The Issue The issues to be resolved are whether Respondent performed repairs to septic tank systems without obtaining the required permits in three different instances, in violation of Florida Administrative Code Rule 64E-6.022, and if so, what penalty should be imposed for the violations proven.
Findings Of Fact The Department, an agency of the State of Florida, has responsibility for the regulation of septic tank contractors pursuant to Chapters 381, 386 and 489, part III, Florida Statutes. The Respondent, Scott Womble, is a resident of the State of Florida and has been authorized by the Department to provide septic tank contracting services. 5168 Pimlico Drive In 2003, Respondent replaced the drainfield on the real property located at 5168 Pimlico Drive, Tallahassee, Florida. A permit for the repair of the drainfield was issued in 2003, which listed Respondent as the agent for the permit applicant. In 2006, Respondent pumped out the septic tank at the Pimlico Drive location. Pumping out the septic tank does not require a permit. In 2006, Respondent also installed new "old style" chambers and end caps. Chambers are used to repair the drainfield. Repair of the drainfield requires a permit. A review of the records for the Leon County Health Department REHOST database revealed that no permits had been applied for or obtained for any work in 2006, 2007 or 2008 at the Pimlico address. 1351 Cochise Trail On or about December 19, 2008, Alex Mahon and Kathy Davis from the Leon County Health Department, Environmental Health Division, went to real property located at 1351 Cochise Trail in Tallahassee. Mahon and Davis went to the property in response to a phone call received from Respondent requesting the verification of a site evaluation. Site evaluations are required to be completed as part of the application process for a permit for septic tank installation. When Mahon and Davis arrived at the property, no one from Respondent's company was present. However, upon their arrival they observed that the septic tank and drainfield had been installed. A permit application had been submitted for the work at 1351 Cochise Trail. However, the application was incomplete and the permitting fee had not been included with the application. Accordingly, no permit had been issued for the work that was already completed at the time Mahon and Davis visited the site. Later that day, Respondent provided the missing documentation required for the issuance of the permit, and paid the permitting fee. At that time, a permit for the work was issued. 2207 Bannerman In January 2009, Kathy Davis from the Leon County Health Department received a call that work was being performed at 2207 Bannerman Road, which was the location for the La Hacienda Restaurant. She visited the site to see what work was being performed. At the time of Ms. Davis' visit, there was no work being performed at the site. There was, however, equipment present at the location and excavation of the drainfield had been performed. Used drainfield chambers had been dug up and were present on the site as well. No permit had been obtained for drainfield repair. Ms. Davis could not say whether any drainfield had been installed. She could only state with certainty that the area containing the drainfield had been excavated. Ms. Davis was aware that Respondent had been pumping out the septic tank on the property, which did not require a permit.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Department of Health enter a Final Order finding Respondent guilty of Count I and issuing a letter of warning; finding Respondent guilty of Count II and imposing a $750 fine; and dismissing the charges in Count III. DONE AND ENTERED this 10th day of November, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 2009.
The Issue The issue for consideration in this hearing is whether the Petitioner is entitled to reimbursement for clean up costs associated with the Initial Remedial Action, (IRA), activities of the Abandoned Tank Restoration Program performed at his facility, and if so, in what amount.
Findings Of Fact At all times the Respondent, Department of Environmental Protection, (Department), has been the state agency in Florida responsible for the administration of the state's Abandoned Tanks Restoration Program. Petitioner is the owner and operator of Mohammad's Supermarket, Department facility No. 29-8628197, a food market and gasoline station located at 3320 Hillsborough Avenue in Tampa. Petitioner has owned and operated the facility for approximately the last ten years. The facility in question included three 5,000 gallon gasoline underground storage tanks and one 5,000 diesel underground storage tank. The diesel tank has not been used for the storage of diesel product for the entire time the Petitioner has owned the facility, at least ten years, but the three gasoline tanks were in use after March 1, 1990. Gasoline tanks were reinstalled at the facility and are still in use. In March, 1993, Petitioner removed all four underground storage tanks from the facility and performed initial remedial action. The field and laboratory reports of the soil and groundwater samples taken at the site at the time the tanks were removed showed both gasoline and diesel contamination. In October, 1993, the Petitioner submitted an application for reimbursement of certain costs associated with the IRA program task to the Department. Thereafter, by letter dated August 5, 1994, the Department notified Petitioner that it had completed its review of the reimbursement application and had allowed Petitioner 25% of the total amount eligible for reimbursement. This was because since the Petitioner continued to use the gasoline tanks after March 1, 1990, the Petitioner's ATRP eligibility is limited to clean up of only the diesel contamination. Petitioner's application for reimbursement covered the entire cost of the tank removal, both gasoline and diesel, and did not differentiate between the costs associated with the remediation of the gasoline contamination and those associated with the diesel contamination. The 25% allowance was for the one tank, (diesel fuel), which was eligible for ATRP clean up reimbursement. The Department subtracted from the personnel costs in the amount of $5,996.25, claimed in Section 2A of the claims form, the sum of $45.00 for costs associated with ATRP eligibility status; $497.50 claimed as a cost associated with the preparation of a Tank Closure Report, and $3,508.75 claimed as costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR). These deductions were made because costs associated with ascertaining ATRP eligibility status, the preparation of a Tank Closure report, and the preparation of a preliminary CAR are all costs ineligible for reimbursement. These three ineligible costs total $4,051.25. When this sum is deducted from the amount claimed, the remainder is $1,944.50. The Department then reduced this figure by prorating it at 25% for the diesel tank and 75% for the gasoline tanks, disallowing the gasoline portion. With that, the total reimbursement for Section 2A, personnel, costs is $486.25. Petitioner claimed $1,765.00 for rental costs, (Section 2C), associated with soil removal, from which the Department deducted the sum of $1,550.00 which represents costs associated with the preparation of a preliminary Contamination Assessment Report, (CAR), which is not eligible for reimbursement. The balance of $215.00 was reduced by the 75%, ($161.27), which related to the three gasoline tanks, leaving a balance of $53.75 to be reimbursed for rental costs attributable to the diesel contamination. Petitioner also claimed $12,865.75 for miscellaneous costs associated with soil removal. This is listed under Section 2I of the application. From that figure the Department deducted the sum of $9,455.99 as costs attributable to the three gasoline tanks. In addition, $2,017.43 was disallowed because it related to the preliminary CAR, and $3,151.99 was deducted because the tank was removed after July 1, 1992. The applicable rule requires justification in the Remedial Action Plan, (RAP), for removal of tanks after that date. Such costs, when justified, can be reimbursed as a part of a RAP application. A further sum of $1,759.66 was deducted from the 2I cost reimbursement since the applicant got that much as a discount on what it paid. Together the deductions amounted to $16,385.07, and when that amount is deducted from the amount claimed, a negative balance results. Section 3 of the application deals with soil treatment. Subsection 3I pertains to such miscellaneous items as loading, transport and treatment of soil. The total amount claimed by Petitioner in this category was $13,973.44. Of that amount, $10,480.00 was deducted because it related to the three gasoline tanks. The amount allowed was $3,493.44, which represents 25% of the total claimed. Category 7 on the application form deals with tank removal and replacement. Section 7A relates to personnel costs and Petitioner claimed $4,187.00 for these costs. Of this, $3,140.25 was deducted as relating to the three gasoline tanks and amounted to 75% of the claimed cost. In addition, $1,046.75 was deducted because the diesel tank was removed after July 1, 1992 and there was no justification given for the removal at that time. This cost might be