11-000259 Family Oriented Community United Strong, Inc.; Wanda Washington; Marvin Washington; Clifford Ward; Laura Ward; Brenda Pinkney; Melissa Williams Robinson; And Tallevast Community Association, Inc. vs. Lockheed Martin Corporation And Department Of Environmental Protection Status: Closed Recommended Order on Thursday, October 6, 2011.

Summary: The Site Assessment Report Addendum and Remedial Action Plan Addendum meet all applicable rule requirements and should be approved by DEP.

Case No. 11-0259

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FAMILY ORIENTED COMMUNITY )

UNITED STRONG, INC.; WANDA RECOMMENDED ORDER )

WASHINGTON; MARVIN WASHINGTON; )

CLIFFORD WARD; LAURA WARD; )

BRENDA PINKNEY; MELISSA )

WILLIAMS ROBINSON; AND )

TALLEVAST COMMUNITY )

ASSOCIATION, INC., )

)

Petitioners, )

)

vs. )

LOCKHEED MARTIN CORPORATION AND )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

)

The final hearing in this case was held on June 7, 8, 22,

23, 28, 29, and 30, and July 1, 6, 7 and 8, 2011, in Bradenton,

Florida before Bram D.E. Canter, Administrative Law Judge of the

Division of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioners: Jeanne Marie Zokovitch Paben

Barry University School of Law

Earth Advocacy Clinic

6441 East Colonial Drive

Orlando, Florida 32807

Karen Eileen Greene, Esquire

111 Holderness Drive

Longwood, Florida 32779

Brett Michael Paben, Esquire

2717 Stanfield Avenue

Orlando, Florida 32814

For Respondent Lockheed Martin Corporation:

Richard E. Schwartz, Esquire

Clifford J. Katz, Esquire

Beth Kramer, Esquire

Crowell & Moring, LLP

1001 Pennsylvania Avenue, Northwest

Washington, DC 20004-2595

For Respondent Department of Environmental Protection

Larry Morgan, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

The issues to be determined in this case are whether the

Department of Environmental Protection ("DEP") should approve

Lockheed Martin Corporation’s Site Assessment Report Addendum 3

and remediate soil and groundwater contamination associated with

property owned by Lockheed Martin Corporation in Tallevast,

Manatee County, Florida.

PRELIMINARY STATEMENT

Following the discovery of contamination at the Lockheed

Martin property, Lockheed Martin and DEP entered into a consent

order that required Lockheed Martin to prepare and submit a site

assessment plan and to proceed thereafter to remediate the site.

Lockheed Martin submitted a site assessment report and

subsequent addendums. On September 25, 2006, DEP approved

Lockheed Martin's SARA 3 as satisfying the contamination

assessment required by the consent order and related statutes

and rules. DEP and Petitioners reached an agreement that

Petitioners would put off their challenge of SARA 3 until DEP

took action on the Lockheed Martin's remedial action plan.

Lockheed Martin submitted a remedial action plan and three

addenda to the plan. On November 4, 2010, DEP approved RAP 3.

On January 10, 2011, Family Oriented Community United

Strong, Inc. (“FOCUS”), Tallevast Community Association, Inc.,

and several individuals filed a petition with DEP, challenging

DEP’s approval of both SARA 3 and RAP 3. DEP forwarded the

petition to DOAH for assignment of an Administrative Law Judge.

Following motions to strike filed by Respondents, certain

claims raised by Petitioners were stricken from their petition.

At the final hearing, Petitioners presented the testimony

of lay witnesses Wanda Washington, Melissa Robinson,

Brenda Pinkney, Laura Ward, and Clifford Ward and expert

witnesses Simone Core, William Kutash, Paul Calligan,

Nadia Locke, Randy Merchant, and R. Kevin Pegg. Petitioners'

Exhibits 1-3, 5, 12-14, 17-19, 27-30, 31-39, 41, 50-52, 60-61,

65, and 70 were admitted into evidence. Lockheed Martin

presented the testimony of expert witnesses Paul Calligan,

James Norman, Nadine Weinberg, Charles Faust, Guy Kaminski,

Calvin Ward, and Mark Hemingway. Lockheed Martin Exhibits 1-115

were admitted into evidence. DEP presented the testimony of

William Kutash. DEP's Exhibits 1-4, 6-8, and 10 were admitted

into evidence. Joint Exhibits 1-43 were also admitted into

evidence.

The 20-volume Transcript of the hearing was filed with DOAH

and the parties filed proposed recommended orders that were

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

I. Background

A. The Former Facility and Property

1. The Lockheed Martin property is located at 1600

Tallevast Road. The property is slightly larger than five

acres. It is bounded by Tallevast Road to the north; 17th

Street Court East to the east; a golf course, undeveloped and

residential areas to the south; and an abandoned industrial

facility to the west.

2. From 1961 to 1996 the American Beryllium Company

operated an ultra-precision, beryllium parts machine shop on the

property where metals were milled, lathed, and drilled into

various finished components. Some of the components were

finished by electroplating, anodizing, and ultrasonic cleaning.

The facility once included five buildings, but the buildings

have been removed.

3. The facility and property were acquired by Lockheed

Martin in 1996 and the machining operations were terminated.

