STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, )
DEPARTMENT OF NATURAL RESOURCES, )
)
Petitioner, )
)
vs. ) CASE NO. 88-2479
)
FERNPASSAT SHIPPING LTD., )
)
Respondent. )
)
RECOMMENDED ORDER
Notice was provided and on November 28 and 29, 1989 and concluding on March 21, 1990 a formal hearing was held in this case. The hearing location was Jacksonville, Florida. Authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.
APPEARANCES
For Petitioner: Kenneth J. Plante, Esquire
General Counsel
and
Lynn M. Finnegan, Attorney-at-law Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard
Tallahassee, Florida 32399
For Respondent: Robert B. Parrish, Esquire
James F. Moseley, Jr., Esquire Taylor, Moseley & Joyner
501 West Bay Street Jacksonville, Florida 32202
STATEMENT OF ISSUES
By this action Petitioner seeks to recover costs, expenses and damages associated with state response to an oil spill incident occurring February 26, 1987, within three miles of the Florida shoreline. Respondent's vessel was responsible for that spill. In particular the costs, expenses and damages claimed are related to salaries, per diem allowances, Federal Express charges, beach sand replacement, equipment, use of a cellular phone, and consulting work at the shore and off site. Petitioner also seeks damages for bird mortality resulting from the spill. See Chapter 376, Florida Statutes, and Chapter 16N- 16, Florida Administrative Code.
PRELIMINARY STATEMENT
To support its case Petitioner presented testimony form Richard Leo Healy, Director of Marine Patrol Support Services with Petitioner's agency; Mark Damian Duda, biologist for the Florida Game and Fresh Water Fish Commission; Jean Benchinol, zoo curator; Brian Milsap, Supervisor of Nongame Wildlife with the Florida Game and Fresh Water Commission and Cindy Mosling, licensed bird rehabilitator. Petitioner's seventeen (17) exhibits were admitted.
Respondent presented testimony from William A. Baxter, attorney for the Army Corps of Engineers, and Captain Matthew Woods, U.S. Coast Guard, Retired. Respondent's exhibits 1-14, 16 and 17 were admitted at hearing. Ruling was reserved on its exhibit 15. Upon consideration of the argument and having examined the exhibit, it is admitted.
All testimony in the transcript, together with the exhibits, has been examined in preparing the recommended order. The last installment of the transcript was filed on April 12, 1990. More than the normal ten days allowed for filing proposed recommended orders was requested. Proposed recommended orders were filed by the parties on May 29, 1990. Consequently, the parties waived the time requirements for entering the recommended order contemplated by Rule 28-5.042, Florida Administrative Code. See Rule 22I-6.031, Florida Administrative Code. The proposed recommended orders have been reviewed to include the suggested fact finding which is commented on in an Appendix 1 to this recommended order.
FINDINGS OF FACT
On the evening of February 26, 1987, the motor vessel Fernpassat struck the south jetty at the entrance to the St. Johns River at a location within three miles of the Florida shoreline. In doing so it ruptured the hull and spilled a substantial amount of heavy fuel oil. The type of the oil was No. 5 or 6 Bunker C. A preliminary estimate placed the amount of oil in excess of 100,000 gallons. While the true amount may have been somewhat less, it was a significant spill in that it substantially threatened the public's welfare and the environment and generated wide public interest.
Petitioner's exhibit 3 is a map which depicts the basic location where the vessel collided with the jetty with an "X" mark.
The area impacted by the discharge ran from roughly Atlantic Beach, Florida, to Guana State Park in St. Augustine, Florida. This is approximately
25 miles of beach front.
Beach property over which Petitioner has regulatory and proprietary responsibility had oil deposited upon it.
The oil spill killed or injured a number of birds.
The event was responded to by the "Federal Region IV Regional Response Team" (RRT). The federal on-scene coordinator (OSC) was Captain Matthew Woods,
U.S. Coast Guard.
The RRT, through management and control provided by the OSC, took necessary steps to combat the effects of the spill. Respondent immediately accepted responsibility for the cleanup through the use of a consultant and
cleanup contractor. Under this arrangement the OSC monitored the contractor's cleanup efforts to make certain that the job was done satisfactorily.
Florida officials were part of the RRT. Rule 16N-16.009(21), Florida Administrative Code, calls for personnel from Petitioner; the State of Florida, Department of Environmental Regulation (DER); and the State of Florida, Department of Community Affairs (DCA) to represent state interests as members of the RRT. Each of these agencies participated as members of the RRT. This furthered the legislative intent expressed at Section 376.021(6), Florida Statutes, to support the RRT through implementation of the "Federal Water Pollution Control Act," which is also known as the "Clean Water Act," 33 U.S.C. ss. 1251-1376. By its efforts the RRT promoted the removal of the oil in accordance with a national contingency plan.
Pursuant to Section 376.021(6), Florida Statutes, the state is expected to complement applicable provisions within the "Federal Water Pollution Control Act" as well as render the support previously described. Both the support and complementary functions of the state are part of Florida's "Pollutant Spill and Prevention Control Act," Sections 376.011-376.17, 376.19-376.21, Florida Statutes. Chapters 16N-16, Florida Administrative Code, more completely identifies the role played by the state agencies in this instance. This chapter was adopted pursuant to authority set out in Section 376.07, Florida Statutes, which, among other things, empowered Petitioner to make rules which developed and implemented criteria and plans to respond to spills such as the one at issue.
