STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Petitioner, )
)
vs. ) Case No. 85-2669
) 85-2812
K & F SERVICES, INC. and )
SUNSHINE-JR. STORES, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
These consolidated cases came on for hearing in Panama City, Florida before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings on April 21, 1986. The parties have filed proposed recommended orders, the latest being filed on May 13, 1986. The attached appendix addresses proposed findings of fact by number.
The parties are represented by counsel:
For Petitioner: Richard L. Windsor, Esquire
Twin Towers Office Building 2600 Blair Stone Road , Tallahassee, Florida 32301
For Respondent: Sam W. Boone, Jr., Esquire K & F Services Post Office Box 9475
Inc. Panama City Beach, Florida 32407
For Respondent: J. Ernest Collins, Esquire Sunshine-Jr. Post Office Box 517
Foods, Inc. Panama City, Florida 32402
On April 8, 1985, the Department of Environmental Regulation (DER) issued a notice of violation and orders for corrective action, alleging that gasoline had contaminated the groundwater on a site K & F Services, Inc. (K & F) had sold to Sunshine-Jr. Stores, Inc. (Sunshine) the preceding fall. OGC No 85-0176.
The proposed orders for corrective action call for
respondents to draw up and implement a water contamination assessment plan and a clean-up proposal.
K & F filed a petition for administrative proceeding which DER treated as a petition under Section 120.57(1), Florida Statutes (1985) and transmitted to the Division of Administrative Hearings, in accordance with Section 120.57(1) b)3., Florida Statutes (1985). Case No. 85-2669. Sunshine's petition for administrative proceeding was transmitted and docketed separately. Case No. 85-2812. By order entered September 10 1985, the cases were consolidated.
K & F disputed the classification of ground waters on the site. The notice of violation alleges G-II, but K & F had contended the proper class was G-III, and argued that the corrective orders should be amended accordingly. In its proposed recommended order, however, K & F indicated its agreement with the G-II classification.
In its original motion to dismiss, denied by order entered September 10, 1985, in its renewed motion to dismiss taken under advisement at hearing, and in its amended petition and answer to notice of violation, Sunshine has taken the position that the alleged contamination is wholly attributable to a violator other than itself. The present recommended order deals with this position and disposes of the pending motion by necessary implication.
ISSUES
Whether the alleged violation exists and, if so, whether orders for corrective action should be made final against respondents or either of them?
FINDINGS OF FACT
On October 17, 1984, Sunshine acquired from R & F what had been a filling station at the corner of U.S. Highway 98 and Laurie Avenue in Bay County, Florida. The old gas pumps had been moved some time before October 17, 1984. Only loose pipe connections leading to the underground storage tanks remained. The deed K & F executed in favor of Sunshine made no mention of these tanks. Respondent's Exhibit No. 1. Sunshine later contracted with Jake Walters, who began construction the following April to convert the site into a convenience store with gas pumps.
On January 25, 1985, long before bringing any petroleum product onto the property, Jake Walters' construction foreman, John Kenneth Barnes, began taking up the two-foot slab of
concrete that overlay K & F's underground storage tanks. The ground underneath the concrete smelled of gasoline. James Guris, who was overseeing the job for Sunshine, ordered work stopped and told Harold Millis, Sunshine's vice-president for real estate and construction, about the feel and smell of the soil.
When Mr. Millis learned of the situation, he decided that DER should be notified. Because by then it was too late in the day to reach DER, Jim Guris called DER's office in Panama City on the following Monday, January 28, 1985. He spoke to DER's Grady Swann, who told him to file a discharge notification form with DER. Mr. Swann said removal of the underground tanks could go forward.
Before removing the storage tanks, Mr. Barnes, or somebody at his direction, measured the depth of the tanks with a stick to determine how deep to dig. In this way two or three inches of gasoline were discovered in the bottom of each tank. Even though workmen secured a pump and pumped gasoline from each underground tank (into a 500-gallon tank mounted on a truck), they were unable to pump the tanks completely dry. In each of the three underground tanks, about a half inch of gasoline remained.
With a crane and lifting rigs, they raised the tanks in an upright position, without spilling any gasoline. Except inside where the half inch of gasoline stood, the tanks and appurtenant pipes and tubing were dry. Mr. Guris ordered pressure tests done on the tanks, each a cylinder some five feet in diameter. Two of the tanks passed this test, but the third failed. That tank had a hole approximately one quarter inch in diameter a little left of center, about half way up one end of the tank.
Groundwater on the site came within four and a half or five feet of the surface in early February of 1985. Because it contains less than 10,000 parts per million total dissolved solids, it is properly classified as G-II. A marine clay separates the surficial aquifer from the Floridan, but the surficial aquifer recharges the Floridan. Northeast of where the storage tanks were dug up and 300 to 350 feet way a two-inch well
390 feet deep supplies water from the Floridan aquifer to three households. Nobody has detected any odor or taste of gasoline in water from those wells.
