STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

v. ) CASE NO. 93-2020

)

STANLEY M. BUTLER )

)

Respondent. )

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Petitioner, )

)

v. ) CASE NO. 93-6637

) BRYANT M. MEEKS, TRUSTEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for hearing before William R. Cave, Hearing Officer, Division of Administrative Hearings, on August 2-3, 1994, in Sarasota, Florida.

APPEARANCE

For Petitioner: Heidi Davis, Esquire

Peter Fodor, Esquire

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

For Respondent Michael S. Drews, Esquire Bryant M. Meeks: Richard E. Nelson, Esquire

2070 Ringling Boulevard

Sarasota, Florida 34237

For Respondent Stanley M. Butler, Pro se Stanley M. Butler: c/o Economy Tire Service

1858 Main Street

Sarasota, Florida 34236

STATEMENT OF THE ISSUE

Are the Respondents legally liable for petroleum contamination of soil and groundwater at the Economy Tire Service Station, 1858 Main Street, Sarasota, Florida and, if so, should the Respondents be required to perform the Corrective Actions included in the Notice of Violation and Orders for Corrective Action issued on February 19, 1993, by Petitioner, Department of Environmental Protection?

PRELIMINARY STATEMENT

This action was commenced by the issuance of a Notice of Violation and Orders for Corrective Action by the Petitioner Department of Environmental Protection (Department) to Bryant A. Meeks, Trustee and Stanley M. Butler. Butler filed a Petition for Informal Conference and for an Administrative Hearing, asserting that he had taken all necessary steps to achieve compliance with applicable rules and regulations concerning underground storage tanks and petroleum contamination, and that he was not liable for any petroleum discharges. The matter was not resolved at the informal conferences and Butler's petition was referred to the Division of Administrative Hearings for the assignment of a hearing officer and conduct of a hearing. Although Meeks had not filed a Petition for Hearing or Informal Conference, he was invited by the Department to attend the Informal Conferences with Butler. Meeks did not attend those informal conferences. Because Meeks did not file a petition for administrative hearing or attend the informal conferences, the Department issued a final order against Meeks. Subsequently, Meeks filed a motion to set aside the final order and to provide him with an administrative hearing. Meeks' petition asserts that he had been out of possession and control of the property since 1980, had not been notified of any violations on the property until either October or November 1990 and there were no petroleum discharges for which he could be held liable. The Department set aside the final order and referred the matter to the Division of Administrative Hearings for the assignment of a hearing officer and the conduct of a hearing. The two cases were consolidated for hearing.

The Notice of Violation and Orders for Corrective Action assert that Respondents are responsible for the petroleum contamination of soil and groundwater on the property situated at 1858 Main Street, Sarasota, Florida, and have not taken immediate steps to contain, remove and abate the petroleum discharge. The Department seeks to have the Respondents perform certain corrective action described in the Order for Corrective Actions, including initiation of a Contamination Assessment, preparation and submission of a Contamination Assessment Report, immediate removal and abatement of petroleum discharge and proper closure of unmaintained underground storage tanks.

In support of its allegations, the Department presented the testimony of Stanley M. Butler, Bryant A. Meeks, Eugene Cherno, James Nuwer and Nancy Schmid Evans. Department's exhibits 1 through 22, 23 (a)-(b) and 24 (a)-(f) were received as evidence. The deposition of Angelika Marie Farina was received as Department's exhibit 19 in lieu of her live testimony at the hearing.

Respondent Meeks testified in his own behalf and presented the testimony of Edward M. Dunn, Randall Topjun, and Maura V. Sweeney. Respondent Meeks' exhibits 1 through 5 were received as evidence. Since Respondent Butler was called as a witness for the Department he did not testify on his own behalf, and did not offer any other witnesses or exhibits. Chapters 17-61, 17-761 and 17- 770, Florida Administrative Code and, Chapter 376, Florida Statutes were officially recognized.

A transcript of the proceeding was filed with the Division of Administrative Hearings (Division). The parties requested and were granted an extension of time for filing their proposed findings of fact and conclusions of law with the understanding that any time constraint for the entry of a Recommended Order imposed under Rule 28.5.402, Florida Administrative Code, was waived in accordance with Rule 60Q-2.031(2). Florida Administrative Code. The parties timely filed their proposed findings of fact and conclusions of law under the extended time frame. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department is the administrative agency charged with the responsibility of administering and enforcing the provisions of Chapter 376, Florida Statutes, and the rules promulgated thereunder in Title 17, Florida Administrative Code.

