The Issue The issue is whether the application of Petroleum Products Corporation for reimbursement of the cost of assessment and clean-up of soil and groundwater contamination at its site in Broward County, Florida, under the State Underground Petroleum Environmental Response Act of 1986 should be granted.
Findings Of Fact The Legislature provided a system for the clean-up of sites contaminated as the result of the storage of petroleum or petroleum products in the State Underground Petroleum Environmental Response Act of 1986 (Super Act), Chapter 86-159, Laws of Florida, codified primarily as Section 376.3071, Florida Statutes. The Super Act contains a reimbursement program funded by the Inland Protection Trust Fund. Section 376.3071(12), Florida Statutes, permits reimbursement of allowable costs for the rehabilitation of sites contaminated from discharges related to the storage of petroleum or petroleum products. Petroleum Products Corporation owns a parcel of land located at 3130 Southwest 17th Street, Pembroke Park, Florida. From 1959 to 1970 Petroleum Products Corporation operated a facility on that land which collected used oil from service stations and automobile dealerships, processed it, and sold it either as fuel oil or lubricating oil. About 90% of 150,000 gallons of used oil processed monthly at the facility was sold as fuel; the remaining oil was sold as lubricating oil, but even when sold as lubricating oil, it was sometimes burned as fuel because re-refined oil makes good fuel. The storage tanks were located on the southeastern portion of the property, near Carolina Road. The facility used a two-phase distillation process. Used oil was distilled to remove water, after which it could be sold as fuel oil. If processed in the second phase, for sale as lubricating oil, it was distilled further, and treated with sulfuric acid and clay to remove additives and residue, and change color. This phase produced a waste consisting of acid/clay sludge. This sludge is generally very black, and has a pH of approximately 3. It is very viscous, and has the consistency of roofing cement; laymen would describe it as tar. It does not flow easily, but is liquid enough to be pumped. This processing also occurred in the southeast part of the property. While the recycling facility produced lubricating oil using the acid/clay treatment from 1959 to 1970, the acid sludge was hauled to a municipal dump, or placed in pits dug into the ground on the north and east of the plant site. When the pits were dug, they were dug below the water level, and there was water in the pits before the sludge was dumped in them. The disposal of sludge in pits on the recycling site was a prevailing industry practice, and violated no regulatory requirements at the time. Operators considered on-site disposal of sludge preferable to hauling sludge to a landfill. During periods of heavy rain, some of the sludge may have overflown the pits and spread to nearby land, where it would become mixed with the surface soil. Petroleum Products Corporation ceased making lubricating oil in 1970, but continued to process used oil into fuel oil. The local Broward County Pollution Control Agency asked Petroleum Products Corporation to remove the acid/clay sludge from its property, and to refill the pits with other fill material. Petroleum Products Corporation acceeded to this request, and a great volume of sludge, perhaps hundreds of thousands of gallons, was removed from the pits, which were then refilled under the supervision of the Broward County Pollution Authority. Receipts Petroleum Products Corporation produced at the hearing, or thereafter from the custody of the U. S. Environmental Protection Agency, show that more than 150 truck loads of sludge were removed and hauled to landfills operated by Metropolitan Dade County or by the City of Surfside. Some pockets of the sludge remain at the site of the pits because they were not completely emptied. The backfill was clean fill, and the area was then bulldozed so that warehouses could be constructed in the area. This filling and bulldozing changed the contour of the land from what it had been in the past. The Department contends that much of the sludge was spread out over an extended area of the site, and not removed to landfills. The evidence is persuasive that almost all of the sludge from the pits was removed to landfills. The testimony of Mr. Blair denying that the sludge was spread was credible. In addition, on-site spreading of the sludge would have been impracticable. As a tar-like substance, if spread out, it would have been tracked everywhere. It would stick to the tracks or wheels of any vehicles operating on the surface, and was so acidic it would burn or irritate the skin of anyone who came in contact with it. It would be extremely difficult to perform maintenance on equipment used to spread the sludge because of the need to clean the sludge off, so that the mechanic would not be burned. In addition, there are a large number of receipts evidencing the systematic hauling of the sludge to landfills. The logic of Mr. McDonnell's testimony is persuasive: If you have the alternate, which they obviously did, of hauling it away and simply dumping it, no one would go out and deliberately choose to do a very difficult job [spreading the sludge over the property] where there is an easy alternative available to them. (Tr. 285) Although the facility ceased its re-refining of lubricating oil in 1970, it continued to collect, process, and sell used oil as a fuel until 1984. About 150,000 gallons per month of used oil were processed and sold as fuel. The oil was typically crank case engine oil which contained the substances normally found in used oil of that type. There is no persuasive evidence that Petroleum Product Corporation ever received any hazardous waste, or mixed used oil with any hazardous waste. Used oil is not listed as a hazardous waste by the U.S. Environmental Protection Agency or by the Department. The used oil collected and recycled at Petroleum Product's facility was pumped into and stored in above-ground storage tanks. There were, over time, from 10 to 25 tanks, which ranged in size from 12,000 to 20,000 gallons. Normally, the facility stored between 400,000 and 500,000 gallons of used oil. Occasionally, the facility also received virgin oil, but it was processed quickly or sold because of its higher value. At the peak of its operation, the facility had 25 to 35 storage tanks. Recycling operations had slim profit margins and were small operations. Storage tanks, pumps, and other equipment were bought used, often from other businesses dealing in virgin petroleum products. That used equipment was often rusty or deteriorating. Tank bottoms could have holes in them as the result of rust from standing water; tanks were sometimes riveted, and would have side or bottom leaks. The tanks had virtually no overfill protection. When oil was pumped in, it would overflow from the top and run down the sides. Operators were typically not careful with the oil, because it had a very low value, about 2 to 5 cents a gallon. A spill of a few thousand gallons was regarded as an inconsequential matter. The pumps used in storing oil often had leaks in packing seals, or had screw joints which would leak. Tank valves, also usually bought as used equipment, were often installed without new stem packing, and also would leak during operation. Almost no preventive maintenance was done, because it was not cost-effective to do so. Equipment was repaired only if its current state of repair interfered with operations, which usually meant that leaks were not repaired until they created a fire hazard. Leaks and spills from used oil storage tanks, including their pumps, valves, and piping, were common. A great volume of used oil leaked or spilled from Petroleum Products Corporation's tanks, pumps, and piping over its 25 year operation. There were also large oil spills resulting from four or five major fires at the facility in the 1960s. The fire in 1963, which may have been the result of vandalism, caused 40,000 to 60,000 gallons of use oil to spill from storage tanks; 8 or 10 tanks were destroyed. There were no dikes, so that the oil flowed freely. When firemen used water on the fire, the oil was absorbed into the soil. Another major fire occurred in October, 1966 in which three oil storage tanks collapsed spilling about 50,000 gallons of oil. Another 25 foot high oil tank collapsed on a firetruck. There is no way to know, with certainty, the volume of used oil, virgin oil, and lubricating oil which spilled or leaked into the ground on the site. It is reasonable to believe that 9 to 12 gallons of oil would have leaked or spilled each day at the facility, which would have resulted in spill of over 100,000 gallons of oil. This estimate, made by Mr. McDonnell, is credible and is conservative, given the volume of oil also spilled during the fires. Petroleum Products Corporation does not contend that the leaks and spills from process tanks, rather than from storage tanks, are eligible for reimbursement of site assessment and cleanup costs. Oil leaked from both, however, and once in the ground, the oils are indistinguishable. Due to the capacity of the tanks and the years they were in use, however, it is reasonable to assume that 15% or less of the leaks and spills were attributable to process tanks. After processing, most of the oil was burned as fuel. Some was used as a lubricant. The only difference between used oil sold as fuel or lubricant was that the lubricating oil had the additives removed and the color changed. Both burn well. There is an insufficient basis in this record to justify the Department's interpretation excluding this site from eligibility for cleanup because oil processing ocurred at the site to produce lubricating oil. Section 376.3071 does not disqualify all or part of a site from eligibility for cleanup reimbursement because a portion of the used oil stored there was ultimately used as lubricants. In 1984 a Department investigator asked Petroleum Products Corporation to install exploratory wells to determine whether there was contamination at the site. Petroleum Products engaged the firm of Dames & Moore to undertake a preliminary investigation, which revealed that there was groundwater contamination in the form of floating hydrocarbons. On April 1, 1985, the United States Environmental Protection Agency and Petroleum Products Corporation entered into a consent order agreement which required the removal of 17 above-ground tanks leaking used oil into the ground, which constituted a continuing source of contamination. Petroleum Products Corporation contracted with Conversion Technology Corporation to recover and recycle the oil and wastes, with Waldron's tank cleaning services to clean the empty tanks and drum the sludge, with Cuyahoga Wrecking Service to make the tanks inoperable, and with Seven & Seven Transporters to remove the waste to a disposal facility. The employee of the U.S. Environmental Protection Agency who was in charge of the site commended Petroleum Products Corporation for its cleanup effort, and wrote as the OSC [on- scene coordinator] for this EPA-monitored cleanup I may say that [Petroleum Products Corporation] exemplified industrial