08-002636 Thomas M. Parham vs. Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, December 9, 2008.

Summary: Respondent proved that Petitioner was maintaining an unpermitted stationary installation reasonably expected to pollute, which was discharging to the environment and required groundwater monitoring.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS M. PARHAM, )

)

Petitioner, )

)

vs. ) Case No. 08-2636

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

On September 25, 2008, a final hearing was held in this

case by teleconference in Jacksonville and Tallahassee before J.

Lawrence Johnston, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Thomas M. Parham, pro se

7225 Arlet Drive

Jacksonville, Florida 32211

For Respondent: Karen Bishop, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

There are two issues in this case: whether the Petitioner,

Thomas M. Parham, is maintaining an unpermitted stationary

installation that is reasonably expected to be a source of air

or water pollution; and whether installations on Mr. Parham's

property are discharging into groundwater, and whether he should

therefore be required to obtain a groundwater monitoring permit

and conduct groundwater monitoring as ordered in the

Department's Final Order, DEP OGC File No. 08-0521 (the Order).

PRELIMINARY STATEMENT

The Department issued the Order on April 28, 2008. The

Petitioner filed a Petition for Hearing, and the matter was

referred to the Division of Administrative Hearings (DOAH) on

June 3, 2008. The matter was scheduled for final hearing on

August 26, 2008, but a Joint Motion for Continuance was granted,

and the final hearing was rescheduled for September 25, 2008.

On August 18, 2008, the Department filed a Request for

Official Recognition, which was not ruled on.

During the final hearing, the Department called: the

Petitioner, Thomas M. Parham; Michael Fitzsimmons, the waste

program administrator at the Department's Northeast District

office (NED); Emerson Raulerson, the supervisor of the solid

waste section at the NED; Gregory Kowalski, an environmental

scientist with TN & Associates, who conducted field work on

Petitioner's property and prepared an Expanded Site Inspection

Report; and Richard Rachal, the waste cleanup supervisor at the

NED. The Department's Exhibits R-1 through R-8 were admitted

into evidence. Thomas M. Parham testified for himself. He also

called Sally Heuer, an environmental specialist at the NED.

Petitioner did not move any exhibits into evidence during the

hearing. In rebuttal, the Department re-called Mr. Rachal and

Mr. Fitzsimmons.

After presentation of evidence, the parties requested a

transcript of the final hearing and were given ten days from the

filing of the transcript in which to file proposed recommended

orders (PROs). The Transcript was filed on October 20, 2008.

On October 30, 2008, the Department filed a PRO. Instead

of a PRO, Parham filed both a request for a 21-day extension of

time to file his PRO and certified and uncertified copies of

various documents relating to the Property. Because Parham's

filings were not served, a Notice of Ex-Parte Communication was

issued, giving the Department an opportunity to respond to and

rebut the ex-parte communications. On November 17, 2008, the

Department filed a Response, which agreed to the requested

extension of time and objected to the submission of the

certified documents as irrelevant.

On November 20, 2008, Parham filed his PRO and a reply to

the Department's Response. At this time, the relevance

objection is overruled, and the documents are received in

evidence as composite Petitioner's Exhibit P-1. The parties'

PROs have been considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Thomas Parham purchased the property at 5401

Pickettville Road, Jacksonville, Florida (the Property), in a

tax sale on November 21, 2007. His intention was to use it to

park and store trucks and heavy equipment.

2. At the time of purchase, there were no signs posted on

the Property indicating that it was hazardous or toxic or

otherwise compromised environmentally. At the time, there was

no statute or rule requiring the Property to be posted to give

the public notice of any of those conditions.

3. Parham drove past the Property before buying it, but it

was fenced, and the gates were locked, and he was unable to get

in to inspect it. From the fence, he saw no indication that the

Property was hazardous or toxic or otherwise compromised

environmentally. However, Parham knew that there was fill

material on the Property. He states that he did not know the

Property was toxic or hazardous, but he did no due diligence to

determine what kind of fill was on the Property.

4. Parham has bought and sold property in tax sales for a

living for the past 11 years. He owns 115 different properties,

and has been involved in 795 property transactions. Once, he

accidentally bought a contaminated property, which the City of

Jacksonville bought back from him after the contamination was

discovered. Based on his experience, Parham knew or should have

known to conduct due diligence on the Property before buying it.

