The Issue The issues in this case are whether Respondent violated certain rules of the Department of Environmental Protection (Department) related to petroleum contamination site cleanup criteria as alleged in the Department’s Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (NOV); whether Respondent is liable for the administrative fines and investigative costs assessed by the Department; whether mitigation of the administrative fine is appropriate; and whether Respondent should be required to take the corrective action described in the NOV.
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 (2008),1 and the rules promulgated in Florida Administrative Code Title 62, pertaining to petroleum contamination. Respondent Z.K. Mart, Inc., is a Florida corporation, and owns and operates a retail fueling facility (DEP Facility No. 8507091) located at 5077 Normand Boulevard, Jacksonville, Florida (“the facility”). In January 2004, soil sampling in conjunction with the removal of an underground petroleum storage tank at the facility showed petroleum contamination. Respondent reported the contamination to the Department in a Discharge Report Form on January 29, 2004. Respondent removed the tank that was the source of the contamination, conducted source removal activities, and submitted various reports to the Department, including a Site Assessment Report (SAR), submitted in February 2006. In March 2006, the Department determined the SAR was incomplete and requested that Respondent submit a SAR addendum. To date, Respondent has not submitted the SAR addendum. Respondent’s insurer, Mid-Continent Casualty Company, refused coverage for the assessment and cleanup costs associated with the reported discharge, asserting that the contamination “arose out of” the tank removal. Respondent contends that the contamination occurred before the tank removal. In October 2004, Respondent sued Mid-Continent in the circuit court for Duval County for wrongful denial of coverage. Respondent requested that the Department also file suit against Mid-Continent, pursuant to Section 376.309(2), Florida Statutes, for violating financial responsibility requirements. In December 2008, the Department sued Mid-Continent. The litigation is ongoing. Respondent spent over $300,000 to remove 2,503 tons of contaminated soil and to conduct site assessment activities associated with the reported contamination. In August, September, and October 2006, Respondent filed financial affidavits and additional materials with the Department in support of Respondent’s claim that it was unable to pay for additional assessment work. By letter dated November 3, 2008, the Department rejected Respondent’s claim that it was financially unable to undertake the requested site assessment. Respondent submitted a financial affidavit prepared by Abdul Khan, the vice president and secretary of Z.K. Mart, Inc., which states that the net income of Respondent was $36,479 at the end of 2005. Financial information for later years, including 2008, was also submitted by Respondent. However, no financial analysis was included. No evidence was submitted to establish the estimated costs of future site assessment activities. It cannot be determined from the financial information in the record whether Respondent is currently financially able to conduct additional site assessment activities. The Department states in the NOV that Count I constitutes a violation of Florida Administrative Code Rule 62- 770.800(5). That rule provides that it is a violation of Chapters 376 and 403, Florida Statutes, for a responsible party to fail to submit additional information or meet any time frame “herein.” The Department explained that Count I was intended to charge Respondent with failing to complete site assessment. The only applicable time frame in Florida Administrative Code Rule 62-770.800, entitled “Time Schedules,” is in subsection (3), which requires a responsible party to submit additional information within 60 days of the Department’s request for the information. That violation, however, is more specifically charged in Count II. Count II of the NOV charges Respondent with violating Florida Administrative Code Rule 62-770.600(11), which states that, if a SAR is incomplete, the Department shall inform the responsible party and the responsible party shall submit a SAR addendum within 60 days. Counts I and II charge Respondent with the same offense, failing to submit requested information within 60 days of the request. As stated in the Conclusions of Law, Respondent cannot be made to pay administrative fines under a duplicate charge. Count III of the NOV charges Respondent with liability for the Department’s investigative costs of $500 incurred in conjunction with this enforcement matter. These are nominal costs and were never disputed by Respondent.