cooperation and responsibility in combating the vexing problem of hazardous waste management. (Petitioner's Exhibit 9) Petroleum Products Corporation cooperated with the Environmental Protection Agency and with the Department in determining how to deal with the contamination. It has already spent approximately $150,000 to perform remedial action. Contamination at the site is of three types: oil floating in the groundwater, soil contamination, and groundwater contamination. It is not possible to clean any individual phase of the contamination without affecting the other phases. Attempts at remediation must be monitored to prevent an influx of organic contaminants into the aquifer. Similarly, the cost related to the cleanup of an individual phase of contamination cannot be isolated because of the inter-related nature of the cleanup phases. The creation of a cone of groundwater depression is necessary for any recovery of the free or floating oil. The cost of recovery of the free product cannot be separated from groundwater cleanup because it is necessary to treat large quantities of groundwater involved in creating a cone of depression. To the extent that a proportion of the cost might be estimated, the cost associated with the recovery of free product would be a minor portion of the overall cleanup. There is currently a free product recovery effort in place at the site, which is intended to prevent further migration of the product off-site. This ongoing action is not considered an element of the site cleanup. The most feasible method of cleanup for the free product will involve the excavation of the soils to create a trench. The free product and ground water will be recovered as they flow into the trench. During October and November of 1984, Environmental Science and Engineering, Inc., a consulting firm working under contract with the Department, assessed the extent of free floating oil in the groundwater under the Petroleum Product Corporation's site. Those consultants found a free floating layer of oil from 5" to 30" thick under approximately one-half of the one acre site Petitioner still owns. The free product generally mirrors the location of the former recycling facility and its storage tanks. The viscosity of the free product is comparable to about 40-weight engine oil. Environmental Science and Engineering estimates that the floating layer of oil contains 20,000 to 60,000 gallons of recoverable petroleum product. The direction of ground water flow and the migration of contaminants off-site is to the east or southeast. The soil above the oil layer has been saturated with oil because of the fluctuations of the layer with movement of the water table as the area experiences heavy rains or dry spells. Wells drilled in the location of the former sludge lagoons to the north and east of the plant site reveal a heavy slightly liquid type of sludge. The oil in the lagoon sites is immobile, and no free product collects in the wells after 24 hours. One sample collected in the mason jar shows a slight degree of oil separation after 24 hours. This anecdotal evidence of separation is not very informative, and is not persuasive that oil separates from the remaining sludge on-site. See, Finding 32, below. A second assessment of soil and groundwater contamination was done by another consulting firm under contract with the Department, Ecology and Environment, Inc. That study showed free floating product at the site. The only calculation of the amount of free floating oil was that done by Environmental Science and Engineering, Inc., see, Finding 29, estimating that there would be 20,000 to 60,000 gallons of recoverable oil. That calculation understates the amount of oil in the ground. The estimate given by George McDonnell of 103,000 gallons is more persuasive. It is consistent that the large amounts of oil which leaked or spilled at the site over a 25 year period. It is unlikely that any appreciable portion of the approximately 103,000 gallons of floating oil has its genesis in the separation of oil from the acid/clay sludge which had been disposed in the two lagoons for the following reasons: Oil associated with acid/sludge would be quite acidic, and have a pH between 2 and 4. The pH scale is not a linear scale, so differences in pH are quite dramatic as the pH values change. Samples of free product shows a uniform pH of approximately 6 or 7. In almost all 31 monitoring or observation wells the pH is consistent with the characteristics of used oil, (a pH of 6 or 7), not the pH of sludge (a pH of 2 to 4). The only sample which disclosed a low pH was that taken in monitoring well number 3 which was located in the former sludge lagoon site. The groundwater flows to the east or southeast. This does not explain the presence of free product to the west and southwest of the sludge pits nor the absence of free product to the east of the pits. The viscosity of the oil is similar to that of 40-weight engine oil and not highly viscous, as the tar-like sludge would be. The oil in the sludge pits is basically immobile and no free product surfaced in the monitoring well after waiting 24 hours. The pH of the free product is nearly neutral. The Department believes that the sludge was mixed with lime rock or fill and spread over the site to increase the pH of the oil. This is unpersuasive. Mixing with lime rock would increase the pH of the sludge (tend to bring it towards neutral) but it would not cause the dramatic lowering of acidity which would bring the sludge to a pH of 6 or 7. In addition, the viscosity of the sludge would not be so changed by mixing the sludge with fill that its viscosity would become similar to that of 40-weight engine oil. To believe that the free product results from sludge disposal rather than leaks ignores the normal operating practice of used oil recovery facilities in the late 50s and 60s where spills from storage tanks, pumps, and piping were very common. Little of the free product has been recovered through the current remediation efforts. If not recovered, over time the approximately 103,000 gallons of floating oil will spread to adjacent property. To recover this oil by conventional trench or well recovery operations will probably cost $250,000 or more. The capital cost of the groundwater recovery/discharge system, with monitoring wells, will be about $85,000; cost of operating and maintenance are approximately $180,000. The firm of Ecology & Environment, Inc., collected soil samples at 56 locations in two phases in its remedial investigation. Forty-six of the samples were taken at shallow depths (27 at 8 inches, 19 at approximately 10 inches); 10 more samples were taken in the old disposal pit sites at depths between 0 and 35 feet). The two primary classes of contaminants found in the soil were lead and organics (hydrocarbons associated with petroleum products). Both contaminants are found in used oil. The lead and organic contaminants were found in the shallow soils over the southern half of the site. Very little contamination was found beyond the main area of site activity. The soil contamination was concentrated in the plant and former disposal pit areas. Samples with high lead concentrations were found in the former disposal pit sites. Contamination extended to a depth of 25 feet in one soil sample from a former pit, where oily plastic sludge was found with fine sand or clay. The two former pit sites are the only places with documented contamination below a 10 foot depth. Although the organic contamination extended laterally further than the lead contamination, Environment & Ecology concluded that the wider distribution did not reflect contamination from Petroleum Product Corporation's activities. The general area has long been the site of commercial and industrial activities, and there are many other possible sources for contamination including a firing range, which would have been disposing of lead bullets fired at the range, a generator plant, and a former spray-painting facility. Solvents and other chemicals used in these activities would contribute to soil and groundwater contamination. The consultants had been told by area businesses that small scale dumping of industrial chemicals in the vicinity has been common. Soil samples revealed a "great deal of heterogeneity." There was no uniform distribution of soils in the shallow zone. This probably occurs because after the reprocessing operations ended in 1970, the land was cleared and filled, so that many of the warehouses now in the area could be constructed. Most of the upper 8 to 10 feet is fill material. The ground water was monitored by installing 38 wells on the site, most of which were screened at depths of 10 to 12 feet. Five intermediate wells with depths of 50 feet and two deep wells of 100 to 200 feet were also installed. Every sample exhibited a pH of between 6.4 and 7.4. The primary contaminants were lead, organics, and chromium. The evidence does not indicate the source of the chromium. It is unrelated to Petroleum Product Corporation's activities. The groundwater contamination, both metal and organic, was only in the shallow zone. It extends laterally roughly to the same extent of the shallow contamination found in the soil. This suggests that the contaminants in the soil migrated due to seepage from rainfall or fluctuation in the water table into the groundwater. The water table is about five feet below the land surface. The Department has argued that the contaminants in the soil and groundwater were caused by mixing and spreading of the sludge material during the early 1970s over the surface of the area. This hypothesis has already been rejected for the reason stated in Findings 7 and 8, above. It is more likely that the soil contamination resulted from frequent spills and leaks of oil from storage tanks years ago. The soil contaminants are those found in used oil. The area generally is flat. There was no impediment to oil spills flowing over a large surface area, following the contour of the land at that time. Depending on the method used to clean up the site, the cost of rehabilitating the area will range between two and forty-six million dollars. It will cost over one million dollars to recover and treat contaminated groundwater. Approximately 110,000 cubic yards of contaminated soil must be removed and treated, the majority of that coming from the area outside the former sludge pits. The presence of contamination at the site is to be expected, given the site's former use. All of the 8 turnpike facilities and 8 maintenance yards operated by the Florida Department of Transportation report petroleum contamination from tanks, and the Department of Transportation has estimated cleanup cost will range from $20 to $30 million, although DER believes the cost may be $5 million. The cleanup will be funded by the Inland Protection Trust Fund, as would the reimbursement in this case. The cost of rehabilitation is in the range of estimates that the Department has received for other petroleum contamination sites. In summary, the Petitioner's site is contaminated primarily from leak and spills of used and virgin oils processed or unprocessed and from storage tanks, pumps and integral piping. Small spills were continuous and some associated with fires were massive. The only portion of the site not contaminated due to leaks and spills is the residual soil and groundwater contamination from the sludge disposal pits, which is a small part of the overall contamination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Petroleum Products Corporation fo eligibility to participate in the cleanup program funded by the Inland Protection Trust Fund be granted. DONE and ENTERED this 9th day of July, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1990. APPENDIX Rulings on Findings of Fact proposed the Petitioner: As will be obvious, the proposed order submitted by Petroleum Products Corporation comported closely with the Hearing Officer's view of the evidence, and with some modification was essentially adopted as proposed. