STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY'S OIL COMPANY, )

DER FACILITY NO. 528732810 )

)

Petitioner, )

)

vs. ) CASE No. 92-0197

)

STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

JERRY'S OIL COMPANY, )

DER FACILITY NO. 478732808 )

)

Petitioner, )

vs. ) CASE No. 92-0198

)

STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held before the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, on March 31, 1992, in Tampa, Florida.

APPEARANCES

For Petitioner: William E. Taylor IV, Esquire

Carter B. McCain, Esquire MacFARLANE FERGUSON ALLISON

& KELLY

Post Office Box 1531 Tampa, Florida 33601

For Respondent: Brigette Ffolkes, Esquire

Assistant General Counsel

Dept. of Environmental Regulation Twin Towers Office Building

2600 Blairstone Road

Tallahassee, Florida 32399 2400 STATEMENT OF THE ISSUES

Whether Petitioner's two Early Detection Incentive Notification Applications were timely filed, pursuant to Chapter 376, Florida Statutes.

Whether the Department of Environmental Regulation has a right to deny that each application was timely submitted when Petitioner presents testimony that the applications were placed in the U.S. Mail prior to the application deadline.

PRELIMINARY STATEMENT

On November 18, 1991, the Respondent, Department of Environmental Regulation (DER), issued Orders of Determination of Ineligibility on two Early Detection Incentive Notification Applications received from Petitioner, Jerry's Oil Company (Jerry's Oil) in September 1991. The basis for the decisions was that the applications were not received by DER within the Early Detection Incentive Program reporting period from July 1, 1986 through December 31, 1988.

Petitioner requested formal hearings to contest DER's findings that these two facilities were ineligible. Essentially, Petitioner contends that material disputes of fact exist as to whether Petitioner timely completed all of its responsibilities relating to the application process and whether it had a right to rely on delivery of its applications by the U.S. Postal Service which were mailed on August 14, 1987. These applications were never received by the Department. The applications reviewed by DER were copies of the missing applications mailed to DER after Petitioner learned in September 1991 that the original applications never reached the agency.

The two Petitions for Formal Hearing were referred to the Division of Administrative Hearings on January 13, 1992, and were promptly scheduled for a consolidated hearing on both applications on March 31, 1992.

During the hearing, Petitioner called two witnesses and offered five exhibits which were admitted into evidence. The Department presented one witness and requested official recognition of Rule 17-70.001, Florida Administrative Code. Official recognition was taken. A copy of the rule was placed into evidence.

The transcript of the hearing was filed with the Division of Administrative Hearings on April 6, 1992. Rulings on the Proposed Findings of Fact submitted by the parties are in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Jerry's Oil, prepared Early Detection Incentive Program Notification Applications for two of its gas stations in Florida on August 13, 1987. One application was for a station located in Okeechobee, Florida, registered as DER Facility No. 478732808. The other application was for a station located in Tarpon Springs, Florida, registered as DER Facility No. 528732810.

   
   

2. The application form had two purposes. The first purpose of the form was to notify the Department of Environmental Regulation of petroleum contamination problems. The second purpose was to provide information to the agency that could be used to determine the applicant's eligibility for the Early Detection Incentive (EDI) Program. The EDI Program provides funding and other state assistance with environmental cleanup of petroleum contamination problems to tank owners for a limited period of time. To be eligible for participation in the EDI Program, an applicant had to complete the application form provided by DER and submit it to the agency during the reporting period from July 1, 1986 through December 31, 1988.

3. The application for the Okeechobee gas station reports that a discharge of unleaded gasoline was discovered at the site on July 8, 1987. The dispenser, which is part of the storage system, leaked because of a loose connection. The estimated number of gallons lost was unknown, but the system was repaired before the report was made to DER on August 13, 1987.

