98-003640 Panhandle Industries, Inc., (Dagam Oil Company) vs. Department Of Environmental Protection Status: Closed Recommended Order on Monday, February 22, 1999.

Summary: Petitioner was awarded $19,119.30 as the reasonable cost incurred for site clean-up.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PANHANDLE INDUSTRIES, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-3640

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly designated Administrative Law Judge, William J.

Kendrick, held a formal hearing in the above-styled case on

December 8, 1998, in Tallahassee, Florida.

APPEARANCES

For Petitioner: George M. Hidle, President

Panhandle Industries, Inc.

Post Office Box 11983

Fort Lauderdale, Florida 33339-1983

For Respondent: J. A. Spejenkowski, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

At issue in this proceeding is the reasonable cost to be

reimbursed Petitioner, under the provisions of Section

376.3071(12), Florida Statutes, for the development of a

Monitoring Only Plan (MOP) program for the Dagam Oil Company

(DEP Facility No. 138504146), at 331 23rd Street, Miami Beach,

Florida.

PRELIMINARY STATEMENT

In August 1994, Petitioner, Panhandle Industries, Inc.,

submitted an application to the Respondent, Department of

Environmental Protection (Department), which sought reimbursement

for costs associated with the development of a Monitoring Only

Plan (MOP) under the provisions of Section 376.3071, Florida

Statutes.

Following review, the Department ultimately issued an Order

of Determination of Reimbursement on June 27, 1996, which

approved for reimbursement $13,198.70 of the total of $39,412.66

requested by Petitioner. 1

Respondent elected to dispute the Department's decision and

filed a petition for formal hearing pursuant to Sections 120.569

and 120.57, Florida Statutes. On August 12, 1998, the Department

referred the matter to the Division of Administrative Hearings

for the assignment of an administrative law judge to conduct the

formal hearing Petitioner had requested.

At hearing, Petitioner called George Hidle as a witness, and

Petitioner's Exhibits 1 through 15 and 23 through 25 were

received into evidence. 2 The Department called as witnesses

Diane Pickette, Brian King, Charles Williams, and Jeffrey

Priddle, and the Department's (Respondent's) Exhibits 1 through 5

and 7 were received into evidence. 3

The hearing transcript was filed on December 28, 1998, and

the parties were accorded 10 days from that date to file proposed

recommended orders or proposed findings of fact. The parties

elected to submit such proposals and they have been duly

considered.

FINDINGS OF FACT

Background

1. Petitioner, Panhandle Industries, Inc., is a Florida

corporation engaged in the business of consulting, engineering

and construction. George M. Hidle, a professional geologist

licensed in the State of Florida, is the president and sole owner

of the Petitioner corporation.

2. In September 1992, Dagam Oil Company, doing business as

Sierra Fina, employed Petitioner to do environmental assessment

work and prepare a Contamination Assessment Report (CAR) under

the then existing Rule 17-770.630, Florida Administrative Code,

for a site located at 331 23rd Street, Miami Beach, Florida (DEP

Facility No. 138504146). 4 That CAR was submitted to DERM

(Metropolitan Dade County, Department of Environmental Resources

Management) July 13, 1993. (Petitioner's Exhibit 1.)

3. Pertinent to this case, the CAR provides the following

background or historical information:

. . . PHYSICAL SETTING

. . . Sierra Fina is located at 331

23rd Street in Miami Beach, Florida . . .

The facility is bordered to the north by

Collins Canal, to the east by the light

commercial properties, and to the

south/southeast by property that once

contained Chevron and Fina service

stations. . . .

* * *

. . . FACILITY HISTORY AND OPERATION

Sierra Fina was built in 1963. The station

originally operated as a Sunoco service

station with a 3 bay garage. Dagam Oil

Company purchased the facility in March 1981

from Charles Rosenblatt. At the time the

station had five underground fuel

tanks. . . .

* * *

. . . PREVIOUS INVESTIGATIONS

Dagam Oil Company contracted with another

environmental company in November 1988 to

collect groundwater samples from . . . five

monitoring wells at the facility.

Groundwater samples were collected on

November 9, 1988 and analyzed by EPA Method

602. Monitoring well MW-3 was also analyzed

by EPA Method 610. All five of the wells had

hydrocarbon contaminant concentrations in

excess of state guidelines. . . .