Grady Swann took soil samples on site on February 8 and again on February 26, 1985. On his first visit, he noticed no sheen on the surface of the water standing in the area excavated around the old tanks, smelled no odor emanating from the standing water and did not take a sample. On his second visit, he did
notice evidence of groundwater contamination and took water as well as soil samples.
Mr. Swann returned on March 11, 1986, with Kenneth L. Busen and Mike Wilson of DER's Operation Response Team and used a power augur to put in temporary wells from which additional water samples were taken. These tests confirmed suspicions that the old gas tanks had leaked and revealed groundwater contamination attributable to gasoline including, in some samples, more than 1,000 times the allowable concentration of benzene.
Gasoline seeping through soil leaves residual hydrocarbons which contaminate percolating rain or other groundwater moving through the same soil. Petitioner's Exhibit No. 6 depicts the probable initial configuration of the plume of hydrocarbons in the vicinity of the old tanks. Contamination is moving down gradient to the northeast, spreading out but growing more dilute.
The steps called for by the proposed corrective orders are a reasonable way to mitigate environmental damage.
CONCLUSIONS OF LAW
The Department of Environmental Regulation has broad powers "to order the prevention, abatement, or control of the conditions creating [unlawful pollution] . or other appropriate corrective action." Section 403.121(2)(b), Florida Statutes (1985). In its proposed recommended order, DER abandons any efforts to "seek imposition of damages." TR P. 8. The evidence clearly and convincingly established unpermitted pollution of the groundwater on the property K & F sold Sunshine; and showed that the groundwater in the area is G-II.
The evidence requires the inference that gasoline leaked from the underground storage tanks during the time K & F was using them. At the time Sunshine acquired the real estate, it also became the owner of the underground storage tanks, as fixtures. DER's experts testified that pollutants already underground on the site when Sunshine purchased the property spread with the flow of groundwater, but the evidence affirmatively established that none of the gasoline was introduced into the environment during Sunshine's ownership.
Viewed in the light most favorable to DER, the evidence shows that polluted subsoil on site is a continuing source of additional groundwater pollution (even though pollution of the subsoil on site was itself an effect of antecedent groundwater pollution.) Under this view, Sunshine may be said to maintain a "stationary installation which will reasonably be expected to be
a source of . water pollution ... without an appropriate... permit," Section 403.087(1), Florida Statutes (1985), in violation of Section 403.161(1)(b), Florida Statutes (1985). Applicable in these circumstances is Section 403.141(2), Florida Statutes (1985), which provides:
Whenever two or more persons pollute the air or waters of the state in violation of this chapter or any rule, regulation, or order of the department so that the damage is indivisible, each violator shall be jointly and severally liable for such damage and for the reasonable cost and expenses of the state incurred in tracing the source of discharge, in controlling and abating the source and the pollutants, and in restoring the air, waters, and property, including the animal, plant, and aquatic life of the state, to their former condition. However, if said damage is divisible and may be attributed to a particular violator or violators, each violator is liable only for that damage attributable to his violation. Section 403.141(2), Florida Statutes (1985).
To like effect, a statutory defense to court actions DER institutes in water pollution cases is made out when an otherwise strictly liable party can prove
An act or omission of a third party, other than an employee or agent of the defendant or other than one whose act or omission occurs in connection with a contractual relationship existing, directly or indirectly, with the defendant, except when the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier by rail, if the defendant establishes by a preponderance of the evidence that: (a) The defendant exercised due care with respect to the pollutant concerned, taking into consideration the characteristics of such hazardous waste, in light of all. relevant facts and circumstances; and (b) The defendant took precautions against foreseeable acts or omissions of any such third party and against the consequences that could foreseeably result from such acts or omissions. Section 376.308(4), Florida Statutes (1985).
The present administrative proceeding is not, of course, a court action, but Section 376.308(4), Florida Statutes (1985) evinces a legislative purpose to avoid, albeit in another forum, imposition of liability on a party in the situation Sunshine finds itself in here.
Even under the view that Sunshine's ownership of contaminated subsoil amounts to maintenance of a pollution source, all of the pollution DER seeks to undo is ultimately attributable to the leaking storage tank, the primary "stationary installation" from which pollution in the area emanated. Since all the environmental "damage … may be attributed to a particular violator," Seetion 403.141(2), Florida Statutes (1985), or violators other than Sunshine, Sunshine is "liable only for that damage attributable to [its] . violation."
Section 403.141(2), Florida Statutes (1985). Even the incremental pollution, which polluted subsoil will cause in rain or groundwater flowing through it, is attributable in law to K & F, or its predecessor(s).