   
   

4. The application for the Tarpon Springs gas station reports that a discharge of vehicular diesel was discovered at this site on July 12, 1987. There was a loose connection between a pipe and the dispenser. In addition, the pump hose leaked. The amount of gallons lost as a result of these equipment problems was unknown. The gasket on the pump was replaced, and the system was otherwise repaired prior to the report to DER.

   
   

5. Petitioner completed these applications to report the discharges and to have the company's eligibility for the EDI program determined by DER.

   
   

6. As part of his usual business practice, the owner of Jerry's Oil completed the applications and gave them to Delores M. Quinette. Ms. Quinette then made copies of the front page of each application for Petitioner's files.

   
   

7. Ms. Quinette placed the applications together in one envelope addressed to the Department of Environmental Regulation at 2600 Blairstone Road, Tallahassee, Florida. The envelope indicated that this correspondence was directed to the attention of Laurie Ginger. The proper return address was also placed on the stamped envelope.

   
   

8. On the same day, the envelope containing the applications was placed in the residential mailbox belonging to Delores M. Quinette at 1110 Pine Lake Drive South, Tampa, Florida 33612. The red flag on the mailbox was raised to alert the mailman that the mailbox contained outgoing mail.

   
   

9. This mailing procedure was used by the Petitioner in the ordinary course of business as Ms. Quinette is an independent contractor who handles the paperwork for Petitioner from her home.

   
   

10. On August 14, 1987, Ms. Quinette checked the mailbox to remove incoming mail. The envelope addressed to the DER was no longer in the mailbox. It was assumed that the mailman had taken the outgoing mail for delivery to the addresses indicated on the correspondence.

    
    

11. The envelope containing the applications was never returned to Ms. Quinette by the U.S. Postal Service.

    
    

12. Petitioner relied on this mailing procedure to notify DER of the petroleum discharges and its intention to apply for eligibility into the EDI program.

    
    

13. DER's records relating to EDI Program applications do not reflect that these two applications were received within the designated reporting period or within a reasonable time thereafter.

    
    

14. DER first become aware that the original applications had been sent in August 1987 during the month of September of 1991. This was over two and a half years after the reporting period had closed.

15. Petitioner discovered that the original applications were never received by DER when inquiry was made by Petitioner's contractor about the company's EDI Program eligibility during site rehabilitation in September 1991. Copies of the front page of each application retained by Petitioner were then mailed to DER, along with an affidavit stating the original applications had been mailed on August 14, 1987.

    
    

16. Upon receipt of these copies, DER advised Petitioner it was ineligible to receive EDI Program benefits because these applications were not timely filed.

    
    

17. Petitioner takes the position that DER should look to the date the original applications were entrusted to the U.S. Postal Service instead of the date the copies were received by DER as the reporting date for the eligibility determination. Petitioner also contends that it is possible that DER might have lost applications actually received.

    
    

18. Neither the receipt of the original applications by DER nor the agency's loss of the applications was proved at hearing.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter, pursuant to Section 120.57(1), Florida Statutes.

    
    

20. The Legislature passed the State Underground Petroleum Environmental Response Act of 1986 (Super Act) to address environmental problems caused by leaks and spills associated with the storage of petroleum products. As part of the Super Act, which is located in Chapter 376, Florida Statutes, the Inland Protection Trust Fund was created. This fund provides state assistance with the environmental problems caused by underground petroleum storage to tank owners for a limited period of time.

    
    

21. The Early Detection Incentive Program is a part of the Inland Protection Trust Fund and was created to encourage the early detection, reporting and cleanup of petroleum contamination from leaking petroleum storage systems. The requirements for participation in the program are found in Section 376.3071(9)(b), Florida Statutes, which states:

    
    

    When reporting forms become available for distribution, all sites involving incidents of contamination from petroleum storage systems initially reported to the Department at anytime from midnight on June 30, 1986, to midnight on December 31, 1998, shall be

    qualified sites, provided that such a complete written report is filed with respect thereto within a reasonable time.