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 6. Adopted in Findings of Fact 7 and 8. Adopted in Finding of Fact 8. Adopted in Findings of Fact 9 and 10. Adopted in Finding of Fact 10, to the extent necessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Generally adopted in Finding of Fact 16. Rejected as subordinate. Rejected as unnecessary and subordinate. Adopted in Finding of Fact 17. Adopted in Finding of Fact 18. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20. Generally adopted in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Findings of Fact 31 and 32. Adopted in Finding of Fact 33 Rejected as repetitious of Finding of Fact 6. Rejected, see Findings of Fact 25 and 26. Adopted in Finding of Fact 24. Adopted in Finding of Fact 34. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 37. Adopted in Finding of Fact 38. Adopted in Finding of Fact 39. Adopted in Finding of Fact 40. Adopted in Finding of Fact 41. The spreading theory is rejected in Findings of Fact 7 and 8. Rejected as unnecessary. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. See also the stipulation of the parties entered as Exhibit 22. Rejected as unnecessary. Rulings on Findings of Fact proposed by the Department. Adopted in Finding of Fact 1. Adopted as modified in Finding of Fact 2. Discussed in the Conclusions of Law, see page 20. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3. Implicit in Findings of Fact 3 and 6. Adopted in Finding of Fact 6. Adopted in Finding of Fact 5. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Rejected as unsupported by the transcript references given. Adopted in Finding of Fact 5. Adopted in Finding of Fact 5. Adopted in Finding of Fact 5 Rejected as unnecessary. Generally rejected; see Finding of Fact 6 concerning the filling of the disposal pits. While some pockets of sludge remain at the site of the pits, the volume is difficult to determine. In an absolute sense, those pockets may contain a substantial amount of sludge, but on a comparative basis, by far the greatest part of the sludge was removed. Rejected as unnecessary. Generally adopted in Finding of Fact 32(1), but see the final sentence of (1). Generally adopted in Findings of Fact 25, 28, and 34. Generally adopted in Finding of Fact 28, since the recycling facility and storage tanks were on the southern part of the property. Rejected as unnecessary. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 3. Implicit in Finding of Fact 11. Adopted in Finding of Fact 11. Adopted in Finding of Fact 4. Rejected because the process tanks necessarily store the product being processed, serving as a vessel to contain the product. Rejected, see Finding of Fact 3 with respect to the turnover in the volume of used oil processed at the facility. Only about 10 percent of the oil was reprocessed as lubricating oil. This is more significant than the volume of the tanks. See also Tr. 24 with respect to the storage capacity, and Finding of Fact 11. Rejected as unnecessary. Rejected because the surficial drainage has probably been changed by the filling and regrading of the property in preparation for building the warehouses. See Finding of Fact 6. The current surficial flow says little about the flow when the facility operated in the late 1950's and throughout the 1960's. Adopted in Findings of Fact 15 through 19. Adopted in Findings of Fact 17 and 18. Adopted in Finding of Fact 17. Generally rejected, the evidence is persuasive that about 50,000 gallons of oil were lost in the 1966 fire. (See Tr. 36-37.) Adopted in Finding of Fact 25. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Rejected as unnecessary. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Rejected, the free product covers approximately one-half acre. Rejected, the more persuasive evidence is the 103,000 gallons estimated by Mr. McDonnell. See Finding of Fact 31. Rejected as unnecessary. Rejected as unnecessary. See Findings of Fact 28 and 34. Rejected because it is unlikely that sludges are separating in the former sludge lagoon. See Finding of Fact 30. The source of the oil is more likely the substantial loss of oil which occurred from the fires and from leaks over the years which is now floating above the ground water. Generally adopted in Finding of Fact 28. Generally adopted in Finding of Fact 28. Rejected as unpersuasive. Rejected, the source of the free product is not leaching from the disposal pit, but the oil from over flows and leaks during operation as well as large inundations during fires. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Rejected, see Finding of Fact 30. Rejected because oil does not separate from the sludge. Rejected for the reason given for rejecting Finding of Fact 63. Rejected, the seepage is not the result of separation in the disposal pits, but from the plume of free product in the ground above the ground water. Rejected as unnecessary, but the similarity of the oil seeping from the sludge pit area to waste oil is consistent with its source as leaks and spills inicident to fires. Rejected because the sludge does not separate. Rejected because the sludge does not separate. Rejected because the sludge does not separate, see Finding of Fact 30. Rejected as unnecessary; obviously as there is no more storage, so there is no more source for leaks or spills. 71-73. Discussed in Finding of Fact 30. Rejected because liquid product will not accumulate. Rejected because the sludge does not separate. Adopted in Finding of Fact 32(1). Adopted in Finding of Fact 32(5). Adopted in Finding of Fact 32(1). Rejected for the reason stated in Finding of Fact 32(5). Rejected for the reason stated in Finding of Fact 32(5). Rejected as unnecessary and for the reason stated in Finding of Fact 32(5). Adopted in Finding of Fact 32(1), which is consistent with the source of the free product being used oil rather than separation from sludge remaining onsite. 83-84. Rejected as unnecessary. Rejected as unnecessary. Rejected because the testimony of Mr. McDonnell has been accepted. Rejected as unnecessary. Adopted in Finding of Fact 27. Rejected as redundant. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Implicit in the finding that lead is a contaminant found in used oil. See Finding of Fact 34. Adopted in Finding of Fact 4. Rejected as unnecessary. Generally adopted in Finding of Fact 34. Generally adopted in Finding of Fact 34. Adopted in Finding of Fact 35. Rejected as unnecessary. Rejected as unnecessary; see also, Finding of Fact 6. Adopted in Finding of Fact 32(1). Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary, although there were disposal pits in the north and eastern parts of the property. Adopted in Finding of Fact 34 with respect to location, but the testimony with respect to spreading of the sludge is rejected. See Finding of Fact 7. It is unlikely that sludge was spread over the site. The more likely explanation for the appearance of sludge in the lithologic logs for the southern end of the site is that the disposal lagoons periodically overflowed after heavy rains and provided a mechanism for the active transport of sludge out of the disposal pits into some areas on the southern end of the site. Apparently the northern area now occupied by the warehouses was higher, because no sludge was found in observation wells 4, 5 and 19. Rejected, page 41 of DER's Exhibit 3 shows no sludge at observation well 5, which the proposed finding implies. 107-112. Generally rejected because the testimony with respect to the surface flow from the tank area being to the south is rejected because the grading of the property as the warehouses were built likely changed the contour of the land. Mr. Levin's testimony was not particularly strong; for example, at page 25 of his prefiled direct testimony he states, "And for the shallow soil contamination I would still have to lean towards the fact that the materials were mixed and spread." 113-114. The sludge contamination is not the predominant or source of contamination. Rather, it is the oils which floated across the land and were carried into the soil and resulted from the leaks and spills. 115-120. Generally accepted in Finding of Fact 36, although subordinate to that finding. 121. Generally accepted, although the soil contamination by lead is attributable to leaks and spills from the used oil. 122-124. Rejected as unnecessary. Accepted in Finding of Fact 25. Accepted in Finding of Fact 38. 127-128. Subordinate to Findings of Fact 36, especially the last sentence, and 38. Subordinate to Finding of Fact 39. Subordinate to Finding of Fact 39, especially the last sentence. Rejected as unnecessary. 132-134. Accepted in Finding of Fact 39. 135. Rejected because the soil contamination is the result of leaks and spills of oil. 136-137. Rejected, it is more likely that the neutral pH of the ground water is the result of the essentially neutral contaminant, the used oil. Rejected as unnecessary. Rejected as unnecessary, although consistent with Finding of Fact 39 that the lateral extent of ground water contamination mirrors the soil contamination which has resulted from leaks and spills. 140-141. The predominant source of contamination is leaks and spills. 142. Rejected, the area affected by the leaks and spills is large, due especially to the fires and consequent loss of large amounts of oil from tanks. See Finding of Fact 41. 143-144. Rejected as irrelevant and unnecessary. 145. Although true, not relevant. 146-148. Rejected, whether the Environmental Protection Agency is correct or not in its assessment is not at issue here. This site was contaminated by used oil. 149-150. Although true, not relevant. Implicitly accepted in that no finding with respect to "bias" has been made. Rejected as legal argument. Rejected because the predominate source of contamination is an eligible source. Rejected, but the source here falls within the statutory directive. Rejected. The site here is predominantly contaminated by used oil, which is eligible. The eligible portion is not a minor part of the entire of the contamination. COPIES FURNISHED: R. L. Caleen, Jr., Esquire OERTEL, HOFFMAN, FERNANDEZ & COLE Post Office Box 6507 Tallahassee, Florida 32314-6507 Gary Early, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. 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 to be resolved in this proceeding concerns whether the Petitioner's "groundwater monitoring plan," embodied as a condition in the present operating permit, should be modified at the behest of the Department of Environmental Regulation.