A discharge notification form was mailed to

the DER and DERM on December 9, 1988, the

date of receipt of the analytical results

from the November 9, 1988 groundwater

sampling event. . . .

* * *

. . . INITIAL REMEDIAL ACTIONS [IRA]

[The F]ive underground storage tanks [and

associated piping] were removed from the

facility during March and April 1989 [, and

replaced with four new cathodically protected

underground petroleum storage tanks].

Approximately 400 cubic yards of contaminated

soil was also removed at that time. On

March 31, 1989 a composite sample of the soil

was collected for analysis . . . Because of

limited space at the station, the

contaminated soil was hauled to a Metro

Trucking Inc. storage yard located at

112th Avenue and 143 Street in Miami. The

contaminated soil was landfarmed at this

Metro Trucking facility for a period of seven

months, during which time the soil was spread

onto visqueen and tilled on a regular basis.

On November 21, 1989 the soil was resampled

and analyzed . . . Results of this second

round of analyses met clean fill criteria.

Also at the time of tank replacement, a

sheen of free floating hydrocarbons was

observed on water in the tank pit. A vac

truck was used to skim this product from the

pit prior to tank replacement. Approximately

2100 gallons of oily water were removed,

transported, and disposed of by Cliff Berry,

Inc. . . .

Other than these IRA activities, no other assessment or

remediation work had been performed at the facility until

Petitioner was employed in September 1992.

4. Petitioner's CAR concluded that:

Soil and groundwater at Sierra Fina are

contaminated with gasoline and diesel

hydrocarbons. Excessively contaminated soil

is confined to an area at the western end of

the station building that is approximately

20 feet in width by 30 feet in length,

extending down to a water table of between

6 and 8 feet below land s urface. No free

phase floating product is present on the

groundwater underlying this facility.

However, dissolved hydrocarbon contamination

is present in the groundwater. A dissolved

hydrocarbon plume is present in the western

half of the site. This plume measures

80 feet in length by 60 feet in width and

extends to a depth of less than 22 feet below

land surface, yielding approximately 134,640

gallons of hydrocarbon contaminated water.

Volume calculations are based on an average

depth to groundwater of 7 feet below land

surface and an effective soil porosity of

25%. The highest benzene (53.3 ppb) and

total napthalenes (752 ppb) concentrations

were detected in MW-12.

* * *

Groundwater within the Biscayne Aquifer

beneath Sierra Fina is nonpotable because of

salt water intrusion from the Atlantic Ocean.

For this reason there are no private or

public potable wells in the area.

Contamination at Sierra Fina is limited

onsite to the western half of the station,

and poses no threats to sensitive receptors

in the area, with the possible exception of

Collins Canal. The cause of hydrocarbon

contamination was never determined; however,

the most probable source, i.e. previous

petroleum tanks and lines, were removed in

March and April of 1989. Based on these

findings and the data presented about or

elsewhere in this report, it is known that

soil and groundwater contamination does exist

at this facility in concentrations that

exceed guidelines specified in Section 17-

770.730(5)FAC; however, the levels of

contamination may not warrant the need for

any extensive remediation activities at this

site.

5. Petitioner's CAR was approved by DERM on October 8,

1993, and Petitioner was directed to submit a Remedial Action

Plan (RAP) within 60 days. 5

6. At the time, Mr. Hidle (Petitioner) was aware that the

levels of contamination were low or near target levels, and that

it was likely that the contamination levels would decrease

naturally over time. Consequently, Petitioner elected to seek

approval of a Monitor Only Plan (MOP), as opposed to a RAP. Such

choice was favored based on the nature and location of the

contaminants. In this regard, it was observed that the soil

contamination consisted of both gasoline and diesel fuel, with

much of the contaminated soil abutting or underneath the

building. Excavation and removal of the soil was not an

alternative because it would undermine the structural integrity

of the building. Moreover, given the fuel mix, vapor extraction

was not a viable option.

7. Given Petitioner's choice to pursue approval of a MOP,

it gave notice to the Department and DERM on October 18, 1993, as

well as November 12, 1993, and December 2, 1993, of its intention

to undertake groundwater sampling and soil sampling on the site.

