09-000941EF Department Of Environmental Protection vs. Nemi, Inc.
 Status: Closed
DOAH Final Order on Friday, May 29, 2009.

View Dockets  
Summary: A charge that Respondent failed to timely submit a site assessment report for unlawful groundwater contamination sustained; a charge that Respondent was maintaining a stationary installation is dismissed.






15Petitioner, )


18vs. ) Case No. 09-0941EF


24NEMI, INC., )


28Respondent. )



33Pursuant to notice, this matter was heard before the

42Division of Administrative Hearings by its assigned

49Administrative Law Judge, Donald R. Alexander, on April 21, 2009,

59in Fort Lauderdale, Florida.


64For Petitioner: Karen Bishop, Esquire

69Department of Environmental Protection

733900 Commonwealth Boulevard

76Mail Station 35

79Tallahassee, Florida 32399-3000

82For Respondent: Neil Schubert, President

87Nemi, Inc.

891898 Stallion Drive

92Loxahatchee, Florida 33470-3994


99The issues in this case are whether Respondent, Nemi, Inc.,

109should pay a $500.00 administrative fine for maintaining an

118unpermitted stationary installation that is reasonably expected

125to be a source of water pollution (Count I); whether it should

137pay an administrative fine of $9,500.00 for failing to submit a

149completed Site Assessment Report (SAR) within 270 days of

158discovery of the discharge of chemical solvents (Count II);

167whether it should pay investigative costs and expenses in the

177amount of $1,500.00 incurred by Respondent, Department of

186Environmental Protection (Department) (Count III); and whether it

194should take corrective action, as described in the Department's

203Notice of Violation, Orders for Corrective Action, and

211Administrative Penalty Assessment (Notice of Violation) issued on

219January 23, 2009.


224This enforcement action began on January 23, 2009, through

233the Department's issuance of a three-count Notice of Violation

242generally alleging that in October 1995 hazardous waste was

251reported on property located at 6801 Northwest 17th Avenue, Fort

261Lauderdale, Florida; that subsequent environmental assessments

267confirmed that an unlawful discharge of contaminants had

275occurred; that Respondent assumed ownership of the property on

284September 21, 1999; that on September 12, 2001, Respondent was

294advised that contamination was present and that it must file a

305Preliminary Contamination Assessment within sixty days; that

312Warning Letters were sent to Respondent in April 2006,

321March 2007, and July 2007 again advising that contamination was

331on its property and requesting a SAR; that Respondent submitted a

342Preliminary Site Assessment Report and Addendum in March and

351May 2008, respectively; that those two reports indicated

359exceedances of Department soil and groundwater cleanup target

367levels on the property; that Respondent was advised in August and

378October 2008 that its SAR was incomplete and a complete one must

390be filed no later than November 14, 2008; and that Respondent has

402failed to submit a complete SAR. In view of the above

413circumstances, the Notice of Violation advised Respondent that it

422was maintaining an unpermitted source of pollution that is

431reasonably expected to be a source of water pollution in

441violation of Section 403.087(1), Florida Statutes (2008), 1 and

450that it had failed to submit a completed SAR within 270 days of

463the discovery of the discharge on the property, as required by

474Florida Administrative Code Rule 62-780.600(8). For this

481conduct, the Department proposes to assess a $10,000.00

490administrative penalty, recover investigative expenses and costs

497in the amount of $1,500.00, and require certain corrective

507actions, including the filing of a completed SAR and the cleanup

518of the site.

521On February 10, 2009, Respondent, through its president,

529Neil Schuberg, filed a letter requesting a hearing to contest the

540charges. In his letter, Mr. Schuberg stated that he "dispute[s]

550being the responsible party"; that he "dispute[s] being the

559originator of the problem"; and that "[a]ll maps - tests indicate

570off site source." The matter was referred to the Division of

581Administrative Hearings on February 18, 2009, with a request that

591an administrative law judge be assigned to conduct a formal


602By Notice of Hearing dated March 23, 2009, the matter was

613scheduled for a final hearing on April 21, 2009, in Fort

624Lauderdale, Florida. At the final hearing, the Department

632presented the testimony of Paul A. Wierzbicki, Waste Cleanup

641Supervisor in the Department's Southeast District Office and

649accepted as an expert; and Leslie Ann Smith, an Environmental

659Specialist III in the Department's Southeast District Office.

667Also, it offered Department Exhibits 1-17, which were received in

677evidence. Respondent was represented at hearing by its

685president, Neil Schuberg, who testified on its behalf. Finally,

694the Department's Request for Official Recognition was granted,

702and official recognition was taken of the following matters:

711Sections 403.031, 403.087, 403.121, 403.141, and 403.161, Florida

719Statutes, and Florida Administrative Code Rule Chapters 62-520,

72762-550, 62-780, and 62-777, and Rule 62-701.200.