B. Contamination Discovery and Assessment

4. Although the details are unknown, it appears that over

a number of years, leaks or discharges occurred at a series of

"sumps" associated with the American Beryllium Company's on-site

wastewater treatment system. The leaks or discharges allowed

contaminants, primarily chlorinated solvents, to enter the soil

and groundwater beneath the facility. The contamination

migrated laterally in all directions away from the facility, as

well as downward.

5. The hearsay report that a "dry well" (a gravel-filled

pit) existed on the property and was used to dispose of acid

baths is not supported by the non-hearsay evidence.

6. Environmental assessments performed by Lockheed Martin

after purchasing the site, and a later assessment by a

prospective purchaser, found contamination. In 2000, Lockheed

Martin informed DEP that contamination had been discovered at

the facility. In that same year, Lockheed Martin removed the

sumps and some soil around the sumps.

7. Various contamination assessment activities were

conducted by Lockheed Martin between 2001 and 2004. Contaminant

concentrations exceeding Groundwater Cleanup Target Levels

("GCTLs") were found at various depths.

8. In 2001, Lockheed Martin excavated and removed over 500

tons of contaminated soil in the area where the sumps had been

located.

9. At the time the contamination was discovered, public

water supply lines served most residences in Tallevast, but not

the residences along 16th Street, 18th Street, 19th Street, and

parts of Tallevast Road. On these streets, residents continued

to use water from their wells for drinking, bathing, and other

household uses. These private water wells were tested in 2004

and many were found to be contaminated.

10. Petitioners contend that Lockheed Martin was late in

notifying Tallevast residents of the contamination, but it was

beyond the scope of this proceeding to determine whether

Lockheed Martin failed to timely notify the area residents of

health threats known to Lockheed Martin.

11. In 2004, Lockheed Martin and DEP entered into a

Consent Order that required Lockheed Martin to conduct

additional site assessment and, ultimately, to prepare a

remedial action plan to remediate the site in conformance with

DEP rules.

12. Lockheed Martin submitted site assessment report

addendums to DEP in 2004 and 2005.

13. In April 2006, DEP approved an Interim Remedial Action

and treat") system. Extraction wells were constructed in the

source area on the site to reduce the mass of contaminants and

hydraulically control the plume so it would not spread. The

treatment system has been in continuous operation since

August 2006.

14. Lockheed Martin submitted a third site assessment

report addendum, SARA 3, in April 2006 and it was approved by

DEP on September 25, 2006.

15. Lockheed Martin submitted a RAP in May 2007. A

revised RAP ("RAP 2") was submitted in August 2008. A third

addendum ("RAP 3") was submitted in July 2009 and was approved

by DEP on November 5, 2010.

C. Standing

16. The individual Petitioners, Wanda Robinson, Marvin

Washington, Clifford Ward, Laura Ward, Brenda Pinkney, and

Melissa Williams Robinson, reside or own property within the

area established as the Temporary Point of Compliance (“TPOC”)

by DEP. The TPOC encompasses the land overlying areas of

groundwater contamination. Groundwater contamination exceeding

GCTLs lies beneath the private properties of these individual

Petitioners.

17. The Tallevast Community Association, Inc., operates a

community center located at 7727 17th Street Court East, which

is adjacent to the Lockheed Martin site. The community center

property is within the TPOC. In 2008, the IRAP system failed

and spilled contaminated water onto the community center

property.

18. FOCUS is a Florida nonprofit corporation formed in

2003. The parties stipulated that "FOCUS' stated mission is to

protect the health, environment, and quality of life of the

Tallevast Community." 1 At least 25 of its members are residents

of Manatee County.

II. SARA 3

A. Groundwater Contamination

1. Contaminants of Concern

19. Lockheed Martin tested for and assessed all of the

contaminants in groundwater that were reasonably implicated by

the site history and test data. Lockheed Martin incurred

substantial costs for the assessment activities. The

contamination assessment was not dictated by a motive to avoid

costs.

20. Petitioners contend that every chemical listed on the

Material Safety Data Sheet ("MSDS") for the American Beryllium

Company should have been tested for in the soil and groundwater.

It is not the practice of DEP to require that every chemical on

a MSDS be tested for in the environment.

21. The groundwater beneath the Lockheed Martin property

and surrounding area is contaminated with a variety of

pollutants, but the designated "contaminants of concern"--the

contaminants which occur in concentrations that exceed GCTLs--

are 1,4-dioxane, tetrachloroethene (PCE), trichloroethene (TCE),

cis-1,2-dichloroethene, 1,1-dichloroethene, 1,1-dichloroethane,

vinyl chloride, methylene chloride, bromodichloromethane,

dibromochloromethane, and 1,1,1-trichloroethane.

22. TCE is the contaminant that occurs in the highest

concentrations. It is estimated that 220 pounds of TCE is in

the contamination plume. The 1,4-dioxane is the most frequently

detected contaminant. It is estimated that 160 pounds of 1,4-

dioxanne are in the contamination plume.

2. Area Geology and Hydrogeology

23. Lockheed Martin's geologic and hydrogeologic

assessment to determine the water-bearing zones, the confining

or semi-confining units, the potentiometric levels, and the

hydraulic gradients in the area of contamination was thorough

and produced a reliable characterization of the regional geology

and hydrogeology.

24. Groundwater beneath the Lockheed Martin property and

surrounding lands occupies three aquifer systems: the Surficial

Aquifer System, the Intermediate Aquifer System, and the

Floridan Aquifer System.

