure to report discharges. Likewise, Hendry agreed to withdraw "Area 4" from its application for EDI eligibility. In the stipulation, Hendry was informed of a then recent amendment to Section 376.3071(9), which offered certain applicants who had been earlier determined ineligible for participation in the EDI program, standards and procedures for obtaining reconsideration of eligibility. The amendment required the facility to come into compliance, certify that compliance and request reconsideration prior to March 31, 1991. Additionally, compliance was to be verified by a Department inspection. Pursuant to paragraph 5(b) of the stipulation, these standards and procedures were specifically to be applied to Areas 2 and 3 at the facility. Hendry did not make a written request for reconsideration of the denial of eligibility with respect to Areas 2 and 3 on or before March 31, 1991 or at anytime subsequently. Hendry also did not come into compliance with the underground or above-ground storage tanks system regulations on or before March 31, 1991 in that Hendry failed to register a 560-gallon above-ground diesel storage tank which was onsite on that date as required by Rule 17-762.400, Florida Administrative Code. Hendry also failed to notify the Department of the Hillsborough County Environmental Protection Commission (HCEPC), as the administrator of a designated local program at least thirty days prior to closure of the storage tank system, pursuant to Subsection 376.3073, Florida Statutes. These determinations were made on April 1, 1991 by Hector Diaz, inspector in the HCEPC tanks program. Hendry submitted a registration form for the 560-gallon tank on November 18, 1991, which was of course subsequent to the March 31, 1991 deadline. Hendry stored petroleum products and waste material including petroleum constituents in the above-ground tanks until approximately March 25, 1991 when it initiated tank removal. Hendry's above-ground storage tanks, which were in use at its facility for approximately three years after extensive soil contamination was documented, were without secondary containment. In November 1991, Hendry submitted a document entitled Supplemental Preliminary Contamination Assessment Report, prepared by Keifer-Block Environmental Services, Inc. (Supplemental PCAR). The stated purpose of the study was solely to determine whether hazardous constituents were present in groundwater in Areas 2 and 3. The report included laboratory analysis of groundwater samples taken from the site in August 1991 including monitoring wells located in Area 3. The results of these analysis reflect that Area 3 is contaminated solely with heavy metals, lead and chromium. No petroleum hydrocarbon contamination was detected in Area 3. In the area adjacent to Area 2, seven of eight monitoring wells show chromium or lead contamination. Hendry had, and continues to have, a practice of removing paint from vessels by blasting them with a gritty material known as "black beauty." This practice takes place in the dry dock area near Areas 2 and 3. The waste blast grit/paint chip mixture is vacuumed or shoveled into wheelbarrels or a frontend loader and dumped into an open pile. Occasionally, the waste blast grit/paint mixture is blown about or spilled. Waste "black beauty" has been observed scattered on the ground throughout the facility. Paints sometime contain heavy metals, specifically, lead and chromium. The concentrations and distribution of lead and chromium contamination at the site are consistent with Hendry's long-standing practice of grit-- blasting paint from ships and other vessels and allowing the metal-contaminated paint and waste mixture to fall to the ground. Areas 2 and 3 are contaminated with substances other than petroleum or petroleum products, namely heavy metals. Costs associated with cleanup of lead and chromium are not reimburseable under the EDI program. Paragraph 5(c) of the stipulation allowed Hendry an opportunity to establish eligibility for Area 1 by providing information regarding operating practices at two above-ground storage tanks and a retention pond in that area demonstrating that contamination in that area is predominantly from leaks or unintentional spills of petroleum products from the tanks in that area. Hendry did not provide the required information. On January 27, 1992, Hendry submitted to the Department an affidavit executed by its principal, Aaron Hendry, which Hendry contends fulfills the requirements of paragraph 5(c) of the stipulation. Hendry, the principal who executed the affidavit, is an affiant with a legal and financial interest in the outcome of the EDI eligibility determination. The executed affidavit did not contain specific information with respect to "operating practices at the tanks and retention ponds as required by the stipulation." Specifically, the affidavit is silent as to: What the tanks were made of; When, how and by whom they were installed; What piping, leak detection or overfill protection was associated with them; What repairs or alterations had been made to them; What inventory reconciliation methods were used; Where the materials came from which was put into the tanks; In what manner, how often, and by whom material was put into the tanks; In what manner, how often, and by whom material was removed from the tanks; Disposition of material removed from the tanks; When, how, by whom and why the retention pond was dug; How and for what period of time the retention pond was used; How, often and by whom inspections of the tanks were conducted; When and how leaks occurred and were discovered at the tanks; When and how spills occurred and were discovered at the tanks; What records, including reports to state or local agencies, insurance claims, newspaper accounts, and so forth were kept with respect to leaks or spills at the tanks; What cleanup efforts were made at the time of any leaks or spills; Documentation related to registration of the tanks with state or local agencies; and Documentation with respect to any removal of the tanks, including any description of the condition of the tanks when, or if, removed. For years, the facility's retention pit was used as a "waste pit" namely, a rectangular hole in the ground, approximately 30 feet by 120 feet by 3 feet, for direct discharge of bilge waste piped from vessels at the dry dock area to the waste pit, prior to installation of the storage tank systems. After installation of the large tank in Area 1, the retention pit was used to bleed water from the bilge tank. In the past, the Department has denied eligibility to facilities where a retention pond was used for disposal of petroleum related waste and cleanup of contamination resulting from use of a retention pond. Hendry's affidavit nor other documentation submitted to the Department prior to the EDI redetermination or at hearing establishes that the bilge waste taken from the storage tanks was "a liquid fuel commodity" or recycled into such a commodity. By letter dated June 9, 1992, the Department notified Hendry that reconsideration of its EDI eligibility request for Areas 2 and 3 was denied and that the affidavit of Aaron Hendry submitted with respect to Area 1 did not satisfy the requirements of the stipulation. Thereafter, Hendry challenged the Department's denial of reconsideration and EDI eligibility which joins the issue for this proceeding. The hazardous waste allegation discovered during an inspection of Hendry's facility on April 14, 1988, resulted in a consent order which was entered as a final order of the Department on November 21, 1990. The consent order allowed Hendry an opportunity to demonstrate that not all areas at the facility were hazardous waste disposal areas and, thus, not all areas would be subject to closure and cleanup under the permitting requirements of Subsection 403.722, Florida Statutes and the remediation standards set forth in Chapter 17-730, Florida Administrative Code. To establish appropriate remediation standards and procedures which would be applicable to various areas, Hendry was required to prepare a property diagram designating areas at the property exhibiting any of the following types of contamination: Areas contaminated solely by petroleum or petroleum products or used oil which is not hazardous waste; Areas contaminated by materials which are not hazardous waste; Areas contaminated by the past or present disposal of hazardous waste. The consent order allows contamination assessment and remediation pursuant to the standards and procedures set forth in Chapter 17-770, Florida Administrative Code, for areas contaminated solely by petroleum or petroleum products. (Petitioner's Exhibit 5, paragraph 11.) The consent order requires contamination assessment and remediation pursuant to the Department's corrective action and groundwater contamination cases for all areas at the facility contaminated by used oil which is not hazardous waste or by hazardous material. (Petitioner's Exhibit 5, paragraph 12.) The consent order requires contamination