The Issue The issues to be determined in this case are whether Respondents should pay the administrative penalty, investigative costs, and attorney’s fees and undertake the corrective actions that are demanded by the Florida Department of Environmental Protection (the “Department”) as set forth in the Final Amended Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment.
Findings Of Fact The Parties The Department is the administrative agency of the state of Florida having the power and duty to protect Florida’s air and water resources and to administer and enforce the provisions of chapters 376 and 403, Florida Statutes, and the rules promulgated thereunder in Florida Administrative Code Title 62. Germain is a licensed Florida attorney. From May 2006 to January 2013, Germain was the record owner of the real property at 1120 West Main Street, Leesburg, Lake County, Florida (the “Germain property”). Leesburg’s is an active Florida corporation that was incorporated in January 2013 by Germain. Germain is Leesburg’s sole corporate officer and sole shareholder and has managerial authority over the Germain property. John Doe 1-5 is a placeholder designation used by the Department for the purpose of covering all potential entities to which Germain might transfer the property. No other such entity materialized. Background A gas station was operated on the Germain property continually from the 1920s through the late 1980s. During the 1980s and perhaps for a longer period, C.E. Griner operated the gas station under the name Griner’s Service Station. Griner’s Service Station had at least three underground storage tanks (“USTs”) used to store leaded and unleaded gasoline. In 1989 or 1990, Griner ceased operation of the gas station and the USTs were filled with concrete and abandoned in place. The Germain property has not been used as a gas station since that time. In 1990, the Department inspected the Germain property and prepared a report. The inspection report noted that the USTs at the Germain property “were not cleaned properly prior to filling with concrete.” The report also noted that the tanks were not properly abandoned in place. No evidence was presented to explain in what way the tanks were not properly abandoned, or to indicate whether the Department took any enforcement action based on this report. In 1996, Gustavo Garcia purchased the Germain property from Griner. In May 2006, Germain purchased the property from Garcia. Another gas station, operating for many years under several names (now “Sunoco”), is located at 1200 West Main Street, across a side street and west of the Germain property. Since 1990, one or more discharges of petroleum contaminants occurred on the Sunoco property. There were also gas stations at the other two corners of the Main Street intersection, but no evidence was presented about their operations or conditions. In March 2003, apparently as part of a pre-purchase investigation, testing was conducted at the Sunoco property that revealed petroleum contamination in the groundwater. Soil contamination was not reported. S&ME, Inc. (“S&ME”), an environmental consulting firm, subsequently submitted a discharge report to the Department’s Central District Office in Orlando. Later in 2003, S&ME conducted an initial site assessment for the Sunoco property. In the report it produced, S&ME noted that it found concentrations of petroleum contaminants in the groundwater that were above the Department’s Groundwater Cleanup Target Levels (“GCTLs”). The concentrations exceeding GCTLs were in samples taken from the eastern side of the Sunoco property, closest to the Germain property. In 2004, S&ME completed a Templated Site Assessment Report for the Sunoco property. Groundwater samples from the eastern portion of the Sunoco property again revealed petroleum contamination exceeding GCTLs. Garcia, who owned the Germain property at the time, allowed S&ME to conduct soil testing on the Germain property. The soil samples were taken by direct push methods and were tested with an organic vapor analyzer (“OVA”), which revealed toluene, ethylbenzene, total xylenes, naphthalene, 1-methyl naphthalene, and total recoverable petroleum hydrocarbons exceeding the Department’s Soil Cleanup Target Levels (“SCTLs”). In 2005, another private environmental consulting firm, ATC Associates, Inc. (“ATC”), performed a Supplemental Site Assessment on the Sunoco property and produced a report. As part of its assessment, ATC installed three monitoring wells on the Germain property and collected groundwater samples. These groundwater samples revealed petroleum constituent concentrations that exceeded GCTLs and were higher than concentrations found in groundwater samples taken under the Sunoco property. Both the 2004 and 2005 site assessment reports concluded that the groundwater in the area flowed from the southeast to the northwest; that is, from the Germain property toward the Sunoco property. Germain referred to a figure in S&ME’s 2004 report that he claimed indicated a southeasterly flow of groundwater from Sunoco toward the Germain property. However, a preponderance of the evidence establishes that groundwater flow in the area is generally northwesterly from the Germain property toward the Sunoco property. Based on the results of its testing, ATC concluded in its site assessment report that the groundwater contamination on the eastern portion of the Sunoco property had migrated from the Germain property. ATC also took soil samples from the Germain property. It screened the soil samples with an OVA and reported petroleum contamination exceeding the Department’s SCTLs. Petroleum contamination in soil typically does not travel far horizontally. It remains in the vicinity of the source. Therefore, the soil contamination found on the Germain property indicates an onsite source of the contamination. All of the assessment reports were filed with Seminole County, presumably with the Department of Public Safety, Emergency Management Division, which is the local entity with which the Department contracted to inspect and manage petroleum facilities in the area. These reports were public records before Germain purchased his property. A June 2005 Memorandum from Seminole County informed Bret LeRoux at the Department’s Central District Office that ATC’s 2005 site assessment report indicated the Germain property was the source of petroleum contamination. The Memorandum recommended that the Department contact the owner of the property about the contamination. The Memorandum was filed at the Department. After the Department received the Memorandum, it requested and received the site assessment reports from Seminole County. The Department did not notify Garcia or the public about the contamination in 2005. The Department did not notify Germain about the contamination until August 2007. All Appropriate Inquiry The principal factual dispute in this case is whether Germain undertook “all appropriate inquiry into the previous ownership and use of” the Germain property before purchasing it, as required by section 376.308(1)(c)1/: [A person acquiring title to petroleum- contaminated property after July 1992] must also establish by a preponderance of the evidence that he or she undertook, at the time of acquisition, all appropriate inquiry into the previous ownership and use of the property consistent with good commercial or customary practice in an effort to minimize liability. Before he purchased the Germain property in 2006, Germain knew that it had been a gas station for a number of years. Garcia told Germain that the USTs had been filled with concrete and were “within the law.” Germain was also aware that the Sunoco USTs had recently been excavated and that there was a problem with the tanks and possible contamination there. Germain said he spoke with neighbors about the property, but he did not say what he learned from them. Before the purchase, Germain conducted a visual inspection of the property and saw “several little metal plates” in the parking lot. Germain claimed it was only later that he learned that some of the plates were covers for groundwater monitoring wells. Germain said he visited and reviewed files at a Lake County office, but he was not specific about which county offices he visited. He also went to the Leesburg Historic Board to review property records. Germain’s testimony was not clear about what records he saw on these visits. Germain did not go to the office of the Seminole County Department of Public Safety, Emergency Management Division, to view records pertaining to the Germain property. He did not claim to have gone to the Department’s Central District Office in Orlando. In other words, Germain did not go to the offices of the agencies responsible for regulating petroleum USTs. Nor did Germain say that he talked to any knowledgeable employee of these agencies by telephone about possible contamination issues on the Germain property. While at a Lake County office, Germain searched the DEP website and saw two documents that indicated the USTs on the Germain property had been closed in place. One of the documents indicated a cleanup status of “no contamination.” Germain claimed that he relied on these documents to conclude that the property was clean. The Department explained that the phrase “no contamination” is used in its database as a default where no contamination has been reported and no discharge form has been filed. It is not a determination based on a site investigation that the site is free of contamination. However, the Department had received information that the Germain property was contaminated, so its explanation of the “no contamination” status for the Germain property was unsatisfactory. Germain does not practice environmental law. He neither claimed nor demonstrated knowledge or experience with the legal or factual issues associated with petroleum contamination. Germain did not present evidence to establish that he followed “good commercial or customary practice” in his investigation of the property as required by section 376.308(1)(c). Good commercial practice in the purchase of property upon which potentially contaminating activities have occurred entails consultation with a person with appropriate knowledge and experience. Germain did not consult with an environmental attorney or environmental consultant regarding the potential liability associated with property used as a gas station. If Germain had hired an environmental consultant to assist him, the consultant would have known where to find public records about the gas station, including any soil and groundwater analyses. An environmental consultant would have seen the site assessment reports and other public records that indicated petroleum contamination on the Germain property. A consultant would likely have recommended a Phase I environmental site assessment (“ESA”). A Phase I ESA entails, generally, determining past uses of a property, inspecting the property for visible indications of potential contamination, and reviewing aerial photographs, historical documents, and public records related to the property and its surroundings. A Phase II ESA would follow if potential contamination is discovered and usually includes taking soil and groundwater samples. In considering whether all appropriate inquiry was undertaken by a purchaser of contaminated property, section 376.308(1)(c) directs the court or administrative law judge to take into account: any specialized knowledge or experience on the part of the defendant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection. Germain did not have specialized knowledge regarding the regulation of petroleum USTs. However, as a lawyer, he was familiar with the practice of employing or working with professionals with specialized knowledge in order to achieve the objectives or solve the problems of his clients. If Germain’s legal assistance had been sought by a client to solve an environmental problem, Germain would have declined to proceed because he did not possess the requisite knowledge or he would have sought the assistance of an environmental lawyer or environmental consultant. In purchasing the Germain property, Germain did not undertake the reasonable steps a lawyer must take for a client. No evidence was presented about the relationship of the purchase price to the value of the Germain property. Germain did not show that the site assessment reports and other documents discussed above were not “reasonably ascertainable information.” Although a visual inspection by a lay person would not have disclosed the presence of contamination at the property, an environmental consultant would have recognized the groundwater monitor wells and would have known to seek information about the reason for their installation and the groundwater sampling results. Taking all relevant considerations into account, Germain failed to show that he made all appropriate inquiry before he purchased the Germain property. Germain transferred the property to Leesburg’s in January 2013 in part to limit his potential personal liability for petroleum contamination. The Germain property is Leesburg’s primary asset. Because Leesburg’s took title to the Germain property after the NOV was issued, it had full knowledge of the contamination and cannot claim to be an innocent purchaser. Post-Purchase Investigation In August 2007, the Department sent Germain a letter informing him that the Department had reason to believe his property was contaminated with petroleum and requiring him to conduct a site assessment pursuant to rule 62-770.600(1).2/ In September 2007, the Department sent Germain the 2004 and 2005 site assessment reports. Germain did not conduct a site assessment. At the final hearing, the Department did not state whether it had made any effort to take enforcement action against Griner, whom the record evidence indicates was the owner of the gas station when the discharge occurred. In 2012, the Department issued Germain a notice of violation for failing to conduct a site assessment and remediation. After Germain transferred the property to Leesburg’s, the Department issued the Final NOV to add Leesburg’s as a Respondent. The Final NOV seeks penalties of $10,000 against Germain, and $10,000 against Leesburg’s. While investigating this matter, the Department incurred expenses of $11,380.37 in investigative costs. Confirmation of On-site Contamination Despite the site assessment reports that documented contamination on the Germain property, Germain disputed the Department’s claim that the property was contaminated. The Department conducted testing and completed a Site Investigation Report in 2010. Because Germain would not allow the Department onto his property, the Department installed groundwater monitoring wells adjacent to the Germain property to the west and south, and collected groundwater samples. The Department confirmed the northwesterly flow of groundwater documented in previous reports and found elevated levels of petroleum contaminants above GCTLs, including benzene, ethylbenzene, toluene, xylene, total lead, EDB, and total recoverable petroleum hydrocarbons. Monitoring wells west of, or downgradient of, the Germain property showed high levels of groundwater contamination, while monitoring wells to the south and southeast, or upgradient of the property showed no signs of contamination, indicating that the source of the groundwater contamination was on the Germain property. Based on the site assessments and its own investigation, the Department determined that the Germain property is the source of petroleum contamination detected along the eastern portion of the Sunoco property. Germain and Leesburg’s did not present any expert testimony to support their claim that the Germain property is not contaminated or that the contamination migrated to the Germain property from offsite. A preponderance of the record evidence shows that the Germain property is the source of the petroleum contamination found in the onsite soil and groundwater, as well as in groundwater on the eastern portion of the Sunoco property.
The Issue The issues presented in the case are whether Respondents P & L Salvage and Marlene Ballard are liable for violations of state statutes and rules, as alleged in the amended NOV, and, if so, whether the proposed corrective action is appropriate, and whether the proposed civil penalties and costs should be paid by Respondents.