reimbursed through another program, however. In summary, all personnel costs were denied, but so much thereof as relates to the diesel tank may be reimbursed under another program. Section 7C of the application form relates to rental costs for such items as loaders, trucks and saws. The total claimed was $2,176.00. Of this amount, $1,632.00 was deducted as relating to the three gasoline tanks, and an additional $544.00 was deducted as being associated with the non-justified removal of the diesel tank after July 1, 1992. As a result, all costs claimed in this section were denied. In Section 7D, relating to mileage, a total of $12.80 was approved, and for 7G, relating to permits, a total of $28.60 was approved. In each case, the approved amount constituted 25% of the amount claimed with the 75% disallowed relating to the three gasoline tanks. Section 7I deals with miscellaneous expenses relating to tank removal and replacement. The total claimed in this section was $2,262.30. A deduction of $1,697.11 was taken as relating to the three gasoline tanks, and $565.69 was deducted because the removal after July 1, 1992 was not justified in the application. This cost may be reimbursed under a separate program, but in this instant action, the total claim under this section was denied. Petitioner asserts that the Department's allocation of 75` of the claimed costs to the ineligible gasoline tanks is unjustified and inappropriate. It claims the majority of the costs where incurred to remove the eligible diesel fuel contamination and the incidental removal of overlapping gasoline related contamination does not justify denial of the costs to address the diesel contamination. To be sure, diesel contamination was detected throughout the site and beyond the extend of the IRA excavation. The soil removed to make room for the new tanks was contaminated and could not be put back in the ground. It had to be removed. The groundwater analysis shows both gasoline and diesel contamination at the north end of the property furthest from the site. The sample taken at that point, however, contains much more gasoline contaminant than diesel. Petitioner contends that the costs denied by the Department as relating to gasoline contamination were required in order to remove the diesel contamination and Petitioner should be reimbursed beyond 25%. It contends that the diesel contamination could not have been removed without removing all four tanks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered denying Petitioner request for additional reimbursement of $27,653.82 and affirming the award of $6,629.07. RECOMMENDED this 25th day of September, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1995. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Francisco J. Amram, P.E. Qualified Representative 9942 Currie Davis Drive, Suite H Tampa, Florida 33619 Virginia B. Wetherell Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-1000 Kenneth Plante General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-1000
The Issue The issue is whether Respondent should correct a health violation and have a $500.00 fine imposed for violating an agency rule and statute, as alleged in the Citation for Violation issued by Petitioner on December 22, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves an allegation that Respondent, Steve DeLuca, violated an agency regulation and statute by making repairs to a drainfield on property located at 1444 East New York Avenue, Deland, Florida, without obtaining the necessary permits from the Volusia County Department of Health (Health Department). That department is under the direction and control of Petitioner, Department of Health (Department). Respondent denies the charge and, as clarified for the first time at hearing, contends that the repairs were minor in nature and thus did not require a permit, no authorization was given to the excavation firm which performed the repairs, and the Citation was not issued to the actual owner of the property. On October 29, 1999, William N. VanderLugt (Vanderlugt), a Health Department environmental specialist, received a complaint regarding a septic tank repair being undertaken at 1430 East New York Avenue, Deland, Florida. During the course of inspecting that property, Vanderlugt observed excavation activities on the drainfield located next door at 1444 East New York Avenue. More specifically, Vanderlugt observed an area in the back yard approximately 6 feet by 20 feet in size which had been recently excavated and a large pile of sand nearby. In the excavated site, he saw a rock bed of the size commonly used in drainfields, "clean" and "newly installed" rocks, and a "black paper" covering a part of the rocks. Therefore, he concluded that the excavating firm had just installed a new rock drainfield. This type of activity constitutes a repair to an existing drainfield and requires that such work be performed by a licensed septic tank contractor. It also requires that appropriate permits be obtained from the Health Department. Although Respondent contended that the work was merely to correct a "minor structural flaw" which would not require a permit, Vanderlugt's testimony is more persuasive on this issue, and it is found that a more substantial repair to the drainfield was made. Further inquiry by Vanderlugt revealed that no permits had been obtained for the repair of a drainfield from the Health Department by the excavating company, Collier Enterprises. After a brief conversation with a Collier Enterprises employee, the substance of which is hearsay in nature and cannot be used, Vanderlugt visited the offices of Delco Oil Company and spoke with Respondent, who is employed by that firm. In doing so, Vanderlugt was under the impression that Respondent owned the property in question. During his brief conversation with Repondent, Vanderlugt pointed out that he had to issue a citation because no permit had been obtained for the work at the property in question. DeLuca responded with words to the effect that "they [Collier Enterprises] broke a pipe and they fixed what they broke." Apparently, there was no discussion as to whether Respondent or someone else actually owned the property. Vanderlugt returned to the property in question and performed a second inspection on November 3, 1999. Because no permits had been obtained by that date, and the drainfield site had been covered, a recommendation for a citation was prepared by Vanderlugt. A Citation for Violation was later issued by the Department on December 22, 1999, alleging that Respondent had failed to obtain permits before making a drainfield repair. The Citation was delivered to Respondent at Delco Oil Company. Because Collier Enterprises was not licensed to perform the work, it was given a first violation "warning" letter by the Health Department, as required by a Department rule. During later meetings with Respondent and others, Vanderlugt learned that the actual owner of the property in question was Deluca Properties, Inc., and not Steve DeLuca. For some reason, however, the Department declined to amend its citation and charge the actual owner with the alleged violation. Although Petitioner asserted at hearing and in its Proposed Recommended Order that Respondent is the owner's registered agent, there is no competent evidence of record to support this assertion. According to the general manager of Delco Oil Company, which is apparently owned by Steve Deluca and others, no permission was given to the excavating company to make any repairs. Indeed, Deluca Properties, Inc. has a licensed septic tank contractor who makes all septic tank repairs, when needed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the Administrative Complaint for lack of jurisdiction. DONE AND ENTERED this 14th day of June, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2000. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Christopher R. Ditslear, Esquire Post Office Box 41 Deland, Florida 32721-0041 William W. Large, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