734A Transcript of the hearing was filed on May 4, 2009. By

746agreement of the parties, proposed final orders were due by

756May 18, 2009. The Department timely filed a Proposed Final

766Order, which has been considered in the preparation of this Final

777Order. On April 30, 2009, Respondent filed a paper with numerous

788documents attached; the cover sheet stated that "the [attached]

797exhibits will clearly show that the contamination is from an off-

808site source." No exhibits had been offered into evidence by

818Respondent at hearing. 2 On May 7, 2009, the Department filed a

830Motion to Strike the exhibits on the ground the record was closed

842on April 21, 2009. By Order dated May 15, 2009, the Motion to

855Strike the documents was granted, with the exception of a Florida

866Supreme Court decision, and those papers which duplicated parts

875of Department exhibits already received in evidence.


885Based upon all of the evidence, the following findings of

895fact are determined:

8981. Respondent is a for-profit corporation registered to do

907business in the State. Respondent's president and registered

915agent is Neil Schuberg, who represented the corporation at

924hearing. Respondent is the owner of a 1.1-acre parcel of real

935property located at 6801 Northwest 17th Avenue, Fort Lauderdale,

944Florida. The property is situated in what is known as the

955Gateway Industrial Center just south of the City of Pompano Beach

966and midway between the Florida Turnpike and Interstate 95. The

976parcel is rectangular shaped and is approximately 90 feet wide by

987180 feet long. The property is further identified by the Broward

998County Property Appraiser as Parcel Identification Number

1005494209050040. A one-story warehouse and parking lot are located

1014on the property, which is currently leased by Respondent to a

1025testing laboratory.

10272. The evidence shows that for at least since 1981 David R.

1039Ligh owned the property until his death. After he died, his

1050widow, Elsie M. Ligh, sold the property in 1994 to Clayton John

1062Pierce subject to a mortgage in the amount of $167,640.00.

1073Mr. Pierce began operating a business on the premises known as

1084Combined Roof Services, Inc.

10883. In 1995, Mr. Pierce decided to sell the property. A

1099potential buyer, S & S Propeller Company, retained the services

1109of Buck Eco-Logic, Inc., an environmental consulting firm, to

1118prepare an environmental site assessment for the purpose of

"1127determining the suitability of property for ownership by [S & S

1138Propeller Company]." When it first inspected the site in July

11481995, Buck Eco-Logic, Inc., discovered three thirty-five gallon

1156drums and a twenty-gallon black plastic tub, all labeled

"1165hazardous waste" and reflecting that they had contained

1173tetrachloroethene (also known as perchloroethylene) waste. This

1180is a chemical solvent that is typically used by dry cleaning

1191establishments. The labels carried the name and "EPA ID number"

1201of Family Dry Cleaners located at 6804 Stirling Road, Davie,

1211Florida, an address which appears to be around ten to twelve

1222miles south of the subject property. The three drums were lying

1233on their sides on the northern end of an asphalt parking area

1245beneath overgrown Brazilian pepper trees and were empty; the

1254empty twenty-gallon tub was located inside the building on the

1264property. Soil borings on the property performed by Buck Eco-

1274Logic, Inc., revealed concentrations of tetrachloroethene at

128110,613 parts per billion, which exceed allowable standards.

1290Tetrachloroethene and its breakdown products are a solid waste,

1299as defined by Florida Administrative Code Rule 62-701.200(113).

1307A Phase I Environmental Site Assessment (Phase I ESA) dated

1317August 13, 1995, was prepared by the consulting firm and sets

1328forth in detail the results of its inspection. See Department

1338Exhibit 2. The sale was never consummated.

13454. Later that year, Mr. Pierce engaged the same consulting

1355firm to perform a Phase II Environmental Site Assessment of the

1366property. That assessment revealed concentrations in groundwater

1373ranging from 8,840 parts per billion to 173,000 parts per billion

1386of tetrachloroethene, which exceed the State Clean Soil Criteria

1395and State Maximum Contaminant Levels. The report, issued on

1404October 13, 1995, was received in evidence as Department Exhibit


14155. On October 30, 1995, a Mr. Pivnick, an attorney with the

1427firm of Dombroff & Gilmore, P.A., which represented Mr. Pierce,

1437notified the Department by letter that the empty drums and tub

1448had been discovered on the property. The letter also attached a

1459copy of the Phase I ESA. Mr. Pivnick was instructed by the

1471Department to contact the local police department to report the

1481incident as well as the state warning system for reporting

1491discharges to the environment. Also, the Department contacted

1499other local agencies and the United States Environmental

1507Protection Agency (EPA).

15106. In October 1995, Mr. Pierce vacated the premises and

1520ceased operating Combined Roof Services, Inc. In January 1996,

1529he began leasing the property to Sun Valley Industries, also a

1540roofing repair business, until that firm vacated the premises in

1550December 1997.

15527. With the use of grant monies, the Department engaged the

1563services of International Technology Corporation to prepare a

1571Preliminary Investigation Report (PIR) for the property. That

1579report was issued on February 13, 1997. See Department Exhibit

15894. The PIR recommended that additional monitoring of the site

1599(through shallow monitoring wells, soil samples, groundwater

1606samples, and groundwater flow direction) be made to quantify the

1616presence of chlorinated solvents.