assessment and remediation pursuant to a closure permit with a contingent post-closure plan to close the areas at the facility contaminated by the disposal of hazardous waste. In response to the consent order to delineate areas on the property exhibiting various types of contamination, Hendry submitted the supplemental PCAR. By letter dated March 19, 1992, the Department responded to the supplemental PCAR with a determination that: Area 1 can be assessed and remediated through the standards set forth in Chapter 17-770, Florida Administrative Code. Contamination in Areas 2 and 3 includes heavy metals, which are hazardous materials. Thus, Areas 2 and 3 should be assessed and remediated through the corrective action process for groundwater contamination cases. A hazardous waste facility closure permit application should be submitted for assessment and remediation of Area 4, which, because of the presence of Dichloroethylene, a hazardous substance and chlorinated solvent, should be expanded to include the location of monitoring well MW KBMW-2. Hendry had a practice of cleaning electrical motors by placing such motors on the ground outside the electrical repair shop near Area 4. The motors were sprayed with Trichloroethylene, a waste solvent, which was allowed to runoff into the soil. At the time of this practice, the intention was to leave the solvent contamination unchecked. The Department, pursuant to directives from the United States Environmental Protection Agency (EPA), characterizes the disposition of hazardous waste to the environment as a result of intentional, ongoing industrial practices as "disposal of hazardous waste" within the meaning of Subsection 475.703(21), Florida Statutes and 40 CFR 260.10. The consent order allowed Hendry an opportunity to challenge the Department's determination with respect to delineation of the various areas by filing a petition per paragraph 21 of the order for formal administrative hearings. Hendry filed its petition with respect to the March 19, 1992 letter, which petition is the subject of DOAH Case No. 92-2312.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent, Department of Environmental Regulation, issue a Final Order in these consolidated cases concluding that 1) the contamination areas at issue herein are not eligible for EDI reimbursement under Subsections 376.3071(9) and (12), Florida Statutes; 2) that Petitioner cleanup the contamination in Areas 1, 2 and 3 under the guidance document entitled "Corrective Actions for Groundwater Contamination Cases"; and 3) that Area 4 be expanded to include the location of monitoring well MW KBMW-2 and closed through a hazardous waste closure/post closure permit application process. DONE AND ENTERED this 26th day of April, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1993. APPENDIX Rulings on Petitioner's proposed findings of fact: Paragraph 14, partially adopted in Paragraph 13, Recommended Order. Paragraph 19, rejected, contrary to the greater weight of evidence and speculative. Paragraph 20, rejected, unnecessary. Paragraph 21, rejected, contrary to the greater weight of evidence, Paragraphs 24-28, Recommended Order. Paragraph 22, partially adopted, Paragraphs 13 and 14, Recommended Order. Paragraph 23, partially adopted, Paragraph 15, Recommended Order. Paragraph 29, partially adopted, Paragraph 18, Recommended Order. Paragraphs 31, 32, 35, 48, 49, 51, 52, 60, 62 and 73 rejected, unnecessary. Paragraph 33, adopted in part, Paragraph 23, Recommended Order. Paragraph 38, adopted in part, Paragraph 23, Recommended Order. Paragraph 41, rejected, contrary to the greater weight of evidence and the two cases cited at hearing where Respondent exercises his discretion are distinguishable from Petitioner's failure to timely apply. Paragraph 43, rejected, unnecessary and/or argument. Paragraph 45, rejected, contrary to the greater weight of evidence. Paragraph 50, rejected, contrary to the greater weight of evidence, Paragraphs 37-39, Recommended Order. Paragraph 54, rejected, not probative. Paragraph 55, rejected, not probative. Paragraphs 56 and 57, rejected, contrary to the greater weight of evidence, Paragraphs 30 and 31, Recommended Order. Paragraphs 58 and 59, rejected, contrary to the greater weight of evidence, Paragraphs 23 and 24, Recommended Order. Paragraph 61, rejected, speculative and unnecessary. Paragraph 63, rejected, speculative. Paragraph 67, rejected, not probative. Paragraph 68, rejected, contrary to the greater weight of evidence, Paragraphs 30 and 31, Recommended Order. Paragraph 69, rejected, not probative. Paragraph 70, adopted in part, Paragraph 23, Recommended Order. Paragraph 72, rejected, irrelevant and not necessary to the issues posed. Paragraph 74, rejected, contrary to the greater weight of evidence and unnecessary. Paragraph 75, rejected, contrary to the greater weight of evidence, Paragraph 53, Recommended Order. Paragraph 76, rejected, contrary to the greater weight of evidence, Paragraph 53, Recommended Order. Paragraph 77, rejected, contrary to the greater weight of evidence, Paragraph 53, Recommended Order. Paragraphs 78 and 79, rejected, irrelevant and unnecessary. Paragraph 80, rejected, not probative. Rulings in Respondent's proposed findings of fact: Paragraphs 2 and 3, adopted in part, Paragraph 9, Recommended Order. Paragraph 12, adopted in part, Paragraph 23, Recommended Order. Paragraph 23, adopted in part, Paragraph 32, Recommended Order. Paragraph 27, adopted in part, Paragraphs 38 and 39, Recommended Order. Paragraph 30, rejected, unnecessary. COPIES FURNISHED: Thomas J. Patka, Esquire Rory C. Ryan, Esquire HOLLAND & KNIGHT 200 South Orange Ave - Suite 2600 Post Office Box 1526 Orlando, Florida 32802 Agusta P. Posner, Esquire Lisa Duchene, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399 2400 Virginia B. Wetherell Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399 2400 Daniel H. Thompson, Esquire Acting General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399 2400
The Issue This is a license discipline case in which the Department of Health and Rehabilitative Services seeks to impose an administrative fine in the amount of $350.00 on the basis of allegations that the Respondent, failed to report visible and accessible evidence of dry wood termite fecal pellets.
Findings Of Fact At all times material to this case, the Respondent, James M. Dodds has been licensed to conduct residential termite inspections. On June 12, 1990, he conducted a termite inspection at the residence of a Mrs. Mitchell, located at 7420 W. 15 Court, Hialeah, Florida. During the course of that inspection, Dodds did not inspect the attic of the residence. The reason he did not inspect the attic was because the access to the attic (which was through a crawlspace in the ceiling of a small bedroom closet) was blocked by a large number of boxes stacked in the closet. During the course of the inspection Dodds told the owner of the house that unless she arranged to move all the boxes out of the way, he would have to indicate on his report that the attic was not inspected. The owner did not arrange to get the boxes moved and Dodds did not inspect the attic. At the conclusion of his inspection of the property described above, Dodds filled out an inspection report form and left a copy of the inspection report with the property owner. Dodds placed some check marks in some preprinted boxes on the back of the inspection report form. Those check marks included one that indicated "attic not available for inspection." Shortly thereafter, the house was sold to a new owner who, shortly after moving in, discovered what appeared to him to be evidence of possible termite infestation. Subsequent inspections of the premises by another pest control company and by an inspector of the Department of Health and Rehabilitative Services revealed the presence of fecal pellets left behind by dry wood termites. The termite fecal pellets were discovered in the attic near the crawl space opening. There was no other evidence of the presence of termites. No live termites were seen on either of the follow-up inspections.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Health and Rehabilitative Services issue a final order in this case dismissing all charges against the Respondent, James M. Dodds. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 11th day of March, 1991. MICHAEL M. PARRISH, 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 11th day of March, 1991. COPIES FURNISHED: Martha F. Barrera, Esquire, Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, FL 33301 Mr. James M. Dodds Creative Construction Services, Inc. P. O. Box 38-1996, Miami, Florida 33138 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue is whether Respondent's Construction and Demolition Debris Disposal Facility Permit No. 003397-013-SO (the Permit) should be revoked and the facility closed for the reasons stated in the Department of Environmental Protection's (Department's) Notice of Revocation (Notice) issued on July 31, 2014.