The Issue Whether the Respondent, a licensed general contractor, committed the offenses alleged in the three administrative complaints and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. At all times pertinent to this proceeding, Respondent has been licensed as a general contractor by the Petitioner. Respondent was issued license number CG C010162 in 1975 and has held that licensure ever since. The first complaint against Respondent’s licensure, like the three complaints at issue in this proceeding, arose from a post-Hurricane Andrew contract. That complaint was resolved by stipulation of the parties. Respondent did not admit to wrongdoing in his stipulation. Respondent was financially unable to comply with the terms of the settlement. Consequently, his license was suspended at the time of the formal hearing. There was no explanation as to why this complaint, which occurred at approximately the same time as the three contracts at issue in this proceeding, was prosecuted separately. At all times pertinent to this proceeding, Respondent was the qualifier for Allstate Construction Management, Inc. (Allstate), a Florida corporation. THE RODRIGUEZ CONTRACT (DOAH CASE 96-4580) On March 17, 1993, Allstate entered into a contract with Anthony Rodriguez to build a garage at 15525 SW 209th Avenue, Miami, Florida. The contract price was $16,250.00, which included “plans, permit and cleanup.” Allstate was paid the sum of $4,062.50 on March 17, 1993. Allstate obtained the Dade County building permit for the project on March 26, 1993. Allstate was paid the sum of $5,593.75 on April 5, 1993, after the concrete blocks were installed. On April 8, 1993, Allstate requested a tie beam/reinforcing inspection from the Dade County building department. In response to that request, Antonio Varona inspected the project on April 12, 1993. The inspector noted that the project was not ready for inspection because no truss plans were available. Respondent testified, credibly, that he had to construct the roof conventionally because of the difficulty in obtaining pre-fabricated trusses; however, that testimony does not explain why there were no truss plans available for inspection. Appropriately engineered truss plans are required for a roof to pass inspection. Despite the failure of the project to pass inspection, Mr. Rodriguez accepted the roof and paid Allstate $4,968.75 on May 21, 1993. As of May 21, 1993, there remained a final payment of $1,625 on the contract. After May 21, 1993, Respondent and Allstate left the Rodriguez job. There was a dispute in the evidence as to whether Mr. Rodriguez fired Allstate or whether Allstate abandoned the project. This dispute is resolved by finding that the evidence was insufficient to establish by clear and convincing evidence that Allstate abandoned the Rodriguez project. When Allstate left the Rodriguez job, there were sufficient funds remaining unpaid to complete the project. Because he had obtained the initial building permit, it was incumbent upon Respondent to either obtain a final inspection of the project or notify the building department that his company had been terminated by the owner. Respondent did neither. THE ELLIS CONTRACT (DOAH CASE 96-4581) At the times pertinent to this proceeding, William R. Ellis owned the Arleen House, which is an apartment building located at 2191 N.E. 168th Street, North Miami Beach, Florida. This building suffered damages from Hurricane Andrew. On September 11, 1992, Respondent and Mr. Ellis inspected the building and Respondent prepared an estimate as to the items that had been damaged by the hurricane and other non-hurricane related repairs that should be made. The mansard roof for this building had been damaged by Hurricane Andrew to the extent that it contained gaping holes. Shortly after that inspection, Mr. Ellis met with his insurance adjuster who gave him a check in the amount of $13,000 to repair the roof. It was necessary to dry in the roof and repair the mansard as soon as possible to avoid additional damage to the building from rains. While there was a dispute as to the extent of the services Allstate was to provide Mr. Ellis, the record is clear that Respondent, on behalf of Allstate, agreed to undertake the roof repair for the sum of $13,000. Respondent told Mr. Ellis that his company had a roofing crew ready to begin work on the roof repairs as soon as Mr. Ellis paid the sum of $13,000. Between September 11 and September 15, 1992, Mr. Ellis gave Allstate a check in the amount of $13,000 with the understanding that the check he had received from the insurance company had to clear before his bank would honor the check he was giving to Allstate. Immediately thereafter1 Allstate sent a roofing crew to the project for the purpose of temporarily covering exposed areas. Despite having been told by Mr. Ellis that the check he was giving Allstate would not be good until after the check for the insurance proceeds had cleared, Allstate did not wait to deposit Mr. Ellis’ check. Respondent was promptly notified that the check Mr. Ellis had given him would not be honored by Mr. Ellis’ bank. Respondent immediately thereafter withdrew the roofing crew from the project. The roofing crew had made only minor repairs at the time they were withdrawn from the project. Respondent knew, or should have known, that the building was vulnerable to further damage from rain. On September 15, 1992, Mr. Ellis gave Respondent a second check in the amount of $13,000. This check cleared the banking process on September 18, 1992. Mr. Ellis made repeated efforts to have Allstate send a crew to repair the roof. After it withdrew the crew that had been sent to the property when Allstate received the first check, Allstate did not take action to protect the property by repairing the exposed areas of the roof. Towards the end of September 1992, a heavy rainstorm caused additional damages to Mr. Ellis’ building. Allstate did not send a crew to the project again until October 6, 1992. Mr. Ellis hired this crew away from Allstate. He testified he did so because the crew complained about Allstate not paying for the materials they were using to repair the roof and because the workmen were threatening to file liens against the property. Mr. Ellis paid this crew the sum of $3,400 to temporarily repair the roof. He then entered into a contract with another contractor to complete the roofing repairs for the sum of $17,500. Mr. Ellis demanded the return of the $13,000 he paid to Allstate, but, as of the time of the formal hearing, he had not been repaid. THE KUCHENBACKER CONTRACT (DOAH CASE 96-4582) On November 6, 1992, Allstate entered into a contract with Carl F. Kuchenbacker to repair his residence at 18500 SW 88th Road, Miami, Florida. Mr. Kuchenbacker’s residence had been damaged by Hurricane Andrew. The initial contract price was $33,375.00. Respondent secured the building permit and Allstate began work on the project. During the course