ALJDEC decisions subject to certification as final

11F-12925-DWM · Department of Weights and Measures · 2010-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 6, 2010 APPEARANCES: Assistant Attorney General Mona Baskin on behalf of the Arizona Department of Weights and Measures; Vinay Binjrajka on behalf of Purbahsa, LLC. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ Overview This matter involves an appeal of a $1,600.00 civil penalty that the Arizona Department of Weights and Measures (“Department”) assessed against Purbasha, LLC (“Respondent”) for three violations of law. Respondent did not contest that the violations occurred but argued in mitigation of the civil penalty. The Administrative Law Judge finds that the civil penalty to be reasonable and appropriate under the circumstances and denies the appeal. FINDINGS OF FACT 1. This matter involves an appeal of a Notice of Violation issued by the Arizona Department of Weights and Measures (“Department”) against Respondent. At all times relevant to this matter, Respondent owned and operated a gas station licensed by the Department. 2. Lloyd Austin (“Investigator Austin”), an investigator with the Department, testified that on September 21, 2010, he visited Respondent’s gas station that is located on the corner of Brown Road and Power Road in Mesa, Arizona, to investigate a complaint that was made against Respondent. Investigator Austin testified that the complaint turned out to be unfounded. However, while at the gas station, Investigator Austin noticed that the 91 octane cap to the spill bucket was broken. That is an essential part of the vapor recovery system and is necessary to ensure that vapors and gasoline are not released into the environment. 3. Investigator Austin also testified that he observed that the diesel dry break was broken. The diesel dry break is a containment piece used when a driver is “dropping” fuel that enables the recapture of vapors back in the fueling truck’s tanks. 4. According to Investigator Austin, upon requesting the daily inspection log, he noted that the last entry of an inspection of the vapor recovery system was September 18, 2010. Investigator Austin testified that a licensee has an obligation to make sure that its equipment is working properly and maintain vapors and gasoline so as to ensure no leakage. A daily inspection log provides a checklist for a licensee to ensure that the gas station’s equipment is operating properly and is properly maintained. 5. Inspector Austin further testified that the above-mentioned items noted during the inspection are serious in nature. Investigator Austin opined that an inspection of the vapor recovery system prior to September 21, 2010, would have revealed to the Respondent that the cap to the 91 octane spill bucket was cracked and that the diesel dry break was broken. 6. After the inspection, Investigator Austin “blue-tagged “ the tanks at issue indicating that while they could be used for selling gas, there could be no delivery of fuel made to the tanks until the violations were corrected. 7. On September 27, 2010, the Department issued a Notice of Violation to Respondent, citing violations of A.R.S. §§ 41-2132(D), 41-2113(B)(6), A.A.C. R20-20-2902(D)(13), A.C.C. R20-2-908(A,), and A.A.C. R20-2-909, and assessed a civil penalty against Respondent in the amount of $1,600.00. 8. The Department provided Respondent a copy of the Regulatory Bill of Rights as required by A.R.S. § 41-1009. 9. Respondent appealed the civil penalty and requested an administrative hearing, which resulted in this matter being brought before the Office of Administrative Hearings, an independent state agency. 10. Respondent did not deny that the violations occurred but offered an explanation in mitigation of the penalties to be imposed. Respondent’s managing member, Vinay Binjrakja (“Mr. Binjrakja”) testified that Respondent’s record with the Department over the past several years regarding the vapor recovery system is clean and that Respondent addressed the violations when they became known to it. Respondent presented into evidence documents that established that as of September 19, 2010, it should have been aware of the broken cap on the octane 91 spill bucket, as noted by the driver for Union Distributing, Respondent’s gas distributor, on an “Order” dated September 19, 2010. See Exhibits A and B. 11. According to Mr. Binjrakja, Respondent's manager had some personal issues and fell behind with the daily inspection log but had intended to do it. Mr. Binjrakja asserted that the parts required to fix the above-noted items have to be obtained from Respondent’s distributor and were going to be provided on the next delivery date. Mr. Binjrakja indicated that until Respondent obtained those items, there was no serious threat of harm or danger to the public. 12. Contrary to Mr. Binjrakja’s testimony that the parts were not readily available, Investigator Austin testified that the Respondent could have contacted registered service representatives, who are usually available 24 hours a day, 7 days a week. Investigator Austin further testified that most registered service representatives have such parts on their trucks. Additionally, Investigator Austin testified that permitting the conditions to exist created a risk of harm to the public because a spark could result in a fire or explosion and that any leakage could also result in pollution of the air and soil. APPLICABLE LAW 1. A.R.S. 41-2132(D) provides:

An owner or operator of a gasoline storage tank, gasoline transport vehicle or gasoline dispensing site subject to stage I or stage II vapor collection requirements shall comply with the following: 1. Install all necessary stage I and stage II vapor collection and control systems and make any modifications necessary to comply with the requirements. 2. Provide adequate training and written instructions to the operator of the affected gasoline dispensing site and the gasoline transport vehicle. 3. Replace, repair or modify any worn or ineffective component or design element to ensure the vapor-tight integrity and efficiency of the stage I and stage II vapor collection systems. 4. Connect and ensure proper operation of the stage I and stage II vapor collection systems whenever gasoline is being loaded, unloaded or dispensed. 5. Have the stage II vapor recovery system tested annually by a registered service representative licensed by the department.