Findings Of Fact A. The Parties, the Property, and the Dispute The Department administers and enforces the provisions of chapter 403 and the rules promulgated thereunder, including those applicable to construction and demolition debris (C & D) disposal facilities. Respondent is a Florida limited liability corporation that owns real property located at 6990 Rolling Hills Road, Pensacola, Escambia County (County), Florida. The large, odd- shaped parcel (whose exact size is unknown) is south-southwest of the intersection of Interstate 10 and Pensacola Boulevard (U.S. Highway 29) and has Class III fresh surface waters running in a northeast-southwest direction through the middle of the property. See Resp. Ex. 28. The entire site is surrounded by a six-foot tall fence or is separated from adjoining properties by natural barriers. A railroad track borders on the eastern side of the parcel; the western boundary fronts on Rolling Hills Road; and the northern boundary appears to be just south of West Pinestead Road. Id. The area immediately south of the parcel appears to be largely undeveloped. See Dept. Ex. 40. The Emerald Coast Utilities Authority (ECUA), a local government body, has an easement that runs along the eastern side of the property adjacent to the railroad track on which a 48-inch sewer pipe is located. An older residential area, known as Wedgewood, is located northeast of the facility on the north side of West Pinestead Road. Id. The closest Wedgewood homes appear to be around 400 or 500 feet from the edge of Respondent's property. A community and recreational center, the Marie K. Young Center, also known as the Wedgewood Center, serves the Wedgewood community, is northwest of the facility, and lies around 500 feet from the edge of the property. Established in 2012 where a school once stood, it has more than 200 members. Although non- parties, it is fair to say that the Wedgewood community and County strongly support the Department's efforts to revoke Respondent's permit. Respondent acquired the property in 2007. At that time, an existing C & D disposal facility (the facility) was located on the property operating under a permit issued by the Department. The Permit was renewed in February 2013 and will expire in early 2018. Besides the general and specific conditions, the renewed Permit incorporates the terms and conditions of a Consent Order executed in November 2012, as well as detailed requirements relating to the operation of the facility, water quality monitoring, an odor remediation plan, financial assurance and cost estimates, and closure of the facility. The latter requirements are found in four Appendices attached to the Permit. The facility operates under the name of Rolling Hills Construction and Demolition Recycling Center. All material received by the facility is disposed of in an active disposal pile known as cell 2, located in the middle of the northern section of the parcel. Cell 1, southwest of cell 2 and just east of Rolling Hills Road, was closed a number of years ago by the prior operator. Respondent operates the only C & D facility in the County.1/ It currently serves around 50 to 60 active customers, employs 16 persons, and operates between the hours of 7:00 a.m. and 5:00 p.m. The former manager, Charles Davidson, who had overseen operations since 2010, was replaced in June 2014, and Respondent blames him for ignoring or failing to address most of the problems encountered during the last three years. Since June, the managing partner of the LLC, Scott C. Miller, has overseen the operations. Unlike Class I or III landfills, a C & D landfill may accept only construction and demolition debris. Construction and demolition debris is defined as "discarded materials generally considered to be not water soluble and non-hazardous in nature." § 403.703(6), Fla. Stat.; Fla. Admin. Code R. 62- 701.200(24). Debris includes not only items such as steel, glass, brick, concrete, asphalt material, pipe, gypsum wallboard, and lumber that are typically associated with construction or demolition projects, but also rocks, soils, tree remains, trees, and other vegetative matter that normally result from land clearing or land development operations. Id. No solid waste other than construction and demolition debris may be disposed of at the facility. See Fla. Admin. Code R. 62- 701.730(4)(d). To address and resolve certain violations that predated the renewal of the Permit, the Department and Respondent entered into a Consent Order on November 14, 2012. See Dept. Ex. 2. These violations occurred in 2011 and included the storage and/or disposal of non-C & D debris, and a failure to timely submit an appropriate Remedial Action Plan (RAP). Id. Among other things, the Consent Order required that within a time certain Respondent submit for Department review and approval an RAP; and after its approval to "continue to follow the time frames and requirements of Chapter 62-780, F.A.C." Id. Those requirements included the initiation of an active remediation system and site rehabilitation within a time certain, and the continued monitoring and related corrective action for any water quality violations or impacts. Id. To ensure that it has the financial ability to undertake any required corrective action, the Permit requires Respondent to provide proof of financial assurance for the corrective action program cost estimates. See Fla. Admin. Code 62-701.730(11)(d); § 2, Spec. Cond. F.1. This can be done through a number of mechanisms, such as a performance bond, letter of credit, or cash escrow. The Permit also requires Respondent to provide proof of financial assurance to demonstrate that it has the financial ability to close the facility and otherwise provide for the long-term care cost estimates of the facility. See Fla. Admin. Code R. 62-701.630; § 2, Spec. Cond. F.2. Rather than using a cash escrow or letter of credit, Respondent has chosen to use a performance bond for both requirements. These bonds must be updated annually to include an inflation adjustment. Given the many requirements imposed by the Permit and Consent Order, in 2013 and 2014 several follow-up site inspections of the facility were conducted by the Department, and a review of the operations was made to determine if the various deadlines had been met. Also, in 2014, the Department received complaints from the County and neighboring property owners, almost exclusively by those residing in the Wedgewood community, regarding offensive odors emanating from the facility. Based on field observations, the review of operations, and odor complaints, on July 31, 2014, the Department issued a Notice containing eight counts of wrongdoing. The Notice was issued under section 403.087(7)(b), which authorizes the Department to revoke a permit when it finds the permit holder has "[v]iolated law, department orders, rules, or regulations, or permit conditions." To Respondent's consternation, the Department opted to use that enforcement mechanism rather than initiating an enforcement action under section 403.121 or executing another consent order, both of which would likely result in a sanction less severe than permit revocation.2/ The Notice contains the following charges: exceeding surface water quality standards in rules 62-302.500 and 62- 302.530 (Count I); failing to implement an RAP as required by the Consent Order and Permit (Count II); failing to provide adequate financial assurances for facility closure costs (Count III); failing to provide financial assurances for the corrective action required by the RAP (Count IV); failing to reduce on-site and off-site objectionable odors and to implement a routine odor monitoring program (Count V); disposing non-C & D waste on site (Count VI); failing to remove unauthorized waste (Count VII); and disposing solid waste outside of its permitted (vertical) dimension of 130 feet National Geodetic Vertical Datum (NGVD) (Count VIII). These allegations are discussed separately below. Although the Notice is based on violations that occurred on or before July 31, 2014, the undersigned denied the Department's motion in limine that would preclude Respondent from presenting mitigating evidence concerning circumstances surrounding the violations and efforts to remediate them after July 31, 2014. Given that ruling, the Department was allowed to present evidence to show that Respondent's remediation efforts have not been successful and that some violations still existed as of the date of final hearing. Respondent disputes the allegations and contends that most, if not all, are either untrue, inaccurate, have been remedied, or are in the process of being remedied. As noted above, Respondent considers the revocation of its permit too harsh a penalty in light of its continued efforts to comply with Department rules and enforcement guidelines. It contends that the Department is acting at the behest of the County, which desires to close the facility to satisfy the odor complaints of the Wedgewood residents, and to ultimately use the property for a new road that it intends to build in the future. Count I - Water Quality Violations The Notice alleges that two water quality monitoring reports filed by Respondent reflect that it exceeded surface water quality standards at two monitoring locations (MW-2 and SW-6) sampled on August 26, 2013, and at one monitoring location (MW-2) sampled on March 4, 2014. The Notice alleges that these exceedances constitute a failure to comply with Class III fresh surface water quality standards in rules 62-302.500 and 62- 302.530 and therefore violate conditions in the Permit. These standards apply in areas beyond the edge of the discharge area (or zone of discharge) established by the Permit. To ensure compliance with water quality standards, when the Permit was renewed in 2013, a Water Quality Monitoring Report (Appendix 3) was attached to the Permit. It required Respondent to monitor surface water for contamination, identify the locations at which samples must be collected, and specify the testing parameters. All of these conditions were accepted by Respondent and its consultant(s). The monitoring network, already in place when Respondent purchased the facility, consists of six ground water monitoring wells and three surface water monitoring stations. The surface water stations, which must be sampled to determine compliance with water quality criteria, are SW-5, a background location, and SW-6 and MW-2, both compliance locations located outside the zone of discharge. A