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

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 09-0941EF

)

NEMI, INC., )

)

Respondent. )

________________________________)

FINAL ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

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

in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Karen Bishop, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent: Neil Schubert, President

Nemi, Inc.

1898 Stallion Drive

Loxahatchee, Florida 33470-3994

STATEMENT OF THE ISSUES

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

should pay a $500.00 administrative fine for maintaining an

unpermitted stationary installation that is reasonably expected

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

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

completed Site Assessment Report (SAR) within 270 days of

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

whether it should pay investigative costs and expenses in the

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

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

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

Notice of Violation, Orders for Corrective Action, and

Administrative Penalty Assessment (Notice of Violation) issued on

January 23, 2009.

PRELIMINARY STATEMENT

This enforcement action began on January 23, 2009, through

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

generally alleging that in October 1995 hazardous waste was

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

Lauderdale, Florida; that subsequent environmental assessments

confirmed that an unlawful discharge of contaminants had

occurred; that Respondent assumed ownership of the property on

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

advised that contamination was present and that it must file a

Preliminary Contamination Assessment within sixty days; that

Warning Letters were sent to Respondent in April 2006,

March 2007, and July 2007 again advising that contamination was

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

Preliminary Site Assessment Report and Addendum in March and

May 2008, respectively; that those two reports indicated

exceedances of Department soil and groundwater cleanup target

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

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

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

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

circumstances, the Notice of Violation advised Respondent that it

was maintaining an unpermitted source of pollution that is

reasonably expected to be a source of water pollution in

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

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

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

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

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

administrative penalty, recover investigative expenses and costs

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

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

of the site.

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

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

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

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

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

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

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

an administrative law judge be assigned to conduct a formal

hearing.

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

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

Lauderdale, Florida. At the final hearing, the Department

presented the testimony of Paul A. Wierzbicki, Waste Cleanup

Supervisor in the Department's Southeast District Office and

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

Specialist III in the Department's Southeast District Office.

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

evidence. Respondent was represented at hearing by its

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

the Department's Request for Official Recognition was granted,

and official recognition was taken of the following matters:

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

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

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

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

agreement of the parties, proposed final orders were due by

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

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

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

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

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

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

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

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

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

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

Supreme Court decision, and those papers which duplicated parts

of Department exhibits already received in evidence.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

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

business in the State. Respondent's president and registered

agent is Neil Schuberg, who represented the corporation at

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

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

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

Gateway Industrial Center just south of the City of Pompano Beach

and midway between the Florida Turnpike and Interstate 95. The

parcel is rectangular shaped and is approximately 90 feet wide by

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

County Property Appraiser as Parcel Identification Number

494209050040. A one-story warehouse and parking lot are located

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

testing laboratory.

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

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

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

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

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

Combined Roof Services, Inc.

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

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

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

prepare an environmental site assessment for the purpose of

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

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

1995, Buck Eco-Logic, Inc., discovered three thirty-five gallon

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

"hazardous waste" and reflecting that they had contained

tetrachloroethene (also known as perchloroethylene) waste. This

is a chemical solvent that is typically used by dry cleaning

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

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

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

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

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

beneath overgrown Brazilian pepper trees and were empty; the

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

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

Logic, Inc., revealed concentrations of tetrachloroethene at

10,613 parts per billion, which exceed allowable standards.

Tetrachloroethene and its breakdown products are a solid waste,

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

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

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

forth in detail the results of its inspection. See Department

Exhibit 2. The sale was never consummated.

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

firm to perform a Phase II Environmental Site Assessment of the

property. That assessment revealed concentrations in groundwater

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

of tetrachloroethene, which exceed the State Clean Soil Criteria

and State Maximum Contaminant Levels. The report, issued on

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

3.

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

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

notified the Department by letter that the empty drums and tub

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

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

Department to contact the local police department to report the

incident as well as the state warning system for reporting

discharges to the environment. Also, the Department contacted

other local agencies and the United States Environmental

Protection Agency (EPA).

