07-001337EF Department Of Environmental Protection vs. P And L Salvage, Inc. And Marlene J. Ballard Status: Closed DOAH Final Order on Thursday, September 4, 2008.

Summary: Petitioner proved liability for P & L Salvage, Inc. under three counts. Marlene Ballard was individually liable under one count of the Notice of Violation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 07-1337EF

)

P & L SALVAGE, INC. and MARLENE J. BALLARD, )

)

)

Respondents. )

)

FINAL ORDER

The final hearing in this case was held on June 10 and 11,

2008, in West Palm Beach, Florida, before Bram D. E. Canter, an

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner Department of Environmental Protection:

Lisa G. London, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399-3000

For Respondents P & L Salvage, Inc. and Marlene J. Ballard:

Mark W. Klingensmith, Esquire

Sonneborn Rutter Cooney & Klingensmith, P.A.

1545 Centrepark Drive North

West Palm Beach, Florida 33401-7414

PRELIMINARY STATEMENT

On or about December 15, 2006, the Petitioner Department of

Environmental Protection (Department) issued a six-count Notice

of Violation, Orders for Corrective Action and Administrative

Penalty Assessment (NOV) against P & L Salvage, Inc. On or

about January 16, 2008, the Department issued an amended NOV

against P & L Salvage, Inc., Marlene J. Ballard, and Thomas E.

Ballard. Respondents P & L Salvage and Marlene Ballard timely

petitioned for an administrative hearing. Thomas Ballard did

not respond to the amended NOV and, therefore, DOAH did not

obtain jurisdiction over him.

The Department presented the testimony of Karen Misbach,

Bridget Armstrong, Paul Wierzbicki, Kathy Winston, Joe Lurix,

Geetha Selvendran, Edna Arant (through her deposition

transcript), and Nicholas Marangi (through his deposition

transcript). The Department’s Exhibits 2 through 15, 17, 18,

and 30 through 32 were admitted into evidence. At the request

of the Department, official recognition was taken of Title 42,

United States Code, Sections 9601(14) and 9602; Title 40, Code

of Federal Regulations, Section 302.4; and Public Law Nos. 96-

510 and 99-499. Respondents presented the testimony of Thomas

Ballard and Marlene Ballard. Respondents’ Exhibit 1 was

admitted into evidence.

The three-volume Transcript of the hearing was prepared and

filed with DOAH. The parties filed Proposed Final Orders that

were carefully considered in the preparation of this Final

Order.

STATEMENT OF THE ISSUES

The issues presented in the case are whether Respondents

P & L Salvage and Marlene Ballard are liable for violations of

state statutes and rules, as alleged in the amended NOV, and, if

so, whether the proposed corrective action is appropriate, and

whether the proposed civil penalties and costs should be paid by

Respondents.

FINDINGS OF FACT

The Parties

1. The Department is the state agency charged with the

power and duty to administer and enforce the provisions of

Chapters 376 and 403, Florida Statutes, and the rules

promulgated in Florida Administrative Code Title 62.

2. Respondent P & L Salvage, Inc., is a Florida

corporation. P & L Salvage owned and operated an automobile

salvage yard at 4535 and 4537 West 45th Street in West Palm

property comprises less than two acres.

3. Respondent Marlene Ballard is a Florida resident and

the president, treasurer, secretary, and director of P & L

Salvage, Inc.

Historical Use of the Site

4. Beginning in the 1960s, the site was used as an auto

salvage yard, first under the name Johnny’s Junkyard and later

as General Truck Parts.

5. In 1981, the owner of the salvage yard, Marie Arant,

sold the facility. The record is not clear about the exact

identity of the purchaser. The Alliance report, referred to

later, states that the property was purchased by “the Ballard

family.” The record evidence is insufficient to prove that

Marlene Ballard ever owned the salvage yard.

6. The parties agree that the salvage yard was operated

for a time as P & L Salvage, which was unincorporated. Then, in

January 1990, the site was purchased by Respondent P & L

Salvage, Inc., which owned the site continuously until January

2007.