In its complementary role the state has established a "State Response Team" (SRT). This organization in defined at Rule 16N-16.009(13), Florida Administrative Code. It is constituted of predesignated state agencies available continually to respond to a major spill. This incident was a major spill or discharge as defined in Rule 16N-16.009(18), Florida Administrative Code. The predesignated state agencies, pursuant to the rule defining the SRT and Section 376.07(2)(e), Florida Statutes, act independently of the federal authorities, although they are expected to cooperate with the federal authorities in the efforts at cleanup. What that meant here is that notwithstanding the concerns which Captain Woods had and the state participation in the RRT through Petitioner, DER and DCA, there was a parallel function by the SRT which had its own mandate. This allowed the SRT to pursue an independent agenda in the spirit of cooperation with the OSC in an attempt to protect the resources over which the state has jurisdiction, including the beach front and birds. Both Captain Woods and the consultant to the spiller, James L. O'Brien, who is a man of considerable credentials in giving advice about oil spill problems, expressed their understanding of the interests which the state might have in carrying out its functions and did not find that reality a hindrance in performing their duties. As a result, even though state employees and equipment and consultants to the state had limited utility for the OSC and the consultant to the spiller in carrying out their duties, it does not follow that claims by the state for reimbursement in categories set out in the statement of issues must fail unless found to support the OSC or spiller's choice in attempts at cleanup. The question is whether the costs, expenses and damages are reasonably related to support for the RRT or complementary of that function through the SRT and owed or expended from the Florida Coastal Protection Trust Fund (Fund) for recoverable items. See Section 376.11, Florida Statutes.
Petitioner's exhibit 15 is a copy of the state contingency plan. See Section 376.07(2)(e), Florida Statutes. It identifies the membership of Petitioner, DER and DCA. Other claimants for costs, expenses, and damages who
were involved in the response to this incident as predesignated agencies are the Florida Game and Fresh Water Fish Commission (Commission), the State of Florida, Department of Transportation (DOT), and the Attorney General.
The state contingency plan explains the operational responsibilities of state agencies when responding to the incident. This is a more specific reference to those responsibilities as envisioned by the general guidelines announced in the "Pollution Spill Prevention and Control Act."
Having considered the testimony and exhibits in the context of the state support and complementary role in responding to the spill contemplated by the aforementioned laws, regulations and contingency plans, the costs, expenses and damages sought by the Petitioner are reasonably related to those purposes. Those costs, expenses and damages are detailed in Petitioner's exhibit 16 and summarized in Petitioner's exhibits 8 and 9.
With the exception of $15,654.37 in costs and expenses for Petitioner's Executive Office and Division of Law Enforcement and $3,336.16 for salaries for the Commission, DOT and DCA, all claims for expenses and costs have been paid from the Fund. Petitioner wishes to impose the costs, expenses and damages in the state response whether or not claims were disbursed from the Fund.
The damage claim associated with future beach re-nourishment by replacement of sand that had been befouled by oil and needed to be removed is a reasonable claim in the amount of $10,222.50. It has been paid from the Fund and is held in the Erosion Control Trust Fund until needed. The on-scene consulting fee of $3,525.00 and the oil spill assessment study fee of $9,880.00 commissioned by Petitioner through Jacksonville University are reasonably related to the Department's role in response to the spill.
As Petitioner's exhibit 8 depicts, $30,312.53 has been disbursed from the Fund in costs, expenses and damages reasonably related to the response to the spill. There remains unpaid from the Fund the aforementioned costs and expenses in the amount of $18,990.53 which are reasonably related to the response to the spill. Those latter amounts, although presented for payment from the Fund by the agencies in question, were not paid, based upon some fiscal anomaly. By inference, it does not appear from this record that the Fund owes the agencies for these claims.
According to Section 376.13, Florida Statutes, on February 27, 1987, Governor Martinez declared a state of emergency in response to the oil spill. That proclamation was withdrawn on March 25, 1987. The activities for which claims for costs and expenses are advanced transpired in the time frame of the state of emergency declaration.
The amount which Respondent has expended in the cleanup effort is
$700,000 plus or minus $200,000. None of this money has been paid to satisfy claims for costs, expenses and damages previously described.
While it has been found that costs, expenses, and damages are reasonably related to the state's purposes in responding to the spill, not all items are recoverable. They are only recoverable if recognized for recovery by Chapter 376, Florida Statutes, and Chapter 16N-16, Florida Administrative Code, and owed or expended from the Fund. Petitioner's claims in its exhibit 8 in the amount of $12,901.30 and DOT claims for $675.19 in that exhibit qualify for recovery as well as the on-scene consulting fee of $3,525.00. Other claims do
not qualify with the exception of a limited recovery for bird mortality. Reasons for this fact finding are set forth in the conclusions of law.