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

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

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

roofing repair business, until that firm vacated the premises in

December 1997.

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

services of International Technology Corporation to prepare a

Preliminary Investigation Report (PIR) for the property. That

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

4. The PIR recommended that additional monitoring of the site

(through shallow monitoring wells, soil samples, groundwater

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

presence of chlorinated solvents.

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

Department engaged the services of Post, Buckley, Schuh &

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

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

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

dichloroethene, and trichloroethylene were detected in ground

water samples, while tetrachloroethene was detected in all seven

soil samples.

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

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

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

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

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

be responsible for cleanup costs on the property exceeding a

million dollars. While Mr. Schuberg acknowledged that he was

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

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

would actually acquire the property because he believed

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

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

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

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

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

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

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

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

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

received, the Department, along with the Broward County

Department of Natural Resource Protection, initiated an

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

to verify the source of the contamination. Because Family Dry

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

sought to determine whether that firm had actually deposited the

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

or a year before the contamination was reported to the

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

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

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

business had been replaced by another tenant, Liberty Dry

Cleaners. The Department then attempted to ascertain whether

Lincoln Park or the new tenant might have been responsible for

transporting the drums and tub to the subject property and

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

that either of the two had done so.

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

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

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

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

photographs when it conducted its investigation. Photographs of

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

drums normally used by a dry cleaning establishment, and the

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

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

because the empty tub was found inside the building on the

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

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

able to confirm this fact.

12. The Department also contacted local law enforcement

officials to see whether a criminal investigation could be

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

removed by unknown persons while Mr. Pierce still had possession

of the property and there was no forensic evidence for law

enforcement officials to examine. The result of the

investigation was that the Department was unable to determine who

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

contents were first dumped.

13. Although Respondent contended that the Department could

have easily determined who removed the empty drums and tub from

the subject property by examining the manifests of the carriers

who engage in that type of business, the Department investigator

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

telephone directory reflected at least six pages of transporters

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

commercial transporter was even involved.

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

current owner of the property, Respondent, as the entity

responsible for site rehabilitation since there were, and still

are, contaminants leaching into the groundwater and aquifer

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

discharge occurred, the groundwater on Respondent's property was

still contaminated with tetrachloroethene, trichloroethylene, and

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

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

soil cleanup target levels based on ground water criteria.

Because rainfall and surface water continue to come into contact

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

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

source of water pollution.

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

certified mail to Respondent advising that contamination was

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

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

Contamination Assessment (PCA) must be filed within sixty days

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

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

never filed.

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

the Department issued Warning Letters to Respondent advising that

an enforcement action would be initiated unless Respondent

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

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

occurred between October 2001 and April 2006.) Exhibit 8

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

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

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

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

[its] intentions with regard to conducting the required

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

2007." There is no record of such a letter being sent.

17. In August 2007, Respondent contracted with Florida

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

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

Department a Preliminary Site Assessment Report (PSAR) See

Department Exhibit 10. For this service, Respondent paid around

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

by letter that the PSAR was incomplete and that further

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

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

See Department Exhibit 12. This report cost Respondent an

additional $3,000.00. The PSAR indicated that contaminants

(dichloroethene and trichloroethylene) in the water and soil on

the property exceeded Department groundwater and soil cleanup

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

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

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

responsible party."

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

Department issued letters to Respondent advising that "there is

not enough data to support the assumption that the discharge is

offsite and the contamination is from an offsite source located

west of the property." The Department reached this conclusion

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

to be delineated towards the northern and southern portions of

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

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

vertical delineation of the contamination but not horizontal

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

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

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

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

not exhibit groundwater contamination to that extent." See

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

report was deficient in that all contamination sources were not

identified; it failed to delineate the horizontal and vertical

extent of soil and groundwater contamination; and it failed to

recommend a remedial action to clean up the contamination.

19. The two letters advised that the site assessment was

incomplete and that additional information described in the

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

Respondent has failed to submit the required information.