16208. Again with the use of grant monies, in 1997 the

1631Department engaged the services of Post, Buckley, Schuh &

1640Jernigan, Inc., to prepare a Site Inspection Report (Report) for

1650the subject property. The Report was issued in March 1998. See

1661Department Exhibit 5. Excessive tetrachloroethene, Cis-1, 2-

1668dichloroethene, and trichloroethylene were detected in ground

1675water samples, while tetrachloroethene was detected in all seven

1684soil samples.

16869. On April 2, 1998, Ms. Ligh assigned the mortgage on the

1698property to Nemi, Inc., for around $100,000.00. Mr. Schuberg

1708explained that he was able to purchase it at a discount because

1720Mr. Pierce had ceased making payments on the mortgage and had

1731warned Ms. Ligh that if she foreclosed on the mortgage, she would

1743be responsible for cleanup costs on the property exceeding a

1753million dollars. While Mr. Schuberg acknowledged that he was

1762aware of a contamination problem on the property, he says the

1773mortgage was purchased as an investment, and he never thought he

1784would actually acquire the property because he believed

1792Mr. Pierce would continue to make the mortgage payments. After

1802failing to make payments on the mortgage, on September 21, 1999,

1813Mr. Pierce executed a Warranty Deed in Lieu of Foreclosure in

1824favor of Nemi, Inc. Based on conversations with Mr. Pierce at

1835that time, Mr. Schuberg says he was under the impression that the

1847spill was much smaller than it actually was, and that it would be

1860cleaned up by the Department. At hearing, Mr. Schuberg

1869characterized Mr. Pierce as "a hustler and a liar."

187810. After Mr. Pivnick's report of contamination was

1886received, the Department, along with the Broward County

1894Department of Natural Resource Protection, initiated an

1901investigation (probably in late 1995 or early 1996) in an attempt

1912to verify the source of the contamination. Because Family Dry

1922Cleaners "was on the top of [its] list," the Department first

1933sought to determine whether that firm had actually deposited the

1943drums and tub on the subject property. It learned that in 1994,

1955or a year before the contamination was reported to the

1965Department, Family Dry Cleaners had been evicted by its landlord,

1975Lincoln Park. According to the Department, this "led to a dead-

1986end" as far as Family Dry Cleaners was concerned. However, that

1997business had been replaced by another tenant, Liberty Dry

2006Cleaners. The Department then attempted to ascertain whether

2014Lincoln Park or the new tenant might have been responsible for

2025transporting the drums and tub to the subject property and

2035dumping the waste. However, the Department was unable to confirm

2045that either of the two had done so.

205311. Photographs of the drums and tub were made by Buck Eco-

2065Logic, Inc., when it conducted an assessment in July 1995.

2075Because the empty drums and tub were later removed from the site

2087by unknown persons, the Department was only able to review the

2098photographs when it conducted its investigation. Photographs of

2106the drums indicated that they were larger than the twenty-gallon

2116drums normally used by a dry cleaning establishment, and the

2126labels on the drums were not perforated or dot matrix, which are

2138more typical of those used by dry cleaners. For this reason, and

2150because the empty tub was found inside the building on the

2161property, the Department attempted to determine if Mr. Pierce had

2171purchased the contaminants for use in his operations; it was not

2182able to confirm this fact.

218712. The Department also contacted local law enforcement

2195officials to see whether a criminal investigation could be

2204launched. As noted above, however, the drums and tub had been

2215removed by unknown persons while Mr. Pierce still had possession

2225of the property and there was no forensic evidence for law

2236enforcement officials to examine. The result of the

2244investigation was that the Department was unable to determine who

2254deposited the drums on the site or the exact location where the

2266contents were first dumped.

227013. Although Respondent contended that the Department could

2278have easily determined who removed the empty drums and tub from

2289the subject property by examining the manifests of the carriers

2299who engage in that type of business, the Department investigator

2309did not attempt to do this since the yellow pages in the

2321telephone directory reflected at least six pages of transporters

2330in this type of business. Further, there is no evidence that a

2342commercial transporter was even involved.

234714. For all of these reasons, the Department looked to the

2358current owner of the property, Respondent, as the entity

2367responsible for site rehabilitation since there were, and still

2376are, contaminants leaching into the groundwater and aquifer

2384system. Specifically, as of 2007, or twelve years after the

2394discharge occurred, the groundwater on Respondent's property was

2402still contaminated with tetrachloroethene, trichloroethylene, and

2408cis-1, 2-dichloroethene exceeding the Department's groundwater

2414standards. Also, the same contaminants exceeded the Department's

2422soil cleanup target levels based on ground water criteria.

2431Because rainfall and surface water continue to come into contact

2441with the contaminated soil, and there is no liner or impervious

2452cap in place, the installation is reasonably expected to be a

2463source of water pollution.

246715. On September 12, 2001, the Department sent a letter by

2478certified mail to Respondent advising that contamination was

2486present on the property, that there were "possible violations of

2496law for which you may be responsible," and that a Preliminary

2507Contamination Assessment (PCA) must be filed within sixty days

2516from the date of the letter. See Department Exhibit 6. Although

2527a meeting of the parties was held on October 4, 2001, a PCA was

2541never filed.