Petitioner has disbursed $176,058.00 to the Commission for damages related to alleged bird mortality. This money was disbursed from the Fund. Petitioner now concedes that the amount should be reduced by half. This recognizes that the cost estimate for damages dealt with pairs of birds not single birds. Petitioner now asks for $88,075.00.
Two hundred fourteen (214) birds are said to have died as a result of the spill, according to Petitioner. Petitioner seeks damages for each of these birds. The number proven to have been killed by the event and the theory upon which the damage claim is predicated leads to a result which diminishes the claim for reasons to be explained.
As with other claims, Section 376.021.(4)(c), Florida Statutes, anticipates the payment of damages from the Fund. Section 376.11(1), Florida Statutes, is in aid of recovery of damages, as is Section 376.11(4)(d), Florida Statutes. However, these claims must be susceptible to proof that readily identifies and explains valuation methods of the birds and recognizes the predicate of establishing the actual number lost in this episode. For the most part, Petitioner has failed in the endeavor.
Mark Damian Duda is a wildlife biologist with the Commission. He earned a bachelor of science degree from West Virginia University and received his master's degree in natural resource policy and planning from Yale University, both with honors. He was assigned the task of trying to arrive at an acceptable method for valuing birds that had been killed. His assessment is generally set forth in a report, a copy of which is Respondent's exhibit 3. Having considered a number of options, he reached the decision to employ what he describes as the replacement value method. Quoting from his report concerning this method, he has this to say:
Replacement Value Method
We believe the replacement value method is the most useful and logical method to determine the value of wildlife lost in the February 27 Jacksonville oil spill.
A replacement cost approach can avoid many of the problems involved in attempting to estimate the use of value of biological resources. Under the replacement cost approach, the resource is valued at what it would cost to replace it. If the resource is replaced, the problems of identifying all its uses, the monetary value of
these uses, and the users affected by the resource loss are eliminated, except for the period between the initial loss and the replacement.
Four Florida institutions were asked to estimate the cost of obtaining specimens of
the birds killed in the Jacksonville oil spill, or the price at which they would be willing to sell members of each species. Their estimates are shown in Table 4.
One problem with most of these estimates is that they are not true replacements costs; but rather the cost of collecting already existing specimens
from the wild and redistributing them to the Jacksonville Area. This does not represent true replacement, since true replacement requires a complete recovery of the species population.
This can be most clearly assured by using only captive breeding programs for replacement.
However, many of the species in this list probably cannot be bred in captivity. Therefore, true replacement of these species through captive breeding is probably impossible. It is absurd to value them at zero since they cannot be replaced.
Therefore, this section presents some calculations on the assumption that they could be redistributed or replaced.
Table 1 presents the replacement costs for the birds. The numbers were derived by multiplying the number of dead birds times the average replacement costs given in Table 4. Using this approach, the total replacement costs for the birds estimated to have been killed in the Jacksonville oil spill is $176,058.00. It should be noted that we use a deliberately conservative approach, using body counts only, and thereby underestimating the total mortality. There is an increasing amount of scientific literature indicating that actual body counts appear to significantly underestimate the total mortality resulting from a spill. For example, there have been a variety of experiments that show only 5 percent to 25 percent of the birds that die at sea, wash in or beach themselves on shore.
The percent of loons found is probably even lower because of their low buoyancy and wide-ranging distribution.
An alternative approach to estimating replacement costs is to estimate the cost of creating new habitat or enhancing existing habitat to
support enough nesting pairs of each species to replenish the population. Again, to represent true replacement costs, this should be new or enhances habitat, not just the cost of acquiring already existing habitat.
Tables 1 and 4 within Respondent's exhibit 3 are replicated here for convenience as Appendix 2 and Appendix 3, respectively.
The numbers of birds shown in Duda's table are not numbers about which he has direct knowledge. They are numbers purportedly obtained from Tim O'Meara and Peter Southall, biologists who work for the Commission who got their information from the Central Region and Northeast Region, respectively. In particular, they allegedly received their information from rehabilitators working in the two regions. Neither biologist testified at hearing, and the exhibits do not satisfactorily establish what involvement the biologists had in a direct inventory of birds, if any, or the other sources of their information which was then given to Duda in preparing his report. The rehabilitators in the Central Region did not testify nor were any exhibits presented which spoke to
records kept by those individuals that set out bird deaths in that area. The only person who presented any reliable information concerning bird mortality was Cindy Mosling, rehabilitator in the Northeast Region. Any records which she maintained were not produced at hearing. Nonetheless, she did remember some details concerning bird mortality, and from this testimony 56 common loons, 3 gannets, 1 black skimmer and 2 hooded mergansers are found to have died as a result of the oil spill.
The replacement value method by Duda speaks to the fact that his method does not constitute a complete recovery of the species population. Instead, what is shown in Respondent's exhibit 3 is averaging of estimates from Table 4 on costs for collecting existing specimens from the wild and releasing them back to the Jacksonville area after a period as opposed to a captive breeding program. That explanation is not correct, either, because there is no intention to release birds to the wild after raising them or rehabilitating them in captivity in one of the Florida institutions mentioned in Table 4. Moreover, only one of those programs has been relied upon by Petitioner in arriving at a cost estimate. That program is Sea World. As a consequence, the cost analysis in Table 1 related to hooded mergansers is incorrect in that it reflects an average of $150 and not the $200 quoted by Sea world. Again, the prices reflect pairs and not single birds.
