93-005517 Department Of Environmental Protection vs. All-States Auto Salvage, Inc. Status: Closed Recommended Order on Tuesday, March 29, 1994.

Summary: Evidence proves resp operated a polluting solid waste facility w/o a permit but not that ground water was polluted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5517

)

ALL-STATES AUTO SALVAGE, INC., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

A hearing was held in this case in St. Petersburg, Florida on February 2,

1994, before Arnold H. Pollock, a Hearing Officer with the Division of

Administrative Hearings.

APPEARANCES

For the Petitioner: Tracey S. Hartman, Esquire

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

For the Respondent: Carl H. J. Kristensen, pro se

All-States Auto Salvage, Inc.

1331 22nd Street North

St. Petersburg, Florida 33713

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent is guilty of

the violations alleged in the Notice of Violation and Order for Corrective

Action issued by the Director of the Department's Southwest District on May 5,

1992.

PRELIMINARY STATEMENT

On May 5, 1992, Dr. Richard D. Garrity, the Director of the Department of

Environmental Protection's Southwest District, issued a Notice of Violations and

Order for Corrective Action to the Respondent herein, All-States Auto Salvage,

Inc., citing various alleged violations of Chapter 403, Florida Statutes,

dealing with alleged ongoing contamination of air, soil, and water by Respondent

at its site in St. Petersburg, Florida.

Respondent subsequently demanded a hearing on the matter and this hearing

followed. It appears from comments made at the hearing that Respondent, by its

request for hearing dated January 25, 1993, was seeking informal hearing. The

matter was, however, referred to the Division of Administrative Hearings for

appointment of a Hearing Officer to conduct a formal hearing under section

120.57(1), Florida Statutes, and Respondent concurred with that action at the

time of hearing.

At the hearing, Petitioner presented the testimony of Stephanie S. Hinson,

an investigator for the Solid Waste Management Division in the Department's

Southwest District, and Margaret Cangro, an investigator with the Air and

Resources Division of the Department. It also introduced Petitioner's Exhibits

1 - 4. Mr. Kristensen testified on behalf of the company and introduced

Respondent's Exhibits A - D.

A transcript was provided. Thereafter, Petitioner presented Proposed

Findings of Fact which have been ruled upon in the Appendix to this Recommended

Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Respondent conducted

an auto salvage operation under the name, All-States Auto Salvage, Inc., at its

site located at 1331 22nd Street North in St. Petersburg. Petitioner,

Department of Environmental Protection, was the state agency responsible for

enforcing the terms of the rules and statutes of this state dealing with

pollution of the land, air and waters of Florida.

2. As a part of Respondent's salvage operation, it dismantled derelict

automobiles to salvage parts for further use, if possible, and to obtain scrap

metal for processing. This operation is carried out at its business site

located on a roughly triangular piece of land in St. Petersburg bordered on one

side by 13th Avenue North, by 22nd Avenue North on another side, and on the

third side by a water filled ditch which ultimately empties into Booker Lake,

classified as an Outstanding Florida Water.

3. On June 9, 1991, Investigator Weeks, of the Department's Southwest

District office, conducted an inspection of the Respondent's business site on

the land in question, which was rented from someone else, based on a complaint

filed with the Department on December 19, 1990. That complaint was that

Respondent's salvage operation was discharging various types of polluting fluids

from the vehicles being dismantled at the site. Mr. Weeks found that car fluids

were being discharged onto the ground during engine removal. He was told by

Respondent's employees that the entire site was paved with concrete under the

surface dirt. Respondent confirmed that at hearing, indicating further that the

eight inch concrete slab was underlaid by a non-porous plastic sheet designed to

act as a barrier against seepage. Though neither Mr. Weeks or subsequent

investigators who visited the site confirmed the presence of the barrier,

neither was its presence disproved, and it is found such a plastic sheet indeed

exists.

4. Mr. Weeks noticed, however, that no berms existed to control and

contain fluids for later collection and disposal. When Ms. Hinson, also a

Department investigator, visited the site again on April 29, 1992, she did not

notice any berms surrounding the property, and saw puddles of standing water

which had a sheen on them indicating the presence of petroleum products.