5. After purchasing the Property, Parham saw that part of

it had a significant amount of a black material. He testified

that he believed it was charcoal or bituminous coal, which he

called "black beauty." Instead of determining what it was,

Parham decided to cover it with dirt. He had 124 truckloads of

fill delivered to the Property and covered all of the supposed

"black beauty."

6. Someone saw the activity on the Property and contacted

the Department of Environmental Protection (DEP). DEP inspected

and entered a Final Order, DEP OGC File No. 08-0521 (the Order)

to require Parham to install monitoring wells and implement a

monitoring program to determine whether the Property was causing

pollution and contamination offsite. Parham challenged the

Order, which resulted in this proceeding.

7. Actually, the black material on the Property was not

charcoal or bituminous coal. It was sandblasting grit material

used by Jacksonville Shipyards, Inc. (Jacksonville Shipyards),

in its shipyard operations to sandblast old paint coatings and

rust from ships before re-painting. It would be expected that

the used grit would be contaminated with metals and volatile

organic compounds (VOCs). The used grit was trucked to and

deposited on the Property when it was owned by Jacksonville

Shipyards in the 1970's and early 1980's.

8. Prior to Jacksonville Shipyards' purchase of the

Property in 1972, it was used as a sand mine. In the process,

two large pits, each 20 to 25 feet deep, were excavated on the

Property. Later, waste was dumped into the pits, including

concrete, asphalt, metal pipes, wire, and wooden demolition

material. When Jacksonville Shipyards purchased the Property in

1972, sandblasting grit was added to the waste placed into the

pits. Initially, these activities were not regulated, and the

pits were not lined before being used for waste disposal.

9. By July 1980, leachate generated when waste material

(including the sandblasting grit, which was being delivered to

the Property daily) came in contact with water was running off

the Property towards Six Mile Creek, which flows east to where

it is joined by Little Six Mile Creek, from which the combined

flow towards the east becomes the headwater of the tidal Ribault

River. In addition, leachate was entering the groundwater on

the Property, which also flowed generally to the north towards

Six Mile Creek.

10. When DEP's predecessor, the Department of

Environmental Regulation (DER) began to regulate land fills, it

required Jacksonville Shipyards to submit a groundwater

monitoring plan, which DER approved. Monitoring wells were

installed, and the groundwater on the Property was sampled once

in 1984 and showed groundwater contamination. DER groundwater

standards and criteria for arsenic, barium, chromium, lead,

chlorides, copper, iron, manganese, total dissolved solids

(TDS), and zinc were exceeded. DER attempted to negotiate a

consent order with Jacksonville Shipyards to address the

contamination, but those efforts failed, and then Jacksonville

Shipyards and related business entities went into bankruptcy

proceedings.

11. After the bankruptcy proceeding was initiated,

Jacksonville Shipyards conducted no further groundwater

monitoring at the Property. Neither DER nor DEP issued a solid

waste permit or a groundwater monitoring permit for the

Property. No waste has been removed the Property, and no liner

has been installed. Leachate has continued to run off the

Property and infiltrate the groundwater on the Property and

flowed towards Six Mile Creek.

12. After bankruptcy proceedings were initiated,

representatives of DER and DEP checked from time to time to see

if overdue property taxes had been paid, reasoning that payment

of the taxes would be an indication that the bankruptcy

proceedings had progressed to the point that a financially

viable owner of the Property could be required to implement an

appropriate monitoring program for the Property. In fact,

unbeknownst to DEP, title to the Property was conveyed to

Picketsville Realty Holdings, LLC, in 1998.