   
   

2. Bryant A. Meeks, Trustee, is the owner of the property situated at 1858 Main Street, Sarasota, Florida (Property). Meeks is a person within the meaning of Section 376.301(12), Florida Statutes.

   
   

3. Stanley M. Butler is the operator of Economy Tire Service (Business) on the Property, and has continually operated the Business on the property, beginning on November 26, 1980.

   
   

4. The Property is specifically identified in a Quit-Claim Deed dated September 10, 1980, conveying all of the interest of O. M. Bailey in and to the Property, to Bryant A. Meeks and Jacqueline F. Meeks. The Property is legally described as: "the East one-half of Lot 3 and all of Lot 4, Subdivision of Lot 15, Block H, PLAT OF SARASOTA, as per plat thereof recorded in Plat Book 1, Page 166, Manatee County Records; and being the same property conveyed by Special Warranty Deed dated July 1, 1979, executed by BP Oil Corporation, a Delaware Corp., recorded in Deed Book 1012, Page 1905, Public Records of Sarasota County Florida."

   
   

5. On December 1, 1977, SWT, Inc., purchased the Business from William E. Mitchell and Margaret G. Mitchell. Meeks was President of SWT, Inc.

6 After the acquisition of the Business by SWT, Inc., Meeks hired Butler to operate the Business.

1. On July 17, 1979, Meeks, and his wife, Jacqueline F. Meeks, acquired an undivided one-half interest in the Property by Special warranty Deed from American Petrofina Company of Texas. O. M. Bailey acquired the remaining undivided one-half interest in the Property in the same deed.

   
   

2. By Quit-Claim Deed dated September 10, 1980, O. M. Bailey conveyed all of his right, title and interest in the Property to Bryant A. Meeks and Jacqueline F. Meeks.

3. On November 26, 1980, SWT, Inc. sold the Business, including fixed assets, inventory and accounts receivable to Butler. The sale included four underground petroleum storage tanks situated on the Property.

   
   

4. On December 1, 1980, Stanley M. Butler and Dixie J. Butler leased the Property from Bryant A. Meeks and Jacqueline F. Meeks for a term of ten years, with an option to renew the lease and an option to purchase the Property. The lease was extended for ten years on January 4, 1991. The lease requires Butler to comply with "all statutes, ordinances, rules, orders, regulations and requirements of Federal, State and City Government and any and all their Departments and Bureaus applicable to said premises..."

   
   

5. By Trust Deed dated September 23, 1983, Bryant A. Meeks and Jacqueline

   F. Meeks conveyed their right, title and interest in the Property to Bryant A. Meeks as Trustee, under the Bryant A. Meeks, Jr., Trust dated August 24, 1983. The Property remains under the ownership of Bryant A. Meeks, Trustee.

   
   

6. At all times material to this proceeding, the Business on the Property has consisted of automobile service station, selling various grades of gasoline, diesel fuel, tires and automobile repairs.

   
   

7. At all times material to this proceeding, there were four 3,000 gallon, carbon steel, underground petroleum storage tanks, one underground waste oil tank of unknown size (Tank Five) and two underground kerosene tanks of unknown size (Tank Six and Tank Seven) The four underground gasoline tanks shall be collectively referred to as "Gasoline Tanks" and individually as Tank One through Tank Four moving in a northerly direction, with Tank One being adjacent to the service bays on the Property and Tank Four being adjacent to Main Street. Tank Five is located just south of the office adjacent to the east side of the service bays. Tank Six and Tank Seven are located south of the pump island and just north of the office and service bays.

   
   

8. The Gasoline Tanks have been continuously owned by Butler since Butler first acquired the Business on November 26, 1980. Butler did not purchase Tank Five, Tank Six and Tank Seven at the time he purchased the Business.

   
   

9. At all times material to this proceeding, the Gasoline Tanks contained various grades of gasoline including regular leaded, unleaded and premium unleaded gasoline, as well as diesel fuel.

1. At all times material to this proceeding, the Property was a facility within the meaning of Section 376.301(7), Florida Statutes.

   
   

2. In the summer of 1978, it was determined that Tank Four was the source of water pumped into a customer's automobile gas tank. Tank Four was tested and found to be leaking. Tank Four was disconnected from service without removing all of the gasoline product. During this time, Butler advised Meeks that Tank Four was leaking, notwithstanding Meeks' testimony to the contrary.