Robin Friday is the curator from Sea World who supplied cost estimates for pairs in Table 4 to Respondent's exhibit 3. He arrived at his price estimates in a 15 to 20 minute telephone conversation with Duda. To the extent he had no actual experience with price lists reflecting cost of a specie, he assumed that theoretical permits would be issued to collect live birds or eggs in the wild and that he would keep them in a captive environment, hoping they would breed while in captivity. In the latter category, the costs to promote the outcome of breeding in captivity formed his estimate. It can be seen that this departs from Duda's method for valuation. Notwithstanding this fact, Duda relied upon the price quotation by Friday.
The main species of birds which Friday has had experience with are waterfowl. Of the species which have been verified as lost in this incident, he had had experience with common loons and hooded mergansers. The hooded merganser is a waterfowl with which he has close experience in breeding, acquisition and disposition. The common loon is a shore bird. In his career he has worked to rehabilitate two or three of those birds. He has had no experience with gannets and black skimmers, which are shore birds.
As Friday identified, waterfowl may be sold, shore birds may not. Sale of the shore birds is prohibited by law. His price quotes for the hooded mergansers are from actual experience in sales. His quotations on the other species are matters of conjecture in collecting, housing, feeding and establishing a breeding program for them based upon limited experience in rehabilitating common loons and no experience with gannets and the black skimmer.
The price estimate on the hooded merganser of $100 per bird is accepted. The price estimates for common loons, gannets and black skimmers are not. They are too speculative.
Jean Benchinol is a curator in Gulf Breeze, Florida, who works for Animal Park, Inc. She testified at hearing. She was presented as a witness who could corroborate the Friday opinion on bird valuation. Her cost estimates may be found as Petitioner's exhibit 14, quotes for single birds.
She has had direct involvement with hooded mergansers. She has sold those birds and quoted the price at hearing as being $100. This coincides with the price per bird quoted by Friday.
For other birds in her price estimates that cannot be bought and sold and that remain at issue here, that is, common loons, gannets and the black skimmer, she categorized them as capable of surviving in captivity or not. The black skimmers can live in captivity and the common loon and gannet cannot, according to the witness. She had had a common loon in captivity before and noted that it did not do well, being more receptive to northern climes. At hearing her opinion about birds that could not survive in the Florida environment was rejected. In this final analysis, that refers to the common loons and gannets. Likewise, having considered her explanation concerning her valuation for the black skimmer, that opinion is rejected. In rejecting this method, the cross examination at hearing concerning valuation for the royal tern was significant in that it pointed out the inexact and unreliable nature of the method. This method contemplated receiving a live bird in her facility and the costs for medication, housing, feeding and staff time for approximately 60 days.
In summary, on the subject of bird mortality, there is no inherent prohibition against valuation; birds do have a value that can be measured in monetary terms. Here the effort to arrive at that understanding fails in the inventory of casualties and method of valuation, with a limited exception.
It is also observed that the Respondent had paid the rehabilitators to house, feed and nurse birds back to health that were injured, a similar activity to the theoretical exercise envisioned by Duda, Friday and Benchinol.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties pursuant to Section 120.57(1), Florida Statutes.
In enacting the "Pollutant Spill Prevention and Control Act," Sections 376.011-376.17, 376.19-376.21, Florida Statutes, the legislature stated that the use of the sea coast as a public and private recreational area was the highest and best use. Section 376.021(1), Florida Statutes. It conferred upon Petitioner the exercise of the police power to include the establishment of the Fund for inspection and supervision associated with the prompt containment and removal of discharges and to guarantee a prompt payment of reasonable damage claims that result from a spill incident. Section 376.021(4), Florida Statutes.
This law makes it incumbent upon Petitioner to pursue the collection of the costs, expenses and damages related to oil discharges into waters over which the state has jurisdiction by persons to include corporations. The discharge by the Fernpassat, such person, occurred in an area over which the state has jurisdiction. Section 376.041, Florida Statutes. The statute allows Petitioner to recoup monies which are owed or have been expended from the Fund by pursuing Respondent for those costs, expenses and damages. To collect from the Respondent for purposes of reimbursing the Fund for the costs and expenses paid to claimants, it must be shown that those items were reasonably related to the responsibilities of the various state agencies that responded to the spill incident and by category be subject to recovery. For the Fund to be used for reimbursement, damages must be shown to be the proximate result of the spill incident. The claim for damages related to bird mortality must be susceptible
to reliable methods of proof in describing the value of a bird lost in the spill incident.
Concerning damage claims, as opposed to claims for costs or expenses, Petitioner had disbursed money from the Fund before affording Respondent the right to be heard in an administrative hearing as envisioned by Section 376.12(2)(b), Florida Statutes. Under the circumstances, the choice to prematurely disburse money for damages is perceived as intended agency action not binding on the parties and any other claimant for damages. The effect of this holding is to treat the matter as if the decision to pay damages from the Fund is being resolved through this hearing. Thus, the action is not one of subrogation under Section 376.12(2)(d), Florida Statutes, because the hearing served to afford due process on the question of whether the Fund should pay damages as a matter of first instance. Subrogation is to be brought in court, not in the administrative forum. Moreover, Petitioner is not entitled to the statutory presumption related to the amount of damages disbursed unless it prevails here.