254316. On April 27, 2006, March 12, 2007, and July 3, 2007,

2555the Department issued Warning Letters to Respondent advising that

2564an enforcement action would be initiated unless Respondent

2572provided a SAR within a time certain. See Department Exhibits 7,

25838, and 9. (The record is silent as to why no formal activity

2596occurred between October 2001 and April 2006.) Exhibit 8

2605reflects that on November 21, 2006, "analysis results of sampling

2615of one monitoring well were received by the Department." A

2625meeting was later conducted by the parties on January 16, 2007,

2636at which time Respondent agreed to "draft a suitable letter of

2647[its] intentions with regard to conducting the required

2655assessment and send it to the Department on or before January 31,

26672007." There is no record of such a letter being sent.

267817. In August 2007, Respondent contracted with Florida

2686Environmental Engineering, Inc., to perform a "limited site

2694assessment report." In March 2008, that firm submitted to the

2704Department a Preliminary Site Assessment Report (PSAR) See

2712Department Exhibit 10. For this service, Respondent paid around

2721$16,000.00. On March 21, 2008, the Department advised Respondent

2731by letter that the PSAR was incomplete and that further

2741information should be provided by April 30, 2008. See Department

2751Exhibit 11. An Addendum to the PSAR was provided on May 5, 2008.

2764See Department Exhibit 12. This report cost Respondent an

2773additional $3,000.00. The PSAR indicated that contaminants

2781(dichloroethene and trichloroethylene) in the water and soil on

2790the property exceeded Department groundwater and soil cleanup

2798target standards and levels. The report concluded, however, that

"2807the discharge to the site is from an offsite source" (west of

2819the property) and that "the property owner is no longer a

2830responsible party."

283218. On August 27 and then again on October 22, 2008, the

2844Department issued letters to Respondent advising that "there is

2853not enough data to support the assumption that the discharge is

2864offsite and the contamination is from an offsite source located

2874west of the property." The Department reached this conclusion

2883because, among other reasons, "[t]he contamination does not seem

2892to be delineated towards the northern and southern portions of

2902the site," "[t]here are no horizontal delineation wells to [the]

2912north," the "iso contour maps provided appear to show the

2922vertical delineation of the contamination but not horizontal

2930delineation [of the plume]," "additional monitoring points need

2938to be [added]," and "the onsite monitoring well, MW-2, shows a

2949very high concentration of Perchloroethylene (PCE) at 81,000 ug/L

2959[microgram per liter] and other contaminants, while the MW-1 does

2969not exhibit groundwater contamination to that extent." See

2977Department Exhibits 14 and 15. In plainer language, Respondent's

2986report was deficient in that all contamination sources were not

2996identified; it failed to delineate the horizontal and vertical

3005extent of soil and groundwater contamination; and it failed to

3015recommend a remedial action to clean up the contamination.

302419. The two letters advised that the site assessment was

3034incomplete and that additional information described in the

3042letters must be submitted by November 14, 2008. To date,

3052Respondent has failed to submit the required information.

3060According to Mr. Schuberg, to perform a study that would supply

3071the additional information requested by the Department would cost

3080him around $100,000.00, an amount he is unwilling to pay.

309120. More than 270 days has expired since a discharge was

3102discovered on Respondent's property, and it has failed to submit

3112a complete SAR, as described in Florida Administrative Code Rule

312262-780.600(8). See also Table A, Fla. Admin. Code R. Ch. 62-780,

3133which prescribes the specific time frame (within 270 days after

3143the discharge is discovered) for submitting this report.

315121. The Department has incurred expenses in the amount of

3161$1,500.00 while investigating this matter. See Department

3169Exhibit 17. This amount is not disputed.

317622. As corrective action, the Department requests that

3184within ninety days of the effective date of this Final Order,

3195Respondent submit a complete SAR which addresses the deficiencies

3204specified in the Department's August 27, 2008, letter. See

3213Department Exhibit 14. To complete the SAR, additional soil and

3223groundwater samples need to be collected to determine the

3232vertical and horizontal extent of contamination, all source areas

3241must be identified, and a remedial action must be developed to

3252abate the contamination. Finally, the contaminated soil must be

3261removed from the property so that it will no longer discharge

3272into the groundwater. The Notice of Violation requests that upon

3282approval of the SAR, Respondent "shall commence and complete in a

3293timely fashion all further tasks" required by Florida

3301Administrative Code Rule Chapter 62-780. These corrective

3308actions are reasonable and are hereby approved.

331523. In calculating the penalty, Respondent has assessed a

3324$500.00 administrative penalty for Respondent maintaining a

3331stationary installation that is reasonably expected to be a

3340source of water pollution without a permit. This is based upon a

3352violation of Section 403.121(5), Florida Statutes, which makes it

3361unlawful to not comply with a regulatory statute's requirement.

3370Under Section 403.121(6), Florida Statutes, the Department has

3378also assessed a $500.00 per day penalty against Respondent for

3388failing to file a SAR for nineteen days, for a total of

3400$9,500.00. When added to the $500.00 previously assessed, the

3410total administrative penalty is $10,000.00, which is the maximum

3420allowed in this type of proceeding. See § 403.121(2)(a), Fla.