25. The Surficial Aquifer System ("SAS") is divided into

an upper and lower zone. The upper SAS begins at 2 to 5 feet

below ground surface ("bgs") and extends to about 30 feet bgs.

It is separated from the lower SAS by a confining unit referred

to by the expert witnesses as the "hard streak." The lower SAS

extends to about 45 feet bgs, where it intercepts a thick layer

of Venice clay.

26. Beneath the Venice Clay begins the Intermediate

Aquifer System, which is comprised of four water-bearing zones:

the Upper Arcadia Formation ("AF") Gravels, the Upper AF Salt

and Pepper ("S&P") Sands, the Lower AF Gravels, and the Lower AF

Sands, extending to 290 feet bgs.

27. Separated from the Lower AF Sands by a thick clay

layer, the Floridan Aquifer, consisting of limestone, begins at

about 320 feet bgs.

3. Plume Delineation

28. Lockheed Martin used the “step-out” method to

delineate the groundwater contamination plume for contaminants

originating on the Lockheed Martin property, starting at a point

of high groundwater concentration and then working outward

horizontally and vertically until monitoring wells showed no

contamination above GCTLs. This step-out method is the

generally-accepted practice for delineating a plume of

groundwater contamination. A contamination plume is delineated,

both horizontally and vertically, by “clean” monitoring wells--

wells that show contamination at concentrations below the GCTLs.

29. Lockheed Martin installed 245 monitoring wells to

define the horizontal and vertical extent of the contamination.

A data set consisting of about 5,500 groundwater samples was

compiled.

30. The amount of site assessment data collected by

Lockheed Martin was described by several experts as much more

data than is usually developed for comparable sites and the most

that several of the experts had ever seen.

31. Lockheed Martin established the horizontal boundaries

of the individual contaminant plumes by identifying a ring of

clean wells beyond each layer (aquifer zone) of the plume.

32. Lockheed Martin used the same method to determine the

vertical extent of the plume. It tested the aquifers at deeper

and deeper depths until the contamination was below the GCTLs,

indicating that the plume had not descended farther.

33. The maximum horizontal extent (for all contaminants

above GCTLs in every groundwater-bearing zone) is approximately

1,200 feet north, 2,800 feet east, 1,600 feet south, and 800

feet west of the facility. The total horizontal area of the

composite plume is over 200 acres.

34. The upper and lower SAS, the upper AF Gravels, and the

upper AF S&P Sands are contaminated with site-related chemicals.

The deepest extent of groundwater contamination is approximately

200 feet below ground surface.

35. Petitioners claim that the contamination plume was not

adequately delineated, but their evidence was not persuasive.

Petitioners did not prove that there are areas of the plume that

extend outside the boundary of clean wells established by

Lockheed Martin.

36. Petitioners contend that groundwater contamination in

the residential area south of the Lockheed Martin property is

not adequately delineated, but Lockheed Martin and the DEP

proved otherwise. In their presentation on this issue,

Petitioners failed to account for the fact that monitoring well

data represent contaminant levels in an area of influence around

each well.

37. Groundwater contamination in this area was adequately

assessed by Lockheed Martin. Petitioners' objection is more

about form than substance, because Lockheed Martin acknowledges

that groundwater contaminants were detected in the area.

However, the plume delineation is based on standard practices

regarding the selection of sampling data and the computational

mapping of the data.

38. Petitioners also object to Lockheed Martin's

assessment near the airport. The assessment in this area is

adequate and reasonable under the circumstances. There are

obvious limitations encountered in accessing airport property

because of the possibility of interference with aircraft

landings and takeoffs.

39. The residential area south of the Lockheed Martin

property and the area near the airport which Petitioners contend

are un-assessed or under-assessed are within the capture zone of

the pump and treat system proposed in RAP 3. The contamination

in these areas will be cleaned up.

40. If the rumored dry well actually existed on the

Lockheed Martin property and was a source of contamination, the

contamination is part of the delineated plume and will be

remediated.

41. The 2010 groundwater sampling indicated some movement

of the plume. Petitioners contend that the new data contradicts

the earlier results and, therefore, Lockheed Martin is required

to conduct additional site assessment. However, some

variability and fluctuation around the edges of the plume are

expected due to heterogeneities in the geology and in lab

analyses. It does not necessarily mean the plume is moving.

42. It is the practice of DEP when more recent sampling

data indicates small changes to a plume that do not reach

perimeter clean wells, to accept the plume as sufficiently

delineated.

43. Groundwater monitoring data developed since SARA 3 was

approved indicate that the plume has been relatively stable

within all four affected aquifer zones. The 2010 data do not

contradict the plume delineation.

44. Lockheed Martin showed that the deepest layer in which

groundwater contamination was detected is the Upper AF S&P

Sands, about 140 to 160 feet bgs and about 200 feet above the

Floridan aquifer.

45. Petitioners claim that the plume should be shown as

extending deeper, but their evidence was not persuasive. The

detections in the Clay/Sand Zones 3 & 4 were shown to be caused

by a mis-labeled monitor well. There were only a few

detections, and no exceedances, in 25 groundwater samples taken

from the Lower AF Sands.