On a related topic, it is unclear whether Petitioner's costs and expenses subject to payment from the Fund pursuant to Rule 16N-16.0145, Florida Administrative Code, are paid and then sought to be reclaimed from Respondent or whether Respondent is notified of its right to contest Petitioner's claims before payment. Whatever the intention of the rule, the rationale set forth in the prior paragraph is applied to this subject. In essence, a decision is reached through the hearing concerning the legitimacy of Petitioner's claims and the concomitant obligation by Respondent to pay the Fund for monies the Fund disbursed to Petitioner.
Costs attachable to other state agencies and allegedly recoverable from the Fund for removal, cleanup, containment or abatement of the spill are not described with the same clarity when identifying the forum to resolve the dispute. On balance, these claims are seen to be the proper subject for resolution by administrative hearing.
Under the authority set forth in Section 376.021(6), Florida Statutes, the legislature declared its intention that the "Pollutant Spill Prevention and Control Act" be designed to support and complement applicable provisions that are set out in the Federal Water Pollution Control Act and in particular those provisions relating to the national contingency plan which is designed to remove pollutants. In this connection the Petitioner was granted certain regulatory authority which allowed it to adopt, amend, repeal and enforce rules related to discharge of pollutants into state waters and onto the coast of the state. That authority is identified in Section 376.07, Florida Statutes. At Section 376.07(2)(e), Florida Statutes, it states:
(2) The department shall adopt regulations including, but not limited to, the following matters:
* * *
(e) Creation by contract or administrative action of a state response team which shall be responsible for creating and maintaining a contingency plan of response, organization, and equipment for handling emergency cleanup operations. The state plans shall include detailed emergency operating procedures for the state as a whole and the team shall from
time to time conduct practice alerts. These plans shall be filed with the Governor and all Coast Guard stations in the state and Coast Guard captains of the port having responsibility for enforcement of federal pollution laws within the state, on or before January 1, 1975. The contingency plan shall include all necessary information for the total containment and cleanup of pollution, including but not limited to an inventory of equipment and its location, a table or organization with the names, addresses, and telephone numbers of all persons responsible for implementing every phase of the plan, a
list of available sources of supplies necessary for cleanup, and a designation of priority zones to determine the sequence and methods
of cleanup. The state response team shall act independently of agencies of the Federal Government but is directed to cooperate with any federal cleanup operation.
From this reference, the state is empowered to establish its own contingency response to a spill incident and may act independently of agencies of federal government, in the spirit of cooperation with the federal cleanup efforts. Rule 16N-16.009(13), Florida Administrative Code, also describes the fact that the SRT acts independently of the RRT. In the present case, Petitioner has met the threshold requirement to show that costs and expenses which have been identified in the fact finding were reasonably related to support of the federal cleanup effort or complementary of that effort in the state's independent action in responding to the event, but not necessarily recoverable. By its actions the state was putting into effect the terms of its contingency plan as well as acting as a member of the RRT. In their activities the various agencies in the person of their employees were responding within the period recognized by Governor Martinez and his declaration of emergency under authority set forth in Section 376.13, Florida Statutes.
The incident in question was a major discharge within the meaning of Rule 16N-16.009(18), Florida Administrative Code.
Rule 16N-16.003(3), Florida Administrative Code, describes the response to a major discharge. The degree of response which had been set out in the facts approximates that description.
Under the terms set forth in Rule 16N-16.003(3)(f)2., Florida Administrative Code, Petitioner and other state agencies are allowed to request reimbursement for extensive manpower or material used in response to a major discharge, commensurate with other statutory and rules provisions.
Further, support for the involvement of other state agencies in the response to the spill is set out in Section 376.051(1), Florida Statutes, which allows Petitioner in the exercise of the police powers to call upon DER and other state agencies for consultative services and technical advice.
On this occasion, where the state is protecting the public interest, Section 376.051(4), Florida Statutes, requires the Petitioner to keep accurate records of the costs and expenses incurred and to diligently pursue recovery of
those sums from Respondent. To this end, the administrative forum is limited to disputes related to use of the Fund to meet claims. If claims that do not look to the Fund for disposition may be advanced, that may not transpire as part of the litigation. Petitioner has only those powers conferred by the statute.
This does not include attempts to recover money unrelated to the Fund. See, Swebillius v. Florida Construction Industry Licensing Bd., 365 So.2d 1069 (1978).
Petitioner has kept accurate records of costs and expenses that can be recovered in this action.
Section 376.09(6), Florida Statutes, allows for the reimbursement of costs of the containment and removal of the oil that was spilled. This is read to include the assistance provided by state agencies in containment and removal of the oil. See also Rule 16N-16.014(3), Florida Administrative Code.