7. Marlene Ballard lived in a house on the site from the

1980s until the property was sold in 2007. A separate building

at the site was used as P & L Salvage’s office.

8. The general operation of the salvage yard was to bring

junk cars and trucks to the site, remove fluids from the

vehicles, remove parts for sale, and then crush the dismantled

vehicles in a hydraulic crusher to prepare them for transport

and sale as scrap metal. The automotive fluids removed from the

junked cars were stored on the site in 55-gallon drums for later

disposal.

9. Respondents presented evidence to show that the person

who had the most knowledge of and managed the day-to-day

operations in the salvage yard was an employee named John Boyd.

When John Boyd ceased employment at the salvage yard, Marlene

Ballard’s son, Thomas Ballard, took over the management of the

yard.

10. Respondents contend that no evidence was presented

that Marlene Ballard conducted or participated in any activities

that resulted in contamination, or that she had authority to

prevent any potential contamination that might have occurred.

However, Ms. Ballard was familiar with the activities in the

yard, having worked and lived on the site for many years. She

did the bookkeeping and signed payroll checks. All employees

answered to Ms. Ballard. She contracted for environmental

assessment and remediation work, and signed the hazardous waste

manifests. She was acquainted with the contamination that could

and did occur at the salvage yard.

11. Eagle Sanitation, Inc., which operated a roll-off

container business, leased the site from September 2005 until

January 2007. Eagle Sanitation also obtained an option to

purchase the property.

12. At first, Eagle Sanitation only leased about a quarter

of the site because there were many junk autos, tires, and other

salvage debris still on the site in September 2005. For several

months, Thomas Ballard continued to sell auto parts and scrap

from the site, and to clear the site. Eagle Sanitation did not

have complete use of the site until early in 2006.

13. Eagle Sanitation’s business consisted of delivering

roll-off containers for a fee to contractors and others for the

disposal of construction debris and other solid waste, and then

picking up the containers and arranging for disposal at the

county landfill or, in some cases, recycling of the materials.

Roll-off containers at the site were usually empty, but

sometimes trucks with full containers would be parked at the

site overnight or over the weekend.

14. During its lease of the site , Eagle Sanitation did not

collect used oil or gasoline and did not provide roll-off

containers to automotive businesses. No claim was made that

Eagle Sanitation caused any contamination found at the site.

Contamination at the Site

15. In 1989, Marlene Ballard contracted with Goldcoast

Engineering & Testing Company (Goldcoast) to perform a “Phase

II” environmental audit. Goldcoast collected and analyzed

groundwater and soil samples and produced a report.

16. Cadmium, chromium, and lead were found in the soil

samples collected by Goldcoast. Some petroleum contamination was

also detected in soils. These pollutants are all associated with

automotive fluids.

17. The Goldcoast report states that groundwater samples

did not indicate the presence of pollutants in concentrations

above any state standard.

18. The Goldcoast report did not address the timing of

discharges of contaminating substances that occurred at the

site, except that such discharges had to have occurred before

the report was issued in 1989. That is before the property was

purchased by P & L Salvage, Inc.

19. During an unannounced inspection of the salvage yard

by two Department employees on August 15, 1997, oil and other

automotive fluids were observed on the ground at the site in the

“disassembly area” and around the crusher. There were also

stains on the ground that appeared to have been made by

automotive fluids. No samples of the fluids were taken or

analyzed at the time of the inspection.

20. The Department inspectors told Marlene Ballard to

cease discharging fluids onto the ground, but no enforcement

action was initiated by the Department. Ms. Ballard was also

told that she should consider removing the soil where the

discharged fluids and staining were observed.

21. In early 1998, RS Environmental was hired to excavate

and remove soils from the site. This evidence was presumably

presented by Respondents to indicate that they remediated the

contaminated soils observed by the Department inspectors, but no

details were offered about the area excavated to make this

clear.