Findings Of Fact On October 2, 1985, the Department issued to Charlotte County a permit to operate a Class I Sanitary landfill, pursuant to Section 403.087 and 403.707, Florida Statutes. A groundwater monitoring plan was part of that permit. One of the purposes of the groundwater monitoring plan was to detect any leachate plume of pollutants which might migrate off the site of the landfill in the groundwater. In accordance with the groundwater monitoring plan, as part of its conditions, the landfill has four monitoring wells, MW-1 - MW-4. One of those monitoring wells, MW-1, was established as a background well. Two of the monitoring wells, numbers 2 and 4, were installed as "interceptor" and "intermediate" wells. The fourth monitoring well is a "compliance well." The purpose of the background well at the landfill site is to determine the quality of the groundwater as it comes onto or enters the property subject to the operating permit. Specific condition number 2 of the monitoring plan incorporated, in the permit, required that once a year, beginning with the first quarter, sampling wells MW-1 and MW-2 should be analyzed for certain synthetic, organic compounds. Eight synthetic, organic compounds (SOCs) were tested for in accordance with Rule 17-22.104(1)(g), Florida Administrative Code. Those compounds were as follows: Trichloroethylene; Tetrachloroethylene; Carbon Tetrachloride; Vinyl Chloride; 1, 1, 1-Trichloroethane; 1, 2-Dichloroethane; Benzene; and Ethylene-dibromide. On December 9, 1985, the Department received the results of the chemical analysis performed by its laboratory in Tallahassee on the samples collected by district personnel on August 5, 1985. Those test results indicate the presence of the following compounds in well MW-1: Ethylbenzene at a concentration of 1.0 micrograms per liter, Methylenechloride at a concentration of 4.5 micrograms per liter, Trichloroethane at a concentration of 3.2 micrograms per liter, Toluene at 2 micrograms per liter, Xylene at 2.4 micrograms per liter, and Acetone at 40 micrograms per liter, as well as other "purgables" at an aggregate of 30 micrograms per liter. On the basis of this analysis, the Department informed the County that it would modify the County's groundwater monitoring plan by requiring it to monitor for "purgables", (synthetic, organic compounds) in all four wells on a quarterly basis. The original groundwater monitoring plan had required monitoring for the eight original SOCs in two of the four wells on an annual basis. This proposed modification would thus modify the conditions of the landfill operation permit held by the County. Since the samples taken on August 5, 1985, further tests have been performed on water samples taken from the four subject wells at the landfill site by both the County and the Department. On December 9, 1985, the County obtained water samples from wells MW-1 and MW-2, which were analyzed for the eight primary SOCs enumerated in the original water monitoring plan. That analysis showed the following: MW-1 1, 1, 1-Trichloroethane - 1.8 micrograms per liter MW-2 1, 1, 1-Trichloroethane - 4.1 micrograms per liter 1, 2-Dichloroethane - 1.1 micrograms per liter The Department took water samples on January 16, 1986, from all four wells. Results of the analyses for SOCs showed that as of that date, MW-1, which had been the well testing "positive," which resulted in the proposed change in the permit and monitoring plan was, on January 16, free of synthetic, organic compounds. Wells MW-2 and MW-3 were also free of purgables. The analysis of water sample from well MW-4 showed that it contained 4.67 micrograms per liter of Benzene, 1.58 micrograms per liter of Chlorobenzene, and 8.27 micrograms per liter of 1, 2- Dichloroethane. Sampling the wells MW-1 and MW-2 on March 13, 1986, the County analyzed for the complete list of "purgables" or SOCs with the result that well MW-1 was shown to contain 1.8 micrograms per liter of Ethylbenzene and 2.7 micrograms per liter of Toluene. Well MW-2 contained 1.3 micrograms per liter of Ethylbenzene and 2.0 micrograms per liter of Toluene. Almost two months later, on May 5, 1986, the Department sampled wells MW-1, MW-3 and MW-4, finding that MW-1 contained no purgables; MW-3 contained 1 microgram per liter of Methylenechloride (an isolated occurrence of this compound); and well MW-4 contained 1 microgram per liter of Chlorobenzene, 2 micrograms per liter of 1, 3-Dichlorobenzene, 10 micrograms per liter of Toluene, 2 micrograms per liter of Cis-1, 2, Dichloroethane and 6 micrograms per liter of "other purgables. Thus, it can be seen that in the August 1985 test, the first monitoring well tested, MW-1, contained SOCs. At the later test performed in December, that well contained SOCs in the form of Trichloroethane and yet on January 16, 1986, the well was free of detectable SOCs. On March 13, 1986, however, that well was shown to contain Ethylbenzene and Toluene. On the other hand, on the May 5, 1986, sample, the well contained no detectable purgable compounds. On the December 9 test, it can be seen that well MW-2 contained Trichloroethane and Dichloroethane and yet on January 16 was free of any detectable SOCs. However, on March 13, 1986, well MW-2 contained Ethylbenze and Toluene. Well MW-3 was free of SOCs at the December test, but on May 5, 1986, contained Methylenechloride, although in a very slight concentration, which could have resulted from contaminated testing equipment. Well MW-4 contained, in December, the above-noted concentrations of Benzene, Chlorobenzene, and Dichloroethane. On March 13, 1986, wells MW-3 and MW-4 were not tested. The Department's test of May 5, 1986, sampled MW-1, MW-3 and MW-4. On that date MW-4 contained Chlorobenzene, Dichlorobenzene, Toluene, Dichloroethane, and "other purgables." Thus, in consecutive samples taken and analyzed by the Department and the County since the date of its proposed modification of the groundwater monitoring plan, it has appeared that organic compounds detected in one sampling did not appear or were below the detection limits in subsequent analyses and yet showed up in other monitoring wells. It is especially significant, however, that well MW-4, which is the well farthest "down" the groundwater gradient and is indeed the compliance well for assessing whether the landfill is performing within the regulatory bounds of its operating permit has, whenever tested, demonstrated the presence of the above-noted contaminants. The fact that some wells demonstrate the presence of contaminants and on a later test, test negative for those contaminants was shown by the Department to likely occur because of variables attributable to rainfall. The amounts and occurrence of rainfall' can play a significant role in determining whether the concentrations in any amount exist in the monitoring wells and can determine in part what concentrations are found in samples from those monitoring wells. The compounds move through the soil or reside in the soil and the rainfall may cause certain compounds to be washed or leached out of the soil in varying amounts and at varying rates. Sampling shortly after a heavy rainfall might result in detection of certain compounds not detectable during a dry period or might increase the amounts detectable. The absence or slight concentrations of the subject contaminants in a well which increase with later samples would indicate that the leachate or contaminant "plume" in the groundwater is passing through that well. The down gradient well, MW-4, is the compliance well and is located down gradient from the perimeter ditch around the landfill. On both the samples taken in January and in May, that well was shown to be contaminated with SOCs as depicted above. Thus, it has been established that there are some leachate contaminant plumes moving in the groundwater through the location of that well, which establishes the likelihood that the leachate in the landfill will migrate off site by the flow of the groundwater. Thus, since DER issued the proposed modification of the monitoring plan, four additional groundwater samplings have revealed more SOCs at the landfill site. SOCs have been found in all wells at one time or another in detectable amounts. The presence or absence of SOCs and the varying amounts present at various sampling times at various wells is explained by variations in the migration rate of the contaminants due to variations in frequency and amount of rainfall percolating into and flowing through the substrate in which the wells are located. Groundwater in the area of the landfill is not well-protected from waste contamination. The landfill is located in an area where the groundwater table is one to two feet above the surface level during the wet season and only four to five feet below the surface level in the dry season. The landfill is not lined with clay or another impervious or semi-impervious material which could retard the migration of contaminants from the landfill itself into the groundwater acquifer. Because of this, ground water can migrate upward into the waste in the landfill during the wet season and the waste in the landfill can percolate into the groundwater acquifer in a downward and outward direction during the dry season. Additionally, the south and west slopes of the landfill are exposed and waste is thus exposed to the water contained in the perimeter ditch around the landfill, which water is connected hydrologically to the groundwater acquifer. The landfill is the only public solid waste disposal site in Charlotte County and thus receives all manner of waste, including some hazardous waste. Leachate contaminant plumes have already developed on the landfill site and may be in the process or may already have migrated off the site. This site is the only municipal landfill in the seven-county South Florida District of the Department where the SOCs are being detected in the groundwater. The groundwater