background location is placed upstream of an activity in order to determine the quality of the water before any impacts by the activity. A compliance location is placed downstream of an activity to determine any impacts of the facility on surface water. The Water Quality Monitoring Plan and Permit require Respondent to submit semi-annual water quality reports. To conduct the preparation and filing of the reports, Respondent used an outside consulting firm, Enviro Pro Tech, Inc. (EPT). On November 5, 2013, EPT submitted a Second Semi-Annual 2013 report. See Dept. Ex. 5. According to Mr. Miller, who now oversees operations at the facility, EPT did not provide Respondent a copy of the report, or even discuss its findings, before filing it with the Department. A Department engineer reviewed the report and noted that surface water samples exceeded the Class III Fresh Water Quality Standards for iron, copper, lead, zinc, nickel, and mercury at SW-6 and for iron at MW-2. See Dept. Ex. 6. A copy of the Department's report was provided to Respondent and EPT. Notably, the report indicated that background levels were lower than the down-gradient results. Under Department protocol, if the samples at the compliance locations exceed both the regulatory levels and the background, there is a violation of water quality standards. This accepted protocol differs from Respondent's suggested protocol that the background level should be added to the regulatory standard before a comparison with the sample results is made. In sum, except for the reported nickel value at SW-6, a violation which the Department now says it will not pursue, all exceedances shown on Department Exhibits 5 and 6 are violations of the standards. On April 1, 2014, EPT submitted a First Semi-Annual 2014 report. See Dept. Ex. 7. A Department engineer reviewed the report and noted that the surface water samples at one monitoring location, MW-2, did not meet water quality standards for iron; however, background levels for iron were much higher than downstream. See Dept. Ex. 8. No other exceedances were shown. Although the Department engineer considered the higher background level for iron to be an "inconsistency" since it varied from the prior reports, the reported iron value was treated as a violation when the Notice was drafted. In its PRO, however, the Department concedes that it did not establish a violation of standards for iron, as alleged in paragraph 7 of the Notice. While having no concerns with sampling taken at MW-2, Respondent's expert contends that the reported values for SW-6 are unreliable because the samples taken from that location were turbid and filled with large amounts of suspended solid matter. He noted that the well is located in a wetland area that is "clogged with vegetation." The expert estimated the turbidity at the site to be in the range of 480 to 500 Nephelometric Turbidity Units (NTUs) and believes the sample was taken in a "high turbid sediment laden area," thus rendering it unreliable. However, at the time of the sample collection, turbidity was measured at 164 NTUs, or much less than the amount estimated by the expert. See Dept. Ex. 5, p. 147. There is no rule or procedure that disallows the use of turbid samples. In fact, they can be representative of actual water quality. Also, rule 62-302.500(2)(d) provides that if an applicant for a C & D permit believes that turbid samples are not representative of water quality, it may use filtered samples by establishing a "translator" during the permitting process. Respondent did not request a translator during the permitting process, nor is any such translator provision found in the Permit. The expert also criticized EPT for holding the 2013 sample for iron for 22 days after collection before reanalyzing it without providing any explanation for this delay. A reasonable inference to draw from the data, however, is that iron was present in the original sample at levels that required dilution and reanalysis. Respondent's expert testified that even though off- site stormwater is discharged onto the property, no offsite monitoring locations exist, and therefore any offsite exceedances would not be reported. He also criticized the sampling locations that were selected by EPT. In fairness to Respondent, a repositioning of the monitoring network and retesting of the samples might have produced more favorable results. But these are measures that should have been addressed long before this proceeding was initiated. Finally, Respondent's expert testified that the implementation of its RAP, now partially completed, will cure all of the reported exceedances. Assuming this unrefuted testimony is true, it should be taken into account in determining an appropriate penalty. Count II - Failure to Implement an RAP In this Count, the Department alleges that after the issuance of an RAP Approval Order on July 3, 2013, Respondent was required to implement the RAP within 120 days. The Notice alleges that as of July 31, 2014, the RAP had not been implemented. An RAP was first filed by Respondent on November 15, 2010. See Dept. Ex. 3. When the Department determined that changes to the RAP were necessary, the Consent Order imposed a requirement that an RAP addendum be filed within 150 days. The date on which the addendum was filed is not known. However, an RAP Approval Order was issued on July 3, 2013. See Dept. Ex. 4. The terms and conditions in the RAP were incorporated into the renewed Permit. The work required by the RAP consists of two phases, with all work to be completed within 365 days, or by early July 2014. Phase I related to the initiation of an active remediation system within 120 days, or by October 31, 2013. This phase requires Respondent to install a pump and treat system at the facility, which will withdraw contaminated groundwater through recovery wells, pump the water to aeration basins to treat the water, and then re-infiltrate the treated water back into the ground. As noted below, the system was not operational until the second week in December 2014. Respondent's failure to implement the approved RAP by the established deadline constitutes a violation of rules 62- 780.700(11) and 62-780.790 and Permit conditions, as charged in the Notice. While Respondent concedes that it did not comply with the deadline for implementing the RAP, it points out that work on Phase I was begun in a timely manner. However, on October 16, 2013, or just before the 120 days had run, a Notice of Violation was issued by the County. See Resp. Ex. 2. The effect of the Notice of Violation was to halt much of the work on Phase I until Respondent obtained a County stormwater permit. Respondent asserts that this was responsible for all, or most, of the delay. The record shows that the EPT consultant did not apply for the County permit until September 10, 2014, or almost one year after the Notice of Violation was issued. Additional information was required by the County, which was supplied on October 23, 2014, but final sealed documents were not filed by the consultant until around Thanksgiving. The permit was issued by the County "a week or so" before the final hearing. Respondent attributes the delay in applying for a County permit to its former manager and his failure to coordinate with the EPT engineers assigned to the project. It also claims that the County failed to process the application in an expeditious fashion. However, the facts suggest otherwise. Once the permit was issued, Phase I was completed on December 8, 2014, and it was operational at the time of the final hearing. Respondent's expert, hired in August 2014, has proposed a modification to the RAP that would avoid impacting the existing stormwater pond. However, the modification must be reviewed and approved by the Department, and as of the date of the hearing, it had not been formally submitted. The Department asserts that the only reason the modification is being sought is to reduce the cost of a performance bond. In any event, in its PRO, Respondent does not argue that the proposed modification excuses its 13-month delay in completing the requirements of Phase I, or the second phase of the project, which should have been completed by early July 2014. Count III - Failure to Provide Financial Assurance This Count alleges that Respondent failed to provide the required annual 2014 financial assurance mechanism that demonstrates proof of financial assurance for closure and long- term cost estimates of the facility. At the beginning of 2014, Respondent had an $836,000.00 financial performance bond in place for closure and long-term costs. The Permit requires that on or before March 1 of each year Respondent revise the closure cost estimates to account for inflation in accordance with rule 62-701.630(4). See § 2, Spec. Cond. F.2. Once the estimates are approved, the performance bond must be updated within 60 days. In this case, an increase of around $18,000.00 was required. The annual inflation adjustment estimate was not submitted until April 15, 2014. The Department approved the cost estimates the following day and established a due date of June 16, 2014, for submitting a revised financial assurance. Respondent did not have a revised performance bond in place until a "week or two" before the hearing. Other than Respondent's manager indicating that he had a new bonding agent, no evidence was presented to mitigate this violation. The failure to timely update its financial assurance for closure and long-term costs constitutes a violation of rule 62-701.630, as charged in the Notice. Count IV - Financial Assurances for Corrective Action In the same vein as Count III, the Notice alleges that Respondent failed to maintain a financial assurance mechanism to demonstrate proof that it can undertake the corrective action program required under the RAP. Respondent was required to submit proof of financial assurance for corrective actions within 120 days after the corrective action remedy was selected. On July 3, 2013, the RAP Approval Order selected the appropriate remedy. On August 8, 2013, the Department approved Respondent's corrective action program cost estimates of $566,325.85 and established a deadline of October 31, 2013, for Respondent to submit this proof. When the Notice was issued, a corrective action bond had not been secured, and none was in place at the time of the final hearing. This constitutes a violation of rule 62-701.730(11)(d) and applicable Permit conditions. Respondent's manager, Mr. Miller, concedes