Findings Of Fact On December 25, 1979, Garden Oliver, a petroleum inspector with the Department of Agriculture and Consumer Services (hereafter Department) took a gasoline sample from the number one storage tank at Thompson Service Station, 4001 South Olive Avenue, West Palm Beach, Florida. This sample was shipped to Port Everglades, Ft. Lauderdale, Florida, for analysis and on January 8, 1980, the Petitioner was notified that the unleaded gasoline in the storage tank was illegal in that it contained .55 gram of lead per gallon, which is in excess of .05 gram of lead per gallon allowable under the Department rules governing the sale of unleaded gasoline to the public. On the basis of the laboratory analysis, Mr. Oliver placed a stop sale notice on the tank which dispensed the illegal unleaded gasoline. However, in the interim period between the original sampling and posting of the stop sale notice, an additional delivery of unleaded gasoline was placed in storage tank number one which necessitated a second sample. The laboratory analysis was performed in Port Everglades and again showed a lead content in excess of that allowed by Department rules. The Petitioner was permitted to post a $1,000 bond to secure the release of 3,160 gallons of leaded gasoline remaining in tank number one which was then sold by the service station as regular gasoline. The Petitioner attempted to discover the cause of the contamination and found that during the course of renovation of the service station an existing line running' between storage tanks was overlooked. The lime ran between a leaded and unleaded storage tank which had recently been converted from leaded and permitted the leaded gasoline to flow into and contaminate the unleaded tank. The contamination was not deliberate and the problem has now been corrected by sealing off the line. There is no dispute as to the facts as set forth above. The only dispute is whether Petitioner is entitled to the refund of the $1,000 bond because of the unusual circumstances surrounding this case. In mitigation, the Petitioner has asserted that Sunmark Industries has am unblemished record of serving the public and that the cause of the contamination was accidental. The Petitioner has not challenged the authority of the Department to require the posting of a $1,000 bond in lieu of confiscation.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department return to the Petitioner $500.00 of the $1,000 bond required to be posted in lieu of confiscation of 3,160 gallons of leaded gasoline. DONE and RECOMMENDED this 8th day of January, 1981, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1981. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301 Arthur Weyant Maintenance Supervisor Sunmark Industries Post Office Box 13135 Fort Lauderdale, Florida 33318 John Whitton Chief, Bureau of Petroleum Inspection Division of Standards Mayo Building Tallahassee, Florida 32301
Findings Of Fact Petitioner owns and operates a gasoline station located at 4625 U.S. 27 North, Davenport, Florida. The site was constructed in late 1986 and opened in early 1987. The underground tanks storing the gasoline are connected by pipes running underground to the pumps from which the gasoline is dispensed. A small portion of the underground supply pipe is accessible from the surface through a manhole. The excavated area exposing the pipe and what appears to be a valve are separated from the surrounding soil by a large, cylindrical corrugated pipe laid perpendicular to and above the underground supply pump. The leak in question was caused when the lower edge of the corrugated pipe cut into the underground supply pipe for the premium gasoline. The cut was caused by the cumulative effect of vehicular traffic driving over the manhole cover, placing pressure on the corrugated pipe, and eventually forcing the edge of the corrugated pipe to rupture the underground supply pipe with which it was in contact. Petitioner owns and operates a large number of gasoline stations. This incident is the first time that a corrugated pipe has cut into an underground supply pipe. The use of the corrugated pipe is not at issue in the present case. Pursuant to company policy, station employees complete a daily recap each day and forward the recap document to Petitioner. Part of the recap document is devoted to "gas inventory." The daily recap, which covers the preceding 24 hours, requires that an employee determine the amount of gasoline in each underground storage tank, adjust the figure for amounts sold and delivered, and then compare the figure to the amount determined to have been in the tank 24 hours earlier. This reconciliation is normally completed by mid- to late-morning each day. A station employee "sticks" each tank to determine how much gasoline it contains. The procedure requires that the employee insert a pole into the bottom of an underground tank. By observing the length of the pole dampened by gasoline, the employee can calculate approximately the amount of gasoline in the tank. Although stick reading results in an approximation, the results are fairly accurate, leaving at most, in the case of this 12,000-gallon tank, a margin of error of 50 gallons. "Sticking" normally takes place daily between 6:30 a.m. and 7:00 a.m. On the morning of March 6, 1988, which was a Sunday, the employee sticking the tank calculated that the premium tank held 5419 gallons. There had been no deliveries during the preceding 24 hours. During the same period, the station had sold 914 gallons of premium gasoline. However, the last sticking 24 hours earlier had disclosed 7989 gallons. A total of 1656 gallons were thus unaccounted for. The recap document requires that the station notify Respondent's "Dist. Mgr. immediately if shortage of 500 gallons or more appears." The employee failed to do so. On the morning of March 7, 1988, the employee sticking the premium tank calculated that it held 2147 gallons. During the preceding 24 hours, there had been no deliveries and 826 gallons of premium gasoline had been sold. Consequently, 2446 gallons were missing, for a total of 4102 gallons over the past two stickings. As soon as the reconciliation was completed, the employee contacted Respondent's management, which ordered that the pump be shut down during the afternoon of March 7, 1988. Comparing the sales of premium gasoline for the 24- hour period ending March 8 with those ending March 7, which are comparable because the sale of regular gasoline on those two days is almost identical, the station sold about 39% of a normal day's sales of premium gasoline. Reflecting the shutdown of the premium pumps on March 7, the employee sticking the tank on the morning of March 8, 1988, found 593 gallons. During the preceding 24 hours, there had been no deliveries and sales of 321 gallons of premium had been sold, leaving 1233 gallons unaccounted for. The total over the three stickings was 5335 gallons lost. The station had previously not experienced losses even approaching this magnitude. The daily recap for the 24-hour period ending on March 5, 1988, showed no significant loss. Although fluctuations in volume may occur shortly after deliveries due to temperature differentials, such fluctuations could not reasonably have accounted for these vast discrepancies. Theft, measurement errors, and recording errors may also account for variations in readings, but not of the magnitude and repetition involved in this case. Between the time of the reconciliation on the morning of March 6 and the system shutdown on the afternoon of March 7, the system continued operating and, thus, leaking for 28-30 hours. Given that 2446 gallons were lost during the 24-hour period ending on March 7 and 1233 gallons lost during about 9 hours on March 8, at least 100 gallons per hour were escaping from the pipe during these last 28-30 hours, for a total of between 2800 and 3000 gallons. For reasons discussed in the Conclusions of Law, the actions and omissions of the station employees following the reconciliation of inventory figures on March 6 constituted gross negligence in the maintenance of a petroleum storage system. These actions and omissions were in the scope of employment. During the relevant period of time, none of Respondent's employees performed monthly checks of the monitoring wells to determine the presence of leaks. This failure was due to ignorance and was not wilful. This failure in no way contributed to the leak or to any delay in discovering the leak. During the relevant period of time, the monitoring wells had not been properly grouted to prevent introduction of surficial contamination. However, this failure was unknown to Petitioner, which had hired a contractor to construct the wells and reasonably had relied on the contractor to grout properly the monitoring wells. The improper grouting in no way contributed to the leak or to any delay in discovering the leak. During the relevant period of time, Petitioner was not performing weekly or five-day averages of inventory records concerning gasoline. The failure to perform these reconciliations in no way contributed to the leak or to any delay in discovering the leak. Following the discovery of the leak, Petitioner notified Respondent on March 8. Petitioner requested approval to participate in the Early Detection Incentive Program by filing a Notification Application dated March 29, 1988. On July 14, 1988, Respondent completed the Pollutant Storage Tank System Inspection Report Form and Early Detection Incentive Program Compliance Verification Checklist. These documents indicate that Respondent was not monitoring monthly its monitoring wells, failed to grout properly its monitoring wells, was not performing the weekly or five-day averages of inventory (although it was taking daily inventory and reconciling opening and closing inventories), and did not immediately investigate the 1600-gallon shortage disclosed on the morning of March 6, 1988. By letter dated September 30, 1988, Respondent notified Petitioner that its site was ineligible for state-administered cleanup under the Early Detection Incentive Program. The letter cited as reasons the wilful failure to perform monthly checks of the monitoring well, the failure to immediately investigate discrepancies in inventory records while the system continued to operate after initial discovery of the 1600-gallon loss, and the improper construction of the monitoring well with respect to the improper grouting. The letter concludes that these items constitute gross negligence in the maintenance of a petroleum storage system, which precludes participation in the program.