Findings Of Fact The Parties The Department is the state agency charged with the power and duty to administer and enforce the provisions of Chapters 376 and 403, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 62. Respondent P & L Salvage, Inc., is a Florida corporation. P & L Salvage owned and operated an automobile salvage yard at 4535 and 4537 West 45th Street in West Palm Beach, Florida (the “property,” “facility,” or “site”). The property comprises less than two acres. Respondent Marlene Ballard is a Florida resident and the president, treasurer, secretary, and director of P & L Salvage, Inc. Historical Use of the Site Beginning in the 1960s, the site was used as an auto salvage yard, first under the name Johnny’s Junkyard and later as General Truck Parts. In 1981, the owner of the salvage yard, Marie Arant, sold the facility. The record is not clear about the exact identity of the purchaser. The Alliance report, referred to later, states that the property was purchased by “the Ballard family.” The record evidence is insufficient to prove that Marlene Ballard ever owned the salvage yard. The parties agree that the salvage yard was operated for a time as P & L Salvage, which was unincorporated. Then, in January 1990, the site was purchased by Respondent P & L Salvage, Inc., which owned the site continuously until January 2007. Marlene Ballard lived in a house on the site from the 1980s until the property was sold in 2007. A separate building at the site was used as P & L Salvage’s office. The general operation of the salvage yard was to bring junk cars and trucks to the site, remove fluids from the vehicles, remove parts for sale, and then crush the dismantled vehicles in a hydraulic crusher to prepare them for transport and sale as scrap metal. The automotive fluids removed from the junked cars were stored on the site in 55-gallon drums for later disposal. Respondents presented evidence to show that the person who had the most knowledge of and managed the day-to-day operations in the salvage yard was an employee named John Boyd. When John Boyd ceased employment at the salvage yard, Marlene Ballard’s son, Thomas Ballard, took over the management of the yard. Respondents contend that no evidence was presented that Marlene Ballard conducted or participated in any activities that resulted in contamination, or that she had authority to prevent any potential contamination that might have occurred. However, Ms. Ballard was familiar with the activities in the yard, having worked and lived on the site for many years. She did the bookkeeping and signed payroll checks. All employees answered to Ms. Ballard. She contracted for environmental assessment and remediation work, and signed the hazardous waste manifests. She was acquainted with the contamination that could and did occur at the salvage yard. Eagle Sanitation, Inc., which operated a roll-off container business, leased the site from September 2005 until January 2007. Eagle Sanitation also obtained an option to purchase the property. At first, Eagle Sanitation only leased about a quarter of the site because there were many junk autos, tires, and other salvage debris still on the site in September 2005. For several months, Thomas Ballard continued to sell auto parts and scrap from the site, and to clear the site. Eagle Sanitation did not have complete use of the site until early in 2006. Eagle Sanitation’s business consisted of delivering roll-off containers for a fee to contractors and others for the disposal of construction debris and other solid waste, and then picking up the containers and arranging for disposal at the county landfill or, in some cases, recycling of the materials. Roll-off containers at the site were usually empty, but sometimes trucks with full containers would be parked at the site overnight or over the weekend. During its lease of the site, Eagle Sanitation did not collect used oil or gasoline and did not provide roll-off containers to automotive businesses. No claim was made that Eagle Sanitation caused any contamination found at the site. Contamination at the Site In 1989, Marlene Ballard contracted with Goldcoast Engineering & Testing Company (Goldcoast) to perform a “Phase II” environmental audit. Goldcoast collected and analyzed groundwater and soil samples and produced a report. Cadmium, chromium, and lead were found in the soil samples collected by Goldcoast. Some petroleum contamination was also detected in soils. These pollutants are all associated with automotive fluids. The Goldcoast report states that groundwater samples did not indicate the presence of pollutants in concentrations above any state standard. The Goldcoast report did not address the timing of discharges of contaminating substances that occurred at the site, except that such discharges had to have occurred before the report was issued in 1989. That is before the property was purchased by P & L Salvage, Inc. During an unannounced inspection of the salvage yard by two Department employees on August 15, 1997, oil and other automotive fluids were observed on the ground at the site in the “disassembly area” and around the crusher. There were also stains on the ground that appeared to have been made by automotive fluids. No samples of the fluids were taken or analyzed at the time of the inspection. The Department inspectors told Marlene Ballard to cease discharging fluids onto the ground, but no enforcement action was initiated by the Department. Ms. Ballard was also told that she should consider removing the soil where the discharged fluids and staining were observed. In early 1998, RS Environmental was hired to excavate and remove soils from the site. This evidence was presumably presented by Respondents to indicate that they remediated the contaminated soils observed by the Department inspectors, but no details were offered about the area excavated to make this clear. In 2004, in conjunction with a proposed sale of the site, another Phase II investigation of the site was done by Professional Services Industries, Inc. (PSI), and a report was issued by PSI in May 2004. The PSI report is hearsay and, as such, cannot support a finding of fact regarding the matters stated in the report. Presumably as a result of its knowledge of the PSI report, the Department issued a certified letter to Ms. Ballard on June 24, 2005, informing her that the Department was aware of methyl tert-butyl ethylene (MTBE) contamination at the facility. MTBE is an octane enhancer added to gasoline. The Department’s June 2005 letter advised Ms. Ballard that Florida Administrative Code Chapter 62-780 required “responsible parties” to file a site assessment report (SAR) within 270 days of becoming aware of such contamination. The letter also informed Ms. Ballard of the proximity of the City of Riviera Beach’s wellfield and the threat that represented to public drinking water. The June 2005 letter was returned to the Department unsigned. In October 2005, the Department arranged to have the letter to Marlene Ballard served by the Palm Beach County Sheriff’s Office. The Department received a confirmation of service document that shows the letter was served by a deputy on October 14, 2005, but this document is hearsay and does not support a finding that Ms. Ballard had knowledge of the contents of the letter. The Department did not receive an SAR within 270 days, but no enforcement action was immediately initiated. On December 15, 2006, the Department issued a six- count NOV to P & L. Salvage, Inc. P & L Salvage requested a hearing and the matter was referred to DOAH. In January 2007, in conjunction with Eagle Sanitation’s proposed sale of its purchase option to Prime Realty Capital, LLC, Alliance Consulting & Environmental Services, Inc., (Alliance) conducted a site assessment at the site and produced an SAR in April 2007. At that time, as indicated above, P & L Salvage had ceased operations at the site and Eagle Sanitation was operating its roll-off container business there. The SAR states that in January 2007, “[a]pproximately 80 yards of black stained oily-solidified shallow sands were excavated [by Eagle Sanitation] from the central and northeastern portions of the site, where car crushing, fluid draining and battery removal were historically conducted.” The soil contained lead, iron, chromium, cadmium, and arsenic, but testing did not show the excavated soils constituted hazardous materials and, therefore, the soils were disposed at the county landfill. The area of soils where the Department inspectors in 1997 observed automotive fluids and staining appears to have been included in the soils that were excavated and removed in 2007. The Department presented no evidence to the contrary. Testing by Alliance of other soils at the site showed “no significant petroleum metals concentrations” and Alliance did not recommend the removal of other soils. The presence of an MTBE “plume” of approximately 30,000 square feet (horizontal dimension) was also described in the SAR. The plume is in the area where the crusher was located. Several groundwater samples from the site showed MTBE in concentrations above the target cleanup limit. The City of Riviera Beach operates a public water supply wellfield near the site. The closest water well is approximately 250 feet from the site. The SAR concludes that “the potential exists for the MTBE plume to be pulled downward” toward the well, and recommends that a risk assessment be performed. Alliance recommended in the SAR that the MTBE contamination be remediated with “in-situ bioremediation” with oxygen enhancement. No remediation has occurred on the site since the date of the Alliance report. The Alliance report did not address the timing of contaminating discharges that occurred at the site. To the extent that Alliance reported contamination in 2007 that was not reported in the 1989 Goldcoast report, that is not sufficient, standing alone, to meet the Department’s burden of proof to show that P & L Salvage, Inc., caused “new” contamination after 1989. Competent evidence was not presented that the Alliance report describes “new” contamination. The authors of the reports were not called as witnesses. No expert testimony was presented on whether the data in the reports can establish the timing of contaminating discharges. It is not the role of the Administrative Law Judge, nor does he have the requisite expertise, to compare the environmental assessments conducted by Goldcoast and Alliance and make judgments about whether some of the contamination reported by Alliance had to have occurred after 1989. Although the Department’s expert, Paul Wierzbicki, testified that it was his opinion that the contamination was attributable to the “operations of the P & L Salvage yard facility,” he was answering a question about “what caused the contamination” and, in context, his testimony only confirmed that the type of contamination shown in the photographs and reported in the site assessment reports was the type of contamination associated with auto salvage yards. Mr. Wiezbicki’s testimony is not evidence which can support a finding that the contamination at the site, other than the automotive fluids and stained soils observed by the Department inspectors in 1997, was caused by P & L Salvage, Inc.1 On June 12, 2007, after reviewing the Site Assessment Report, the Department issued a letter to Marlene Ballard, requesting additional data and analysis. At the hearing, the Department presented a responding letter from Alliance dated June 21, 2007. It was disputed whether the Alliance letter is evidence of Ms. Ballard’s receipt and knowledge of the Department’s June 12, letter. However, even if Ms. Ballard did not know about the Department’s letter in June 2007, she certainly became aware of the letter in the course of this proceeding. The amended NOV issued in January 2008 mentions the letter, and the letter was listed as an exhibit in the parties’ June 4, 2008 Pre-hearing Stipulation. On January 24, 2008, the Department issued an amended NOV which dropped three counts from the original NOV and added two new counts. Most significantly, the amended NOV added Marlene Ballard and Thomas Ballard as Respondents. P & L Salvage and Marlene Ballard responded to the amended NOV with petitions for hearing. Thomas Ballard did not respond. At the hearing, the Department presented testimony of employees that were involved in this enforcement action regarding the value of their time expended on various tasks associated with this case. Bridget Armstrong spent eight hours inspecting the site of the contamination, eight hours drafting the NOV and consent order, approximately 30 hours reviewing technical documents, and 15 hours corresponding with Respondents. Ms. Armstrong’s salary at the time was about $20.00 per hour. Paul Wierzbicki spent 16 hours investigating facilities in the area, reviewing the contamination assessment reports, and overseeing the enforcement activity of his subordinates. Mr. Wierzbicki was paid $33.00 per hour. Kathleen Winston spent 10 hours reviewing a site assessment report and drafting correspondence. Ms. Winston’s salary at the time was $23.56 per hour. Geetha Selvendren spent 4-to-5 hours reviewing the site assessment report. She was paid $19.00 per hour at the time. Finally, Joseph Lurix spent three hours reviewing documents. His salary at the time was $34.97 per hour.
The Issue The issue is whether Respondent, TD Del Rio, LLC, should pay for investigative costs and expenses and undertake corrective actions that are demanded by the Department of Environmental Protection (Department), as set forth in the Amended Notice of Violation and Orders for Corrective Action (Amended NOV).
