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.
Findings Of Fact Petitioner, SuperAmerica of Florida, Inc. (SuperAmerica) is affiliated with SuperAmerica Group, Inc., a corporation with headquarters in Lexington, Kentucky. SuperAmerica markets petroleum products from convenience store facilities in an eleven-state area concentrated in the Ohio Valley and upper Midwest. In 1985, SuperAmerica began constructing convenience store facilities in Florida, and opened its first stores in 1986. It installed state-of-the-art petroleum storage tanks, lines, dispensers and leak detection equipment at each new site. Casey McKenzie became SuperAmerica's administrative manager for its Florida facilities in October 1990. At that time there were approximately thirty-seven SuperAmerica convenience store facilities in Florida. Mr. McKenzie's duties included monthly reporting to corporate headquarters, environmental compliance, and emergency petroleum discharge response at the Florida sites. Mr. McKenzie left Florida in June 1993, after SuperAmerica completed its sale to Shell Oil Company of what was then over fifty sites. Virtually all of SuperAmerica's Florida sites had three separate tanks for different grades of gasoline, plus one tank for diesel fuel. The tanks were either 12,000 or 8,000 gallons in volume. Each site had between twelve and sixteen dispensers, and each dispenser had up to six nozzles for dispensing different grades of gasoline and diesel fuel. The Florida sites, including the sites at issue, experienced high volume sales as they were open twenty-four hours a day and were located in areas of heavy private and commercial traffic. The volume of sales required frequent storage tank refilling, sometimes daily or every other day. The volume of sales and frequent refillings made petroleum discharges in the form of spills, splashes and drips caused by human error a common occurrence. Customer overfill incidents involving small quantities of fuel were the most common occurrence. Other spills resulted when the underground storage tanks were being filled. SuperAmerica had procedures to minimize the risk of spills and to detect the spills or discharges. The tanks were all fitted with Gilbarco automatic tank gauging devices which computed volume of fuel and water in the tanks, the inches of fuel and water and the temperatures inside the tanks. Operators or staff also used long sticks to manually measure volume of fuel and water in the tanks. And a third method of measure was a daily sales inventory. Mr. McKenzie received the reports of these inventories on a periodic basis and store operators were instructed to watch for, and report unexplained discrepancies. To his knowledge, during his tenure as administrative manager, there were no unexplained discrepancies nor discrepancies in those inventories resulting from leaking tanks. At each site, including the sites at issue, there were six groundwater monitoring wells. The wells were generally installed during installation of the underground storage tanks in the same excavation pit. The monitoring wells were accessible through manhole covers on the surface of the concrete pad. Locked caps below the manhole covers were intended to maintain the environmental integrity of the wells. Water entered the wells through slots in the pipes which lined the well, from about a foot below the pad surface and extending below the water table. Prior to June 1991, the SuperAmerica area managers took water samples from the wells each month, performed sight and smell tests and recorded the results on an inspection report. Beginning in June 1991, SuperAmerica hired National Environmental Services and Testing (NEST) to perform the monthly groundwater sampling from the monitoring wells. NEST used a vapor monitoring device (organic vapor analyzer - OVA) in the monitoring wells to detect the pressure of organic vapors in addition to performing groundwater sampling. The monitoring wells at the seven sites at issue contained groundwater. At various times, as more specifically addressed below, NEST's monitoring reports for the sites at issue noted elevated organic vapor readings, odor present, and product in the form of skim, light skim, or sheen. Mr. McKenzie had procedures in place and carried out those procedures to respond to large volume spills or accidents above ground, as well as catastrophic leaks of underground tanks. These were his primary concerns. He did not expect a catastrophic leak in the relatively new equipment, and none occurred. Mr. McKenzie did not attribute any of the reports of elevated vapor readings, odor or presence of petroleum or diesel product in the form of skim or sheen, as evidence of tank or line failure. There are other rational explanations for the readings. Specifically, rainfall could easily dissolve and wash spilled fuel, antifreeze, oil or road grease into cracks in the pad, into manhole covers and onto the ground where it could easily seep into the monitoring wells. As conceded by counsel for SuperAmerica, there was a discharge at each of the seven sites, for purposes of the FPLRIP program. Printed text on the top of the Discharge Reporting Forms advises facilities of their obligation to report discharges or suspected releases within one day of discovery. For each site at issue, monitoring well records contained evidence of odor, product or elevated vapor readings more than one day prior to SuperAmerica's filing Discharge Reporting Forms. After filing Discharge Reporting Forms with DEP, Mr. McKenzie contacted Tanknology Corporation to schedule testing of the tanks and lines. The company was busy and was not able to complete the tests until some time (more than three days) after Mr. McKenzie filed the Discharge Reporting Forms. SuperAmerica did not intentionally cause a discharge at any of the sites, nor intentionally disable leak detection devices. When the Discharge Reporting Forms were filed, Mr. McKenzie was not aware of any spill or other discharge in excess of 25 gallons for which he had failed to file a reporting form within twenty-four hours. As of the date of the hearing there was no conclusive evidence of what caused the odor, product and elevated OVA readings in the monitoring wells. SuperAmerica's expert conjectures that they were caused by surface water runoff, sloppy transport deliveries, customer overfills and other routine problems of the high-volume facilities. In determining whether SuperAmerica was eligible under FPLRIP with regard to the sites at issue, DEP's program administrator, William Truman, considered only whether SuperAmerica properly reported suspected releases and whether it timely tested the storage systems. Those were appropriate considerations. The basis for denial as to each site is more specifically described below. On January 19, 1993, counsel for the parties executed a joint stipulation relating to an eighth facility site. In that stipulation, the agency recited its agreement that failure to report suspected releases within one working day of discovery could no longer, standing alone, serve as a basis for denial of restoration coverage eligibility under 1992 amendments to Chapter 376, Florida Statutes, governing FPLRIP. The stipulation also recited: Nothing in this Joint Stipulation shall be construed to mean that violation of the discharge response requirements contained in section 376.3072(2)(d), F.S. (1992) , and implemented in rules 17-769, 17-769.600(15) and (16), Florida Administrative Code is no longer a valid basis for denial of eligibility for restoration coverage on an incident by incident basis under FPLRIP. (Petitioner's Exhibit No. G) Hudson-DEP Facility No. 51-8837646 DOAH Case 92-6871 (Site 8023) At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system located at 9508 SR 52, Hudson, Pasco County, Florida. The facility consisted of four underground storage tanks (USTs): two 12,000 gallon gasoline USTS; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about March 1988. On August 21, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well five was 3800 ppm, while the OVA reading for monitor well six was 2800 ppm. On September 16, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four and six. The OVA reading for monitor well four was 1000 ppm, while the OVA reading for monitor well six was 2000 ppm. On October 15, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well four was 2400, five was 2900 ppm, and the OVA reading for monitor well six was 2200 ppm. On November 20, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well four was 3600, five was 3000 ppm, and the OVA reading for monitor well six was 6900 ppm. On December 4, 1991, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well four was 3100, five was 2800 ppm, and the OVA reading for monitor well six was 5100 ppm. On January 4, 1992, NEST sampled the monitor wells at the facility. There was an odor in monitor wells four, five and six. The OVA reading for monitor well four was 1100, five was 2400 ppm, and the OVA reading for monitor well six was 2900 ppm. On March 6, 1992, NEST sampled the monitor wells at the facility. There was product in monitor wells four, five and six. The report also indicates there was an odor in monitor wells five and six. The OVA reading for monitor well six exceeded 10,000 ppm. Elevated readings and odor persisted in well six in April and June. On July 14, 1992, NEST sampled the monitor wells at the facility. There was an odor in monitor wells five and six. The OVA reading for monitor well four was 1400 ppm, while the OVA reading for monitor well six was 2600 ppm. On or about July 24, 1992, SuperAmerica filed a Discharge Notification Form with the Department. The form was signed by Casey McKenzie. The form indicates the date of discovery was July 14, 1992 (the most recent date on which NEST sampled the monitor wells). The method of initial discovery was a Vapor Reading Report from Monitoring Company. The Type of pollutant discharged was Unleaded gasoline. The Cause of leak and Estimated number of gallons lost were both Unknown. On or about August 26, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a certificate of tightness. The test report commented that one dispenser had leaks at the nozzle when pumping and the tester had the store put an Out of Order sign on the nozzle. On or about September 1, 1992, the Department issued an order declaring SuperAmerica site no. 8023 eligible for FPLRIP restoration coverage for the reported discharge. On October 6, 1992, and again on October 21, 1993, the Department issued its amended orders of ineligibility for FPLRIP restoration coverage for the discharge reported. Melbourne-DEP Facility No. 05-8840685 DOAH Case 93-4402 (Site 8024) At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8024) located at 700 West New Haven Avenue, Melbourne, Brevard County, Florida. The facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about August 1988. On December 13, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product and an odor in all six wells. The OVA readings for the monitor wells ranged from 4200 ppm to 8500 ppm. On January 16, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product and an odor in all six wells. The OVA readings for the monitor wells ranged from 1200 ppm to 8000 ppm. On February 19, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product present in wells one, two, five and six. There was an odor in all six wells. The OVA readings for the monitor wells ranged from 2100 ppm to an excess of 10,000 ppm. On March 19, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product and an order in monitor wells one and five. The OVA readings for wells one and five both exceeded 10,000 ppm. Odor and elevated readings persisted in April. On June 20, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well six exceeded 10,000 ppm. There was odor in wells one, five and six. The report contains the notation Charlie will check early July. If readings have not declined, he will file DNF. On July 9, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA readings for the wells ranged from 220 ppm to 7100 ppm. There was odor in wells three, four, five and six. On July 17, 1992, Brevard County conducted an inspection of the facility. The Natural Resources Management Division of Brevard County is DEP's designated local program for purposes of the FPLRIP. The report noted the excess OVA readings since December. It required a tightness test and investigation into the source of the discharge, and it required a contamination assessment. It also noted that administrative action will be taken on this facility for major violation of 17-761, Florida Administrative Code . . . (Respondent's Exhibit No. 1) On or about July 21, 1992, SuperAmerica filed a Discharge Notification Form with the Department. The DNF indicates the date of discovery was July 9, 1992 - the date on which NEST sampled the monitor wells. The method of initial discovery was Vapor Readings. The Type of pollutant discharged was Unleaded gasoline. The Cause of