Recommendation Based on the foregoing, it is hereby recommended that the Department of Environmental Regulation enter a Final Order denying the application of Petitioner to participate in the Early Detection Incentive Program. RECOMMENDED this 26th day of March, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1561 Treatment Accorded Proposed Findings of Petitioner 1-4: adopted. 5-6: adopted in substance. 7-16: adopted. 17: rejected as unsupported by the greater weight of the evidence. 18-20: adopted or adopted in substance. 21: to the extent that this proposed finding suggests that Petitioner was performing the five-day or weekly averaging, rejected as unsupported by the greater weight of the evidence. However, in view of the findings and conclusions contained in the Recommended Order, rejected as unnecessary. 22-26: adopted. Treatment Accorded Proposed Findings of Respondent 1-4: rejected as conclusions of law. 5-6: adopted. 7-16: rejected as subordinate. 17: rejected as an inference unsupported by the greater weight of the evidence. 18-26: adopted. 27: rejected as irrelevant. 28-29 and 31: rejected as legal argument. 30: adopted. 32: adopted. 33: adopted except that the system was shut down at some point into the day of the second sticking showing a significant shortage. 34-38: adopted or adopted in substance. 39: rejected as speculation. 40: rejected as irrelevant. 41-42: adopted. 43: rejected as irrelevant. 44-45: rejected as subordinate. 46: adopted. 47-49: rejected as subordinate. 50: adopted. 51-53: rejected as vague with respect to reference to "Racetrac." 54: adopted. 55: rejected as cumulative. 56-57: rejected as unnecessary. COPIES FURNISHED: Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Steven M. Mills Decker & Hallman Suite 1200 Marquis II Tower 285 Peachtree Center Avenue Atlanta, GA 30303 Michael P. Donaldson Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues are whether Respondent has violated the standards of practice in septic tank contracting, Florida Administrative Code rule 64E-6.022, and, if so, the penalty. (All references to Respondent are to Arlender Miller. All references to Ms. Rooter are to Ms. Rooter, Inc.)
Findings Of Fact At the times of the alleged jobs, Respondent was registered as a septic tank contractor and served as the qualifying agent for Ms. Rooter. At the time of all three jobs, Respondent had apparent authority to serve as the agent of Ms. Rooter in contracting for and performing the septic tank contracting work described below. However, nothing in the record establishes any relationship between Respondent and Ms. Rooter at the time of the issuance of the Administrative Complaint, so as to justify treating the notice of this proceeding, when served upon Respondent, as notice to Ms. Rooter. Hans Seffer, who testified, is the son of the woman who owns the apartment complex located at 14950 North Miami Avenue, Miami. Mr. Seffer found Ms. Rooter on the internet and spoke with Carolyn Futch, operations manager of Ms. Rooter, about septic tank contracting services needed at the apartment complex. Respondent later met with Mr. Seffer at the property. Initially, Mr. Seffer believed that the existing septic tank needed only to be pumped out. However, upon inspection, Respondent determined that the system also required a new drainfield, pump, and dosing tank. Accordingly, on February 20, 2008, Respondent, as "technician," and either Mr. Seffer or his mother signed a one-page contract on a form identifying the contractor as Ms. Rooter, license number SA0071430. The contract describes the following work: Install 1,000 sq. ft. drainfield with 300 gallon dosing tank including immediate (2/21/08) tank pump out. Additionally if tank requires pumpout prior to securing all necessary permits, Ms. Rooter will perform pumpout at no additional cost. Manhole cover included. Respondent and either Mr. or Mrs. Seffer initialed this section of the contract. The contract states that the total due for this work is $10,500. Ms. Seffer paid $5,000 by check on February 21, 2008, leaving a $5,500 balance due. On March 1, 2008, Respondent, as agent for Ms. Rooter and on behalf of the property owner, submitted to Petitioner an application for a construction permit for an onsite sewage disposal system. The application describes the property improvements as a multifamily complex with ten bedrooms and 5,284 square feet of building space. The site plan attached to the application states: "Replace drainfield only." On April 2, 2008, Ms. Futch emailed Mr. Seffer to confirm an earlier discussion between them. The discussion addressed a requirement of Petitioner that Ms. Rooter install a second tank. The email states that the property owner will pay $5,600 for the installation of a "2nd tank (1,050-gal)," so the new total contract price is $11,100. This email restates the scope of the work as the installation of a 1,000-square-foot drainfield and 300-gallon dosing tank. By return email two days later, Mr. Seffer agreed to the additional work. On April 11, 2008, Petitioner issued to the property owner a construction permit that specifies a 2,575-gallon septic tank and a 1,000 square-foot drainfield. The permit states: "The licensed contractor installing the system is responsible for installing the minimum category of tank in accordance with sec. 64E-6.013(3)(f), F.A.C." This rule does not refer to tank capacities. On April 23, 2008, Petitioner issued a "construction inspection and final approval" form that shows the installation of two 1,200-gallon septic tanks and a 1,005-square-foot drainfield. The form states that items bearing an "X" are "not in compliance with statute or rule and must be corrected." The construction and final system are approved by Petitioner's inspector. During the course of the work, Respondent told Mr. Seffer that the existing tank was damaged and needed to be replaced, at an additional cost of $5,000, so the remaining balance rose to $16,100. Mr. Seffer agreed to this change. By email dated April 30, 2008, to Mr. Seffer, Ms. Futch confirmed the additional cost of $5,000 for the second septic tank and expressed "hope [that] Ms. Rooter has met your expectations." The email acknowledges, however, that "we must complete the electrical portion of the job." On May 2, 2008, Mr. Seffer sent Ms. Rooter two checks totaling $15,000, leaving a balance of $1,100. On the same date, Mr. Seffer sent Ms. Futch an email that, pursuant to their agreement, he would retain this amount for the "electric and final raking work." By email dated May 27, 2008, to Ms. Futch, Mr. Seffer noted that the manhole that Ms. Rooter had installed in the middle of the lawn was not level and was sunken, presenting a tripping hazard; the final grading was incomplete, leaving low spots and holes; a large rock remained near the palm tree and needed to be removed. Mr. Seffer sent Ms. Futch a reminder email on June 4, 2008, that resent the May 27 email. Mr. Seffer sent another email to Ms. Futch on June 21, 2008. In it, he notes that a Ms. Rooter employee worked on digging an electrical trench on June 13, but left mid-day, and no work had been performed since that day. In the meantime, recent rains had revealed a lack of compaction in the backfilling done by Ms. Rooter, as the fill had settled and undermined a sidewalk. After failing to obtain a response, on July 26, 2008, Mr. Seffer sent a final email to Ms. Futch warning her that he would file complaints with governmental agencies and advising that the unconnected pump was not pumping sewage throughout the entire system. The record does not contain the contracts for the septic tank contracting services involved in the second and third jobs alleged in the Administrative Complaint. Also, Petitioner did not present the testimony of the property owners involved in these jobs. The record for these jobs is limited to the permitting documentation. On September 26, 2008, as agent of Ms. Rooter and on behalf of the property owner, Shoreview Properties, Respondent submitted an application for a construction permit for an onsite sewage disposal system for 9999 Northeast 2nd Avenue, Miami Shores. This application describes the property as commercial with a 47,771 square-foot building. On October 1, 2008, Petitioner's inspector inspected the property. The inspector found an opened drainfield area with contaminated material and other