HomeMy WebLinkAboutEXHIBITBEFORE THE STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
"RI
CITY OF MIAMI, PUBLIC WORKS
DEPARTMENT
IN THE OFFICE OF THE
BUREAU OF PETROLEUM
STORAGE SYSTEMS
OGC FILE NO. 10-1990
CONSENT ORDER
This Consent Order ("Order") is entered into between the State of Florida Department
of Environmental Protection ("Department") and City of Miami, Public Works Department
("Respondent") to reach settlement of certain matters at issue between the Department and
Respondent.
The Department finds and Respondent admits the following:
1. The Department is the administrative agency of the State of Florida having the
power and duty to protect Florida's air and water resources and to administer and enforce the
provisions of Chapters 376 and 403, Florida Statutes ("F.S."), and the rules promulgated and
authorized in Title 62, Florida Administrative Code ("F.A.C."). The Department has
jurisdiction over the matters addressed in this Order.
2. Respondent is a "person' within the meaning of Sections 376.301(28) and
403.031 (5 F. S.
3. Respondent is the operator of the facility (the "Facility") containing the
underground storage tank ("USTs") listed below:
Facility Address
DEP Fac ID#
Facility
Tanks
City of Miami, Lawrence Storm Water #931, 709 SW 4th Street,
9501588
1 UST
Miami, Florida, Miami -Dade County
4. The Facility's UST System consists of one single -walled underground storage
tanks and its associated piping and dispensers (the "System"). The storage tank is an enclosed
stationary container with a volume in excess of 110 gallons in size that contains vehicular fuel.
DEP vs. City of Miami, Public Works Department
Consent Order, OGC No. 10-1990
Page 2
6. The Property and the System constitute a "Facility" within the meaning of
Section 376.301(19), F.S.
7. The Respondent notified the Department, that due to budgetary issues, it will be
unable to meet the compliance deadline of December 31, 2009, for upgrades for the Facility's
UST System.
8. The Department finds that the following violations occurred:
a) Failure to meet the upgrade deadline, Rule 62-761.510, F.A.C.
Having reached a resolution of the matter, Respondent and the Department mutually
agree and it is
ORDERED:
9. Respondent shall comply with the following corrective actions within the stated
time periods:
a) Complete upgrades on all tank systems at the Facility no later than
December 31, 2010 or permanently close the UST Systems pursuant to
Rule 62-761.800, F.A.C. by that date;
b) Notify the Department of the Facility's upgrade in accordance with Rule
62-761.450(1)(a), F.A.C..;
c) Submit an updated registration form for the Facility within 30 days of
completion of the upgrade project in accordance with Rule. 62-
761.450(1)(b), F.A.C.;
d) Timely and fully comply with Rule 62-761.800(2) & (3), F.A.C. as the
Facility's UST Systems are upgraded;
10. Respondent shall maintain compliance with Department rules found in Chapter
62-761, F.A.C. regarding underground storage tank systems. If, at any time during the
effective period of this Order, the Facility is found to be out of compliance with Department
rules relating to release detection, the upgrade extension granted to the Facility in this Order is
revoked. For the purposes of this Order, release detection violations shall include all
violations of Rules 62-761.600, 62-761.610, 62-761.640, and 62-761.700(1)(b) & (1)(c)2, 3, & 5,
DEP vs. City of Miami, Public Works Department
Consent Order, OGC No. 10-1990
Page 3
F.A.C. Respondent shall be required to place the Facility's UST Systems out -of -service within
ten (10) days of written notification of noncompliance issues by the Department.
11. If Respondent does not upgrade or permanently close the UST System within the
timeframes set out in paragraph 9, Respondent agrees to return the current, valid storage tank
registration placard for the non -upgraded tank or tanks to the Department no later than the
date the UST Systems was required to be upgraded or permanently closed.