46. Lockheed Martin installed a sufficient number of

monitoring wells in the Floridan Aquifer to demonstrate that the

plume (above GCTLs) has not reached it. Early exceedances

detected in the Floridan Aquifer were likely due to “dragdown,”

which can occur when a well is drilled through contaminated soil

and drags down some of the contamination to deeper zones.

47. A report that an on-site production well was drilled

to the Floridan was hearsay and is not supported by the record

evidence. However, if a pathway exists through the confining

layers to the Floridan Aquifer, the upwardly-directed,

potentiometric water pressure of the Floridan Aquifer should

prevent the contamination from moving down the pathway.

4. Vinyl Chloride

48. There were numerous instances when laboratory

detection limits were reported as being above GCTLs for vinyl

chloride. Detection limits above GCTLs can occur when a

groundwater sample contains high levels of another compound and

must first be diluted by the laboratory with de-ionized water

before it can be analyzed, which has the effect of raising the

detection level for other contaminants in the sample.

Petitioners assert that these samples could have been above

GCTLs. These samples are unreliable, but there are a sufficient

number of uncompromised water samples to assess the vinyl

chloride contamination.

49. Lockheed Martin did not delineate a separate plume for

vinyl chloride. It could not draw an isoconcentration plume map

for vinyl chloride because the detections were sporadic in space

and time. Vinyl chloride is a breakdown product of PCE and TCE

and would be expected to be detected where PCE and TCE

concentrations are highest. The vinyl chloride contamination is

tied to the plumes for the parent compounds and is within the

mapped plumes in each aquifer zone.

5. Lab Contaminants

50. Four compounds detected in groundwater samples at the

Tallevast site–-methlyene chloride, carbon disulfide, acetone,

and methyl ethyl ketone–-are common laboratory and sampling

contaminants. Because of the large number of wells and sampling

events, it is likely that these compounds appeared in the data

as artifacts of the sampling procedures.

51. These contaminants appeared infrequently, in scattered

zones, and sporadically over time, often coming up "non-detect"

in subsequent samplings. The lack of a pattern of detections

indicates that these contaminants are not part of the

contamination plume originating at the Lockheed Martin property.

52. There is no evidence that bromodichloromethane and

dibromochloromethane were released from the facility.

Detections of bromodichloromethane and dibromochloromethane are

sporadic and transitory across the plume. There is no pattern

connecting them to the site. These compounds are known to be

byproducts of the chlorination of drinking water. They can also

appear when people use chlorination products to treat wells

themselves, for example to treat sulfur smells or disinfect the

well. In the most recent sampling event, bromodichloromethane

and dibromochloromethane were not detected in any wells.

6. NAPL

53. Lockheed Martin looked for non-aqueous phase liquid,

or “NAPL,” but it was not found. Lockheed Martin had an

incentive to locate and remove any NAPL to reduce its long-term

remediation costs. Lockheed Martin used several accepted

techniques and technologies to search for NAPL.

54. NAPL is either not present or is isolated in small

amounts. If NAPL is present, it is not migrating away from the

property.

B. Soil Contamination

55. Lockheed Martin removed contaminated soil from the

sump area in 2000 and 2001. No other "hot spots" of soil

contamination were found on the Lockheed Martin property.

56. Samples of on-site soil also exceeded soil cleanup

Chapter 62-777 for arsenic, beryllium, copper, chromium,

benzo(a)pyrene, and PCE. These contaminants were scattered

about the Lockheed Martin property.

57. The off-site detection of these same contaminants in

scattered locations and at relatively low concentrations is

consistent with urban and former agricultural areas. There are

industrial land uses near the Lockheed Martin property.

Petitioners did not rebut the evidence presented that these soil

contaminants are ubiquitous in the human environment at these

concentrations.

58. Lockheed Martin and DEP investigated a report that

soil might have been obtained from the Lockheed Martin property

and used as fill on some nearby private properties. The record

evidence is insufficient to establish when, where, or how this

movement of soil occurred.

59. Numerous soil samples were taken from areas where

residents said fill was placed, but no contamination was found

that was consistent with the proposition that it was

contaminated soil from the Lockheed Martin property.

60. The soil sampling showed exceedances of SCTLs for some

contaminants, but their distribution was random. The types of

contaminants, the concentrations, and the sporadic and

inconsistent findings indicate that the contamination is

unlikely to be associated with a discharge or release from the

Lockheed Martin property.

61. Petitioners contend that Lockheed Martin's assessment

of this possible soil contamination was inadequate. However,

Petitioners were in a better position to describe the location

and other details associated with this alleged fill.

Petitioners produced no details regarding the alleged fill and

conducted no soil sampling of their own to show that

contaminated soil was placed on their properties.

62. Petitioners contend that some of the off-site soil

sampling conducted by DEP’s Site Investigation Section in 2004

was unreliable because the samples were taken to a depth of 3

inches, which is not consistent with the applicable DEP rule.

However, the referenced DEP rule was not in effect at the time.

In addition, the shallower samples taken by DEP are more

conservative for estimating risk from human contact with soil

contaminants. The data was properly included in the assessment.

63. Lockheed Martin's assessment to determine whether

contaminated soil was transported from the Lockheed Martin

property to nearby private properties was reasonable and

adequate under the circumstances.

64. DEP determined that the off-site soil data and

historical information were insufficient to conclude that

operations at the American Beryllium Company were the source of

the off-site soil contamination. Petitioners did not show that

the Lockheed Martin facility was the source of the contaminants

found off-site. The more persuasive record evidence supports

DEP's determination.