Findings Of Fact Background The Department has the authority to institute an administrative action to abate or correct conditions that may create harm to the environment. In this case, it filed an Amended NOV directing the existing and prior owner of certain property to undertake cleanup and cost recovery to redress the discharge of petroleum products and disposal of hazardous waste. The property is located at 4810 South 50th Street, Tampa, Florida, measures approximately 200 by 800 feet, and is further identified as Parcel Number U-03-30-19-1Q3-000112-00001.0. The property is located in an industrial area. Mr. Dearing operated a metal recycling facility on the property during the 1990s. The facility received scrap waste and passed waste through mechanical shears that shredded the waste for sorting and recycling. The Amended NOV alleges that all contamination on the property occurred while Mr. Dearing owned the property. The charges related to his activities have been resolved in a settlement agreement prior to the final hearing in this matter. The terms of the settlement are not of record. TD Del Rio, LLC, is a limited liability company formed in April 2012. It serves as a pension fund for a self-directed Individual Retirement Account for Mr. McRae. The company acquired ownership of the subject property in September 2012 by purchasing a tax deed from Hillsborough County. Respondent agrees that there has been a "discharge," as defined under section 376.301(13), Florida Statutes, of hazardous substances and pollutants (petroleum or petroleum products) on the property prior to September 1, 2012. Such discharges have not been assessed, remediated, or abated. Respondent agrees there has been a "disposal," as defined under section 403.703(9), of hazardous waste into and upon the property prior to September 1, 2012. Respondent agrees that the property is a "facility," as defined under section 376.301(19). Respondent agrees that the property is a "hazardous waste facility," as defined under section 403.703(15). Environmental Testing Pursuant to a contract with the Department, on April 24 through 26, 2012, Ecology & Environmental, Inc. (E & E), performed a detailed inspection of the property to determine if former recycling activities conducted at the property have impacted soil and groundwater beneath the property. The inspection collected samples of soil, sediment, and groundwater. The inspection was conducted in accordance with guidance documents set forth by the United States Environmental Protection Agency regarding sampling locations, sample types, sampling procedures, use of data, data types, and field quality assurance/ quality control samples. Just before E & E issued a final report, Respondent purchased the property at a Hillsborough County tax deed sale. On November 12, 2012, E & E issued a 532-page Comprehensive Environmental Response, Compensation, and Liability Information System Site Inspection Report (Report) detailing analytical results of soil, sediment, and groundwater sampling performed at the property. See Jt. Ex. 1. E & E concluded that the activities conducted prior to April 2012 impacted the soil, sediment, and groundwater at the property. The Department has adopted Soil Cleanup Target Levels (SCTLs), which are derived based on exposure to the human body. The SCTLs account for inhalation, ingestion, and absorption of contamination into people's bodies. The presence of hazardous substances above these levels presents a threat to persons who come into contact with the substances. If a site has no polychlorinated biphenyls (PCBs) or arsenic exceeding the SCTLs, there is no requirement for the owner to complete an assessment or manage exposure at the site. The testing reveals that the following substances are present in the property's soil from both zero to two feet and two to four feet below land surface at concentrations above the Department's SCTLs: arsenic, barium, cadmium, chromium, lead, carbazole, benzo(a)antracene, benzo(a)pyrene, benzo(a)pyrene toxic equivalents, and PCBs. The commercial/industrial SCTL for PCBs is 2,600 ug/kg. This target level is based upon human exposure to PCB contaminants eight hours per day. The residential SCTL, based on 24 hours of exposure per day, is 500 ug/kg. PCBs are found across the majority of the site at concentrations ranging from 940 ug/kg to 38,000 ug/kg, over times higher than the industrial SCTL and 76 times higher than the residential SCTL for soil of 500 ug/kg. The hazardous substances located in the upper two feet of land surface present the greatest potential for exposure due to potential inhalation, ingestion, and absorption of the substances. Some potential exposure pathways include foot traffic on the property stirring up dust which people present on site could then come into skin contact with or inhale. Any work done in or around the site that is intrusive in nature could present exposure pathways. In addition to soil contamination, the following hazardous substances are present in sediment on the property: arsenic, barium, cadmium, chromium, lead, mercury, silver, volatile organic compounds, semi-volatile organic compounds, and PCBs. The following hazardous substances and petroleum products are present in groundwater on the property at concentrations exceeding the Department's Groundwater Cleanup Target Levels (GCTLs): arsenic, barium, xylenes, carbon tetrachloride, isopropylbenzene, methyl tertiary butyl ether, tetrachloroethene, and trichloroethene. For one well sample, the 2012 investigation also reported an exceedance of PCBs of 1.2 ug/kg in groundwater. The presence of tetrachloroethylene and PCBs in groundwater is a specific concern at the property. PCBs are not readily soluble in water; however, tetrachloroethylene can act as a carrier for the PCBs and mobilize this contaminant to a greater extent vertically from the source area. This is a concern for the area surrounding the property given that the Floridan aquifer, which is a source of potable water for Hillsborough County, is located approximately 300 feet below ground surface in the surrounding area. Because Respondent has not completed a Site Assessment Report (SAR), the full extent of PCBs and other contamination in soil, sediment, and groundwater, including the contaminants' potential threat to the Floridan aquifer, is not known. Respondent did not present any evidence to contradict the findings and conclusions in the Report. Moreover, Respondent has stipulated that there has been a discharge of hazardous substances and petroleum products on the property prior to its purchase of the property in September 2012. Pre-Purchase Investigation of the Property by Respondent In order to minimize liability for petroleum contamination, Mr. McRae must have undertaken "all appropriate inquiry into the previous ownership and use of" the property before he purchased it, as required by section 376.308(1)(c). Mr. McRae failed to do so. Mr. McRae is the founder, manager, and registered agent of the company and has acquired at least 20 other properties through tax deed sales. He also has bought properties contaminated with petroleum prior to the purchase of the instant property. In addition, he has owned at least 30 gas stations and has hired environmental contractors to remove petroleum tanks for previous gas stations that he bought. Mr. McRae's grandson-in- law, Matthew Moralejo, has no official title with the company, but he helps in running the business, has communicated with the Department, and bought property, including the one at issue here, at Mr. McRae's direction. Mr. McRae and Mr. Moralejo acknowledge that, before the purchase, they conducted very little research into the property, searching only for things "easily accessible or identified with the property," such as code enforcement issues or liens. They conducted visual research of the property by driving by it and looking at its condition. When the property was purchased, "the place was a wreck" and "just full of overgrowth and junk." Good commercial practice in the purchase of property upon which potentially contaminating activities have occurred entails consultation with a person with appropriate knowledge and experience. Before purchasing the property, Mr. McRae did not consult with an environmental attorney or environmental consultant regarding the potential liability associated with property used as a metal recycling site. If Mr. McRae had hired an environmental consultant to assist him in assessing the likelihood of contamination at the property, it would have been standard practice to find public records about the property, including any prior enforcement actions taken against prior owners and operators of the property, all of which were public record. A consultant likely would have recommended that Mr. McRae conduct a site assessment in accordance with Florida Administrative Code Chapter 62-780. Section 376.308(1)(c) requires that in determining whether all appropriate inquiry was undertaken by a purchaser of contaminated property, it is necessary to consider the "specialized knowledge or experience of the defendant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection." Mr. McRae has no specialized knowledge of sites contaminated with hazardous substances. However, as noted above, he has extensive experience regarding the regulation, assessment, and remediation of petroleum-contaminated sites. He has bought multiple properties through tax deed sales, and he has owned at least 30 gas stations. He has hired environmental contractors to remove petroleum tanks from properties he owned. He also is familiar with the Early Detection Incentive Program instituted by the Department, under which the Department remediates petroleum- contaminated sites. The purchase price of the property in 2002 was $200,000.00, the purchase price in 2012 was $133,100.00, and the taxable value of the property in 2015 was $408,106.00. Past information about the property was reasonably ascertainable. Ownership history of the site is available from the Hillsborough County Property Appraiser's Office, Hillsborough County Clerk of the Circuit Court, and Hillsborough County Environmental Protection Commission (EPC). Information regarding regulatory actions taken at the property also was reasonably ascertainable. There were many documents in existence at the time Respondent purchased the property that showed contamination was present on the property. They included a 1995 warning letter from the EPC to previous owners of the property detailing petroleum contamination present on the property, a 1996 EPC request for a previous owner to submit a plan to address onsite soil contamination, and a field investigation conducted by the Department in April 2012, or five months before Respondent purchased the property. There is no evidence that the documents referenced above were not "reasonably ascertainable information." Although a visual inspection by a lay person would not disclose the presence of contamination at the property, Mr. McRae should have known to seek information regarding past enforcement history and site investigation performed at the property. Post-Purchase Actions After buying the property, Respondent dug up debris including tires that were approximately four feet below the soil surface. After removing debris from the contaminated soil, Respondent spread the disturbed soil. To make the property more attractive to prospective tenants, Respondent then spread up to four inches of gravel around the property. This amount of gravel did not cover the entirety of the contaminated area and did not break the exposure pathway that the contaminants presented to people on the property. According to a Department expert, two feet of clean fill over the contaminated area would have been an acceptable intermediate step to break the exposure pathway. After spreading the gravel on the property, Respondent leased the property to three tenants: a landscape business; a portalet company; and a storage container facility. The portalet company and storage container tenants both use the property as storage facilities, including loading and unloading portalets and storage containers, when needed. The contaminants present in the soil present a potential for incidental exposure to workers on the site, especially given that workers are constantly stirring up dust by loading and unloading equipment on the property. Department Communications with Respondent On February 14, 2014, the Department sent Mr. McRae a letter informing him that the Department had information indicating that contaminants may have been released or discharged at the property. The letter referenced the 2012 E & E Report, which documented metals, volatile organic compounds, semi- volatile organic compounds, and PCBs in site soils, sediments, and/or groundwater above SCTLs, Sediment Quality Assessment Guidelines, or GCTLs. The letter stated that failure to submit an SAR within 180 days of receipt of the letter, or by August 14, 2014, may subject Respondent to enforcement action to compel such compliance. Matthew Moralejo responded by email on July 17, 2014, and stated, in part, that "we have never conducted any type of business that would have led to the contamination of said property." The same day, the Department responded by email directing Mr. Moralejo to the Department's public database, OCULUS, that provides reports and correspondence regarding facilities regulated by the Department. The Department provided a link to the 2012 Report and the name of a contact person to discuss Respondent's liability as the current property owner, as well as possible cleanup programs that are available when the current owner is not the one causing the contamination. On September 29, 2015, the Department sent another letter, with attachments, to Mr. McRae. The Department stated that "[s]ome limited site assessment activities have been performed [by E & E] at the site historically; however, the work completed and the documents submitted to date do not constitute a complete [SAR] as required by Rule 62-780.600, F.A.C." The Department again requested an SAR, and, in the alternative, offered a meeting to discuss the issues associated with the letter. Again, the letter warned Mr. McRae that if an SAR was not filed within the timeframes required by the rule, he may be subjected to an enforcement action. In August 2016, Mr. Chamberlain, a Department geologist, met with Mr. McRae and Mr. Moralejo at the property. During the meeting, Mr. Chamberlain took photographs of the site and explained his concerns with the property. Specifically, he informed them that the SAR was still outstanding; and he recommended that Respondent hire an environmental consultant to assist them in the site rehabilitation process. In October 2016, Respondent hired an environmental consultant, Mr. Doherty. On November 29, 2016, the Department emailed Mr. Doherty reminding him that an SAR was due by December 13, 2016. Three days later, Mr. Doherty asked that he be given a six-month extension to file an SAR; the Department authorized only a four-month extension, or to April 3, 2017. Mr. Doherty never conducted any sampling at the property and he did not submit an SAR. Mr. McRae explained at hearing that the consultant "never did [any] work, so he didn't get paid." On May 25, 2017, the Department sent another letter to Mr. McRae stating that it had not received an SAR, and, as a final request prior to initiating enforcement action, requested that he provide a summary of all site assessments completed since September 29, 2015, complete installation of groundwater monitoring wells and conduct sampling within 90 days, and submit an SAR by October 23, 2017. Respondent did not comply with any of those requests. To date, an SAR has not been submitted and a site assessment has not been conducted. The Department then issued an NOV, as amended. Given the numerous letters and emails sent to Respondent, and various site inspections, the Department has incurred costs and expenses of at least $500.00 investigating this matter. Respondent does not dispute this amount. Respondent's Defense Respondent essentially contends it is an innocent third-party purchaser because it had nothing to do with the recycling activities conducted on the property during the 1990s. It argues that the clean-up costs requested by the Department equal or exceed the value of the property and are cost prohibitive. In its PRO, Respondent contends that if the Department reached a settlement with Mr. Dearing, whose company is responsible for the hazardous waste discharge in the 1990s, this should relieve Respondent from any responsibility. It asks that the Department use "compassion" in dealing with him.
Conclusions For Petitioner: Paul Joseph Polito, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 For Respondent: TD McRae, pro se Matthew Moralejo, pro se TD Del Rio, LLC 4608 East Columbus Drive Tampa, Florida 33605-3210
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order sustaining the charges in Counts I, II, and III of the Amended NOV. It is further RECOMMENDED that within 30 days of the final order, Respondent TD Del Rio, LLC, shall commence a site assessment and submit an SAR in accordance with rule 62-780.600. Respondent shall assess and clean up all hazardous substance contamination and petroleum contamination at the property in accordance with chapter 62-780 and the timeframes therein. It is further RECOMMENDED that within 90 days of the effective date of the final order, Respondent shall pay $500.00 to the Department for costs and expenses. Payment shall be made by cashier's check or money order payable to the "State of Florida Department of Environmental Protection" and shall include thereon the notations "OGC Case No. 17-1090" and "Ecosystem Management and Restoration Trust Fund." The payment shall be sent to the State of Florida Department of Environmental Protection, Southwest District, 13051 North Telecom Parkway, Suite 101, Temple Terrace, Florida 33637. DONE AND ENTERED this 24th day of July, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2019. COPIES FURNISHED: Paul Joseph Polito, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) TD McRae TD Del Rio, LLC 4608 East Columbus Drive Tampa, Florida 33605-3210 Noah Valenstein, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
