STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RINKER MATERIALS CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-7189

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, J. Stephen Menton, held a formal hearing in the above-styled case on June 1, 1990, in Miami, Florida.

APPEARANCES

For Petitioner: Richard A. Pettigrew, Esquire

Morgan, Lewis & Bockius

200 South Biscayne Boulevard Miami, Florida 33181

For Respondent: Janet E. Bowman

Assistant General Counsel Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

The issue in this case is whether Petitioner's site located at 13292 N.W.

118th Avenue in Miami, Florida is eligible for reimbursement of the costs of petroleum contamination cleanup pursuant to Section 376.3071(12), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner filed an Early Detection Incentive Notification Application with Respondent, Department of Environmental Regulation ("DER"), seeking a determination that it is eligible for reimbursement of the costs of petroleum contamination cleanup at the Rinker FEC Quarry, 13292 N.W. 118th Avenue, Miami, Florida 33127. On November 23, 1989, the Department issued an Order denying Petitioner reimbursement eligibility pursuant to Section 376.3071(12)(b), Florida Statutes. The application denial cited the following two reasons:

1. That contamination at the facility has been attributed to a mixture of overfills from waste oil, and hydraulic fluids which are not petroleum or petroleum products as those terms are defined in Sections 376.301(9) and (10), Florida Statutes; and

   
   

2. Participation in the Reimbursement Program is limited to sites reported on or prior to December 31, 1988. The notification for this facility was mailed after this date.

At the hearing, the Petitioner presented the testimony of William Payne and William Voshell of Rinker Materials, Inc. and Alan Gillespie of the Dade County Department of Environmental Resource Management (DERM). Petitioner offered three exhibits into evidence, all of which were accepted. The Respondent presented the testimony of Alan Gillespie of DERM and Patricia Dugan, Bureau of Waste Cleanup, Division of Waste Management, Department of Environmental Regulation. Respondent offered five exhibits into evidence, all of which were accepted.

A transcript of the proceeding has been filed. Proposed recommended orders were originally scheduled to be filed by June 21, 1990. However, Petitioner filed a Motion for Extension of Time to which Respondent did not object and the parties were advised by phone that all post-hearing submittals were due by June 26, 1990. Both parties have timely submitted proposed recommended orders. A ruling on each of the proposed findings of fact set forth in the proposed recommended orders is included in the Appendix attached hereto.

FINDINGS OF FACT

1. Petitioner Rinker Material Corporation ("Rinker") owns and operates a site known as the Rinker FEC Quarry located at 13292 N.W. 118th Avenue, Miami, Florida 33127 (the "site"). At the Site, Rinker operated three (3) one thousand (1,000) gallon tanks which stored waste oil, virgin oil and hydraulic fluid.

   
   

2. The DER Facility ID Number for the Site is 138628827.

   
   

3. On December 2, 1988, Petitioner, as part of a tank replacement program that it was attempting to conduct in compliance with the applicable state and county regulations, began excavating the three underground storage tanks at the Site. During the excavation, a visible sheen was discovered.

   
   

4. At the time of the excavation on December 2, 1988, Alan Gillespie of the Dade County Environmental Resource Management (DERM) was present to conduct a closure inspection of the Site.

   
   

5. The December 2, 1988 closure inspection was conducted for Dade County DERM in its own capacity and not as an agent for DER.

   
   

6. The purpose of the December 2, 1988 visit by Alan Gillespie was to inspect the removal and closure of the three 1,000 gallon tanks containing, respectively, waste oil, new oil and hydraulic fluid.

   
   

7. Mr. Gillespie's inspection indicated that, while there appeared to be no holes in the tanks, free product was visible.

8. Mr. Gillespie noted in his inspection report, dated December 2, 1988, that the contamination was not caused by a tank leak, but, instead, by overspills caused by the pouring of waste oil into the tank, spilling locally around the riser and then contaminating the soil around the tank.

   
   

9. Rinker took samples at the Site and submitted them to a laboratory for analysis. It is not clear when the laboratory report was returned, but it generally takes two (2) weeks to obtain the laboratory analysis.

   
   

10. Upon receipt of the laboratory report, Rinker initiated its efforts to apply for participation in the Inland Protection Trust Fund for reimbursement or site rehabilitation.

    
    

11. In order to participate in the Inland Protection Trust Fund, an applicant was required to submit an Early Detection Incentive Program Notice (the "EDI Form") to DER prior to midnight on December 31,. 1988.

    
    

12. The back of the EDI Form states that the form must be filed with and received by DER during the 15 month grace period beginning July 1, 1986 and ending October 1, 1987.

    
    

13. The EDI program was; originally scheduled to end on September 30, 1987. However, the deadline for filing was extended by the legislature to December 31, 1988.

    
    

14. The EDI Notification Form was not amended to change the dates to reflect subsequent amendments to the reporting date made by the legislature.

    
    

15. While the back of the EDI Application Form indicates that the notification form must be filed with and received by DER on or prior to the initial deadline, DER considered as timely all applications with a postmark on or before the extended deadline of December 31, 1988.