in the area outside the landfill is designated as G-II, which is usable as a drinking water source. It is appropriate to sample the groundwater more frequently in the vicinity of such a landfill when that groundwater is designated as a drinking water supply. Although well number 1 was originally designated as a background well to check the background chemical status of the water before it migrates down gradient to the landfill site, that well, although located generally up gradient of the groundwater flow, has been shown to contain SOCs which in all probability emanated from the landfill. This is because the County has periodically added water from the landfill itself into the perimeter ditch around the landfill causing groundwater flow to move in both directions laterally from the ditch. Finally, although the Petitioner contends that some of the contamination found in the samples is a result of improper testing and contamination with laboratory solvents, the potential for laboratory contamination of the samples and sampling equipment is a possible explanation (although not proven) only for those SOCs found that are common laboratory solvents. Only Methylchloride, which occurred in one isolated sample, and the compound Toluene fit into this category of possible laboratory contaminants. The remaining SOCs found in the samples are not common laboratory solvents and therefore are present in the samples due to their presence in the groundwater itself from which the sample was taken.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the modified groundwater plan proposed by the Department in the December 18, 1985, letter to Charlotte County should be adopted into the groundwater monitoring plan for the Charlotte County landfill. DONE and ORDERED this 19th day of November 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November 1986. APPENDIX - CASE NO. 86-0084 Petitioner's Proposed Findings of Fact 1 - 18. Accepted Rejected as not established by the evidence presented. Accepted, but dispositive of the material issues presented. Rejected as to its asserted import. Accepted, but not dispositive of the material issues presented. Accepted. Accepted. Rejected as not dispositive of the material issues presented. Accepted, but not in itself dispositive. Accepted. Accepted. Accepted, but not dispositive of the material issues presented. Accepted, except as to the last clause. Accepted. Rejected as to its asserted import. Accepted, but not dispositive of the materia issues presented. Respondent's Proposed Findings of Fact 1 - 20. Accepted. COPIES FURNISHED: Matthew G. Minter, Esquire Assistant County Attorney Charlotte County 18500 Murdock Circle Port Charlotte, Florida 33948 Douglas L. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue There are three legal issues which remain for determination: (1) Whether Florida Petroleum has standing in this case; (2) Whether proposed rule 62-770.220(3)(b), requiring constructive notice to residents or business tenants of real property into which the temporary point of compliance is allowed to extend is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(c), Florida Statutes; and (3) Whether proposed rule 62-770.220(4), requiring additional constructive notice of the status of site rehabilitation is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(c), Florida Statutes.i
Findings Of Fact On December 23, 2004, the Department published a Notice of Proposed Rulemaking regarding amendments to Florida Administrative Code Chapter 62-770. In particular, proposed rule 62-770.220(3)(b) and (4), provides: Subsequent Notice of Contamination Beyond Source Property Boundaries for Establishment of a Temporary Point of Compliance (TPOC) - Prior to the Department authorizing a temporary extension of the point of compliance beyond the boundary of the source property (i.e., the location from which the contamination originates) in conjunction with Natural Attenuation Monitoring pursuant to Rule 62-770.690, F.A.C., or Active Remediation pursuant to Rule 62-770.700, F.A.C., the PRSP shall provide the following notices: * * * (b) Constructive notice to residents [if different from the real property owner(s) notified pursuant to paragraph 62- 770.220(3)(a), F.A.C.] and business tenants of any real property into which the point of compliance is allowed to extend. Such constructive notice, which shall include the same information as required in the actual notice, shall be provided by complying with the following: * * * Status Update 5-Year Notice - When utilizing a TPOC beyond the boundary of the source property to facilitate natural attenuation monitoring or active remediation, an additional notice concerning the status of the site rehabilitation shall be similarly provided every five years to [the classes of] those persons who received notice pursuant to subsection 62-770.220(3), F.A.C., unless in the intervening time, such persons have been informed that the contamination no longer affects the property into which the point of compliance was allowed to extend. * * * (The language in brackets was added pursuant to the Department's Notice of Change and "those" was deleted.) The proposed rule implements Section 376.3071, Florida Statutes. The specific authority for the proposed rule is Sections 376.303 and 376.3071, Florida Statutes. On February 2, 2005, the Environmental Regulation Commission held a public hearing on the proposed rules and approved the proposed rules with certain amendments. On February 14, 2005, Florida Petroleum filed a Petition for Determination of Invalidity of Proposed Rule (Petition) challenging the validity of proposed amendments to proposed rule 62-770.220(3)(b) and (4). The Petition was filed pursuant to Section 120.56(1) and (2), Florida Statutes, and in each instance, Florida Petroleum alleges that the proposed rule violates Section 120.52(8)(c), Florida Statutes. On March 4, 2005, the Department published a Notice of Change regarding the above-referenced Notice of Proposed Rulemaking. With respect to the pending proceeding, the Notice of Change reflects revisions to language of proposed rule 62- 770.220(4), which are not subject to challenge. See Finding of Fact 1. On May 16, 2005, without objection, official recognition was taken of the Department's Notice of Proposed Rulemaking and Notice of Change. Florida Petroleum is a Florida voluntary, non-profit trade association, which comprise, in part, approximately 194 Marketer Members who own and/or operate petroleum storage system facilities in Florida. Florida Petroleum’s purposes include providing representation on behalf of its members in legislative and regulatory matters before the Florida legislature and agencies. Florida Petroleum routinely represents its members in rule development proceeding and other regulatory matters before the Department of Environmental Protection, Department of Revenue, and Department of Agriculture and Consumer Services. Florida Petroleum’s By-Laws state that its purposes include advancing the business concerns of its members, pooling the energy and resources of its members, and communicating with elected officials at the national, state, and local levels of government. Towards those ends, Florida Petroleum has represented it members before the Florida Legislature in matters relating to the regulation of petroleum facilities under Chapter 376, Florida Statutes, and has appeared before the Department in rulemaking proceedings involving the regulation of petroleum cleanups, and the various state restoration funding assistance programs. The subject matter of the rule at issue is within the general scope of interest and activity of Florida Petroleum, in particular, its marketer members, who own or operate facilities that store petroleum products for consumption, use, or sale. Florida Petroleum submitted oral and written comments, recommendations, objections, and proposed amendments to the Department and the Environmental Regulation Commission in connection with the rules at issue in this case. A substantial number of Florida Petroleum marketer members are "persons responsible" for assessment and remediation of one or more petroleum-contaminated sites. Florida Administrative Code Chapter 62-770, governs the remediation of petroleum-contaminated sites. A substantial number of Florida Petroleum’s marketer members are "persons responsible" for assessment and remediation of sites identified by the Department as "confirmed" or "suspected" sources of contamination beyond the boundary of the facility (i.e., "off-site contamination"). In certain instances, the Department's rules allow for the use of No Further Action with Conditions procedures in cases of petroleum contamination where applicable regulatory requirements are met because the use of conditions, such as institutional and engineering controls, may be more cost- effective than active remediation. As of February 2005, the Department estimated that it had reports of approximately 23,000 petroleum-contaminated sites. In 2004, the Department received an estimated 539 Discharge Report Forms in connection with petroleum storage facilities. As of March 2005, the Department had information indicating that approximately 2,000 "off-site" properties have been affected by contamination. Assessment Reports filed with the Department indicate that a substantial number of these sites may have been affected by discharges of petroleum or petroleum products. Petroleum discharges will in all likelihood continue to occur in the future at petroleum facilities. Petroleum discharges will in all likelihood continue to affect off-site properties in the future.
The Issue This is a license discipline case in which the Department of Health and Rehabilitative Services seeks to impose an administrative fine in the amount of $350.00 on the basis of allegations that the Respondent, failed to report visible and accessible evidence of dry wood termite fecal pellets.