Section 376.11, Florida Statutes, describes the Florida Coastal Protection Trust Fund. At Section 376.11(1), Florida Statutes, the purpose of that Fund is stated as:
The purpose of this section is to
provide a mechanism to have financial resources immediately available for prevention of, and cleanup and rehabilitation after, a pollutant discharge, to prevent further damage by the pollutant, and to pay for damages. It is the legislative intent that this section be liberally construed to effect the purposes
set forth, such interpretation being especially imperative in light of the danger to the environment and resources.
Disbursement of monies from the Fund for purposes of costs, expenses and damages is as envisioned by Section 376.11(4), Florida Statutes. In pertinent part, it states:
Moneys in the Florida Coastal Protection Trust Fund shall be disbursed for the following purposes and no others:
Administrative expenses, personnel expenses, and equipment costs of the department related to the enforcement of ss. 376.011-376.21 subject to s. 376.185.
All costs involved in the prevention and abatement of pollution related to the discharge of pollutants covered by ss. 376.011-376.21 and the abatement of other
potential pollution hazards as authorized herein.
All costs and expenses of the cleanup and rehabilitation of waterfowl, wildlife, and all other natural resources damaged by the discharge of pollutants, whether performed or authorized by the department or any other state or local agency.
All provable costs and damages which are the proximate results of the discharge of pollutants covered by ss. 376.011-376.21.
* * *
Pursuant to Section 376.11(6), Florida Statutes, Petitioner shall recover to the use of the Fund the amount Respondent owes, based upon recoverable claims. By reference to Section 376.12(3), Florida Statutes, within Section 376.11(b), Florida Statutes, recognition is made of the proposition that the costs and expenses to be recoverable must relate to cleanup and abatement and damages must be due to the discharge. Petitioner need only prove, as it has, that the prohibited discharge occurred to establish right to recovery, in accordance with Section 376.12(3), Florida Statutes.
Petitioner, for its direct efforts, may seek reimbursement from the Fund. This is pursuant to Rule 16N-16.0145(1), Florida Administrative Code, which details the type of costs and expenses that may be sought by Petitioner for its activities, as opposed to those of other agencies, as:
Time spent by department employees in investigation of spills and the identification of the spiller.
Time spent by department employees in containment, cleanup or abatement operations.
Cost of equipment rental, chemicals, and other direct costs of containment, cleanup, abatement and removal operations.
Travel and per diem costs of department employees.
Cost of contract services for assisting the department in containment, cleanup, abatement and removal operations.
Time spent by department employees in investigation of pollutant spill claims resulting from a pollutant discharge.
What has to be decided on the issue of claims by other state agencies is whether costs and damages are those contemplated by Section 376.11(4)(d), Florida Statutes, and the costs of rendering assistance in the containment and removal of pollutants set out in Rule 16N-16.014(3), Florida Administrative Code. Again, this refers to costs and expenses for cleanup, removal, prevention, abatement and damages that are the proximate result of the incident. In deciding the issue of reimbursement for other state agencies, Section 376.051(4)(d), Florida Statutes, must be read together with Section 376.09(6), Florida Statutes, Section 376.11(4) and (6), Florida Statutes, and Rules 16N-
16.014 and 16N-16.0145, Florida Administrative Code.
Costs for cleanup and rehabilitation of the birds was borne by Respondent. Section 376.11(4)(c), Florida Statutes. The claim for bird mortality by the Commission falls under Section 376.11(4)(d), Florida Statutes.
Rule 16N-16.009(5), Florida Administrative Code, defines damages as:
"Damages" mean the documented extent of any destruction to or loss of any real or personal property, or extent of any destruction
of the environment, as the direct result of the discharge of a pollutant.
From the foregoing analysis it has not been shown that the $15,654.37 described in the facts as not being paid from the Fund because of a fiscal anomaly may be recovered. Even though those amounts are by category the type of cost and expense items incurred by the Petitioner which are susceptible to recovery from Respondent where the Fund has been used to satisfy Petitioner's claims in its own behalf, that was not done here. The Fund was not used. Petitioner, having failed to establish a basis in the record for revisiting the possibility of having the Fund honor its claims, the issue is closed.
The same problem which is described for Petitioner in the instance where a $15,654.37 claim was made that was not shown to be owed or expended from the Fund would be involved with the salary claims of the Commission in the amount of $921.93, DOT in the amount of $1,279.70 and DCA in the amount of
$1,134.53, for a total in the aggregate of $3,336.16. In addition, while it is accepted that the costs and expenses attributable to state agencies other than Petitioner may be litigated in the administrative forum, those claims for reimbursement must be associated with containment or removal of the oil, prevention and abatement of that pollution. The claims must be for costs and expenses which are immediately associated with cleanup, containment, removal, abatement and prevention of the discharge.
Using this standard the salary request of the DOT by category would be an item which Petitioner could seek reimbursement from the spiller had it been shown that the Fund was owed or had expended money to respond to the salary claim, which was not shown. The salary claims of the Commission and Department of Community Affairs not paid do not meet muster as types of claims that should have been paid. They were not proven to be associated with removal, cleanup, containment, prevention or abatement of the spill.