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

the additional information requested by the Department would cost

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

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

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

a complete SAR, as described in Florida Administrative Code Rule

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

which prescribes the specific time frame (within 270 days after

the discharge is discovered) for submitting this report.

21. The Department has incurred expenses in the amount of

$1,500.00 while investigating this matter. See Department

Exhibit 17. This amount is not disputed.

22. As corrective action, the Department requests that

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

Respondent submit a complete SAR which addresses the deficiencies

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

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

groundwater samples need to be collected to determine the

vertical and horizontal extent of contamination, all source areas

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

abate the contamination. Finally, the contaminated soil must be

removed from the property so that it will no longer discharge

into the groundwater. The Notice of Violation requests that upon

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

timely fashion all further tasks" required by Florida

Administrative Code Rule Chapter 62-780. These corrective

actions are reasonable and are hereby approved.

23. In calculating the penalty, Respondent has assessed a

$500.00 administrative penalty for Respondent maintaining a

stationary installation that is reasonably expected to be a

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

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

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

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

also assessed a $500.00 per day penalty against Respondent for

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

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

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

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

Stat.

24. Throughout this process, Mr. Schuberg has contended

that the responsibility for cleanup lies with the person or

entity actually responsible for placing the drums and tub on the

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

Family Dry Cleaners is the responsible party. However, the

Department and local authorities were never able to confirm who

actually dumped the waste on the subject property. Although

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

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

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

knew the property was contaminated. Mr. Schuberg further stated

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

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

Mr. Schuberg never contacted the Department to get clarification

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

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

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

on an offsite asphalt road adjacent to the property, surface

water runoff then carried the chemical solvents onto his

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

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

supposition, and there is no expert testimony to confirm the

accuracy of this theory.

25. Respondent has also contended that the property should

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

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

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

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

resort which is used only after the Department has exhausted all

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

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

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

Finally, the responsible party must first acknowledge by

affidavit that it lacks the necessary resources to clean up the

property before the Department "may" seek cleanup funds.

Respondent has not yet filed such an affidavit or admitted

liability.

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

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

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

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

for the Department. In all other respects, he steadfastly

refuses to spend any more money on assessments or take

responsibility for the cleanup since he believes that Family Dry

Cleaners is the entity responsible for site rehabilitation.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

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

Statutes.

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

Department "to institute an administrative proceeding to

establish liability and to recover damages for any injury to the

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

that process, the Department is authorized to initiate an

enforcement action to "order the prevention, abatement, or

control of the conditions creating the violation or other

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

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

preponderance of the evidence that the respondent is responsible

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

administrative law judge shall issue a final order on all

matters, including the imposition of an administrative penalty."

Id.

30. Count I of the Notice of Violation alleges that

Respondent "is maintaining a stationary installation that is

reasonably expected to be a source of water pollution on the

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

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

"[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."

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

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

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

Count III requests the recovery of expenses in the amount of

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

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

established that Respondent is the entity responsible for site

rehabilitation and that it failed to submit a complete SAR within

270 days after discovery of the contamination on the property

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

addition, the reimbursement of investigative expenses in the

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

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

resolve. To support this allegation, the Department relies on

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

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

management facility" found in Florida Administrative Code Rules

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

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

not otherwise defined by statute or rule.

33. Section 403.031(4) defines the word "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." Rule 62-

520.200 mirrors the statutory definition of an installation.

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

facility" as follows:

any solid waste disposal area, volume

reduction plant, transfer station, materials

recovery facility, or other facility, the

purpose of which is resource recovery or the

disposal, recycling, processing, or storage

of solid waste. The term does not include

recovered materials processing facilities

which meet the requirements of paragraph 62-

701.220(2)(c), F.A.C., except the portion of

such facilities, if any, that is used for the

management of solid waste.

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

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

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

serve a particular function."

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

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

stationary location; that the soil was created or intended to

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

tetrachloroethene; and that the storage and disposal has resulted

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

mere presence of a contaminant in the soil, which exceeds

Department standards, constitutes a stationary installation

within the meaning of Section 403.087(1).