DER does not have the burden, once it proves that an unpermitted stationary source is causing pollution, to eliminate the possibility that some other polluter may have contributed to the problem. Here, however, Sunshine assumed the burden and proved clearly and convincingly that it introduced no petroleum on site, so that all pollution is necessarily attributable to others, whether K & F or some predecessor. In these circumstances, the statute exonerates Sunshine from liability for damages or for the costs of tracing and correcting the pollution.
If the rule were otherwise, the owner of an adjoining lot which gasoline leaking from K & F's tank had reached would be liable for clean up costs, since polluted soil there, too, has the potential of polluting rain or groundwater that passes through it. No less than an adjacent land owner, Sunshine is a victim of pollution that another caused.
Testimony that the proposed orders for corrective action are reasonable and appropriate went unrebutted. In opening and closing argument counsel for K & F asked for more time in which to comply, but a great deal of time has already elapsed. Sunshine has agreed to cooperate in any reasonable way with clean up efforts.
It is, accordingly,
That the proposed orders for corrective action be modified by adding a requirement that the Department of Environmental Regulation approve or disapprove any plan K & F submits in compliance with Paragraph 16 of the order within 10 days of submission.
That, as modified, the proposed orders for corrective action be made final as against respondent K & F Services, Inc. only.
That DER order Sunshine to cooperate with K & F, with DER and with their agents in assessing and cleaning up the damage, to the extent of making the site available at reasonable times under reasonable conditions.
DONE and ENTERED this 4th day of June 1986, in Tallahassee, Florida.
ROBERT T. BENTON, II
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division, of Administrative Hearings this 4th day of June, 1986.
COPIES FURNISHED:
Richard L. Windsor, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Sam W. Boone, Jr., Esquire Post Office Box 9475
Panama City Beach, Florida 32407
J. Ernest Collins, Esqiuire Post Office Box 517
Panama City, Florida 32402
APPENDIX
The first seven paragraphs of DER's proposed findings of fact have been adopted, in substance, to the extent they recite fact findings.
Paragraph eight of DER's proposed findings of fact relates to disposition of Sunshine's renewed motion to dismiss, which was taken under advisement at hearing. The recommended order treats the issue raised by the motion and recommends a disposition that would moot the motion.
Paragraphs nine, ten and eleven of DER's proposed findings of fact have been adopted, in substance.
Paragraph twelve of DER's proposed findings of fact has not been adopted. The evidence showed that K & F and its predecessors left the tank in the ground long enough for corrosion to eat a hole in it and allow gasoline to leak.
Paragraph thirteen of DER's proposed findings of fact has not been adopted because it is immaterial.
Paragraphs one and two of Sunshine's proposed findings of fact have been adopted, in substance.
Paragraph three of Sunshine's proposed findings of fact has been adopted in substance, except for the final sentence, which is rejected.
Paragraphs four through eleven of Sunshine's proposed findings of fact have been adopted, in substance.
K & F's proposed findings of fact have been adopted in substance, in their entirety.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
STATE OF FLORIDA DEPARTMENT OGC FILE NO. 86-0176
OF ENVIRONMENTAL REGULATION, DOAH CASE NOS. 85-2669 85-2812
Petitioner,
v.
K & F SERVICES, INC. AND SUNSHINE-JR. STORES, INC.,
Respondents.
/
FINAL ORDER
On June 4, 1986, the Division of Administrative Hearings hearing officer in the above-styled case entered his Recommended Order. A copy of that Order is attached as Exhibit A. Pursuant to Section 120.57(1)(b)9., Florida Statutes, and Florida Administrative Code Rule 17-103.200, all parties to the proceeding were allowed ten days in which to file exceptions to the Recommended Order. Petitioner, Department of Environmental Regulation ("Department"), filed timely exceptions, a copy of which are attached as Exhibit B. Respondent, Sunshine-Jr. Stores, Inc. ("Sunshine"), filed a response to the Department's exceptions, a copy of which is attached as Exhibit C.
BACKGROUND
The instant case involves the contamination of groundwater at a site in Bay County, Florida, as a result of leakage from an underground petroleum storage tank. At the time leakage was occurring, the site was owned by K & F Services, Inc. ("K & F"). On October 17, 1984, the property was acquired by Sunshine. The contamination was discovered when a contractor for Sunshine began excavation in the area.
The case began on April 8, 1985, when the Department issued a Notice of Violation and Orders for Corrective Action ("Notice of Violation") pursuant to Sections 403.121(2) and 376.303(1)(e),
Florida Statutes, attached as Exhibit D, alleging the gasoline contamination. The Notice of Violation's orders for corrective action called for Respondents conduct a groundwater contamination assessment and to prepare and implement a clean-up proposal. K & F filed a petition for administrative proceeding, which the Department treated as a petition under Section 120.57(1), Florida Statutes, and transmitted to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes. Sunshine also filed a petition for administrative proceeding, which was transmitted and docketed separately and subsequently consolidated with the petition of K & F.