343124. Throughout this process, Mr. Schuberg has contended

3439that the responsibility for cleanup lies with the person or

3449entity actually responsible for placing the drums and tub on the

3460property in 1995. He says that the evidence clearly shows that

3471Family Dry Cleaners is the responsible party. However, the

3480Department and local authorities were never able to confirm who

3490actually dumped the waste on the subject property. Although

3499Mr. Schuberg says it will take "[i]n the hundreds of thousands of

3511dollars" to clean up the site, the evidence shows that when he

3523purchased the mortgage in 1998 and assumed ownership in 1999, he

3534knew the property was contaminated. Mr. Schuberg further stated

3543that because his consultant could never get "answers" from the

3553Department, the consultant was instructed to stop work. However,

3562Mr. Schuberg never contacted the Department to get clarification

3571about what was required. At hearing, Mr. Schuberg also offered a

3582lay opinion that his consultant's report filed in March 2008

3592proves that in 1995 the contents of the drums and tub were dumped

3605on an offsite asphalt road adjacent to the property, surface

3615water runoff then carried the chemical solvents onto his

3624property, and the empty drums and tub were left in the parking

3636lot. The Department's expert did not agree with this

3645supposition, and there is no expert testimony to confirm the

3655accuracy of this theory.

365925. Respondent has also contended that the property should

3668be cleaned up with state funds. As pointed out by a Department

3680witness, however, one problem is that the property does not meet

3691the definition of a dry cleaner and thus cannot qualify for funds

3703under that program. Then, too, a state-funded cleanup is a last

3714resort which is used only after the Department has exhausted all

3725enforcement remedies. Also, in this era of tight budgets, the

3735Department has a finite amount of funds to use for this purpose,

3747and is limited to cleaning up only a few sites per year.

3759Finally, the responsible party must first acknowledge by

3767affidavit that it lacks the necessary resources to clean up the

3778property before the Department "may" seek cleanup funds.

3786Respondent has not yet filed such an affidavit or admitted


379726. In terms of mitigating evidence, Mr. Schuberg conceded

3806that he has not done "a whole lot" to address the contamination

3818problem since acquiring the property in 1999. In 2008, he did

3829expend around $20,000.00 in having a PSAR and Addendum prepared

3840for the Department. In all other respects, he steadfastly

3849refuses to spend any more money on assessments or take

3859responsibility for the cleanup since he believes that Family Dry

3869Cleaners is the entity responsible for site rehabilitation.


388027. The Division of Administrative Hearings has

3887jurisdiction over the subject matter and the parties hereto

3896pursuant to Sections 120.569, 120.57(1), and 403.121, Florida


390528. Section 403.121(2)(a), Florida Statutes, authorizes the

3912Department "to institute an administrative proceeding to

3919establish liability and to recover damages for any injury to the

3930. . . waters . . . of the state caused by any violation." Under

3945that process, the Department is authorized to initiate an

3954enforcement action to "order the prevention, abatement, or

3962control of the conditions creating the violation or other

3971appropriate corrective action." See § 403.121(2)(b), Fla. Stat.

397929. "The department has the burden of proving with the

3989preponderance of the evidence that the respondent is responsible

3998for the violation." § 403.121(2)(d), Fla. Stat. "The

4006administrative law judge shall issue a final order on all

4016matters, including the imposition of an administrative penalty."


402530. Count I of the Notice of Violation alleges that

4035Respondent "is maintaining a stationary installation that is

4043reasonably expected to be a source of water pollution on the

4054Property without a permit from the Department," in violation of

4064Section 403.087(1), Florida Statutes. That statute provides that

"4072[a] stationary installation that is reasonably expected to be a

4082source of air or water pollution must not be operated,

4092maintained, constructed, expanded, or modified without an

4099appropriate and currently valid permit issued by the department."

4108Count II alleges that Respondent "has failed to submit a complete

4119[SAR] within 270 days of the discovery of the discharge on the

4131Property as required by Fla. Admin. Code R. 62-780.800(6)."

4140Count III requests the recovery of expenses in the amount of

4151$1,500.00 incurred to date while investigating this matter.

416031. By a preponderance of the evidence, the Department has

4170established that Respondent is the entity responsible for site

4179rehabilitation and that it failed to submit a complete SAR within

4190270 days after discovery of the contamination on the property

4200(Count II). Therefore, Count II has been sustained. In

4209addition, the reimbursement of investigative expenses in the

4217amount of $1,500.00 is not in dispute (Count III).

422732. On the other hand, Count I is more difficult to

4238resolve. To support this allegation, the Department relies on

4247the definition of "installation" found in Section 403.031(4),

4255Florida Statutes; definitions of "installation" and "solid waste

4263management facility" found in Florida Administrative Code Rules

427162-520.200 and 62-701.200(118), respectively; and the dictionary

4278definitions of the words "stationary" and "facility," which are

4287not otherwise defined by statute or rule.

429433. Section 403.031(4) defines the word "installation" as

"4302any structure, equipment, or facility, or appurtenances thereto,

4310or operation which may emit air or water contaminants in

4320quantities prohibited by rules of the department." Rule 62-

4329520.200 mirrors the statutory definition of an installation.