of the work, additional work was added to the contract, which raised the total contract price to $38,015.00. In late February or early March, 1993, Allstate abandoned the project without just cause and without notice to the owner. At the time it abandoned the project, Allstate had been paid the sum of $26,620.00. Allstate failed to pay all of the subcontractors and materialmen who had performed work or provided material for the Kuchenbacker job. As a result of that failure, valid liens were recorded against Mr. Kuchenbacker’s property. The following liens were recorded: Rite-Way Plumbing and Plastery, Inc. in the amount of $3,520.00; Commercial Lighting and Maintenance, Inc., in the amount of $1,835.00; and Scott Bornstein Plumbing, Inc., in the amount of $798.00. Allstate had received sufficient funds from the owner to pay these liens, but neither Respondent nor Allstate paid these liens. Mr. Kuchenbacker and Petitioner’s expert witness testified that the value of the work performed by Allstate before it abandoned the job was $21,000.00. Mr. Kuchenbacker also testified as to the items that remained undone and as to the percentage of the work that had been completed. From that testimony and from the testimony as to the estimated costs of completing the job, it is found that the sum of $11,395.00, which was the difference between the total contract price and the total amount that was paid to Allstate, was sufficient to complete the project and pay off the liens on the property. Respondent did not call for a final inspection of the property and he did not advise the Dade County Building Department that he was abandoning the project. Allstate abandoned the Kuchenbacker project because it went out of business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that Petitioner impose fines totaling $5,000 against Respondent’s licensure as follows: For the violation established by Count I of DOAH Case 96-4580, an administrative fine in the amount of $500. For the violation established by Count II of DOAH Case 96-4580, an administrative fine in the amount of $500. For the violation established by Count IV of DOAH Case 96-4580, an administrative fine in the amount of $250. For the violation established by DOAH Case 96-4581, an administrative fine in the amount of $500. For the violation established by Count I of DOAH Case 96-4582, an administrative fine in the amount of $750. For the violation established by Count II of DOAH Case 96-4582, an administrative fine in the amount of $2,000. For the violation established by Count III of DOAH Case 96-4582, an administrative fine in the amount of $500. IT IS FURTHER RECOMMENDED THAT in addition to the fines recommended for the violations found in DOAH Case 96-4581, Respondent’s licensure be suspended for two years. IT IS FURTHER RECOMMENDED THAT in addition to the fines recommended for the violations found DOAH Case 96-4582, Respondent’s licensure be suspended for two years, to run concurrently with the suspension recommended for DOAH Case 96- 4581. DONE AND ENTERED this 23rd day of May, 1997, in Tallahassee, Leon County, Florida. Hearings Hearings CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 23rd day of May, 1997
The Issue The basic issue in this case is whether the Petitioner is entitled to the issuance of an individual construction permit for a proposed stormwater management system intended to serve Phase II of the Petitioner's land development project.
Findings Of Fact Based on the admissions and stipulations of the parties, on the exhibits received in evidence, on the testimony of the witnesses at the hearing, and on the matters officially recognized, I make the following findings of fact. On October 8, 1985, the applicant filed a notice of intent to utilize a general permit for the construction of a new stormwater discharge facility. This request was denied by the Department of Environmental Regulation by letter of November 7, 1985. Subsequently, on November 21, 1985, the applicant filed an individual construction permit application, which was later supplemented with additional information which was requested by the Department. This original application was the subject of an April 9, 1986, notice of an intent to deny. The basis for proposed denial was that the discharge elevation from the proposed stormwater management system was too low in relation to predicted stage elevations of Little Lake Santa Fe and Lake Santa Fe and thus efficient operation of the stormwater management system would be prohibited when the discharge elevation was lower than the elevation of the lakes. In response to the Department's concerns and suggestions, the applicant modified its application on August 26, 1986, and submitted the modification to the Department and provided a copy to SFLDA. Upon review of the August 26, 1986, modifications to the application, the Department changed its position and at the time of the hearing in this case, the Department proposed to grant the application, as modified. The proposed stormwater management system is designed to serve all of Phase II of the Santa Fe Pass development, which consists of approximately 20 acres. Phase II contains an access road, tennis and racquet ball facilities, 50 cabanas or villas (constructed as duplexes) which will serve as overnight accommodations for a private club, a restaurant and other common buildings for recreational use, and a dry boat storage facility. These light intensity uses proposed for Phase II should result in relatively low concentrations of pollutants in the stormwater runoff. The impervious surface resulting from the construction of Phase II will involve less than 5% of the overall surface area contained in this phase of the development. In addition to serving Phase II, the proposed stormwater management system will also treat approximately 26,000 cubic feet of runoff generated from 43 acres of the Phase I residential development in a basin to be constructed in the northwest corner of Phase II. This Phase I acreage contains infrastructure and a few residential units but many of the one-acre, single-family lots have yet to be constructed. The treatment of runoff from this Phase I acreage is not required pursuant to Chapter 17-25, F.A.C. The construction of the holding facility will have the effect of improving stormwater runoff which currently discharges directly through a swale into Santa Fe Lake. This proposed improvement to the existing system is the result of an agreement between the developer and Alachua County. There are basically four types of treatment being provided in the proposed stormwater management system: Runoff from the tennis/racquet ball facility will be provided in the detention/filtration basin; The first 1 1/2 inches of runoff from the roadway which provides access to the project will be retained in eight-foot gravel shoulders underlain with sand; Retention basins will also be constructed in association with each of the overnight