conditions capable of hosting various disease vectors. He also found a backhoe and worker, who claimed that someone else had excavated the drainfield. The inspector immediately posted an ONASN, pursuant to the authority of chapter 386, Florida Statutes, that required the immediate abatement of the listed insanitary conditions. The inspector also determined that the existing onsite sewage disposal system exceeded Petitioner's jurisdictional threshold of 5,000 gallons per day. On September 10, 2008, as agent of Ms. Rooter and on behalf of the property owner, Lisa Mullin, Respondent submitted to Petitioner an application for a construction permit for an onsite sewage disposal system for 101 Northeast 195th Street, Miami. This application describes the property as 0.19 acres, on which is situated a single family residence comprising 1,663 square feet and three bedrooms. On September 22, 2008, an agent of the property owner called Petitioner and complained that Ms. Rooter had commenced the work without having first obtained a permit. Petitioner's inspector visited the site on the same day and found "very recent" earthwork. The owner informed the inspector that the contractor had installed three drainlines, cut an old water line, and installed a new water line over the drainfield. However, the record fails to establish the amount of time that elapsed between the work claimed to have been performed by Ms. Rooter and the report by the property owner. Respondent has paid numerous fines imposed by Petitioner for improper septic tank contracting. In 1999, Respondent paid a fine in an unspecified amount for performing an unpermitted drainfield repair and making the repair without the required filter sand. On January 27, 2000, Respondent paid a fine of $250 for performing unpermitted system repairs. On February 4, 2000, Respondent was assessed a fine of $1,000 for performing unpermitted and uninspected system repairs and failing to honor a warranty. On January 8, 2004, Respondent received a cease and desist order for qualifying more than one septic tank contracting business. In 2007, Respondent paid separate fines of $1,500 and $1,000 for illegal septic tank contracting work in Dade and Monroe counties, respectively.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the three violations identified in paragraphs 26, 27, and 29 above, dismissing the remaining charges against him, dismissing any charges against Ms. Rooter, and revoking Respondent's septic tank contracting registration. DONE AND ENTERED this 31st day of January, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2011. COPIES FURNISHED: Arlender Miller 640 Northwest 129th Street Miami, Florida 33168 Jenea Reed, Esquire Miami Dade County Health Department 8323 Northwest 12th Street, Suite 214 Miami, Florida 33126 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Shairi Turner, Deputy Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Kim Berfield, Deputy Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Are test results skewed by the use of sample bottles containing residue from earlier samples?
Findings Of Fact The Department of Agriculture and Consumer Services took unleaded gasoline samples from the Union Service Station No. 166191 located on US Highway 29 North in Century, Florida. The petroleum products provided this station were supplied by Northrop Oil Company, Inc., whose president is James W. Ash. The Department analyzed the samples taken in its mobile laboratory. The unleaded gasoline samples were found to have an elevated End Point, i.e. the maximum boiling point allowed by the rules of the Department for unleaded gasoline, which is 437 degrees Fahrenheit. Sample No. 1 had an End Point of 482 degrees Fahrenheit, and Sample No. 2 had an End Point of 464 degrees Fahrenheit. 4 The elevated End Point means that the samples contained contaminants in excess of the amounts permitted by the Department's rules. A Stop Sale Notice was issued by the Department. A bond of $1,000 was paid by Petitioner in lieu of confiscation of the remaining unleaded gasoline and as a precedent for the formal hearing. Petitioner requested and received a formal hearing. It was agreed that the contaminant did not contain lead and was most probably diesel fuel or kerosene. Mr. Ash testified concerning deliveries to the station in question and other deliveries made by the same truck. On the Monday the samples were taken, the gasoline transport delivered unleaded gasoline to Davis' Grocery, the Union Service Station, and Ross', in that order. The Department also tested the unleaded gasoline at Davis' and Ross' but found no contaminants in their unleaded gasoline tanks. On the preceding Friday, the truck delivered unleaded gasoline to the Union Service Station and two Alabama stations. The Alabama authorities checked the unleaded gasoline at those stations and found no contaminants; however, Mr. Ash did not know how much additional gasoline had been delivered to those stations before their testing. The Union Service Station in question keeps its unleaded gasoline tanks locked, and its diesel fuel tank is located on the opposite side of the station. Petitioner uses separate trucks to deliver diesel fuel and gasoline and does not mix loads. It would have been highly unlikely that the diesel truck driver and the station's operators would have permitted the introduction of diesel fuel into the unleaded gasoline storage tanks. The percentage of contaminant necessary to raise the End Point the amount it was raised in this instance would have been three to five percent of the total volume. The sample bottles used by the Department are approximately the size of a quart milk bottle. The inspector separates the bottles he uses to take diesel fuel samples from those he uses to take gasoline samples. He stores the bottles upside dawn. This was the procedure he followed in taking the samples involved in this case. Tests conducted by the Department to determine the effects of residue in sample bottles indicated that the residue from earlier samples is an insignificant factor in elevating the End Point test results. An inverted sample bottle could not retain the three-to-five percent of the bottle's total volume necessary to raise the test, results of the samples in question approximately 40 degrees Fahrenheit. The contaminant was not introduced into the samples from the bottles used to take the samples. The Department calculated that 570 gallons of contaminated unleaded gasoline were sold at $1.40 per gallon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends release of the contaminated fuel in question and return of the $1,000 bond by the Department of Agriculture and Consumer Services upon payment by Petitioner to the Department of $722.84. DONE and ORDERED this 30th day of July, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1981. COPIES FURNISHED: Mr. James W. Ash, President Northrop Oil Company, Inc. c/o Union Service Station US Highway 29 North Century, Florida 32535 Leslie McLeod, Jr., Esquire Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Doyle Conner, Commissioner Department of Agriculture and consumer Services Mayo Building Tallahassee, Florida 32301