leak and the "Estimated number of gallons lost were both Unknown. On or about July 28, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a certificate of tightness. On or about July 1, 1993, the Department issued its Order of Ineligibility for FPLRIP restoration coverage for the reported discharge. Cocoa-DEP Facility No. 05-8841566 DOAH Case 93-4402 and 93-4403 (Site 8034) At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8034) located at 1600 Clear Lake Road, Cocoa, Brevard County, Florida. The facility consisted of three underground storage tanks: two 12,000 gallon gasoline USTs; and one 8,000 gallon UST. The USTs were installed in or about January 1989. On December 13, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product present in well number five. There was an odor present in all of the wells. The OVA readings for wells one, two, three, four and six all exceeded 10,000 ppm. On January 16, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells one through four and well six. With the exception of well three, the OVA readings for all of the wells exceeded 10,000 ppm. On February 16, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in all of the wells. The OVA readings for the wells ranged from 2100 ppm to an excess of 10,000 ppm. On March 19, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in all of the wells. The OVA readings for the wells ranged from 4100 ppm to an excess of 10,000 ppm. On or about March 31, 1992, Brevard County conducted an inspection at site no. 8034. The Pollutant Storage Tank System Inspection Report Form cover sheet prepared by the Brevard County Inspector noted in part: From 12/31/91, OVA readings in all wells have exceeded reportable quantity (>500 ppm); in some instances, 5 wells >10,000 ppm. (Respondent's Exhibit No. 2) The Inspection form also noted the facility failed to report Suspected releases within one working day of discovery. The above-referenced Underground Storage Tank Compliance Inspection Form also noted the facility failed to report Confirmed releases (positive response of a release detection device) within one working day of discovery (Respondent's Exhibit No. 2). The form requires a DRF within one day and a tightness test ASAP. On or about March 31, 1992, SuperAmerica filed a Discharge Notification Form with the Department. The DNF was signed by Mr. Casey McKenzie. The DNF indicated the date of test or discovery was March 30, 1992. The method of initial discovery was a DER Compliance Audit. The DNF does not contain information concerning the estimated number of gallons lost. The Cause of leak and the Type of pollutant discharged were both Unknown. On or about April 5, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a tightness certificate. The test report noted no product visible in the monitoring wells, but odor was present. On July 1, 1993 and again on October 21, 1993, the Department issued its order and amended order of ineligibility for FPLRIP restoration coverage for the reported discharge. Sarasota-DEP Facility No. 58-8840985 DOAH Case 93-5734 (Site 8035) At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8035) located at 4405 North Washington Boulevard, Sarasota, Sarasota County, Florida. The facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about August 1988. On September 17, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product present in well six. There was an odor in all six wells. The OVA reading for wells one, two, three and five all exceeded 1500 ppm. On October 18, 1991, NEST sampled the monitor wells at the above- referenced facility. Both product and an odor were present in all six wells. The OVA readings for wells one through five exceeded 700 ppm. On November 22, 1991, NEST sampled the monitor wells at the above- referenced facility. Both product and an odor were present in all six wells. The OVA readings for wells one, two and five were 2200 ppm, 1200 ppm and 4000 ppm. On December 10, 1991, NEST sampled the monitor wells at the above- referenced facility. Product and odor were present in all six wells. The OVA reading for well five was 3100 ppm. On January 20, 1992, NEST sampled the monitor wells at the above- referenced facility. There was both product and an odor present in all six wells. The OVA reading for well five was 3200 ppm. On February 12, 1992, NEST sampled the monitor wells at the above- referenced facility. There was both product and an odor present in all six wells. The OVA reading for well two was 900 ppm. On March 11, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product in all six wells and odor present in wells one, two and five. The OVA reading for well two was 900 ppm. On April 12, 1992, NEST sampled the monitor wells at the above- referenced facility. There was both product and an odor present in wells one, two and three. On or about April 16, 1992, Sarasota County conducted a routine inspection at the above-referenced facility. The Sarasota County Pollution Control Division is DEP's designated local program agency for purposes of FPLRIP. On the Pollutant Storage Tank System Inspection Report Form the Sarasota County Inspector noted: Monitor wells 1, 2, 3 and 5 had OVA readings exceeding 5000 ppm. - High readings and product in wells has been recorded in monthly report by the facility since October, 1991. (Respondent's Exhibit 4) The inspector also noted the facility Has recorded high OVA readings in several MW's but not filed DRF. The County Inspector also noted the facility failed to report Any spill, overfill, or other discharge within one working day of discovery and that the facility failed to report Suspected releases within one working day of discovery. The County Inspector made the following notations on the back of the report: Monitoring well log indicates excessive contamination free product in all wells high OVA readings as [far] back as October '91 no records of any tightness testing in regards to the increase of contamination levels found in wells. DRF on file? (Respondent's Exhibit 4) A letter from Sarasota County dated April 22, 1992, required laboratory analysis of monitor well water within 45 days. The analysis was done by NEST and was provided to Sarasota County on June 29, 1992. On July 7, 1992, Sarasota County received the report and requested that SuperAmerica file a Discharge Reporting Form due to the appearance of excessive contamination. On or about July 15, 1992, SuperAmerica filed a DNF with the Department. The DNF indicates July 14, 1992 as the Date of receipt of test results or discovery. On or about August 29, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a certificate of tightness. On or about September 17, 1993, the Department issued its order declaring SuperAmerica ineligible for FPLRIP restoration coverage for the reported discharge. Clearwater DEP Facility No. 52-8944446 DOAH Case No. 93-4406 (Site 8036) At all times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8036) located at 4450 Easy Bay Drive, Clearwater, Pinellas County, Florida. The above- referenced facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about August 1989. On September 16, 1991, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 8000 ppm while the OVA reading for monitor well six was 3000 ppm. On October 17, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product and an odor present in well five. The OVA reading for well five was 8500 ppm. On January 1, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for wells four and five was 1100 ppm. On February 6, 1992, NEST sampled the monitor wells at the above- referenced facility. There was product present in well five. The OVA reading for well five was 400 ppm. On March 11, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 2800 ppm. On April 7, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 650 ppm. On July 13, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 1100 ppm. Casey McKenzie prepared a Discharge Notification Form but did not file it because he believed the local agency had instructed him to hold it pending further investigation. On or about August 28, 1992, Tanknology Corporation performed tank and line tests at the site and issued a Certificate of Tightness. On October 12, 1992, Pinellas County conducted a routine inspection at the above-referenced facility. The HRS Pinellas County Health Unit is the agency's designated local agency for FPLRIP. The County Inspector made the following notation on the Inspection Report Form Cover Page: What actions were taken in response to positive responses in one or more monitor wells for the following months - 10/91; 9/91; 11/91; 1/92; 2/92; 3/92; 4/92; 7/92 - provide copy of monitor these monitor reports - take appropriate actions at this time. (Respondent's Exhibit 5) On or about October 27, 1992, SuperAmerica filed the July 13, 1992 DNF with the Department. The DNF reflected a discovery date of July 13, 1992. The DNF indicated the method of initial discovery was a vapor reading from monitor well testing company. On or about July 1, 1993, the Department issued its order declaring SuperAmerica ineligible for FPLRIP restoration coverage for the reported discharge. Englewood-DEP Facility No. 08-8945143 DOAH Case 93-2710 (Site 8038) At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8038) located at 2710 South McCall Road, Englewood, Charlotte County, Florida. The facility consisted of four USTs: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about September 1989. On December 10, 1991, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 6200 ppm while the OVA reading for monitor well five was 9800 ppm. On January 20, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 2000 ppm while the OVA reading for monitor well five was 1100 ppm. On February 13, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 1500 ppm. On April 10, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 1100 ppm while the OVA reading for monitor well five was 5900 ppm. An Interoffice Memo dated April 24, 1992, from Mr. McKenzie to the manager of store no. 8038 provided in part: The monthly test of your store's monitor wells revealed the following results which need to be addressed: Monitor well number 5 showed vapor readings exceeding 5900 PPM. This is a reportable quantity to the DER. No previous results have show [sic] levels this high. (Petitioner's Exhibit 38C) This latter assertion is obviously in error given the fact that in December, 1991, the OVA reading for well four was 6200 ppm while the OVA reading for well five was 9800 ppm. On May 12, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well four was 2100 ppm while the OVA reading for monitor well five was 3000 ppm. On June 15, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 2500 ppm. On July 20, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well five was 1100 ppm. On or about July 24, 1992, SuperAmerica filed a Discharge Notification Form with DEP. The DNF was signed by Casey McKenzie. The DNF indicated the Date of Test or discovery was July 20, 1992. The method of initial discovery was Vapor Reading Report from Monitoring Reports. The estimated number of gallons lost and the cause of leak were both unknown. On or about September 1, 1992, Tanknology Corporation International performed tank and line tests at the site and issued a certificate of tightness. On September 4, 1992, Casey McKenzie wrote to DEP's South District Office with regard to the DNFs filed for Englewood Facility and the Punta Gorda Facility. With regard to SuperAmerica's failure to timely report the releases, the letter provided in part: In your letter, you refer to the elevated OVA readings recorded several months ago but not reported. This was simply an error on my part. SuperAmerica began utilizing an outside contractor to perform monitor well sampling at these locations in December. Prior to that, we performed the monthly sampling ourselves using the sight and smell method appropriate for ground water well monitoring... I was not aware of the thresholds for reporting of vapor levels. I was aware we had no sheen or odor present. When our contractor and I finally discussed the importance of the vapor readings and the ramifications involved, we immediately filed Discharge Notification Forms for suspected releases. . . Any errors made in reporting were due to lack of knowledge on my part, ... (Respondent's Exhibit 3) Mr. McKenzie's assertion of ignorance cannot be reconciled with the statements set forth in his Interoffice Memo dated April 24, 1992. See paragraph 85, above. On or about April 23, 1993, and again on October 20, 1993, DEP issued its order and amended order declaring SuperAmerica ineligible for FPLRIP restoration coverage for the reported discharge. Punta Gorda-DEP Facility No. 08-9045849 DOAH Case 93-2711 (Site 8039) At all material times, SuperAmerica was the owner/operator of its petroleum storage tank system (site no. 8039) located at 3035 Tamiami Trail, Punta Gorda, Charlotte County, Florida. The facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gallon