8. Groundwater sampling was undertaken by Mr. Hidle between

1:30 p.m., November 30, 1993, and 2:30 a.m., December 1, 1993, 6

at which time he drew water samples for laboratory analysis from

10 monitor wells (MW) and one deep well (DW). A duplicate sample

was also retrieved at MWs 12R and 14, and equipment blanks were

also obtained for laboratory analysis.

9. Between 8:25 p.m., December 4, 1993, and 3:40 a.m.

December 5, 1993, 7 Mr. Hidle and a senior technician (Martin

Hidle) augured 6 soil borings for use in preparing the MOP and

collected one soil sample for laboratory analysis.

10. Petitioner delivered the water samples to the

laboratory (Envirodyne, Inc.) on December 2, 1993, and the soil

sample on December 6, 1993, for analysis. The laboratory

completed its analysis of the water samples on December 13, 1993,

and of the soil sample on December 14, 1993, and rendered its

written reports (analysis) to Petitioner. 8

11. Upon receipt of the laboratory data, Mr. Hidle

completed his preparation of the MOP. (Petitioner's Exhibit 4.)

That MOP contained the following conclusions and recommendations:

The initial dissolved hydrocarbon plume

dimensions were based on data from

groundwater sampling events of January and

February 1993. Laboratory results from a

more recent sampling event (11/30/93)

indicate that plume size and hydrocarbon

compound concentrations therein have

decreased substantially (Table 4-2). Maximum

groundwater contaminant concentrations

decreased as follows: benzene from 53.3 ppb

to 11.1 ppb; BTEX from 111.7 ppb to 20.6 ppb;

total naphthalenes from 752 ppb to 246.1 ppb.

During the contamination assessment program

task a small area of contaminated soil was

found to be abutting the western end of the

station building (CAR, Fig. 3-1, p. 35).

Because of the presence of diesel compounds

in the groundwater, it was assumed during

preparation of the CAR that the soil too was

contaminated with diesel.

In early December 1993 PI Environmental

personnel installed six additional soil

borings (Figure 3-1, SB-16 through SB-21) and

collected one soil sample for laboratory

analyses. The soil borings were augered in

the immediate area of the previously defined

contaminated soil plume, and soil samples

were analyzed in the field by using a Foxboro

OVA 128. Soil samples were collected

vertically every two feet, beginning at one

foot below ground surface and continuing

until the water table was encountered.

A soil sample was collected from boring

SB-17 at a depth of six feet below land

surface. A net OVA reading of 160 ppm was

observed from a duplicate sample taken from

the same depth. The soil sample was tested

by EPA Methods 3540/8100 (diesel compounds)

and 9073 (TRPH). Laboratory results

indicated that all diesel compounds were

below laboratory detection limits, and the

TRPH concentration was below normal

background readings.

Soil contamination was reclassified as

being gasoline in origin, because no diesel

compounds were detected in the soil sample

from SB-17. Section 17-770.200(2) Florida

Administrative Code defines excessively

contaminated soil, associated with gasoline

contamination, as those that have a net

OVA/FID reading equal to or greater than

500 ppm.

From December 1993 sampling event, a

maximum net OVA/FID reading of 316 ppm was

obtained from a sample that was collected at

five fee below land surface in SB-17. Based

on these results, no excessively contaminated

soil was found during the most recent

sampling event.

It is the recommendation of PI

Environmental Inc. that a Monitoring Only

Plan be implemented at Sierra Fina. This

recommendation is based on the following

findings: 1) Absence in the study area of any

potable water wells within the Biscayne

Aquifer because of salt water intrusion from

the Atlantic Ocean 2) Absence of free phase

hydrocarbons 3) Absence of excessively

contaminated soil 4) Substantial decrease in

concentrations of dissolved hydrocarbon

compounds within the groundwater during the

last year, and 5) relatively low levels of

hydrocarbon contamination in the groundwater,

i.e., based on the November 30, 1993 sampling

event, maximum benzene of 11.1 ppb, maximum

BTEX of 20.6 ppb, and maximum total

naphthalenes of 246.1 ppb.

It is our recommendation that groundwater

from monitoring wells MW-8, MW-12R, MW-6, and

MW-17 be sampled on a quarterly basis.

Groundwater from the source area wells, MW-8

and MW-12R, should be analyzed quarterly by

EPA Methods 602 and 610. Groundwater from

the perimeter wells, MW-6 and MW-17, should

be analyzed quarterly by EPB Method 602 and

semiannually by EPA Methods 602 and 610.