residential structures with treatment being provided by infiltration of runoff generated from the roofs of these structures; and One and one-half inches of runoff from 4.56 acres of Phase II will be treated (via extended settling biological uptake and adsorption) within a wet detention facility consisting of a man-made lake and a natural wetland/transitional area. Every aspect of the proposed stormwater management system exceeds the Department's design and performance criteria, and the evidence clearly establishes that the facilities comply with the best management practices and performance standards outlined in Chapter 17-25, F.A.C. The recreational facilities, roads, and residential units are treated by facilities which will provide adequate detention with filtration volumes or retention volumes. Section 17-25.04(5), F.A.C., specifies that an applicant must provide treatment for the first 1/2 inch of runoff or runoff from the first 1 inch of rainfall. In the instant case, the storage volume is increased by 50% because the receiving waters are designated Outstanding Florida Waters. Thus, runoff from the first 1 1/2 inch of rainfall from the tennis/racquet ball courts must be detained and filtered before being discharged to Lake Santa Fe. The required treatment will be provided in the proposed compensation basin and additional treatment will be provided in a 150-foot swale which will convey these treated waters to Santa Fe Lake. Similarly, in the case of the road surfaces and impervious roofs, the system is designed to collect and retain 1 1/2 inches of runoff from these facilities and treat that water through percolation into the soils before it moves laterally to the lake. The wet detention system is an innovative equivalent treatment proposal authorized in the equivalent treatment provisions in Section 17-25.04(5), F.A.C., and the design criteria for the proposed system has been promulgated by the Department based on the successful experiences of the South Florida Water Management District, which has for a number of years successfully permitted wet detention facilities. The proposed man-made lake has been properly sized and designed so as to maximize the physical, biological, and chemical processes which result from detaining stormwater runoff and promoting contact between the runoff and natural substrates. In the instant case, the man-made lake will provide the first form of treatment. It will then discharge at a specified elevation into a 19,000 square foot wetland/transitional area where natural polishing filtration functions will be performed by existing macrophytes and vegetation before being discharged through a control structure to Little Lake Santa Fe. In order to insure no threat of water quality degradation in the use of wet detention systems, the Department has promulgated policies and design criteria which require a doubling of the storage volumes which would otherwise be required should a more traditional retention or detention with filtration approach be utilized. For purposes of the instant case, this doubling results in the applicant treating 1 1/2 inches of runoff before it allows discharge into Little Lake Santa Fe, and that storage volume is twice (.75 inches) that which would otherwise be required even with the additional 50% treatment required for waters discharging into Outstanding Florida Waters. By employing the wet detention equivalent treatment approach and raising the control discharge elevation to 141.25 feet, the applicant has satisfactorily addressed the concerns that were previously expressed by the Department's original proposed agency action. The Petitioner's proposal, as modified, complies with all Department permitting criteria and there are no constraints or limitations which would preclude the system from operating as designed. The design for this system includes ample considerations for sediment, turbidity, and erosion controls during the construction phase of this project, and the operation and maintenance schedule will ensure continuing compliance with Department criteria. The design is sound, as demonstrated by the fact that analogous facilities have functioned as claimed. The biological and chemical interaction of the runoff with macrophytes contained in the littoral zones of the man-made lake and in the wetland/transitional polishing area will provide valuable nutrient assimilation and uptake. These natural treatment processes ensure that water quality standards will be satisfied and that no adverse water quality degradation will occur with respect to the receiving waters. The concentrations of pollutants in the waters discharged from the stormwater management facility would not exceed Class III water quality standards and would, in fact, be better than the ambient water quality documented in Little Lake Santa Fe and Lake Santa Fe. Even though the proposal, as modified, meets all of the Department permitting criteria, the proposal would be even better if the following changes were made to it. The oil skimmer device should be metal rather than wood. The littoral zone planting should be at 1 1/2 foot centers for the limited area east of the man-made lake where it connects to the natural wetland/transitional area. Reasonable storm event related monitoring should be conducted for one year following the completion of construction of the impervious surfaces specified in the application. Parameters to be tested should include suspended solids, turbidity, pH, conductivity, dissolved oxygen, nutrients, lead, zinc, and hydrocarbons. Samples (time weighted composite) should be collected at the outfall structure while the system is operating following four storm events during the year. The applicant does not object to making the changes described in this paragraph. The SFLDA's concerns were limited largely to the prospects of a washout due to an extraordinary storm event and doubts it possesses relative to the maintenance required for the system. There was no evidence presented, however, which indicate that a washout or severe disruption to the management system would occur except in extremely rare circumstances such as those attending a 100-year storm. The Department's rules and permitting criteria governing stormwater management systems do not, however, require an applicant to prevent discharges from stormwater management systems during extraordinary events, such as a 100-year storm. The applicant has, in this case, provided the necessary reasonable assurances that this facility will function as designed. The maintenance schedule presented by the applicant is facially sound, and the experts agreed that maintenance of the wet detention system would be minimal. The maintenance and operational features of this proposal are important; however, they are straightforward and the property owners association, which shoulders the burden of compliance, is properly equipped with the powers and authorities to insure successful implementation.