65. Petitioners contend that Tallevast residents may be at

risk from soil contamination caused when they watered their

lawns with contaminated well water, but Lockheed Martin showed

that this contention was implausible. Volatile Organic

Compounds ("VOCs") sprayed through the air and onto the ground

would quickly volatilize. Moreover, the soils in the area are

sandy, allowing water to readily penetrate below the soil

surface so that a large accumulation of contaminants necessary

to cause a threat to humans from direct exposure is unlikely.

66. When a pipe broke in the IRAP system in 2008, spilling

5,000 gallons of contaminated water onto the ground, the soil

sampling conducted three weeks later showed that contaminant

concentrations were orders of magnitude below the SCTLs for

direct exposure. The concentrations that would be caused by

watering a lawn with contaminated well water would be even

lower.

67. Petitioners conducted no soil sampling of their own to

support their contention that the application of groundwater to

lawns and gardens resulted in the contamination of the their

soil.

C. Soil Vapor Intrusion

68. Intrusion into buildings by contaminated vapor is

possible if groundwater contamination is near the top of the

water table. Volatile contaminants can then move into a gas or

vapor phase and rise through the unsaturated soil where the

vapor may enter buildings through various pathways.

69. Lockheed Martin assessed the area for potential vapor

intrusion, using multiple lines of analysis. Soil gas levels

should have been the highest on the Lockheed Martin property

where contaminant concentrations in the plume are generally the

highest, but on-site soil gas levels were below applicable risk

levels. No off-site soil gas levels exceeded soil vapor

regional screening levels.

70. Soil gas levels are generally higher than indoor

levels because only a fraction of the soil gas will find a

pathway into a dwelling. In this case, soil gas levels for the

site-related contaminants were lower than detected indoor air

concentrations, indicating that the source of the indoor

contaminants probably was not soil gas.

71. The concentrations of contaminants in the indoor air

samples were within the range of typical background levels

attributable to the products commonly found in residences, such

as household cleaning products and dry cleaning.

72. The volatile groundwater contaminants are in

groundwater at about 20 feet bgs, or about 15 feet below the

water table. The clean water layer between the groundwater

contamination and the top of the water table prevents vapors

from being created.

73. Petitioners did not produce competent evidence to

rebut Lockheed Martin's showing that soil vapor intrusion is not

a real risk associated with the groundwater contamination.

D. Conclusion

74. Lockheed Martin employed consultants who had extensive

expertise in the contamination assessment sciences. Those

experts who testified at the final hearing were highly competent

and they were credible witnesses. There was no evidence

presented to suggest that their efforts on behalf of Lockheed

Martin had any purposes other than to comprehensively assess the

contamination and develop an effective means to clean it up as

quickly and as efficiently as practicable.

75. Site assessment involves a considerable amount of

professional judgment. The significance of the sampling data,

for example, is largely a matter of professional judgment.

Petitioners' objections to Lockheed Martin's site assessment

are, in most respects, based on different professional judgments

(offered by Petitioners' expert witnesses) or the critique of

professional judgments (by Petitioners' counsel during cross-

examination of Lockheed Martin's expert witnesses) regarding the

significance of sampling data and other technical analyses.

76. Petitioners failed to demonstrate that the

professional judgments exercised by Lockheed Martin's experts

were unsound or that they resulted in a contamination assessment

that was inadequate to enable an effective plan for remediation.

III. RAP 3

77. Lockheed Martin considered numerous alternative

remedies. Remedial alternatives were scored by a large

consultant team that considered long-term and short-term human

health and environmental effects, implementability, operation

and maintenance, reliability, feasibility, estimated time to

achieve cleanup, and cost.

78. RAP 3 is designed to achieve five remedial action

objectives: (1) reduce potential for human exposure to site

contaminants found in soil, (2) reduce potential for human

exposure to site contaminants found in groundwater; (3)

hydraulically control contaminated groundwater; (4) extract and

treat contaminated groundwater, and (5) minimize disturbance to

the community and natural resources. The evidence demonstrates

that RAP 3 will achieve each of these objectives.

A. Groundwater

79. With respect to groundwater contamination, the

objective of RAP 3 is to meet the active remediation

requirements of rule 62-780.700(1) and to demonstrate at the end

of the remediation that the cleanup qualifies for Risk

Management Option Level I -- No Further Action, without

institutional and engineering controls.

80. Lockheed Martin reduced human exposure to contaminated

groundwater by locating and abandoning (plugging) private wells

that were affected by the groundwater contamination.

81. To hydraulically control contaminated groundwater and

remove it, Lockheed Martin proposes a “pump and treat”

groundwater extraction and treatment system. This is a well-

known and proven-effective remediation approach for the kind of

groundwater contamination involved here and was determined to be

the only effective remediation alternative.

82. This remedy was developed using groundwater flow and

contaminant transport models. The models that were used and the

modeling that was performed by Lockheed Martin were appropriate

for the selection and design of the remediation system. The

models incorporated all appropriate geologic, hydrologic, and

contaminant data.

83. Lockheed Martin chose TCE and 1,4-dioxane as

representative contaminants for modeling purposes. The

selection of these contaminants was technically sound because

TCE has similar transport characteristics as the other

chlorinated solvents at the site that adsorb to soil and degrade

in the natural environment, while 1,4-dioxane would represent

the more mobile contaminants that do not degrade significantly.