2. “A continuing violation may be deemed to be a separate violation each day during which the violation is committed for the purpose of imposing a fine.” A.R.S. § 41-2113(B)(6). 3. A.A.C. R20-2-907(D)(13) provides:

The owner or operator shall immediately stop using a Stage II vapor recovery system or component if one or more of the following system or component defects occur: * * * The Stage I installation is not properly installed or maintained, in that: a. Spill containment buckets are cracked, rusted, the sidewalls are not attached or otherwise improperly installed, or spill containment buckets are not clean and empty of liquid, or there are non-functioning drain valves, or drain valves that do not seal; b. A fill adaptor collar or vapor poppet (drybreak) that is loose or damaged, or with a fill or vapor cap that is not installed, is missing, broken, or without gaskets; c. Coaxial Stage I that is not equipped with a functioning CARB-approved poppeted fill tube, or the coaxial cap is not installed, is missing, broken, or without gaskets; or d. A fill tube is missing, not sealed, has holes, broken or damaged overfill preventors, or if the high point of the bottom opening is more than 6 inches above the tank bottom; …

4. A.A.C. R20-2-908(A) provides: Each operator of a gasoline dispensing site using stage II vapor recovery shall obtain adequate training and written instructions to enable the system to be properly installed, operated and maintained in accordance with the manufacturer's specifications and CARB certification. The operator shall maintain documentation of this training for each operator on-site and documentation to the Department on request.

5. A.A.C. R20-2-909 provides:

A. The owner or operator of a gasoline dispensing site employing stage II vapor recovery shall maintain daily records of the inspections done pursuant to this Article. B. The owner or operator of a gasoline dispensing site employing stage II vapor recovery shall maintain a log and related records of all regularly scheduled maintenance and any repairs that have been made to stage II equipment. C. The owner or operator of a gasoline dispensing site that is exempt from requirements to install and operate stage II vapor recovery equipment, pursuant to A.R.S. § 41-2132(C), shall maintain a log at the site showing monthly throughputs. The owner or operator shall annually submit a copy of these logs representing the previous 12 months throughputs to the Department. If any throughput requirement provided in A.R.S. § 41- 2132(C) and this Article is exceeded for any month, the owner or operator shall notify the Department in writing within 30 days. The owner or operator shall within six months after the end of the month the throughput is exceeded, install and operate a stage II vapor recovery system conforming to this Article. D. An owner or operator shall keep all records required by this Article at the gasoline dispensing site for at least one year and shall make these records available to the Department upon request.

6. Pursuant to A.R.S. § 41-2115, the Director of the Department has discretion to assess a civil penalty against a licensee of the Department up to $1,000.00 for each violation. CONCLUSIONS OF LAW 1. This matter is a disciplinary matter and, as such, the Department must prove by a preponderance of the evidence that Respondent violated the statutes and rules pertaining to service stations, and in particular, gas pumps, as set forth in the Notice of Hearing issued in this matter. See A.R.S. § 41-1092.07(G)(3) and A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). It is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990). 3. The Department presented reliable and credible evidence that proved by a preponderance of the evidence that on September 21, 2010, Respondent had a cracked 91 octane spill bucket cap and a broken dry break in violation of A.R.S. §§ 41-2132(D), 41-2113(B)(6) and A.A.C. R20-20- 2902(D)(13). 4. The Department presented reliable evidence that proved by a preponderance of the evidence that on September 19, 20, and 21, 2010, Respondent did not maintain its daily inspection log, in violation of A.A.C. R20-2-909. However, the Department failed to prove by a preponderance of the evidence that Respondent violated A.A.C. R20-2-908(A). 5. Respondent did not present any evidence that challenged the Department’s finding of the above-mentioned violations. Respondent’s Exhibits A and B showed that it should have been aware of the broken cap on the 91 octane spill bucket by September 19, 2010, and should have had the item immediately fixed. Additionally, there was persuasive evidence that had a daily inspection occurred, the above-mentioned items that were not properly maintained would have been observed and corrected promptly. Consequently, Respondent’s evidence presented in mitigation is not persuasive or as convincing as the evidence presented by the Department. 6. The Department met its burden of proving by a preponderance of the evidence that the civil penalty assessed against Respondent in the amount of $1,600.00 is reasonable and appropriate. ORDER Based on the above, Respondent shall pay a $1,600.00 civil penalty to the Department within forty days of the effective date of the Order entered in this matter. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 5 days from the date of that certification. Done this day, December 22, 2010.

/s/ Lewis D. Kowal Administrative Law Judge

Transmitted electronically to:

Kevin Tyne, Interim Director Arizona Department of Weights and Measures

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826