    
    

16. Petitioner's EDI Form for the Site was prepared by William Voshell, environmental manager for Rinker. Mr. Voshell was out of the state during the last few days of December, 1988.

    
    

17. Petitioner's EDI Form was reviewed and signed by William Payne as Vice President of Real Estate for Rinker, on Friday, December 30, 1988.

    
    

18. William Payne was informed by Mr. Voshell that the EDI Forms needed to be sent out before the end of the year.

    
    

19. A cover letter accompanying the EDI Form for the Site was signed for Mr. Voshell by his secretary, Linda Vasquez on December 30, 1988.

    
    

20. After signing the EDI Form, William Payne returned the application to Linda Vasquez to "process to mail". He reminded her that it had to be mailed that day. Ms. Vasquez placed the EDI Form and the cover letter in the Petitioner's mail system on December 30, 1988.

    
    

21. The Certified Mail Number P 533059801 appears on the envelope containing Petitioner's EDI Form.

    
    

22. January 3, 1989 was the first business day of 1989. The envelope containing the EDI Form was postmarked January 3, 1989.

23. A certified mail return receipt attached to the envelope containing the EDI Form and cover letter shows that the return was stamped by the post office on January 3, 1989.

    
    

24. The postal receipt for the EDI Form and cover letter was returned to Rinker from the post office on January 3, 1989.

    
    

25. DER received Petitioner's EDI Form for the Site on January 9, 1989.

    
    

26. Petitioner's normal procedure is to internally meter regular mail and affix a postmark date. However, certified or registered mail is metered and taken to the post office for processing. Registered mail received in the Petitioner's mailroom on December 30, 1988 should have been metered and taken to the post office for processing the same day or at the latest the next business day (December 31st, a Saturday).

    
    

27. After the EDI Form was filed but prior to the eligibility determination, Petitioner was required to submit Site characterization information and documentation of the Site conditions before the initiation of cleanup. The evidence did not establish the expense or costs incurred by Rinker in gathering this information.

    
    

28. Prior to ruling on Petitioner's EDI application, DER, through DERM, conducted an eligibility inspection at the Site. Alan Gillespie of DERM conducted the EDI eligibility inspection on April 20, 1989.

    
    

29. During an EDI inspection, the inspector examines and reports on the existing conditions of a facility including: recordkeeping, the age of the tanks and the conditions of the monitoring wells and whether there is any negligence involved with the contamination that has occurred.

    
    

30. During the April 20, 1989 inspection, Alan Gillespie reported that the three 1,000 gallon underground tanks had been removed and replaced with a new aboveground petroleum storage system.

    
    

31. On the EDI inspection report, Mr. Gillespie reported evidence of soil contamination and/or recent product loss and noted that such contamination was discovered at the time of tank removal.

    
    

32. After completion of the April 20, 1989 inspection report, Mr. Gillespie's supervisor at DERM sent the report to DER in Tallahassee.

    
    

33. In 1989, final Early Detection Incentive Program or Reimbursement Program eligibility determinations were made in Tallahassee by DER.

    
    

34. At the time of the EDI eligibility inspection of the Site on April 20, 1989, the role of Dade County DERM was only to conduct an EDI inspection at the site and to forward the information to Tallahassee.

    
    

35. Prior to making an eligibility determination on the Site, Patricia Dugan, Environmental Administrator of the DER Petroleum Cleanup Reimbursement Section, reviewed the EDI application, the inspections from DERM, documentation of the site conditions prior to initiation of cleanup and the envelope that the application came in.

    
    

36. On November 23, 1989, DER issued an order finding the Site to be ineligible for participation in the Reimbursement Program.

37. Initially, Petitioner's reimbursement application was deemed ineligible because of mixed contamination (i.e., the Site contained used oil) and because the application was deemed untimely. Subsequent to the date of the denial, certain legal decisions made it clear that, contrary to DER's position, sites containing used oil were eligible for participation in the Reimbursement Program.

    
    

38. Thus, the only remaining predicate for DER's denial of Rinker's application is that the application was not timely filed.

    
    

39. Because Petitioner's EDI application was postmarked on January 3, 1989, after the December 31, 1988 statutory deadline, the Petitioner's application was deemed untimely by DER.

    
    

40. DER's policy of relying on the postmark date for purposes of determining timeliness was informally arrived at in 1987. DER has never promulgated a rule on this matter nor conveyed its interpretation to affected parties.

    
    

41. Petitioner could have and would have internally placed a postmark date of December 30, 1988 on the envelope containing the EDI Form had it been aware of DER's policy.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

43. The Department of Environmental Regulation is the agency charged under Florida's laws with a duty to enforce and administer Chapter 376, Florida Statutes.

    
    

44. The State Underground Petroleum Environment Response Act of 1986 (Super Act) was passed to address environmental problems caused by leaks and spills associated with the storage of petroleum products. As part of the Super Act, the Inland Protection Trust Fund was created to provide state assistance, for a limited period of time, to initiate state fund site cleanup and to provide reimbursement to those parties who have untaken their own site cleanups.