After an administrative hearing, the hearing officer concluded that Sunshine was maintaining a stationary installation which could reasonably be expected to be a source of pollution.
However, the hearing officer found as a matter of law that Section 403.141(2), Florida Statutes, operates as a defense against liability for Sunshine. That section provides:
(2) When two or more persons pollute the air and waters of the state in violation of this chapter or any rule, regulation, or order
of the department so that the damage is indivisible, each violator shall be jointly and severally liable for such damage and for the reasonable cost and expenses of the state incurred in tracing the source of discharge, in controlling and abating the source and the pollutants, and in restoring the air, waters, and property, including the animal, plant, and
aguatic life of the state to their former condition. However, if said damage is divisible and may be attributed to a particular violator or violators, each violator is liable for that damage attributable to his violation.
Based on the facts, the hearing officer concluded that the contamination on Sunshine's property was "ultimately attributable" to K & F, the previous owner of the property, because an underground gasoline storage tank had leaked while under K & F's ownership. As a result, the hearing officer recommended that the orders for corrective action not be applied against Sunshine. The hearing officer found the corrective orders proper and appropriate in all other respects.
RULINGS ON EXCEPTIONS
The Department has filed six exceptions to the Recommended order s conclusions of law. Since there are no exceptions to findings of fact, I need not examine the record of this proceeding to make my rulings. My review of the exceptions will only entail examining the hearing officer's conclusions of law in light of the controlling statutes and the undisputed findings of fact.
Exception Number 1
The Department's first exception is to the hearing officer's conclusion that the Department has abandoned any effort to "seek imposition of damages." The Department asserts that it simply elected not to seek damages in this proceeding, but not that it was waiving the right to pursue damages in another forum. The Department has express authority under Section 403.131(2), Florida Statutes, to elect to recover damages either judicially or administratively, with the choice of election mutually exclusive. To the extent that the Recommended Order is inconsistent with the Department's stated intent and the provisions of the controlling statute, it is modified to reflect that the Department does not waive the right to seek damages in another forum.
Exception Number 2
The Department's second exception is to the hearing officer's conclusion of law that Section 403.141(2), Florida Statutes, is available to Sunshine as a defense to liability for cleanup of the contamination on its property. The hearing officer bases this conclusion on his statement that the pollution in this case is "ultimately attributable" as a matter of law to K & F Services, Inc., because of the Respondents' differing roles in causing and contributing to the contamination. I must agree with the Department's exception and conclude that the hearing officer incorrectly interpreted the statute.
Section 403.141(2), Florida Statutes, establishes joint And several liability for damages and recovery of costs when two or more persons cause pollution. The last sentence of that paragraph, upon which the hearing officer relies, relates only to the apportionment of liability for damages, not to the apportionment of liability for cleanup. In this administrative proceeding the Department is not seeking any damages. Instead it seeks to have Respondents take corrective actions to abate the pollution which has occurred and is continuing to occur at Sunshine's property.
The critical issue for determining the liability of the current owner is whether the owner's facility is or may be
expected to be a continuing source of pollution. The hearing officer recognized that "incremental pollution" will continue to occur at Sunshine's facility as a result of rain and groundwater flow through the polluted subsoil. That being the case, the current owner of that source, Sunshine, may be ordered by the Department to eliminate that source of continuing pollution.
Exception Number 3
The Department's third exception is to the conclusion of law which applies Section 376.308(4), Florida Statutes, generally to "water pollution cases." By its terms, Section 376.308,: Florida Statutes, applies only to a "suit instituted by the Department under Sections 376.30-376.315." Thus the defenses provided in Section 376.308(4), Florida Statutes, (which are more fully explained in my ruling on Exception Number 4) clearly do not apply to water pollution cases generally. The defenses are not available in actions brought under Chapter 403, Florida Statutes, or rules adopted pursuant to that Chapter, but only in actions instituted by the Department pursuant to Chapter 376, Florida Statutes.
Exception Number 4
In its fourth exception, the Department urges that the hearing officer erred in implicitly holding that the defenses established by Section 376.308, Florida Statutes, are applicable to Chapter
376 claims which are asserted by notice of violation. The Department argues that the language in Section 376.308 that states that the statute applies to "any suit instituted by the Department under ss. 376.30-376.315, Florida Statutes" makes the defense available only in civil suits and not administrative enforcement actions. I disagree with the Department's reasoning and I reject the fourth exception.
Section 376.308, Florida Statutes, does not limit its defenses to civil action. The statute provides that a person has only certain defenses to "any action under ss. 376.30-376.315" (emphasis supplied), which I interpret to include both civil and administrative enforcement actions. This interpretation is bolstered by the language in Section 376.303(1)(e), Florida Statutes, which authorizes the Department to:
(e) Bring an action on behalf of the state to enforce the liabilities -imposed by ss. 376.30-376.317. The provisions of ss. 403.121, 403.131, 403.141, and 403.161 apply to enforcement under ss. 376.30-376.317.
