STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLAUDIO CASTILLO, )

)

Petitioner, )

)

vs. ) Case No. 96-5181

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 25, 1997, at Miami, Florida, by video teleconference before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Kathelyn M. Jacques

Assistant General Counsel Department of Environmental

Protection

3900 Commonwealth Boulevard Mail Station No. 35

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner is liable for the costs and expenses incurred by Respondent in responding to a pollutant discharge, occurring on November 6, 1992, at the waters off John Lloyd State Park, Dania, Florida, and for damages to natural resources resulting from the pollutant discharge.

PRELIMINARY STATEMENT

By final agency action letter dated July 21, 1993, the Department of Environmental Protection (Respondent) notified Claudio Castillo (Petitioner), among other things, that it was seeking to collect from him $101,811.22 which represented

(1) reimbursement for the costs that it had incurred in responding to a pollutant discharge, occurring on

November 6, 1992, at the waters off John Lloyd State Park, Dania, Florida, and (2) compensation for damages to the natural resources, as a result of the pollutant discharge. Also, the letter included, among other things, an itemization of the costs, a worksheet explaining the variables which comprised the natural resource damage formula, and an invoice for the costs and damages. Through counsel, Petitioner contested his liability for the pollutant discharge and, thereby, for the costs and damages reflected in Respondent's final agency action letter. On November 5, 1996, this matter was referred to the Division of Administrative Hearings.

Prior to hearing, Petitioner's counsel was granted leave to withdraw. Petitioner did not obtain new counsel.

At hearing, Petitioner failed to appear, and, on his behalf, no testimony was presented, and no exhibits were entered into evidence. Respondent presented the testimony of two witnesses and entered seven exhibits 1/ into evidence.

A transcript of the hearing was ordered. At the request of Respondent, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript.

Respondent filed proposed findings of fact which have been considered in this Recommended Order.

FINDINGS OF FACT

1. On November 6, 1992, a DC-7 airplane crashed off the Atlantic Coast of Florida, more particularly, 100 yards from John Lloyd State Park, and one quarter of a mile north of Dania Pier in Dania, Florida. The DC-7 was a chartered cargo airplane and had departed from Miami International Airport.

2. The DC-7 was chartered from Claudio Castillo by Miguel Delpino, United States General Manager of Aerochago Airlines, to carry cargo for Aerochago Airlines. Even though Aerochago Airlines owned aircraft, its aircraft was unavailable due to maintenance work being performed.

3. During the flight from Miami International Airport, the DC-7 developed engine trouble, i.e., two of its engines failed. The aircraft began to lose altitude. In an attempt to regain altitude, the captain of the aircraft dumped 3,000 gallons of aviation fuel. However, the DC-7 failed to regain altitude and crashed. Remaining on the crashed aircraft were 3,000 gallons of aviation fuel and 150 gallons of motor oil.

4. When the DC-7 crashed, only the crew and two passengers were on board. One of the passengers was Mr. Castillo.

5. On the same day of the crash, the Florida Marine Patrol (FMP) of the Department of Natural Resources, now the Department of Environmental Protection (DEP), arrived at the crash scene at 3:20 a.m. and investigated the crash. The DEP had four employees investigating the crash: three FMP officers and one employee from the Office of Coastal Protection.

6. The remaining aviation fuel and motor oil in the crashed DC-7 was discharging into the coastal waters. The DEP employees attempted to abate the discharge.

7. The equipment necessary for the employees' investigation of the crash and abatement of the discharge and the cost for the equipment were the following: (a) a DEP vehicle at a cost of

   $7.00; (b) a twin engine vessel at a cost of $120.00; (c) an underwater sealant kit at a cost of $16.66; (d) scuba tanks at a cost of $9.00; and (e) photographs at a cost of $24.00.

8. The total hours expended by DEP's four employees were 36 hours, at a cost of $685.84.

9. Due to the DC-7 leaking aviation fuel and motor oil into Florida's coastal waters, removal of the aircraft from the Atlantic Ocean was necessary. DEP contracted with Resolve Towing and Salvage (RTS) to remove the DC-7. RTS is a discharge cleanup organization approved by DEP.