    
    

22. Rule 17-70.001(1), Florida Administrative Code, allowed tank owners to send their completed Early Detection Incentive Program Notification Applications through the mails. The rule, however, also stated the application form must be filed with and received by the DER during the grace period beginning on July 1, 1986, and ending on October 1, 1987.

    
    

23. Reporting deadlines were later expanded by the agency to include December 31, 1988. Application forms sent by mail were accepted as applications

    filed within a reasonable time if an envelope containing the mailed application bore a postmark date on or before December 31, 1988, and was received by DER.

    
    

24. During the presentation of evidence, Petitioner was unable to demonstrate that the original applications were received by DER. The burden of having to demonstrate such receipt remained with Petitioner throughout these proceedings. Proof that the applications were deposited into a mailbox which is part of the U.S. Postal System was insufficient to establish that Petitioner had completed all of its prerequisite responsibilities in a timely manner. Pursuant to Rule 17-70.001(1), Florida Administrative Code, the applicant had the responsibility to make sure the applications were actually received by DER. Petitioner's detrimental reliance on the U.S. Mail without confirming agency receipt was at its own risk. The agency cannot be held responsible for Petitioner's choice of mailing procedures, its decision to assume timely receipt by DER, or its failure to inquire about the applications during a four-year period. As a result, equitable tolling of the deadline should not be applied to these applications.

    
    

25. Although the responsibility to make sure DER receives an application goes beyond the responsibilities allocated to persons who have utilized the U.S. Mails in other kinds of cases, this is the burden placed upon applicants for this particular program by DER. The agency's interpretation of its rules and the statutes regarding the EDI Program is given great deference. Department of Environmental Regulation v. Goldring, 477 So.2d 532, 534 (Fla. 1985). This particular interpretation was clearly announced in Rule 17-70.001(1), Florida Administrative Code. It has been applied uniformly and consistently throughout the program. Little Munyon Island v. Department of Environmental Regulation,

492 So.2d 735 (Fla. 1st DCA 1986); Florida Power Corp. v. Department of Environmental Regulation, 431 So.2d 684 (Fla. 1st DCA 1983); Rinker Materials Corporation v. State of Florida Department of Environmental Regulation, 12 FALR 3993 (F.O. 9-6-90).

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

1. That the applications for eligibility in the EDI Program submitted by Petitioner for DER Facility Nos. 528732810 and 478732808 be denied as they were not timely filed with the Department.

   
   

2. That the doctrine of equitable tolling should not be applied to the reporting period deadline on Petitioner's behalf because the responsibility to make sure the applications were received by DER remained with Petitioner throughout the application process.

DONE and ENTERED this 1st day of May, 1992, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

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 1st day of May, 1992.

APPENDIX TO RECOMMENDED ORDER

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted. See HO #1 - #12.

2. Accepted. See HO #1 - #12, and #15.

3. Accepted. See HO #14.

4. Accepted. See HO #13, #14, #15 and #16.

5. Accepted. See HO #17.

6. First sentence accepted. Second and third sentences accepted. Fourth sentence rejected. Speculative, assumes facts not in evidence and without proper foundation.

Respondent's proposed findings of fact are addressed as follows:

1. Rejected. Irrelevant. Hearing Officer relied on testimony at hearing. Also, misrepresentation of testimony and events, contrary to fact.

2. Accepted. See HO #16.

3. Accepted. See HO #16.

COPIES FURNISHED:

WILLIAM B TAYLOR IV ESQ MacFARLANE FERGUSON ALLISON

& KELLY PO BOX 1531

TAMPA FL 3 3601

BRIGETTE A FFOLKES ESQ ASST GENERAL COUNSEL

DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD

TALLAHASSEE FL 32399 2400

CAROL BROWNER, SECRETARY

DEPT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BLDG

2600 BLAIRSTONE RD

TALLAHASSEE FL 32399 2400

DANIEL H THOMPSON ESQ GENERAL COUNSEL

DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE ROAD

TALLAHASSEE FL 32399 2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-000197

Orders for Case No: 92-000197