Recommendation Based on all of the foregoing, it is recommended that the Department of Environmental Regulation issue the requested stormwater discharge construction permit with the Department's standard permit conditions and with special conditions requiring the changes described in paragraph 7 of the findings of fact, above. DONE AND ENTERED this 24th of November 1986 at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1445 The following are my specific rulings on each of the findings of fact proposed by the parties. Findings proposed by Petitioner and Respondent Paragraphs 1, 2, and 3: Accepted in substance with some unnecessary details deleted. Paragraph 4: Accepted. Paragraphs 5, 6, and 7: (There are no paragraphs 5, 6, and 7 in the proposed findings submitted by the Petitioner and Respondent.) Paragraphs 8, 9, and 10: Accepted. Paragraphs 11 and 12: Accepted in substance with some unnecessary details and editorial remarks deleted. Paragraph 13: The first sentence of this paragraph is rejected as constituting argument rather than proposed findings. The remainder of the paragraph is accepted in substance. Findings proposed by Intervenor Paragraphs 1, 2, and 3: Accepted in substance with some unnecessary details omitted. Paragraph 4: Rejected as subordinate, unnecessary details (much of the material from this paragraph has been included in the introductory portion of this Recommended Order.) Paragraphs 5, 6, the seven unnumbered paragraphs following paragraph 6, and 7: Accepted in substance. Paragraph 8: Rejected as constituting primarily summaries of conflicting evidence and argument rather than proposed findings of fact. Further, portions of this paragraph are contrary to the greater weight of the evidence. Paragraph 9: Rejected as irrelevant. Paragraph 10: Rejected as irrelevant or as subordinate unnecessary details. Paragraph 11: Rejected as constituting a summary of testimony rather than proposed findings of fact. Also rejected as being inconsistent with the greater weight of the evidence. Paragraph 12: Rejected as irrelevant or as subordinate unnecessary details. Paragraphs 13 and 14: First sentence rejected as unnecessary commentary about the record. The remainder is for the most part accepted in substance with deletion of some unnecessary details and with modification of some details in the interest of accuracy and clarity. COPIES FURNISHED: Frank E. Matthews, Esquire Kathleen Blizzard, Esquire HOPPING BOYD GREEN & SAMS Post Office Box 6526 Tallahassee, Florida 32314 Bradford L. Thomas, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301 Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether Petitioner, Miami Yacht Divers, Inc., is entitled to reimbursement for cleanup costs.