13. In 1998 DEP contracted with a consultant to conduct

sampling at the Property to identify the source of the

groundwater contamination detected in the onsite monitoring

wells in 1984. Groundwater, soil, and surface water samples

were collected and analyzed, as were reports on assessments

conducted at the Pickettville Road Landfill, a federal Superfund

site located across Pickettville Road from the Property. The

consultant reported in 1999 that lead in groundwater samples

exceeded the maximum contaminant level (MCL) in shallow well 11

and in deep well 2. In shallow well 9, N-nitrosodiphenylamine

also exceeded the MCL. Lead was detected in all twelve soil

samples collected in areas where sandblasting grit was found on

the surface although none of the soil samples exceeded DEP's

residential direct exposure Soil Cleanup Target Level (SCTL) of

400 mg/kg. The report concluded that the Property was the

source of most if not all of the contamination detected in the

monitoring wells on the Property. The Pickettville Road

Superfund site was not considered to be contributing to the

groundwater contamination on the Property because groundwater

data indicated that the Superfund site is not up-gradient of the

Property. Groundwater flow from the Property was found to be

generally westerly towards Six Mile Creek.

14. In approximately 2003, the federal Environmental

Protection Agency (EPA) contracted with a consultant to perform

an Expanded Site Inspection (ESI) on the Property to determine

whether it should be placed on the federal National Priorities

List (NPL) of sites at which a release, or potential release, of

hazardous substances poses a serious enough risk to the public

health or the environment to warrant further investigation and

possible remediation under the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA) of 1980 and

the Superfund Amendments and Reauthorization Act of 1986. In

this assessment, surface and subsurface soils and groundwater

were collected from the Property, sampled, and analyzed. In

addition, surface water and sediment samples from Six Mile Creek

and from the Ribault River were collected, sampled, and

analyzed.

15. The federal ESI report was issued in 2004. It found

arsenic, copper, benzo(a)pyrene equivalents in the surface soil

samples that exceeded the default levels of concern for direct

exposure, as provided in Florida Administrative Code Rule

Chapter 62-777. It also found arsenic, copper, iron, lead,

polychlorinated biphenyls (PCBs), and benzo(a)pyrene equivalents

in the subsurface soil samples that exceeded the default levels

of concern for direct exposure, as provided in Rule Chapter 62-

777. It also found chromium, iron, and lead in one groundwater

sample at concentrations exceeding DEP's groundwater standards.

Aluminum, arsenic, barium, chromium, copper, nickel, vanadium,

acenaphthene, fluorine, and phenanthrene levels in various

groundwater samples were elevated but did not exceed DEP's

groundwater standards. It also found that surface water samples

from Six Mile Creek contained barium, copper, manganese, and

vanadium at elevated concentrations. Sediment samples from Six

Mile Creek and the Ribault River contained numerous metals,

bis(2-ethylhexyl)phthalate, several polyaromatic hydrocarbons

(PAHs), and PCB-1260 at concentrations exceeding EPA Region 4

guidance values. It was concluded that from the elevated

concentrations in the surface water samples that contamination

of the surface water pathways continues to occur from inorganic

contaminants from the Property.

16. The number of impacted groundwater monitoring wells

decreased from 1984 to 2004. However, arsenic concentrations

increased in shallow well 9, and barium concentrations increased

in shallow well 8, during that time. Also, acenapthene, which

is a semi-volatile compound associated with PAHs, was reported

in two wells in the 2004 ESI report but no detection was

reported in the 1985 report.

17. The 1985, 1999, and 2004 reports indicate that the

waste-filled pits on the Property are discharging to

groundwater. This is not surprising since there is no liner

beneath the waste that has been placed in the pits. Rain and

runoff on the Property would percolate through the waste and

leaches contaminants out of the waste. The leachate enters the

groundwater on the Property.

18. Parham contends that contamination found on the

Property is from the 53-acre Pickettville Landfill, which was

operated by the City of Jacksonville. He contends that a large

number of lead batteries were placed in the Pickettville

Landfill from extensive lead battery disposal. The evidence

proved that the Pickettville Landfill is a Superfund site but

did not prove composition or amount of the waste placed in the

Pickettville Landfill over the years. Even if the Pickettville

Landfill was used extensively for lead battery disposal over the

years, the evidence was that little or none of the contamination

on the Property is attributable to the Pickettville Landfill.

Besides groundwater flow from the Pickettville Landfill likely

being away from the Property, lead contamination was found in

the surface and subsurface soils of the Property, making it very

unlikely that the contamination on the Property came from the

Pickettville Landfill.