84. The modeled remedy for TCE and 1,4-dioxane will

effectively remedy all the groundwater contaminants, including

vinyl chloride and the other breakdown products of the site-

related chemicals.

85. Petitioners did not present competent expert testimony

to rebut the soundness of the groundwater modeling effort.

86. The final remedial design comprises 77 extraction

wells and four trenches pumping about 200 gallons of

contaminated water per minute. The extraction wells would

withdraw groundwater from four aquifer zones: the upper SAS,

the lower SAS, the Upper AF Gravels, and the Upper S&P Sands.

87. An array of closely-spaced extraction and injection

wells will be installed in the on-site areas of highest

contamination for focused "flushing" and extraction of

contaminants.

88. Lockheed Martin minimized adverse impacts to private

properties in its proposed location of well, trenches, and

piping. RAP 3 calls for directional drilling for the

installation of the majority of the conveyance piping.

89. The modeling showed that cleanup time could be

optimized by placing the extraction wells along the “spine” of

the plume rather than spreading them out over the whole

footprint of the plume and by selectively shutting off wells and

trenches over time.

90. Lockheed Martin created a "capture zone" large enough

to recover all site-related contamination in a reasonable time.

In each affected aquifer layer, the modeled capture zone extends

at least 100 feet beyond the GCTL line for the composite plume.

Any groundwater contaminant within the capture zone will be

removed by the groundwater extraction system.

91. The estimated cleanup time is 48 years because that is

the time needed to complete the cleanup for the most persistent

contaminant--1,4-dioxane in the lower SAS. However, more than

half of the mass of TCE and 1,4-dioxane would be removed within

the first five years of operation. In ten years, 85 percent of

the TCE and 71 percent of the 1,4-dioxane is projected to be

removed and treated.

92. The proposed treatment system includes: (1) settling

and filtration of iron and other metals in the ground water that

would interfere with the treatment process; (2) advanced

oxidation of VOCs followed by carbon adsorption to trap those

compounds not treated by ultra violet light; and (3) discharge

to the sewer for further treatment by the Manatee County

treatment works.

93. A portion of the treated groundwater will be treated

again with reverse osmosis to produce water of high quality and

then re-injected near surface waters in order to prevent

lowering of water levels.

94. The proposed remedy is flexible and adaptable to

future conditions and changes in technology. RAP 3 includes a

schedule for performance monitoring. The remedy can be adjusted

if the monitoring data indicates an adjustment is needed.

95. Some of the former employees of the American Beryllium

Company stated that there was a production well at the facility.

The significance of the well is that, if it remained as an open

bore hole, it could be a conduit for contaminants to move

between aquifer zones and interfere with the remedial action

plan.

96. Before the production well was found, while

groundwater flow and contaminant transport modeling was being

conducted, the models evaluated potential effects of an open

borehole on the Lockheed Martin site. Sensitivity analysis of

the model showed that the open borehole would have an

insignificant effect on the output.

97. After conducting five separate searches for the

production well using remote sensing, ground-penetrating radar,

and downhole side scan sonar, a well was found and properly

abandoned.

98. The well was similar in size and casing material to

the twenty other wells that had already been geophysically

logged at the site. It is reasonable to conclude, therefore,

that, like the other wells, the discovered well probably had an

open borehole to the Upper AF Gravels. The hearsay report that

the production well was a 6-inch well drilled into the Floridan

was not supported by the non-hearsay evidence. 99. Lockheed Martin obtained 13 of the 14 access

agreements necessary to implement RAP 3. The only outstanding

agreement is one for access to a railroad property. The

property owner has agreed to provide access as soon as final

design plans are provided.

100. Lockheed Martin rejected remediation technologies

that required extensive access to install, operate, and

maintain. In its selection of recovery well locations near the

Sarasota-Bradenton International Airport, Lockheed Martin

located them along 15th Street, as opposed to farther west,

because it would be difficult to get access to install, operate,

and maintain extraction wells at the end of an active runway.

101. In reviewing whether a RAP is implementable, it is

the practice of DEP not to require the person responsible for

cleanup to first obtain any permits needed from other agencies

before DEP will approve the RAP.

102. With regard to the probable need for Lockheed Martin

to obtain a water use permit from the water management district,

the criteria for obtaining the permit were taken into account by

Lockheed Martin in the design of RAP 3. Petitioners presented

no competent evidence indicating that Lockheed Martin will not

be able to obtain the water use permit.

B. Soil

103. Lockheed Martin chose Risk Management Option Level II

(“no further action” with conditions) to reduce potential

exposure to soil contamination. Lockheed Martin will use

institutional and engineering controls that prevent direct

exposure and infiltration of contaminants into groundwater. The

engineering controls will include building pads or pavement on

portions of the Lockheed Martin property to prevent exposure and

infiltration of rain. The institutional controls include

restricting access to the facility through fencing and on-site

security. Deed restrictions will mandate soil management

practices to protect against human exposure and prohibit

inappropriate modifications to the property.

104. It is the practice of DEP to treat engineering and

institutional controls as remediation measures to reduce human

exposure risk.