Findings Of Fact The Respondent is the state agency charged with the responsibility of administering claims against the Florida Coastal Protection Trust Fund. Petitioner is a company located in Dade County, Florida, which performs commercial diving operations. Such operations include oil pollution containment and clean-up. At all times material to the allegations of this case, Dan Delmonico was the principal officer or owner for the Petitioner who supervised the operations of the company. In April of 1993, Mr. Delmonico discovered a fuel discharge next door to the premises of Defender Yacht, Inc., a company located on the Miami River in Dade County, Florida. The source of the discharge was an abandoned sunken vessel. This derelict vessel had no markings from which its ownership could be determined. Upon discovering the vessel, Mr. Delmonico did not contact local, state, or federal authorities to advise them of the discharge. Instead, Mr. Delmonico contacted several colleagues whose help he enlisted to assist him to clean up the discharge. In this regard, Mr. Delmonico procured the services of a diver and a crane company to remove the vessel from the water. Additionally, Mr. Delmonico utilized a boom and oil absorbent clean-up pads to remove the discharged fuel from the water. In total, Mr. Delmonico maintains it took four work days to complete the removal of the discharge and the salvage of the derelict vessel. At no time during this period did Mr. Delmonico contact local, state, or federal authorities to advise them of the foregoing activities. No official from any governmental entity supervised or approved the clean-up operation or salvage activity which is in dispute. After the fact Petitioner filed a reimbursement claim with the United States Coast Guard. Such claim was denied. Upon receipt of such denial, Petitioner filed the claim which is at issue in the instant case. In connection with this claim with Respondent, Petitioner submitted all forms previously tendered to the Coast Guard including the standard claim form, labor receipts, rental receipts, supply receipts, trailer and storage receipts, cash expenses, a job summary, and photographs. On or about September 20, 1996, Respondent issued a letter denying Petitioner's claim for reimbursement for expenses associated with the above-described salvage and clean-up activities. The grounds for the denial were the Petitioner's failure to obtain prior approval for the activities and the absence of "good cause" for the waiver of prior approval. Additionally, the Respondent maintained that Petitioner had failed to provide evidence that a pollutant discharge existed and that the removal of the vessel was necessary to abate and remove the discharge. It is undisputed by Petitioner that prior approval for the clean-up activities was not obtained. Petitioner timely disputed the denial and was afforded a point of entry to challenge such decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Petitioner's claim for reimbursement. DONE AND ENTERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathelyn M. Jacques Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 N. Paul San Filippo, Esquire Seidensticker & San Filippo Parkway Financial Center 2150 Goodlette Road, Suite 305 Naples, Florida 34102
The Issue The issue in this case is whether Suncoast Concrete, Inc. (Suncoast), is entitled to Permit No. 194919-003-SO, to construct and operate a construction and demolition debris disposal facility (C & D facility) in Santa Rosa County, Florida.
Findings Of Fact Petitioners Lois and Wallis Mahute live within two miles of the proposed C & D facility. Petitioner Nathaniel Williams, Jr., resides less than one mile from the proposed facility. Suncoast is a Florida corporation and is the applicant for Permit No. 194919-003-SO. The site of the proposed C & D facility is already permitted by the Department as a disposal facility for land clearing debris. It is located on U. S. Highway 90, 1.9 miles east of State Road 87. The disposal area is 7.2 acres on a parcel of land that is 57.8 acres. Suncoast provided all of the information required by the Department for applications for C & D facilities, including geotechnical data, hydrologic data, and financial assurance for closure. The proposed permit includes numerous conditions, including the use of an impermeable liner, groundwater monitoring, stormwater controls, leachate collection and storage, and access control. The requirement for an impermeable liner is uncommon for C & D facilities and adds greater protection for groundwater. Issues Raised by Petitioners Petitioners expressed concern about groundwater contamination. The required liner is designed to prevent rainwater that might become contaminated after contact with the materials in the landfill from entering the groundwater. The proposed facility would be located over some existing land clearing debris. The existing debris is located on part of one side of the proposed landfill. Before the liner is installed, the base would be prepared by covering the area with six inches of compacted soil. After the liner is installed, two feet of clean soil is placed on top of the liner. The liner would be installed in a manner to prevent the liner from being punctured or torn. Groundwater monitoring is required so that any contamination that occurs will be detected and remediated. There are no potable water wells within 500 feet of the proposed facility. The nearest public water supply well is approximately 4,000 feet away. Petitioners presented the testimony of Kyle Holley, who expressed his views on hydrogeologic conditions in the area. Mr. Holley is not a geologist or hydrologist and was not competent to testify regarding the hydrogeologic conditions in the area. Petitioners expressed concern about odors, but presented no competent evidence that foul or unhealthy odors would be generated by the facility. The permit conditions that require a small working face and weekly cover with soil would minimize odors. Petitioners expressed concern about fires, partly because fires have occurred at other C & D facilities. The evidence shows that the requirements of the proposed permit, including the prohibition against burning and requirements to maintain a small working face and to cover with soil on a weekly basis, would minimize the possibility of fires at the facility. The facility