22. In 2004, in conjunction with a proposed sale of the

site, another Phase II investigation of the site was done by

Professional Services Industries, Inc. (PSI), and a report was

issued by PSI in May 2004. The PSI report is hearsay and, as

such, cannot support a finding of fact regarding the matters

stated in the report.

23. Presumably as a result of its knowledge of the PSI

report, the Department issued a certified letter to Ms. Ballard

on June 24, 2005, informing her that the Department was aware of

methyl tert-butyl ethylene (MTBE) contamination at the facility.

MTBE is an octane enhancer added to gasoline.

24. The Department’s June 2005 letter advised Ms. Ballard

that Florida Administrative Code Chapter 62-780 required

“responsible parties” to file a site assessment report (SAR)

within 270 days of becoming aware of such contamination. The

letter also informed Ms. Ballard of the proximity of the City of

Riviera Beach’s wellfield and the threat that represented to

public drinking water.

25. The June 2005 letter was returned to the Department

unsigned.

26. In October 2005, the Department arranged to have the

letter to Marlene Ballard served by the Palm Beach County

Sheriff’s Office. The Department received a confirmation of

service document that shows the letter was served by a deputy on

October 14, 2005, but this document is hearsay and does not

support a finding that Ms. Ballard had knowledge of the contents

of the letter.

27. The Department did not receive an SAR within 270 days,

but no enforcement action was immediately initiated.

28. On December 15, 2006, the Department issued a six-

count NOV to P & L. Salvage, Inc. P & L Salvage requested a

hearing and the matter was referred to DOAH.

29. In January 2007, in conjunction with Eagle

Sanitation’s proposed sale of its purchase option to Prime

Realty Capital, LLC, Alliance Consulting & Environmental

Services, Inc., (Alliance) conducted a site assessment at the

site and produced an SAR in April 2007. At that time, as

indicated above, P & L Salvage had ceased operations at the site

and Eagle Sanitation was operating its roll-off container

business there.

30. The SAR states that in January 2007, “[a]pproximately

80 yards of black stained oily-solidified shallow sands were

excavated [by Eagle Sanitation] from the central and

northeastern portions of the site, where car crushing, fluid

draining and battery removal were historically conducted.” The

soil contained lead, iron, chromium, cadmium, and arsenic, but

testing did not show the excavated soils constituted hazardous

materials and, therefore, the soils were disposed at the county

landfill.

31. The area of soils where the Department inspectors in

1997 observed automotive fluids and staining appears to have

been included in the soils that were excavated and removed in

2007. The Department presented no evidence to the contrary.

32. Testing by Alliance of other soils at the site showed

“no significant petroleum metals concentrations” and Alliance

did not recommend the removal of other soils.

33. The presence of an MTBE “plume” of approximately

30,000 square feet (horizontal dimension) was also described in

the SAR. The plume is in the area where the crusher was

located. Several groundwater samples from the site showed MTBE

in concentrations above the target cleanup limit.

34. The City of Riviera Beach operates a public water

supply wellfield near the site. The closest water well is

approximately 250 feet from the site. The SAR concludes that

“the potential exists for the MTBE plume to be pulled downward”

toward the well, and recommends that a risk assessment be

performed.

35. Alliance recommended in the SAR that the MTBE

contamination be remediated with “in-situ bioremediation” with

oxygen enhancement. No remediation has occurred on the site

since the date of the Alliance report.

36. The Alliance report did not address the timing of

contaminating discharges that occurred at the site. To the

extent that Alliance reported contamination in 2007 that was not

reported in the 1989 Goldcoast report, that is not sufficient,

standing alone, to meet the Department’s burden of proof to show

Competent evidence was not presented that the Alliance report

describes “new” contamination. The authors of the reports were

not called as witnesses. No expert testimony was presented on

whether the data in the reports can establish the timing of

contaminating discharges. It is not the role of the

Administrative Law Judge, nor does he have the requisite

expertise, to compare the environmental assessments conducted by

Goldcoast and Alliance and make judgments about whether some of

the contamination reported by Alliance had to have occurred after

1989.