Findings Of Fact At all times material to this case, the Respondent, James M. Dodds has been licensed to conduct residential termite inspections. On June 12, 1990, he conducted a termite inspection at the residence of a Mrs. Mitchell, located at 7420 W. 15 Court, Hialeah, Florida. During the course of that inspection, Dodds did not inspect the attic of the residence. The reason he did not inspect the attic was because the access to the attic (which was through a crawlspace in the ceiling of a small bedroom closet) was blocked by a large number of boxes stacked in the closet. During the course of the inspection Dodds told the owner of the house that unless she arranged to move all the boxes out of the way, he would have to indicate on his report that the attic was not inspected. The owner did not arrange to get the boxes moved and Dodds did not inspect the attic. At the conclusion of his inspection of the property described above, Dodds filled out an inspection report form and left a copy of the inspection report with the property owner. Dodds placed some check marks in some preprinted boxes on the back of the inspection report form. Those check marks included one that indicated "attic not available for inspection." Shortly thereafter, the house was sold to a new owner who, shortly after moving in, discovered what appeared to him to be evidence of possible termite infestation. Subsequent inspections of the premises by another pest control company and by an inspector of the Department of Health and Rehabilitative Services revealed the presence of fecal pellets left behind by dry wood termites. The termite fecal pellets were discovered in the attic near the crawl space opening. There was no other evidence of the presence of termites. No live termites were seen on either of the follow-up inspections.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Health and Rehabilitative Services issue a final order in this case dismissing all charges against the Respondent, James M. Dodds. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 11th day of March, 1991. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1991. COPIES FURNISHED: Martha F. Barrera, Esquire, Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, FL 33301 Mr. James M. Dodds Creative Construction Services, Inc. P. O. Box 38-1996, Miami, Florida 33138 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact Based upon the prehearing statement, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner is a Florida corporation in good standing, authorized to do business in this state. The Petitioner owns and controls the site which is the subject matter of these proceedings. Such site is located in Brevard County, Florida. The Department has identified the subject site as DER facility no. 05- 8500985 (the facility). At all times material to this case, the facility consisted of: three underground storage tanks (UST), one 3000 gallon UST used for storing diesel fuel, one 1000 gallon UST used for storing diesel fuel, and one 1000 gallon UST used for storing gasoline; five monitoring wells; and pipes and pumps related to the foregoing system. The facility constituted a storage tank system as defined in Section 376.301, Florida Statutes, and Rule 17-761.200(38), Florida Administrative Code. The Petitioner holds, and is named insured for, third party pollution liability insurance applicable to the facility. Such insurance was issued pursuant to Section 376.3072, Florida Statutes. The policy for the foregoing insurance, policy no. FPL7622040, was in force from March 22, 1991 through March 22, 1992. The Department issued a notice of eligibility for restoration insurance to Petitioner for the above-described facility. Based upon the foregoing, the Petitioner is a participating owner or operator as defined in Chapter 17-769, Florida Administrative Code. Pursuant to Section 376.3073, Florida Statutes, Brevard County operates a local program that has been approved by the Department. Such local program is managed by the Brevard County Office of Natural Resources Management (County). In July, 1990, a discharge of diesel fuel occurred at the Petitioner's facility. Petitioner's employees estimated that approximately twenty gallons of diesel fuel filled the pump box overflowed from the pump box across the seawall into the adjacent waters. Upon discovering the discharge, Petitioner shut down diesel fuel dispensing until repairs could be made to the apparent cause of the leak. Additionally, the diesel fuel remaining in the pump box and on top of the tank area was removed. Contaminated soil in the pump box was also removed. The apparent cause of the discharge described above was attributed to cracked pipe fittings which were repaired by Glover Oil Co. within a few days of the discharge. No detailed inspection was made to the system to determine if additional sources of discharge existed. Petitioner did not complete a discharge reporting form (DRF) for the above-described incident until April 18, 1991. The April DRF was completed after Petitioner was directed to do so by Ms. DiStasio, an inspector employed by the County. From August, 1990 until May, 1991, at least one monitoring well at the Petitioner's facility showed free product accumulating in the well pipe. The exact amounts of the free product found are unknown, but reports estimated the level at 100 centimeters. From August, 1990 until September, 1991, the Petitioner did not undertake any measure to explore the origin of the free product found in the monitoring well. Further, the Petitioner did not report the monitoring well testing results as a suspected or confirmed discharge. In April, 1991, an inspection of the Petitioner's facility was performed by Ms. DiStasio. That inspection resulted in a letter to the Petitioner that outlined several violations at the facility. Among those violations listed was the Petitioner's failure to report a suspected or confirmed discharge. At the time of the April, 1991 inspection, Petitioner had reported neither the July, 1990 discharge (a known discharge) nor the monitoring well test results (at the minimum a suspected discharge). In connection with the July, 1990 discharge, following the repairs made by Glover Oil, Petitioner did not have the system pressure tested. Only the area visible from the pump box was checked for leakage. In July, 1991, when Ms. DiStasio performed a re-inspection of the facility, she found Petitioner had not (in the interim period, April through July, 1991) taken any steps to test the system or to remove the fuels from the suspect tanks. Since the free product continued to appear in the monitoring well, a pressure test of the system would have definitively answered the discharge question. Alternatively, the removal of the fuels would have prevented further seepage until the system could be pressure tested. On August 6, 1991, the Petitioner issued a letter that advised the County that it had stopped dispensing fuel at the facility. The tanks were not drained, however, until on or about September 11, 1991. Further, the August, 1991, letter acknowledged that the Petitioner "had proposals for initial remedial cleanup related to diesel contamination in the tank field area." Obviously, the Petitioner must have contemplated a need for such cleanup. On September 11, 1991, at the Petitioner's request, Petroleum Equipment Contractors, Inc. attempted to pressure test the 3000 gallon diesel tank. The purpose of the pressure test was to determine if the diesel system had a leak. The company could not even run the test on the tank because of the defective system. A similar test on the Petitioner's gasoline tank passed without incident. Once the Petitioner learned the results of the test, it initiated Initial Remedial Action (IRA) as described on the IRA report filed by Universal Engineering Sciences. The IRA consisted of the removal of the excessively contaminated soil, approximately 74 cubic yards, and the removal of the USTs. The foregoing work was completed on or about September 15, 1991. On October 4, 1991, the Petitioner filed a discharge reporting form dated October 2, 1991, that identified September 11, 1991, as the date of discovery for the discharge. This discharge discovery was allegedly made incidental to the diesel tank pressure testing failure. No reference was made to the months of monitoring well reports showing a free product. On October 8, 1991, Ms. DiStasio prepared a Florida Petroleum Liability Insurance and Restoration Program Compliance Checklist that reported the Petitioner was not in compliance with applicable statutes and rules. When Petitioner applied for restoration coverage under the statute on January 31, 1992, such request was denied by the Department on March 6, 1992. The basis for the denial was as follows: Failure to notify the Department of a positive response to sampling within three working days of testing, pursuant to the rule in effect at the time of the initial response (17-61.050(1), Florida Administrative Code). An inspection by Brevard County on April 17, 1991, revealed that free product had been detected in one monitoring well since July 1990. The discharge reporting form was not submitted until October 2, 1991.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order denying Petitioner's claim for restoration coverage under the Florida Petroleum Liability Insurance and Restoration Program. DONE and ENTERED this 31st day of December, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1992. APPENDIX TO CASE NO. 92-2121 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1, 2, 8, 12, 15, 16, 17, and 18 are accepted. Except as found above, paragraph 3 is rejected as not supported by the record cited. It is accepted that Brevard County acted as the local agent in this case. Paragraph 4 is rejected as not supported by the record. With regard to paragraph 5, substituting "A" for "The" and "confirmed" for "discovered" the paragraph can be accepted; otherwise rejected as contrary to the record. Similarly, with the substitution of the word "confirmation" for "discovery" in Paragraph 6, the paragraph can be accepted; otherwise rejected as contrary to the record. No suitable explanation was offered by the Petitioner for why, if a discharge were not reasonably suspected, it retained the company to immediately remove the USTs upon the failed pressure testing. Clearly, the Club had a notion the tanks were a discharge problem. Paragraph 7 is rejected as contrary to the weight of the evidence. While there was some confusion as to the exact volume of free product in the monitoring well, there was clear evidence that such was reported for many months prior to the confirmation in September, 1991. Further, the main confusion regarding the product found in the well was not as to its existence, but as to the individual's knowledge of the metric measurement of it. One hundred centimeters of product in a two or three inch pipe would not be a minute amount. Except as addressed in the foregoing findings, paragraph 9 is rejected as contrary to the weight of the evidence. Petitioner did not undertake all repairs necessary to abate a discharge problem. Paragraph 10 is rejected as not supported by the weight of credible evidence or irrelevant. Clearly, as early as August, 1990, Petitioner knew or should have known of a discharge problem based upon the monitoring well report; that all of the discharge did not necessarily flow from the fittings that had been repaired is irrelevant. Further, Petitioner did no testing to verify that the replaced fittings had solved the discharge problem (especially in light of the well reports). Paragraph 11 is rejected as an inaccurate restatement of the exhibit. Paragraph 13 is rejected as contrary to the weight of the evidence. Incidentally, the hearing in this case was in the year 1992. Paragraph 14 is rejected as contrary to the weight of credible evidence. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 11 are accepted. Paragraph 12 is rejected as a misstatement of the exhibit cited. Paragraphs 13 through 27 are accepted. COPIES FURNISHED: Brigette A. Ffolkes Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Scott E. Wilt MAGUIRE, VOORHIS & WELLS, P.A. 2 South Orange Plaza P.O. Box 633 Orlando, Florida 32802 Carol Browner, 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
Findings Of Fact Respondent, George Sigountos, is a licensed real estate broker-salesman having been issued license number 0080704 with a principal place of business at 4338 First Street North, St. Petersburg, Florida. Respondent has been licensed in the State of Florida for approximately ten (10) years, having been a broker- salesman in New York for approximately twenty (20) years before coming to Florida. The Respondent Sigountos was at all material times employed by Century 21 Realty, 4922-38th Avenue North, St. Petersburg, Florida. On or before March, 1979, Mr. and Mrs. John Opal listed for sale by the Respondent a house on Benson Avenue which they then occupied. Subsequently, the Opals located another house which they desired to purchase at 5871-78th Avenue North, Pinellas Park, Florida. The Opals obtained financing to purchase the Pinellas Park home although they had not yet sold their Benson Avenue home and requested the Respondent's assistance to sell their original home. On or about March 4, 1979, the Respondent, through his broker, submitted a contract to the seller, Mr. Boyce, from the Opals, who contracted for the purchase of the Boyce home with a closing date on or before April 10, 1979. The bank where financing was arranged informed the involved title company that interest rates were scheduled to increase as of March 19, 1979. As a result of this information, the title company and parties attempted to arrange to close on March 16, 1979. The Opals attended this closing while Mr. Boyce did not. The Opals, however, executed all documents necessary on their part for the closing on March 16, 1979. Included was an agreement requiring the sellers to replace three (3) boards on the back porch because of previous termite damage. This was included as a result of a prior conversation between Mr. Opal and Mr. Boyce concerning termite damage. Mr. Sigountos did not prepare this document and it is unclear how it came into existence. No termite inspection report was filed until March 19, 1979. The Boyce home was not inspected for termites until March 19, 1979, at which time the exterminator, Hobelman Exterminating Service, Inc., left his inspection report with Mrs. Boyce which stated, in part:
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Petitioner dismissing the complaint filed April 7, 1981 against the Respondent George Sigountos. DONE and ORDERED this 1st day of October, 1981, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1981. COPIES FURNISHED: Grover G. Freeman, Esquire Suite 410 4600 West Cypress Avenue Tampa, Florida 33607 Christopher C. Ferguson 5959 Central Avenue St. Petersburg, Florida 33710 C. B. Stafford, Executive Director Florida Real Estate Commision 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue The issue for determination is whether Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 is eligible for state-administered cleanup under the Drycleaning Solvent Cleanup Program pursuant to Section 376.3078, Florida Statutes.