Findings Of Fact The Petitioner is the owner of real property located at 726 North Beach Street, Daytona Beach, Florida, also known as DEP Facility No. 64-9100172. The Petitioner has been the owner of this site from 1982 to the present. From approximately 1984 and 1988, it was leased to a Mr. Jack Delaney. Apparently, during that time or before, the site was used as an AAMCO transmission repair shop and automobile repair facility. The Respondent, Department of Environmental Protection (DEP, Department), is an agency of the State of Florida responsible, in pertinent part, for the administration of Florida's Abandoned Tanks Restoration Program. Through an agreement with Volusia County, Florida, the county where the subject site is located, the Department has delegated to the Volusia County Environmental Control Division inspection and regulatory authority for purposes of cleanup of sites contaminated by petroleum, petroleum products or hydrocarbons. The facility in question included two 1,000-gallon underground storage tanks and three 550-gallon underground storage tanks (UST's). All of the tanks, when in service, had contained petroleum products of one form or another. The tanks at the front or "street-side" end of the facility property, tanks one and five, most likely contained gasoline, when in service, although at the time of inspection and remedial action, the tanks were filled with water. All of the storage tanks at the facility were removed under the supervision of the Volusia County environmental regulatory agency. The tanks were properly disposed of by a qualified subcontractor, and the contaminated soil at the site was removed and stored in a segregated, protected fashion, until shipment to a thermal processor to be burned and thus cleansed of its petroleum-related pollutants. The Volusia County Environmental Control Division made an inspection of the subject site and on September 10, 1987, informed Mr. Delaney, the lessee, that a considerable amount of soil contamination, due to petroleum or petroleum products, was present on the site. The Department maintains that the finding by the county agency was that the soil contamination was due to improper surface disposal of used oils. Mr. Ed Smith, who testified for the Petitioner, has been involved as a petroleum de-contamination contractor for such sites hundreds of times and was present throughout the cleanup operations conducted at the subject site. He established that, indeed, there were spillages of used and waste oils and petroleum products at the site but that a great deal of the contamination also resulted from underground leakage from the storage tanks, or some of them. Preponderant evidence was not adduced by the Department, merely through its reliance upon DEP Exhibit 1, Request No. 59, to show that the contamination at the site solely resulted from surface spillage, in consideration of the testimony of Mr. Smith, which is accepted. On or about September 19-20, 1990, five underground storage tanks were removed from the facility site by Hydroterra Environmental Services, Inc., a contractor at the site. Thereafter, an underground storage tank closure report (closure report) for the AAMCO transmission facility was prepared by Hydroterra Environmental Services, Inc. That report is in evidence as the Petitioner's Exhibit 20. The report and testimony reveals that a total of three 550-gallon underground storage tanks were removed from the facility. There were two 550- gallon underground storage tanks located in front of the facility, known as tanks one and five. When those two tanks were removed, both were found to contain water. It is not clear what originally was stored in those tanks, but they were, in all likelihood, utilized for the storage of gasoline. The closure report concerning tank one and tank five reveals that the fuel-dispensing capability of those tanks was discontinued many years ago. One of the tanks, tank one, leaked. It had holes caused by corrosion. An environmental consultant, however, utilizing an organic vapor analyzer (OVA), performed soil-monitoring tests during the excavation and removal of these two 550-gallon UST's, which were thought to have formerly contained gasoline (tank one and tank five). His single OVA reading at that site showed a "0 PPM" (parts per million) for that sampling location associated with the excavation of tank one and tank five near the front of the AAMCO facility. The environmental consultant also obtained a groundwater sample during excavation and removal of those two tanks. The sample was analyzed for the presence of benzene, ethylbenzene, toluene, and xylene (BETX). The parameters for BETX are utilized to determine the presence of petroleum contamination. The analytical results for that sample for the tank one and tank five excavation site indicate that the parameters for those hydrocarbon compounds were all below detectable limits. Analytical results for the water sample, however, did indicate the presence of chlorobenzene. Chlorobenzene is associated with solvents, is an aromatic hydrocarbon compound and is a form of petroleum, that is, it is made from crude oil derivatives. With regard to these two tanks and, indeed, all of the tanks excavated, there was an absence of "free product" on the water table. That is, gasoline, waste oil or other forms of petroleum or petroleum products were not separately identified and existing on the surface of the groundwater table. Upon visual inspection, as shown by the Petitioner's Exhibit 20, the closure report, the testimony of Mr. Smith, as well as the photographs in evidence, tanks one, five, four, and six had multiple holes from small "pinhead size" to one inch in diameter. The tanks thus would have leaked any contents contained therein. Upon excavation of the tanks from the site, they were cleaned, de-commissioned, and transported to Jacksonville, Florida, to a subcontractor for disposal as scrap. Tanks two and three were determined to be intact, with no apparent holes. Tank one had one or more holes. The evidence shows that that tank was suspected of containing gasoline during its useful life, although when it was excavated, it was found to be full of water. The OVA and groundwater tests taken in conjunction with the removal of tanks one and five from the site near the front of the facility do not show excessive contamination, however. This is corroborated by the testimony of Mr. Smith, testifying for the Petitioner, who is a licensed pollutant storage tanks specialty contractor and a general contractor. He has removed hundreds of underground storage tanks and conducted many such cleanup projects. He himself supervised the removal of the tanks and was on site virtually every day. With regard to the removal site for tanks one and five, which were in close proximity to each other, he confirmed that he felt that the site was "clean". Thus, it has not been demonstrated by preponderant evidence that tanks one and five contributed to the contamination of groundwater and soil at the site. In the rear of the AAMCO transmission facility, there were two 1,000- gallon UST's. One of them had been used for storage of waste oil and transmission fluid (tank two). The second 1,000-gallon UST, tank three, had been used for storage of new transmission fluid. Tanks two and three were located on either side of a concrete apron at the rear door of the transmission shop. Tank two was excavated separately from tanks three, four and six. There is no evidence that tanks two and three, the two 1,000-gallon tanks, had holes or other sources of leakage. During the excavation and removal of tank two, an OVA was used to perform the soil monitoring tests. A single reading of 328PPM was recorded for the sampling location associated with the excavation and removal of tank two. A groundwater sample (MW-SB No. 3) was obtained from the tank pit, where tank two was excavated and removed. That sample indicates that there was a "odor of solvents". The analytical results for that groundwater sample indicate an analysis for benzene, ethylbenzene, toluene and xylene, showing that the parameters for benzene and ethylbenzene were below detectable limits. However, the analytical results for that sample indicate that chlorobenzene and 1,4- dichlorobenzene were above detectable limits, with significantly-elevated readings, representing excessive contamination with these constituents. These are consistent with the presence of aromatic solvents. Such compounds are hydrocarbons, being derived from petroleum. The groundwater sample related to tank three also showed very high levels of xylene, chlorobenzene, and 1,4-dichlorobenzene; volatile, aromatic hydrocarbon compounds derived from petroleum. The excavation pit for tank three yielded a groundwater sample of similar quality, in terms of the odor of solvents and elevated levels of the above-mentioned hydrocarbon compounds associated with solvents. Tank six, a 550-gallon tank, was located immediately adjacent to and in close proximity to tank three, between tank three and the concrete apron at the rear door of the transmission shop. It contained water at the time it was excavated and inspected. However, it had been used for storage of petroleum or petroleum products of unknown nature. Because of the nature of the business located at the site, the petroleum products contained in the other nearby tanks and because of the petroleum products saturating the soil in the area immediately surrounding and beneath the tank, it is inferred that the tank contained waste oil, transmission fluid, or solvents