37. Although the Department’s expert, Paul Wierzbicki,

testified that it was his opinion that the contamination was

attributable to the “operations of the P & L Salvage yard

facility,” he was answering a question about “what caused the

contamination” and, in context, his testimony only confirmed

that the type of contamination shown in the photographs and

reported in the site assessment reports was the type of

contamination associated with auto salvage yards.

38. Mr. Wiezbicki’s testimony is not evidence which can

support a finding that the contamination at the site, other than

the automotive fluids and stained soils observed by the

Department inspectors in 1997, was caused by P & L Salvage, Inc. 1

39. On June 12, 2007, after reviewing the Site Assessment

Report, the Department issued a letter to Marlene Ballard,

requesting additional data and analysis. At the hearing, the

Department presented a responding letter from Alliance dated

June 21, 2007. It was disputed whether the Alliance letter is

evidence of Ms. Ballard’s receipt and knowledge of the

Department’s June 12, letter. However, even if Ms. Ballard did

not know about the Department’s letter in June 2007, she

certainly became aware of the letter in the course of this

proceeding. The amended NOV issued in January 2008 mentions the

letter, and the letter was listed as an exhibit in the parties’

June 4, 2008 Pre-hearing Stipulation.

40. On January 24, 2008, the Department issued an amended

NOV which dropped three counts from the original NOV and added

two new counts. Most significantly, the amended NOV added

Marlene Ballard and Thomas Ballard as Respondents.

41. P & L Salvage and Marlene Ballard responded to the

amended NOV with petitions for hearing. Thomas Ballard did not

respond.

42. At the hearing, the Department presented testimony of

employees that were involved in this enforcement action

regarding the value of their time expended on various tasks

associated with this case. Bridget Armstrong spent eight hours

inspecting the site of the contamination, eight hours drafting

the NOV and consent order, approximately 30 hours reviewing

technical documents, and 15 hours corresponding with

Respondents. Ms. Armstrong’s salary at the time was about

$20.00 per hour. Paul Wierzbicki spent 16 hours investigating

facilities in the area, reviewing the contamination assessment

reports, and overseeing the enforcement activity of his

subordinates. Mr. Wierzbicki was paid $33.00 per hour.

Kathleen Winston spent 10 hours reviewing a site assessment

report and drafting correspondence. Ms. Winston’s salary at the

time was $23.56 per hour. Geetha Selvendren spent 4-to-5 hours

reviewing the site assessment report. She was paid $19.00 per

hour at the time. Finally, Joseph Lurix spent three hours

reviewing documents. His salary at the time was $34.97 per

hour.

CONCLUSIONS OF LAW

43. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case under Sections 120.569, 120.57(1), and 403.121(2), Florida

Statutes (2007). 2

44. If the Department has reason to believe a violation

has occurred, it may institute an administrative proceeding to

establish liability, to recover damages, and to order the

prevention, abatement, or control of the conditions creating the

violation. See § 403.121(2)(a)-(b), Fla. Stat.

45. The Department has the burden of proving by a

preponderance of the evidence that Respondent are responsible

for the violations alleged in the Department’s amended NOV. See

§ 403.121(2)(d), Fla. Stat.

46. Hearsay evidence is not sufficient in itself to

support a finding unless it would be admissible over objection

in civil actions. § 120.57(1)(c), Fla. Stat. Hearsay is a

statement, other than one made by the declarant while testifying

at the hearing, which is offered for the truth of the matter

asserted. See § 90.801(1)(c), Fla. Stat.

47. The Administrative Law Judge is to issue a final order

on all matters, including the imposition of administrative

penalties. See § 403.121(2)(d), Fla. Stat.