   
   

3. When Meeks purchased the undivided one-half interest in the Property in July 1979, Butler again advised Meeks that Tank Four had been disconnected due to a leakage, notwithstanding Meeks' testimony to the contrary. Meeks advised Butler that the Property had been purchased "as is".

   
   

4. Since November 26, 1980, Butler has been an Operator of the Facility within the meaning of Section 376.301(10), Florida Statutes.

5. Butler switched suppliers in 1981 and his new supplier, Amoco Oil, offered to fiberglass line Tank Four. The contractor hired by Amoco Oil pumped out the petroleum product left in the Tank Four when it had been disconnected. The contractor determined that Tank Four could not be fiberglass lined due to the holes in the tank.

   
   

6. On May 21, 1984, there was a complaint by the Sarasota Fire Department of gasoline odors from the Facility. The gasoline vapors resulted from a leak in the underground air lines in conjunction with gasoline being discharged from Tank Four because of perforations in the tank before it was pumped out in 1981. The Department notified Butler of this finding and requested that Butler perform a hydrologic study to determine the extent of contamination. Apparently, Butler never had this hydrologic study performed.

   
   

7. On October 12, 1984, Butler was given a warning notice by the Department that he was in violation of Chapter 403, Florida Statutes, and regulations promulgated thereunder. Additionally, the Department advised Butler to commence an contamination assessment which would require a Contamination Assessment Report to be submitted to the Department. The record does not reflect that a contamination assessment was commenced or that a Contamination Assessment Report was submitted to the Department.

   
   

8. The Department has been aware of Meeks' ownership of the Property since October 1984.

   
   

9. Butler registered the Gasoline Tanks and the Waste Oil Tank with the Department in March, 1986.

   
   

10. In 1989, Butler installed four monitoring wells at the Facility adjacent to the Gasoline Tanks.

    
    

11. On July 27, 1989, another complaint concerning gasoline odors was reported. On August 17, 1989, a written notice was mailed to Butler by the Department advising Butler that he was in violation of Chapters 403 and 376, Florida Statutes. There is no evidence that the Department sent Meeks a notice of such violation.

    
    

12. During an inspection of the Facility in April 1990, the inspector found that: (a) the Gasoline Tanks had not been upgraded and retrofitted as required by Department rule; (b) the Gasoline Tanks did not have the requisite overfill and overspill protection as required by Department rule; (c) there was petroleum product in all four monitoring wells, with well no. 1 having a high petroleum odor and a detectable petroleum odor in wells nos. 2, 3, and 4; (d) the organic vapor analyzer readings taken in each of the monitoring wells indicated hydrocarbon vapors in excess of 5,000 parts per million and; (d) a tightness test had not been performed at the Facility in accordance with Department rules, and in response to the Discharge Notification Form filed by Butler on November 13, 1989.

    
    

13. It was not until the fall of 1990 that Meeks received a notice from the Department concerning the contamination of the Property and that Meeks would be liable for cleaning up the contamination. However, Meeks failed to present sufficient evidence that he had been prejudiced by the Department's delay in notifying him of the contamination due to the unavailability of witnesses or records. There was no showing that Meeks had made any attempt, unsuccessful or otherwise, to secure witnesses and records concerning the condition of the Property before his acquisition in 1979 and 1980.

14. During an inspection of the Facility in February 1991, the inspector found that: (a) one of the Gasoline Tanks was full of water; (b) the Gasoline Tanks had not been upgraded and retrofitted as required by Department rule and;

    (c) the Gasoline Tanks did not have the requisite overfill and overspill protection as required by Department rule.

    
    

15. Amoco Oil removed all of the petroleum product from Tanks One, Two and Three in October 1991. Butler then contracted with Dickerhoof to inspect the Gasoline Tanks and reline them with fiberglass. After inspecting Tank One and Tank Two, Dickerhoof determined that these tanks could not be relined because of their condition. There were pin holes on the inside of the tanks in addition to split seams and perforations in the tops of the tanks. Butler decided not to inspect Tank Three since he could not operate with only one tank. Tank Four had been taken out of service earlier.

    
    

16. On October 22, 1991, Eugene Cherno, Environmental Supervisor, Pollution Control Division, Sarasota County Government advised Butler not to return the Gasoline Tanks to service due to their poor condition.