at various times and occasions. The excavation for tanks three and six, as well as "tank No. four", which was actually the 55-gallon oil and water separator, was one continuous excavation. The water sample taken with regard to the location of tank six shows significantly-elevated levels of chlorobenzene, 1,4-dichlorobenzene, and xylene. The Department's witness, Mr. Register, acknowledged that elevated levels of pollutants in the pit associated with tanks four, three and six were consistent with the presence of solvents and waste oil or "oils and greases". Mr. Smith, the certified pollution specialty contractor supervising and conducting the project, described in his testimony how one can recognize contaminated soil in the field and that soil is saturated when one can squeeze petroleum compounds out of the soil with the hand. This shows excessive contamination of soils at such a site, as was acknowledged by Mr. Register, the engineer for the Bureau of Waste Cleanup for the Department, who testified. Mr. Smith thus established that the soils in the pit at the rear of the facility were saturated with petroleum or petroleum products. These were derived from waste oils and greases, consisting of waste oil and transmission fluid, as well as solvents. The pollutants leaked from tanks six and four, although Mr. Smith acknowledges in his testimony that tank four is not really considered to be a storage facility but, rather, a 55-gallon drum used as an oil/water separator, connected by a clay pipeline to a catch basin immediately in the rear of the apron and rear door of the building. In summary, through Mr. Smith's testimony, it was established that there was excessive contamination at the site, as shown by the saturation of the soils in the excavation pits from which the tanks were removed, in the manner described above. Under Mr. Smith's supervision, all appropriate remedial action was done at the site, all contaminated soil was removed and cleansed at an appropriate thermal treatment facility. The site was declared "clean" by the county agency referenced above, which had supervision of the project under its agreement with the Department. The initial remedial action task undertaken by the Petitioner, as shown by Mr. Smith's testimony, included removal of excessively-contaminated soils, as defined under Section 62.770.200(2), Florida Administrative Code, concerning the excavations at the rear of the transmission shop. Tank six is the only storage tank shown to have been leaking at the rear of the shop, but the spread or diffusion rate and area of contamination which leaked from that tank through the excavation area is not precisely definable. In any event, a significant portion of the soil in the excavation area at the rear of the transmission shop, including that occupied by tank six, was shown to be excessively contaminated and much of it emanated from tank six, especially evidenced by its central location in the contaminated portion of the site. Removal of that contaminated soil was part of the initial remedial action task. Likewise, the removal of the tanks was part of the performance of the initial remedial action task. In fact, all of the excess contamination could not be removed by removal of the soil without removing the tanks first, to get access to the excessively-contaminated areas beneath the surface grade. There is, however, no evidence that the initial remedial action task, with regard to each tank and tank site, which included removal of the tanks and excessively- contaminated soils, included any necessity to recover "free product" with regard to any of the tanks or tank locations. Finally, it is shown that transmission fluid and waste oil, as well as the other, solvent-related constituents of the contamination at the site, are petroleum or petroleum products. They can be, and are used, as a mixture amounting to a "liquid fuel commodity made from petroleum" and such waste petroleum products are often used in Florida, particularly for boiler fuel to fire industrial-type boilers. These compounds found at the site are both petroleum and petroleum products and are hydrocarbons, as defined in Section 376.301, Florida Statutes. It was thus demonstrated that the contamination at the facility was the result of a discharge of petroleum products, from a petroleum storage system, in the manner and for the reasons delineated more particularly above. On or about January 30, 1991, the Petitioner filed an abandoned tank restoration program application form with the Department. The Department issued the Petitioner an "order of eligibility" under that program for the abandoned tank restoration, which final order was entered on August 16, 1991. That order of eligibility is limited to "contamination related to the storage of petroleum products, as defined in Section 376.301(10), Florida Statutes. On February 14, 1992, the Petitioner filed a reimbursement application for all allowable costs with the Department. On or about April 28, 1993, a "final order of determination of reimbursement" for allowable costs was issued by the Department, which denied all reimbursement of cleanup costs associated with contamination of the property. That action was the result of the Department's position that the contamination resulted from improper disposal of petroleum products at the AAMCO transmission facility and not due to contamination of the site from the storage tank system.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Environmental Protection awarding reimbursement for the cleanup of DEP Facility No. 64-9100172 in accordance with the considerations, findings and conclusions made above. DONE AND ENTERED this 29th day of May, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, 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 29th day of May, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-3313 Petitioner's Proposed Findings of Fact 1-7. Accepted. 8. Rejected, as constituting argument and not a proposed finding of fact. 9-10. Accepted. 11. Accepted, as to those tanks delineated more particularly in the Hearing officer's findings of fact. 12-13. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Respondent's Proposed Findings of Fact 1-2. Accepted. 3. Accepted, but not itself materially dispositive. 4-12. Accepted, but not all of which are materially dispositive. 13-19. Accepted, but not necessarily materially dispositive. 20-23. Accepted. 24-25. Accepted, but not material. 26. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 27-29. Accepted. 30. Accepted, but not materially dispositive. 31-34. Accepted, but not in themselves materially dispositive. 35-36. Accepted. 37-39. Accepted, but immaterial. 40-45. Accepted, but not in themselves materially dispositive. 46-49. Accepted. 50. Accepted, only as an indication of the Department's position. 51-55. Accepted. 56-64. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. 65. Accepted. 66-69. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing officer's findings of fact on this subject matter, and erroneous as a matter of law. COPIES FURNISHED: Robert J. Riggio, Esquire Owens & Riggio, P.A. 125 North Ridgewood Avenue Daytona Beach, FL 32114 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Kenneth Plante, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