Petitioner submitted the MOP to DERM on January 24, 1994.

12. Pertinent to this case, it is observed that the MOP was

a brief document, consisting of only 13 pages of textual

material, much of which was a restatement of material contained

in the CAR. The balance of the report consisted of 5 "Figures"

(three of which were contained in the CAR and one of which is an

updated version of a CAR Figure); 2 "Tables" (an update of the

Water Table Elevation table contained in the CAR to include the

November 30, 1993, data, and an update of the Summary of

Groundwater Analyses contained in the CAR to include the

November 30, 1993, and December 1, 1993, data); 6 "Geologic

Log[s]" (a restating of the soil boring results noted in the

field notes for December 4 and 5, 1993); copies of the laboratory

(Envirodyne, Inc.'s) reports of groundwater analysis; and the

laboratory's report on the soil analysis. In all, while

apparently adequate and nicely presented, the MOP does not

address a complex or unique issue, and does not evidence the

expenditure, or need to expend, an inordinate amount of effort to

produce.

13. Petitioner's MOP was disapproved by DERM on May 11,

1994, for the following reasons:

1. A complete round of groundwater

analyses, no greater than six months old, is

required. Therefore, all wells at this site

must be sampled for EPA Method 418.1, and

monitoring wells numbered MW-6, MW-9, MW-10,

MW-11, MW-13, MW-16, and MW-17 must be

sampled for EPA Method 610.

2. Because diesel contamination is present

at this site, soil OVA readings above 50 ppm

are considered to indicate excessively

contaminated soil. Based on this OVA

readings obtained for your Contamination

Assessment Report (CAR) and this MOP,

excessively contaminated soil does exist at

this site. Since this coil could be a

continuing source of contamination, it must

be removed prior to the approval of a MOP.

Consequently, Petitioner was directed to submit an addendum to

the MOP to address those issues.

14. On June 1, 1994, Petitioner gave notice to the

Department and DERM of its intent to collect groundwater samples

to address issues raised by DERM's MOP review letter. These

samples were collected by Mr. Hidle and a technician (Leo

Iannone) between 1:15 p.m. and 10 :00 p.m., June 15, 1994. 9

15. Petitioner delivered the water samples to the

laboratory (Envirodyne, Inc.) on June 16, 1994. The laboratory

completed its analysis and delivered its written reports to

Petitioner on or about June 23, 1994.

16. Upon receipt of the laboratory data, Mr. Hidle

completed the Monitoring Only Plan Addendum (Petitioner's Exhibit

8), and submitted it to DERM on July 5, 1994. The addendum

addressed the additional groundwater analysis that was performed,

and with regard to the diesel contamination it observed, as

follows:

Soil analytical results (MOP, Page 62) are

below laboratory detection limits for EPA 610

compounds; however, because groundwater at

this facility is contaminated with both

gasoline and diesel, we are concurring with

DERM by reclassifying excessively

contaminated soil as any soil that exhibits

net OVA/FID readings of 50 ppm or greater,

per Chapter 17-770 FAC.

OVA/FID soil analyses were performed in

accordance to Panhandle Industries, Inc.

approved Comp QAP. Net OVA/FID soil results

obtained during the CAR program task are

shown in Figure 1-5. A maximum net OVA/FID

reading of 887 ppm was obtained during CAR

soil assessment activities which ended on

November 29, 1992. Figure 1-6 shows net

OVA/FID results obtained during the MOP

program task. These MOP analyses are current

through December 5, 1993. A maximum net

OVA/FID of 316 ppm was obtained during this

latter event. As is shown in comparison of

Figures 1-5 and 1-6, it can be seen that the

size of the soil contaminant plume and

OVA/FID net soil readings therein have

decreased significantly since initiation of

the CAR. Also, by observing Figure 1-6,

which has a scale of 1" = 20', it is evident

that very little soil, if any can be

excavated without jeopardizing the structural

integrity of the station building.

Furthermore, there exist the possibility that

some soil contamination may underlie the

building itself; therefore, soil excavation

would most likely result in only partial

removal of the contaminated soil plume.

The addendum concluded by recommending that the MOP be

implemented as originally proposed, but with additional

monitoring to assure a continuing decline in contamination.