    
    

17. During an inspection of the Facility in May 1992, one-half inch of free product with a fairly strong petroleum odor was bailed from the southwest monitoring well. The color and condition of the free product indicated that the petroleum discharge had occurred within one to four years before the free product was removed. There was a slight petroleum odor in the remaining three monitoring wells.

    
    

18. In July 1992 Butler contracted with James Nuwer to remove and replace the Gasoline Tanks and gas lines with new underground storage tanks and gas lines. Upon removing the Gasoline Tanks, Nuwer found small holes in Tanks One, Two and Three and somewhat larger holes in Tank Four. All of the Gasoline Tanks were corroded and had perforations on the welded seams.

    
    

19. On July 10, 1992, when the Gasoline Tanks were excavated there was a strong petroleum odor permeating the entire area around the facility even though the petroleum product had previously been pumped out of the Gasoline Tanks.

    The soil removed in the process of excavating the Gasoline Tanks was a porous sand type soil.

    
    

20. During the excavation and replacement of the Gasoline Tanks, Environmental Science and Engineering, Inc. (ESE), on behalf of Butler, prepared a UST Closure Environmental Assessment Report (Closure Assessment Report).

    
    

21. During the excavation activities, ESE monitored the soils removed from the excavation using an organic vapor analyzer (OVA), equipped with flame ionization detector (FID). The OVA/FID measures total vapors, including methane, in the parts per million (ppm) range. An unfiltered and filtered screening was performed on each sample to evaluate the total organic vapor and methane concentration. The methane concentration was subtracted from the total organic vapor concentration to evaluate the soil for excess soil contamination. Soil vapor screening was performed in accordance with procedures defined in Rule 17-770.200(2), Florida Administrative Code.

    
    

22. Twenty-one soil samples were collected for OVA/FID screening. The results of the OVA/FID screening show the total OVA reading in all 21 samples being greater than 1000 ppm. After subtracting the methane reading from total OVA reading, the samples ranged from a total OVA reading of 890 ppm to 1000 ppm.

    Pursuant to Rule 17-770.200(2), Florida Administrative Code, soils excessively contaminated by gasoline or diesel fuel will cause a total hydrocarbon reading of 500 ppm for gasoline and 50 ppm for diesel fuel using OVA/FID screening.

    Based on these results, the soil on the Property is excessively contaminated as that term is defined in Rule 17-770.200(2), Florida Administrative Code.

    
    

23. ESE collected groundwater samples from monitoring wells nos. 1, 2, and

1. The analytical results indicate the detection of both purgeable aromatic and polynuclear aromatic hydrocarbons in the groundwater samples from monitoring wells 1, 2, and 3. In each groundwater sample the benzene, total volatile organic aromatic (TVOA) and methy-tertiary-butyl-ether (MTBE) are reported in concentration presented as micrograms/liter (ug/L) as follows:

   
   

   MW1	MW2	MW3
   Benzene 2,140 ug/L	737 ug/L	732 ug/L
   TVOA's 3,160 ug/L	2,080 ug/L	1,430 ug/L
   MTBE's 6,090 ug/L	5,980 ug/L	2,940 ug/L

   
   

   These levels exceed the Site Rehabilitation Levels (SRL's) for benzene, TVOA and MTBE of 1 ug/L, 50 ug/L and 50 ug/L, respectively, established in Rule 17- 770.730(5)(a), Florida Administrative Code. Monitoring well no. 4 was not sampled because free product was observed on the groundwater in the well, demonstrating contamination.

   
   

   1. ESE was unable to determine the extent of the excessively contaminated soils at the Facility due to limiting site conditions. The excavated excessively contaminated soils were transported to the Sarasota County Landfill for bio-treatment.

      
      

   2. Tank Five, Tank Six and Tank Seven are unmaintained underground storage tanks on the Property that have not been properly closed.

      
      

   3. On February 19, 1993, the Department issued a Notice Of Violation And Orders For Corrective Action against Meeks and Butler concerning the contamination of the Property on which the Facility is located.

      
      

   4. At a meeting on March 26, 1993, with Meeks, Butler and representatives of the Department present, the matter of the cost of cleaning up the contamination was discussed by those present. Meeks contends that at this meeting a Department representative advised those present that the Department would pay for the cleanup of the contamination but would not pay for the removal of the three underground storage tanks remaining on the Property. Meeks further contends, that in reliance on this commitment he did not pursue an eviction action against Butler. Meeks presented no evidence on how his not pursuing the eviction action against Butler was detrimental to him.