must maintain access for fire trucks to the disposal area so that, if a fire occurs, it can be suppressed. Petitioners expressed concerns that the facility would not be safely closed in the event that Suncoast became bankrupt or otherwise ceased operations at the facility. The evidence shows that the financial assurance requirements of the proposed permit provide a means to close the facility in the event that Suncoast was unwilling or unable to close the facility. Petitioners expressed concerns about the “pattern of abuse” by landfill owners. However, Petitioners presented no evidence that Suncoast has shown a pattern of noncompliance, or that the landfills where these alleged abuses have occurred are similar to Suncoast’s proposed C & D landfill with respect to physical conditions and permit requirements. Suncoast provided reasonable assurance by a preponderance of the evidence that the facility, with the conditions in the permit, will comply with all applicable rule requirements regarding the protection of groundwater, odor and fire control, and proper closure of the facilities. In summary, Suncoast proved by a preponderance of the evidence that it has provided reasonable assurance that the proposed facility meets all regulatory criteria for entitlement to Permit No. 194919-003-SO.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting Permit No. 194919-003-SO, subject to all the conditions set forth in the Department’s Notice of Intent to Issue, for the construction and operation of a construction and demolition debris disposal facility in Santa Rosa County, Florida. DONE AND ENTERED this 20th day of May, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2009. COPIES FURNISHED: Michael W. Sole, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandell, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 William J. Dunaway, Esquire Clark, Partington, Hart, Larry Bond & Stackhouse 125 West Romana, Suite 800 Pensacola, Florida 37502 Ronda L. Moore, Esquire Department of Environmental Protection Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Nathaniel Williams, Jr. 8984 Tara Circle Milton, Florida Wallis Mahute 32583 5500 Cox Road Milton, Florida 32583 Lois Mahute 5504 Cox Road Milton, Florida 32583
Findings Of Fact Upon consideration of the oral argument adduced at the hearing, the following relevant facts: In November of 1983, the Captiva Erosion Prevention District (CEPD) submitted an application from the DER to construct an experimental "on-site stabilization system along 650 feet of Captiva Erosion Prevention District. The application listed Petitioner Arthur Learned, president, Learned Engineering and Development, Inc. as authorized agent. Drawings attached to the application show a location plan, a site plan and a plat. Each drawing is on Learned Engineering and Development, Inc. letterhead and is signed by Arthur Learned. The application noted that the project was "ex* NOTE: The continuation of words on this paragraph line are unreadable as viewed in the original document on file in the Clerk's Office and therefore not available in this ACCESS document. judged harmful, can be undone." 3. A Joint U. S. Army Corps of Engineers Permit Application Appraisal was performed* NOTE: The continuation of this paragraph along with pages 3 and 4 of the original document on file in the Clerk's Office are not available therefore not included in this ACCESS document. limitations of authority of resident project representative." Petitioner notes in a letter to the CEPD that said duties are in addition to those normally provided by the Engineer as Owner's representative during construction. Among the listing of the duties of a Resident Project Representative (RPR) is a provision which states that through more extensive on-site observations of the Work in progress and field checks of materials and equipment by the RPR and assistants, ENGINEER shall endeavor to provide further protection for OWNER against defects and deficiencies in the Work; but the furnishing of such services will not make ENGINEER responsible for or give ENGINEER control over construction means, methods, techniques, sequences or procedures or for safety precautions or programs, or responsibility for CONTRACT0R's failure to perform the Work in accordance with the Contract Documents. At some point in February of 1986, the DER discovered that concrete had been used in a portion of the stabilizers. Petitioner met with the DER staff concerning this permit violation, and explained that concrete, rather than sand, was placed in the bags due to changed conditions. Petitioner was told that any change in design needed approval from the DER. By letter dated February 28, 1986, Petitioner requested a modification of the permit to include the substitution of concrete intersection as stabilizer tie-in and filler. The after-the-fact permit modification was granted by letter dated May 26, 1986, addressed to the petitioner. The modification allowed the use of concrete-filled bags to construct the most landward portion of the six permitted groins to a maximum length of 13 feet from the landward connection. It did not permit concrete bags beyond the 13 foot distance. On or about March 6, 1986, petitioner completed a Certificate of Substantial Completion for the Sand Core Filter Beach Stabilizers, indicating the date of substantial completion to be February 16, 1986. Prior to the modification authorized on May 26, 1986, the petitioner received a letter from DER dated March 24, 1986. This letter notified Mr. Learned that the permit did not authorize placement of concrete within the permitted sand bags, and that, in order to correct the outstanding violations, the concrete material must be removed from the sand bags. Petitioner was request to remove all sand bags that contained cement within fourteen days. Based upon DER's prior correspondence with petitioner Learned during the permitting process, as well as its investigation, on-site inspections, meetings, telephone conversations and a sworn affidavit from the Chairman of the CEPD regarding the CEPD's lack of knowledge of noncompliance with the conditions of a similar Department of Natural Resources' permit, DER staff believed that petitioner Learned (along with the contractor) was the responsible party in the decision to use concrete in the sand bags and that the CEPD relied upon the petitioner and the