10. RTS' contractual responsibilities included removal of the entire DC-7 aircraft and all debris within 100 yards of the center of the aircraft; disposal of the aircraft; plugging the

    engines to help stop the leakage; and removal and delivery of the engines which failed to the National Transportation Safety Board (NTSB) and the Federal Aviation Authority (FAA). Because the submerged DC-7 was located in an environmentally sensitive coral and sea-plant area, RTS was required to use extreme care in removing the aircraft. The contractual cost was fixed at

    $34,000.00

    
    

11. A DEP employee, Kent Reetz, was at the scene of the crash during RTS' cleanup. His responsibility was to monitor the removal of the DC-7 by RTS and to ensure that the aircraft's removal was in compliance with DEP's standards.

12. During the removal of the DC-7 from the water, the fuselage ruptured, scattering debris which was dangerous to the public and to the coral and sea-plants. DEP determined that RTS was not responsible for the fuselage rupturing, but that the rupture was caused by several storms, prior to the aircraft's removal, and by the aircraft being submerged for an extended period in salt water.

13. DEP contracted with RTS to remove the dangerous debris emitted when the fuselage ruptured. The contractual cost was fixed at $9,050.00

14. The total contractual cost between DEP and RTS was

    
    

    $43,050.00. DEP paid RTS from the Coastal Protection Trust Fund.

    
    

15. In responding to the pollutant discharge, DEP incurred a total cost of $43,912.50.

16. DEP assessed damages to the natural resources based upon the amount of pollutants discharged which were 3,000 gallons of aviation fuel and 150 gallons of motor oil. Using the statutory formula, DEP assessed damages to the natural resources in the amount of $57,898.72.

17. Based upon the costs incurred by DEP in responding to the pollutant discharge in the amount of $43,912.50 and the damages to the natural resources in the amount of $57,898.72, DEP sought reimbursement and compensation from Mr. Castillo in the total amount of $101,811.22.

18. DEP invoiced Mr. Castillo for reimbursement of the costs and for compensation for the damages.

19. DEP provided Mr. Castillo with detailed and itemized expense documents for the costs that it had incurred in responding to the pollutant discharge. The documents showed the expenses incurred, what each expense represented, and the formula for computing each expense. Further, DEP provided Mr. Castillo with a document showing the amount of the damages to the natural resources, the formula for computing the damages, and how the damages were computed.

20. The charter of November 6, 1992, was not the first time that Mr. Delpino had chartered the same DC-7 from Mr. Castillo.

21. Prior to and, again, at the previous charter,

    
    

    Mr. Castillo represented to Mr. Delpino that he, Mr. Castillo, was the owner of the DC-7.

22. The owner of a chartered aircraft is responsible for obtaining the aircraft's crew and insurance and for maintaining the aircraft.

23. For the previous charter, Mr. Castillo was responsible for obtaining the DC-7's crew and the insurance and for maintaining the aircraft.

24. Mr. Delpino had no reason to expect the charter for November 6, 1992, to be any different. Furthermore, Mr. Castillo did not inform Mr. Delpino that the responsibilities would be different.

25. For the present charter, as before, Mr. Castillo handled all matters relating to the crew, insurance, and maintenance. Regarding the insurance, Mr. Castillo presented to Mr. Delpino an insurance certificate which, after the crash, was discovered to be false. Also, regarding maintenance, prior to the crash, the two engines which failed were to be removed and repaired, but, although they were removed, they were returned without being repaired.

26. Mr. Castillo was the owner of the DC-7.

    
    

27. Also, the crash of the DC-7 was investigated by several federal governmental agencies, including the FAA, the U.S. Coast Guard, and the NTSB. Both the Coast Guard and the NTSB issued reports on the crash, which identified Mr. Castillo as the owner of the DC-7.

28. Mr. Castillo was responsible for the discharge of the 3,000 gallons of aviation fuel and 150 gallons of motor oil from the DC-7 into Florida's coastal waters.

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569, Florida Statutes (Supp. 1996), and Subsection 120.57(1), Florida Statutes (Supp. 1996).

30. Claudio Castillo is a "person" within the meaning of Subsection 376.031(13), Florida Statutes (Supp. 1992).

31. The discharge of pollutants into or upon any coastal waters of the State of Florida is prohibited by the Pollutant Discharge Prevention and Control Act (Act). Section 376.041, Florida Statutes (Supp. 1992). The Act is set forth in Sections 376.011-376.17, and 376.19-376.21, Florida Statutes.