gasoline UST; and one 8,000 gallon diesel UST. The USTs were installed in or about January 1990. On December 10, 1991, NEST sampled the monitor wells at the above- referenced facility. There was product in well four. There was an odor in all of the wells. The OVA readings for wells one, three, four, five and six all exceeded 10,000 ppm. On January 20, 1992, NEST sampled the monitor wells at the above- referenced facility. The OVA reading for well two was 600 ppm; well three was 4500 ppm; well four was 900 ppm; and well five was 2500 ppm. On February 20, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two, three and five. The OVA reading for well one was 6000 ppm; wells two and three were in excess of 10,000 ppm; well four was 4100 ppm; and well five was 3800 ppm. On March 9, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two, three and five. The OVA reading for well two was in excess of 10,000 ppm; well three was 2000 ppm; and well four was 3000 ppm. 26 On April 10, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two and three. The OVA reading for well two was 1500 ppm while the OVA reading for well three was 550 ppm. On May 14, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two and three. The OVA reading for well two was 2200 ppm while the OVA reading for well three was 1100 ppm. On June 15, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in well two. The OVA reading for well two was 7300 ppm; well three was 1500 ppm; and well four was 1100 ppm. On July 20, 1992, NEST sampled the monitor wells at the above- referenced facility. There was an odor present in wells two and three. The OVA reading for well one was in excess of 10,000 ppm; well three was 2000 ppm; and well four was 3100 ppm. On or about July 24, 1992, SuperAmerica filed a Discharge Notification Form with the Department. The DNF was signed by Casey McKenzie. The DNF was dated July 24, 1992. However, the DNF did not include the information as to the date of test or discovery of the discharge. The cause of the leak and the estimated number of gallons lost were both unknown. The DNF indicated the method of discovery was a Vapor Reading Report from Monitoring Company. On or about August 27, 1992, the agency conducted an inspection at Site 8039. During the inspection, no obvious odors were detected in the monitoring wells, indicating that there may have been errors in the original OVA readings. The agency directed SuperAmerica to have groundwater samples analyzed. The analysis was provided to the agency on October 27, 1992. On or about August 27 and September 4, 1992, Tanknology Corporation International performed tank and line tests at the sight and issued certificates of tightness. On or about April 23, 1993, and again on October 20, 1993, DEP issued its order and amended order declaring SuperAmerica ineligible for FPLRIP restoration coverage for the reported discharge. North Ft. Myers-DEP Facility No. 36-8631544 DOAH Case 93-4405 (Site 8006) At all material times, SuperAmerica was the owner/operator of a petroleum storage tank system (site no. 8006) located at 4600 Bayline Drive, North Ft. Myers, Lee County, Florida. The facility consisted of four underground storage tanks: two 12,000 gallon gasoline USTs; one 8,000 gasoline UST; and one 8,000 gallon diesel UST. The tanks were installed on or about April 1987. In or about November 1992, SuperAmerica hired Environmental Science and Engineering, Inc. (ESE) to perform an environmental audit in conjunction with SuperAmerica's planned sale of the property. On January 7, 1993, ESE was performing soil borings in the tank farm and pump island areas. Soil samples were being analyzed for the presence of excessive contamination, if any. Those borings were made with a four-inch diameter hand auger. At boring SB-2, near the easternmost fuel island, the ESE employee cracked the fiberglass midgrade unleaded product line with the hand auger causing an underground discharge. SuperAmerica discovered the discharge on January 16, 1992 and filed a Discharge Reporting Form on that same date. On July 1, 1993, DEP issued its Order denying SuperAmerica eligibility for restoration coverage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Environmental Protection enter its final order denying eligibility to SuperAmerica in cases nos. 92-6871, 93-2710, 93- 2711, 93-4402, 93-4403/93-4404, 93-4406 and 93-5734; granting eligibility in case no. 93-4405; and dismissing case no. 93-2712 (voluntary dismissal). DONE and ENTERED this 6th day of March, 1996, in Tallahassee, Florida. MARY CLARK 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 6th day of March, 1996. APPENDIX TO RECOMMENDED ORDER The findings of fact proposed by both parties, or stipulated by the parties, have been adopted in whole or in substance, except for the following: SuperAmerica's Proposed Findings of Fact. Rejected as unnecessary or immaterial: 11-17, 20-23, 26-29, 39-40, 48-52, 59-66, 72-75, 79-87, 90- 92, 94-96, 98, 101, 104, 106-107, 109-147, 166, 173, 181,183, 203, 211-212, and 220. Rejected as contrary to the weight of evidence or unsupported by credible evidence: 97, 108, 149-155. DEP's Proposed Findings of Fact. These findings have all been adopted in substance. Additional findings have been made however, to explain the background and include facts common to all of the sites. COPIES FURNISHED: Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road, Suite 654 Tallahassee, Florida 32399 Kenneth Plante General Counsel 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Gary M. Pappas, Esquire POPHAM, HAIK, SCNOBRICH and KAUFMAN, LTD. 4000 International Place 100 Southeast Second Street Miami, Florida 33138 James M. Ellerbe, Esquire SuperAmerica Group Law Department 3499 Dabney Drive Lexington, Kentucky 40509
The Issue The issue for determination is whether Redd’s Cleaners, DEP Facility No. 139502588 is eligible for state-administered cleanup under the Drycleaning Solvent Cleanup Program pursuant to Section 376.3078, Florida Statutes.
Findings Of Fact Metropolitan Dade County (Petitioner) is a political subdivision of the State of Florida. Pursuant to Chapter 24, Metropolitan Dade County Code, Petitioner regulates, among other things, the use, storage, and disposal of industrial wastes and hazardous substances in Dade County. Sekoff Investments, Inc. (Intervenor) is a Florida corporation and is the owner of commercial real property located at 5821 Ponce de Leon Boulevard, Coral Gables, Florida. Intervenor is a "real property owner" as defined by Section 376.301(25), Florida Statutes (1995). Florida Department of Environmental Protection (Respondent DEP) is an agency of the State of Florida. Pursuant to Chapters 20, 376, and 403, Florida Statutes, Respondent DEP has jurisdiction, among other things, over the regulation and protection of the State's surface waters, groundwater, and other natural resources. From 1956 to December 1994, Intervenor leased its property to "drycleaning facilities," as that term is defined by Section 376.301(8), Florida Statutes (1995), which operated under the name "Redd's Cleaners" (Respondent Cleaners). Intervenor was not an owner of the drycleaning facilities, nor did it participate in their management or operation. Intervenor's property has never been served by sewers and has a septic tank. Intervenor's property is not in an area served by private drinking water wells or in a cone of influence of a County wellfield. Starting in 1988, Petitioner began inspecting drycleaning facilities and requiring them to obtain operating permits pursuant to Section 24, Metropolitan Dade County Code. On February 28, 1989, Petitioner issued Operating Permit No. IW5-3387-88 to Jen-Dan, Inc., d/b/a Respondent Cleaners. Operating Permit Nos. IW5-3387-89, IW5-3387-90, IW5-3387-91, IW5-3387-92, and IW5-3387-94 were subsequently issued for the period between April, 1989 through April, 1995. On October 14, 1993, Petitioner collected soil and groundwater samples from the septic tank and storm drain/soakage pit at Intervenor's property and discovered elevated levels of perchloroethylene, a "drycleaning solvent," as that term is defined by Section 376.301(9), Florida Statutes (1995). On March 15, 1994, Petitioner issued Respondent Cleaners and Intervenor a Notice of Violation and Orders for Corrective Action (NOV). The NOV provided that the presence of drycleaning solvents in the septic tank and storm drain/soakage pit violated Sections 24-11, 24-13, 24-14, 24-26, and 24-55, Metropolitan Dade County Code, and ordered Respondent Cleaners and Intervenor to submit a formal plan for the assessment and cleanup of the drycleaning solvent contamination. The cited provisions of the Dade County Code generally provide that it is unlawful to throw, drain, run, seep, or otherwise discharge industrial or liquid wastes into septic tanks, sewers, or waters of the County; to cause or maintain a nuisance or sanitary nuisance as defined by the Metropolitan Dade County Code; or to violate any provision or condition of an operating permit. Intervenor hired the environmental consulting firm, REP Associates, Inc., which prepared and submitted to Petitioner a Contamination Assessment Plan (CAP) dated April 21, 1994. By letter dated May 5, 1994, Petitioner approved the CAP with modifications, and required the immediate pump out and disposal of the contaminated contents of the septic tank and storm drain/soakage pit. In May and June, 1994, Intervenor began collecting soil, groundwater, and sediment samples from the septic tank and storm drain, and installed a groundwater monitoring well, as required by the CAP. The test results disclosed the presence of drycleaning solvents in the soils and groundwater at Intervenor's property. The contaminants in the septic tank and storm drain/soakage pit were a source or a likely source of soil and groundwater contamination at the facility. On May 8, 1994, Respondent DEP announced that it was suspending all enforcement actions against drycleaning facilities based on the Florida Legislature's anticipated passage of the Florida Drycleaning Solvent Contamination Cleanup Act (Drycleaning Act). On June 3, 1994, the Drycleaning Act became effective. On August 23, 1994, Petitioner mailed Intervenor and Respondent Cleaners a Final Notice Prior to Court Action stating that they were not in strict compliance with the deadlines set forth in the NOV. On September 22, 1994, Intervenor submitted to Petitioner a Report of Sampling and Analysis summarizing the results of the work performed in May and June, 1994. By letter dated September 23, 1994, Intervenor further advised Petitioner that it would be applying for participation in the Drycleaning Solvent Contamination Cleanup Program (Drycleaning Cleanup Program) as soon as Respondent DEP promulgated the necessary implementation rules. Intervenor proposed that Petitioner approve a no further action plan pending its notice of eligibility under the Drycleaning Act. By letter dated September 30, 1994, Petitioner disapproved Intervenor's no further action plan. Petitioner again notified Intervenor and Respondent Cleaners that they must immediately remove and dispose of the contents of the septic tank and storm drain. In December, 1994, Intervenor evicted Respondent Cleaners. Since that date, the former drycleaning facility has remained vacant. On July 18, 1995, Intervenor's environmental consultants removed and properly disposed of the contents of the septic tank and storm drain. 18.1 On October 3, 1995, Intervenor's consultants advanced new soil borings and installed a new groundwater monitoring well. Groundwater samples were collected on October 24, 1995. 19.2 On February 21, 1996, Intervenor submitted its Contamination Assessment Report Addendum to Petitioner, summarizing the results of the work performed in July and October, 1995, and requesting a monitoring only plan (MOP). By letter dated February 29, 1996, Petitioner disapproved Intervenor's proposed MOP. 20. In March 1996, Respondent DEP began to accept applications for the Drycleaning Cleanup Program. Intervenor submitted its application for Respondent Cleaners on March 8, 1996. 21.3 By letter dated June 11, 1996, Respondent DEP approved Intervenor's application and determined that Respondent Cleaners' drycleaning facility was eligible to participate in the Drycleaning Cleanup Program. By Petition for Formal Administrative Hearing served July 11, 1996, Petitioner appealed Respondent DEP's eligibility determination. According to Petitioner, Intervenor's failure to timely comply with Petitioner's order to assess and remediate Respondent Cleaners constitutes gross negligence in the operation of the cleaner, thereby precluding its eligibility in the Drycleaning Cleanup Program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order finding Redd's Cleaners, DEP Facility No. 139502588 eligible to participate in the Drycleaning Solvent Contamination Cleanup Program.DONE AND ENTERED this 14th day of May, 1997, in Tallahassee, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1997.