105. Off-site soil excavation by Lockheed Martin is not

required because (1) the off-site soil contamination was not

shown to be attributable to on-site activities; (2) the soil

contaminants are randomly distributed over a large area; and (3)

excavation would be costly and disruptive for little or no gain

in terms of reduced human health risk.

C. Temporary Point of Compliance

106. The TPOC established as part of RAP is appropriate

and adequate to protect human health, public safety, and the

environment during remediation.

D. Conclusion

107. The more persuasive evidence shows that RAP 3 would

be effective in remediating the soil and groundwater

contamination at the Tallevast site in a reasonable manner and

timeframe and, if implemented, would advance the substantial

interests of Petitioners and all other persons affected by the

contamination.

CONCLUSIONS OF LAW

I. General

108. The individual Petitioners and Tallevast Community

Association, Inc., have standing to initiate this proceeding

because their substantial interests are affected by SARA 3 and

RAP 3. See § 120.569(1), Fla. Stat. FOCUS claims standing

pursuant to section 403.412(6), Florida Statutes, and its

standing was stipulated by Lockheed Martin and DEP. See n.1.

109. Petitioners bear the burden to prove that SARA 3 and

RAP 3 do not meet the applicable requirements of law. Fla.

Dep't of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981).

110. Findings of fact in this proceeding must be

established by a preponderance of the evidence. See

§ 120.57(1)(j), Fla. Stat.

111. An agency's interpretations of its own rules are

entitled to great deference and should not be overturned unless

clearly erroneous or otherwise unsupported by substantial,

competent evidence. See Dep't of Envtl. Reg. v. Goldring , 477

So. 2d 532, 534 (Fla. 1985).

112. The final hearing in this case was a de novo

proceeding to determine whether SARA 3 and RAP 3 should be

approved. These determinations are not confined to a

consideration of the sampling data and other information that

was in existence at the time that DEP approved SARA 3 and RAP 3.

The determinations are based on all of the evidence presented at

the final hearing.

II. SARA 3

113. Florida Administrative Code Rule 62-780.600 sets

forth the objectives of a site assessment.

114. The first objective of site assessment is to evaluate

the current exposure and potential risk of exposure to humans

and the environment, considering the characteristics of each

contaminant and the individual site characteristics. See Fla.

Admin. Code R. 62-780.600(3)(a). Lockheed Martin's assessment

achieved this objective.

115. The second objective of the site assessment is to

determine whether contamination (above contaminant target levels

established in Florida Administrative Code Chapter 62-777) is

present and the types of contamination present, and the

horizontal and vertical extent of contamination in every medium.

See Fla. Admin. Code R. 62-780.600(3)(b). Lockheed Martin's

assessment achieved this objective.

116. The third objective of site assessment is to

determine or confirm the source of contamination. See Fla.

Admin. Code R. 62-780.600(3)(c). Lockheed Martin's assessment

achieved this objective.

117. The fourth objective of site assessment is to

establish the background concentrations. See Fla. Admin. Code

R. 62-780.600(3)(d). This objective is only applicable to sites

at which there is contamination exceeding CTLs for compounds

that occur naturally. See Fla. Admin. Code R. 62-780.200(5).

The contaminants discharged from the Lockheed Martin property do

not occur naturally.

118. The fifth objective of site assessment is to

establish the horizontal extent and thickness of free product.

See Fla. Admin. Code R. 62-780.600(3)(e). Lockheed Martin

showed that there is no free product present.

119. The sixth objective of site assessment is to

determine whether source removal, in addition to any interim

source removal already performed pursuant to rule 62-780.500, is

warranted. See Fla. Admin. Code R. 62-780.600(3)(f). Lockheed

Martin's assessment achieved this objective by showing that

additional source removal is unnecessary.

120. The seventh objective of site assessment is to

describe relevant geologic and hydrogeologic characteristics

that influence migration and transport of contaminants at the

site. See Fla. Admin. Code R. 62-780.600(3)(g). Lockheed

Martin's assessment achieved this objective.

121. The eighth objective of site assessment is to

determine whether any public water supply wells are present

within a half-mile radius of the site, whether the site is

located within the regulated wellhead protection zone of a

public water supply well or well field, and whether any private

water supply wells are present within a quarter-mile radius of

the site. See Fla. Admin. Code R. 62-780.600(3)(h). Lockheed

Martin's assessment achieved this objective.

122. The ninth objective of site assessment is to

determine whether any surface water will be exposed to

contamination. See Fla. Admin. Code R. 62-780.600(3)(i).

Lockheed Martin's assessment achieved this objective.

123. The tenth objective of site assessment is to report

any off-site activities (for example, dewatering, active

remediation, or flood control pumping) in the immediate vicinity

of the site that may have an effect on the groundwater flow at

the site. See Fla. Admin. Code R. 62-780.600(3)(j). Lockheed

Martin's assessment achieved this objective.

124. The eleventh objective of site assessment is to

facilitate the selection of a remediation strategy for the site

that is protective of human health and the environment, and

considers the proposed property use, identifies risks posed by

the contamination based on the proposed use, and describes how

those risks will be managed. See Fla. Admin. Code R. 62-

780.600(3)(k). Lockheed Martin's assessment achieved this

objective.