Since the Department's authority (Section 403.121) to file administrative complaints is included within the ambit of actions which the Department is authorized to take, it is clear that the defenses established by Section 376.308 are available to a person defending such an administrative enforcement action.
Although I hold that the Section 376.308 defenses are available in this administrative action, I disagree with the hearing officer's conclusion that any of the defenses relieve Sunshine of liability under the facts found. Under Section - 376.308(4), Florida Statutes, Sunshine can only prevail here if the facts show that the discharge of gasoline was solely the result of:
an act or omission of a third party . if the defendant establishes by a preponderance of the evidence that:
The defendant exercised due care with respect to the pollutant concerned, taking into consideration the characteristics of such hazardous aste, in light of all relevant facts and circumstances; and
The defendant took precautions against foreseeable acts or omissions of any such third party and against the consequences that could foreseeably result from such acts or omissions.
The facts found by the hearing officer do not support Sunshine's entitlement to the defense. The hearing officer specifically found that gasoline was seeping through the soil and that the contamination was spreading from its point of origin. Since "discharge" as defined by Section 376.301(3) includes the "seeping" of any pollutant, Sunshine has discharged a pollutant as prohibited by Section 376.302, Florida Statutes. Since the discharge was not solely the result of the act of a third party, the Section 376.308 defense does not relieve Sunshine of liability. Sunshine is liable to contain, remove, and abate the discharge in accordance with Section 376.305, Florida Statutes.
This interpretation of the statute is consistent with the stated legislative intent. Section 376.30, Florida Statutes, provides:
The Legislature finds and declares that the preservation of surface and ground waters is a matter of the highest urgency and priority .
The Legislature further finds and declares that:
* * *
(d) Such state interests outweigh any economic burden imposed by the Legislature upon those engaged in storing pollutants and related activities.
* * *
·(4) The Legislature further finds and declares that the preservation of the quality of surface and ground waters is of prime public interest to the State . and that the interest of the state in such preservation outweighs any burdens of liability imposed by the Legislature upon those persons engaged: in storing pollutants and related activities.
Moreover, it is clear that the Legislature intended for there to be broad liability under the provisions of Sections 376.30- 376.317, Florida Statutes. All owners or operators of a facility must demonstrate financial responsibility (Section 376.309); there is an absolute prohibition against the discharge of pollutants into waters or upon the ground (Section 376.302); any person discharging a pollutant must immediately take abatement actions (Section 376.305(1)): if the person causing the discharge or the person in charge of the facility fails to act, the Department may begin cleanup activities and seek cost reimbursement (Section 376.305(2)). Most importantly, in an action to enforce the liabilities established by the Legislature, the Department need not plead or prove negligence in any manner or form, but need only prove that the prohibited discharge occurred (Section 376.308).
The intent of the statute is to impose the broadest possible liability. In view of the serious nature of the problem being addressed, that position is clearly warranted. Considering the comprehensive regulatory scheme, the Legislature's explicit recognition that the liability imposed by the statute could be very burdensome, and the intent stated in Section 376.315 that the statute be liberally construed to effect its purposes, I conclude that Sunshine is liable to conduct cleanup pursuant to the provisions of Sections 376.30-376.315, Florida Statutes.
Exception Number 5
The Department's fifth exception is a mixture of its exceptions numbers 2 and 6. Therefore, I do not need to rule separately on this exception, but instead adopt my rulings on those other exceptions.
Exception Number 6
Finally, the Department takes exception to the hearing officer's conclusion that the "incremental pollution" resulting from leaching of petroleum caused by rainfall on the site or groundwater running through the soils is "attributable in law" to K & F. Again, I must accept the Department's exception.
As owner of the site, Sunshine is maintaining a stationary installation which has been found to be a source of pollution. The continuing pollution is a result of both the fact that the underground source of pollution has not been cleaned up as well as the fact that a leak had originally occurred. Each day that the contaminated site is not cleaned up, the pollution continues to spread. Contamination is occurring as a direct result of Sunshine's failure to take appropriate remedial measures to abate the discharge of pollutants from its property.
Although I hold that Sunshine is liable under the facts presented here, I do not agree with the hearing officer's conclusion that it follows that a passive, adjacent landowner whose property becomes contaminated by the flow of gasoline from Sunshine's property would also necessarily be liable to take remedial action. Such a determination will depend on the facts presented in each case.