      
      

   5. A second meeting was held on July 14, 1993, where only Meeks and Department representatives were present. Meeks contends that another Department representative advised him that the Department could not honor the previous commitment to pay for the cleanup.

      
      

   6. There is insufficient evidence to show that a Department representative made a commitment for the Department to pay for the contamination cleanup on the Property. However, assuming that a commitment was made, there is insufficient evidence to show that Meeks' reliance on that commitment resulted in Meeks foregoing his eviction action against Butler. Furthermore, even if Meeks did rely on the commitment to forego his eviction action against Butler,

      there is insufficient evidence to show that his change in position was detrimental or that his reliance on the commitment for any reason resulted in a change of position that was detrimental to Meeks.

      
      

   7. There is sufficient evidence to show that a Contamination Assessment should be completed at the Facility to determine the extent of the petroleum contamination on the Property.

      
      

   8. There is sufficient evidence to show that one or more of the Gasoline Tanks have discharged gasoline or diesel fuel to the soils and groundwater on the Property.

      
      

   9. There is sufficient evidence to show that Tank One, Tank Two and Tank Three discharged either gasoline or diesel fuel to the soils and groundwater on the Property during the several years before the removal of the petroleum product from those tanks in October 1991. Likewise, there is sufficient evidence to show that Tank Four discharged gasoline to the soils and groundwater on the Property from the summer of 1978, when it was taken out of service, until the remaining gasoline was pumped out in 1981.

      
      

   10. The Respondents presented no evidence that some or all of the contamination was attributable to someone other than the Respondents.

       
       

   11. While it might be inferred that the Department incurred expenses and costs while investigating this matter, the Department presented no evidence to support any expenses or costs for its investigation.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   13. Pertinent to this case, Section 376.303(1)(a), Florida Statutes, provides:

       
       

       1. The department has the power and duty to:

          (a) Establish rules, including, but not limited to, construction standards, permitting or registration of tanks, maintenance and installation standards, and removal or disposal standards, to implement the intent of ss. 376.30-376.319 and to regulate underground

          and aboveground facilities and their onsite integral piping systems. Such rules may establish standards for underground facilities

          which store hazardous substances or pollutants....

          
          

   14. Pertinent to this case, Section 376.301(7), Florida Statutes, provides:

       
       

       (7) "Facility" means a nonresidential location containing, or which contained, any underground stationary tank or tanks which contain hazardous substances or pollutants and have individual storage capacities greater than 110 gallons....

   15. Pertinent to this case, Section 376.302(1)(a) and (b), Florida Statutes, provides:

       
       

       1. It shall be a violation of this chapter and it shall be prohibited for any reason:

          1. To discharge pollutants...into or upon the surface or ground waters of the state or

             lands, which discharge violates any departmental "standard" as defined in s. 403.803(13).

          2. To fail to obtain any permit or registration required by this part or by rule, or to violate or fail to comply with any statute, rule, order, permit, registration, or certification adopted

             or issued by the department pursuant to its lawful authority.

             
             

   16. Section 403.803(13), Florida Statutes, defines "Standard" to include, but is not limited to, rules of the Department relating to water quality.

       
       

   17. Section 376.301(6), Florida Statutes, provides as follows:

       
       

       (6) "Discharge" includes, but is not limited to, any spilling, leaking, seeping, pouring, mis- applying, emitting, emptying, or dumping of any pollutant which occurs and which affects lands and the surface and ground waters of the state not regulated by ss. 376.011-376.21.

       
       

   18. Pertinent to this case, Section 376.301(18), Florida Statutes, provides:

       
       

       (18) "Pollutants" includes any "product" as defined in s. 377.19(11)....

       
       

   19. Product as defined in Section 377.19(11), Florida Statutes, means any commodity made from oil or gas and includes, but is not limited, gasoline, diesel fuel and kerosene.

       
       

   20. Section 376.305(1), Florida Statutes, in pertinent part provides:

       
       

       1. Any person discharging a pollutant as prohibited by ss. 376.30-376.319 shall immediately undertake

          to contain, remove, and abate the discharge to the satisfaction of the department....

          
          

   21. Additionally, Rule 17-61.050(4)(b), Florida Administrative Code, requires that any person discharging pollutants from a facility shall immediately undertake to contain, remove, and abate the discharge and, in case of discharge to groundwater in violation of applicable standards shall institute such further corrective action as necessary.