17. The addendum, like the MOP, was a brief document and

contains only 6 pages of textual material. The balance of the

addendum contains 6 "Figures" (all of which appeared in the CAR

or MOP); 2 "Tables" (an update of the Water Table Elevations

table contained in the MOP to include June 15, 1994, data, and an

update of the Summary of Groundwater Analyses contained in the

MOP to include the June 15, 1994, data); and the laboratory

reports of groundwater analyses. As with the MOP, the addendum

did not appear to address any complex or unique issues, and did

not evidence the expenditure, or need to expend, an inordinate

amount of time to produce.

18. On August 16, 1994, and August 26, 1994, DERM and the

Department, respectively, approved the "monitoring only"

proposal.

The request for reimbursement

19. Petitioner submitted its reimbursement application on

or about August 23, 1994, and it was apparently complete on or

about April 18, 1996. (Petitioner's Exhibit 11). That

application sought recovery of the following sums for the items

noted:

6. REMEDIAL ACTION PLAN [MOP and MOP

Addendum] PREPARATION . . .

a. Personnel 31442.55

b. Capital Expense Items ______________

c. Rentals 1127.45

d. Mileage 68.05

e. Shipping 35.00

f. Well Drilling ______________

g. Permits ______________

h. Analysis 3680.00

i. Miscellaneous 1601.25

REMEDIAL ACTION PLAN

PREPARATION TOTAL 37954.30

* * *

13. REIMBURSEMENT APPLICATION PREPARATION

Supplementary Forms

a. Personnel 795.00

b. Capital Expense Items _____________

c. Rentals 15.00

d. Mileage .80

e. Shipping 86.81

f. Well Drilling _____________

g. Permits _____________

h. Analysis _____________

i. Miscellaneous 60.75

APPLICATION PREPARATION TOTAL 958.36

CERTIFIED PUBLIC ACCOUNTANT

REVIEW FEE 500.00

APPLICATION GRAND TOTAL 39412.66

19. By letter (Order of Determination of Reimbursement) of

June 27, 1996, the Department responded to Petitioner's

reimbursement request as follows:

We have completed review of your

Reimbursement Application for expenses

incurred during the Remedial Action

Plan/Monitoring Only Plan program task at

this site and have determined that $13,198.70

of the total $39,412.66 requested is

allowable for reimbursement. This amount

will be paid to the person responsible for

conducting site rehabilitation when

processing is completed by the Comptroller's

Office.

Some adjustments to the amount of

reimbursement requested have been made. The

following list details these adjustments.

Citations refer to the specific sections of

the enclosed Reimbursement Application

Summary Sheets:

1. $24,766.25 in Section 6A, $259.95 in

Section 6C, $28.20 in Section 6D and

$63.25 in Section 6I were deducted

because the total personnel hours (413.15

hours) and the total cost of $39,412.66

claimed for performing a limited scope of

work consisting of 78.34 hours of field

activities, two rounds of analyses (59

samples) and two letter reports have been

determined to be excessive. However,

actual field activities (including a

reasonable amount of preparation), two

rounds of analyses and a reasonable

amount of personnel time to prepare two

letter reports have been allowed.

2. $162.50 in Section 6A, $9.00 in

Section 6E and $331.15 in Section 6I were

deducted for costs associated with

providing backup for the Contamination

Assessment reimbursement application.

These costs are not reimbursable in this

application which is for the Remedial

Action Plan/Monitoring Only Plan program

task.

3. $184.80 in Section 6A and $394.56 in

Section 6I were deducted for field

supplies, ice, conducting database

modifications and purchasing office

supplies, which are considered to be

overhead. These costs are not justified

in addition to the loaded personnel rates

which already include overhead and

profit.

4. $11.76 in Section 6I was deducted because

the rate for reproduction ($0.99 per

page) has been determined to be

excessive. However, $0.15 (per page) has

been allowed based on the predominant

rate claimed in other reimbursement

applications for similar rates.

5. $19.56 in Section 13E was deducted for

costs added to the application

preparation claimed as a markup.

Reimbursement for application preparation

is limited to actual costs only.

6. $17.02 was added to the application grand

total to cover the cost of reproducing

the reimbursement application and

invoices and shipping the replacements to

the Department.

(Petitioner's Exhibit 12.)