Sunshine is not liable here solely because it owns the contaminated property. Sunshine's liability turns on the fact that it purchased a gasoline storage facility which is the very source of the gasoline contamination which is spreading from the site. The record clearly reflects that Sunshine knew that the property had been used for gasoline storage and distribution and intended to continue that use after purchase. Gasoline contamination of soil and groundwater is a risk attendant to such a use of property, and a purchaser of such a facility must be on guard against such risk. Sunshine bought the property with the intent to benefit from its use as a gasoline storage facility: with the benefits of such use go the burdens.
The problems posed by leaking underground gasoline storage tanks were well known even in 1984 when Sunshine purchased the property. Sunshine could have taken steps to protect itself from the liability it might assume by buying a contaminated site, such as putting part of the purchase price in escrow to cover possible cleanup costs, conducting a simple assessment to determine if the tanks which were on the property had leaked, or requiring as a contract condition that the seller perform any required cleanup. Sunshine cannot now be heard to complain that the burden of cleanup is being unfairly placed when Sunshine did not take simple precautions to protect itself Sunshine's failure to
exercise good business judgment is not a defense to liability for cleanup.
CONCLUSION
In summary, I make the following Conclusions of Law and reject the hearing officer's contrary conclusions:
Section 403.131(2), Florida Statutes, authorizes the - Department to seek the recovery of damages either administratively or judicially. The Department has not waived or abandoned its right to seek the recovery of damages by not pursuing that claim in this forum.
The last sentence of Section 403.141(2), Florida Statutes, does not constitute a defense to an action by the Department for clean up of contaminated property or groundwater. Liability for cleanup is joint and several only liability for damages is divisible pursuant to Section 403.141(2), Florida Statutes, and only to the extent that a person carries his burden of proving that the damage was clearly divisible.
The "third party" defense established by Section 376.308(4), Florida Statutes (1985), applies only to actions instituted pursuant to Sections 376.30-376.315, Florida Statutes, or rules promulgated pursuant to that chapter.
The defenses established by Section 376.308, Florida Statutes, are available in administrative enforcement actions under Sections 376.30-376.315, Florida Statutes. However, the "third party" defense established by Section 376.308(4), Florida Statutes (1985), is not available to Sunshine under the facts of this case. The present contamination is not solely the result of the acts or omissions of K & F, and Sunshine therefore is liable under the provisions of Sections 376.30 -376.315, Florida Statutes.
As owner of the contaminated property which has been found to be a continuing source of groundwater pollution. Sunshine is maintaining a stationary installation which is a source of pollution in contravention of Section 403.087, Florida Statutes. Sunshine is responsible for abating this source of pollution which is present on its property and which is causing continued contamination of surrounding property and groundwater.
ORDERED
Having considered the hearing officer's Recommended Order and the exceptions and responses to exceptions filed by the parties, it is hereby
ORDERED:
The hearing officer's findings of fact are adopted in their entirety in this Final Order.
The hearing officer's conclusions of law are adopted in this Final Order, except as they have otherwise been modified or rejected by this Final Order.
Both Respondents are ordered to comply with the terms of the Orders for Corrective Action as set forth in the Notice of Violation attached as Exhibit D to this Final Order. The Department shall expeditiously respond to any plan submitted by either party. (Although the hearing officer recommended that the Department respond within 10 days, I find such a limitation inappropriate given the complexity of the matters at issue.)
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes,- by filing a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, 2600 Blair Stone
Road, Tallahassee, Florida 32399-2400 and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the Clerk of the Department.
DONE AND ORDERED this 26th day of September, 1986 in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
VICTORIA TSCHINKEL
Secretary
Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Telephone: (904) 488-4805
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been furnished by U.S. Mail to SAM W. BOONE, Esquire, Attorney for Respondent K & F Services, Inc., Post Office Box 9475, Panama City Beach, Florida 32407; and to J. ERNEST COLLINS, Esquire, Attorney for Respondent Sunshine-Jr. Stores, Inc., Post Office Box 517, Panama City, Florida 32402: and by hand delivery to RICHARD L. WINDSOR, Assistant General Counsel, Attorney for Petitioner, 2600 Blair Stone Road, Tallahassee, Florida 32399- 2400 on this 26 day of September, 1986.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DANIEL H. THOMPSON
General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904) 488-9730
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been furnished by U.S. Mail to SAM W. BOONE, Esquire, Attorney for Respondent K & F Services, Inc., Post Office Box 9475, Panama City Beach, Florida 32407 and to
J. ERNEST COLLINS, Esquire, Attorney for Respondent Sunshine Jr. Stores, Inc., Post Office Box 517, Panama City, Florida 32402, and by hand delivery to RICHARD L. WINDSOR, Assistant General Counsel, Attorney for Petitioner, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400 on this 26th day of September, 1986.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DANIEL H. THOMPSON
General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904) 488-9730
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
SUNSHINE JR. STORES, INC., NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION AND
Appellant, DISPOSITION THEREOF IF FILED.
vs. CASE NO. BQ-98
DOAH CASE NO. 85-2669
STATE OF FLORIDA, DEPARTMENT 85-2812
OF ENVIRONMENTAL REGULATION,
Appellee.