that this requirement has not been met. He testified that he was not aware a new bond was required until he took over management of the facility and met with Department staff on June 17, 2014. Due to the Notice, Mr. Miller says he has had significant difficulty in securing a bond. He explained that the bonding company is extremely reluctant to issue a bond to an entity faced with possible revocation of its permit, especially if such revocation might occur within a matter of months. Mr. Miller says the bonding company wants 100 percent collateralization to put a bond in place. Nonetheless, he is confident that a bond can be secured if only because its cost will dramatically drop when the RAP project is completed. However, even at hearing, he gave no timeline on when this requirement will be fulfilled. Count V - Objectionable Odors One of the driving forces behind the issuance of the Notice is the complaint about off-site objectionable odors. A considerable amount of testimony was devoted to this issue by witnesses representing the Department, County, Wedgewood community, and Respondent. The Notice alleges that during routine inspections in April, May, and July 2014, mainly in response to citizen complaints, Department inspectors detected objectionable odors both at the facility and off-site. The Notice further alleges that Respondent failed to immediately take steps to reduce the odors, submit an odor remediation plan, and implement that plan in violation of rules 62-296.320(2) and 62-701.730(7)(e) and section 2, Specific Condition E of the Permit. Notably, the Department has never revoked a landfill permit due solely to objectionable odors. Several Department rules apply to this Count. First, objectionable odors are defined in rule 62-210.200(200). Second, a C & D facility must control objectionable odors in accordance with rule 62-296.320(2). Finally, if odors are detected off-site, the facility must comply with the requirements of rule 62-701.530(3)(b). That rule provides that once off-site odors have been confirmed, as they were here, the facility must "immediately take steps to reduce the objectionable odors," "submit to the Department for approval an odor remediation plan," and "implement a routine odor monitoring program to determine the timing and extent of any off-site odors, and to evaluate the effectiveness of the odor remediation plan." These same regulatory requirements are embodied in the Permit conditions. See § 2, Spec. Cond. E. At least occasionally, every landfill has objectionable odors emanating from the facility. As one expert noted, "The trick is, how can you treat it." The technical witnesses who addressed this issue agree that the breakdown of drywall, wall board, and gypsum board, all commonly recycled at C & D facilities, will produce hydrogen sulfide, which has a very strong "rotten egg" type smell. The most effective techniques for reducing or eliminating these odors are to spray reactant on the affected areas, place more cover, such as dirt or hydrated lime, on the pile, and have employees routinely patrol the perimeters of the property and the active cell to report any odors that they smell. Although the facility has been accepting waste products for a number of years, the last seven by Respondent, there is no evidence that the Department was aware of any odor complaints before April 2014. While not an active participant in the operations until recently, Mr. Miller also testified that he was unaware of any citizen complaints being reported to the facility prior to that date. However, in response to citizen complaints that more than likely were directed initially to the County, on April 14, 21, and 24, 2014, the Department conducted routine inspections of the facility. During at least one of the visits, objectionable odors were detected both on-site, emanating from cell 2, and off-site on West Pinestead Road, just north of the facility. See Dept. Ex. 14. Because the inspector created a single report for all three visits, he was unsure whether odors were detected on more than one visit. After the inspection report was generated, Department practice was to send a copy by email to the facility's former manager, Mr. Davidson. A Department engineer who accompanied the inspector on at least one visit in April 2014 testified that she has visited the site on several occasions, and on two of those visits, the odor was strong enough to make her physically ill. On a follow-up inspection by the Department on May 22, 2014, the inspector did not detect any objectionable odors. See Dept. Ex. 17. In June 2014, however, a County inspector visited the Wedgewood Center area in response to a complaint that dust was coming from the facility. He testified that he detected a rotten egg type smell on the Wedgewood Center property. At a meeting attended by Mr. Miller and County and Department representatives on June 17, 2014, the Department advised Respondent of its findings and provided Mr. Miller with copies of the inspection reports. On July 1, 2014, the Department conducted a follow-up inspection of the facility. The inspector noted a hydrogen sulfide odor on the north, south, and west sides of the disposal area of the facility, and on the top of the disposal pile at the facility. See Dept. Ex. 18. Another inspection conducted on July 9, 2014, did not find any objectionable odors. See Dept. Ex. 19. On July 18, 2014, the Department conducted a follow-up inspection of the facility. The inspector again noted objectionable odors at the facility but none off-site. Id. On July 24, 2014, Department inspectors noted objectionable odors on top of the pile, the toe of the north slopes, and off-site on West Pinestead Road. See Dept. Ex. 20. An inspection performed the following day noted objectionable odors on top of the pile and the toe of the north slopes, but none off-site. Id. The Notice, which was already being drafted in mid-July, was issued a week later. In response to the meeting on June 17, 2014, Respondent prepared a draft odor remediation plan, made certain changes suggested by the Department, and then submitted a revised odor remediation plan prior to July 31, 2014. A Department engineer agrees that "in the strict sense it meets the requirements of the rule" and "could work," but there are "two or three things that still needed . . . to be submitted in order for it to be completely approvable." For example, she was uncertain as to how and when dirt cover would be applied, and how erosion would be controlled. Although the plan was filed, it was never formally approved or rejected, and the "two or three things" that the witness says still needed to be done were never disclosed to Respondent. Under these circumstances, it is reasonable to accept Respondent's assertion that it assumed the plan was satisfactory and complied with the rule. After the Notice was issued, Respondent set up a hotline for community members to call and report odors. A sign on the property gives a telephone number to call in the event of odors. At an undisclosed point in time, Respondent began requiring employees to walk the perimeter of the facility each day to monitor for odors; spreading and mixing hydrated lime to reduce the odors around the facility; and increasing the amount of cover applied to the working face of the facility. The parties agree that these measures are the best available practices to monitor and eliminate objectionable odors at a C & D facility. Despite these good faith measures, Mr. Miller acknowledged that he visited the facility during the evening a few days before the final hearing in December 2014 and smelled hydrogen sulfide around the ECUA sewer pipe and "a very mild level" by the debris pile. Respondent does not deny that odors were emanating from the facility during the months leading up to the issuance of the Notice. But in April 2014, the County experienced a 500- year storm event which caused significant flooding and damaged a number of homes. Because Respondent operates the only C & D facility in the County and charges less than the County landfill, it received an abnormal amount of soaked and damaged C & D debris, which it contends could have generated some, if not all, of the odors that month. Given the magnitude of the storm, this is a reasonable explanation for the source of the odors at that time. Respondent also presented evidence that an underground ECUA sewer pipe that runs on the eastern side of the property was damaged during the storm, causing it to rupture and be exposed. Although ECUA eventually repaired the damaged pipe at a later date, the pipe is still exposed above ground. Until the pipe was repaired, Respondent's assumption that it likely contributed to some of the odors detected by the Department appears to be valid. Finally, Respondent's expert attributes some of the odors to biological degradation from other sources both on-site and off-site, including a large wetland area running through the middle of the property. To a small degree, County testing later that fall confirms this assertion. The County has also been an active participant in the odor complaint issue. In response to complaints received from residents of Wedgewood, in July 2014 it began collecting hydrogen sulfide data using a device known as the Jerome 631X Hydrogen Sulfur Detector. This equipment is used to monitor for the presence of hydrogen sulfur. On July 21 and 22, 2014, samples were taken documenting that hydrogen sulfide was coming from the facility. In early September the County set up a fixed station at the Wedgewood Center, around 500 feet from the edge of Respondent's property, to continuously and automatically collect the data. During September and October 2014 the detector reported the presence of hydrogen sulfide at that location 64 percent of the days in those months, and this continued into the month of November. Seventy-five percent of the exceedances occurred when wind was blowing from the south, or when winds were calm. The data also reflected that when the wind was blowing from the meter to the facility, or to the south, hydrogen sulfide was still detected on some occasions. A resident of the Wedgewood community testified that on multiple occasions she has smelled objectionable odors in her home and yard and at the Wedgewood Center, and that these odors have been emanating from the facility for a number of years. Because of the odors, she says fewer citizens are participating in programs hosted by the Wedgewood Center.3/ The evidence establishes