5. Mr. Weeks report indicates that storm water falling on the site has

been washing these polluting fluids off the property and into the adjacent ditch

which ultimately empties into a jurisdictional water. This ditch had distressed

vegetation on the side adjoining Respondent's property. This same situation was

observed by Ms. Hinson during her April, 1992 visit to the site. Ms. Hinson has

an undergraduate degree in biology with minors in chemistry and physics. She is

but one semester from completing her Master's degree in environmental health.

Based on her education and experience, she concluded the ditch vegetation was

damaged because of the contamination of petroleum products from Respondent's

yard. If a concrete pad exists and is not properly pitched and sloped, it would

increase wastewater runoff into the ditch, and since concrete is somewhat

permeable, contaminants could leach through it into the soil beneath unless

stopped and rerouted by any existing barrier. She took no water or soil samples

from either the site yard or the ditch, however.

6. No direct evidence was presented as to whether the polluted water

runoff actually went into the ditch, and no direct evidence was introduced to

show that the water in the ditch was ever tested for pollutants at the time of

either visit. Mr. Kristensen indicated the distress to the vegetation was

caused by weed control spraying by the county or the city. A check with the

city office responsible for spraying in the area revealed the last spraying at

that site was in October, 1993, and the only one before that was 18 months

previously, in June, 1992, after Ms. Hinson's first visit. It is found,

therefore, that the vegetative distress was caused by runoff from Respondent's

salvage yard though no evidence of pollution was identified in the ditch water.

7. On April 29, 1992, Ms. Hinson was asked by a member of the St.

Petersburg Police Department to accompany a team on a joint inspection of

Respondent's operation. This is not unusual as she receives similar requests

from law enforcement agencies in the several counties which make up the

Department's Southwest District. In this case, the police were going to look

for stolen vehicles and wanted Ms. Hinson to look for possible environmental

violations.

8. When she went through Respondent's site on that occasion, she saw

automobiles being dismantled on what appeared to her to be the bare ground to

the left of the entrance to the yard. Autos awaiting dismantling were being

stored to the right of the entrance. Also on the right side, progressing toward

the back of the site, beyond the autos, was a large pile of tires which, she

estimated to number between 1,200 and 1,800, lying against the building toward

the back of the property and against the side fence. There were no fire lanes

provided as the pile extended against the side of the building and the fence.

9. Ms. Hinson saw auto parts lying on the ground all over the site. It

appeared to her, from the appearance of the ground, that it was made up of a

black, sticky substance smelling of petroleum, whereas regular soil in that area

of town was grey and sandy. She did not dig into this covering and does not

know how deep it was or whether it overlaid a concrete pad, as Mr. Kristensen

asserts. She did notice puddles of fluid on the ground which had a sheen on

them, and she did not see any containment efforts being made. There were

barrels available for waste fluids, but it was clear to her that not all fluid

was getting into them. In fact, she saw an employee removing gasoline tanks

from vehicles, and this process was dripping fluid, presumably gasoline, right

onto the ground. Admittedly, not much leakage occurred at any one time, but

from the condition she observed on the ground, it was evident to her the

practice had been going on for a long time.

10. Ms. Hinson asked Mr. Kristensen about how fluids were accumulated,

stored, and disposed of. In response, he showed her receipts indicating he had

sold reclaimed oil to a processor. Receipts from 1989 - 1993, introduced at the

hearing, indicate that waste oil and diesel was periodically sold to processors

and in January, 1991, some 20 gallons of waste water was delivered to a recovery

firm.

11. Ms. Hinson again visited the site shortly before the hearing but did

not go in. She noted, however, that the yard had far fewer vehicles on it, and

the dismantled pieces are now neatly stacked. The soil still appears black,

however, and the ditch still appears the same as on her previous visit. In her

professional opinion, a need exists for a contamination assessment. Though the

volume has been substantially reduced since her initial inspection, the

contamination she observed then does not appear to have been corrected. There

is a need to prevent contamination, and if some occurs, to contain it. She did

not observe any control measures in progress.