/ Opinion filed March 10, 1989.
An appeal from a final order of the Department of Environmental Regulation.
Wilbur E. Brewton and Janice G. Scott, Tallahassee, for Appellant.
E. Gary Early, Assistant General Counsel, DER, Tallahassee, for Appellee.
THOMPSON, Judge.
Sunshine Jr. Stores, Inc. (Sunshine) appeals a final order of the State of Florida, Department of Environmental Regulation (DER) finding Sunshine, the present owner of the property, jointly liable with a former owner for the cleanup of its property which had become polluted by a leaking underground gasoline storage tank. We reverse.
From 1979 to 1984 K & F Services, Inc. (K & F) owned and operated an Amoco Service Station located on U.S. Highway 98 in Bay County. Gasoline for sale at the station was stored on the premises in underground tanks. Sometime prior to October 1984 K F ceased to operate the service station. The gas pumps and other equipment were removed, but the underground tanks were not.
The tanks were apparently substantially emptied at this time, leaving only three inches of gasoline remaining in each of the three tanks. On October 17, 1984, K & F sold the property to Sunshine, which purchased it with the intention of removing the existing structure and replacing it with a modern convenience store and gas station. At the time of the purchase Sunshine knew that the property had formerly been a service station and knew that the old gasoline storage tanks were still in the ground on the site. Sunshine did not intend to, and did not, do any business on the site using the existing improvements. Instead it immediately hired contractors and began to remove all existing improvements, including the tanks, so as to prepare the site for the new construction. In January 1985 a contractor began removing the existing concrete slab over the underground tanks, at which time he smelled gasoline and notified Sunshine. Sunshine then reported the apparent gasoline leak to DER. Subsequently, it was determined that one of the storage tanks had leaked and that the soil and groundwater beneath the site were polluted with gasoline. It was further determined that gasoline which had previously leaked from the tank was continuing to seep through the soil and into the water table beneath the site, and posed a potential threat to the water table and water wells located nearby.
In a Notice of Violation and Order for Corrective Action dated April 8, 1985 DER named both Sunshine and K & F as respondents, and alleged, in part: (1) that DER is the agency charged with administering Chapters 376 and 403, Fla. Stat. and rules promulgated thereunder; (2) that K & F's activity on the property currently owned by Sunshine resulted in a discharge of refined petroleum products upon the lands and waters of the state; (3) that the discharge from K & F's tank had contaminated groundwater and constituted an odor nuisance, an eminent and substantial danger to public health, and was impairing the reasonable beneficial use of adjacent waters; and (4) that upon application of Chapters 376 and 403, Fla. Stat. and Fla. Admin. Code Rules Chapters 17-3 and 17-4, to the facts of the case, the respondents were in violation of §376.302, Fla. Stat. (prohibiting discharge of refined petroleum products upon waters and lands of the state); Fla. Admin. Code Rule 17-3.402(1) (requiring that all ground waters at all places and times be free from toxic pollutants); 403.16 (1)(a), Fla. Stat., (prohibiting pollution harmful to human, animal, aquatic or plant life, or property; and s403.161(1)(b), Fla. Stat., (making it unlawful for any person to violate any lawful rule or regulation of the Department). The notice of violation did not specifically mention §403.087, Fla. Stat., relating to the requirement of a permit by a stationary installation which could reasonably be expected to be a source of water pollution.
Upon receipt of the notice of violation, both Sunshine and K & F filed petitions for Chapter 120 proceedings. In its petition for formal administrative hearing, Sunshine denied the charges set out in the notice of violation and asserted as an affirmative defense that any discharge of petroleum products which may have occurred prior to its acquisition of the property was the responsibility of its predecessors in title. At the same time Sunshine filed a motion to dismiss arguing that because the discharge occurred prior to its purchase and use of the property, it had no legal responsibility for the cleanup. In its response to Sunshine's motion to dismiss, DER again failed to specifically allege Sunshine to be in violation of 9403.087, Fla. Stat.
Instead, DER realleged violations of Chapter 403, Fla. Stat. generally, and asserted that Sunshine's property was a source of pollution and was a "stationary installation" as defined in Chapter 403.
On April 21, 1986, a formal administrative hearing was held, and on June 4, 1986, the hearing officer entered a recommended order wherein he concluded, in part: (1) that the evidence affirmatively proved that the gasoline was not released into the environment during Sunshine's ownership of the property; (2) that
§403.141(2) (providing that if damage attributable to two or more polluters is divisible, each polluter should be held liable only for the damage he caused) and 3376.308(4) (providing a "third party polluter" defense in action to force cleanup of polluted properties) evince the legislative intent not to impose liability on parties in Sunshine's situation; and (3) that all of the pollution at issue was necessarily attributable to parties other than Sunshine and under such circumstances, "the statute exonerates Sunshine from liability."