32. Pursuant to Subsection 376.031(15), Florida Statutes (Supp. 1992), aviation fuel and motor oil are pollutants. The discharge of such pollutants into Florida's coastal waters is a violation of the Act. Section 376.041. Consequently, the discharge of 3,000 gallons of aviation fuel and 150 gallons of motor oil into Florida's coastal waters off John Lloyd State Park, Dania, Florida is a prohibited pollutant discharge and a violation of the Act.

33. DEP 2/ is permitted to use monies from the Florida Coastal Protection Trust Fund (Fund) to pay for the abatement of a pollutant discharge into Florida's coastal waters. Section 376.11, Florida Statutes. Monies from the Fund may be used by DEP to pay for administrative expenses, personnel expenses, equipment costs, all costs involved in the prevention and abatement of the pollution related to the pollutant discharge, and all costs and expenses related to the cleanup, including damages to natural resources. Section 376.11.

34. DEP is required to keep an accurate account of the costs related to the abatement of a pollutant discharge. Section 376.051, Florida Statutes (Supp. 1992).

35. For the discharge of the pollutants on November 6, 1992, at the Florida coastal waters off John Lloyd State Park, Dania, Florida, DEP incurred total costs for which accurate records were maintained in the amount of $43,912.50. All the costs were permitted by the Act. The incurred costs of

    $43,912.50 by DEP are proper and appropriate under the Act.

    
    

36. Damages to natural resources resulted from the pollutant discharge. DEP is authorized to assess damages to the natural resources. Applying the statutory formula in Section 376.121, Florida Statutes (Supp. 1992), DEP calculated the damages to be $57,898.72. Under the Act, the damages are proper and appropriate.

37. Moreover, DEP is mandated by the Act to recover its costs and expenses and compensation for damages to natural resources from the person responsible for the pollutant discharge and to reimburse the Fund. Sections 376.051, 376.11, and 376.121.

38. Mr. Castillo was the owner of the DC-7 aircraft. He was responsible for the pollutant discharge.

39. By invoice, DEP billed Mr. Castillo for the total costs that it incurred in responding to the pollutant discharge and for the damages to natural resources, totaling $101,811.22.

40. Certain statutory defenses are available to

Mr. Castillo. Subsection 376.12(6), Florida Statutes. However, because of his nonappearance, Mr. Castillo neither raised nor proved any of the defenses.

RECOMMENDATION

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

RECOMMENDED that the Department of Environmental Protection (DEP) enter a final order assessing Claudio Castillo $43,912.50 for costs related to DEP responding to the pollutant discharge on November 6, 1992, at Florida's coastal waters off John Lloyd State Park, Dania, Florida, and $57,898.72 for damages to natural resources resulting from the pollutant discharge--all totaling

$101,811.22.

DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997.

ENDNOTES

1/ Exhibit 2 had two subparts which were entered into evidence individually as Exhibit 2A and Exhibit 2B.

2/ The Act in effect at that time referred to the Department of Natural Resources. The Department of Environmental Protection was subsequently created by Legislature and replaced the Department of Natural Resources.

COPIES FURNISHED:

Larry Morgan, Deputy General Counsel Department of Environmental

Protection

3900 Commonwealth Boulevard Mail Station No. 35

Tallahassee, Florida 32399-3000

Kathelyn M. Jacques, Esquire Department of Environmental

Protection

3900 Commonwealth Boulevard Mail Station No. 35

Tallahassee, Florida 32399-3000

Claudio Castillo, pro se 1437 Northwest 24th Street Miami, Florida 33142

Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental

Protection

3900 Commonwealth Boulevard Mail Station No. 35

Tallahassee, Florida 32399-3000

Perry Odom, General Counsel Department of Environmental

Protection

3900 Commonwealth Boulevard Mail Station No. 35

Tallahassee, Florida 32399-3000

Virginia B. Wetherell, Secretary Department of Environmental

Protection

3900 Commonwealth Boulevard Mail Station No. 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-005181

Orders for Case No: 96-005181