Findings Of Fact The parties stipulated to findings of fact set forth in paragraphs 1.- 8.,below. Stipulated Facts Respondent has documented contamination from the abandoned petroleum storage system. The abandoned petroleum storage system has been properly closed. Petitioner submitted an application to Respondent on Respondent's forms 17-769.900(3) and (4), F.A.C., which was postmarked on or before June 30, 1992. The site is not eligible for cleanup pursuant to Section 376.3071(9) and (12), Florida Statutes, the Early Detection Incentive Program, or the Florida Petroleum Liability and Restoration Insurance Program pursuant to Section 376.3072, Florida Statutes. This site is not owned or operated by the federal government. This site did not have leaking tanks that stored pollutants that are not petroleum products as defined in Section 376.301, Florida Statutes. Respondent was not denied access to this site. Petroleum contamination was not discovered after the application deadline of June 30, 1992. Additional Facts Petitioner, a Florida corporation with its principal place of business in Leon County, Florida, is in the business of owning and leasing property. Petitioner is the fee simple owner of property located at 2022 Wahnish Way in Tallahassee, Florida. The property located on Wahnish Way was leased to James T. "Pete" Thomas by Petitioner's predecessor in title. Thomas operated a gasoline station and automobile repair garage on the property. The lease with Thomas was continued by Petitioner without change upon Petitioner's assumption of the legal title to the property in 1985. Prior to Petitioner's assumption of title to the property, Thomas had installed four petroleum storage systems in a four tank pit on the property in the early 1970's. Each tank and its integral piping is a petroleum storage system, as defined by Section 376.301(15), Florida Statutes (1991). In the early 1980's, Thomas and his wholesale gasoline distributor determined that one of the four underground tanks was losing petroleum product. In 1982, Thomas ceased using the southernmost tank in the pit for the storage of petroleum products for subsequent consumption, use or sale. The distributor ceased placing gasoline in the southernmost tank. Later, in compliance with subsequent statutory enactments, Thomas registered all of the tanks, including the abandoned southernmost tank with Respondent by the statutory deadline of December 31, 1984. Although Thomas signed the registration documents as an agent of Petitioner, he was not such an authorized agent and the registration occurred without the knowledge or approval of Petitioner. As a result, Petitioner cannot be viewed as having filed the registration. Petitioner, unaware that Thomas had experienced any product loss problems or that the tanks on the property had been registered by Thomas with Respondent, became aware of both matters following receipt of a letter from government officials of Leon County, Florida, on November 20, 1990. As set forth in that letter, Petitioner was apprised that the tanks were not in compliance with State of Florida standards and would have to be closed or retrofitted to bring the tanks into compliance. Following receipt of the letter, Petitioner informed Thomas that selling of gasoline at the site was to be discontinued immediately. Closure of the tanks, performed in early 1991 by contractors retained by Petitioner, consisted of excavation and removal of the petroleum storage systems from the property. All four tanks were in the tank pit side by side, from the northernmost end of the pit to the southern end of the pit fronting on Osceola Street in Tallahassee, Florida. When the removal was completed, a Closure Assessment form was prepared by one of the contractors, Jim Stidham and Associates, in accordance with requirements of Florida law. During that process, excessive contamination from petroleum product of the soils in the extreme south end of the tank pit was discovered. Excessive contamination, defined as anything more than 500 parts per million, was located beneath the southernmost pump on the southern end of the pump island and in the southern end of the pit. Both soil sample seven in the southernmost end of the pit and soil sample 11 under the southernmost pump document these unacceptable high levels of contamination. A 20 foot soil boring as near as possible to the southernmost tank on the site revealed the unacceptable levels of contamination extended to that depth. As supported by the testimony of James A. Stidham, Petitioner's expert in the assessment of contamination caused by underground petroleum storage tanks, the location of contamination in the pit area establishes that the tank causing the contamination was the southernmost tank. In view of the location of the contamination in the pit area, the tank discovered to have a hole in it at the time of removal was the southernmost tank. The excessive contamination located at the shallow depth of two feet under the southernmost pump resulted from the improper disconnection of piping attached to the pump and is not attributable to the leak in the tank. Each tank was connected by piping on the eastern end of each tank to the corresponding pump. The southernmost pump was not used after 1982 and was missing integral parts by the time the tanks were closed. In the course of exploring options for clean up of the property, Petitioner filed for assistance from Respondent in the form of participation in the ATRP. Unaware of the true date of the cessation of use of the southernmost tank, Petitioner gave the date of last use for all tanks in the pit by stating that the "tanks were taken out of service between December 15, 1990 and January 15, 1991." Petitioner provided this response to Respondent's July 30, 1991 request for further information on August 6, 1991. Although Respondent made an initial determination to deny Petitioner's application in the middle of August, 1991, that action was not communicated to Petitioner. Instead, Petitioner's application was held by Respondent, pending possible amendment to Section 376.305(7), Florida Statutes (1991), the law controlling admission to the ATRP. Respondent held Petitioner's application for a total of 19 months before issuance of a formal decision to deny the application on February 26, 1993. Such delay by Respondent is unreasonable. Respondent's denial of Petitioner's application was based upon the eligibility requirement restricting ATRP participants to those situations where the petroleum storage system has not stored petroleum products for consumption, use or sale after March 1, 1990, and the belief of Respondent's personnel that all storage systems on Petitioner's property had stored products beyond that date. Specifically, Respondent eventually gave notice that it intended to deny Petitioner's application for participation in the ATRP for the following reason: Eligibility in the Abandoned Tank Restoration Program is restricted to those petroleum storage systems that have not stored petroleum products for consumption, use or sale after March 1, 1990, pursuant to Section 17-769.800(3)(a), Florida Administrative Code. Respondent utilized provisions of Subsection 376.305(7)(f), Florida Statutes (1991), to permit entry of some applicants into the ATRP, demonstrating that Respondent did not consider the March 1, 1990 deadline contained in provisions of Subsection 376.305(7)(b), Florida Statutes (1991), to be absolute. As attested at the final hearing by Respondent's employee, Respondent considered "variables" when determining whether to enforce the March 1, 1990, deadline. Those variables comprise the criteria listed in Subsection 376.305(7)(f), Florida Statutes (1991). By use of those variables, Respondent effectively applied provisions of Subsection 376.305(7)(f), Florida Statutes (1991), to some program applicants other than Petitioner and permitted their participation while choosing to refrain from final agency action under that same criteria with regard to Petitioner's application pending subsequent legislative enactment. Petitioner's southernmost tank is an abandoned petroleum storage system that was not required to be registered with Respondent when it was in service; the system came into the possession of Petitioner following its abandonment; was never returned to service; and is not otherwise eligible for cleanup pursuant to Subsection 376.3071(9), Florida Statutes, or Section 376.3072, Florida Statutes.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered granting Petitioner's application for participation in the ATRP with regard to contamination resulting from Petitioner's southernmost petroleum storage system. DONE AND ENTERED this 1st day of February, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2658 The following constitutes my rulings, pursuant to Section 120.59, Florida Statutes, upon proposed findings of fact submitted by the parties: Petitioner's Proposed Findings. 1.-23. Adopted, though not verbatim. Respondent's Proposed Findings. 1.-2. Rejected, not supported by weight of the evidence. 3.-4. Rejected, subordinate to HO findings on this point. 5.-11. Accepted. Rejected, relevance. A mischaracterization of the evidence in that the testimony establishes that an existing lease agreement was continued. Accepted to the extent that the evidence establishes that there were four tanks in the pit. Rejected, credibility, weight of the evidence as to the accuracy of the registration form in the face of conflicting evidence. 16.-18. Rejected, weight of the evidence. 19.-20. Accepted. 21.-22. Rejected, subordinate. Accepted. Rejected, relevance. 25.-26. Accepted. 27.-29. Rejected, subordinate. Rejected, relevance. Rejected, argumentative. Accepted. Rejected, legal conclusion, argumentative. COPIES FURNISHED: Melissa Fletcher Allaman Attorney at Law Post Office Drawer 1170 Tallahassee, Florida 32302 Jefferson M. Braswell Lisa M. Duchene W. Douglas Beason Assistant General Counsels Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue for determination is whether Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 is eligible for state-administered cleanup under the Drycleaning Solvent Cleanup Program pursuant to Section 376.3078, Florida Statutes.
Findings Of Fact Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 (Respondent Cleaners) operates as a drycleaning facility at 1197 West 35th Street, Hialeah, Florida. Colombina Holding Company, N.V., Inc. (Intervenor) is the owner of the real property located at 1197 West 35th Street, Hialeah, Florida. Respondent Cleaners made application with the Florida Department of Environmental Protection (Respondent DEP) for state-administered cleanup under the Drycleaning Solvent Contamination Cleanup Program (Drycleaning Cleanup Program). By letter dated October 25, 1996, Respondent DEP notified Respondent Cleaners, among other things, that its application was approved and that it was eligible to participate in the Drycleaning Cleanup Program. Prior to Respondent Cleaner's approval to participate in the Drycleaning Cleanup Program, Metropolitan Dade County (Petitioner) issued to Respondent Cleaners a Notice of Violation and Orders for Corrective Action (NOV) for contamination at the drycleaning facility. The NOV required Respondent Cleaners to assess and remediate the contamination and to pump out and clean a soakage pit. Having received the NOV, Respondent Cleaners obtained the services of an environmental consultant to assess the contamination on the site and to propose a plan of remediation. Respondent Cleaners maintained contact with Petitioner and advised Petitioner of the progress. Petitioner required Respondent Cleaners to submit a Contamination Assessment Report (CAR) and IW Process Change Plans for the facility. Respondent Cleaners complied with the requirement. By letter dated November 21, 1996, counsel for Respondent Cleaners made inquiry to Respondent DEP as to whether pump out or cleaning of contamination in a soakage pit was included within the Drycleaning Cleanup Program. On November 20, 1996, Petitioner's Department of Environmental Resources Management (DERM) conducted a routine inspection and a receptor survey of Respondent Cleaners. No violations were observed by the inspector. Respondent Cleaners has not remediated the contamination at the facility site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order finding Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 eligible to participate in the Drycleaning Solvent Contamination Cleanup Program. DONE AND ENTERED this 21st day of April, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1998.
Findings Of Fact The Property Domenic Marotta and Dolores Marotta purchased mini-warehouse property located at 1208 Georgia Street, Delray Beach, Florida in 1977 or 1978, located on a one acre parcel of land. The structure was one year old when the Marottas acquired it. They remained co-owners of the property until 1985, when Dolores Marotta became the sole owner as the result of their divorce. The property is composed of a concrete structure of about 16,000 square feet which contains twelve warehouse bays, six on each side. These bays have been rented to tenants who conduct a variety businesses from the bays. A concrete slab surrounds the warehouse in front of the bays. Approximately two feet of soil may be found horizontally from the edge of the concrete slab extending to the chain link fence surrounding the Marotta property. Safety Kleen rented bays at the southeast corner of the warehouse complex. The warehouse complex is located within the cone of influence for the well field that produces potable water for the City of Delray Beach. The groundwater flows to the northwest, toward the well field. The area upgradient of the warehouse site to the east and south is residential. There is no significant likelihood that the residential area would be the source of groundwater contamination flowing from the residences to the warehouse site. Contamination of the warehouse site would move with the groundwater to the northwest, toward the City of Delray Beach well field. Safety Kleen and its business Safety Kleen is a Wisconsin Corporation which does business in Florida. It operates solvent distribution and recycling centers as part of its business. It rented bays from the Marottas in the southeast portion of the warehouse building from October 1976 to September 1981 for use as one of its retail centers. Retail centers are the base for Safety Kleen vans which place and maintain products, including sinks filled with its number 105 parts washer solvent. Customers, such as gas stations and mechanics, use the solvent to degrease auto parts and then dispose of the dirty degreasing solvent through Safety Kleen. Safety Kleen described its business operations in this way in a letter sent to the U.S. Department of Environmental Protection Agency: Safety Kleen Corp. (the Company) is engaged in the business of collecting spent solvent and other waste materials generated by its customers, and recycling those materials for reuse. During the period October, 1976 to September, 1981, which was the term of the lease between Safety Kleen and the owner of the site [the Marottas], the company leased a site at 15776 Gwenzell Avenue, also known as 1208 Georgia Street, Delray Beach, Florida as a service center. * * * The service center was equipped with two ten thousand gallon storage steel underground tanks, one used to store clean mineral spirits solvent, the other to store waste mineral spirits solvent received from customers. * * * The underground storage tanks were installed at the facility by Safety Kleen in 1976. * * * On a periodic basis, tanker trucks owned by the company would bring clean solvent to the service center, and remove waste solvent from the dirty solvent tank, for transportation to one of the Company's recycle centers. * * * Waste mineral spirits stored in the underground steel tank was a characteristic hazardous waste as described in 40 C.F.R. 261 Subpart C. This waste mineral spirit solvent exhibited the characteristic of ignitability, and was classi- fied as Waste D001. * * * At that time of discontinuation of business operations at the Georgia Street facility, no soil or groundwater samples were collected in the proximity of the underground tanks. Safety Kleen's 105 parts washer solvent is an aliphatic hydrocarbon solvent, with a medium boiling range. It consists of C9 to C13 hydrocarbons predominately. Its has an initial boiling point of around 300 degrees Fahrenheit and an endpoint of approximately 400 to 420 degrees Fahrenheit. The parts washer solvent consists of approximately 85 percent by weight of mineral spirits. The second component is C8+ aromatics up to and including 12 percent by weight. The remainder is toluene, .5 of 1% by weight, xylene, up to 1% by weight, ethylbenzene at .5 of 1% by weight, 1,1,1,-trichloroethane at up to .5 of 1% by weight, perchlorethylene at up to .5 of 1%, and napthalene at .2 to .3 of 1% by weight. The parties stipulated that benzene, 1,2-dichloroethylene, ethylbenzene, tetrachloroethylene, 1,1,1-trichloroethane, and xylenes are chemical constituents and breakdown components of mineral spirits such as those used by Safety Kleen in its retail operations. Safety Kleen activities on the site The two ten thousand gallon underground storage tanks Safety Kleen installed were pressure tested before the first load was placed in them and tightness tests were preformed twice, and showed no leaks. In 1978, the tanks were sandblasted and coated with epoxy resin to extend their life, a treatment which carried a ten year guarantee from the supplier. Safety Kleen is the only tenant to have used the underground storage tanks which it installed at the site. When closed the tanks were emptied, washed, scrubbed with detergent, and filed with clean water. To serve its retail customers, the Safety Kleen distribution and recycling center at Georgia Street would have five to seven delivery vans loading virgin mineral spirits sold as parts washer solvent, and unloading waste mineral spirits each day. Since the parts washer solvent is 85% mineral spirits, it will be referred to as mineral spirits or solvent. Each day about 13 drums of dirty solvent collected from customers were rolled off each of the five to seven vans, and pushed over into a dumpster (also sometimes called a hopper). Two sizes of drums were used, 16 gallon and 30 gallon drums, and when filled, those drums were quite heavy. The dumpster drained through pipes into one of the underground storage tanks Safety Kleen had installed. After the drums themselves had been cleaned, Safety Kleen employees refilled those drums with virgin mineral spirits from the other underground storage tank it had installed. The employees were trained and tested on proper procedures for filling and tipping barrels of mineral spirits. They