Findings Of Fact Petitioner owns and operates a gasoline station located at 4625 U.S. 27 North, Davenport, Florida. The site was constructed in late 1986 and opened in early 1987. The underground tanks storing the gasoline are connected by pipes running underground to the pumps from which the gasoline is dispensed. A small portion of the underground supply pipe is accessible from the surface through a manhole. The excavated area exposing the pipe and what appears to be a valve are separated from the surrounding soil by a large, cylindrical corrugated pipe laid perpendicular to and above the underground supply pump. The leak in question was caused when the lower edge of the corrugated pipe cut into the underground supply pipe for the premium gasoline. The cut was caused by the cumulative effect of vehicular traffic driving over the manhole cover, placing pressure on the corrugated pipe, and eventually forcing the edge of the corrugated pipe to rupture the underground supply pipe with which it was in contact. Petitioner owns and operates a large number of gasoline stations. This incident is the first time that a corrugated pipe has cut into an underground supply pipe. The use of the corrugated pipe is not at issue in the present case. Pursuant to company policy, station employees complete a daily recap each day and forward the recap document to Petitioner. Part of the recap document is devoted to "gas inventory." The daily recap, which covers the preceding 24 hours, requires that an employee determine the amount of gasoline in each underground storage tank, adjust the figure for amounts sold and delivered, and then compare the figure to the amount determined to have been in the tank 24 hours earlier. This reconciliation is normally completed by mid- to late-morning each day. A station employee "sticks" each tank to determine how much gasoline it contains. The procedure requires that the employee insert a pole into the bottom of an underground tank. By observing the length of the pole dampened by gasoline, the employee can calculate approximately the amount of gasoline in the tank. Although stick reading results in an approximation, the results are fairly accurate, leaving at most, in the case of this 12,000-gallon tank, a margin of error of 50 gallons. "Sticking" normally takes place daily between 6:30 a.m. and 7:00 a.m. On the morning of March 6, 1988, which was a Sunday, the employee sticking the tank calculated that the premium tank held 5419 gallons. There had been no deliveries during the preceding 24 hours. During the same period, the station had sold 914 gallons of premium gasoline. However, the last sticking 24 hours earlier had disclosed 7989 gallons. A total of 1656 gallons were thus unaccounted for. The recap document requires that the station notify Respondent's "Dist. Mgr. immediately if shortage of 500 gallons or more appears." The employee failed to do so. On the morning of March 7, 1988, the employee sticking the premium tank calculated that it held 2147 gallons. During the preceding 24 hours, there had been no deliveries and 826 gallons of premium gasoline had been sold. Consequently, 2446 gallons were missing, for a total of 4102 gallons over the past two stickings. As soon as the reconciliation was completed, the employee contacted Respondent's management, which ordered that the pump be shut down during the afternoon of March 7, 1988. Comparing the sales of premium gasoline for the 24- hour period ending March 8 with those ending March 7, which are comparable because the sale of regular gasoline on those two days is almost identical, the station sold about 39% of a normal day's sales of premium gasoline. Reflecting the shutdown of the premium pumps on March 7, the employee sticking the tank on the morning of March 8, 1988, found 593 gallons. During the preceding 24 hours, there had been no deliveries and sales of 321 gallons of premium had been sold, leaving 1233 gallons unaccounted for. The total over the three stickings was 5335 gallons lost. The station had previously not experienced losses even approaching this magnitude. The daily recap for the 24-hour period ending on March 5, 1988, showed no significant loss. Although fluctuations in volume may occur shortly after deliveries due to temperature differentials, such fluctuations could not reasonably have accounted for these vast discrepancies. Theft, measurement errors, and recording errors may also account for variations in readings, but not of the magnitude and repetition involved in this case. Between the time of the reconciliation on the morning of March 6 and the system shutdown on the afternoon of March 7, the system continued operating and, thus, leaking for 28-30 hours. Given that 2446 gallons were lost during the 24-hour period ending on March 7 and 1233 gallons lost during about 9 hours on March 8, at least 100 gallons per hour were escaping from the pipe during these last 28-30 hours, for a total of between 2800 and 3000 gallons. For reasons discussed in the Conclusions of Law, the actions and omissions of the station employees following the reconciliation of inventory figures on March 6 constituted gross negligence in the maintenance of a petroleum storage system. These actions and omissions were in the scope of employment. During the relevant period of time, none of Respondent's employees performed monthly checks of the monitoring wells to determine the presence of leaks. This failure was due to ignorance and was not wilful. This failure in no way contributed to the leak or to any delay in discovering the leak. During the relevant period of time, the monitoring wells had not been properly grouted to prevent introduction of surficial contamination. However, this failure was unknown to Petitioner, which had hired a contractor to construct the wells and reasonably had relied on the contractor to grout properly the monitoring wells. The improper grouting in no way contributed to the leak or to any delay in discovering the leak. During the relevant period of time, Petitioner was not performing weekly or five-day averages of inventory records concerning gasoline. The failure to perform these reconciliations in no way contributed to the leak or to any delay in discovering the leak. Following the discovery of the leak, Petitioner notified Respondent on March 8. Petitioner requested approval to participate in the Early Detection Incentive Program by filing a Notification Application dated March 29, 1988. On July 14, 1988, Respondent completed the Pollutant Storage Tank System Inspection Report Form and Early Detection Incentive Program Compliance Verification Checklist. These documents indicate that Respondent was not monitoring monthly its monitoring wells, failed to grout properly its monitoring wells, was not performing the weekly or five-day averages of inventory (although it was taking daily inventory and reconciling opening and closing inventories), and did not immediately investigate the 1600-gallon shortage disclosed on the morning of March 6, 1988. By letter dated September 30, 1988, Respondent notified Petitioner that its site was ineligible for state-administered cleanup under the Early Detection Incentive Program. The letter cited as reasons the wilful failure to perform monthly checks of the monitoring well, the failure to immediately investigate discrepancies in inventory records while the system continued to operate after initial discovery of the 1600-gallon loss, and the improper construction of the monitoring well with respect to the improper grouting. The letter concludes that these items constitute gross negligence in the maintenance of a petroleum storage system, which precludes participation in the program.
Recommendation Based on the foregoing, it is hereby recommended that the Department of Environmental Regulation enter a Final Order denying the application of Petitioner to participate in the Early Detection Incentive Program. RECOMMENDED this 26th day of March, 1990, in Tallahassee, Florida. ROBERT E. MEALE 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 26th day of March, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1561 Treatment Accorded Proposed Findings of Petitioner 1-4: adopted. 5-6: adopted in substance. 7-16: adopted. 17: rejected as unsupported by the greater weight of the evidence. 18-20: adopted or adopted in substance. 21: to the extent that this proposed finding suggests that Petitioner was performing the five-day or weekly averaging, rejected as unsupported by the greater weight of the evidence. However, in view of the findings and conclusions contained in the Recommended Order, rejected as unnecessary. 22-26: adopted. Treatment Accorded Proposed Findings of Respondent 1-4: rejected as conclusions of law. 5-6: adopted. 7-16: rejected as subordinate. 17: rejected as an inference unsupported by the greater weight of the evidence. 18-26: adopted. 27: rejected as irrelevant. 28-29 and 31: rejected as legal argument. 30: adopted. 32: adopted. 33: adopted except that the system was shut down at some point into the day of the second sticking showing a significant shortage. 34-38: adopted or adopted in substance. 39: rejected as speculation. 40: rejected as irrelevant. 41-42: adopted. 43: rejected as irrelevant. 44-45: rejected as subordinate. 46: adopted. 47-49: rejected as subordinate. 50: adopted. 51-53: rejected as vague with respect to reference to "Racetrac." 54: adopted. 55: rejected as cumulative. 56-57: rejected as unnecessary. COPIES FURNISHED: Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Steven M. Mills Decker & Hallman Suite 1200 Marquis II Tower 285 Peachtree Center Avenue Atlanta, GA 30303 Michael P. Donaldson Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue in this case is whether Petitioner's site located at 13292 N.W. 118th Avenue in Miami, Florida is eligible for reimbursement of the costs of petroleum contamination cleanup pursuant to Section 376.3071(12), Florida Statutes.