12. Sometime after Ms. Hinson's visit in April, 1992, Mr. Kristensen

received a Final Order from the District Director requiring him to make certain

corrections to his place of business and its operation. This Final Order was

issued by mistake, however, but at no time until late in 1993 did anyone from

the Department notify Mr. Kristensen of that fact or of his responsibilities in

light of that mistake. Upon receipt of the Order, Mr. Kristensen set upon a

course of corrective action designed to rectify the identified violations. The

tire pile was reduced; a suction pump was purchased to collect standing water;

an expensive piece of equipment to drain fluids from vehicles was purchased and

put into operation; berms were constructed which, with the existing pitch and

slope of the slab, should keep all fluids on site for mechanical removal; and

all hazardous waste is now stored in a manner approved by the fire department.

In addition to the above, since 1986 or before, a standing written procedure has

been in existence regarding the handling of hazardous waste. Though this

directive is required reading for all employees, it is obvious it was honored

more in the breach than in the compliance.

13. According to Mr. Kristensen, the soil which overlays the concrete slab

is no more than one quarter of an inch thick. This would appear to be a rather

conservative estimate, however. Review of the photographs introduced by both

parties reveals the thickness of the mixture to be much greater. Regardless,

Mr. Kristensen asserts this soil is periodically collected and dried to remove

the petroleum before being put down again and used as an absorbent. This

process, however, is not likely to remove more than the odor of petroleum as a

result of evaporation. The actual contaminants remain. This absorbent was

present as late as October 26, 1993, when the site was visited by Ms. Cangro.

At the time of her visit it was raining and the ground was covered with a wet,

black substance which gave off an odor of petroleum.

14. Ms. Hinson spent between six and eight hours on this case. She earns

approximately $120.00 per hour. Other expenses incurred on the matter include

attorney and clerical time. No figures were provided to establish actual or

estimated costs in this regard.

15. Taken together, the evidence indicates Respondent is a person within

the meaning of the pertinent statutes; automobile fluids and tires constitute

solid waste within the meaning of the pertinent statutes; and Respondent's

operation at the property constitutes a solid waste management facility within

the meaning of the appropriate statutes.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter in this case. Section 120.57(1), Florida

Statutes.

17. Petitioner has charged the Respondent with several counts of violating

Section 403.161(1)(b), Florida Statutes, which, in pertinent part, makes it a

violation:

To fail to obtain any permit required by this

chapter or by rule or regulation, or to violate

of fail to comply with any rule, regulation,

order, permit or certification adopted or issued

by the department pursuant to its lawful authority.

18. The pertinent statutes alleged to be violated include:

(a) Section 403.087, Florida Statutes, which

provides:

No stationary installation which will

reasonably be expected to be a source of air

or water pollution shall be operated,

maintained, constructed, expanded, or modified

without an appropriate and currently valid permit

issued by the department, ....

(b) Section 403.707(1), Florida Statutes,

which provides:

No solid waste management facility may be

operated, maintained, constructed, expanded,

modified, or closed without an appropriate and

currently valid permit issued by the

department,....

(c) Section 403.717(3)(a) and (b), Florida

Statutes, which provides:

(a) A person may not maintain a waste tire

site unless such site is:

1. An integral part of the person's

permitted waste tire processing facility; or

2. Used for the storage of waste tires prior

to processing and is located at a permitted

solid waste management facility.

and

(b) It is unlawful for any person to

dispose of waste tires or processed tires in

this state except at a permitted solid waste

management facility.

19. Petitioner also alleges a violation of

Section 403.161(a), Florida Statutes, which, in

pertinent part, provides:

(1) It shall be a violation of this chapter,

and it shall be prohibited for any person:

(a) To cause pollution, except as otherwise

provided in this chapter, so as to harm or

injure human health or welfare, animal, plant,

or aquatic life, or property.

20. Section 403.031(4), Florida Statutes, defines an installation as any

structure, equipment, facility, or operation which may emit water contaminants

in quantities prohibited by rules of the department. Under the circumstances of

this case, Respondents's facility in issue here is an installation as recognized

by the statute. In addition, Respondent is, and has admitted being, a person

within the meaning of the pertinent statutes.

21. The burden in this case is upon the Petitioner to establish, by a

preponderance of the evidence, that its allegations contained in the Notice are

true and correct. Clearly, Respondent is conducting an automobile salvage

operation at its facility in St. Petersburg. As a part of that operation,

Respondent accumulated and stored on the premises used and discarded automobile

tires in a number far in excess of 1,000 pieces, which, under the conditions

shown to exist, constituted the operation of a waste tire site as prohibited by

statute.