were instructed on safety procedures for handling mineral spirits, and were trained in the use of EPA wipes for cleaning small spills, the use of a clay-like absorbent material, and the use of absorbent rope to encircle spills. All these materials were available on-site. The accounting system for these safety products show that the safety products were being replaced as on-going maintenance items, but it cannot be determined from the record the extent to which these items were used in any period of time. The clean underground solvent storage tank would be filled with mineral spirits and the dirty solvent storage tank would be emptied at regular intervals by the driver of a tank truck. The manager in charge of the southeast for Safety Kleen, was the regional manager for the Florida service centers during most of the time Safety Kleen operated the Georgia Street facility. He acknowledged at hearing that drips in small amounts of both fresh and dirty mineral spirits would occur in the course of Safety Kleen's recycling operations and such spills were an inherent part of the operation. On the other hand, employees were constantly reminded and encouraged to minimize spills. The manager for each center received a bonus based upon the amount of dirty mineral spirits recycled when compared to the amount of virgin spirits delivered to the center. It benefits Safety Kleen to recover as much of the dirty mineral spirits as possible, and to recycle those spirits for reuse. Company employees refer to dirty mineral spirits commonly as "black gold." The value of the recyclable waste mineral spirits had one perverse aspect. Lower level Safety Kleen personnel would have an incentive not to report small spills, such as spills less than 10 gallons, because they could be disciplined or discharged for the loss of those valuable, recyclable waste mineral spirits. It is likely that only large spills would have been reported to Safety Kleen management. The evidence will not support any determination of how often employees used the safety materials available to clean up spills of any size. See Finding 7, above. During Safety Kleen's tenancy, a concrete curb was placed around three sides of the platform from which the dirty minerals spirits were tipped into the hopper to prevent spills, and maximize the recovery of dirty mineral spirits. Despite Safety Kleen's efforts to recover used solvent, workers at other businesses in the warehouse complex saw spills of dirty solvents when they were being tipped into the hopper, and saw drips from hoses on tankers delivering fresh mineral spirits to the center. The underground tank which held virgin mineral spirits was filled from tanker trucks which used a flexible hose three to four inches in diameter, which was connected to the bottom of the tanker truck. The amount of mineral spirits to be added to the underground tank had been determined through an internal accounting system Safety Kleen used to record the number of service calls which Safety Kleen truck drivers performed each day at service or gas stations. There was no fill detection system on the underground tanks Safety Kleen installed, though underground tanks in use today have fill detection systems. It would be possible to over fill the underground storage tanks with clean spirits if careful attention were not paid to the refilling process, despite Safety Kleen's efforts to account for the solvent. When a tanker truck delivering clean spirits to the Georgia Street site was emptied, waste mineral spirits would be pumped back into the tanker truck from the underground tank holding dirty mineral spirits. Once the spent spirits were tipped out of barrels into the hopper and the underground storage tank, stick measurements of the contents of that underground storage tank were taken. Stick measurements are not highly accurate, for one-eighth inch variance in the measured level of spirits by the stick would equal a variance of twenty gallons or more in the ten thousand gallon storage tank. Precise measurement was more difficult due to the buildup of sludge in the dirty solvent tank; calculation of tank contents could be off by as much as 500 gallons when computed by "sticking the tank." A memorandum authored by CBS Mechanical in October 1981 in connection with the closing of the site noted there was about 1,500 gallons of sludge in the underground tank. Given the value of used mineral spirits to Safety Kleen, this sludge at the bottom of the tank must have been unrecoverable. When Safety Kleen first used the site, the concrete slab in front of the bay was new, but by the time it left, there were cracks in the concrete. This would be caused in part, by driving of heavy tanker trucks in the area, as well as by the general use of the concrete slab areas by other tenants. There is considerable staining of the concrete pad in front of the bay used by Safety Kleen from the fill spout of the underground tank running east to the area containing soil. To warehouse tenants, the perimeter soil area from the edge of the concrete pad in front of the bays to the chain link fence on the property line often looked black, oily or muddy. Neither plants nor grass would grow in that area. Correspondence with the Marottas concerning the closing down of the facility contain references to the removal and replacement of "bad dirt," and the replacement of that "bad dirt" with good dirt and shrubs. The odor of mineral spirits reported by witnesses in the areas used by Safety Kleen, is consistent with evidence that solvents were sometime splashed or spilled during the operations of tipping the barrels of waste mineral spirits into the hopper and from the process of filling the underground tank with virgin mineral spirits from the tanker truck. These mineral spirits flow across the concrete pad to the soil area. Safety Kleen drafted two internal documents entitled "authorization for expenditure" dated November 16, 1981,, and December 9, 1981, as part of its closing of the Georgia Street site, and these refer to the "removal of contaminated soil." In addition, Mr. Marotta, and not Safety Kleen, had about 60 cubic feet of dirt (from a strip of land fifteen feet long, two feet wide, and two feet deep) removed from the area around Safety Kleen's underground storage tanks after Safety Kleen left the warehouse complex. A considerable quantity of mineral spirits had been spilled to cause such contamination of the soil and staining around the fill pipes for the underground tanks. Sampling of the site On October 4, 1989, Department staff conducted a preliminary investigation of the area and took groundwater and soil samples near the two underground storage tanks which had been used by Safety Kleen, and samples of the fluids remaining in the storage tanks. The groundwater samples were taken down gradient from the storage tanks. The soil sample was taken at a depth of 10 feet, the groundwater sample at 16 feet. The soils taken from the excavation holes created by sampling had a strong hydrocarbon odor, and the purge water removed from the excavation hole exhibited a sheen characteristic of hydrocarbon petroleum products, which include mineral spirits. The samples taken by DER showed the presence of contaminants in the following concentrations: Storage Groundwater tanks Soil napthalene 330. ug/l 1/ 412 ug/l 16,000 ug/kw, 2/ dw benzene 22. ug/l 19 ug/l 1,2 dichlorobenzene 49. 1,1 dichloroethane 8.8. 1,2 dichloroethylene 19. ug/l ug/l ug/l 41 ug/l ethylbenzene 63. tetrachloraethylene 6.4 xylene 310. ug/l ug/l ug/l 340 200 ug/l ug/l 25 ug/kw, dw. toulene 92. ug/l The following metals were found in the groundwater: cadmium 07. ug/l; chromium 91 ug/l; lead 3.5 ug/l. Further tests were made on January 10, 1991, of soil and groundwater samples by Environmental Petroleum and Remediation Services. One monitoring well was installed and four subsurface soil borings were taken. That groundwater sample showed: 1,2 dichlorobenzene 78.2 ug/l ethlybenzene 33.8 ug/l napthalene 220.0 ug/l xylene 102. ug/l The engineer for Environmental Petroleum and Remediation Services who specializes in the assessment of contamination and development of remedial action plans, Kelly Winslow, installed the monitoring well in the area of the underground storage tanks downgradient of the groundwater flow from the tanks. Soil samples were analyzed by use of a field photoionization detector. Surface soil samples showed slightly elevated levels of organic vapors, while the cuttings from deeper portions of the well down to eight feet showed significantly elevated organic vapors. The soils had a definite hydrocarbon odor. These findings were generally consistent with those found by DER's earlier tests from October 4, 1989. In addition to the Safety Kleen location, several other lessees at the warehouse area were engaged in businesses such as auto repair, auto body work, wood working, carpentry and boat building. There is also some staining of the concrete in front of those bays, but that staining is localized staining of the sort ordinarily associated with leaking oil drip pans from automobiles as occurs in parking lots. The only large areas of stain are near the underground storage tanks, on the east side of the building. There is no evidence of staining in the soil on the other side of the building. Moreover, the Safety Kleen operation was in the southeast corner of the complex. The contamination found in the soil and groundwater is upgradient from the other businesses in the warehouse complex. The contaminated groundwater tends to flow from the Safety Kleen site toward those other businesses, not from those businesses toward the Safety Kleen site. It is more likely than not that the contamination present began on the Safety Kleen site. A third group of soil samples were collected at the site shortly before the hearing, on April 24, 1991, by consultants for Safety Kleen. Mr. Winslow, the engineer for Mrs. Marotta, also was present when those samples were taken. He saw the samples taken just outside the area with visible signs of staining from a depth of eight to twelve feet, and found that they exhibited a distinct mineral spirits odor. Safety Kleen's consultants had not tested those samples at the time of the hearing. Characteristics of materials found Benzene is an organic compound typical of distillate hydrocarbon products. While benzene is found in only trace levels in Safety Kleen's parts washer solvent (in the range of 10 to 20 parts per million), it is a naturally occurring ingredient of gasoline in a concentration range from 1/10 of 1% to 3.7%. Napthalene is found in most petroleum-like products, including gasoline, diesel fuel, kerosene, and mineral spirits. Naphthalene concentrations in gasoline range from 1/10 of 1% up to 1%; a nominal concentration is 7/10 of a percent. It occurs in Safety Kleen's parts washer solvent at between .2 and .3 of 1% by weight. Xylene is an aromatic solvent. It is a key ingredient used, along with toluene, to raise the octane of unleaded gasoline. It is found in low levels in Safety Kleen's parts washer solvent. Chlorobenzene is typically man-made in a petrochemical process and is typically used as a solvent. 1,2-dichlorobenzene is the same chemical as orthodichlorobenzene, and is a component of Safety Kleen's 609 immersion cleaner (a different product not a likely cause of the contamination at issue here). It is an excellent degreasing and decarbonizing chemical, and is used in a variety of chemical formulations, including stripping applications. 1,2-dichlorobenzene is not a component of Safety Kleen's parts washer solvent. Ethylbenzene is a C8 aromatic hydrocarbon and naturally occurs in petroleum products. It is found in gasoline, diesel fuel, and in Safety Kleen's parts washer solvent. 1,2-dichloroethylene is a degradation product of 1,1,1- trichloroethane. 1,1,1-trichloroethane is a common chlorinated solvent used in the United States today. 1,1,1-trichloroethane is also commonly used for contact cements and various adhesives. 1,1-dichloroethane, which was found on the site, has never shown up in Safety Kleen's product or waste product. But see Finding 43 below. Tetrachloroethylene is a common solvent used for dry cleaning of clothes, and for degreasing and automotive applications. The presence of these constituents on the site clearly indicates that there is contamination, but these constituents are not identifiers; they are not unique to any product and their presence does not conclusively identify the source of the contamination. The constituents identified on the site occur in a variety of commercial products. With the exceptions of the 1,2-dichloroethene, they are compounds commonly used in automotive repair, and automotive body shops. Significance of the sample data Contaminants in the soil and groundwater at the Georgia Street site are classified as hazardous in the list found in Appendix VIII published by the U.S. Environmental Protection Agency at 40 CFR Part 261. These hazardous materials include cadmium, chromium, lead, benzene, chlorobenzene, 1,2- dichlorobenzene, 1,2-dichloroethane, tetrachloroethylene and napthalene. Merlin Russell is a geologist with the Department of Environmental Regulation who is experienced in evaluating hazardous waste closure permits. He reviewed data provided by Safety Kleen for the closure of three other Safety Kleen sites in Florida (one in Tallahassee, one in Tampa, and a different site, called the Fourth Avenue site, in Delray Beach). Comparing the soil and water samples taken from these three sites with samples taken at the Georgia Street site, Mr. Russell found each of the constituents from the Georgia Street site were also present in at least one of the samples from the other Safety Kleen sites. This similarity in constituents led Mr. Russell to conclude that Safety Kleen's operation is a likely source of the contamination present at the Georgia Street site. On the whole, the evidence is consistent with Mr. Russell's analysis. James Breece holds a doctorate in chemistry, and is a vice president for Safety Kleen. He agreed that Safety Kleen's operation at Georgia Street would be a possible source of the contamination found there, though he would not agree that the evidence was sufficient to show that Safety Kleen was the actual source of that contamination. Mr. Breece characterized the Safety Kleen mineral spirits as an aliphatic hydrocarbon solvent, with a medium boiling range, made up predominantly from C9 to C13 hydrocarbons. According to DER Exhibit 11, the October 1989 Report of Savannah Laboratories, in the soil samples from the Georgia Street site, a total of 16,860 ug/kg dry weight of unknown volatile organics are found, 6420 ug/kg of which are in the C8-C10 range, and none of which were identified as being in a lesser or greater range than the C8-C10 range. In the soil sample, a total of 384,000 ug/kg dry weight of unknown semi-volatile organics are found, 70,000 ug/kg of which are in the C8-C13 range, and none of which were identified as being in a lesser or greater range than C8- C13. In the groundwater, a total of 726 ug/l of unknown volatile organic hydrocarbons are found, of which 367 ug/l were identified as being in the C8-C10 range, and 92 ug/l in the C7 range (toulene). Safety Kleen has acknowledged that toluene, xylene, benzene, ethylbenzene, 1,1,1,-trichloroethane, naphthalene, 1,2-dichlorobenzene, 1,2- dichloroethylene, and tetrachloroethylene are constituents, or breakdown products of constituents, present in Safety Kleen mineral spirits. Dr. Breece could not identify 1,1-dichloroethane as a constituent or breakdown product of Safety Kleen mineral spirits or immersion cleaner, although he acknowledged that it was "probably a degradation product of something." Jeffrey Brian Watts holds a doctoral degree in chemistry. He is the administrator of the Department's site investigation section, in the Bureau of Waste Cleanup. He authored a book entitled Groundwater Monitoring Parameters and Pollution Sources. Dr. Breece of Safety Kleen agreed that, according to the descriptions in Dr. Watts' book of different characteristic waste profiles generated by different industries 1, 1 - dichloroethane is a degeneration product of 1, 1, 1 - trichloroethane, which is a constituent of Safety Kleen mineral spirits. Dr. Watts is familiar with the waste chemistry and subsurface waste chemistry of Safety Kleen mineral spirits and related retail product known as immersion cleaner. Dr. Watts has been involved with hundreds of site investigations, which included the evaluation of chemical data to determine a source or likely source of soil and groundwater contamination. In all of his investigations, Dr. Watts only has found 1,2-dichlorobenzene at four sites, two of which involve Safety Kleen (the Georgia Street site is one of those two). Dr. Watts' testimony was persuasive that the soil and groundwater contamination at the Georgia Street site comes from a middle distillant petroleum fraction with low levels of chlorinated solvent. Safety Kleen mineral spirits are middle distillant petroleum fractions (C9 - C13) volatile organics and have low levels of chlorinated solvent. Gasoline is not a likely source of the contamination of the Georgia Street site because the ratio of benzene-toluene-xylene at the site and the absence of 1, 2 - dichloroethane at the site. The ratio of napthalene to benzene in fresh or waste mineral spirits as compared to the ratio of napthalene to benzene found in the soil and groundwater at the Georgia Street site differ as a result of subsurface chemical and physical reactions known as partitioning. The more soluble components such as benzene leach into the water while the less soluble components such as napthalene remain in the soil. The evidence as a whole shows it is more likely than not that the contamination of the soil and consequent continuing contamination of the groundwater up gradient of the wellfield for the City of Delray Beach was caused by the activities of Safety Kleen at the Georgia Street site, either from a leak in an underground tank, or more likely, from frequent spills of mineral spirits or overfilling of the underground tank.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered against Safety Kleen and Delores Marotta making the proposed orders for corrective action final, and requiring the development of a contamination assessment plan and implementation of a remedial action plan. RECOMMENDED in Tallahassee, Leon County, Florida, this 10th day of July 1992. WILLIAM R. DORSEY, JR. 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 10th day of July 1992.
