STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NANA'S PETROLEUM, INC., )

)

)

Petitioner, )

)

vs. ) CASE NO. 89-5912

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on January 23, 1990, in Okeechobee, Florida.

APPEARANCES

For Petitioner: John W. Thornton, pro se

315 Southeast 8th Avenue Okeechobee, Florida 33472

For Respondent: E. Gary Early, Esquire

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

Whether Petitioner's site is eligible for state- administered cleanup under Respondent's Early Detection Incentive Program.

PRELIMINARY STATEMENT

Petitioner filed an Early Detection Incentive Notification Application with Respondent, seeking a determination that it is eligible for state-sponsored cleanup of its site which has been contaminated as a result of a discharge from a petroleum storage system, and Respondent denied that application based upon five separate reasons. Petitioner timely requested a formal hearing regarding that denial.

At the commencement of the final hearing in this cause, Respondent withdrew three of the reasons which formed the basis

for its denial of Petitioner's application. Accordingly, evidence was presented regarding only the remaining two reasons for denial.

John William Thornton, the general manager for Nana's Petroleum, Inc., testified on behalf of Petitioner. The Department presented the testimony of Craig A. Ash. Additionally, the Department's Exhibits numbered 1-6 were admitted in evidence.

Only Respondent submitted post-hearing proposed findings of fact. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Nana's Petroleum, Inc., owns and operates a service station at 251 East Main Street, Pahokee, Florida. The facility is located within two or three blocks of Lake Okeechobee, which is a Class I drinking water supply.

   
   

2. On October 19, 1988, Petitioner applied pursuant to

   the Early Detection Incentive Program for state assistance due to a suspected discharge of gasoline at the facility. The application indicated that a monitoring well had approximately one-quarter inch of product in it, but that the source of that contamination, though suspected to be from a leak in a line, was unknown.

   
   

3. As of the date of the final hearing in this cause, Petitioner still had not performed an investigation to determine the source of the contamination.

   
   

4. Failure to investigate the source of a discharge results in the possibility of the discharge continuing. A continual discharge results in the loss of more product from the system, increases the threat to drinking water supplies, and creates other environmental concerns.

   
   

5. A discharge of fuel has the ability to harm people

   or property due to the resulting contamination of groundwater. Once the contamination has reached the groundwater, it can migrate to adjacent surface waters or potable water wells. The failure to stop a discharge, therefore, results in a greater threat to groundwater and to drinking water due to the greater amounts of product in the groundwater.

   
   

6. Inventory is taken by inserting a calibrated pole

   into the storage tank and measuring the level of product in the tank. Due to the angle of the pole, fluctuations in volume due to heating and cooling of the product, and other factors, accuracy is only possible to 1/8 of an inch. One-eighth of an inch equates to 17 gallons in a 10,000-gallon tank.

   
   

7. Inventory is accurate only for determining whether large or medium leaks are occurring and is not accurate for the detection of small leaks.

8. Reviewing inventory records is not an acceptable method of investigating the source of a discharge.

   
   

9. Only in the last few months has Petitioner been making monthly monitoring system checks.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 12Q.57(1), Florida Statutes.

    
    

11. Respondent Department of Environmental Regulation has the responsibility and statutory authority to implement and administer the provisions of the Early Detection Incentive Program. Section 376.3071(9), Florida Statutes. The Early Detection Incentive Program provides for state-sponsored cleanup of sites contaminated as a result of a discharge of petroleum products from a petroleum storage system. A site may be declared ineligible for such assistance when

    
    

    . . . the owner or operator of a petroleum storage system has been grossly negligent in the maintenance of such petroleum storage system. . . . for the purposes of this paragraph, . . . willful failure to make monthly monitoring system checks . . . shall be construed to be gross negligence in the maintenance of a petroleum storage system.

    
    

    Section 376.3071(9) (b)3., Florida Statutes.

    
    

12. The basis for the Department's denial of Petitioner's application for assistance remains two-fold: (1) Petitioner's willful failure to make monthly monitoring system checks where such systems are in place, and (2) Petitioner's failure to conduct an investigation to determine the cause of the discharge and failure to take steps to abate the discharge. Petitioner Nana's Petroleum, Inc., admits that it has not been, until recently, making monthly monitoring system checks. Accordingly, by statutory definition, Petitioner has been grossly negligent in the maintenance of a petroleum storage system, and the subject site has been rendered ineligible for state-administered cleanup. Additionally, Petitioner admits that at the time it filed its application for eligibility under the Early Detection Incentive Program it had not yet conducted an investigation to determine the source of the contamination. Further, by the date of the final hearing in this cause, Petitioner had still conducted no investigation to determine the source of the contamination or whether the contamination was continuing.

    
    

13. Section 376.305(1), Florida Statutes, provides that any person discharging a pollutant shall immediately abate the discharge. Petitioner has taken no steps to abate such discharge

and, more importantly, has taken no steps to even identify the source of that discharge. Petitioner's failure to respond to its known discharge constitutes gross negligence.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED that a Final Order be entered denying Petitioner's Early Detection Incentive Notification Application.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February, 1990.

LINDA M. RIGOT

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 February, 1990.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-5912

1. Respondent's proposed findings of fact numbered 1-3

   and 9 have been rejected as not constituting findings of fact but rather as constituting conclusions of law.

2. Respondent's proposed findings of fact numbered 4-8, 10-17, 20, and 21 have been adopted either verbatim or in substance in this Recommended Order.

3. Respondent's proposed findings of fact numbered 18 and 19 have been rejected as unnecessary for determination.

COPIES FURNISHED:

John W. Thornton

315 Southeast 8th Avenue Okeechobee, Florida 33472

E. Gary Early, Esquire Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399

Dale H. Twachtmann, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399

Daniel H. Thompson, General Counsel Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399

Docket for Case No: 89-005912

Orders for Case No: 89-005912