19. Parham also questions the estimate in the three

contamination reports on the Property that 200,000 cubic yards

of sandblasting grit were dumped on the property. He estimated

that would amount to 13,000 truckloads, which would not fit on

the 4-acre Property. But a witness for DEP estimated that two-

acres of 20-25 foot deep pits would hold that quantity of

sandblasting grit. Even if the actual quantity of sandblasting

grit dumped on the Property was less, the evidence was that it

was the likely source of the metal contamination found in the

soils and groundwater on and under the Property.

20. Similarly, Parham suggests that waste oil and other

waste in the Pickettville Landfill could be the source of PAH or

PCB contamination on the Property. Besides groundwater flow

from the Pickettville Landfill likely being away from the

Property, those contaminants move very slowly and do not move

large distances, making it very unlikely that the contamination

on the Property came from the Pickettville Landfill. Even if

some did, the Pickettville Landfill would not account for much

of the contamination on the Property.

21. Parham contends that, even if the Property is

contaminated, his placement of 124 truckloads of dirt on the

Property will prevent any further groundwater contamination.

But dirt is not impervious and will not prevent rain and runoff

from percolating through the waste on the Property and leaching

contamination into the groundwater on the Property. Eventually,

this groundwater leaves the Property and enters Six Mile Creek.

CONCLUSIONS OF LAW

22. Section 403.061(8), Florida Statutes, 1 grants the

Department the power and duty to control and prohibit pollution

of air and water in accordance with the law and rules adopted

and promulgated by it, and, for this purpose, to issue such

orders as are necessary to control air and water pollution and

enforce the orders by appropriate administrative and judicial

proceedings.

23. The Department has the burden of proving by a

preponderance of the evidence that the allegations in the Order

are true. § 120.57(1)(j), Fla. Stat.

24. The Order alleges that Petitioner violated Section

403.087(1), Florida Statutes, which provides, in part:

A stationary installation that is reasonably

expected to be a source of air or water

pollution must not be operated, maintained,

constructed, expanded, or modified without

an appropriate and currently valid permit

issued by the department, unless exempted by

department rule.

25. The term "stationary" is not defined by statute or

rule; therefore, the ordinary meaning of the word applies.

Stationary means "not moving." American Heritage Dictionary,

Fourth Edition . The evidence shows that the waste on the

property is in a fixed location.

26. Section 403.031(4), Florida Statutes, defines

installation as "any structure, equipment, or facility, or

appurtenances thereto, or operation which may emit air or water

contaminants in quantities prohibited by rules of the

department."

27. The term "facility" is not defined by statute or rule;

therefore, the ordinary meaning of the word applies. The

definition of facility includes "something created to serve a

specific function." American Heritage Dictionary, Fourth

Edition . The evidence shows that this property was operated as

a "solid waste management facility" and a "solid waste disposal

facility," as defined in Florida Administrative Code Rule 62-

701.200. 2 Accordingly, the waste disposal areas on the property

are a facility and an installation, as defined in Section

403.031(4), Florida Statutes, and Rule 62-520.200(4).

28. A violation of any groundwater criterion contained in

Chapter 62-520 constitutes pollution. See Fla. Admin. Code R.

62-520.300(6).

29. Class G-2 groundwater is required to meet the minimum

criteria provided in Rule 62-520.400 and the primary and

secondary drinking water standards in Rule 62-520.420.

30. Rule 62-520.400(1) provides:

All ground water shall at all places and at

all times be free from domestic, industrial,

agricultural, or other man-induced non-

thermal components of discharges in

concentrations which, alone or in

combinations with other substances, or

components of discharges (whether thermal or

non-thermal):

(a) Are harmful to plants, animals, or

organisms that are native to the soil and

responsible for treatment or stabilization

of the discharge relied upon by Department

permits; or

(b) Are carcinogenic, mutagenic,

teratogenic, or toxic to human beings,

unless specific criteria are established for

such components in Rule 62-520.420, F.A.C.;

or

(c) Are acutely toxic within surface

waters affected by the ground water; or

(d) Pose a serious danger to the public

health, safety, or welfare; or

(e) Create or constitute a nuisance; or

(f) Impair the reasonable and beneficial

use of adjacent waters.