contractor to adhere to permit conditions. The DER did not review the contract documents regarding petitioner's services to the CEPD prior to instituting proceedings against the petitioner. On August 5, 1986, the DER issued a Notice of Violation and Orders for Corrective Action against Erosion Control Systems, Inc. and Learned Engineering and Development, Inc. The Findings of Fact contained therein recite that Learned Engineering and Development, Inc. and Erosion Control Systems, Inc. are the agent and contractor respectively for the CEPD. Violations of Chapter 403 were found and specific corrective actions were proposed. The corrective action to be taken was the removal of all concrete bags waterward of the 13 foot mark, the refilling of said bags with sand, the removal of any bags containing asphalt and the return of all disturbed areas to pre-removal conditions. Learned Engineering and Erosion Control Systems were also to make payment to the DER in the amount of $392.60 for expenses incurred in investigating the matter. On March 16, 1987, DER issued an Amended Notice of Violation and Orders for Corrective Action. This document named the Captiva Erosion Prevention District, Erosion Control Systems, Inc. and Learned Engineering and Development, Inc. as respondents, and noted that CEPD was the permittee, that petitioner Learned was the authorized agent on the project for CEPD and that Erosion Control Systems was the project contractor employed by CEPD. The Amended Notice is substantially similar to the initial Notice, but adds a further violation regarding the use of turbidity curtains during construction. It also adds a Count charging that Respondents Learned and Erosion Control conducted dredging and filling activities without a valid DER permit. The Orders for Corrective Action are identical to the initial Notice. DER subsequently resolved its dispute with the CEPD and, on March 11, 1988, filed a Notice of Voluntary Dismissal as to Erosion Control Systems and petitioner Learned Engineering. At the time of the initial Notice Of Violation and Orders for Corrective Action, petitioner was a for-profit corporation under the laws of Florida with its principal place of business in Venice, Florida. Due to financial difficulties caused, at least in part, by the DER's actions in the enforcement proceeding described above, Arthur Learned, President of Learned Engineering, closed the Florida office, semi-retired and moved to Georgia. Learned Engineering relocated to Georgia on January 1, 1987, and now has its principal place of business in Blairsville, Georgia. It does still maintain contacts in Florida and has recently performed other work in Florida. At all relevant times, Petitioner has had less than 25 employees and a net worth of less than $2,000,000.00. Petitioner incurred attorney's fees and costs in the amount of $5,127.07 in defense of the administrative proceedings described above.
Findings Of Fact The proposed site consists of some 311 acres bounded on the South by Alligator Alley (SR 84) and is approximately 6 1/2 miles East of SR 858. The existing solid waste disposal facility at the airport is exceeding the capacity of the area to absorb any additional solid waste. An approved federal grant for expansion and improvement of the Naples airport is contingent upon the cessation of further solid waste disposal at this site. The original deadline for discontinuing use of the airport disposal site of June 30, 1975 has been extended to allow the processing of the instant application. Of the numerous sites considered the one proposed herein was considered by local, state, and federal agencies to be the best overall. The proposed site meets the requirements of, and has been approved by the USDA Soil Conservation Service, the Department of Environmental Regulations, and various state health organization. The plans and specifications which have been submitted by the county and approved by the various agencies concerned called for an excavation of the site to a depth of approximately 3 feet, with the solid waste after compaction being placed in the ground and each layer thereafter placed on top and covered on a daily basis with soil. A perimeter canal will be constructed around the site to divert surface water from outside the site to prevent flooding the area. Interior canals will be installed to provide for collection of the leachate, as well as water falling on the site. The project includes construction of leachate sump ponds on the site, which will be coated to preclude the leachate from percolating into the surrounding area. An all weather access road will be provided to the site, and the only vehicles permitted on the site will be those controlled by the county and city, which would include their contractor for hauling waste. The routes for these vehicles would be such that they would not pass' over the Golden Gate Boulevard, which goes through the community of Golden Gate. At the hearing little new evidence was submitted. Intervenor appeared to take the position that its opposition to the project was based upon the fact that: (1) The site proposed could flood; (2) An impermeable barrier should be installed in all cells to preclude harmful materials from permeating the soil; and (3) Leachate from the cells could enter into the ground water table. Testimony with respect to these objections revealed: (1) The pumping system proposed is adequate to handle any flooding that may reasonably be anticipated; (2) The site is not located on a watershed that could go to a public water supply; (3) The site is some 5 or 6 miles from the nearest public water supply and not so located that surface water from the site could flow to a public water supply; (4) No place in Collier County meets the 5 foot separation provision between water table and place where waste could be dumped; The safeguards provided by the proposed plan qualifies this site for waiver of provision (4) above; (5) If an impermeable barrier was installed beneath the cells it would be ineffective in preventing surface water contamination in the event the site is flooded; (6) In the event the proposed system proves inadequate to control flooding, modifications in the then existing system could be made that would control this problem; and (7) Use of impermeable barrier below cells is but one design method to meet requirements of the various regulatory agencies.