12. Respondent agrees to pay the Department stipulated penalties in the amount of
$100.00 per day for each and every day Respondent fails to timely comply with any of the
requirements of paragraphs 9 and 11 of this Order. The Department may demand stipulated
penalties at any time after violations occur. Respondent shall pay stipulated penalties owed
within 30 days of the Department's issuance of written demand for payment, and shall make
payment of such penalties as directed in paragraph 13 below. Nothing in this paragraph shall
prevent the Department from filing suit to specifically enforce any terms of this Order.
13. Except as otherwise provided, all submittals required by this Order shall be sent
to William Burns, Bureau of Petroleum Storage Systems, 2600 Blair Stone Road, MS 4525,
Tallahassee, Florida 32399-2400, bill.burns@dep.state.fl.us.
14. Respondent shall allow all authorized representatives of the Department access
to the Facility at reasonable times for the purpose of determining compliance with the terms of
this Order and the rules and statutes administered by the Department.
15. In the event of a sale or conveyance of the Facility or substitution of operator at
the Facility ' all -of -the requirements of this Order have not een fully satisfied; Respondent
shall, at least 30 days prior to the sale or conveyance of the Facility or substitution of operator
at the Facility, (a) notify the Department of such sale, conveyance, or substitution, (b) provide
the name and address of the purchaser or new operator of the Facility, and (c) provide a copy
of this Order with all attachments to the purchaser or new operator of the Facility. The sale or
conveyance of the Facility or substitution of operator at the Facility does not relieve
Respondent of the obligations imposed in this Order.
DEP vs. City of Miami, Public Works Department
Consent Order, OGC No. 10-1990
Page 4
16. If any event, including administrative or judicial challenges by third parties
unrelated to Respondent, occurs which causes delay or the reasonable likelihood of delay in
complying with the requirements of this Order, Respondent shall have the burden of proving
the delay was or will be caused by circumstances beyond the reasonable control of Respondent
and could not have been or cannot be overcome by Respondent's due diligence. Neither
economic circumstances nor the failure of a contractor, subcontractor, materialman, or other
agent (collectively referred to as "contractor") to whom responsibility for performance is
delegated to meet contractually imposed deadlines shall be considered circumstances beyond
the control of Respondent (unless the cause of the contractor's late performance was also
beyond the contractor's control). Upon occurrence of an event causing delay, or upon
becoming aware of a potential for delay, Respondent shall notify the Department by the next
working day and shall, within seven calendar days notify the Department in writing of (a) the
anticipated length and cause of the delay, (b) the measures taken or to be taken to prevent or
minimize the delay, and (c) the timetable by which Respondent intends to implement these
measures. If the parties can agree that the delay or anticipated delay has been or will be
caused by circumstances beyond the reasonable control of Respondent, the time for
performance hereunder shall be extended. The agreement to extend compliance must identify
the provision or provisions extended, the new compliance date or dates, and the additional
measures Respondent must take to avoid or minimize the delay, if any. Failure of Respondent
to comply with the notice requirements of this paragraph in a timely manner constitutes a
waiver of Respondent's right to request an extension of time for compliance for those
circumstances.
17. The Department, for and in consideration of the complete and timely
performance by Respondent of all the obligations agreed to in this Order, hereby conditionally
waives its right to seek judicial imposition of damages or civil penalties for alleged violations
up to the date of the filing of this Order. This waiver is conditioned upon Respondent's
complete compliance with all of the terms of this Order.
DEP vs. City of Miami, Public Works Department
Consent Order, OGC No. 10-1990
Page 5
18. This Order is a settlement of the Department's civil and administrative authority
arising under Florida law to resolve the matters addressed herein. This Order is not a
settlement of any criminal liabilities which may arise under Florida law, nor is it a settlement
of any violation which may be prosecuted criminally or civilly under federal law. Entry of this
Order u oes not relieve Respondent of the need to comply with applicable federal, state, or
local laws, rules, or ordinances.
19. The Department hereby expressly reserves the right to initiate appropriate legal
action to address any violations of statutes or rules administered by the Department that are
not specifically resolved by this Order.
20. Respondent is fully aware that a violation of the terms of this Order may subject
Respondent to judicial imposition of damages, civil penalties up to $10,000.00 per day per
violation, and criminal penalties.