The Issue Whether Petitioner's site, Hughes Supply, Inc. located at 2920 Ford Street, Fort Myers, Lee County, Florida is eligible for restoration under Section 376.3072, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Hughes is a Florida Corporation in good standing and authorized to do business in the State of Florida. The Department's facility no. 36-8519331 (the Facility), owned and operated by Hughes and the subject matter of this proceeding, is located at 2920 Ford Street, Ft. Myers, Lee County, Florida, and is a "Facility" as defined in Section 376.301(5), Florida Statutes. The Facility consisted of (a) two underground storage tanks (USTs), one 4000 gallons UST (gasoline tank) and one 8000 gallons UST (diesel tank), and (b) four monitoring well, and is a "petroleum storage system" as defined in Section 376.301(15), Florida Statutes. At all times material to this proceeding, Hughes held, and was the name insured of, an effective third party pollution liability insurance policy (No. FPL 7622685 - Renewal No. FPL 7621566) applicable to the Facility that was issued in accordance with, and qualified under, Section 376.3072, Florida Statutes. Hughes paid annual premiums exceeding $20,000.00 for the above insurance. In accordance with Sections 376.3072, Florida Statutes, and Chapter 17- 769, Florida Administrative Code; the Department issued to Hughes a Notice of Eligibility pertaining to the Facility and the third party pollution liability insurance referred to in Finding of Fact 4 above. Lee County, Florida has a local program approved by the Department pursuant to Section 376.3073, Florida Statutes, to provide for the administration of the Department's responsibilities under certain sections of Chapter 376, Florida Statutes. Diesel fuel was placed into the diesel tank at the Facility on August 12, 1991, and no diesel fuel has been placed in the diesel tank at the Facility since that date. On Thursday, August 29, 1991, a contractor bidding on the removal of the tanks detected free product in one of the monitoring wells at the Facility and told Larry Carman, the Warehouse Manager for Hughes. Mr. Carman told Phillip Ross, the Branch Manager for Hughes, who in turn informed Gene Kendall, the Operations Coordinator for Hughes. All of this occurred on August 29, 1991. On Friday, August 30, 1991, an employee of IT Corporation, acting upon the request of Gene Kendall, sampled the four monitoring wells at the Facility and found six inches of free product in the northwest monitoring well. On Tuesday, September 3, 1991, Fred Kendall discussed the discharge with Bill W. Johnson, Supervisor, Lee County Storage Tank Local Program. During this discussion, Johnson learned that the diesel tank had not been emptied. Johnson advised Kendall that the diesel tank had to be emptied of its product and placed out of service. On Tuesday, September 3, 1991 Mr. Kendall completed the Discharge Reporting Form (DRF) pertaining to the discharge and mailed the DRF to Johnson on September 4, 1991. The DRF indicated August 30, 1992, the day that IT Corporation confirmed the discharge, as the day of discovery of the discharge. The discharge was diesel fuel as indicated by the DRF and a "petroleum product" as defined in Section 376.3-1(14), Florida Statutes. The discharge reported in the DRF constitutes a "discharge" as defined in Section 376.301(4), Florida Statutes, which constitutes an "incident" as defined in Section 376.3072(2)(c), Florida Statutes, and as described in Rule 17-769.600, Florida Administrative Code. On Wednesday, September 4, 1991, Mr. Kendall also mailed a letter to Johnson stating Hughes' intent to seek restoration coverage for the Facility, pursuant to Policy No. FPL 762285, Renewal No. FPL 7621566. On September 13, 1991 when Hooper, Inspector for the Lee County Storage Tank Local Program, inspected the Facility the diesel tank contained a total of 39 5/8 inches of diesel and water, of which 4 3/4 inches was water. On September 16, 1991 when Hooper again inspected the Facility, the diesel tank contained a total of 36 1/2 inches of diesel and water, of which 4 1/2 inches was water. On this date, Hooper advised Hughes that the diesel tank had to be emptied of its product. The inspection report issued on September 16, 1991 by Hooper advised Hughes that the Facility was not in compliance with Chapter 17-761, Florida Administrative Code. On September 17, 1991, Hughes had the diesel tank emptied of all its product. Although Hughes was in the process of emptying the diesel tank by giving diesel away, at no time between August 30, 1991 and September 16, 1991 was the diesel tank completely empty of its product. Between August 30, 1991 and September 16, 1991 Hughes did not test the diesel tank to determine if the diesel tank was leaking and, if so, to pinpoint the source of the leak. There was no evidence that either the Department or Lee County Storage Tank Local Program personnel ever informed Hughes before September 16, 1991 that there was a time frame within which the diesel tank had to be emptied of all of its product, and placed out of service in order for Hughes to be in compliance and eligible for reimbursement for restoration under the FPLIRP. Likewise, Hughes did not request any information from the Department or the Lee County Local Program personnel concerning any time frames within which the diesel tank had to be tested for leaks or emptied of its contents to prevent any further discharge in order to be eligible for reimbursement for restoration under the FPLIRP. Between August 29, 1991 and September 17, 1991 Hughes bailed the monitoring wells at the Facility on a daily basis, removed the free product from the monitoring wells, and placed the free product in a sealed 55-gallon drum. When the discharge was discovered, Hughes made the decision to close the Facility by tank removal, and at this point did not intend to repair or replace the Facility. As a result of an inspection of the Facility by the Lee County Local Program personnel in May, 1991, Hughes was made aware that the Facility was not in compliance with Chapter 17-761, Florida Administrative Code, since the gasoline tank had not been used in over three years, and there had been no closure of the gasoline tank. This noncompliance with Chapter 17-761, Florida Administrative Code, concerning the gasoline tank was also a portion of the noncompliance report filed by Hooper on September 16, 1991. The gasoline tank comes within the definition of "unmaintained" as defined by Rule 17-761.200(2), Florida Administrative Code. Both the diesel tank and the gasoline tank were removed on October 28, 1991 by a Florida licensed storage tank system removal contractor, and the Facility permanently closed by IT Corporation on October 29, 1991. In December, 1991, Hughes filed a tank closure assessment report pertaining to the removal of the diesel and gasoline tanks from, and closure of, the Facility. The tank closure assessment report was prepared by IT Corporation upon a request made by Hughes to IT Corporation on September 3, 1991 for a tank closure assessment proposal which was submitted by IT Corporation to Hughes on September 4, 1991. In April or May, 1992, Hughes filed with Lee County a contamination assessment report prepared by IT Corporation pertaining to the removal of the USTs from and closure of the Facility. Subsequent to discovery of the discharge. Hughes has expended approximately $60,000.00 as of June 10, 1992, on the Facility in connection with the USTs. Site rehabilitation costs for the Facility have been estimated in a range of $220,000.00 to $245,000.00 as of June 10, 1992. In the early part of 1991 water was present in the diesel tank, and approximately six months before discovering the discharge in August, 1991, Hughes had the water pumped out of the diesel tank. Hughes gave no explanation for the presence of water in the diesel tank. Neither the Department nor the Lee County Local Program personnel were notified of this unexplained presence of water in the diesel tank.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Department enter a Final Order denying Hughes application for restoration coverage under the Florida Petroleum Liability Insurance and Restoration Program. DONE and RECOMMENDED this 24th day of September, 1992, at Tallahassee, Florida. WILLIAM R. CAVE, 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 24th day of September, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-8334 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the Proposed Finding(s) of Fact:(1); 2-3(2); 4-5(3); 6- 8(4); 9(5); 10(6); 11(8,9); 12(10,11); 14(15,22); 15(10); 16(19); 18(10); 19(13); 20-21(7); 22-23(24); 24(21); 25(17); 26-29(20); 30(15); 31(16); 32(22); 33(23); 35(23); 36(7); 37(23); 38(24); 39(25); 40(26); 41(27); 42-43(27); and 44(15,22). Proposed Findings of Fact 13, 17 and 34 are neither material nor relevant to the conclusion reached in the Recommended Order. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. The following Proposed Findings of Fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the Proposed Finding(s) of Fact:1-2(2); 3(3); 4-6(5); 7(6); 8(22); 9(7); 10(8); 11(9); 12(10); 13-16(11); 17(12); 18(13): 19(18); 20(17); 21-22(14); 23-24(15); 25-26(28); 27(16); and 28(23). COPIES FURNISHED: Scott E. Wilt, Esquire Maguire, Voorhis and Wells 2 South Orange Plaza Orlando, Florida 32801 Brigette A. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