48. Section 403.121(3), Florida Statutes, provides a range

of penalties that “must be calculated” for various types of

violations. Section 403.121(4), Florida Statutes, provides a

range of penalties that the Department “shall assess” for other

types of violations. Section 403.121(5), Florida Statutes,

provides that the Department “may assess” a penalty of $500.00

for failure to comply with any Departmental statute or rule not

otherwise identified.

49. The penalties “may be assessed” for each additional

day during which a violation occurs. See § 403.121(6), Fla.

Stat.

50. Evidence may be received in mitigation and may reduce

a penalty up to 50 percent for mitigating factors, including

good faith efforts to comply prior to or after discovery of the

violations by the Department. § 403.121(10), Fla. Stat. The

Administrative Law Judge may further reduce the penalty upon an

affirmative finding that the violation was caused by

circumstances beyond the reasonable control of a respondent and

could not have been prevented by due diligence. Id.

51. The Department is seeking to establish individual

liability against Marlene Ballard as the person who operated the

facility at the time contaminating discharges, pursuant to

Sections 376.308 and 403.727, Florida Statutes. These statutes

make “any person” liable for the specified offenses. The

Department acknowledges that there is “scant” Florida case law

on the subject, but urges a construction of the state statutes

that makes a person liable who manages, directs, or conducts

operations related to the pollution that occurred, or makes

decisions related to compliance with environmental regulations.

52. Liability under Sections 376.308 and 403.727, Florida

Statutes, is not limited to the person whose hand tipped the

bucket. Marlene Ballard is liable for any of the specified

offenses for which the Department proved Ms. Ballard had some

individual culpability, through her own misdeeds or through her

direct control over the misdeeds of others. See Department of

Environmental Protection v. Harbor Utilities Company, Inc. , 684

So. 2d 301 (Fla. 2d DCA 1996).

Count I

53. Count I of the amended NOV alleges that “Respondents

are the former owners and operators of the Facility at which

hazardous substances have been released, including MTBE, lead,

arsenic, barium, cadmium, and chromium.” The Department asserts

this is a violation of Section 403.727(4), Florida Statutes.

54. Section 403.727(4), Florida Statutes, makes the owner

or operator of a hazardous waste facility, and “any person who

at the time of disposal of any hazardous substance owned or

operated any facility,” liable for the costs of remedial action

incurred by the Department and damages for injury to natural

resources. MTBE, lead, arsenic, cadmium, and chromium are

hazardous substances pursuant to Sections 376.301(21) and

403.703(12), Florida Statutes.

55. No evidence was presented that the Department incurred

costs for remedial action. Therefore, the relevant charge in

Count I is for damages for injury to natural resources.

56. P & L Salvage, Inc., is no longer the owner or

operator of the site and, therefore, is only subject to

liability for contamination it caused during its ownership and

operation, which was from 1990 to 2007. The only contamination

for which the Department established a time of occurrence was

the release of automotive fluids in August 1997, observed by

Department inspectors. The Department did not prove that the

release of automotive fluids observed in August 1997 was a

release of MTBE, lead, arsenic, cadmium, and chromium (hazardous

substances), nor that the observed release caused the

groundwater contamination that was reported.

57. Even if the observation of automotive fluids on the

ground in 1997 was sufficient to prove a release of MTBE, lead,

arsenic, cadmium, and chromium, no penalty is warranted against

P & L Salvage or Marlene Ballard because those contaminated

soils were remediated.

Count II

58. In Count II of the amended NOV, the Department alleges

that “Respondents have discharged a pollutant or hazardous

substances into or upon the surface or ground waters of the

state, which violates any Department standard, as defined at

includes any rule of the Department relating to air and water

quality.

59. The Department asserts that the charge in Count II is

a violation of Sections 376.302(1)(a) and 376.305(1), Florida

Statutes. Section 376.302(1)(a), Florida Statutes, is nearly

identical to the wording in Count II. On the other hand,

Section 376.305(1), Florida Statutes, requires any person

discharging a pollutant (as prohibited) to “immediately

undertake to contain, remove, and abate the discharge to the

satisfaction of the department.”