21. Respondent acknowledges and waives its right to an administrative hearing
pursuant to Sections 120.569 and 120.57, F.S., on the terms of this Order. Respondent also
acknowledges and waives its right to appeal the terms of this Order pursuant to Section
120.68, F.S.
22. No modifications of the terms of this Order will be effective until reduced to
writing, executed by both Respondent and the Department, and filed with the clerk of the
Department.
23. The terms and conditions set forth in this Order may be enforced in a court of
competent jurisdiction pursuant to Sections 120.69 and 403.121, F.S. Failure to comply with the
terms of this Order constitutes a violation of Section 403.161(1)(b), F.S.
24. This Order is a final order of the Department pursuant to Section 120.52(7), F.S.,
and it is final and effective on the date filed with the Clerk of the Department unless a Petition
for Administrative Hearing is filed in accordance with Chapter 120, F.S. Upon the timely filing
of a petition, this Order will not be effective until further order of the Department.
25. Persons who are not parties to this Order, but whose substantial interests are
affected by it, have a right to petition for an administrative hearing under Sections 120.569 and
DEP vs. City of Miami, Public Works Department
Consent Order, OCC No. 10-1990
Page 6
120.57, F.S. Because the administrative hearing process is designed to formulate final agency
action, the filing of a petition concerning this Order means that the Department's final action
may be different from the position it has taken in the Order.
The petition for administrative hearing must contain all of the following information:
a) The GGC Number assigned to this Order;
b) The na-m2, address, and telephone number of each petitioner; the name,
address, and telephone number of the petitioner's representative, if any,
which shall be the address for service purposes during the course of the
proceeding;
c) An explanation of how the petitioner's substantial interests will be
affected by the Order;
d) A statement of when and how the petitioner received notice of the Order;
e) Either a statement of all material facts disputed by the petitioner or a
statement that the petitioner does not dispute any material facts;
f) A statement of the specific facts the petitioner contends warrant reversal
or modification of the Order;
g) A statement of the rules or statutes the petitioner contends require
reversal or modification of the Order; and
-- -- ---- - h) - ---A statement of the relief sought by the petitioner, stating precisely -the
action petitioner wishes the Department to take with respect to the Order.
The petition must be filed (received) at the Department's Office of General Counsel,
3900 Commonwealth Boulevard, MS# 35, Tallahassee, Florida 32399-3000 within 21 days of
receipt of this notice. Failure to file a petition within the 21 -day period constitutes a persons
waiver of the right to request an administrative hearing and to participate as a party to this
proceeding under Sections 120.569 and 120.57, F.S. Before the deadline for filing a petition, a
person whose substantial interests are affected by this Order may choose to pursue mediation
DEP vs. City of Miami, Public Works Department
Consent Order, OGC No. 10-1990
Page 7
as an alternative remedy under Section 120.573, F.S. Choosing mediation will not adversely
affect such person's right to request an administrative hearing if mediation does not result in a
settlement. Additional information about mediation is provided in Section 120.573, F.S. and
Rule 62-110.106(12), F.A.C.
26. Rules referenced in this Order are available at
http:/ /www.dep.state.fl.us/legal/Rules/rulelistnurn.htm.
FOR THE RESPONDENT:
City of Miami, Public Works Department
By: Date:
Printed Name: Carlos A. Migoya
Title: City Manager, City of Miami
Attest:
Priscilla A. Thompson, CMC, City Clerk
Approved as to Legal Form:
Julie O. Bru, City Attorney
The Consent Order is subject to the prior review and
approval of the Miami City Commission
DEP vs. City of Miami, Public Works Department
Consent Order, OGC No. 10-1990
Page 8
DONE AND ORDERED this day of , 2010, in Leon County, Florida.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
Mary Jean Yon
Director, Division of Waste Management
Filed, on this date, pursuant to section 120.52, F.S., with the designated Department Clerk,
receipt of which is hereby acknowledged.
Clerk Date
Copies furnished to:
Lea Crandall, Agency Clerk
Mail Station 35