125. Rule 62-780.600(4) requires analyses for contaminants

to be performed using the appropriate analytical procedures

referenced or listed in chapter 62-160. Lockheed Martin met

this requirement. With regard to the soil sampling issues

raised by Petitioners, the techniques employed by Lockheed

Martin met the purposes of the rule and it was reasonable for

DEP to accept the data.

126. Rule 62-780.600(5) requires that the site assessment

include tasks that are necessary to achieve the objectives

described in rule 62-780.600(3). Lockheed Martin met the

requirements of this rule.

127. Lockheed Martin met the requirements of rule 62-

780.600(6), regarding the contaminants that must be tested for

ion the environment. DEP's interpretation and application of

this rule to not require that every chemical on a MSDS be tested

for is a reasonable interpretation and application of the rule.

128. Lockheed Martin submitted contamination assessment

reports and addenda as required by rule 62-780.600(7).

129. Rule 62-780.600(8) requires the site assessment

report to include numerous described elements. Lockheed

Martin's report, as supplemented by information presented at the

final hearing, includes all the applicable required elements.

130. Rule 62-780.600(8)(a)28. requires the use of

isoconcentration lines to help identify source areas and plumes.

DEP interpreted and applied the rule in this matter to treat

certain contaminants, such as vinyl chloride, as being included

within the isoconcentration lines drawn for other contaminants.

That is a reasonable interpretation and application of the rule.

131. In summary, Lockheed Martin demonstrated compliance

with all applicable rule requirements for approval of SARA 3.

C. RAP 3

132. Lockheed Martin complied with the requirements of

rule 62-780.700(1) for the establishment of a TPOC beyond its

property boundary.

133. RAP 3, supplemented by the record evidence, includes

all the applicable information required by rule 62-780.300(2)

and rule 62-780.700(3).

134. Rule 62-780.700(3)(c) states that, if the latest

analytical data were obtained more than 270 days before the

submittal of the RAP, a confirmatory round of sampling and

analyses is required. Lockheed Martin conducted the required

confirmatory sampling in 2010 and submitted the results to DEP

in the 2010 Groundwater Monitoring Report.

135. There is a sound rationale for the remediation

methods selected, as required by rule 62-780.700(3)(d).

136. Lockheed Martin's proposal to address contaminated

soils on the Lockheed Martin site by using institutional and

engineering controls meets the requirements of rule 62-

780.700(3)(h).

137. RAP 3 satisfies the applicable requirements of rule

62-780.700(4) pertaining to special conditions for certain types

of remediation equipment.

138. The use of institutional and engineering controls for

soil contamination on-site is permissible without a risk

assessment. Lockheed Martin demonstrated that the proposed

controls will be protective by meeting one or more of the direct

exposure criteria and one or more of the leachability criteria

in rule 62-780.680(2).

139. Once the criteria for a No Further Action proposal

using Risk Management Options Level II have been met, Lockheed

Martin would be required to submit the proposal to the

Department. See Fla. Admin. Code R. 62-780.680(4).

140. The permits and authorizations needed to implement

RAP 3 are required at the time the remedial plan is implemented,

not at the time RAP 3 is approved. See Fla. Admin. Code R. 62-

780.700(10).

141. Lockheed Martin does not propose alternative GCTLs.

Therefore, no risk assessment is required for its groundwater

cleanup objective. See Fla. Admin Code R. 62-780.650 and 62-

780.680.

142. RAP 3 is reasonably designed to reduce the

groundwater contamination that extends beyond the Lockheed

Martin property to below applicable GCTLs, thereby protecting

human health, safety and the environment.

143. In summary, Lockheed Martin demonstrated compliance

with all applicable rule requirements for approval of RAP 3.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is Recommended that a final order be entered by the

Department of Environmental Protection that

1. approves SARA 3, as supplemented by the assessment and

groundwater monitoring data and other information entered into

evidence at the final hearing; and

2. approves RAP 3.

DONE AND ENTERED this 6th day of October, 2011, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of October, 2011.

ENDNOTE

1/ FOCUS' articles of incorporation state that its mission is

to promote affordable housing, employment opportunities, and the

availability of businesses and services to the Tallevast

Community, as well as to respond to the American Beryllium

Company contamination. It is not clear that FOCUS is the kind

of corporation "formed for the purpose of protection of the

environment, fish and wildlife resources, and protection of air

and water quality" that is contemplated by section 403.412(6),

Florida Statutes (2010). However, the parties' stipulation to

FOCUS' standing and the participation of other Petitioners with

standing renders the question moot for the purposes of this

proceeding.

COPIES FURNISHED

:

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Larry Morgan, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Mary Morningstar, Esquire

Lockheed Martin Corporation

6801 Rockledge Drive

Bethesda, Maryland 20817

Brett Michael Paben, Esquire

2717 Stanfield Avenue

Orlando, Florida 32814

Mark P. Barnebey, Esquire

Kirk Pinkerton, P.A.

50 Central Avenue, Suite 700

Sarasota, Florida 34236

Jeanne Marie Zokovitch Paben

Barry University School of Law

Earth Advocacy Clinic

6441 East Colonial Drive

Orlando, Florida 32807

Karen Eileen Greene, Esquire

111 Holderness Drive

Longwood, Florida 32779

Clifford J. Katz, Esquire

Richard E. Schwartz, Esquire

Beth Kramer, Esquire

Crowell & Moring, LLP

1001 Pennsylvania Avenue, Northwest

Washington, DC 20004-2595

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.