       
       

   22. Section 376.301(12), Florida Statutes, defines "Person" to mean any individual, partner, joint venture, or corporation; any group of the foregoing, organized or united for a business purpose; or any governmental entity. Both Meeks and Butler come within this definition of person.

   23. Section 376.301(10), Florida Statutes, defines "Operator" to mean any person operating a facility, whether by lease, contract, or other form of agreement. Butler comes within this definition of operator.

       
       

   24. Section 376.301(11), Florida Statutes, defines "Owner" to mean any person owning a facility. Meeks comes within this definition of owner.

       
       

   25. Rule 17-770.200(2)(4) and (6), Florida Administrative Code, in pertinent part provides:

       
       

       (2) "Excess soil contamination" or "excessively contaminated soil" means soil saturated with petroleum or petroleum products or soil which causes a total hydrocarbon reading of 500 ppm for Gasoline Analytical Group (or 50 ppm for Kerosene Analytical Group or Mixed Product Analytical Group)....

       * * *

       (4) "Gasoline Analytical Group" means aviation gasoline, gasohol, and motor gasoline or equivalent petroleum product.

       * * *

       (6) "Kerosene Analytical Group" means diesel, Jet-A, JP-5, and kerosene or equivalent petroleum products.

       
       

   26. Based on the analytical results of the soil samples taken in July 1992 by ESE from the Property, the soil on the Property is excessively contaminated. Likewise, the analytical results of the groundwater samples from monitoring wells nos. 1, 2 and 3, at the Property in July 1992 clearly point out that the site rehabilitation levels established in Rule 17-770.730(5)(a), Florida Administrative Code, have been exceeded.

       
       

   27. Rule 17-770.600, Florida Administrative Code, provides:

       
       

       1. Within thirty (30) days of discovery

          of contamination, a contamination assessment shall be initiated.

          
          

   28. Rule 17-770.630(1), Florida Administrative Code, in pertinent part provides:

       
       

       1. Within six (6) months of discovery of contamination, two copies of the Contamination Assessment Report shall be prepared and submitted to the Department for approval.

          
          

   29. Rule 17.61.050(1)(b)6., Florida Administrative Code, provides:

       
       

       1. Registration and Notification Requirements.

          * * *

          (b) Each owner or operator shall make notification

          of the following on forms provided by the Department.

          * * *

          6. Positive response of a detection device, monitoring well test or sample or laboratory report within three (3) working days of discovery.

   30. Rule 17-761.800(2)(a), Florida Administrative Code, provides:

       
       

       1. Closure of Storage Tank Systems.

          1. Owners of unmaintained storage tank systems must permanently close the system within 90 days of the effective date of this rule or of discovery of the existence of the unmaintained storage tank system.

       
       

   31. Section 376.308(1)(a),(c) and (4), Florida Statutes, provides in pertinent part as follows:

       
       

       1. In any suit instituted by the department under ss. 376.30-376.319, it is not necessary to plead and prove negligence in any form or matter. The department need only plead and prove that the prohibited discharge or other

          polluting condition has occurred. The following persons shall be liable to the department for any discharges or polluting condition.

          1. Any person who caused a discharge or other polluting condition or who owned or operated the facility at the time the discharge occurred.

             * * *

             (c) In the case of a discharge of petroleum or petroleum products, the owner of the facility, unless the owner can establish that he acquired title to property contaminated by the activities of a previous owner or operator or other third party, that he did not cause or contribute to the

             discharge, and that he did not know of the polluting condition at the time he acquired title....

             * * *

             (4) Liability pursuant to this chapter shall be joint and several. However, if more than one discharge occurred and the damage is divisible and may be attributed to a particular defendant or defendants, each defendant is liable only for

             the costs associated with his damages. The burden shall be on the defendant to demonstrate the divisibility of damages.

             
             

   32. The Department has proven that the discharge did occur and that Meeks was a person and owner of the Property and that Butler was a person and operator of the Facility and, thereby jointly and severally liable for the contamination unless they have pled and could prove a defense to the allegations of the Notice of Violation.

       
       

   33. Respondent Butler did not plead any defenses to the allegations of contamination. Respondent Meeks pled the defenses of statute of limitations, unreasonable delay by the Department, laches and equitable estoppel.