In accordance with his interpretation of the facts and the law, the hearing officer thereupon recommended that the order for corrective action be modified to place all responsibility for cleanup of the pollution on K & F, with Sunshine to be responsible only for cooperating with the cleanup effort by permitting reasonable access to the property. DER filed exceptions to the hearing officer's conclusions of law, but did not dispute his findings of fact.
In its final order, DER approved and adopted all of the findings of fact set forth in the recommended order, but rejected certain of the hearing officer's conclusions of law.
Specifically, DER ruled (1) that the provisions of §403.141(2) providing for divisibility of liability wherein environmental "damage is divisible apply only to liability for damages, and not to liability for cleanup costs; (2) that the third party defense established by 6376.308(4) did not apply to relieve Sunshine of
liability for cleanup since the gasoline contamination at issue was not solely the result of acts or omissions of K & F; (3) that as owner of a contaminated property which is continuing to maintain a source of groundwater pollution appellant is "maintaining" a stationary installation which is a source of pollution contrary to §403.087; and (4) that Sunshine is therefore responsible for abating the pollution emanating from its property. Accordingly, DER ordered both K & F and Sunshine to comply with the order for corrective action and to proceed with the cleanup of the gasoline spill.
We concur with DER's conclusion that our legislature, in enacting Chapters 376 and 403, mandated liberal construction of the statutes to protect the public health, safety, and welfare. It did not make liability for polluting the environment contingent on a showing of negligence or fault. DER admits, however, that to prove a violation it must prove causation which, in this case, required a showing that there was a discharge, that Sunshine knew of it, and that Sunshine did nothing, thereby contributing to the damage. We also concur in DER's contention that as a state agency charged with interpreting and enforcing Chapters 376 and 403, its interpretation of those statutes should be accorded great weight and that a permissible interpretation of those statutes by DER should be upheld. However, in this case, DER's conclusions of law are based on completely erroneous facts that are contrary to the findings of fact of the hearing officer which DER accepted. DER contends that the third party defense established by 8376.308(4) did not apply to relieve Sunshine for liability for the cleanup since the gasoline contamination at issue was not solely the result of the acts or omissions of K & F, and that as owner of contaminated property which is continuing to constitute a source of groundwater pollution, Sunshine is "maintaining" a stationary installation which is a source of pollution contrary to s403.087. DER also admitted that to prove a violation it must show there was a discharge and that Sunshine knew of it.
The evidence in this case conclusively shows without any contradiction the following facts: (1) that there were three underground tanks on the property purchased by Sunshine but that Sunshine had no knowledge of the conditions of the tanks or that any of the tanks had leaked at anytime in the past; (2) that Sunshine had no knowledge that there had been a discharge of gasoline until its contractor was in the process of removing the tanks in order to construct a new facility; (3) that the three tanks were checked and were found to have three inches of gasoline in the bottom of each tank; (4) that all but one inch of gasoline was pumped out before the tanks were moved; (5) that the tanks were pressure tested and two tanks passed the pressure test but a hole was found in the third tank in one end approximately
30 inches from the bottom of the tank; and (6) that at no time during its ownership of the property did Sunshine ever put gasoline in any of the tanks. Under the above facts, it is impossible that any gasoline was discharged or leaked from the defective storage tank after Sunshine's acquisition of the property and during its ownership. The only hole in the defective tank was approximately 30 inches above the bottom of the tank and the gasoline level in that tank had necessarily been reduced to approximately three inches above the bottom prior to Sunshine's acquisition of the property. It is impossible that any gasoline could have been discharged from the tank into the surrounding soil during Sunshine's ownership under those facts. As defined in §376.301(3):
"Discharge" includes, but is not limited to, any spilling, leaking, seeping, pouring, misapplying, 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.
DER contends that because "seeping" constitutes a "discharge" under that section. Sunshine has discharged a pollutant in violation of 8376.302. This is an untenable interpretation of the term "discharge" The mere continuing movement of a pollutant which had been previously discharged into the ground by a former property owner does not constitute a discharge chargeable to a subsequent owner within the meaning of s376 .301 ( 3 ) .
Sunshine was not guilty of a discharge of any pollutant and therefore was not guilty of any violation of Chapters 376 or 403. The final order of DER is reversed and the cause is remanded with instructions to enter a final order in accordance with tne recommended order of the hearing officer.
REVERSED and REMANDED.
SHIVERS and NIMMONS, JJ O, CONCUR.
| Issue Date | Proceedings |
|---|---|
| Jun. 04, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 26, 1986 | Agency Final Order | |
| Jun. 04, 1986 | Recommended Order | Landowner proved gasoline leaked into groundwater before it was purchased and not at all afterwards. Only previous owner is liable for clean up. |