that before the Notice was issued, Respondent filed an odor remediation plan that was never rejected; therefore, the allegation that a plan was not submitted has not been proven. However, objectionable odors were detected off-site in June and July 2014, or after the April inspection reports were provided to the facility, and they continued throughout much of the fall. Therefore, the Department has established that the plan was not properly implemented. These same findings sustain the allegation that steps were not immediately taken to reduce the objectionable odors. Counts VI and VII - Disposal and Failure to Remove Unauthorized Waste Counts VI and VII allege that on April 14, 2014, the Department documented the disposal of prohibited or unauthorized waste, including waste tires; and that on July 18, 2014, the Department conducted a follow-up inspection that documented the disposal of unauthorized waste, including waste tires, clothing, shoes, and Class I waste, including one electronic item and a grill, in violation of rule 62-701.730(4)(d). The Permit specifies that the facility can only accept for disposal C & D debris. See § 2, Spec. Cond. C.2. Another condition provides that if unauthorized debris is spotted after a load is received, the unpermitted waste should be removed and placed in temporary storage in a bin at the sorting area. See § 2, Spec. Cond. C.3. The Operations Plan spells out these procedures in great detail. Photographs received in evidence show that during the inspection on April 14, 2014, the following unauthorized items were observed at the facility: tires, a basketball goal, Quiklube material, chromated copper arsenate treated wood, a toy, and a crushed electronic item. See Dept. Ex. 22. Photographs received in evidence show that during an inspection on July 18, 2014, the following unauthorized items were observed at the facility: blanket or clothing, a shoe, a bag of Class I garbage, several bags of household garbage, furniture, an electronic item and garbage, drilling mud, a suitcase, and tires. See Dept. Ex. 23. Respondent's expert, who has trained numerous spotters, including a current Department inspector, established that a de minimis amount of unpermitted waste, which is easily hidden in the debris, is not unusual and would not constitute a violation of the rule. For example, when a building is torn down, numerous thermostats containing mercury vile will be in a C & D container but very difficult to see. Also, workers at construction sites may throw small amounts of leftover food in the pile of debris that goes to the facility. However, he agrees that most, if not all, of the items observed during the two inspections would not be considered de minimis. Respondent does not deny that the unauthorized waste was present on two occasions. However, it contends that one would expect to find some of the items in a C & D dumpster. It also argues that the amount of unauthorized waste was minimal and not so serious as to warrant revocation of its Permit. The evidence supports a finding that on two occasions Respondent violated two conditions in its Permit by accepting non-C & D waste and failing to remove it. Therefore, the charges in Counts VI and VII have been proven. Count VIII - Facility Outside of Permitted Dimensions This Count alleges that on May 22, 2014, the Department conducted an inspection of the facility in response to a complaint that Respondent had disposed of solid waste outside its permitted (vertical) limit of 130 NGVD; that on July 25, 2014, the Department had a survey performed at the facility that confirmed this violation; and that this activity violated section 2.3 of the facility's Operation Plan and Specific Condition C.10 in the Permit. Section 2.3 provides that "the proposed upper elevation of waste at the [facility] will range up to 130-feet, NGVD, which is slightly above original grade[,]" while Specific Condition C.10 provides that "[t]he final (maximum) elevation of the disposal facility shall not exceed 130 feet NGVD as shown on Attachment 3 - Cell 2 Closure Grading Plan." Respondent admits that on July 25, 2014, the maximum height of the disposal pile exceeded 130 feet NGVD. However, it argues that, pursuant to Specific Condition C.10, which in turn refers to the Permit's Cell 2 Closure Grading Plan, the 130-foot height limitation comes into play only when cell 2 is being closed and is no longer active. This interpretation of the conditions is rejected for at least two reasons. First, a disposal pile in excess of the established height would trigger concerns about the integrity of the foundation of the facility. When the 130-foot ceiling was established by the Department at the permitting stage, it was based on calculations that the ground could support the weight of the waste. Second, the facility's financial assurance calculations are based on a set dimension of the site; these calculations would likely be impacted if there were no height restrictions. The Department's interpretation is more reasonable and limits the height of the pile to no more than 130 feet NVGD at any time when the cell is active. The Department has established that Respondent violated Permit conditions by disposing of waste outside its maximum permitted height of 130 feet NVGD. To Respondent's credit, its new consultant, Charles Miller, completed preparation of a height reduction plan on September 3, 2014. See Resp. Ex. 4. Although Mr. Miller says the plan was being implemented at the time of final hearing, it has never been formally submitted to the Department for approval. Under the plan, Respondent proposes to extract all of the existing waste from the pile in the next two years. To reduce the volume of new waste being accepted, Respondent recently purchased a Caterpillar bulldozer, low-speed grinder, and Trommel screener. New waste will be shredded, screened to separate sand and dirt from the material, and then ground and compacted. Mr. Miller anticipates that the facility can achieve up to an eight to one (or at a minimum a five to one) reduction in the size of the waste. This will dramatically reduce the height of the pile and bring it well below 130 feet at closure. But whether cell 2 is now below 130 feet NGVD is unknown. In any event, these proposed remediation steps should be taken into account in assessing an appropriate penalty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order revoking Respondent's C & D Permit. DONE AND ENTERED this 2nd day of March, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2015.
The Issue The issue 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).
Findings Of Fact Respondent City of Okeechobee (City) has applied to the Department of Environmental Regulation (Department) for a permit to construct a 0.6 mgd sewage treatment plant with land spraying as the method for effluent disposal. The facility will be used to provide secondary treatment of domestic waste for the City of Okeechobee. The location of the facility site will be north of the City of Okeechobee on Cemetary Road. It will be adjacent to R- Bar Estates, a residential subdivision, and the Florida School for Boys. This site is a suitable land site for the facility. Analysis of other sites has not produced a better site for the project. The waste material will be introduced into the plant where some solids will be removed. The wastewater will then move into the treatment tanks where bacteria will assimilate the nutrients. With secondary treatment, approximately 90 percent of the nutrients will be removed. The treated wastewater will then be disinfected with chlorine so as to maintain a chlorine residual of 0.5 ppm. The chlorination should destroy most if not all of the bacteria in the effluent. The method of treatment described above is a standard method. The design of the plant itself is quite common and, with the changes recommended by the Department, should be simple to maintain and should provide an acceptable level of treatment. If the plant is operated properly, the wastewater will meet all Department standards for secondary sewage treatment. Petitioner introduced no evidence at the hearing to establish that the plant itself could not be properly constructed or that the plant could not meet treatment levels. There are no noises or lighting at the plant which would carry to any residential areas. The plant itself is well removed from R-Bar Estates. While the sprayfields are located near R-Bar Estates, the only noise associated with the effluent disposal will be that of the small electric motor used to move the spray bars. The entire site will be enclosed by a fence so as to restrict access. The facility has been provided with a flow meter and with raw wastewater and finished effluent taps. The treated effluent from the plant is to be disposed of on sprayfields adjacent to the facility. Combined area of the sprayfields will be 310 acres. The sprayfield area consists of seven separate sprayfields. Each sprayfield will receive 1/2 inch of effluent per week, with each field receiving effluent one day per week. Prior to disposal of effluent, the entire site will be graded so as to eliminate low areas. Elimination of low areas on the site will reduce the possibility of effluent ponding on the site. The entire area of the sprayfield will be surrounded by a dike. The dike will prevent any surface waters or effluent from leaving the site. There will be no contamination of any waters from surface water runoff from the site. The facility has the capacity to store effluent for 90 days in the event of an unusually wet rainy season. That capacity allows the plant to retain all effluent for 90 days without any discharge in the event the sprayfields become saturated. The size of the pond may allow for some mosquito propagation but no mosquito problem is anticipated if the project is done properly and maintained. Mosquito propagation in holding ponds does occur in Florida. However, in every holding pond in which mosquito propagation has become a problem, it has been controlled by proven management techniques. The most common method of eliminating areas for mosquito propagation is to keep the side slopes of the pond free from vegetation. However, if that is not effective, adequate control may be achieved by use of chemical larvicides. In a pond of this size, chemical use is not as practical, but nonetheless remains as an alternative. The City of Okeechobee already owns the machinery necessary to mow around the perimeter of the pond. The holding