35. Neither party has cited any administrative decision on

this issue. While there are numerous agency decisions involving

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

the undersigned has found no decision that is factually similar

to the circumstances here. With some exceptions, virtually all

decisions involve on-going business concerns such as auto salvage

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

incinerator plants that typically handle or process hazardous

wastes in the course of their business; physical structures such

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

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

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

water. 3

36. The Department does not contend that Respondent is

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

thereto" which may emit contaminants into the groundwater.

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

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

generally meant to be something built, installed, or established

to serve a particular purpose. As that word is commonly

understood, Respondent has not built, installed, or established

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

chemical solvents. Likewise, Respondent is not operating a solid

waste management facility since nothing on his property can be

construed as being a facility designed for the purpose of

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

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

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

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

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

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

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

Florida Statutes.

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

responsible party to offer "mitigating circumstances" that may

serve as a basis for reducing the administrative penalty. That

statute provides as follows:

(10) The administrative law judge may

receive evidence in mitigation. The

penalties identified in subsection (3),

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

reduced up to 50 percent by the

administrative law judge for mitigating

circumstances, including good faith efforts

to comply prior to or after discovery of the

violations by the department. Upon an

affirmative finding that the violation was

caused by circumstances beyond the reasonable

control of the respondent and could not have

been prevented by respondent's due diligence,

the administrative law judge may further

reduce the penalty.

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

"competent, substantial evidence" presented by a respondent.

Florida Department of Environmental Protection v. Holmes Dirt

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

2004)(Benton, J., dissenting). In this case, no mitigating

evidence was presented, and Respondent has not shown that the

violation was caused by circumstances beyond its control or by

exercising due diligence. Therefore, the proposed administrative

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

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

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

factual justification was presented by a respondent for not

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

the penalty was not warranted); Department of Environmental

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

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

evidence was presented by the responsible party for the proven

violations, the Department's proposed administrative penalties

were sustained in the final order).

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

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

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

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

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

City for damages for contamination to its drinking water supply

and determined the manner in which damages are measured in

repairing or restoring property to its condition prior to injury.

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

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

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

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

1990), is more instructive. In that case, Sunshine purchased

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

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

the time of the purchase, Sunshine knew that three underground

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

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

tanks. When Sunshine later attempted to remove the tanks and

replace them with modern equipment, it discovered the

contamination and reported the discharge to the Department.

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

surrounding soil during its ownership of the property. Under

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

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

responsibility was to cooperate with the cleanup effort by

providing reasonable access to the property. In contrast to

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

Mr. Schuberg knew that the property was contaminated when he

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

the discharge of contaminants into the groundwater has continued

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

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

Department's proposed corrective actions must be undertaken.

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

provides that "the prevailing party shall recover all costs as

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

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

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

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

they are not included in this Final Order.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

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

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

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

investigative costs and expenses; and that it take the corrective

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

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

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

Florida Department of Environmental Protection" and shall note

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

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

Department of Environmental Protection, Attn: Amala Senarath, 400

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

2913.

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

Leon County, Florida.

S

DONALD R. ALEXANDER

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 29th day of May, 2009.

ENDNOTES

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

Statutes.

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

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

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

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

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

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

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

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

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

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

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

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

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

concerning superfund liability, a document purportedly taken from

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

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

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

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

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

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

for this site" (Exhibit F).

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

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

1998)(plugging of a drainage ditch considered a stationary

installation); Department of Environmental Protection v. All-

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

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

operation using solvents that have leaked into the soil considered

a stationary installation); Department of Environmental Regulation

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

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

1992)(two underground storage tanks used in conjunction with an

ongoing business considered a stationary installation).

COPIES FURNISHED:

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Karen Bishop, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Niel Schuberg, President

Nemi, Inc.

1898 Stallion Drive

Loxahatchee, Florida 33470-3994

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.