60. The Department has incorrectly cited Section

376.305(1), Florida Statutes, as violated by the charge in Count

II. Count II does not charge Respondent’s with failing to

contain, remove, and abate a discharge.

61. The only contamination for which the Department

established a time of occurrence was the release of automotive

fluids in August 1997, observed by Department inspectors. The

Department did not prove by empirical evidence or opinion

testimony that any of the reported groundwater contamination was

caused by discharges of pollutants or hazardous substances that

occurred during the period from 1989 to 2007. The contaminated

soils observed in 1997 were remediated.

62. P & L Salvage, Inc., was the corporate owner and

operator of the salvage yard when the unlawful discharge

occurred in 1997. Marlene Ballard was not shown to have had

direct control over or other culpability in the particular

discharge or discharges that resulted in the contamination that

was observed in 1997.

63. The Department is seeking a penalty of $500. In all

the counts of the amended NOV, the Department seeks damages from

“Respondents,” without specifying a division of the penalty

between the Respondents.

64. For the unlawful discharge of automotive fluids, the

results of which were observed in 1997, a penalty of $500 shall

be imposed against P & L Salvage, Inc.

Count III

65. The Department alleged in Count III that “Respondents’

Property have resulted in groundwater contamination at the

Property.” The Department asserts that this Count states a

violation of Section 403.727(1)(d), Florida Statutes.

66. Section 403.727(1)(d), Florida Statutes, makes it

unlawful for a hazardous waste generator, transporter, or

facility owner or operator to create an imminent hazard. An

“imminent hazard” exists if any hazardous substance creates an

immediate and substantial danger to human health, safety, or

welfare or to the environment. See § 403.726(3), Fla. Stat.

Because of the proximity of the reported groundwater

contamination to the City of Riviera Beach’s wellfield, an

imminent hazard was shown to exist.

67. However, the only contamination for which the

Department established a time of occurrence was the release of

automotive fluids in August 1997, observed by Department

inspectors, which the record shows was remediated by removal of

the soils in the area. The Department did not prove that the

release of automotive fluids observed in August 1997 caused the

groundwater contamination that was later reported. The

Department did not prove by empirical evidence or opinion

testimony that any of the reported groundwater contamination

which creates the imminent hazard was caused by discharges of

pollutants or hazardous substances that occurred during the

period that P & L Salvage, Inc., owned and operated the salvage

yard.

68. No penalty is warranted under Count III because the

Department failed to prove that P & L Salvage, Inc., or Marlene

Ballard created an imminent hazard.

Count IV

69. In Count IV, the Department alleges that “Respondents

failed to submit a Site Assessment Report Addendum within 60

days of receipt of the notice of deficiencies in the submitted

Site Assessment Report, as required by Fla. Admin. Code R. 62-

780.600(10).”

70. Florida Administrative Code Rule 62-780.600(10)

provides in relevant part:

[I]f the Site Assessment Report is

incomplete in any respect, or is

insufficient to satisfy the objectives of

subsection 62-780.600(3), F.A.C., the

Department shall inform the PRSR pursuant to

paragraph 62-780.600(9)(b), F.A.C., and the

PRSR shall submit to the Department for

review two copies of a Site Assessment

Report Addendum that addresses the

deficiencies within 60 days after receipt of

the notice.

71. The Department requested additional site assessment in

a June 12, 2007, letter to Marlene Ballard, but additional data

has not been submitted to date. Even if June 4, 2008, the date

of the parties’ Pre-hearing Stipulation, was the first time that

Respondents became aware of the Department’s request for

additional information, more than 60 days have passed without a

response. Respondents did not challenge the Department’s action

determining that the Site Assessment Report was deficient.

72. P & L Salvage, Inc., was the corporate owner and

operator of the salvage yard about which the information was

requested. Marlene Ballard had direct control over the decision

whether to respond to the Department’s request for additional

information.