pond area includes a separate pond which will accept effluent during times in which the plant upsets. During an upset, hydraulic or other factors may result in the plant producing inadequately treated effluent. That inadequately treated effluent will be pumped back to the head of the plant for further treatment. During the treatment process, ozone will be injected into the raw sewage. Ozone serves to reduce the smell of the sewage. Between the ozone treatment and the treatment at the plant, the finished effluent should have a very slight and innocuous odor. The application of effluent shall be accomplished by two methods. In four fields, effluent will be sprayed by an irrigator which moves in a circle from a central pivot. The effluent is sprayed down to the ground, thereby eliminating potential for aerosol drift. In the three fields furthest from inhabited areas, effluent is sprayed by a rolling unit which is pulled across the sprayfield. Trees and other vegetation at the property boundaries will eliminate any aerosol drift which may occur. There is a buffer of 200 feet from the edge of the sprayfield to the property boundary. It is in excess of 400 feet from the edge of the sprayfield to the nearest drinking water well. This distance should be adequate to keep any contaminants from reaching wells offsite. The nearest wells are all fully encased wells at approximately 100 feet or greater in depth. The plant described in the application and drawings is designed to provide Class I reliability pursuant to Florida Administrative Code Rule 17-6.040(4)(m). The primary constituents of the effluent will be water, nitrogen and phosphorus. Vegetation utilizes nitrogen and phosphorus in its growth process. When treated effluent is sprayed on a field, much of the nutrients remaining after treatment are assimilated by vegetation on the fields. Therefore the vegetation provides additional treatment for effluent beyond that provided in the plant. The types of vegetation to be grown in the Okeechobee sprayfields are Pangola grass and rye grass. Pangola grass, which is recommended for the area by the Soil Conservation Service, is a commercially valuable hay. Okeechobee intends to have a person contract with the City to harvest the hay four times per year. During the winter, when Pangola grass is dormant, rye grass will be planted and utilized to provide the same treatment. The facility will be surrounded by a series of monitoring wells which will allow early detection of contaminants leaving the property boundary. The wells will measure upstream and downstream groundwater. Nitrogen and phosphorus are not health related components of effluent. They are nutrient related standards and must exist in extremely high concentrations to have a health risk. However, if the monitoring wells pick up levels of nitrogen or phosphorus leaving the site boundary, a fund has been established for the construction of water mains to R-Bar Estates to provide residents of the area with city water. An adequate water supply to R-Bar Estates is assured. The soils in the project area consist of Myakka and Imokolee fine sand with pockets of other fine sands. An organic pan exists at elevations from 24 to 35 inches below the surface. The organic pan acts as a semi-confining layer. The permeability rate of the sands is approximately 12 feet per day. The organic layer rate is from 4 to 12 feet per day. As a part of the site preparation, the organic layer will be deep plowed to break up the layer and allow for a greater permeability rate. The permeability of the shallow water table is approximately 2 feet per day, and for purposes of doing calculations, in DER Exhibit 2, a rate of 2 feet per day was used. Based on all available data, the soils and vegetation at the site should be more than capable of assimilating and fixing the nitrogen and phosphorus load from the effluent. There is little or no risk of contamination of water sources off-site, including Taylor Creek. The City of Okeechobee has agreed to obtain a $3,000,00c policy of pollution insurance protecting against pollution of drinking water wells resulting from construction of the proposed wastewater treatment facility, and the City has the authority to obtain the insurance. There is no reverter clause in a deed from Okeechobee County to the State of Florida that would effect the use of the proposed site as a wastewater treatment facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting a permit to the City of Okeechobee to construct the wastewater treatment facility as proposed. DONE and ENTERED this 27th day of June, 1984, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 27th day of June, 1984. COPIES FURNISHED: Robert v. Kennedy, Esquire Post Office Box 968 Okeechobee, Florida 33472 Lester W. Jennings, Esquire Post Office Box 237 Okeechobee, Florida E. Gary Early, Esquire Department of Environmental Regulation 2600 Blairstone Road, Suite 654 Tallahassee, Florida 32301
The Issue Whether the Respondent's real estate license in Florida should be disciplined because the Respondent committed fraud, misrepresentation, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, David John Tribbey, was at all times material hereto a licensed real estate salesman in the State of Florida having been issued license number 0499607 in accordance with Chapter 475, Florida Statutes. The last license issued was as a salesman, in association with Century 21 G.M. Group, Inc., a broker corporation located at 2233 Nursery Road, Clearwater, Florida, and home address of 1648 Summerdale Drive South, Clearwater, Florida. On March 31, 1989, his sales license expired and has not been renewed. In the summer of 1988, George Cayley made an offer to purchase a house at 7151 Flora Avenue, Largo, Florida, from Beryl W. Constable for the sum of $25,000. This offer was accepted, and a contract for sale of real estate was executed on March 3, 1988. Respondent was the agent for the Seller. Contained in the contract was the following pertinent clauses: "4. THIS CONTRACT IS SUBJECT TO THE TERMS AND CONDITIONS APPEARING ON THE REVERSE SIDE HEREOF WHICH ARE HEREBY INCORPORATED HEREIN [BY] REFERENCE EXCEPT AS STATED IN OTHER PROVISIONS. OTHER PROVISIONS ... Seller will pay a maxi- mum of $500.00 towards repairs other than termite clause E. THE FOLLOWING ITEMS SHALL BE IN WORKING ORDER AT CLOSING, "as is" after closing: All items listed in #5 above and to include elec- trical and plumbing. ... E. TERMITE INSPECTION, TREATMENT: Seller shall furnish to Buyer a termite inspection report from a licensed exterminating company showing the premises to be free of visible evidence of active infestation of subterranean or drywood termites. In the event the report reveals such infestation. Seller shall, prior to closing, have the premises treated for extermination of termites and have all damage caused by such infestation repaired; provided, however, that in the event the cost of treatment and repair will exceed the sum of Five Hundred ($500.00) Dollars the Seller shall have the option of terminating this contract, in which case the earnest money deposit shall be returned to Buyer. Cayley purchased the property for investment purposes. This was the second investment property he purchased. He walked through the house shortly after it was listed, the house was in excess of thirty years old and it was apparent that it was only in passable shape, and the roof would need to be replaced. The Buyer had the roof inspected, and as a result the Seller had the roof replaced. In between the roof inspection and replacement, Bob Bluhm of Century 21 G.M. Group, Inc., on behalf of the Seller arranged for a termite inspection to be completed. On May 13, 1988, JR's Termite and Pest Control inspected the house and the report of findings indicated that the inspector observed visible evidence of drywood and subterranean termites located throughout the structure and visible damage. A notice of inspection was left under the kitchen sink. Between May 16 and 18, 1988, the house and carport was treated by tenting and all evidence of live wood destroying organisms was eliminated. However, the inspector still noted that visible evidence of damage was observed. A notice of inspection was left under the kitchen sink. The Seller took no action to repair the damage prior to closing. The closing on the house took place on May 27, 1988, at the office of Century Title and Abstract, Inc. with John W. Johnson as closing agent. At the closing, the closing agent delivered to Cayley the termite inspection reports and went over the closing statement prior to its execution by the parties to the sale. The Closing Statement, executed on May 27, 1988, showed that the Seller paid $525 for pest inspection and the parties divided equally the cost of roof repair. Cayley was advised that the house had been "tented". Cayley and the Respondent did a final "walk through" of the house the day prior to the closing, and Cayley was shown the termite inspection sticker under the kitchen sink. Cayley made no further inquiry concerning termites and Respondent provided no further information in regard to the damage caused by the termites. Following the closing, Cayley sent his contractor to replace some broken and missing siding at the bottom of one side wall and substantial damage to the structural support of the house was discovered that was caused by the prior termite infestation. It cost the Buyer several thousand dollars to repair the damage.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Respondent be found guilty of violating Subsection 475.25(1)(b), Florida Statutes, that he should be reprimanded and an administrative fine of $500 should be imposed. RECOMMENDED this 25th day of January, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 25th day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4812 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Accepted in substance: paragraphs 1,2,3,4,5 Rejected as against the greater weight of the evidence: 6,8 Rejected as a conclusion of law: 7 Respondent's proposed findings of fact: Respondent did not submit proposed findings. COPIES FURNISHED: Steven W. Johnson, Esquire Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 David John Tribbey 1201 Seminole Boulevard #8 Largo, Florida Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0750
The Issue The issue is whether respondents should have a civil penalty imposed against them for failing to repair allegedly faulty on-site sewage disposal units.