Findings Of Fact Since 1984, the Department has been the state agency charged with the responsibility to establish rules and regulate underground pollutant storage facilities in Florida. In 1988, the Legislature added the administration of the newly enacted Florida Petroleum Liability and Restoration Program to the Department's duties. The program was to be established on or before January 1, 1989. The Applicant is the owner of a petroleum storage system in Jacksonville, Florida. Since 1984, it has been subject to the rules regarding underground pollutant storage facilities promulgated by the Department. On September 18, 1989, an odor indicative of possible petroleum contamination was discovered at the site during the installation of monitoring wells. A Discharge Notification Form was sent to the Department by the Applicant on October 23, 1989. The form advised that there were no leaks in the system. It was suggested that the odor may have resulted from surface spill at the site over a number of years. In response to the notification, an inspection of the site was completed by the Department on December 5, 1989. The inspection revealed the following on-site violations: Registration requirements were not being met. The forms had not been updated to include the presence of monitoring wells and overfill protection at the facility. Two underground tanks had not been properly abandoned. Inventory and reconciliation records had not been properly maintained, as required by rule since 1987. This violation was reviewed, and discussed in detail with on-site representatives of the Applicant. The monitoring wells were not installed by the time deadlines set forth in the Department's rules regarding stationary tanks. Since the wells were installed in September 1989, samples had not been taken for visual signs of petroleum contamination. The purpose of the system is to allow the owner of the storage tanks to learn if there is a leak in the tanks that can be quickly controlled to limit contamination. The day after the inspection, the Applicant applied for a determination of eligibility for participation in the restoration coverage portion of the new Florida Petroleum Liability Insurance and Liability Program. An affidavit was signed stating that all of the Department's rules regarding stationary tanks were being complied with by the Applicant. Six days after the inspection, the Department sent the Applicant written notice of the results of the inspection. The Applicant was given time frames and instructions for correcting the listed violations that could be corrected. A contamination assessment and clean up were also required in the letter. This letter did not address the issue of eligibility for the restoration funding program because that was a matter unrelated to the inspection results. On March 7, 1990, the Department determined the facility was ineligible for participation in the restoration funding provided by the Florida Petroleum Liability and Coverage Program. The following reasons were given: Failure to properly abandon underground storage tanks, pursuant to Section 17-61.050(3)(c), Florida Administrative Code. Failure to maintain inventory records, reconciliations, and significant loss/gain investigation as per Section 17-61.050(4)(c), Florida Administrative Code. Failure to install monitoring system and overfill protection by the dates set forth in Section 17-61.06(2)(c)2, Florida Administrative Code. Failure to properly monitor leak detection system, pursuant to Section 17-61.050(5)(c), Florida Administrative Code. The 10,000 gallon fuel oil tank and the 3,000 gallon waste oil tank present at the facility were abandoned in March 1990. The notice issued by the Department after its inspection in December 1989, gave the Applicant sixty days after receipt of the notice to properly abandon the tanks. The Applicant substantially complied with this requirement after the written notice was received. Although the Applicant failed to maintain the inventory records, reconciliations, and significant loss/gain investigations required by the Department rules, some of these violations had been corrected prior to the Department's inspection in December 1989. Correct inventory recordkeeping was discussed during the inspection, and the need to immediately implement the proper recordkeeping practices was emphasized in the post-inspection notice of violations. All of the recordkeeping violations were not cured until August 1990. The records kept by the Applicant during the noncompliance period from 1984 to August 1990, did not provide a substantially equivalent degree of information regarding possible leak detection or prohibited discharges as the required recordkeeping procedures. Two underground stationary storage tanks on the site have been part of the Applicant's petroleum storage system since 1970 and 1975, respectively. The monitoring wells and overfill protection for these tanks should have been in place by December 31, 1987. Neither monitoring system was installed until September 1989. The Applicant began the contract negotiations for installation in September 1988. The Applicant did not demonstrate that the facility contained an alternative procedure between December 31, 1987 and September 1989, that provided a substantially equivalent degree of protection for the lands, surface waters, or groundwaters of the state as the established requirement for monitoring wells and overfill protection. In December 1989, the Department's notice advised the Applicant that the monitoring wells should be sampled monthly for visual signs of petroleum contamination. Since April 1990, the Applicant has been completing the monthly sampling in the monitoring wells as part of its leak detection system, as required by the Department's rule regarding underground stationary tanks.
Recommendation Accordingly, it is RECOMMENDED: That the Department enter a Final Order denying Petitioner's application for restoration coverage in the Florida Petroleum Liability and Restoration Program at the Jacksonville location. DONE and ENTERED this 28 day of December, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 _28_ day of December, 1990. APPENDIX TO RECOMMENDED ORDER The proposed findings of fact submitted by Petitioner are addressed as follows: Rejected. Improper interpretation of law. As for the facts in the first sentence, they are accepted. See HO #8. Rejected. Irrelevant. See HO #9. Rejected. Contrary to fact. See HO #9 and #11. Rejected. Contract to fact. See HO #11. Rejected. Contrary to fact. See HO #12 and #13. Rejected. Contrary to fact. Improper shifting of duty ad legal responsibility. Rejected . Improper application of law. The Respondent's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #5. Accepted. Accepted. See HO #4. Accepted. See HO #4. Accepted. Accepted. See HO #6. Accepted. See HO #4 and #6. Accepted. See HO #4 and #6. Accepted. Accepted. Accepted. See HO #4 and #9. Accepted. Accepted. See HO #4 and #9. Accepted. Accepted. See HO #9. Accepted. See HO #4 and #10. Accepted. Rejected. Contrary to fact. See HO #10. Accepted. Accepted. Accepted. See HO #10. Accepted. See HO #3 and #12. Accepted. Accepted. See HO #13. Accepted. Accepted. See HO #6. Accepted. See HO #4 and #6. Accepted. See HO #6. Accepted. Rejected. Not established by evidence. See HO #6. Accepted. Accepted. Accepted. Accepted. See HO #7. Accepted. Accepted. COPIES FURNISHED: William Chadeayne, Qualified Representative 8933 Western Way, Suite 16 Jacksonville, Florida 32256 Janet E. Bowman, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400
The Issue The issue for consideration in this hearing is whether the Petitioner is entitled to reimbursement for clean up costs associated with the Initial Remedial Action, (IRA), activities of the Abandoned Tank Restoration Program performed at his facility, and if so, in what amount.
Findings Of Fact At all times the Respondent, Department of Environmental Protection, (Department), has been the state agency in Florida responsible for the administration of the state's Abandoned Tanks Restoration Program. Petitioner is the owner and operator of Mohammad's Supermarket, Department facility No. 29-8628197, a food market and gasoline station located at 3320 Hillsborough Avenue in Tampa. Petitioner has owned and operated the facility for approximately the last ten years. The facility in question included three 5,000 gallon gasoline underground storage tanks and one 5,000 diesel underground storage tank. The diesel tank has not been used for the storage of diesel product for the entire time the Petitioner has owned the facility, at least ten years, but the three gasoline tanks were in use after March 1, 1990. Gasoline tanks were reinstalled at the facility and are still in use. In March, 1993, Petitioner removed all four underground storage tanks from the facility and performed initial remedial action. The field and laboratory reports of the soil and groundwater samples taken at the site at the time the tanks were removed showed both gasoline and diesel contamination. In October, 1993, the Petitioner submitted an application for reimbursement of certain costs associated with the IRA program task to the Department. Thereafter, by letter dated August 5, 1994, the Department notified Petitioner that it had completed its review of the reimbursement application and had allowed Petitioner 25% of the total amount eligible for reimbursement. This was because since the Petitioner continued to use the gasoline tanks after March 1, 1990, the Petitioner's ATRP eligibility is limited to clean up of only the diesel contamination. Petitioner's application for reimbursement covered the entire cost of the tank removal, both gasoline and diesel, and did not differentiate between the costs associated with the remediation of the gasoline contamination and those associated with the diesel contamination. The 25% allowance was for the one tank, (diesel fuel), which was eligible for ATRP clean up reimbursement. The Department subtracted from the personnel costs in the amount of $5,996.25, claimed in Section 2A of the claims form, the sum of $45.00 for costs associated with ATRP eligibility status; $497.50 claimed as a cost associated with the preparation of a Tank Closure Report, and $3,508.75 claimed as costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR). These deductions were made because costs associated with ascertaining ATRP eligibility status, the preparation of a Tank Closure report, and the preparation of a preliminary CAR are all costs ineligible for reimbursement. These three ineligible costs total $4,051.25. When this sum is deducted from the amount claimed, the remainder is $1,944.50. The Department then reduced this figure by prorating it at 25% for the diesel tank and 75% for the gasoline tanks, disallowing the gasoline portion. With that, the total reimbursement for Section 2A, personnel, costs is $486.25. Petitioner claimed $1,765.00 for rental costs, (Section 2C), associated with soil removal, from which the Department deducted the sum of $1,550.00 which represents costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR), which is not eligible for reimbursement. The balance of $215.00 was reduced by the 75%, ($161.27), which related to the three gasoline tanks, leaving a balance of $53.75 to be reimbursed for rental costs attributable to the diesel contamination. Petitioner also claimed $12,865.75 for miscellaneous costs associated with soil removal. This is listed under Section 2I of the application. From that figure the Department deducted the sum of $9,455.99 as costs attributable to the three gasoline tanks. In addition, $2,017.43 was disallowed because it related to the preliminary CAR, and $3,151.99 was deducted because the tank was removed after July 1, 1992. The applicable rule requires justification in the Remedial Action Plan, (RAP), for removal of tanks after that date. Such costs, when justified, can be reimbursed as a part of a RAP application. A further sum of $1,759.66 was deducted from the 2I cost reimbursement since the applicant got that much as a discount on what it paid. Together the deductions amounted to $16,385.07, and when that amount is deducted from the amount claimed, a negative balance results. Section 3 of the application deals with soil treatment. Subsection 3I pertains to such miscellaneous items as loading, transport and treatment of soil. The total amount claimed by Petitioner in this category was $13,973.44. Of that amount, $10,480.00 was deducted because it related to the three gasoline tanks. The amount allowed was $3,493.44, which represents 25% of the total claimed. Category 7 on the application form deals with tank removal and replacement. Section 7A relates to personnel costs and Petitioner claimed $4,187.00 for these costs. Of this, $3,140.25 was deducted as relating to the three gasoline tanks and amounted to 75% of the claimed cost. In addition, $1,046.75 was deducted because the diesel tank was removed after July 1, 1992 and there was no justification given for the removal at that time. This cost might be reimbursed through another program, however. In summary, all personnel costs were denied, but so much thereof as relates to the diesel tank may be reimbursed under another program. Section 7C of the application form relates to rental costs for such items as loaders, trucks and saws. The total claimed was $2,176.00. Of this amount, $1,632.00 was deducted as relating to the three gasoline tanks, and an additional $544.00 was deducted as being associated with the non-justified removal of the diesel tank after July 1, 1992. As a result, all costs claimed in this section were denied. In Section 7D, relating to mileage, a total of $12.80 was approved, and for 7G, relating to permits, a total of $28.60 was approved. In each case, the approved amount constituted 25% of the amount claimed with the 75% disallowed relating to the three gasoline tanks. Section 7I deals with miscellaneous expenses relating to tank removal and replacement. The total claimed in this section was $2,262.30. A deduction of $1,697.11 was taken as relating to the three gasoline tanks, and $565.69 was deducted because the removal after July 1, 1992 was not justified in the application. This cost may be reimbursed under a separate program, but in this instant action, the total claim under this section was denied. Petitioner asserts that the Department's allocation of 75` of the claimed costs to the ineligible gasoline tanks is unjustified and inappropriate. It claims the majority of the costs where incurred to remove the eligible diesel fuel contamination and the incidental removal of overlapping gasoline related contamination does not justify denial of the costs to address the diesel contamination. To be sure, diesel contamination was detected throughout the site and beyond the extend of the IRA excavation. The soil removed to make room for the new tanks was contaminated and could not be put back in the ground. It had to be removed. The groundwater analysis shows both gasoline and diesel contamination at the north end of the property furthest from the site. The sample taken at that point, however, contains much more gasoline contaminant than diesel. Petitioner contends that the costs denied by the Department as relating to gasoline contamination were required in order to remove the diesel contamination and Petitioner should be reimbursed beyond 25%. It contends that the diesel contamination could not have been removed without removing all four tanks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered denying Petitioner request for additional reimbursement of $27,653.82 and affirming the award of $6,629.07. RECOMMENDED this 25th day of September, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 September, 1995. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Francisco J. Amram, P.E. Qualified Representative 9942 Currie Davis Drive, Suite H Tampa, Florida 33619 Virginia B. Wetherell Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-1000 Kenneth Plante General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-1000
The Issue The issue in this case is whether the Notice of Violation (NOV) and Orders for Corrective Action (OCA) filed by the Department of Environmental Protection (DEP) against Respondents, Thomas Kerper (Kerper) and All Salvaged Auto Parts, Inc. (ASAP) , in DEP OGC File No. 02-0447 should be sustained.
