STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI YACHT DIVERS, INC., )

)

Petitioner, )

)

vs. ) Case No. 96-5850

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 25, 1997, at Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: N. Paul San Filippo, Esquire

SEIDENSTICKER & SAN FILIPPO

2150 Goodlette Road, Suite 305

Naples, Florida 34102

For Respondent: Kathelyn M. Jacques

Assistant General Counsel Department of Environmental

Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE

Whether Petitioner, Miami Yacht Divers, Inc., is entitled to reimbursement for cleanup costs.

PRELIMINARY STATEMENT

This case began on August 20, 1996, when the Department of Environmental Protection (Department) issued a Final Order denying Petitioner's request for reimbursement of cleanup costs. This Final Order was filed with the Agency's clerk on or about September 17, 1996. Thereafter, Petitioner timely filed a Petition Contesting Final Decision and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on December 13, 1997.

At the hearing, the Petitioner presented testimony from Vincent Sedeno, Ken Hilliard, Daniel Delmonico, and Bob Weihe. Petitioner's Exhibits numbered 1 through 15 were admitted into evidence.

Respondent offered testimony from Debra Preble, Bill Keenan, and Jim Coiner. Its Exhibits numbered 1 through 5 were also received into evidence.

Due to issues regarding the accuracy of the transcript, the parties stipulated that the transcript would be reviewed and that a corrected version would be filed with the Division of Administrative Hearings. Such corrected transcript was eventually filed on October 6, 1997. Thereafter, the parties' requests for extensions of time to file their Proposed Recommended Orders were granted. The parties were granted leave until November 21, 1997, to file their proposed orders. Such orders have been considered in the preparation of this order.

FINDINGS OF FACT

1. The Respondent is the state agency charged with the responsibility of administering claims against the Florida Coastal Protection Trust Fund.

2. Petitioner is a company located in Dade County, Florida, which performs commercial diving operations. Such operations include oil pollution containment and clean-up.

3. At all times material to the allegations of this case, Dan Delmonico was the principal officer or owner for the Petitioner who supervised the operations of the company.

4. In April of 1993, Mr. Delmonico discovered a fuel discharge next door to the premises of Defender Yacht, Inc., a company located on the Miami River in Dade County, Florida. The source of the discharge was an abandoned sunken vessel. This derelict vessel had no markings from which its ownership could be determined.

5. Upon discovering the vessel, Mr. Delmonico did not contact local, state, or federal authorities to advise them of the discharge. Instead, Mr. Delmonico contacted several colleagues whose help he enlisted to assist him to clean up the discharge.

6. In this regard, Mr. Delmonico procured the services of a diver and a crane company to remove the vessel from the water. Additionally, Mr. Delmonico utilized a boom and oil absorbent clean-up pads to remove the discharged fuel from the water.

7. In total, Mr. Delmonico maintains it took four work days to complete the removal of the discharge and the salvage of the derelict vessel. At no time during this period did Mr. Delmonico contact local, state, or federal authorities to advise them of the foregoing activities.

8. No official from any governmental entity supervised or approved the clean-up operation or salvage activity which is in dispute.

9. After the fact Petitioner filed a reimbursement claim with the United States Coast Guard. Such claim was denied.

10. Upon receipt of such denial, Petitioner filed the claim which is at issue in the instant case. In connection with this claim with Respondent, Petitioner submitted all forms previously tendered to the Coast Guard including the standard claim form, labor receipts, rental receipts, supply receipts, trailer and storage receipts, cash expenses, a job summary, and photographs.

11. On or about September 20, 1996, Respondent issued a letter denying Petitioner's claim for reimbursement for expenses associated with the above-described salvage and clean-up activities.

12. The grounds for the denial were the Petitioner's failure to obtain prior approval for the activities and the absence of "good cause" for the waiver of prior approval. Additionally, the Respondent maintained that Petitioner had failed to provide evidence that a pollutant discharge existed and

    that the removal of the vessel was necessary to abate and remove the discharge.

13. It is undisputed by Petitioner that prior approval for the clean-up activities was not obtained.

14. Petitioner timely disputed the denial and was afforded a point of entry to challenge such decision.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

16. In 1993, Section 360.09, Florida Statutes, provided, in pertinent part:

    (7) Any person who renders assistance in containing or removing any pollutant may be eligible for reimbursement of the cost of containment or removal, provided prior approval for such reimbursement is granted by the department. The department may, upon petition and for good cause shown, waive the prior-approval prerequisite. (Emphasis added.)

17. Petitioner bears the burden of proof in this matter to establish that it is entitled to reimbursement for clean-up costs. It has failed to meet that burden.

18. First, Petitioner does not allege prior approval for the clean-up activities. Therefore, as a matter of law, Petitioner must establish good cause for failure to seek prior approval. In this instance, Petitioner has failed to show good cause.

19. Petitioner did not notify any authority of the discharge. It gave no legal entity an opportunity to assess the discharge level and to quantify measures which might be appropriate to counter the situation. Under the auspices of attempting to be a good environmental citizen, Petitioner unilaterally undertook a salvage operation which resulted in the expenses now claimed for reimbursement.

20. No governmental authority was privy to the activities which are the subject of this reimbursement claim. Whether the derelict vessel had to be craned from the water in order to secure its content, whether it was required to be trailered and stored (incidental to Petitioner's effort to sell the vessel), and whether the fuel allegedly pumped from it was an imminent threat for discharge are all questions Petitioner chose to answer without input from any governmental agency. Petitioner had adequate time and resources to summon aid from other companies but has failed to express any credible basis for the failure to alert authorities to this discharge. Arguably, under federal law, as soon as Petitioner took charge of the vessel, notice of the discharge was required.

21. Assuming arguendo that Petitioner could be compensated for removing a discharge, such expenses should not include trailer and storage fees for the vessel. The removal of the vessel was to facilitate its sale, not to abate a discharge.

22. Finally, Petitioner claims that the evidence has established a discharge (approximately fifty gallons), a threat of discharge (approximately three hundred gallons), and that Petitioner incurred expenses to abate or contain same. As a result, Petitioner argues, since the Department has not defined "good cause," it should be reimbursed for its clean-up efforts. To this end, Petitioner cites Section 376.11, Florida Statutes. Such provision states that the law should be liberally construed to effect its purposes and that moneys in the Florida Coastal Protection Trust Fund shall be disbursed for the purpose of costs and expenses of clean-up. Such argument is without merit as it would render the provisions of Section 376.09, Florida Statutes, meaningless.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Petitioner's claim for reimbursement.

DONE AND ENTERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida.

J. D. Parrish Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997.

COPIES FURNISHED:

Kathy Carter, Agency Clerk Department of Environmental

Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel Department of Environmental

Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Kathelyn M. Jacques Assistant General Counsel Department of Environmental

Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

N. Paul San Filippo, Esquire Seidensticker & San Filippo Parkway Financial Center

2150 Goodlette Road, Suite 305

Naples, Florida 34102

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: 96-005850

Orders for Case No: 96-005850