Findings Of Fact Based upon all the evidence, the following findings of fact are determined: Respondents, Carl L. and Deborah J. Forrester, have resided on Lem Turner Road in Callahan, Nassau County, Florida, since December 1988. Their home is serviced by two underground sewage disposal systems, both located in the back yard and installed prior to 1983. In the fall of 1991, Betty Bailey and her now deceased husband began construction of a new home on the lot adjacent to the Forresters. The home was completed in early 1992. As a result of a complaint filed by Bailey with the Nassau County Public Health Unit, which is an arm of respondent, Department of Health and Rehabilitative Services (HRS), respondents were required to obtain a construction permit to repair their sewage disposal systems. Because HRS concluded that respondents did not repair their systems as required by the permit, it contends they should be assessed a civil penalty until the violations are corrected, but that such fine not exceed $1500. This preliminary decision is embodied in an administrative complaint issued against respondents in early 1993. The street on which respondents live, Lem Turner Road, runs in a north- south direction. Beginning at the northern end of the block and going south are the Lindemann, Forrester, Bailey, and Campbell home sites, respectively. The natural slope of the land runs north to south so that water runs from the Lindemann property, which is the high point on the block, south over the Forrester property, then over the Bailey property, and finally through the Campbell property and into a small pond on an adjacent lot. Directly behind the Forrester lot is a home owned by Susan Lewis and her husband while Ronald K. Earl's home is located on a 3-acre home site directly behind Bailey's lot. There is also a sod farm which lies to the south and east of the block and, at its closest point, is no more than seventeen hundred feet from the Earl property. Since there is no central wastewater treatment plant, each of the homes in this area must use an individual sewage disposal unit (septic tank and drainfield). It is noted that because of the low elevation in the area, and the seasonal high water table elevation, at least 95 percent of all new systems currently installed in Callahan must use a septic tank with a mound-type of drainfield. When the Baileys were constructing their home, Betty Bailey noticed that the elevation of her property was lower than the Forresters' lot, and the area in the back yard immediately adjacent to the Forresters' property line was always "wet" and "mushy". Indeed, it was so wet that on occasion construction trucks would get stuck. She also observed water bubbling up out of the Forresters' yard adjacent to her property line. In an effort to eliminate the wet area, Bailey added a considerable amount of fill dirt to her lot and sodded the area. She recalls adding some twenty loads or so while Carl Forrester says it was much more than that. In any event, the elevation on her lot increased to a height slightly greater than that of the Forrester lot, and this changed the natural flow of stormwater runoff from over her lot to a ditch which straddles her property line. Even so, she says the fill and sod did not correct the wet condition near the property line and it still remained wet as of the date of hearing. After moving into her home in February 1992, Bailey began noticing a sewage odor emanating from the soggy area of ground running from her back yard to the Forresters' back yard. The odor, which was worst in the evening and when it rained, was so bad that it prevented her from using her screened back porch and swimming pool in the evening or entertaining friends outside. The condition still existed as of the date of hearing. Bailey spoke to Carl Forrester about the odor and mushy ground on several occasions. Once he told her there was an underground spring causing the wet ground and suggested she install a french drain system to convey stormwater runoff from her back yard. He also suggested the odor was caused by the nearby sod farm which used manure to fertilize the sod. Bailey contacted the Nassau County Public Health Unit on March 2, 1992, and requested that it check out the source of the problem. Shortly thereafter, Stanley Stoudenmire, a Nassau County environmental health care specialist, inspected the area where respondents' property abuts the Bailey property and observed "mushy" ground, standing water, flies, and bright green algae growth. He also smelled hydrogen sulfide, which is indicative of a failing drainfield, and observed water coming out of the ground. Without the need to take water samples, Stoudenmire identified the pooling liquid as effluent flowing from respondents' drainfields. All of these conditions were indicative of a failed sewage system and constituted a sanitary nuisance. It is noted that an improperly operating system is a threat to human life and safety since it can cause a number of diseases. After advising Carl Forrester that there was a problem with his drainfield, Stoudenmire was told by Forrester that his systems had been checked out by two septic tank firms and nothing was wrong. Nonetheless, Stoudenmire advised Forrester to repair the systems. Stoudenmire continued to monitor the situation and even ran a red dye test on one visit. This produced no evidence of a faulty system, but the test is not a conclusive indicator of a failed system. After Bailey continued to make complaints and further inspections revealed that no repairs had been made, Stoudenmire advised Forrester by letter dated July 9, 1992, that he must obtain a permit to correct the systems. On July 13, 1992, Carl Forrester made application for a permit. The application required him to make a site and soil evaluation and prepare a drawing of the proposed corrections. The next day, Stoudenmire conducted a soil and site evaluation on the Forrester property as an aid to them in determining the type of repairs that they needed and the specifications for the drainfield. According to the soil borings, which were not contradicted, the bottom of the existing drainfields were not separated from the seasonal high water table elevation by at least twelve inches, as required by Rule 10D-6.0571(4), Florida Administrative Code. Further, the area had a clay subsurface, which means that water percolation is not good. On July 16, 1992, respondents made application for a construction permit. The permit contained specifications consistent with Stoudenmire's evaluation and required respondents to disconnect both existing systems and install a mound-type drainfield, like that in Betty Bailey's back yard, so that the required 12-inch separation could be achieved. The permit required the work to be completed within ninety days. On September 15, 1992, Stoudenmire advised respondents by letter that they "had not notified (his) office of any efforts to correct the problem". They were told that unless corrective action was taken within ten days, "legal action would be pursued". On October 26, 1992, a second letter was sent to the Forresters by Stoudenmire advising them that he continued to receive complaints, that the repairs may have been done in "an illegal manner", and that they had "5 days from receipt of this notice to contact (him) for an inspection." In November 1992, Carl Forrester made certain "repairs", but they were not of the type required under the permit. Instead, he installed a french drain system, consisting of a 55-gallon drum, an electric pump and a drain pipe, which simply conveyed stormwater runoff and effluent from his back yard to a percolation system in his front yard. Bailey says that, as a result of these "repairs", she can now smell the sewage odor emanating from the front yard. Forrester also placed lime on the soggy area and sprayed the same area with a chemical. On November 26, 1992, HRS issued another warning letter to the Forresters stating that it was "imperative" that they "cooperate and respond immediately" due to continued complaints by Bailey. Stoudenmire also returned to the site and once again observed insects and "mushy ground", caused by a combination of effluent and stormwater, and could smell a raw sewage odor in an area which straddled the Forrester-Bailey property line. These conditions were the same as those previously observed on prior inspections, were indicative of a failed sewage disposal system, and constituted a sanitary nuisance. There is no evidence that the conditions had been corrected as of the date of hearing. During this same period of time, Susan Lewis, who lives directly behind the Forresters, occasionally smelled a raw sewage odor, especially in the evening, coming from the Forresters' back yard. When she spoke with Carl Forrester about the odor, he told her that he was aware of the problem, had "no doubt" there was sewage "going to" the Bailey property, but denied it was from his systems. However, he also told her he intended to correct the problem. Testimony by two other neighbors established that they do not smell any foul odors coming from the Forrester property but that when climatic conditions are just right, they can smell an odor from the nearby sod farm. However, it is found that the odor smelled by Stoudenmire, Bailey and Lewis comes from the Forresters' faulty drainfields and is different from that occasionally caused by the sod farm. Respondents do not want to incur the cost of disconnecting their two existing systems and installing an unsightly mound system, which would cost almost $3,000.00. In addition, Carl Forrester says that the trucks and equipment used to install a mound system would cause another $2,000.00 in driveway and landscape damage. Because of this, Forrester contends he will sell his home before installing a mound system. Forrester also blamed the newly added fill on Bailey's lot, which disrupted the natural flow of water, for causing the standing water on his property. However, there was no evidence that this condition caused the drainfields to operate in a faulty manner. Forrester also said four septic tank firms found his systems to be in compliance with HRS rules. But this testimony is hearsay in nature and cannot be used to make a finding in his favor. Finally, he blamed part of the odor on a rotting gum tree stump in his back yard which eventually dissipated. However, this contention is not accepted as being credible.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing a $1,000 civil penalty upon respondents for violating Subsections 386.041(1)(a) and (b), Florida Statutes, and Rule 10D-6.0571(4), Florida Administrative Code. Respondents should also be required to correct their failed system by installing a mound- type drainfield within thirty days from date of final order. DONE AND ENTERED this 20th day of May, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 20th day of May, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1300 Petitioner: 1-2. Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in findings of fact 6 and 9. Partially accepted in finding of fact 2. Partially accepted in finding of fact 6. Covered in preliminary statement. Partially accepted in finding of fact 4. 9-10. Partially accepted in finding of fact 7. Partially accepted in finding of fact 12. Partially accepted in finding of fact 2. Respondents: 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 3. 5. Partially accepted in finding of fact 12. 6-7. Partially accepted in finding of fact 6. 8. Partially accepted in finding of fact 7. 9. Partially accepted in finding of fact 6. Partially accepted in findings of fact 1 and 12. Partially accepted in finding of fact 9. Partially accepted in finding of fact 10. 13-14. Partially accepted in finding of fact 11. 15. Partially accepted in finding of fact 12. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Robert L. Powell, Agency Clerk Building One, Room 407 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John S. Slye, Esquire Building One, Room 407 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Charlene J. Petersen, Esquire Post Office Box 2417 Jacksonville, FL 32231-0083 J. Gary Baker, Esquire Post Office Box 1177 Callahan, FL 32011