Findings Of Fact 1. The real property located at 3141 Sharpe Road, Apopka, Florida, is owned by the heirs of Donald Joynt, who owned it for the 30 years prior to his death in 2002. The property consists of approximately 40 acres in the shape of a right triangle with the west side bordered by Sharpe Road, the south side by a potting soil business, and the northeast side (the hypotenuse of the right triangle) bordered by a railroad track. Prior to his death, Joynt used the property primarily for the purpose of operating a junkyard and recycling business ultimately entitled Don's Auto Recycling. 2. At some time before 2000, Joynt became desirous of selling his property. He offered it to a neighbor named José Luis Benitez for $600,000. Benitez counter-offered for between $350,000 and $400,000 because he thought it would cost $200,000 to $250,000 to clean the property up. Joynt rejected the counter-offer, and asked Benitez to help him find a buyer who would pay more than Benitez. At some point, Joynt listed the property with a real estate broker for $600,000. 3. In 1999, Kerper was operating an automobile parts salvage business at a location near Joynt's property. Kerper needed a new location to move his business and inventory. A real estate broker showed him Joynt's property. The broker told Kerper that the seller's broker said the property was clean and had no environmental problems. The broker also told Kerper that Orange County had recently purchased an easement for $300,000 to run a drainage ditch through the property to a local lake, which was true. While this gave Kerper some level of assurance, the broker advised Kerper to have an environmental assessment done before going forward with the sale. 4. After being shown the property by the broker, Kerper spoke with Joynt directly. It was agreed that they could save the real estate commission and split the savings by waiting until the listing expired. Joynt personally assured Kerper that there were no environmental issues, as evidenced by Orange County's purchase of the easement for a drainage ditch. In late March of 2000, after expiration of the real estate commission, Kerper and Joynt entered into an informal agreement allegedly written on a scrap of paper, which was not placed in evidence. Kerper testified that the agreement was for him to buy the property for $500,000, with $100,000 down, and the balance payable over time at seven percent interest. He also testified that the required $100,000 down payment would be payable in installments, with $25,000 payable whenever Joynt cleaned 25 percent of the site to make it usable by Kerper for his business operations. 5. When it came time for Kerper to move onto Joynt's property, Kerper discovered that Joynt had not done any clean-up or removed any of his property from the site. Used cars, car parts, and tires that belonged to Joynt remained throughout the site. According to Kerper, it was agreed that Kerper would help Joynt clean off the western half of the property, which was split approximately in half by a stream, while Joynt worked on cleaning off the eastern half of the property.” 6. Starting from the gate at Sharpe Road, Kerper began removing junk from the western side to the eastern side of the site for Joynt to remove from the property. Pieces of equipment and used car parts that had been left there by Joynt were removed from this section of the property. When enough space was cleared off, Kerper began setting up his auto salvage operations on the western side. He used a bulldozer to level the driveways and spread powdered concrete where the ground was soft. He also used the bulldozer to level an area near the scale house, which was on the western side of the property, but continued to be used by Joynt for Don's Auto Recycling business. In doing this work, his workers encountered steel reinforcement bars, which Kerper had them cut with a torch. Some tires and battery casings also were visible in the ground. Kerper had several truckloads of fill dumped in the area and installed a concrete pad for storing and dismantling automobiles. 7. In September or October of 2000, Kerper was evicted from his prior business location, and he had to move to Joynt's property regardless of its condition. As he increased business operations on the cleared spaces, Kerper continued to clear more space on the western side of the property. Another concrete pad was installed farther to the north. Eventually, Kerper was operating ASAP on approximately ten acres on the western side of the 40-acre site. 8. As Kerper continued to move north, his heavy equipment began encountering assorted kinds of buried material. When a buried propane tank exploded, Kerper stopped working his heavy equipment in the area and confronted Joynt. Joynt denied any knowledge of buried tanks and stated they must have been placed there by someone else. Joynt told Kerper he would let Kerper move his operations to the east side of the property when Joynt finished cleaning it up, and then Joynt would finish clearing the western side for Kerper. Kerper agreed, and continued making payments on the required down payment. According to Kerper, he eventually paid $90,000 of the down payment. 9. By August of 2001, Kerper began to have serious misgivings about Joynt's promises and the condition of the site, and he decided to seek advice. Kerper hired David Beerbower, vice-president of Universal Engineering, to perform an assessment of the northern portion of his side of the site (in the vicinity where the exploding tanks were encountered). During his assessment on August 20, 2001, Beerbower observed various automotive parts including numerous crushed fuel tanks, antifreeze containers, and motor oil containers being excavated from the upper three feet of soil. It was determined by Beerbower, and stated in his written report to Kerper, dated September 21, 2001, that these parts appeared to have been buried there several years ago. This determination, which DEP does not dispute, was based on the high level of compaction of the soil found around these items that could be attributed to either the passing of a significant amount of time or a bulldozer passing over the items. Since the excavations Beerbower observed were in a separate location from where Kerper had already bulldozed, the soil compaction around these items could not be attributed to Kerper's bulldozing. It was stated in Beerbower's letter that the “amount of buried automotive debris qualifies this area essentially as an illicit landfill." ad 10. Mark Naughton from the Risk Management Division of the Orange County Environmental Protection Division (OCEPD), which runs the petroleum storage tank and cleanup program for Orange County under contract with DEP, was also present during the time Beerbower conducted his assessment. Naughton agreed with Beerbower's assessment that Kerper is not liable for the assessment or remediation of this area. Naughton also advised Kerper to move ASAP off Naughton's property and to seek legal advice from attorney Anna Long, who used to be the Manager of OCEPD. 11. Meanwhile, according to Kerper, Joynt changed his position and began to maintain that it was Kerper's responsibility to clean up the western side of the property. Given the newly-discovered environmental condition of the property, Kerper did not feel it was in his best interest to purchase the property "as is," and contacted Long to help him negotiate to extricate himself from his arrangement with Joynt. While negotiations proceeded, Kerper began to scale down ASAP's operations in anticipation of relocating. Kerper began fixing up more whole automobiles for resale, and had a car crusher used in connection with ASAP's business begin crushing more cars for removal from the site for recycling. 12. Eventually, Long had Beerbower conduct another assessment of portions of Joynt's property to try to establish responsibility for contamination as between Kerper and Joynt. On 10 February 13, 2001, Beerbower took a surface water sample froma "drain pipe under the north driveway," a soil sample "where the car crusher was," and another soil sample from "the sandblasting area." The evidence was not clear as to the exact location of these samples, particularly the soil samples, as described in Beerbower's written report to Long dated March 11, 2002. But it appears that the "car crusher" refers to the location of Respondents' car crusher operation in the northern part of the site, just across the northern driveway; it appears that the sandblasting area refers to a location used by Joynt on the eastern side of the property, but located just east of the trailers used by Kerper for his offices. These samples were analyzed and found not to contain volatile organic compounds (VOC) or total recoverable petroleum hydrocarbons (TRPH) in excess of Florida's cleanup target levels. 13. Kerper continued to operate his junkyard until the beginning of March of 2002. On March 5, 2002, Long filed a citizen's complaint with OCEPD on Kerper's behalf. While acknowledging that Kerper was operating on the site at the same time as Joynt in recent years, the complaint alleged Kerper's discovery that Joynt had been burying waste batteries, tires, and gasoline tanks on the property and covering the burial sites with broken concrete pieces. The complaint alleged that Kerper had been moving his personal property off of the site since August of 2001, when he backed out of his "lease to purchase" agreement 11 with Joynt, and would be "completely off the property by 3/10/02." 414. It is not clear exactly when Kerper and ASAP were completely off the property. The testimony and evidence on the point is inconsistent. Kerper, after some confusion, placed the date at March 9, 2002. His wife said it was March 2, 2002. An attorney representing Kerper and ASAP in an eviction proceeding filed by Joynt and his wife, filed a notice "that as of the evening of March 15, 2002, [ASAP had] vacated the property." In any event, the evidence seemed clear that Kerper and ASAP did not go on Joynt's property on or after March 15, 2002. 15. On March 15, 2002, DEP representatives inspected Joynt's property in response to Long's complaint. Kerper remained outside the front gate of the property and did not participate in the inspection. This inspection covered the entire property including the section that had been occupied by Kerper and ASAP. 16. doynt told the DEP inspectors that Respondents were responsible for a 55-gallon drum found tipped over on its side on the western half of the site and leaking a substance that appeared to be used oil from a hole in the side of the drum. DEP's inspectors righted the drum, which still was partly full of its contents. There also were several other unlabeled 55-gallon drums and 5-gallon containers "of unknown fluids"; a burn pile containing burned oil filters, battery casings, and electrical 12 wiring; other broken battery casings; and an area of dark-stained soil which appeared to be soaked with used oil. Joynt accepted responsibility for other contamination on the site, but told DEP that Kerper and ASAP were responsible for these items. Kerper denied the allegations. 17. As to the leaking oil drum, Kerper first contended that DEP did not prove that the overturned drum contained used oil. But the evidence was clear that DEP's inspectors were ina position to determine that the liquid was oily. Respondents also contended that the drum would have been empty, not still partly full, if Kerper or ASAP had left it on its side at the site when they vacated the property several days earlier. Kerper alleged that Joynt could have put the hole in the drum and turned it over shortly before the arrival of DEP's inspectors. But, as stated, it was not clear when Kerper and ASAP vacated the site, and it was not clear from the evidence that Respondents were not responsible. 18. Similarly, the other unlabeled drums and containers were in a part of the site occupied and used by Respondents. Despite Kerper's denials, it is not clear from the evidence that they belonged to Joynt or that they were placed where DEP found them after Respondents vacated the site. Testimony that Respondents had containers properly labeled "used oil," "antifreeze," and "gasoline" inside one of the trailers on the site did not negate the existence of unlabeled drums and 13 containers on the site. However, there was no proof whatsoever as to what the closed drums and containers held. But some were open, and DEP's inspectors could see that these held an oily substance (possibly hydraulic fluid), mixed with other substances. 19. As to the dark-stained soil, none of it was tested, and Respondents contended that it was just naturally darker in color or possibly wet from water or some other liquid, DEP's witness conceded could explain the color variation. (Natural reasons such as different soil or rainwater probably do not explain the color variations in the site.) Joynt told DEP's inspectors that the discoloration seen by them on March 15, 2002, was froma hydraulic hose on a piece of heavy equipment that burst earlier. The evidence was not clear who Joynt was saying owned and operated the equipment. But Respondents also blamed Joynt's employees for repeatedly blowing hoses on aged heavy equipment all over the site. It is found that the dark-stained soil probably was the result of one or more releases of hydraulic fluid or motor oil. However, the testimony and evidence was not clear that all of the releases were Joynt's doing and that Respondents bear no responsibility at all for the releases observed on March 15, 2002, in the areas where Respondents were operating. 20. Respondents were able only to produce documentation of proper disposal of 232 gallons of oily water through IPC/Magnum, 14 dated February 13, 2002, and 29 batteries through Battery World, dated March 8 and 14, 2002. 21. The testimony of Kerper and others was that Respondents generally removed gasoline from automobiles and placed it ina marked container for reuse within a day or two by Respondents and their employees. The testimony was that used oil and antifreeze generally also were removed from automobiles and placed in marked containers until proper disposition. The testimony was that batteries were removed from automobiles and that most were given to one of the employees to sell for a dollar apiece. There was no documentation to support this testimony. 22. There was testimony that, when Respondents had cars crushed, E & H Car Crushing Co., Inc., managed the collection and proper disposition of gasoline, used oil, and batteries. But the documentation placed in evidence contained no description of the wastes removed, but only provided a weight calculation of the materials removed from Respondents’ facility. 23. There was testimony that Gabriel Lynch, who was properly licensed, removed freon from automobiles at Respondents’ facility every two to three days, or upon request. Respondents would trade the freon Lynch recovered and used in his business, Gabe's Auto Tech, for repair work on Respondents' vehicles. However, no documentation of these transactions was produced. (Lynch testified that he did not know it was required that he provide documentation to Respondents.) 15 24. Runoff from where Respondents were operating on Joynt's property entered the stream running north-south through the center of the property. Neither Joynt nor Respondents had a stormwater permit or an exemption from stormwater permitting. 25. Kerper argued that his duties were limited to managerial responsibilities for ASAP, and that he was not at any time responsible for ASAP's day-to-day operations and did not conduct any activities that may or could have resulted in hazardous waste or petroleum discharge violations so as to be liable as an "operator." But the evidence was clear that Kerper was involved in ASAP's day-to-day operations. 26. While the evidence did not totally absolve Respondents from the allegations in the NOV, several people testified on Respondents' behalf as to their practice of properly disposing of hazardous materials generated by his business. For example, Rafael Rivera, a former employee, testified that Kerper would get mad at him if any gas or oil was spilled and left on the ground or was not disposed of properly. Meanwhile, it appeared that environmental problems at Joynt's site existed for years before the arrival of Respondents. Mrs. Sandra Lovejoy, a neighboring property owner for the past 30 years, testified that she had experienced problems with her water quality, such as a foul smell or funny taste, for many years before Respondents moved onto Joynt's property. An inspection was conducted by OCEPD in September of 2000, in response to Lovejoy's complaint regarding 16 fuel odor and a drinking well which was no longer in service. In part, OCEPD's written report on the complaint found "[m]any spots of surficial petroleum contamination . . . from gasoline, motor oil and other petroleum products leaking or spilled from the junk vehicles" at Don's Auto Recycling and included a recommendation "referring this site to the FDEP task force that has been put together to inspect and deal with junk yard facilities," although "[n]o Petroleum Cleanup issues were found at [that] time." For reasons not explained by the evidence, it does not appear that Don's Recycling was referred to any task force, or that OCEPD followed up on the reported contamination. 27. Respondents contend that this entire proceeding against them was part of a vendetta against Kerper for going to the local television station to expose the condition of the site, the failure of OCEPD and DEP to follow up on the September 2000, report and recommendation, and Orange County's purchase of a north-south drainage easement through the western portion of the property in 2000. The evidence did not prove this contention. However, it is clear that Joynt was responsible for the condition of most of the 40-acre site, not Respondents, and that Joynt shared responsibility with Respondents for the conditions alleged in the NOV. 28. While this case has been pending, Joynt's heirs have cooperated with DEP in cleaning up the site, and DEP acknowledged in its PRO that several items in the OCA--specifically, those 17 relating to Counts II, III, and VII of the NOV--are moot and unnecessary in light of Respondents' eviction from the property and subsequent cleanup operations by Joynt's heirs. It also is suggested that the corrective actions requested in DEP's PRO to address Counts IV, V, and VI of the NOV--relating to failure to document proper disposal of wastes--are unnecessary. It seems clear that, to the extent such disposals occurred, any available documentation would have been placed in evidence during the final hearing. Ordering that they be produced within 30 days of the Final Order, as suggested in DEP's PRO, would be a futile act. 29. Count VIII of the NOV alleged costs "of not less than $500. In its PRO, DEP requested recovery of $1,367.31 of costs. Some of these costs--$867.31--were itemized in the PRO. The balance appears to relate to the $500 alleged in the NOV. There was no evidence introduced at the final hearing as to any of these alleged costs, and the costs itemized in the PRO seem to represent travel costs of counsel for DEP.