Findings Of Fact Petitioner Rinker Material Corporation ("Rinker") owns and operates a site known as the Rinker FEC Quarry located at 13292 N.W. 118th Avenue, Miami, Florida 33127 (the "site"). At the Site, Rinker operated three (3) one thousand (1,000) gallon tanks which stored waste oil, virgin oil and hydraulic fluid. The DER Facility ID Number for the Site is 138628827. On December 2, 1988, Petitioner, as part of a tank replacement program that it was attempting to conduct in compliance with the applicable state and county regulations, began excavating the three underground storage tanks at the Site. During the excavation, a visible sheen was discovered. At the time of the excavation on December 2, 1988, Alan Gillespie of the Dade County Environmental Resource Management (DERM) was present to conduct a closure inspection of the Site. The December 2, 1988 closure inspection was conducted for Dade County DERM in its own capacity and not as an agent for DER. The purpose of the December 2, 1988 visit by Alan Gillespie was to inspect the removal and closure of the three 1,000 gallon tanks containing, respectively, waste oil, new oil and hydraulic fluid. Mr. Gillespie's inspection indicated that, while there appeared to be no holes in the tanks, free product was visible. Mr. Gillespie noted in his inspection report, dated December 2, 1988, that the contamination was not caused by a tank leak, but, instead, by overspills caused by the pouring of waste oil into the tank, spilling locally around the riser and then contaminating the soil around the tank. Rinker took samples at the Site and submitted them to a laboratory for analysis. It is not clear when the laboratory report was returned, but it generally takes two (2) weeks to obtain the laboratory analysis. Upon receipt of the laboratory report, Rinker initiated its efforts to apply for participation in the Inland Protection Trust Fund for reimbursement or site rehabilitation. In order to participate in the Inland Protection Trust Fund, an applicant was required to submit an Early Detection Incentive Program Notice (the "EDI Form") to DER prior to midnight on December 31,. 1988. The back of the EDI Form states that the form must be filed with and received by DER during the 15 month grace period beginning July 1, 1986 and ending October 1, 1987. The EDI program was; originally scheduled to end on September 30, 1987. However, the deadline for filing was extended by the legislature to December 31, 1988. The EDI Notification Form was not amended to change the dates to reflect subsequent amendments to the reporting date made by the legislature. While the back of the EDI Application Form indicates that the notification form must be filed with and received by DER on or prior to the initial deadline, DER considered as timely all applications with a postmark on or before the extended deadline of December 31, 1988. Petitioner's EDI Form for the Site was prepared by William Voshell, environmental manager for Rinker. Mr. Voshell was out of the state during the last few days of December, 1988. Petitioner's EDI Form was reviewed and signed by William Payne as Vice President of Real Estate for Rinker, on Friday, December 30, 1988. William Payne was informed by Mr. Voshell that the EDI Forms needed to be sent out before the end of the year. A cover letter accompanying the EDI Form for the Site was signed for Mr. Voshell by his secretary, Linda Vasquez on December 30, 1988. After signing the EDI Form, William Payne returned the application to Linda Vasquez to "process to mail". He reminded her that it had to be mailed that day. Ms. Vasquez placed the EDI Form and the cover letter in the Petitioner's mail system on December 30, 1988. The Certified Mail Number P 533059801 appears on the envelope containing Petitioner's EDI Form. January 3, 1989 was the first business day of 1989. The envelope containing the EDI Form was postmarked January 3, 1989. A certified mail return receipt attached to the envelope containing the EDI Form and cover letter shows that the return was stamped by the post office on January 3, 1989. The postal receipt for the EDI Form and cover letter was returned to Rinker from the post office on January 3, 1989. DER received Petitioner's EDI Form for the Site on January 9, 1989. Petitioner's normal procedure is to internally meter regular mail and affix a postmark date. However, certified or registered mail is metered and taken to the post office for processing. Registered mail received in the Petitioner's mailroom on December 30, 1988 should have been metered and taken to the post office for processing the same day or at the latest the next business day (December 31st, a Saturday). After the EDI Form was filed but prior to the eligibility determination, Petitioner was required to submit Site characterization information and documentation of the Site conditions before the initiation of cleanup. The evidence did not establish the expense or costs incurred by Rinker in gathering this information. Prior to ruling on Petitioner's EDI application, DER, through DERM, conducted an eligibility inspection at the Site. Alan Gillespie of DERM conducted the EDI eligibility inspection on April 20, 1989. During an EDI inspection, the inspector examines and reports on the existing conditions of a facility including: recordkeeping, the age of the tanks and the conditions of the monitoring wells and whether there is any negligence involved with the contamination that has occurred. During the April 20, 1989 inspection, Alan Gillespie reported that the three 1,000 gallon underground tanks had been removed and replaced with a new aboveground petroleum storage system. On the EDI inspection report, Mr. Gillespie reported evidence of soil contamination and/or recent product loss and noted that such contamination was discovered at the time of tank removal. After completion of the April 20, 1989 inspection report, Mr. Gillespie's supervisor at DERM sent the report to DER in Tallahassee. In 1989, final Early Detection Incentive Program or Reimbursement Program eligibility determinations were made in Tallahassee by DER. At the time of the EDI eligibility inspection of the Site on April 20, 1989, the role of Dade County DERM was only to conduct an EDI inspection at the site and to forward the information to Tallahassee. Prior to making an eligibility determination on the Site, Patricia Dugan, Environmental Administrator of the DER Petroleum Cleanup Reimbursement Section, reviewed the EDI application, the inspections from DERM, documentation of the site conditions prior to initiation of cleanup and the envelope that the application came in. On November 23, 1989, DER issued an order finding the Site to be ineligible for participation in the Reimbursement Program. Initially, Petitioner's reimbursement application was deemed ineligible because of mixed contamination (i.e., the Site contained used oil) and because the application was deemed untimely. Subsequent to the date of the denial, certain legal decisions made it clear that, contrary to DER's position, sites containing used oil were eligible for participation in the Reimbursement Program. Thus, the only remaining predicate for DER's denial of Rinker's application is that the application was not timely filed. Because Petitioner's EDI application was postmarked on January 3, 1989, after the December 31, 1988 statutory deadline, the Petitioner's application was deemed untimely by DER. DER's policy of relying on the postmark date for purposes of determining timeliness was informally arrived at in 1987. DER has never promulgated a rule on this matter nor conveyed its interpretation to affected parties. Petitioner could have and would have internally placed a postmark date of December 30, 1988 on the envelope containing the EDI Form had it been aware of DER's policy.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order approving Petitioner's application for eligibility under the state's reimbursement program. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of July, 1990. J. STEPHEN MENTON 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 23rd day of July, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Proposed Findings of Fact: Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 3, 9 and 10. Adopted in substance in Findings of Fact 17 and 20. Adopted in substance in Findings of Fact 20. Adopted in substance in Findings of Fact 26. Adopted in substance in Findings of Fact 22, 36, 37 and 38. Adopted in substance in Findings of Fact 37 and 38. Adopted in substance in Findings of Fact 40. Adopted in substance in Findings of Fact 41. Rejected as constituting argument rather than a finding of fact. Rejected as argument rather than a finding of fact. The Respondent's Proposed Findings of Fact: Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 25. Adopted in substance in Findings of Fact 22. Adopted in substance in Findings of Fact 21. Adopted in substance in Findings of Fact 17. Adopted in substance in Findings of Fact 16. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 19. Adopted in substance in Findings of Fact 20. Adopted in substance in Findings of Fact 23. Adopted in substance in Findings of Fact 24. Rejected as constituting argument rather than a finding of fact. Adopted in substance in Findings of Fact 22. Rejected as unnecessary and irrelevant. Adopted in substance in Findings of Fact 15. 17. Adopted in substance in Findings of Fact 15. 18. Adopted in substance in Findings of Fact 37, 38 and 39. 19. Adopted in substance in Findings of Fact 4. 20. Adopted in substance in Findings of Fact 5. 21. Adopted in substance in Findings of Fact 6. 22. Adopted in substance in Findings of Fact 7. 23. Adopted in substance in Findings of Fact 8. 24. Adopted in substance in Findings of Fact 28. 25. Adopted in substance in Findings of Fact 29. 26. Adopted in substance in Findings of Fact 30. 27. Adopted in substance in Findings of Fact 31. 28. Adopted in substance in Findings of Fact 32. 29. Adopted in substance in Findings of Fact 33. 30. Adopted in substance in Findings of Fact 34. 31. Adopted in substance in Findings of Fact 36. 32. Adopted in substance in Findings of Fact 35. 33. Adopted in substance in Findings of Fact 37. 34. Adopted in substance in Findings of Fact 39. 35. Adopted in substance in Findings of Fact 15. 36. Adopted in substance in Findings of Fact 12. 37. Adopted in substance in Findings of Fact 14. 38. Adopted in substance in Findings of Fact 15. 39. Adopted in substance in Findings of Fact 36, 37 and 38. COPIES FURNISHED: Richard A. Pettigrew, Esquire Morgan, Lewis & Bockius 200 South Biscayne Boulevard Miami, Florida 33181 Janet E. Bowman Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale W. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
The Issue The issue in this case is whether, under Section 57.111, Florida Statutes, Respondent is liable for attorneys' fees and costs incurred by Petitioner in an earlier proceeding. The purpose of the earlier proceeding was to determine the eligibility of Petitioner's site for state-administered cleanup of discharge from a petroleum storage system under the Early Detection Incentive program described in Section 376.3071(9), Florida Statutes.
