Tank Regulation Enforcement Defense
in Florida
A Journey into the MATRIX
June 2000
Frank L. Hearne
Mechanik Nuccio Williams & Hearne, P.A.
Frank L. Hearne
Bank of America Plaza Suite 3140
101 East Kennedy Boulevard
Tampa, Florida 33602-5151
Tel. (813) 909-7400
Fax (813) 909 8592
E-mail us at frank@hgn.com
In the recent movies of "The Matrix" trilogy, reality is depicted as an artificial
construct provided by the government to control
the lives of the human race. This paper will
offer some insights into enforcement of above
ground tank ("AST") regulations
by the Florida Department of Environmental
Protection ("DEP") and the programs
in the counties.
Ironically, here too, life is controlled
by "The Matrix".
What is The Matrix?
As described below, when there are violations of tank rules, penalties are derived based upon DEP guidance documents which include a matrix that agency reviewers use to set the amount of the penalty based upon the agency view of the severity of the non compliance and the potential for environmental harm.
What penalties does DEP have the authority to impose?
Under its enabling legislation, DEP can obtain civil penlaties up to $10,000 per violation. The Department has the ability to seek criminal penalties, but this is hardly ever necessary. Ordinarily, the penalty will be imposed by agreement settling the matter in a consent order. The Department can't simply impose penalties on its own authority, but must seek judicial assessment of a penalty if there is no voluntary settlement. If the Department must go to court to collect penalties, the agency will usually seek a much higher figure.
What are the usual penalties if there are violations?
The most recent reports show civil penalties running between $1500 to $20,000 for multiple sites.
How does DEP arrive at these numbers?
As in most environmental programs, civil penalty numbers are assessed based upon a "matrix" found in a guidance document used by the agency reviewer to arrive at figures for each type of violation. Attached are two such matrices of importance in the tank program. Penalty amounts are set based upon two general factors: the severity of the violation (how "out of compliance are you?") and the potential for environmental harm ( "how bad could the result have been?") In the tank program, the "potential for harm" side of the calculation depends upon whether the violation meant that the violator was "Significantly Not in Compliance Type A, "Significantly Not in Compliance Type B or " Minor Out of Compliance." These categories are based upon specific rule violations.
The "severity' side is based upon whether the infraction is resolved or unresolved. Thus, it makes a big difference whether the problem has been fixed or not. In fact, applying "The Matrix" over the range of possibilities could produce a penalty for each infraction ranging form $100 to $10,000. Happily, the county can allow time to correct or resolve non-compliance before referring the case to DEP. However, there may not be adequate time to resolve more difficult issues before the enforcement must move forward. Some tank owners are reporting that contractors are busy with work related to the new requirements and can't be easily scheduled for corrective work. There may also be issues of costs in performing the upgrade.
There are many factors which can also affect the amount of the penalty including the number of days the violation continued, good faith efforts to comply, history of non-compliance, economic benefits of the non-compliance, ability to pay and other factors.
What are the most frequent problems being encountered presently in inspections?
Based on our conversations with regulators, the most common problems are :
1. having unlined concrete secondary containment,
2. not having fill ports inside of containment,
3. not keeping containment drains closed, and
4. peeling paint and corrosion on tank surfaces.
How likely is it that my AST facility will be inspected?
It is very likely that your facility will be inspected in the near future. DEP contracts with the counties require inspections of 90% of the facilities in the County each year between July 1 and June 30 of the following year. Even if the counties fail substantially on these percentages, it is still likely that most facilities will be visited at least once every two years. In addition, inspections are often triggered by disgruntled employees and neighbors. When an inspector comes to a site for another reason, tanks are an easy target for compliance inspection.
Frank L. Hearne