73. The Department is seeking a penalty of $8,500, which

represents 17 days of non-compliance at $500 per day. The

assessment of a penalty for each day of non-compliance is not

mandatory. A penalty of $1,000 under Count IV is reasonable

under the circumstances and shall be imposed jointly against

Respondents.

Count V

74. Count V of the amended NOV alleges that “The

Department incurred expenses to date while investigating this

matter in the amount of $2,500.00.”

75. Section 403.141(1), Florida Statutes, provides that a

person who causes pollution or other offense specified in

Section 403.161(1), Florida Statutes, is liable to the state for

the Department’s reasonable costs and expenses in tracing the

source of the discharge, controlling and abating the source of

the pollutants, and in restoring the air and waters to their

former condition.

76. Section 403.121(2)(f), Florida Statutes, provides that

the Department can also recover all of its legal costs and

charges described in Sections 57.041 and 57.071, Florida

Statutes, plus its attorney’s fees. The Department did not seek

recovery of its legal costs and charges or its attorney’s fees.

79. The Department is seeking to recover $2,500 in

enforcement expenses, but this amount should be reduced because

there was considerable redundancy in the review of contamination

assessment reports, the evidence did not demonstrate that all of

the Department’s expenses were directly involved in tracing and

controlling the source of the discharge, and some of the

enforcement effort was ineffectual. An award of $1,000 under

Count V is reasonable under the circumstances.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that:

1. Within 60 days of this Final Order, Respondents shall

submit a Site Assessment Report Addendum to the Department that

complies with Florida Administrative Code 62-780.600.

2. Within 30 days of this Final Order, Respondent P & L

Salvage, Inc., shall pay $500 to the Department for the

administrative penalty assessed under Count II. Payment shall

be made by cashier’s check or money order payable to the “State

of Florida Department of Environmental Protection” and shall

include thereon the OGC Case No.: 06-2335 and notation

“Ecosystem Management and Restoration Trust Fund.” The payment

shall be sent to the Department of Environmental Protection,

Southeast District Office, 400 North Congress Avenue, Suite 200,

West Palm Beach, Florida 33401.

3. Within 30 days of this Final Order, Respondents shall

pay $1,000 to the Department for the administrative penalty

assessed under Count IV. Payment shall be made by cashier’s

check or money order payable to the “State of Florida Department

of Environmental Protection” and shall include thereon the OGC

Case No.: 06-2335 and notation “Ecosystem Management and

Restoration Trust Fund.” The payment shall be sent to the

Department of Environmental Protection, Southeast District

Office, 400 North Congress Avenue, Suite 200, West Palm Beach,

Florida 33401.

4. Within 30 days of this Final Order, Respondent P & L

Salvage, Inc., shall pay $1,000 to the Department for its

enforcement costs and expenses assessed under Count V. Payment

shall be made by cashiers check or money order payable to “State

of Florida Department of Environmental Protection” and shall

include OGC Case No. 06-2335 thereon with the notation

“Ecosystem Management and Restoration Fund.” The payment shall

be sent to the Department of Environmental Protection, Southeast

District Office, 400 North Congress Avenue, Suite 200, West Palm

Beach, Florida 33401.

DONE AND ORDERED this 4th day of September, 2008, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of September, 2008.

ENDNOTES

1 / A lack of foundation objection was raised by opposing

counsel, and no foundation was laid for an opinion by Mr.

Wierzbicki about the timing of contaminating discharges at the

site, except with regard to the automotive fluids and stained

soils shown in the 1997 photos.

2 / All references to the Florida Statutes are to the 2007

codification.

COPIES FURNISHED :

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Michael W. Sole, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Mark W. Klingensmith, Esquire

Sonneborn, Rutter, Cooney &

Klingensmith, P.A.

1545 Centrepark Drive North

West Palm Beach, Florida 33401

Dawn Margaret Cinquino, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

Lisa G. London, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Jeffery C. Close, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

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

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.