Findings Of Fact Petitioner informed Respondent of a pollutant discharge at Petitioner's gasoline station by filing a Discharge Notification Form on March 9, 1987. The form states that the discovery was made on March 5, 1987, as a result of a manual test of one or more monitoring wells. The form is marked "unknown" in response to questions concerning the estimated gallons lost, the part of storage system leaking, the type of tank, the cause of leak, and the type of pollutant discharged, although next to the last response are the typewritten words: "appears to be motor oil." A cover letter from Petitioner dated March 5, 1987, accompanied the Discharge Notification Form. The letter restates that the source of pollution is unknown, but adds that "there is a possibility that [the pollution] is the result of a septic tank, drain field discharge." The letter discloses that Blackhawk Environmental Services, Inc. ("Blackhawk") and NEPCCO/IT are investigating "to determine the extent of the contamination as well as the source." The letter provides the name and telephone number of the Blackhawk employee for further information. A separate cover letter from the Blackhawk employee to Respondent states that the notification was being submitted for consideration for Site Rehabilitation Reimbursement Costs. The letter also states that the site has been the subject of groundwater contamination from an "unknown source." Following the notification, Orlando Laboratories, Inc. submitted to Blackhawk a written analysis of the groundwater at the site. The report, which is dated March 19, 1987, contains quantitative data without any interpretation and was submitted without interpretation to Respondent on March 20, 1987. Petitioner applied to participate in the Early Detection Incentive ("EDI") Program by filing an EDI Program Notification Application dated March 23, 1987, together with a cover letter of the same date. The application supplied no more information than did the notification form. In response to the question as to the type of product discharged, Petitioner circled the choice, "used oil," but added the word, "possibility." Although the application may not have been immediately filed, Respondent received it prior to July, 1987. As part of a site inspection, an employee of Respondent prepared an Early Detection Incentive Program Compliance Verification Checklist, which was dated April 28, 1987. The checklist notes that Blackhawk "is looking into problem [and] will forward results from lab when available." The checklist also states: Odor found in E[ast] & W[est] M[onitoring] W[ells]. No other contamination found on site. Site has old waste oil tank on site that could possibly be contaminating drainfield next to tank. Also old abandoned tank (since 1967) on site. Asked owner to investigate tank's conditions. If not needed, he will remove & adjust registration accordingly. Floordrain in shop area dumps into on-site septic tank which could also contribute. The repeated mention of motor oil is due to at least two factors. First, a Blackhawk employee had mentioned to Belvin Marr, who owns and operates Petitioner, that the contaminant "looked like" motor oil. Second, Mr. Marr knew that he had, for many years, discarded used motor oil down a floordrain leading into a septic tank with an onsite drainfield. By letter dated July 22, 1989, Respondent informed Petitioner that its site was ineligible for state-administered cleanup under for the EDI program described in Section 376.3071(9), Florida Statutes. The letter states that the decision was "based upon information given in this [Notification Application] and a compliance verification evaluation of your reported site." The July 22 letter explains that the site is ineligible because, according to the application and district inspection: the source of contamination at Marr's Exxon has been attributed to used oil. Petroleum, as defined by Section 376.301(9), Florida Statutes (F.S.), included [sic] only crude oil and other hydrocarbons in the form in which they are originally produced at the well. Petroleum product, as defined by Section 376.301(10), F.S., means fuel in its refined state which is similar in nature to fuels such as diesel fuel, kerosene, or gasoline. Used oil cannot be considered "petroleum" or "petroleum products" because it has become unsuitable for its original purpose due to the presence of impurities or loss of original properties. Therefore, your site, which is contaminated by unrefined used oil, is not eligible for participation in Early Detection Incentive (EDI) Program. The July 22 letter advises Petitioner that he could obtain administrative and judicial review of the decision by filing a petition within 21 days of the date of receipt of the letter. The letter thus provided Petitioner with a clear point of entry. By letter dated July 30, 1987, Petitioner requested a 30-day extension to allow for retesting. Additional testing took place in early August, 1987. However, there is no indication that the resulting data, which again omit textual interpretation, were submitted to Respondent until the filing of the more definite statement described in the following paragraph. The next communication between Petitioner and Respondent took place when Petitioner requested a formal hearing by filing a Petition for Hearing dated August 26, 1987. By Order for More Definite Statement entered September 14, 1987, Respondent ordered Petitioner to file a more definite statement. By Response to Order for More Definite Statement dated September 28, 1987, Petitioner filed a more definite statement. The additional test data were attached to the more definite statement, although they are not in the DOAH case file. The Response offers the following chronology with all dates being approximate dates. March 5, 1987: Respondent notified of groundwater contamination from unknown source. March 20, 1987: analysis of contamination conducted by Orlando Laboratories, Inc. and forwarded to Respondent. March 23, 1987: Petitioner applied for participation in Early Detection Incentive ("EDI") program, and the application is attached to the More Definite Statement. April 27, 1987: Compliance Verification checklist issued. July 22, 1987: Respondent denied Petitioner's application. July 30, 1987: Petitioner requested 30-day extension to conduct further testing, the results of which are attached to the More Definite Statement. August 26, 1987: Petitioner requested formal administrative hearing. Following receipt of the more definite statement, Respondent forwarded the pleadings to the Division of Administrative Hearings for assignment of a Hearing Officer to conduct a hearing. The pleadings were received on October 9, 1987, and the file was assigned DOAH Case No. 87-4448. In a Motion for Continuance filed on January 14, 1988, Respondent asserted that the case involves the issue whether "used oil," which was what had been discharged at Petitioner's facility, is a "petroleum product." The motion refers to a pending case, Puckett Oil v. Department of Environmental Regulation, and states that this case, which had been heard in September, 1987, involves the same question. By Motion for Continuance filed on May 13, 1988, Respondent requested a continuance on the same grounds as previously cited and represented that Petitioner had no objection. An internal memorandum of Respondent dated March 17, 1988, acknowledges that Petitioner requested a review of the available data based on an "inaccurate assessment by his contractor." Reviewing the data, some of which had been provided after July 22, 1987, the memorandum notes that the majority of the contamination is from gasoline, but the involvement of the drainfield as the source of contamination "is the reason eligibility was denied." After the issuance of the final order in Puckett Oil v. Department of Environmental Regulation, 10 FALR 5525 (September 1, 1988), Respondent, filing a Motion to Set Hearing Date, disclosed that "[Respondent's] review of the Final Order indicates that Petitioner's site remains ineligible for SUPER Act funding." However, on July 28, 1989, the parties filed a fully executed Joint Stipulation and Motion to Dismiss. An Order Closing File, which was entered the same date, returned the matter to Respondent for final disposition consistent with the stipulation. The Joint Stipulation and Motion to Dismiss states: On July, 22, 1987, [Respondent] denied eligibility for the [EDI] Program, Section 376.3071(9), Florida Statutes, to [Petitioner's) site . . .. The basis for the denial was that the site was contaminated with used oil. Subsequent to [Respondent's] denial, Petitioner conducted a series of ground water tests to more accurately determine the nature and extent of contamination at the site. The results of that testing indicate that the site was contaminated with significant amounts of gasoline constituents and minor amounts of used oil constituents emanating possibly from a septic tank drainfield and a used oil storage facility. The gasoline constituents exist at levels many times that of the other constituents. Based upon the overwhelming contribution to the overall contamination presented by the gasoline constituents, [Respondent] agrees that the presence of minor amounts of contaminants from something other than a tank should not preclude [Petitioner's] site from being eligible for the EDI Program. [Respondent reserves the right not to pay for the cost of cleanup of contamination not related to discharge from a tank.] WHEREFORE Petitioner . . . and Respondent request that the hearing officer adopt this stipulation . . . and retain jurisdiction for an award of attorney's fees and costs (Fla. Stat. Sect. 57.111 (1986 Supp.) and Fla. Admin. Code Rule 22I-6.035). . .. The parties stipulated that Petitioner was a small business party. The parties also stipulated to reasonable attorneys' fees of $6625 and costs of $4690. Following the final hearing, Petitioner filed supplemental affidavits showing, in connection with the prosecution of the subject case and not the earlier proceeding, additional attorneys' fees of $1875 and costs of $490.85.
The Issue The issue to be determined in this case is whether CJC Properties, Ltd. (CJC), is eligible for state restoration funding assistance under the Petroleum Contamination Participation Program or the Florida Petroleum Liability and Restoration Insurance Program for one or more discharges of gasoline at DEP Facility No. 378943938 (“the facility”).
Findings Of Fact The Facility CJC is a Florida Limited Partnership. It is the current owner of property located at 5691 U.S. Highway 27 North, in Tallahassee. Prior to CJC’s acquisition of the property, the property was owned by Carolyn J. Chapman, John W. Chapman, Jane Chapman Latina, and Carolyn Chapman Landrum (“the Chapmans”). The property was leased to various entities and operated as a gas station. The tanks and dispensers remained in service until November, 1995. The last operator of the facility was Lake Jackson 76, Inc. There were five underground petroleum storage tanks at the facility. Before 1991, one of the tanks at the facility was used for regular, leaded, gasoline. When leaded gasoline was phased out, the tank was used for unleaded gasoline. Site Assessments and Sampling Data On November 30, 1995, the Chapmans employed Petroleum Contractors, Inc., to remove the five storage tanks. During the tank removal, Environmental and Geotechnical Specialists, Inc. (“EGS”) performed an assessment to determine whether the facility was contaminated with petroleum or petroleum products. The Underground Storage Tank Removal Report prepared by EGS noted that all five tanks appeared to be intact. Soils in the tank pit wall and bottom were not discolored. No significant contamination was observed directly below the tanks. Soil from the tank pit was stockpiled on the site. EGS observed no significant signs of contamination of this soil. The soil stockpile was also screened with a Flame Ionization Detector Organic Vapor Analyzer (OVA). No organic vapors were detected. An OVA detects any organic vapor, but is used as a screening tool to find petroleum vapors. Department rules require that an OVA reading be performed both unfiltered and filtered. The filtered reading screens out everything but methane and is “subtracted” from the unfiltered reading to determine the presence of petroleum vapors. Twenty-four soil samples were taken from various depths at nine locations in the tank pit. These samples were tested using an OVA. Nine of the soil samples, taken from four locations, had corrected OVA readings indicative of petroleum contamination. EGS concluded that “soil contamination detected in the tank pit is likely the result of a leak in the piping” between the dispensers and the tanks. Soil samples were also taken from three borings in the vicinity of the dispenser island and OVA-tested. In boring D-2, organic vapors were detected from the surface to a depth of approximately seven feet. The OVA readings from D-2 declined with depth. EGS reported that “some contamination was detected beneath a dispenser; however, it does not ‘appear’ to significantly extend below six (6) feet.” EGS did not report both filtered and unfiltered OVA readings for the soil samples taken from the dispenser area, as it had done for soil samples taken from the tank pit and the stockpile. For the dispenser area soil samples, EGS reported a single OVA reading for each sample, without indicating whether the reading was “corrected” after filtering. For this reason, the Department contends that these data are unreliable. CJC points out that EGS stated in the text of its report that the soil samples were filtered. CJC also argues that, because the filtered OVA readings for soil samples taken from the tank pit area were not different from their unfiltered readings, the OVA readings for the soil samples from the dispenser area would not have changed after filtering. The preponderance of the evidence is that the contamination in the dispenser area was petroleum. Based on EGS’ findings during the tank removal in November 1995, Petroleum Contractors, Inc., filed a Discharge Reporting Form on December 1, 1995, stating that there had been a discharge of unleaded gasoline at the facility. In January 1996, the Chapmans applied to participate in FPLRIP based on the discharge reported on December 1, 1995. By order dated January 26, 1996, the Department determined that the reported discharge was eligible for state-funded remediation assistance under FPLRIP. In 1997, another consultant, Levine Fricke Recon (LFR) conducted a site assessment at the facility and submitted its Interim Site Assessment Report to the Department. As part of its own soil sampling at the site, LFR collected a “direct push” soil boring in the dispenser island area, near the place where EGS had reported organic vapors. The boring data showed no petroleum vapors until the interval 16-to-20 feet below ground surface. LFR also collected and analyzed groundwater samples from the