   34. Statute of limitations will not be held applicable to claims and demands of the State of Florida unless by the terms of the statute it is made to apply. Gay v. Inter-County Tel. & Tel. Co., 60 So.2d 22, 27 (Fla. 1952), citing Florida Industrial Commission v. Felda Lumber Co., 18 So.2d 362, 364 (Fla. 1944). Meeks is attempting to apply the statute of limitations against the claims and demands of the Department (State of Florida). The terms of Chapters

       95 and 376, Florida Statutes, do not expressly provide for the claims and demands of the State of Florida to be limited in duration.

       
       

   35. The facts of this case do not support the equitable principle of laches because the elements necessary to establish laches as a bar to relief as set forth by the Supreme Court in The Florida Bar v. McCain, 361 So.2d 700, 705- 706 (Fla. 1978) are not present.

       
       

   36. Likewise, the facts in this case do not support the defense of equitable estoppel because the elements necessary to establish equitable estoppel as set forth by the Supreme Court in State Department of Revenue v. Anderson, 403 So. 2d 397, 400 (Fla. 1981) are not present. Furthermore, a statement made by a Department employee concerning the Department's responsibility to pay for contamination cleanup would be a representation based on a misunderstanding of the law and not a misrepresentation of a material fact. The Department cannot be estopped through mistaken statements of law. Anderson, 403 So.2d 397, 400 (Fla. 1981).

       
       

   37. Furthermore, while the Department has failed to explain its delay in advising Meeks of the contamination and its intended action and, assuming arguendo that such delay was unreasonable, Meeks has failed to present sufficient evidence to show that he was deprived of fair opportunity of securing evidence to prove that some person, other than Butler, caused the discharge and was liable for the contamination or a portion of the contamination. Although Meeks did not have written notice from the Department of the contamination and its intended action, Meeks was aware, as early as the summer of 1978, that gasoline had leaked from one of the tanks at the Facility resulting in a discharge. Neither Meeks nor Butler advised the Department of that discharge.

       
       

   38. The Respondents are guilty of the violations as charged in the Notice of Violations issued by the Department.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly,

Recommended that the Respondents shall take the following specific corrective actions to address the violations:

1. Respondents shall, within 60 days of receipt of the Final Order, properly close the three unmaintained underground storage tank systems remaining on the Property in accordance with Rule 17-761.800(2), Florida Administrative Code

   
   

2. Respondents shall, at time of the closure of the unmaintained underground storage tank systems, conduct a closure assessment in accordance with Rule 17.761.800(3), Florida Administrative Code, and shall submit the closure assessment report to the proper authority within 60 days of the date of the closure.

3. Respondents shall, within 30 days of receipt of the Final Order, initiate a contamination assessment, as required in Rule 17-770.600(1), Florida Administrative Code.

   
   

4. Respondents shall conduct a petroleum contamination cleanup in accordance with Rule 17-770, Florida Administrative Code, in the manner and within the time frames specified therein.

DONE and ENTERED this 21st day of December, 1994, in Tallahassee, Florida.

WILLIAM R. CAVE

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 21st day of December, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 93-2020 AND 93-6637

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioner's Proposed Findings of Fact;

1. Petitioner's proposed findings of fact 1 through 74 are adopted in substance as modified in Findings of Fact 1 through 50; otherwise they are not supported by the evidence in the record, or are unnecessary or subordinate, or are neither material nor relevant.

Respondent Meeks' Proposed Findings of Fact:

1. Respondent Meeks' proposed findings of fact 1 through 14, and 16 through 19 are adopted in substance as modified in Findings of Fact 1 through 50; otherwise they are not supported by the evidence in the record, or are unnecessary or subordinate, or are neither material nor relevant.

2. Respondent Meeks' proposed finding of fact 16 is not supported by the evidence in the record.

3. Respondent Meeks' proposed findings of fact 20 and 21 are not supported by the evidence in the record, but see Findings of Fact 43, 44 and 45.

Respondent Butler's Proposed Findings of Fact:

Respondent Butler did not file any proposed findings of fact.

COPIES FURNISHED:

Heidi Davis, Esquire Peter Fodor, Esquire

Department of Environmental Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Michael S. Drews, Esquire Richard E. Nelson, Esquire 2070 Ringling Boulevard

Sarasota, Florida 34237

Stanley M. Butler, Pro se c/o Economy Tire Service 1858 Main Street

Sarasota, Florida 34236

Kenneth Plante, General Counsel Department of Environmental

Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Virginia B. Wetherell, Secretary Department of Environmental

Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have a 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: 93-002020

Orders for Case No: 93-002020