20. Petitioner filed a timely challenge to contest the

Department's decision. That challenge disputed the Department's

action, as set forth in paragraphs numbered 1 through 4 of the

letter, but Petitioner did not then, or at hearing, dispute the

Department's action with regard to the matters contained in

paragraphs numbered 5 and 6 of the Department's letter.

(Petitioner's Exhibit 13). Subsequently, at hearing, Petitioner

withdrew its request for reimbursement regarding the items

contained in paragraph 3 of the Department's letter.

(Transcript, page 101).

The claim for the cost of preparing the

reimbursement application

21. Petitioner's claim for the cost of preparation of the

reimbursement application totalled $1,458.36 (including the

certified public accountant review fee). The Department proposed

to deduct $19.56 (in Section 13E), and to add $17.02 to cover

certain costs, as noted in the Department's letter.

(Petitioner's Exhibits 12 and 13). Petitioner offered no

objection to the Department's decision and, therefore, Petitioner

should be awarded $1,455.82, without the need for further

discussion, as the cost of preparing the reimbursement

application.

The claim for the cost of preparation of

the MOP and MOP Addendum

22. Petitioner's application for reimbursement claimed

413.15 personnel hours ($31,442.55) were dedicated to the

development of the MOP (329.42 hours/$25,500.95) and the MOP

Addendum (83.73 hours/$5,941.60). (Respondent's Exhibit 7, and

Transcript, pages 188-190).

23. In its initial review, the Department approved

55.67 hours ($3,790.45) for the MOP and 41.92 hours ($2,538.55)

for the MOP Addendum, for a total award of $6,329.00.

Subsequently, the Department resolved to accept as reasonable,

89 hours ($6,308.00) for the MOP and 83.73 hours ($5,941.60) for

the MOP Addendum, for a total award of $12,249.60 for personnel

costs. 10

24. The 83.73 hours ($5,941.60) agreed to by the Department

for the MOP Addendum was the precise amount Petitioner requested

in its reimbursement application; however, the 89 hours

($6,308.00) accepted by the Department for the MOP is clearly

less than the 329.42 hours ($25,500.95) Petitioner had requested.

With regard to the difference, the Department views the request

as excessive. In contrast, Petitioner contends the time

requested was reasonable. Here, the Department's view has merit.

25. To support the reasonableness of the hours (labor)

claimed, Petitioner pointed to the "Daily Time Log[s]" which were

contained within the reimbursement application, and which it

contended contain an accurate recording of the hours worked and

the task performed. (Petitioner's Exhibits 11, and Transcript,

pages 29 through 31). According to Mr. Hidle, all employees of

the company were required to keep a notepad on which they were to

record the job (customer), hours worked, and task performed. At

some future date, perhaps up to a week or more, those entries

were ostensibly transferred to the "Daily Time Log."

(Transcript, pages 29 through 31, and page 84). Consequently,

Mr. Hidle contends Petitioner's "Daily Time Log[s]" may be relied

upon to accurately reflect the hours actually worked, and that

those hours were reasonably expended.

26. Here, considering the record, Mr. Hidle's testimony is

rejected as not credible or, stated otherwise, inherently

improbable and unworthy of belief. In so concluding, it is

observed that there is nothing of record, either in the exhibits

or testimony offered at hearing, that could possibly explain the

dichotomy between the number of hours claimed for development of

the MOP (329.42) and the number of hours claimed for development

of the MOP Addendum (83.73). Notably, neither project was

particularly complex, and the tasks performed were reasonably

alike. Similarly, it is inherently improbable, given the limited

field work and the product produced (the MOP), that production of

the MOP could require 329.42 hours or, stated differently, eight

and one-quarter weeks, at 40 hours per week. Finally, most of

the entries for which substantial blocks of time are assigned

contain only vague or general terms to describe the task, such as

"literature review," "MOP/RAP preparation," "file review," and

"schedule/plan/coordinate RAP/MOP." Such practice renders it

impossible to determine what work was actually done, whether the

work was duplicative, and whether the time was actually expended

or reasonable.

27. Given the record, it must be concluded that the proof

offered by Petitioner to support the number of hours claimed for

development of the MOP is not credible or persuasive, and that it

would be pure speculation to attempt to derive any calculation or

meaningful estimate based on such proof. In the end, Petitioner

must bear the responsibility for such failure.