4337Rule 62-701.200(118) defines the term "solid waste management

4345facility" as follows:

4348any solid waste disposal area, volume

4354reduction plant, transfer station, materials

4359recovery facility, or other facility, the

4365purpose of which is resource recovery or the

4373disposal, recycling, processing, or storage

4378of solid waste. The term does not include

4386recovered materials processing facilities

4390which meet the requirements of paragraph 62-

4397701.220(2)(c), F.A.C., except the portion of

4403such facilities, if any, that is used for the

4412management of solid waste.

4416Finally, the word "stationary" is defined by the American

4425Heritage Dictionary , Fourth Edition , as "not moving," while

"4433facility" is defined by the same source as "something created to

4444serve a particular function."

444834. In its Proposed Final Order, the Department appears to

4458argue that the contaminated soil on the property is in a fixed or

4471stationary location; that the soil was created or intended to

4481serve a particular purpose, that is, to store and dispose of

4492tetrachloroethene; and that the storage and disposal has resulted

4501in soil and groundwater contamination. Thus, it posits that the

4511mere presence of a contaminant in the soil, which exceeds

4521Department standards, constitutes a stationary installation

4527within the meaning of Section 403.087(1).

453335. Neither party has cited any administrative decision on

4542this issue. While there are numerous agency decisions involving

4551stationary installations that are subject to Section 403.087(1),

4559the undersigned has found no decision that is factually similar

4569to the circumstances here. With some exceptions, virtually all

4578decisions involve on-going business concerns such as auto salvage

4587operations, service stations, cement plants, dry cleaners, or

4595incinerator plants that typically handle or process hazardous

4603wastes in the course of their business; physical structures such

4613as power plants, pipelines, marinas and docks, or ski facilities

4623which may pollute the air or waters; or control structures or

4634fill placed in water or on land to stop or impede the flow of

4648water. 3

465036. The Department does not contend that Respondent is

4659maintaining a "structure," "equipment," or "appurtenances

4665thereto" which may emit contaminants into the groundwater.

4673Rather, it argues that Respondent is maintaining a "facility"

4682which may cause water pollution. The word "facility" is

4691generally meant to be something built, installed, or established

4700to serve a particular purpose. As that word is commonly

4710understood, Respondent has not built, installed, or established

4718any type of "facility" for the purpose of storing and disposing

4729chemical solvents. Likewise, Respondent is not operating a solid

4738waste management facility since nothing on his property can be

4748construed as being a facility designed for the purpose of

"4758resource recovery or the disposal, recycling, processing, or

4766storage of solid waste." Therefore, Count I should be dismissed.

477637. For the violation in Count II, the Department has

4786proposed to assess a penalty of $500.00 per day for nineteen

4797days, or $9,500.00, as authorized by Section 403.121(6), Florida

4807Statutes. The total penalty does not exceed $10,000.00, which is

4818the maximum allowed per assessment under Section 403.121(2)(a),

4826Florida Statutes.

482838. Section 403.121(10), Florida Statutes, allows a

4835responsible party to offer "mitigating circumstances" that may

4843serve as a basis for reducing the administrative penalty. That

4853statute provides as follows:

4857(10) The administrative law judge may

4863receive evidence in mitigation. The

4868penalties identified in subsection (3),

4873subsection (4), and subsection (5) may be

4880reduced up to 50 percent by the

4887administrative law judge for mitigating

4892circumstances, including good faith efforts

4897to comply prior to or after discovery of the

4906violations by the department. Upon an

4912affirmative finding that the violation was

4918caused by circumstances beyond the reasonable

4924control of the respondent and could not have

4932been prevented by respondent's due diligence,

4938the administrative law judge may further

4944reduce the penalty.

494739. To support a claim of mitigation, there must be

"4957competent, substantial evidence" presented by a respondent.

4964Florida Department of Environmental Protection v. Holmes Dirt

4972Service, Inc., et al. , 864 So. 2d 507, 508 (Fla. 1st DCA

49842004)(Benton, J., dissenting). In this case, no mitigating

4992evidence was presented, and Respondent has not shown that the

5002violation was caused by circumstances beyond its control or by

5012exercising due diligence. Therefore, the proposed administrative

5019penalty is approved. See , e.g. , Department of Environmental

5027Protection v. Elston, et al. , DOAH Case Nos. 03-0626 and 03-2284,

50382003 Fla. ENV LEXIS 255 at *43 (DOAH Nov. 5, 2003)(where no

5050factual justification was presented by a respondent for not

5059timely initiating a site assessment, a reduction in the amount of

5070the penalty was not warranted); Department of Environmental

5078Protection v. Leasure , DOAH Case No. 04-3688EF, 2005 Fla. ENV

5088LEXIS 41 (DOAH Feb. 18, 2005)(where no relevant mitigating

5097evidence was presented by the responsible party for the proven

5107violations, the Department's proposed administrative penalties

5113were sustained in the final order).

511940. At hearing, and in his post-hearing submittal,

5127Mr. Schuberg relied on the case of Davey Compressor Company v.