site. It reported that a sample taken from beneath the former diesel dispenser contained lead. Because lead occurs naturally in soils, its presence in a water sample does not confirm that a discharge of leaded gasoline occurred. In 1998, LFR conducted a second assessment of the facility site. It installed and sampled four shallow monitoring wells, designated MW-1S through MW-4S, and three deep monitoring wells, designated MW-2D through MW-4D. Groundwater samples from MW-3S and MW-3D were analyzed for lead, ethylene dibromide (EDB), and 1,2-Dichloroethane. All three substances are usually detected in a groundwater sample contaminated with leaded gasoline. On August 28, 1998, LFR submitted its Interim Site Assessment II to the Department, which shows lead and EDB were found in a sample taken from MW-3S, but not 1,2-Dichloroethane. LFR did not conclude or express a suspicion in either of its two assessment reports that leaded gasoline had been discharged at the facility. The deadline for submitting a Discharge Reporting Form or written report of contamination was December 31, 1998. A site assessment report received by the Department before January 1, 1999, which contained evidence of a petroleum discharge, was accepted by the Department as a “report of contamination.” The petroleum discharge information received by the Department before January 1, 1999, consisted of the Underground Storage Tank Removal Report, the FPLRIP claim, the Interim Site Assessment Report, and the Interim Site Assessment Report II. Post Deadline Site Assessment Data After the statutory deadline, LFR submitted its Interim Site Assessment III. This report includes January 1999 groundwater sampling data from four monitoring wells which show the presence of low levels of EDB. When EDB is found in a groundwater sample, it is a common practice to re-sample the well from which the sample was taken. Of the wells that showed the presence of EDB, only MW- 10D was re-sampled, after January 1, 1999. There was no EDB present in the groundwater when MS-10D was re-sampled. In June 2000, as part of the remediation of the contamination at the facility, an area of contaminated soil was removed to a depth of 14 feet. The area of soil removed included the former dispenser area. In January 2003, the Department notified CJC that the $300,000 FPLRIP funding cap would soon be reached. In March 2003, CJC signed a Funding Cap Transition Agreement, acknowledging that “At no time will the DEP be obligated to pay for cleanup of this discharge any amount that exceeds the funding cap.” CJC further acknowledged that it “is responsible for completing the remediation of the discharge in accordance with Chapter 62-770, F.A.C.” In 2005, CJC re-sampled one of the monitoring wells for lead and EDB. Neither substance was present. The site is not currently being actively remediated. Periodic groundwater sampling indicates that concentrations of contaminants are dropping. No further active remediation has been proposed. The cost to complete remediation is a matter of speculation. The record evidence is insufficient to make a finding about future remediation costs. Eligibility Determinations On September 2, 2003, CJC submitted a PCPP Affidavit to the Department, seeking state funding under PCPP. On October 30, 2003, the Department denied CJC eligibility for PCPP funding on the basis that the contamination was covered under FPLRIP and, therefore, was excluded from funding under PCPP. The Department has never granted PCPP eligibility for the cleanup of a discharge previously being funded under FPLRIP. Apparently, in 2005, CJC hired Glenn R. MacGraw, an expert in the assessment of petroleum-contaminated sites, to review the EGS and LFR assessments. In a letter to CJC’s attorney dated August 19, 2005, MacGraw expressed the opinion that “at least 2 discharges have occurred on this site, one in the former tank area, and one in the former dispenser area.” MacGraw’s opinion that there had been a discharge of leaded gasoline was based on the detection of EDB and lead in the groundwater. He also thought the presence of methyl tetra-butyl ether (MTBE) in groundwater samples taken from the tank pit area showed a tank leak of unleaded gasoline. CJC requested FPLRIP funding for the other alleged discharges at the facility. On March 23, 2006, the Department issued a letter formally stating its disagreement that there were other reported discharges and denying eligibility for FPLRIP funding. On March 30, 2006, the Department issued an Amended Order of Ineligibility under PCPP. The amended order added a second ground for denial, that the reported discharge was not shown to have occurred before January 1, 1995. Whether There Was A Second Discharge Eligible for Funding CJC argues that the presence of lead and EDB in the groundwater sample taken from MW-3S shows that there was a discharge of leaded gasoline at the facility. However, LFR reported that the well screen for MW-3S had probably been damaged during installation, because a significant amount of filter sand was observed in the purge water. The Department contends, therefore, that the source of the lead detected in the groundwater sample from MW-3S could have been (naturally) in the soil that entered the well. The Department also discounts the detection of EDB in the groundwater sample because EDB is an ingredient of some pesticides and can show up in groundwater when pesticide has been applied to the overlying land. Furthermore, EDB was not detected in the groundwater sample taken from MW-3D, a deeper well located near MW-3S. MacGraw does not think the EDB came from a pesticide application, because the EDB contamination at the site occurs in an elongated “plume,” in the former dispenser area, whereas one would expect to see EDB distributed evenly over the site if the source was a pesticide application. MacGraw mapped the plume of EDB by using data obtained after the discharge reporting deadline. Michael J. Bland, a Department employee and expert in geology and petroleum site assessment, believes the data from the facility are insufficient to confirm the presence of EDB or its distribution. LFR reported in its Interim Site Assessment that no significant soil contamination was found near the dispenser island. Groundwater samples from MW-3D, a deep monitoring well near MW-S3, showed no EDB, lead, or 1,2-dichlorothane. Bland opined that, if the detection of EDB in the shallow well was reliable, EDB would have been detected in the deep well, too, because EDB is a “sinker.” EDB is persistent in groundwater, so when it is not detected when a well is re-sampled, reasonable doubt arises about the detection in the first sample. Of all the wells sampled in 1999 that showed EDB, only MW-10D was re-sampled in 2003. When the well was re-sampled, there was no EDB. CJC contends that EDB was not found in the re-sampling of MW-10D because of the soil removal in 2000, but the Department contends that the soil removal would not have affected the presence of EDB in MW-10D, because the well is significantly down-gradient of the area of soil removal. It was undisputed that the presence of 1,2- dichoroethane in MW-S3 was not reliably determined. There is insufficient evidence in the record to establish that the contamination reported in the dispenser area is the source of contamination which persists at the facility. The reported contamination only affected the top six feet of soil. The soil removal to a depth of 14 feet in that area in 2000 should have fully remediated the reported contamination. The data upon which CJC relies in claiming eligibility under FPLRIP or PCPP for a second discharge are, at best, incomplete and ambiguous. CJC failed to prove by a preponderance of the evidence that a discharge of leaded gasoline occurred. CJC also failed to prove that the reported contamination in the dispenser is associated with a discharge that still exists to be remediated with state assistance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order determining that CJC is ineligible to participate in the Petroleum Cleanup Participation Program for the discharge reported to the Department on December 1, 1995, and that CJC has not demonstrated eligibility to participate in the Petroleum Cleanup Participation Program or the Florida Petroleum Liability and Restoration Program for any other discharges. DONE AND ENTERED this 9th day of July, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2008.
The Issue Whether Petitioner's service station site known as Siesta Key Exxon Village, at 5201 Ocean Boulevard, Sarasota, Florida, is eligible for state administered cleanup pursuant to Section 376.3071(9), Florida Statutes.
Findings Of Fact Weeks Oil Company, Inc., owns and operates a service station, Siesta Key Exxon, located at 5201 Ocean Boulevard, Sarasota, Florida. On December 21, 1988, Petitioner applied, pursuant to the Early Detection Incentive Program (EDI), for state assistance due to a suspected discharge of gasoline at the facility. The application indicated that a manual test of a monitoring well, conducted on December 16, 1988, detected contamination. After free product was discovered in the monitoring wells in December, 1988, subsequent monitoring well reports for the months of January - May, 1989, indicated the presence of free petroleum product. The January, 1989, monitoring report indicates six inches of free product; the February, 1989, monitoring report indicates twelve inches of free product; the March, 1989, report failed to indicate the presence of free product; and both the April and May, 1989, monitoring reports indicate the presence of sixteen inches of free product. Purity Well Company, the monitoring well contractor retained by Weeks Oil, bailed free product out of the monitoring wells once a month during the period January through May, 1989. On May 23, 1989, Richard Steele of the Sarasota County Pollution Control Division conducted an Early Detection Incentive Program Inspection at Siesta Key Exxon, 5201 Ocean Boulevard, Sarasota, Florida, DER Facility #588521170. During the inspection, Mr. Steele examined the monitoring well reports for Siesta Key Exxon for the months of January through May, 1989. Evidence of contamination was indicated by each month's monitoring well report, and the amount of free product indicated by the monitoring well reports increased over time. During the May 22, 1989, inspection, Mr. Steele observed a minimum of two feet of free product in monitoring well number three. As part of the Early Detection Incentive Program inspection, Mr. Steele requested inventory records for Siesta Key Exxon, which records were provided on June 7, 1989. Inventory records for January, February, March and April, 1989, indicated a total shortage of 441 gallons of gasoline. Mr. Steele's inspection report of May 22, 1989, indicates that no initial remedial action other than the bailing of monitoring wells occurred subsequent to the December, 1988, EDI application. During the May 22, 1989, inspection, Mr. Steele was neither provided with any evidence of repairs to the petroleum storage system made for the purpose of acting upon monitoring well reports, nor did he visually observe any evidence of repair. By letter dated May 24, 1989, from Richard Steele to Weeks Oil Company, Mr. Weeks was informed of the presence of two feet of free product in monitoring well number three and specifically requested a tank tightness test. The May 24, 1987, letter requested Mr. Weeks to send the results of the tank tightness test to the Sarasota County Pollution Control Office or the Department of Environmental Regulation district office. Mr. Weeks discussed with Steele the fact that the contaminants appeared to come from tanks no longer in service, which tanks were scheduled for relining. Mr. Weeks did not consider it practicable to test tanks scheduled for relining and thought Steele agreed that he could delay the testing until the tanks were refitted. Mr. Steele never made such a commitment, and the tank test was never conducted. On October 20, 1989, the tanks at Siesta Key Exxon were excavated and fiberglass coated. The August 22, 1989 ineligibility determination cites as the reason for denial, the failure of Weeks Oil to conduct a tank tightness test as requested by Sarasota County or otherwise immediately investigate and repair the contamination source as required by Chapter 17-61, Florida Administrative Code, The ineligibility letter concludes that failure to immediately investigate and repair the contamination source as required by Chapter 17-61, Florida Administrative Code, shall be construed as gross negligence in the maintenance of a petroleum storage system, which precludes participation in the Early Detection Incentive Program. A tank tightness test should be performed by the owner or operator of a petroleum storage system where there are any discrepancies in inventory records or monthly monitoring system checks. Rule 17-61.050(4)(c) 3., Florida Administrative Code, requires upon discovery of an inventory discrepancy that investigation of the system "shall not stop until the source of the discrepancy has been found, the tank has been tested, repaired, or replaced, or the entire procedure has been completed." Pursuant to Rule 17-61.050(6), Florida Administrative Code, the owner or operator of a storage system shall test the entire storage system whenever the Department has ordered that such a test is necessary to protect the lands, ground waters, or surface waters of the state. Specifically, the Department may order a tank test where a discharge detection device or monitoring well indicates that pollutant has been or is being discharged. Given the inventory record discrepancy and the amount of free product continually observed in the monitoring wells at Siesta Key Exxon, it was appropriate for Mr. Steele to request a tank tightness test. The bailing of a contaminated monitoring well is not an appropriate method of determining the source of petroleum contamination. The failure of Weeks Oil Company, Inc., to timely conduct a tank test as requested by Sarasota County, acting on behalf of the Department, creates a risk of or the potential for greater damage to the environment because a continual unchecked discharge leads to the release of more petroleum product into the environment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the application of Petitioner to participate in the Early Detection Incentive Program. ENTERED this 3rd day of May, 1990, in Tallahassee, Florida. K. N. AYERS, 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 3rd day of May, 1990. COPIES FURNISHED: Janet D. Bowman, Esquire Department of Environmental Regulation Twin Towers Office Building 2400 Blair Stone Road Tallahassee, FL 32399-2400 James B. Weeks, Jr. Weeks Oil Company Post Office Box 100 Sarasota, FL 34230 Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
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 Petitioner is eligible to continue participating in the Drycleaning Solvent Cleanup Program.