28. While Petitioner's proof offers no credible basis upon

which to derive the number of hours dedicated to the MOP and

their reasonableness, Petitioner obviously dedicated time to the

MOP, and to the extent the record provides a reasonable basis on

which to predicate an award, it is appropriate to do so. Here,

given the lack of credibility of Petitioner's "Daily time

Log[s]," as well as the testimony of Mr. Hidle, to provide a

basis on which to derive the number of hours actually worked, and

then test those hours against the standard of reasonableness, the

only option is to award the 89 hours or $6,308.00, which the

Department agrees were reasonably expended.

29. Finally, with regard to the miscellaneous cost items,

as opposed to personnel hours, rejected by the Department's

letter of June 27, 1996, it must be resolved that Petitioner

failed to offer, at hearing, any compelling proof that the items

rejected by the Department were reasonable expenditures incurred

in development of the monitor only program. Consequently, the

following sections of Petitioner's reimbursement application have

been reduced by the sums stated: $295.95 deducted from Section

6C; $28.20 deducted from Section 6D; $9.00 deducted from Section

6E; and $800.72 deducted from Section 6I.

The award for reimbursement

30. Given the proof, Petitioner should be awarded the

following sums, for the items indicated, as reimbursement for

preparation of the MOP and MOP Addendum:

a. Personnel $12,249.60

b. Capital Expense Items __________

c. Rentals 867.50

d. Mileage 39.85

e. Shipping 26.00

f. Well Drilling __________

g. Permits __________

h. Analysis 3680.00

i. Miscellaneous 800.53

TOTAL 17,663.48

For expenses involved in preparation of the reimbursement

application, Petitioner should be awarded the following sums for

the items indicated:

a. Personnel $ 795.00

b. Capital Expense Items __________

c. Rentals 15.00

d. Mileage .80

e. Shipping 67.25

f. Well Drilling __________

g. Permits __________

h. Analysis __________

i. Miscellaneous 77.77

APPLICATION PREPARATION TOTAL 955.82

C ERTIFIED PUBLIC ACCOUNTANT

REVIEW FEE 500.00

TOTAL FOR APPLICATION

PREPARATION 1,455.82

In all, Petitioner should be accorded a total reimbursement of

$19,119.30.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. Sections 120.569 and 120.57(1), Florida

Statutes.

32. Pertinent to this case, Section 376.3071, Florida

Statutes, provides for the reimbursement of a party who has

incurred costs for site cleanup. More particularly, Section

376.3071(12), Florida Statutes, provides:

(b) Conditions.–

1. The owner, operator, or his or her

designee of a site which is eligible for

restoration funding assistance in the EDI,

PLRIP, or ATRP programs shall be reimbursed

from the Inland Protection Trust Fund of

allowable costs at reasonable rates incurred

on or after January 1, 1985, for completed

program tasks as identified in the department

rule promulgated pursuant to paragraph

(5)(b) . . .

(d) Amount of reimbursement.– The

department shall reimburse actual and

reasonable costs for site rehabilitation.

The department shall not reimburse interest

on the amount of reimbursable costs for any

reimbursement application. However, nothing

herein shall affect the department's

authority to pay interest authorized under

prior law.

33. Also pertinent to this case, Chapter 62-773, Florida

Administrative Code, includes the following rule provisions:

62-773.200 Definitions.

* * *

(11) "Integral" means costs essential to

completion of site rehabilitation.

* * *

(14) "Reimbursement" means payment of

money from the Inland Protection Trust Fund

to the person responsible for conducting site

rehabilitation for allowable costs incurred.

* * *

62-773.700 Application for Reimbursement.

Upon completion of one or more program

tasks at sites with an eligible discharge,

the person responsible for conducting site

rehabilitation may apply for reimbursement of

allowable costs actually incurred in

conducting site rehabilitation. Pursuant to

Section 376.3071(12), F.S., payment shall be

made in the order in which the Department

receives completed applications provided

sufficient information has been provided to

determine the allowability and reasonableness

of all costs claimed.

34. Here, Petitioner has requested reimbursement under the

provisions of Section 376.3071(12), Florida Statutes. As the

claimant, the burden rests on Petitioner to demonstrate

entitlement to compensation. Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349, 350 (Fla. 1st DCA 1977)

("[T]he burden of proof, apart from statute, is on the party

asserting the affirmative issue before an administrative

tribunal.") See also Florida Department of Transportation v.