5138City of Delray Beach, et al. , 639 So. 2d 595 (Fla. 1994), for the

5152proposition that Nemi, Inc., is not responsible for the pollution

5162on its property. That case, however, involved a claim by the

5173City for damages for contamination to its drinking water supply

5183and determined the manner in which damages are measured in

5193repairing or restoring property to its condition prior to injury.

5203Id. at 596. Therefore, it has no bearing on the outcome of this

5216action. On the issue of liability, the case of Sunshine Jr.

5227Stores, Inc. v. Department of Environmental Protection , 556 So.

52362d 1177 (Fla. 1st DCA 1990), rev . den ., 564 So. 2d 1085 (Fla.

52511990), is more instructive. In that case, Sunshine purchased

5260property from K & F Services, Inc. (K & F), which had operated an

5274Amoco gasoline station on the premises for a number of years. At

5286the time of the purchase, Sunshine knew that three underground

5296storage tanks had been installed on the property but did not know

5308their condition or that any gasoline had leaked from one of the

5320tanks. When Sunshine later attempted to remove the tanks and

5330replace them with modern equipment, it discovered the

5338contamination and reported the discharge to the Department.

5346However, the evidence showed that no gasoline had leaked into the

5357surrounding soil during its ownership of the property. Under

5366this set of facts, a divided court held that K & F was solely

5380responsible for cleaning up the site, and that Sunshine's only

5390responsibility was to cooperate with the cleanup effort by

5399providing reasonable access to the property. In contrast to

5408the facts in the Sunshine case, the evidence here shows that

5419Mr. Schuberg knew that the property was contaminated when he

5429purchased the mortgage in 1998 and assumed ownership in 1999, and

5440the discharge of contaminants into the groundwater has continued

5449for at least eight years during his ownership. Therefore, Nemi,

5459Inc., is the entity responsible for site rehabilitation, and the

5469Department's proposed corrective actions must be undertaken.

547641. Finally, Section 403.121(2)(f), Florida Statutes,

5482provides that "the prevailing party shall recover all costs as

5492provided in ss. 57.041 and 57.071. The costs must be included in

5504the final order." In this case, the Department is the prevailing

5515party. However, it made no request for the "prevailing party"

5525costs, and it presented no evidence on their amount. Therefore,

5535they are not included in this Final Order.


5544Based on the foregoing Findings of Fact and Conclusions of

5554Law, it is

5557ORDERED that the charge in Count I is dismissed; that the

5568charges in Counts II and III are sustained; that Respondent shall

5579pay an administrative penalty of $9,500.00 and $1,500.00 in

5590investigative costs and expenses; and that it take the corrective

5600actions described in Finding of Fact 22. Such fines and costs

5611shall be paid within thirty days of the effective date of this

5623Order by cashier's check or money order payable to the "State of

5635Florida Department of Environmental Protection" and shall note

"5643OGC Case No. 08-2821" and "Ecosystem Management and Restoration

5652Trust Fund" thereon. The payment shall be sent to the Florida

5663Department of Environmental Protection, Attn: Amala Senarath, 400

5671North Congress Avenue, Suite 200, West Palm Beach, Florida 33401-


5682DONE AND ORDERED this 29th day of May, 2009, in Tallahassee,

5693Leon County, Florida.



5700Administrative Law Judge

5703Division of Administrative Hearings

5707The DeSoto Building

57101230 Apalachee Parkway

5713Tallahassee, Florida 32399-3060

5716(850) 488-9675

5718Fax Filing (850) 921-6847


5723Filed with the Clerk of the

5729Division of Administrative Hearings

5733this 29th day of May, 2009.


57401/ All references are to the 2008 version of the Florida


57522/ The documents, marked as Exhibits A through F, include a copy

5764of an undated Stipulation and Order for Settlement in the case of

5776Aronos, Inc. d/b/a Lincoln Park Davie v. Coppola & Kids, Inc.

5787d/b/a Family Dry Cleaners , Case No. COWE 94-2538 (Broward County

5797Ct.), and an affidavit dated January 15, 1999, by K.S. Prasad, an

5809engineer with the Department (Exhibit A); excerpts from Department

5818Exhibits 2, 4, 5, and 10 (Exhibit B); copies of Department field

5830inspection reports dated March 22, 1999, and June 21, 1996

5840(Exhibit C); a copy of the case of Davey Compressor Company v.

5852City of Delray Beach, et al. , 639 So. 2d 595 (Fla. 1994), and

5865papers labeled Grand Ridge Drum and Jorge Leon Dump Site (Exhibit

5876D); a newsletter from the Department website, a document taken

5886from www.ELUS.org, a document taken from the EPA website

5895concerning superfund liability, a document purportedly taken from

5903a Department handbook on disposal by dry cleaners, excerpts from a

5914deposition given by Leslie Smith on February 16, 1999, in a civil

5926action styled John Pierce v. Elsie M. Ligh , Case No. 98-5144-18

5937(17th Cir., Broward County), and an email dated April 30, 2007,

5948from Paul Wierzbicki to Amala Senarath (Exhibit E); and "many

5958[Department] reports [prepared in 1997] entered into evidence not

5967for this site" (Exhibit F).