Findings Of Fact Petitioner, Sunset Square General Partnership, is the owner of Sunset Square Shopping Center located in Clearwater, Florida, and in which Tux Cleaners, Department of Environmental Protection Identification No. 529501419, was a tenant conducting a drycleaning business. At all times relevant hereto, the Sunset Square Shopping Center was managed by the Stuart S. Golding Company on behalf of Sunset Square General Partnership. At all times relevant to this proceeding, Tux Cleaners was owned and operated by Angelo Guarnieri. In June 1996, Petitioner submitted an application to participate in the Drycleaning Solvent Cleanup Program (Program/ Drycleaning Solvent Cleanup Program). The application was signed by a representative of Petitioner and by Guarnieri. David Scher, an employee of the Stuart S. Golding Company, was listed on the application as the contact person for Petitioner. All applications to the Drycleaning Solvent Cleanup Program are joint applications that include the real property owner, the operator of the drycleaning facility, and the owner of the drycleaning facility. Thus, in this instance, the applicant was Petitioner, the owner of the real property on which the drycleaning facility was located, and Guarnieri, the owner and operator of the facility. Petitioner was listed as the "designated applicant" on the aforementioned application filed with the Department. The "designated applicant" served to advise and provide the Department with a single point of contact. Upon review of Petitioner's application, the Department determined that Petitioner met the prescribed eligibility requirements for participation in the Drycleaning Solvent Cleanup Program. Thereafter, by letter dated September 27, 1996, the Department notified Petitioner that its site, Tux Cleaners, was eligible for participation in the Drycleaning Solvent Cleanup Program. The letter advised Petitioner that its "participation in the Program is contingent upon continual compliance with the conditions of eligibility set forth in Section 376.3078(3), F.S." At the time Petitioner's letter of eligibility was issued, Section 376.3078(7), Florida Statutes (1995), required that owners and operators of drycleaning facilities install secondary containment by January 1, 1997. This statute was enacted in 1995, the year before Petitioner was determined eligible for participation in the Drycleaning Solvent Cleanup Program. To maintain its eligibility in the Drycleaning Solvent Cleanup Program, Petitioner was required to install secondary containment at Tux Cleaners by January 1, 1997. As of January 1, 1997, secondary containment had not been installed at Tux Cleaners. Consequently, on January 2, 1997, Petitioner and Tux Cleaners were no longer in compliance with the eligibility requirements for participation in the Drycleaning Solvent Cleanup Program. On January 21, 1998, Margaret Hennis, a Pinellas County environmental inspector, conducted an inspection of Tux Cleaners as part of a Title V compliance inspection. During the inspection, Hennis discovered that Tux Cleaners did not have the required secondary containment and advised Guarnieri that secondary containment needed to be installed. Guarnieri then informed Hennis that the equipment had been ordered in late 1997. Guarnieri initially ordered secondary containment for Tux Cleaners in June 1997 but cancelled the order because he thought the business had been sold. When the business was not sold, Guarnieri reordered the secondary containment in late 1997, almost one year after it should have been installed. There is no evidence that the secondary containment was ever delivered to Tux Cleaners; and it clearly was never installed at Tux Cleaners. Prior to becoming eligible for the Drycleaning Solvent Cleanup Program, Petitioner hired an environmental consultant, who subsequently advised Petitioner to apply for participation in the Program. After the application of Petitioner and Tux Cleaners was approved, Petitioner believed that the environmental consultant would monitor the drycleaning facility to ensure that the site was in continual compliance with Program eligibility requirements. Although Petitioner and Guarnieri submitted a joint application to the Department, they never discussed the need to install secondary containment at Tux Cleaners. It was only after receiving the February 26, 1998, letter described below that Petitioner had actual knowledge of the secondary containment requirement. Accordingly, Petitioner never asked Guarnieri whether the secondary containment had been installed or directed Guarnieri to install the required secondary containment. Furthermore, Guarnieri never discussed with Petitioner the January 1997 inspection of Tux Cleaners, Hennis' notification that secondary containment needed to be installed, or any matters relative to Guarnieri's ordering and reordering of the secondary containment. By letter dated February 26, 1998 (notice of cancellation), the Department notified Petitioner of its intent to cancel Petitioner's eligibility for participation in the Drycleaning Solvent Cleanup Program and of the reason for the cancellation. According to the notice of cancellation, the reason for the cancellation was that Tux Cleaners had "fail[ed] to continuously comply with the conditions of eligibility set forth in s. 376.3078(3), F.S." The February 26, 1998, letter stated, in pertinent part, the following: The Department has determined that the referenced site is no longer eligible to participate in the Drycleaning Solvent Cleanup Program for the following reason: Pursuant to s. 376.3078(7)(a), Florida Statutes (F.S.), owners or operators of drycleaning facilities shall by January 1, 1997, install dikes or other containment structures around each machine or item of equipment in which drycleaning solvents are used and around any area in which solvents or waste- containing solvents are stored. As of January 21, 1998, secondary containment had not been installed at the referenced facility. Failure to meet this requirement constitutes gross negligence (s. 376.3078(7)(d), F.S.). Also, failure to meet this requirement constitutes a failure to continuously comply with the conditions of eligibility set forth in s. 376.3078(3). Pursuant to s. 376.3078(3)(n)1., F.S., the Department shall have the authority to cancel the eligibility of any drycleaning facility or wholesale supply facility that fails to continuously comply with the conditions of eligibility set forth in s. 376.3078(3), F.S. Persons whose substantial interests are affected by this Order of Eligibility Cancellation have a right, pursuant to Sections 120.569 and 120.57, F.S., to petition for an administrative determination (hearing). The Petition must conform to the requirements of Chapters 62-103 and 28-5, F.A.C., and must be filed (received) with the Department's Office of General Counsel, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000, within forty-five (45) calendar days of receipt of this Notice. Failure to file a petition within the forty-five (45) calendar days constitutes a waiver or any right such persons have to an administrative determination (hearing) pursuant to Sections 120.569 and 120.57, F.S. * * * If a petition is filed, the administrative hearing process is designed to formulate agency action. Accordingly, the Department's final action may be different from the position taken by it in this Notice. * * * This Order of Eligibility Cancellation is final and effective forty-five (45) calendar days after the date of receipt of this Order unless the attached site access form is signed and returned to the Department or unless a petition is filed in accordance with the preceding paragraph. Upon the timely filing of such petition, this Order will not be effective until further order of the Department. Please be advised that mediation of administrative disputes arising from or relating to this Order of Eligibility Cancellation is not available [s.] 120.573, F.S.; when requested the Department will continue to meet and discuss disputed issues with parties adversely affected by this order. The February 26, 1998, notice of cancellation contained a typographical error in that it referenced an "attached site access form." That reference was as follows: "This Order of eligibility cancellation is final and effective forty-five (45) calendar days after the date of receipt of this Order unless the site access form is signed and returned to the Department or unless a petition is filed in accordance with the preceding paragraph." The reference in the notice of cancellation to the site access form was irrelevant to the notice and improperly and inadvertently included in the notice. That reference should have been omitted from the notice of cancellation and the sentence which mistakenly referred to the site access form should have stated: This Order of Eligibility Cancellation is final and effective forty-five (45) calendar days after receipt of this Order unless a petition is filed in accordance with the preceding paragraph. The February 26, 1998, notice of cancellation complies with the requirements of Section 376.3078(3)(n)2., Florida Statutes, notwithstanding the aforementioned typographical error contained therein. Consistent with the statutory requirements, the letter gives written notice to the applicant of the Department's intent to cancel Petitioner's program eligibility and also states the reason for the cancellation. Section 376.3078(3)(n)2., Florida Statutes, provides that the "applicant shall have 45 days to resolve the reason for the cancellation to the satisfaction of the Department." Typically, the Department's cancellation notices do not state that applicants or participants have 45 days to resolve the reason or reasons for cancellation of their eligibility. Nevertheless, the Department affords this opportunity to adversely affected parties. To facilitate this process, the Department's cancellation notices advise these parties that, when requested, the Department will "continue to meet and discuss disputed issues with parties adversely affected by this Order." Petitioner availed itself of the opportunity to discuss the disputed issues with the Department. In fact, shortly after receiving the notice of cancellation, Petitioner contacted the Department officials to determine what steps it could take to remain eligible for participation in the Drycleaning Solvent Cleaning Program. Thereafter, Petitioner took immediate steps in an attempt to resolve the reasons for cancellation of its eligibility. After extensive discussions between Petitioner and Department officials, the Department concluded that the notice of cancellation had been properly issued. The Department reached this conclusion after Petitioner acknowledged that Tux Cleaners did not have secondary containment installed by the January 1, 1997, the statutorily prescribed deadline for such installation. Having determined that the secondary containment had not been installed by the January 1997 deadline, the Department concluded that the reason for the cancellation of Petitioner's eligibility could not be resolved or corrected. The Department has interpreted the 45-day language in Section 376.3078(3)(n)2., Florida Statutes, to allow Program applicants or participants the opportunity to resolve items that do not constitute gross negligence within the meaning of the statute. In an attempt to bring the facility into compliance, Petitioner insisted that Guarnieri shut down all drycleaning operations at Tux Cleaners and remove all machines and solvents from the property. By mid-March 1998, Tux Cleaners had shut down all drycleaning operations and by the end of March 1998, all drycleaning machines were removed from the facility. Moreover, in mid-March 1998, after the drycleaning operations ceased, Tux Cleaners continued only as a dry drop-off facility. Any store operating solely as a dry drop-off facility is not required to have secondary containment. Secondary containment was not installed at Tux Cleaners by January 1, 1997, the statutorily prescribed deadline, even though it operated as a drycleaning facility from January 1, 1997, until mid-March 1998. Consequently, beginning in January 1, 1997, and through March 1998, Petitioner and Tux Cleaners were not in compliance with the eligibility requirements of the Drycleaning Solvent Cleanup Program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Department issue a final order finding that Petitioner's facility is not eligible to participate in the Drycleaning Solvent Cleanup Program. DONE AND ENTERED this 10th day of January, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 10th day of January, 2000. COPIES FURNISHED: Martha L. Nebelsiek, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Richard M. Hanchett, Esquire Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A. 2700 Barnett Plaza 101 East Kennedy Boulevard Post Office Box 1102 Tampa, Florida 33601-1102 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