Findings Of Fact Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 (Respondent Cleaners) operates as a drycleaning facility at 1197 West 35th Street, Hialeah, Florida. Colombina Holding Company, N.V., Inc. (Intervenor) is the owner of the real property located at 1197 West 35th Street, Hialeah, Florida. Respondent Cleaners made application with the Florida Department of Environmental Protection (Respondent DEP) for state-administered cleanup under the Drycleaning Solvent Contamination Cleanup Program (Drycleaning Cleanup Program). By letter dated October 25, 1996, Respondent DEP notified Respondent Cleaners, among other things, that its application was approved and that it was eligible to participate in the Drycleaning Cleanup Program. Prior to Respondent Cleaner's approval to participate in the Drycleaning Cleanup Program, Metropolitan Dade County (Petitioner) issued to Respondent Cleaners a Notice of Violation and Orders for Corrective Action (NOV) for contamination at the drycleaning facility. The NOV required Respondent Cleaners to assess and remediate the contamination and to pump out and clean a soakage pit. Having received the NOV, Respondent Cleaners obtained the services of an environmental consultant to assess the contamination on the site and to propose a plan of remediation. Respondent Cleaners maintained contact with Petitioner and advised Petitioner of the progress. Petitioner required Respondent Cleaners to submit a Contamination Assessment Report (CAR) and IW Process Change Plans for the facility. Respondent Cleaners complied with the requirement. By letter dated November 21, 1996, counsel for Respondent Cleaners made inquiry to Respondent DEP as to whether pump out or cleaning of contamination in a soakage pit was included within the Drycleaning Cleanup Program. On November 20, 1996, Petitioner's Department of Environmental Resources Management (DERM) conducted a routine inspection and a receptor survey of Respondent Cleaners. No violations were observed by the inspector. Respondent Cleaners has not remediated the contamination at the facility site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order finding Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 eligible to participate in the Drycleaning Solvent Contamination Cleanup Program. DONE AND ENTERED this 21st day of April, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1998.
The Issue The issue for consideration in this hearing is whether the Petitioner is entitled to reimbursement for clean up costs associated with the Initial Remedial Action, (IRA), activities of the Abandoned Tank Restoration Program performed at his facility, and if so, in what amount.
Findings Of Fact At all times the Respondent, Department of Environmental Protection, (Department), has been the state agency in Florida responsible for the administration of the state's Abandoned Tanks Restoration Program. Petitioner is the owner and operator of Mohammad's Supermarket, Department facility No. 29-8628197, a food market and gasoline station located at 3320 Hillsborough Avenue in Tampa. Petitioner has owned and operated the facility for approximately the last ten years. The facility in question included three 5,000 gallon gasoline underground storage tanks and one 5,000 diesel underground storage tank. The diesel tank has not been used for the storage of diesel product for the entire time the Petitioner has owned the facility, at least ten years, but the three gasoline tanks were in use after March 1, 1990. Gasoline tanks were reinstalled at the facility and are still in use. In March, 1993, Petitioner removed all four underground storage tanks from the facility and performed initial remedial action. The field and laboratory reports of the soil and groundwater samples taken at the site at the time the tanks were removed showed both gasoline and diesel contamination. In October, 1993, the Petitioner submitted an application for reimbursement of certain costs associated with the IRA program task to the Department. Thereafter, by letter dated August 5, 1994, the Department notified Petitioner that it had completed its review of the reimbursement application and had allowed Petitioner 25% of the total amount eligible for reimbursement. This was because since the Petitioner continued to use the gasoline tanks after March 1, 1990, the Petitioner's ATRP eligibility is limited to clean up of only the diesel contamination. Petitioner's application for reimbursement covered the entire cost of the tank removal, both gasoline and diesel, and did not differentiate between the costs associated with the remediation of the gasoline contamination and those associated with the diesel contamination. The 25% allowance was for the one tank, (diesel fuel), which was eligible for ATRP clean up reimbursement. The Department subtracted from the personnel costs in the amount of $5,996.25, claimed in Section 2A of the claims form, the sum of $45.00 for costs associated with ATRP eligibility status; $497.50 claimed as a cost associated with the preparation of a Tank Closure Report, and $3,508.75 claimed as costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR). These deductions were made because costs associated with ascertaining ATRP eligibility status, the preparation of a Tank Closure report, and the preparation of a preliminary CAR are all costs ineligible for reimbursement. These three ineligible costs total $4,051.25. When this sum is deducted from the amount claimed, the remainder is $1,944.50. The Department then reduced this figure by prorating it at 25% for the diesel tank and 75% for the gasoline tanks, disallowing the gasoline portion. With that, the total reimbursement for Section 2A, personnel, costs is $486.25. Petitioner claimed $1,765.00 for rental costs, (Section 2C), associated with soil removal, from which the Department deducted the sum of $1,550.00 which represents costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR), which is not eligible for reimbursement. The balance of $215.00 was reduced by the 75%, ($161.27), which related to the three gasoline tanks, leaving a balance of $53.75 to be reimbursed for rental costs attributable to the diesel contamination. Petitioner also claimed $12,865.75 for miscellaneous costs associated with soil removal. This is listed under Section 2I of the application. From that figure the Department deducted the sum of $9,455.99 as costs attributable to the three gasoline tanks. In addition, $2,017.43 was disallowed because it related to the preliminary CAR, and $3,151.99 was deducted because the tank was removed after July 1, 1992. The applicable rule requires justification in the Remedial Action Plan, (RAP), for removal of tanks after that date. Such costs, when justified, can be reimbursed as a part of a RAP application. A further sum of $1,759.66 was deducted from the 2I cost reimbursement since the applicant got that much as a discount on what it paid. Together the deductions amounted to $16,385.07, and when that amount is deducted from the amount claimed, a negative balance results. Section 3 of the application deals with soil treatment. Subsection 3I pertains to such miscellaneous items as loading, transport and treatment of soil. The total amount claimed by Petitioner in this category was $13,973.44. Of that amount, $10,480.00 was deducted because it related to the three gasoline tanks. The amount allowed was $3,493.44, which represents 25% of the total claimed. Category 7 on the application form deals with tank removal and replacement. Section 7A relates to personnel costs and Petitioner claimed $4,187.00 for these costs. Of this, $3,140.25 was deducted as relating to the three gasoline tanks and amounted to 75% of the claimed cost. In addition, $1,046.75 was deducted because the diesel tank was removed after July 1, 1992 and there was no justification given for the removal at that time. This cost might be reimbursed through another program, however. In summary, all personnel costs were denied, but so much thereof as relates to the diesel tank may be reimbursed under another program. Section 7C of the application form relates to rental costs for such items as loaders, trucks and saws. The total claimed was $2,176.00. Of this amount, $1,632.00 was deducted as relating to the three gasoline tanks, and an additional $544.00 was deducted as being associated with the non-justified removal of the diesel tank after July 1, 1992. As a result, all costs claimed in this section were denied. In Section 7D, relating to mileage, a total of $12.80 was approved, and for 7G, relating to permits, a total of $28.60 was approved. In each case, the approved amount constituted 25% of the amount claimed with the 75% disallowed relating to the three gasoline tanks. Section 7I deals with miscellaneous expenses relating to tank removal and replacement. The total claimed in this section was $2,262.30. A deduction of $1,697.11 was taken as relating to the three gasoline tanks, and $565.69 was deducted because the removal after July 1, 1992 was not justified in the application. This cost may be reimbursed under a separate program, but in this instant action, the total claim under this section was denied. Petitioner asserts that the Department's allocation of 75` of the claimed costs to the ineligible gasoline tanks is unjustified and inappropriate. It claims the majority of the costs where incurred to remove the eligible diesel fuel contamination and the incidental removal of overlapping gasoline related contamination does not justify denial of the costs to address the diesel contamination. To be sure, diesel contamination was detected throughout the site and beyond the extend of the IRA excavation. The soil removed to make room for the new tanks was contaminated and could not be put back in the ground. It had to be removed. The groundwater analysis shows both gasoline and diesel contamination at the north end of the property furthest from the site. The sample taken at that point, however, contains much more gasoline contaminant than diesel. Petitioner contends that the costs denied by the Department as relating to gasoline contamination were required in order to remove the diesel contamination and Petitioner should be reimbursed beyond 25%. It contends that the diesel contamination could not have been removed without removing all four tanks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered denying Petitioner request for additional reimbursement of $27,653.82 and affirming the award of $6,629.07. RECOMMENDED this 25th day of September, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1995. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Francisco J. Amram, P.E. Qualified Representative 9942 Currie Davis Drive, Suite H Tampa, Florida 33619 Virginia B. Wetherell Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-1000 Kenneth Plante General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-1000
The Issue The 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.