59723/ See , e.g. , St. Johns River Water Management District v.

5982Schlusemeyer , 1998 Fla. ENV LEXIS 21 (SJRWMD Feb. 11,

59911998)(plugging of a drainage ditch considered a stationary

5999installation); Department of Environmental Protection v. All-

6006States Auto Salvage, Inc. , DOAH Case No. 93-5517, 1994 Fla. ENV

6017LEXIS 65 (DOAH Mar. 29, 1994, DEP June 8, 1994)(auto salvage

6028operation using solvents that have leaked into the soil considered

6038a stationary installation); Department of Environmental Regulation

6045v. Safety Kleen Corporation , DOAH Case Nos. 90-6665 and 90-7360,

60551992 Fla. ENV LEXIS 177 (DOAH July 10, 1992, DER Sept. 22,

60671992)(two underground storage tanks used in conjunction with an

6076ongoing business considered a stationary installation).


6084Lea Crandall, Agency Clerk

6088Department of Environmental Protection

60923900 Commonwealth Boulevard

6095Mail Station 35

6098Tallahassee, Florida 32399-3000

6101Karen Bishop, Esquire

6104Department of Environmental Protection

61083900 Commonwealth Boulevard

6111Mail Station 35

6114Tallahassee, Florida 32399-3000

6117Niel Schuberg, President

6120Nemi, Inc.

61221898 Stallion Drive

6125Loxahatchee, Florida 33470-3994


6134A party who is adversely affected by this Final Order is entitled

6146to judicial review pursuant to Section 120.68, Florida Statutes.

6155Review proceedings are governed by the Florida Rules of Appellate

6165Procedure. Such proceedings are commenced by filing the original

6174notice of appeal with the Clerk of the Division of Administrative

6185Hearings and a copy, accompanied by filing fees prescribed by law,

6196with the District Court of Appeal, First District, or with the

6207District Court of Appeal in the Appellate District where the party

6218resides. The notice of appeal must be filed within 30 days of

6230rendition of the order to be reviewed.

Select the PDF icon to view the document.
Date: 12/02/2009
Proceedings: Transmittal letter from Claudia Llado forwarding the one-volume Transcript, along with Department of Environmental Protection's Request for Offficial Recognition numbered 1-10, Petitioner's Exhibits numbered 1-17, and Respondent's Exhibits referred to in the Order Granting Motion filed May 15, 2009, to the agency.
Date: 05/29/2009
Proceedings: DOAH Final Order
Date: 05/29/2009
Proceedings: Final Order (hearing held April 21, 2009). CASE CLOSED.
Date: 05/18/2009
Proceedings: DEP's Proposed Final Order filed.
Date: 05/15/2009
Proceedings: Order Granting Motion.
Date: 05/07/2009
Proceedings: Department of Environmental Protection`s Response to Ex Parte Communication and Objection to and Motion to Strike Exhibits Filed after Final Hearing filed.
Date: 05/04/2009
Proceedings: Transcript filed.
Date: 04/30/2009
Proceedings: Letter to Judge Alexander from N. Schuberg enclosing exhibits (exhibits not available for viewing) filed.
Date: 04/23/2009
Proceedings: Department of Environmental Protection`s Request for Official Recognition (exhibits not available for viewing) filed.
Date: 04/21/2009
Proceedings: CASE STATUS: Hearing Held.
Date: 04/17/2009
Proceedings: Department of Environmental Protection`s Request for Official Recognition filed.
Date: 04/10/2009
Proceedings: Department of Environmental Protection`s Witness List filed.
Date: 04/09/2009
Proceedings: Amended Notice of Hearing (hearing set for April 21 and 22, 2009; 9:00 a.m.; Fort Lauderdale, FL; amended as to location of hearing).
Date: 03/30/2009
Proceedings: Notice of Taking Depositions (Neil Schuberg and Wayne Terwilliger) filed.
Date: 03/23/2009
Proceedings: Order of Pre-hearing Instructions.
Date: 03/23/2009
Proceedings: Notice of Hearing (hearing set for April 21 and 22, 2009; 9:00 a.m.; Fort Lauderdale, FL).
Date: 03/02/2009
Proceedings: Petitioner`s First Requests for Admissions to Respondent filed.
Date: 03/02/2009
Proceedings: Certificate of Service of Petitioner`s First Set of Interrogatories filed.
Date: 02/25/2009
Proceedings: Department of Environmental Protection`s Response to Initial Order filed.
Date: 02/25/2009
Proceedings: Response to Initial Order filed.
Date: 02/19/2009
Proceedings: Initial Order.
Date: 02/18/2009
Proceedings: Notice of Violation, Orders for Corrective Action and Administrative Penalty Assessment filed.
Date: 02/18/2009
Proceedings: Petition for Administrative Proceeding filed.
Date: 02/18/2009
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Fort Lauderdale, Florida
Department of Environmental Protection


Related DOAH Cases(s) (3):

Related Florida Statute(s) (8):

Related Florida Rule(s) (3):