31. The Department's cleanup target levels (CTLs) for

groundwater are based on the minimum criteria and are derived

upon consideration of the following factors: "calculations using

a lifetime excess cancer risk level 1.0E-6 and; a hazard

quotient of 1 or less; and nuisance, organoleptic, and aesthetic

considerations." See Fla. Admin. Code R. 62-777.170(1)(a).

32. The evidence shows that, as of 2004, the groundwater

on the Property was contaminated with chromium, iron and lead,

exceeding the Department's groundwater standards. This

constitutes pollution under Rule 62.520.300(6). Additionally,

arsenic, copper, iron, lead, PCBs, and benzo-a-pyrene

equivalents exceeded the Department's soil CTLs. Because

rainfall and/or surface water continue to come in contact with

the soil and with the waste that was placed on the property, and

because there is no liner, the installation may reasonably be

expected to be a source of water pollution.

33. By a preponderance of evidence, the Department has

established that contaminants in the groundwater on Petitioner's

property may currently exceed the Department's groundwater

standards. Therefore, Petitioner is maintaining a stationary

installation that is reasonably expected to be a source of water

pollution.

34. Petitioner is required to establish a groundwater

monitoring program under Rule 62-520.600(1), which provides, in

part:

Unless otherwise exempted by the Department,

any installation discharging into ground

water shall establish a monitoring program

as described in (3) below and shall meet the

quality assurance requirements in category

2c described in subsection 62-160.300(7),

F.A.C., and the Department's reference,

"Standard Operating Procedures for

Laboratory Operations and Sample Collection

Activities, " DER-QA-001/92, September 30,

1992, hereby incorporated and adopted as a

reference.

35. Rule 62-520.200, includes the following definitions:

(10) "Ground Water" means water beneath the

surface of the ground within a zone of

saturation, whether or not flowing through

known and definite channels.

(11) "Installation" means any structure,

equipment, or facility, or appurtenances

thereto, operation or activity which may be

a source of pollution.

* * *

(23) "Zone of Discharge" means a volume

underlying or surrounding the site and

extending to the base of a specifically

designated aquifer or aquifers, within which

an opportunity for the treatment, mixture,

or dispersion of wastes into receiving

ground water is afforded.

36. As of July 1, 1982, owners of installations

discharging pollutants to groundwater have been required to

comply with the minimum criteria set forth in Rule 62-520.400.

See Fla. Admin. Code. R. 62-520.300(10).

37. The groundwater on Petitioner's Property is

groundwater as defined in Rule 62-520.200(10).

38. The evidence shows that, as of 2004, the waste

disposal areas on the Property were discharging to the

groundwater, and the groundwater was contaminated with chromium,

iron and lead in excess of the Department's groundwater

standards. Further, the landfill and grit blast installations

on the Property are reasonably expected to discharge to

groundwater today because rainfall and/or surface water continue

come in contact with the waste, generating leachate. Because

there is no liner to protect the groundwater, that leachate

moves into the groundwater.

39. By a preponderance of evidence, the Department has

established that installations on Petitioner's Property are

discharging into groundwater, and that these discharges may be a

source of pollution.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department enter a final order

requiring Thomas Parham to:

1. Submit a complete application for monitoring plan

approval on Form 62-520.900(1) to the Department of

Environmental Protection, Northeast District, 7825 Baymeadows

Way, Suite B200, Jacksonville, Florida 32256-7590 within 90 days

of entry of the Final Order;

2. Implement the approved monitoring program within 90

days after Department approval; and

3. Install monitoring wells in accordance with the

approved monitoring program and Rule 62-520.600(6).

DONE AND ENTERED this 9th day of December, 2008, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of December, 2008.

ENDNOTES

1/ Statutory references are to the 2007 codification of the

Florida Statutes unless otherwise noted.

2/ Rule references are to the version of the Florida

Administrative Code in effect at the time of the hearing unless

otherwise noted.

COPIES FURNISHED :

Thomas M. Parham

7225 Arlet Drive

Jacksonville, Florida 32211

Karen Bishop, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Stop 35

Tallahassee, Florida 32399-3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Stop 35

Tallahassee, Florida 32399-3000

Michael W. Sole, Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Stop 35

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Stop 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.