Findings Of Fact The parties stipulated to findings of fact set forth in paragraphs 1.- 8.,below. Stipulated Facts Respondent has documented contamination from the abandoned petroleum storage system. The abandoned petroleum storage system has been properly closed. Petitioner submitted an application to Respondent on Respondent's forms 17-769.900(3) and (4), F.A.C., which was postmarked on or before June 30, 1992. The site is not eligible for cleanup pursuant to Section 376.3071(9) and (12), Florida Statutes, the Early Detection Incentive Program, or the Florida Petroleum Liability and Restoration Insurance Program pursuant to Section 376.3072, Florida Statutes. This site is not owned or operated by the federal government. This site did not have leaking tanks that stored pollutants that are not petroleum products as defined in Section 376.301, Florida Statutes. Respondent was not denied access to this site. Petroleum contamination was not discovered after the application deadline of June 30, 1992. Additional Facts Petitioner, a Florida corporation with its principal place of business in Leon County, Florida, is in the business of owning and leasing property. Petitioner is the fee simple owner of property located at 2022 Wahnish Way in Tallahassee, Florida. The property located on Wahnish Way was leased to James T. "Pete" Thomas by Petitioner's predecessor in title. Thomas operated a gasoline station and automobile repair garage on the property. The lease with Thomas was continued by Petitioner without change upon Petitioner's assumption of the legal title to the property in 1985. Prior to Petitioner's assumption of title to the property, Thomas had installed four petroleum storage systems in a four tank pit on the property in the early 1970's. Each tank and its integral piping is a petroleum storage system, as defined by Section 376.301(15), Florida Statutes (1991). In the early 1980's, Thomas and his wholesale gasoline distributor determined that one of the four underground tanks was losing petroleum product. In 1982, Thomas ceased using the southernmost tank in the pit for the storage of petroleum products for subsequent consumption, use or sale. The distributor ceased placing gasoline in the southernmost tank. Later, in compliance with subsequent statutory enactments, Thomas registered all of the tanks, including the abandoned southernmost tank with Respondent by the statutory deadline of December 31, 1984. Although Thomas signed the registration documents as an agent of Petitioner, he was not such an authorized agent and the registration occurred without the knowledge or approval of Petitioner. As a result, Petitioner cannot be viewed as having filed the registration. Petitioner, unaware that Thomas had experienced any product loss problems or that the tanks on the property had been registered by Thomas with Respondent, became aware of both matters following receipt of a letter from government officials of Leon County, Florida, on November 20, 1990. As set forth in that letter, Petitioner was apprised that the tanks were not in compliance with State of Florida standards and would have to be closed or retrofitted to bring the tanks into compliance. Following receipt of the letter, Petitioner informed Thomas that selling of gasoline at the site was to be discontinued immediately. Closure of the tanks, performed in early 1991 by contractors retained by Petitioner, consisted of excavation and removal of the petroleum storage systems from the property. All four tanks were in the tank pit side by side, from the northernmost end of the pit to the southern end of the pit fronting on Osceola Street in Tallahassee, Florida. When the removal was completed, a Closure Assessment form was prepared by one of the contractors, Jim Stidham and Associates, in accordance with requirements of Florida law. During that process, excessive contamination from petroleum product of the soils in the extreme south end of the tank pit was discovered. Excessive contamination, defined as anything more than 500 parts per million, was located beneath the southernmost pump on the southern end of the pump island and in the southern end of the pit. Both soil sample seven in the southernmost end of the pit and soil sample 11 under the southernmost pump document these unacceptable high levels of contamination. A 20 foot soil boring as near as possible to the southernmost tank on the site revealed the unacceptable levels of contamination extended to that depth. As supported by the testimony of James A. Stidham, Petitioner's expert in the assessment of contamination caused by underground petroleum storage tanks, the location of contamination in the pit area establishes that the tank causing the contamination was the southernmost tank. In view of the location of the contamination in the pit area, the tank discovered to have a hole in it at the time of removal was the southernmost tank. The excessive contamination located at the shallow depth of two feet under the southernmost pump resulted from the improper disconnection of piping attached to the pump and is not attributable to the leak in the tank. Each tank was connected by piping on the eastern end of each tank to the corresponding pump. The southernmost pump was not used after 1982 and was missing integral parts by the time the tanks were closed. In the course of exploring options for clean up of the property, Petitioner filed for assistance from Respondent in the form of participation in the ATRP. Unaware of the true date of the cessation of use of the southernmost tank, Petitioner gave the date of last use for all tanks in the pit by stating that the "tanks were taken out of service between December 15, 1990 and January 15, 1991." Petitioner provided this response to Respondent's July 30, 1991 request for further information on August 6, 1991. Although Respondent made an initial determination to deny Petitioner's application in the middle of August, 1991, that action was not communicated to Petitioner. Instead, Petitioner's application was held by Respondent, pending possible amendment to Section 376.305(7), Florida Statutes (1991), the law controlling admission to the ATRP. Respondent held Petitioner's application for a total of 19 months before issuance of a formal decision to deny the application on February 26, 1993. Such delay by Respondent is unreasonable. Respondent's denial of Petitioner's application was based upon the eligibility requirement restricting ATRP participants to those situations where the petroleum storage system has not stored petroleum products for consumption, use or sale after March 1, 1990, and the belief of Respondent's personnel that all storage systems on Petitioner's property had stored products beyond that date. Specifically, Respondent eventually gave notice that it intended to deny Petitioner's application for participation in the ATRP for the following reason: Eligibility in the Abandoned Tank Restoration Program is restricted to those petroleum storage systems that have not stored petroleum products for consumption, use or sale after March 1, 1990, pursuant to Section 17-769.800(3)(a), Florida Administrative Code. Respondent utilized provisions of Subsection 376.305(7)(f), Florida Statutes (1991), to permit entry of some applicants into the ATRP, demonstrating that Respondent did not consider the March 1, 1990 deadline contained in provisions of Subsection 376.305(7)(b), Florida Statutes (1991), to be absolute. As attested at the final hearing by Respondent's employee, Respondent considered "variables" when determining whether to enforce the March 1, 1990, deadline. Those variables comprise the criteria listed in Subsection 376.305(7)(f), Florida Statutes (1991). By use of those variables, Respondent effectively applied provisions of Subsection 376.305(7)(f), Florida Statutes (1991), to some program applicants other than Petitioner and permitted their participation while choosing to refrain from final agency action under that same criteria with regard to Petitioner's application pending subsequent legislative enactment. Petitioner's southernmost tank is an abandoned petroleum storage system that was not required to be registered with Respondent when it was in service; the system came into the possession of Petitioner following its abandonment; was never returned to service; and is not otherwise eligible for cleanup pursuant to Subsection 376.3071(9), Florida Statutes, or Section 376.3072, Florida Statutes.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered granting Petitioner's application for participation in the ATRP with regard to contamination resulting from Petitioner's southernmost petroleum storage system. DONE AND ENTERED this 1st day of February, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2658 The following constitutes my rulings, pursuant to Section 120.59, Florida Statutes, upon proposed findings of fact submitted by the parties: Petitioner's Proposed Findings. 1.-23. Adopted, though not verbatim. Respondent's Proposed Findings. 1.-2. Rejected, not supported by weight of the evidence. 3.-4. Rejected, subordinate to HO findings on this point. 5.-11. Accepted. Rejected, relevance. A mischaracterization of the evidence in that the testimony establishes that an existing lease agreement was continued. Accepted to the extent that the evidence establishes that there were four tanks in the pit. Rejected, credibility, weight of the evidence as to the accuracy of the registration form in the face of conflicting evidence. 16.-18. Rejected, weight of the evidence. 19.-20. Accepted. 21.-22. Rejected, subordinate. Accepted. Rejected, relevance. 25.-26. Accepted. 27.-29. Rejected, subordinate. Rejected, relevance. Rejected, argumentative. Accepted. Rejected, legal conclusion, argumentative. COPIES FURNISHED: Melissa Fletcher Allaman Attorney at Law Post Office Drawer 1170 Tallahassee, Florida 32302 Jefferson M. Braswell Lisa M. Duchene W. Douglas Beason Assistant General Counsels Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