22. The evidence also clearly established that as a part of the

dismantling operation, motor vehicle fluids, shown to include petroleum

products, were released onto the ground. Notwithstanding the showing that

corrective measures may have been implemented to reduce that discharge, the

evidence is overwhelming that at the time of the earlier inspections by the

department investigators, the fluids were not being collected or in any way

being prevented from escaping into the ground water. This is found

notwithstanding the possibility that underlying the surface substance, a

concrete pad and vinyl sheeting may have diverted the direct downward seepage of

the fluids. Even with those purported barriers, it is clear that without berms,

rainwater runoff, presumably contaminated by the substances on the ground, was

being allowed to run off the property, onto the side of the adjacent ditch. It

must be noted that in the process, according to the best evidence of record, it

did considerable damage to the plant life on the side of the ditch contiguous to

Respondent's property.

23. It is accepted that since the relevant inspections by the Department,

Respondent has made an effort to clean up its operation and its facility. That

effort, however, has not been shown to be more than cosmetic. At the time of

the pertinent inspections, Respondent was shown to be operating a polluting

operation without a permit; operating a waste management facility without a

permit; and maintaining a waste tire site without a permit. The department did

not establish that tires were being disposed of at the site. By the same token,

while the department's evidence clearly showed that the runoff pollution did

damage to the plant life on the Respondent's side of the ditch, it did not

establish, by any direct evidence, that the water in the ditch or the

jurisdictional lake, was polluted by Respondent's operation.

24. Petitioner seeks to assess the costs of investigation and prosecution

against the Respondent. Costs are assessable if properly proven when a

violation of the statutes or rules are shown to have occurred. However, in

support of its effort, Petitioner has introduced only the testimony of one

investigator who indicated she expended between six and eight hours in

furtherance of the investigation, and that her salary is approximately $120.00

per hour. No evidence was introduced as to any ancillary costs of other

personnel involved. Under the circumstances, it is impossible to reasonably

assess costs at this time.

25. In the Proposed Recommended Order submitted to the undersigned

subsequent to the receipt of the transcript of proceedings, Petitioner has

outlined several conditions under which Respondent should be permitted to

continue its operation. These suggestions, detailed in application as they are,

are not within the purview of the Hearing Officer but are better left for

incorporation within the Final Order to be issued by the Department as they are

within the Department's area of particular expertise and were not treated during

the hearing on the violations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is,

therefore:

RECOMMENDED that a Final Order be entered finding that Respondent has

violated those provisions of Florida Statutes cited on the Department's Notice

of Violation and Order for Corrective Action, and imposing such restrictions and

conditions upon Respondent's continued operation as are lawful, necessary and

proper under the circumstance. Costs are not assessed.

RECOMMENDED this 29th day of March, 1994, in Tallahassee, Florida.

__________________________________

ARNOLD H. POLLOCK, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of March, 1994.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-5517

The following constitutes my specific rulings pursuant to Section

120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted

by the parties to this case.

FOR THE PETITIONER:

1. - 3. Accepted and incorporated herein.

4. & 5. Accepted and incorporated herein.

6. - 20. Accepted and incorporated herein.

21. Presumed correct but not proven.

22. - 25. Accepted and incorporated herein.

26. Accepted as likely but not proven to have occurred.

27. Accepted and incorporated herein.

28. - 31. Accepted and incorporated herein.

32. & 33. Accepted.

34. Accepted.

35. & 36. Accepted and incorporated herein.

37. - 39. Accepted and incorporated herein.

FOR THE RESPONDENT:

None submitted.

COPIES FURNISHED:

Tracey S. Hartman, Esquire

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Carl H. J. Kristensen, Jr.

Qualified Representative

All-States Auto Salvage Incorporated

1331 22nd Street North

St. Petersburg, Florida 33713

Virginia B. Wetherell, Secretary

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Kenneth Plante

General Counsel

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should consult with the agency which will issue the

Final Order in this case concerning its rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency which will issue the Final Order in this case.