J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

35. As noted in the findings of fact, Petitioner failed to

present credible evidence to demonstrate the number of hours

dedicated to the MOP or from which the number of hours reasonably

expended could be derived. When such proof is not forthcoming,

such failure is generally fatal to the claim. See e.g. Mercy

Hospital, Inc. v. Johnson , 431 So. 2d 687 (Fla. 3d DCA 1983), and

Miller v. First American Bank and Trust , 607 So. 2d 483 (Fla. 4th

DCA 1992). However, the Department conceded 89 hours ($6,308),

as reasonably incurred in the development of the MOP. Given the

record, the alternative offered by the Department's concession is

preferable to denying any reimbursement, and 89 hours ($6,308)

are accepted as reasonable for development of the MOP.

36. In all, the record supports the conclusion that

Petitioner has demonstrated entitlement to the expenses

enumerated in paragraph 30, supra .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered which awards

Petitioner the sum of $19,119.30, as reimbursable costs.

DONE AND ENTERED this 22nd day of February, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of February, 1999.

ENDNOTES

1/ Prior to hearing, the Department approved an additional

$5,920.60 for reimbursement and, at hearing, Petitioner withdrew

its request for reimbursement for the costs ($579.36) noted in

item 3 of the Order of Determination of Reimbursement

(Petitioner's Exhibit 12).

2/ Petitioner also had marked for identification Petitioner's

Exhibits 16 through 18, 21, 26, and 27; however, they were not

accepted into evidence.

3/ The Department also had marked for identification its

(Respondent's) Exhibit 6; however, it was not accepted into

evidence.

4/ There are often several phases to the remediation of a site

contaminated by petroleum products. An early phase is the

contamination assessment, which assesses the severity and extent

of petroleum contamination in the soil and groundwater. The

results of this assessment are presented in the CAR. The next

stage in remediation may be the development of a Remedial Action

Plan (RAP), which proposes a design or system to remediate the

groundwater or soil contamination. All RAPs must contain

projections on the cost to remediate, the cost of the system, the

cost of operating the system, the duration of time the system will

run, and the projected life of the system. Additionally, a RAP

must compare the selected action against other options, regarding

overall cost and effectiveness. However, if sampling results

during the containment assessment indicate that the levels of

contamination are low or near target levels, such as in the

instant case, a RAP system may not be required and a Monitoring

Only Plan (MOP) may be approved. Such a plan involves monitoring

over time to assess whether, as expected, the levels of

contamination are decreasing.

5/ Petitioner has previously been reimbursed by the Department

for all expenses associated with developing the CAR and those

expenses are not at issue in this case.

6/ Mr. Hidle's field notes (Petitioner's Exhibit 5) reflect that

he left the office at 11:30 a.m., November 30, 1993; arrived at

the job at 1:30 p.m.; departed the job at 2:30 a.m., December 1,

1993; and, arrived at the office at 3:15 a.m.

7/ Mr. Hidle's field notes (Petitioner's Exhibit 5) reflect that

he and the technician left the office at 7:45 p.m., December 4,

1993; arrived at the job site at 8:25 p.m.; departed the job site

at 3:40 a.m., December 5, 1993; and arrived at the office at

4:30 a.m.

8/ Each water sample was analyzed in accordance with EPA

Method 602 and some of the samples, but not all, were tested in

accordance with EPA Methods 610 and 418.1, as well as for lead.

9/ Mr. Hidle's field notes (Petitioner's Exhibit 5) reflect that

he left the office (to load equipment) at 10:00 a.m., June 15,

1994, arrived at the job site at 1:15 p.m., departed the job site

at 10:00 p.m., and arrived at the office at 11:00 p.m., where

unloading was completed at 11:30 p.m. The notes reflect the

technician arrived separately (at the job-site) at 1:15 p.m. and

departed at 10:00 p.m.

10/ The Department's concession may have been generous; however,

it is accepted.

COPIES FURNISHED:

George M. Hidle, President

Panhandle Industries, Inc.

Post Office Box 11983

Fort Lauderdale, Florida 33339-1983

J. A. Spejenkowski, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.