Conclusions David J. Tarbert, Esquire Jason Sherman, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Albert E. Ford II, Esquire Webb, Wells & Williams, P.A. 994 Lake Destiny Road Suite 102 Altamonte Springs, Florida 32714
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order providing: 1. Under Count I of the NOV, Respondents shall be jointly and severally liable, along with Donald Joynt and Don's Auto Recycling, for cleaning up the releases of used oil evidenced by the discolored soils photographed by DEP's inspectors on 24 March 15, 2002 (DEP Exhibit 20, photographs 5 and 7 on page 2 of the exhibit). As such, they shall be responsible, along with Donald Joynt and Don's Auto Recycling, for implementation of DEP's Initial Site Screening Plan to assess and remove all contaminated soils resulting from those releases. If the results of the Initial Site Screening indicate that further assessment and/or remediation of the contamination is required, Respondents shall also participate, along with Donald Joynt and Don's Auto Recycling, in completing the required work, consistent with the "Corrective Actions for Contaminated Site Cases" (DEP Exhibit 16). 2. Counts II through VIII of the NOV are dismissed. 3. Respondents' Motion for Attorney's Fees and Costs is denied. DONE AND ENTERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Vane ya J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2003. 25
The Issue The issues are whether Offshore Shipbuilding, Inc., (Offshore) is entitled to reimbursement from the Florida Coastal Protection Trust Fund, pursuant to Sections 376.011-.21, Florida Statutes, for costs and expenses incurred by Offshore in a spill cleanup at Offshore's Green Cove Springs facility or whether the Department of Natural Resources (DNR) correctly denied Offshore's application for reimbursement.
Findings Of Fact Offshore engages in the business of dry docking and repairing boats, barges and other types of marine vessels. Its primary facility and business offices are in Palatka, but it also leases a facility at the Clay County Port in Green Cove Springs, Florida. The scallop vessel, Theresa R. II (Theresa), was repaired by Offshore at the Green Cove Springs facility from August 2 to August 7, 1991. The vessel was hauled out of the St. Johns River and placed on a dolly located on a marine railway which extends south from the river about 500 feet. Prior to coming to Offshore's facility, Theresa had undergone major reconditioning at another facility. In the course of that work, the vessel's bilges had been pumped out by Envirotech Southeast on May 3, 1991. Envirotech pumped 2,200 gallons of water from the bilge. When the Theresa arrived at Offshore, it did have some water in the bilge. There was oil floating on top of the water and most likely a sludge of waste matter from the painting and scraping had settled to the bottom of the bilge. John Rita, the owner of the Theresa, indicated that he wanted to pump out the bilge onto the ground, but was advised by Offshore that he would need to have it pumped out by a qualified pumper. The repairs to be performed by Offshore included repairs to the sea valve in the engine room where the bilge was also located. Hawkins, an employee of Offshore, could not make that repair until the bilge water level was lowered. Hawkins performed some other tasks and then found that the bilge was empty enough to perform those repairs. He did not know how the bilge water level was lowered and did not see that the bilge had been pumped on the ground and did not see or smell diesel fuel or oil on the ground. On Saturday, August 3, 1991, Rita acknowledges that he pumped water from the bilge over the starboard side of the vessel. Rita says the source of the water was rain and water from the St. Johns River. He did not pump the bilge dry, but pumped enough water to lower the level and permit the repairs. He pumped only water, leaving the solids in the sludge on the bottom and the oils floating on top suspended above the water. Solid materials tend to cling to surfaces and are not easily removed by water. In order to remove solid materials, it is necessary to physically remove them by some sort of tool, like a hoe or shovel. The Theresa was launched on August 7, 1991, around 3:30 p.m. Cleanup around the yard where the Theresa had been began the morning of August 8, 1991. Later that afternoon, an unidentified employee of Offshore reported discovering a spill to Fred Willshier, Offshore's yard superintendent at Green Cove Springs. Willshier called the Palatka office and told Tony Bucknole, Offshore's Vice President and General Manager, about the spill. Bucknole told Pam Barrett, an employee whose duties included environmental matters, personnel and payroll. Willshier reported the spill to Barrett around 3:00 p.m. Bucknole told Barrett to go to the Green Cove Springs yard the next morning on her way to work. Barrett and Willshier examined the spill the morning of Friday, August 9, 1991. The spill contained some oil and smelled of diesel fuel. The area of the spill was approximately 4 or 5 feet from the marine railway next to where the Theresa had been. Various witnesses described the spill as being 30 feet, 50-75 feet and 30 yards from the St. Johns River. No contamination was threatening the river and no spill material had reached the beach area adjacent to the shoreline. Barrett ordered the necessary materials such as barrels and shovels for the removal of the contaminated soil. She told Willshier to remove all the contamination that could be seen, to put the soil in drums, to seal the drums and to label the drums. Soil was removed from the site on August 9 and 10, 1991. The soil was placed into drums without lids, because no lids were available on such short notice. Some of the soil in drums was taken to Palatka and put into a large steel bin. The drums were then taken back to Green Cove Springs for reuse with this spill. The drums were sealed with visqueen and duct tape. No one labeled the drums as to date, source, or number, although some drums were apparently labeled so as to show that they contained soil and diesel fuel or oil. Willshier was supposed to supervise the cleanup, but he does not know who wrote on the drums, how many drums were filled or what happened to those drums. The steel bin at Palatka had no cover. No one knows if it was empty when the drums were emptied into it or if other materials were added after the contents of those drums was put into it. Barrett, who was responsible for the inventory of such materials, didn't know that any of the soil was put in the steel bin. She also could not account for the number of drums or their location immediately after the cleanup was completed. On August 29, 1991, Sgt. Jesse Baker of the Florida Game and Fresh Water Fish Commission and Jane Mears of the Department of Environmental Regulation participated in the execution of a search warrant related to Offshore's handling of hazardous waste at the Palatka facility. That search revealed numerous 55-gallon drums at the Palatka site, many of which were not labeled. Of those drums with labels, some had partially disappeared or were unreadable, some were labeled during the execution of the search warrant and some had more than one label. Additionally, four drums were located next to a derelict tugboat, the Victoria, and the crane operator was in the process of lifting drums of contaminated soil and liquid waste and dumping those contents into the bilge of the Victoria. Sgt. Baker saw several metal bins containing soil, rust, and other waste materials, including one large steel container which was full of soil. These containers of soil were not labeled. Sgt. Baker was informed by Offshore employees that for three days they had been combining the contents of the various drums and there was no way to determine with certainty "what soil came from where." He was also advised that the combined contaminated soils and liquid waste had been placed in the tugboat for ultimate "disposal." Sgt. Baker observed a large quantity of waste material in the Victoria's hold and several crushed metal drums in a dumpster. The next day, August 30, 1991, Ms. Mears and Sgt. Baker inspected the Offshore facility at Green Cove Springs. They found additional drums of contaminated soil and waste material at Green Cove Springs. The condition of the drums was similar, with some having visqueen and duct tape sealing them. The labeling was similarly haphazard or nonexistent. As a result of these inspections, all waste material at both sites was appropriately sealed, labelled, and inventoried. The resulting inventories were offered by Offshore as the only proof that 43 drums of contaminated soil were removed from the spill site. Numerous witnesses, including Ms. Mears and Sgt. Baker, examined the site from which this contaminated soil was allegedly removed. There was no observable hole or depression which would account for removal of soil down to one foot below grade just three weeks earlier. Offshore did not notify the Department of Natural Resources of the alleged spill until January 28, 1992. Offshore did not notify the Florida Marine Patrol or the U.S. Coast Guard of the alleged spill until on or about that same date. Offshore never sought or received authorization or approval of its cleanup activities from the Department of Natural Resources prior to its activities to remove the alleged spill. Offshore first filed an application for reimbursement from the Florida Coastal Protection Trust Fund on February 26, 1992. That application, filed by counsel for Offshore, sought reimbursement of $3,603.93 for expenses allegedly incurred by Offshore in containing and cleaning up a spill of diesel fuel from the Theresa R. II. The application claimed $3,218.75 for labor costs and $385.18 for materials. That application was incorrect about several material facts. First, the date of the alleged spill was August 8-9, 1991, even though the vessel alleged to be responsible for the spill had been launched on August 7, 1991, and even though at hearing, Offshore took the position that the spill occurred on August 3, 1991, when Rita pumped water from the bilge. The second error in the application is the assertion that the spill occurred when the vessel's owner pumped the contents of the fuel tank over the side of the vessel and onto the ground. In fact, only the contents of the vessel's bilge were involved. The application also seeks reimbursement for labor costs for the alleged cleanup of $25.00 per hour and $37.50 per hour for overtime. In fact, the employees who cleaned up the alleged spill were paid only their regular hourly wage. None of the employees were paid even $25.00 per hour. Offshore was claiming its regular hourly charge for repairs performed in its yards rather than the amount actually paid to the employees. That regular hourly charge is based on Offshore's annual average hourly cost for all its services which includes salaries, insurance, overhead, fuel, and other expenses necessary to run the yards, presumably including some profit. Fourth, the application asserts that the contaminated soil had been drummed and transported to the Palatka facility. In fact not all the contaminated soil was drummed or taken to Palatka. It cannot be determined precisely how much soil was removed or where it is now located. Offshore billed Mr. Rita, the vessel's owner, for the cleanup by sending him a bill for $5,887.53 on August 23, 1991. Offshore presented evidence regarding sampling and testing of the contents of certain drums which it alleges contained soil from the alleged spill. Because there is insufficient evidence to establish the true origin of the contents of the various drums and because Offshore was so haphazard in maintaining records of the contents of the drums, the testimony and evidence regarding the sampling and testing is simply not material or probative of any issues significant to the resolution of this reimbursement claim.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources enter a Final Order and therein DENY the reimbursement claim filed by Offshore Shipbuilding, Inc., and DISMISS the petition filed herein. DONE and ENTERED this 18th day of December, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3946 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Offshore Shipbuilding, Inc. 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1 & 2(1); 3(8); 4(9); 5(2); 13(2); 17 & 18(4); 19-22(5); 24(5); 29(3); 32(3); 35(3); 38(6); 42 & 43(8); 45(8); 48(10); 59(9); 60(10); 86(9); and 103(11). 2. Proposed findings of fact 6, 10-12, 14, 16, 25-27, 30, 31, 33, 39, 40, 46, 47, 49, 50, 56, 61-64, 71-74, 76-79, 83, 87-93, 95, 107, 108, 111, 121, 122, 136, 187-192, 198, 216-219, 221, and 222 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 7, 8, 15, 23, 28, 34, 36, 37, 41, 52, 53, 58, 65- 67, 69, 70, 75, 80, 84, 85, 94, 97-100, 102, 117, 124-132, 141-184, 186, 193- 197, 199-215, 220, 223-236, and 238-240 are irrelevant. 4. Proposed findings of fact 9, 44, 51, 55, 57, 68, 96, 101, 104-106, 109, 110, 112-116, 118-120, 123, 133-135, 137-140, 185, and 237 are unsupported by the credible, competent and substantial evidence. 5. Numerous proposed findings of fact, including but not limited to, 151-153, 155-157, 159, 160, 167, 218, and 219 are mere summaries of testimony and are not appropriate as findings of fact. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Natural Resources 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2(1); 3-7(24-28); 9(29); 10 & 11(27); 12(22); 13(23); 15 & 16(2); 19(3); 20(3); 21(6); 22 & 23(7), 24(8); 25 & 26(9); 28(9); 29 & 30(10); 32 & 33(12); 34(14); 35(12); 36(14); 43(15); 44 & 45(16); 46(17); 47 & 48(18); 49 & 50(16); 51(19); 54(21); and 65(30). 2. Proposed findings of fact 1, 8, 14, 17, 27, 31, 37, 38, 41, 42, 55, 56, 60, and 61 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 18, 39, 40, 52, 53, 57-59, and 62-64 are irrelevant, primarily for the reasons stated in Finding of Fact 30. COPIES FURNISHED: Virginia B. Wetherell Executive Director Department of Natural Resources 3900 Commonwealth Boulevard, MS-10 Tallahassee, FL 32399-3000 Kenneth Plante, General Counsel Department of Natural Resources 3900 Commonwealth Boulevard, MS-10 Tallahassee, FL 32399-3000 L. Kathryn Funchess Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard, MS-35 Tallahassee, FL 32399-3000 Robyn A. Deen Sidney F. Ansbacher Attorneys at Law Brant, Moore, Sapp, MacDonald & Wells Post Office Box 4548 Jacksonville, FL 32202