Under this test, the claims for reimbursement of Jacksonville University for on-scene consulting services in the amount of $3,525.00 are recoverable. The post-incident oil spill assessment study of $9,880.00 is not. The claims of the Attorney General for travel and per diem of $1,520.20 and salaries in the amount of $795.33, and the DER claim of travel and per diem of
$281.20 and the cellular phone of $36.24 for a total of $317.44 are not recoverable. The travel and per diem of $538.90 by the Commission and overtime salaries of $954.30 are unacceptable. These latter amounts were paid from the Fund. (This describes amounts other than the $15,654.37 attributable to Petitioner and the $3,336.16 for salaries in other state agencies not shown to be owed or expended from the Fund.)
The damage claim advanced by Petitioner for the benefit of the Commission for bird mortality is the proximate result of the discharge as envisioned by Section 376.11(4)(d), Florida Statutes. It has been proven in the amount of $200 related to hooded mergansers. The balance of the $88,075 claim has not been proven.
Contrary to Petitioner's argument, the Duda report, Respondent's exhibit 3, is not a public record within the meaning of Section 90.803(8), Florida Statutes. The report is not one made in the regular course of business or regularly completed and maintained. It was prepared for the specific purpose of supporting Petitioner's claim. From Duda's testimony, the report is not prepared as part of his normal duties. The report does not set forth the activities of his agency and is not related to a duty imposed by law concerning
a matter about which there is a duty to report. University of North Florida v. Unemployment Appeals Commission, 445 So.2d 1062 (Fla. 1st DCA 1984). See also, Desmond v. Medic Ayers Nursing Home, 492 So.2d 427 (Fla. 1st DCA 1986).
Therefore, it was not appropriate to accept the representations in Table 1 to Respondent's exhibit 3 setting out the number of birds allegedly killed and about which Duda had no direct knowledge. This was hearsay upon which a fact could not be found. Section 120.58, Florida Statutes.
The Petitioner is entitled to recover $12,901.39 for monies expended from the Fund for its direct benefit, to include the damages associated with the beach and the need to renourish the beach by future replacement of sand in the amount of $10,222.50.
The DOT equipment costs in the amount of $675.19 disbursed from the Fund is recoverable from the spiller.
In arriving at the conclusions of law due regard has been given to Section 376.21, Florida Statutes, which speaks in terms of liberal construction to affect the purposes of the "Pollutant Spill Prevention and Control Act" and the "Federal Water Pollution Control Act."
Based upon the consideration of the facts and the conclusions of law reached, it is,
RECOMMENDED:
That a Final Order be entered which requires the Respondent to reimburse the Fund in the amount of $17,301.58 and dismisses all other charges against Respondent.
DONE and ENTERED this 26th day of July, 1990, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1990.
APPENDIX 1
The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts
Paragraphs 1 and 2 are subordinate to facts found.
Paragraph 3 is not necessary to the resolution of the dispute. Paragraphs 4 and 5 are subordinate to facts found.
The first two sentences of Paragraph 6 are subordinate to facts found. The last two sentences are not necessary to the resolution of the dispute.
Paragraph 7 is not necessary to the resolution of the dispute. Paragraph 8 is subordinate to facts found.
The first two sentences of Paragraph 9 are subordinate to facts found. While it is agreed that the correspondence from Petitioner to Respondent did not indicate that claims for costs and expenses were only subject to collection if paid from the Florida Coastal Protection Trust Fund, in the administrative forum recoupment of costs, expenses and damages may only be permitted for monies owed or expended from the fund.
Paragraphs 10-13 are subordinate to facts found.
It is acknowledged as set forth in Paragraph 14 that money was transferred from Coastal Protection Trust Fund to the Erosion Control Trust Fund for future beach renourishment. The more relevant fact is whether the claim for damages of value under the renourishment is legitimate and that determination has been made favoring the Petitioner. The concept of using the funds that are being held for purposes of future renourishment is in keeping with a reasonable disposition of the damage claim.
Paragraphs 15-24 are subordinate to facts found.
The first sentence to Paragraph 25 is contrary to facts found. The second sentence is subordinate to facts found. The third sentence is an accurate statement of what Table 1 contributes but the findings in that table are rejected in part.
The first sentence to Paragraph 26 is subordinate to facts found. The second sentence is accepted in the sense of recognizing that a list was maintained; however, that list was not produced at hearing as an aide in determining the number of birds that were killed. The third sentence is rejected. The fourth and fifth sentences are knowledged and those underlying facts were taken into account in accepting the representations by the witness Mosling concerning the number of birds that died as a result of the oil spill which she could recall. Paragraph 27 is subordinate to facts found.
Paragraph 28 is subordinate to facts found.
Paragraph 29 is not necessary to the resolution of the dispute.
The first sentence to Paragraph 30 is subordinate to facts found. The second sentence is not necessary to the resolution of the dispute.
The first sentence to Paragraph 31 is subordinate to facts found. The second sentence is accepted with the exception that certain categories of water fowl are bought and sold in the free market. Concerning the third sentence, while it is acknowledged that curators are the better persons to attempt valuation, they must have sufficient understanding of the varieties on which they are commenting to have their opinions accepted and their methods of analysis of costs must stand scrutiny. This was not achieved in this instance. The last sentence in Paragraph 31 is not accepted in that the replacement value method was not adequately explained and does not allow a ranking of whether it is inexpensive, or cheaper or some where in the middle.
