STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS L. MCNAUGHTON, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4268

) STATE OF FLORIDA DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this case was heard by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on December 8, 1989, in Pensacola, Florida.

APPEARANCES

For Petitioner: Thomas L. MCNAUGHTON, pro se

Route 1, Box 167

Jacksonville, FL 32565

For Respondent: D. Gary Early, Esquire

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

STATEMENT OF THE ISSUES

Did the site in question fail to meet monitoring and retrofitting requirements within the schedules established under Chapter 17-61, Florida Administrative Code, and thereby not be eligible for the Early Detection Incentive Program?

PRELIMINARY STATEMENT

The Petitioner timely requested formal proceedings pursuant to Section 120.57, Florida Statute, contesting its denial of eligibility. In due course, the matter was forwarded to the Division of Administrative Hearings and ultimately to the undersigned Hearing Officer. The hearing was scheduled for December 8, 1989, in Pensacola, Florida, and was conducted as scheduled. The Petitioner and Petitioner's wife presented testimony and evidence. The Respondent presented the testimony of its inspector. The Hearing Officer's Exhibits 1, 2, 3 and 4 were received into evidence. Findings of Fact were received from the Respondent on January 3, 1990. These findings were adopted with few minor changes, with the exception of paragraphs 3, 8 and 9, which were moved to the Conclusions of Law.

FINDINGS OF FACT

1. The State Underground Petroleum Environmental Response (SUPER) Act of 1986 was enacted as Chapter 86-159, Laws of Florida, and codified primarily in Section 376. 071, Florida Statutes. It provides for the expeditious cleanup of property contaminated as the result of storage of petroleum or petroleum product.

   
   

2. As part of the SUPER Act, the legislature created the program which is of direct relevance in this litigation. The EDI Program, Section 376.3071(9), Florida Statutes,, provides for state cleanups of sites contaminated as a result of a discharge from a petroleum storage system.

   
   

3. Petitioner now owns and operates a facility at Route 1, Box 167 Jay, Florida. (Hearing Officer's Exhibit 2).

   
   

4. The facility contains two underground petroleum storage tanks which were installed on or before 1970. (T8, 9).

   
   

5. Monitoring wells were installed for the tanks in December, 1988. (T7).

   
   

6. Monitoring wells are pipes which are installed in the ground around a tank excavation to allow for detection of leaks from the tanks. (T8).

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The primary issue involved in this litigation is whether the Department acted within its delegated legislative authority in excluding Petitioner's site from the Early Detection Incentive Program on the ground that the owner or operator of the site failed to meet the monitoring and retrofitting requirements within the schedules established under Chapter 17-(,3I, Florida Administrative Code.

   
   

9. The Respondent has the responsibility and statutory authority to implement and administer the provisions of Chapter 376, Florida Statutes.

   
   

10. The legislature provided that some contamination sites would not be eligible for the EDI Program. In Section 376.3071(9)(b)3., Florida Statutes, the legislature provided that:

    
    

    Upon discovery by the Department that the owner or operator of a petroleum storage system has been grossly negligent in the maintenance of such petroleum storage system... the site at which such system is located shall be ineligible for participation in the incentive program

    and the owner shall be liable for all costs due to discharges from Petroleum storage systems at that site, any other provisions of Chapter 86-159, Laws of Florida, to the contrary notwithstanding.

    For the purposes of this paragraph, willful failure to maintain inventory and reconciliation records, willful

    to make monthly monitoring system checks where such systems are in place and failure to meet monitoring and retrofitting requirements within the schedules established under Chapter 17- 61, Florida Administrative Code, or violation of similar rules adopted by the?

    Department of Natural Resources under this Chapter, shall be construed to be gross negligence in the maintenance of a petroleum storage system. (emphasis supplied)

    
    

11. The Department has the burden of proof of demonstrating whether any exclusions to eligibility apply to a site.

12. Section 17.61.060(2)(c)2., Florida Administrative Code, provides that: In achieving the above compliance,

    retrofitting shall be completed by

    December 31 of the appropriate year shown in the table below. If the age of the tank cannot be determined, retrofitting shall be completed by the earliest date shown

    
    

    Year Retrofitting Required

    
    

    Year Tank

    Installed 1986 1987 1988 1989 1992 1995 1998

    
    

    Prior to 1970	MO			LR
    1970-1975		MO			MO
    1976-1980			MO			LR
    1981-9/1/84				MO			LR

    
    

    MO = Installation of Monitoring System and Devices and Overfill Protection

    
    

    LR = Lining or Replacement of Non-Approved Type Tanks

    
    

13. The evidence submitted at this hearing is uncontroverted that the tanks at the facility were installed prior to 1970 and were, therefore, required by Chapter 17-61, Florida Administrative Code, to be retrofitted with monitoring wells by no later than December 31, 1986. Monitoring wells were not installed until 1988.

    
    

14. Section 376.3071(9)(b)3., Florida Statutes, specifically provides that failure to meet the monitoring-well requirements within the time frames of Chapter 17-6I, Florida Administrative Code, constitutes gross negligence The operation of a petroleum storage system in a grossly-negligent manor operates as a statutory bar to the site's eligibility.

15. Section 376.3071(9)(b)3., Florida Statutes, lists a number of factors which are considered to be gross negligence which require some "'willful" act before the exclusion applies. However, the legislature provided that mere failure to meet the monitoring and retrofit requirements would be construed as gross negligence. The owner failed to meet those requirements; therefore, the site is ineligible.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that the site owned by Petitioner be determined to be ineligible for the Early Detection Incentive Program, pursuant to Section 376.3071(9), Florida Statutes.

DONE AND ORDERED this 9th day of January, 1990, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto

1230 Apalachee Parkway Tallahassee, FL 32399-15SO (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1990.

COPIES FURNISHED:

E. Gary Early, Esq. Assistant General Counsel

Florida Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

Mr. Thomas L. MCNAUGHTON MCNAUGHTON's Store

Route 1

Jay, FL 32565

Mr. Dale H. Twachtmann Secretary

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

Daniel H. Thompson, Esq. General Counsel

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

Docket for Case No: 89-004268

Orders for Case No: 89-004268