Paragraph 32 is subordinate to facts found.
The first sentence to Paragraph 33 is subordinate to facts found. The second sentence is subordinate to facts found as it references hooded mergansers. The other references are to species which have not been found to have been lost to the spill. The last sentence is accepted in the sense that the remaining species have limitations placed upon their use by state and federal law which prohibits the buying and selling.
Paragraph 34 in its reference to the cost of hooded mergansers is accepted. The balance of the information was not utilized in that the Petitioner failed to demonstrate that other species had been lost to the spill.
In Paragraph 35 of the species that testimony was presented about, only the common loon, gannets and black skimmer pertain. While it is acknowledged that the method that the witness Friday used to estimate the value of those species is an accurate portrayal of his efforts, those efforts were rejected as were those of Ms. Benchinol described in Paragraph 36.
In Paragraph 36 the explanation of her methods is correct. The methods were not accepted either in support of the testimony by Friday or in her own right.
There is no significance to the discussion concerning the brown pelican and inadequate proof was made that the brown pelicans were lost.
Respondent's Facts
The first sentence to Paragraphs 1 is subordinate to facts found. The last two sentences are not necessary to the resolution of the dispute.
As to Paragraph 2, it is acknowledged that Mr. Healey served as the liaison to the RRT and OSC. In the second sentence to that paragraph it is accepted that the state supports the RRT. It also has the function to compliment the RRT and to act independent of the federal response.
The first sentence to Paragraph 3 is subordinate to facts found. The second and third sentences are not necessary to the resolution of the dispute. The fourth and fifth sentences are subordinate to facts found.
While Paragraph 4 accurately describes the circumstance, this did not deter the state from pursuing its independent function in responding to the spill event. Paragraph 5 accurately portrays the OCS's idea of who was necessary to support the federal response. It does not preclude the activities of other state employees in carrying out their functions.
Paragraph 6 is contrary to facts found.
Paragraph 7 is a correct statement but does not preclude the state's efforts in its own right at responding to the spill.
Paragraph 8 is subordinate to facts found.
Paragraph 9 while an accurate portrayal does not preclude the state in its efforts. The same pertains to Paragraph 10.
Paragraph 11 is contrary to facts found. Paragraph 12 is subordinate to facts found.
Paragraph 13 is contrary to facts found as is Paragraph 14. Paragraph 15 is subordinate to facts found.
Paragraph 16 is not relevant.
Paragraph 17 is an accurate portrayal of the federal use of the state helicopter but does not preclude request for reimbursement for uses which the state had of that helicopter.
Paragraph 18 is subordinate to facts found.
The first two sentences within Paragraph 19 are subordinate to facts found. The third and fourth sentences are not relevant to the issue of whether the state was entitled to seek the assistance or Jacksonville University for its own purposes distinct from those of the federal response. The latter sentence is a correct portrayal of the outcome but for reasons different than contemplated by the Respondent.
Paragraph 20 is subordinate to facts found. Paragraph 21 is subordinate to facts found.
Paragraph 22 is subordinate to facts found in its first two sentences. The third sentence is not accepted beyond the fact that the Department of Interior using a nonconsumptive use technique, whether other federal agencies use that method was not subject to determination from the record.
The first three sentences to Paragraph 23 are not necessary to the resolution of the dispute. The fourth sentence is not accepted. The fifth and sixth sentences are subordinate to facts found. As to the seventh sentence, it is not clear that there was the intention of redistributing to the Jacksonville area.
The eighth sentence is subordinate to facts found.
Paragraph 24 is subordinate to facts found as are Paragraphs 25 and 26.
The suggestion of the price for hooded mergansers as set out in Paragraph 27 is not accepted. The lesser scaup was not found to have been lost to the spill.
The state price of $100.00 per bird for hooded mergansers is accepted.
Paragraphs 28-31 are subordinate to facts found as it pertains to the species that were proven to have been lost.
Paragraph 32 is not necessary to the resolution of the dispute.
Paragraphs 33 and 34 are subordinate to facts found, with the exception that it has been determined that the number of dead birds which Ms. Mosling can recall involvement with is accepted.
Paragraphs 35 through 37 are subordinate to facts found in the species determined to have been lost, with the exception that the actual price for hooded mergansers was $100.
COPIES FURNISHED:
Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard
Tallahassee, FL 32399
Kenneth J. Plante, General Counsel
Lynn M. Finnegan, Assistant General Counsel Department of Natural Resources
3900 Commonwealth Boulevard
Tallahassee, FL 32399
Robert B. Parrish, Esquire James F. Moody, Jr., Esquire Taylor, Moseley & Joyner
501 West Bay Street Jacksonville, FL 32202
| Issue Date | Proceedings |
|---|---|
| May 25, 1992 | Final Order filed. |
| Jul. 26, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 24, 1991 | Agency Final Order | |
| Jul. 26, 1990 | Recommended Order | Case involving claim for cost, expense and wildlife valuation for oil spill incident. Department of Natural Resources claimed for cleanup, removal, prevention, abatement. |