    
    

45. Participation in the Reimbursement Program pursuant to Section 376.3071(12), Florida Statutes, is limited to sites contaminated by petroleum or petroleum products as those terms are defined in Sections 376.301(9) and (10), Florida Statutes. At the time Petitioner submitted the EDI Form for the Site, there was a significant question as to the eligibility of the Site in view of the interpretation of the statutory term "petroleum product". That definition was subsequently overturned in a court decision. Contamination from waste oil storage where such waste oil is stored for recycling is now clearly eligible for the Reimbursement Program where the other prerequisites of Section 376.3071(12)(b), Florida Statutes, are met. Puckett Oil Company v. The State of Florida, Department of Environmental Regulation, 549 So.2d 720 (Fla. 1st DCA 1989).

    
    

46. The parties in this case have stipulated that the contamination at the Site was caused by the overspill of waste oil and that the contamination is petroleum product contamination within the terms of the statute. Thus, the only

    issue to be resolved in this case is whether the Site should be deemed ineligible for participation in the Reimbursement Program on the grounds that the application for participation in the Reimbursement Program was not timely filed.

    
    

47. Section 376.3071, Florida Statutes, sets forth the legislative findings, the intent and the eligibility requirements. It provides as follows:

    
    

    (2) It is the intent of the Legislature to establish the Inland Protection Trust Fund to serve as a repository for funds which will enable the department to respond without delay to incidents of inland contamination related to the storage of petroleum and petroleum products in order to protect the public health, safety and welfare and to minimize environmental damage.

    
    

48. One of the goals of the statute, as noted in the preface to the findings, is to encourage voluntary rehabilitation. Thus, Section 376.3071(12)

    1. provides that the Program was set up

       
       

       ... in order to provide for rehabilitation of as many contamination sites as possible as soon as possible...

       
       

49. Section 376.315 provides:

    
    

    Sections 376.30 - 376.319 being necessary for the general welfare and the public health and safety of the state and its inhabitants, shall be liberally construed to affect the purposes set forth in this Section

    376.30 - 376.319 and the Federal Water Pollution Control Act, as amended.

    
    

50. Section 376.30 provides:

    
    

    1. The Legislature finds and declares:

       1. That the preservation of surface and groundwater is a matter of highest urgency and priority...

       (4) The Legislature further finds and declares that the preservation of the quality of surface and groundwater is of prime public interest and concern to the state in promoting its general welfare, preventing disease, promoting health and providing for the public safety. ...

51. Under the Early Detection Incentive Program (EDI) of 376.3071(9)(b), Florida Statutes, a December 31, 1988 deadline is clearly set forth:

    
    

    1. When reporting forms become available for distribution, all sites involving incidents of contamination from petroleum storage systems initially reported to the Department at any time from midnight on June 30, 1986, to midnight on December 31, 1988, shall be qualified sites, provided that such a complete written report is filed with respect thereto within a reasonable time. (Emphasis supplied)

       
       

52. Section 376.3071(12) (c) provides in pertinent part:

    
    

    1. Procedure to initiate and conduct site rehabilitation --- Any person initiating site rehabilitation pursuant to this section between January 1, 1985 and December 31, 1988, who intends to file for reimbursement shall submit written notice of such intent to the department prior to midnight on December 31, 1988... (Emphasis added).

    
    

53. At the hearing, Petitioner argued that the presence of the DERM Inspector during the tank excavation in early December of 1988 should serve as notice to DER of the contamination at the Site. However, it appears that the statute requires written notice. Moreover, it is clear that the DERM Inspector was not an agent of DER at the time of the excavation and there is no evidence that DER was directly notified of the contamination at the Site until the EDI Form was received.

    
    

54. The statute does not specifically describe how an applicant is to "submit written notice." The statute could reasonably be interpreted to mean that an applicant must either deliver its notice of intent to the Department or place it in the mail. DER has not promulgated any rules regarding its interpretation. DER's unwritten policy is to accept any application that has been postmarked on or prior to the deadline. In other words, DER has construed Section 376.3071(12) (c) to include mailing. Therefore, any application mailed prior to the deadline is timely.

    
    

55. The evidence established that Petitioner had the ability to and would have postmarked the envelope containing the EDI Form on December 30, 1988, if DER had alerted applicants that the forms had to be postmarked by December 31, 1988. If the application had been submitted by regular mail rather than registered mail, it is clear that the postmark would have been December 30, 1988.

    
    

56. In Martinez v. Ponce De Leon Federal Savings and Loan Association, 558 So.2d 153 (Fla. 3rd DCA 1990), the Third District Court of Appeal held that, where there is sufficient evidence to establish a prima facie case of mailing, the mere existence of a postal cancellation date (a postmark date) did not overcome the prima facie case. In Martinez, the Court determined that the date contained in the certificate of service executed by an attorney and not the

    postmark date, which was two (2) days later, was controlling in determining when the document was mailed. Respondent correctly points out that, unlike the Martinez case, there is no sworn certificate of service in this case regarding the filing of Petitioner's EDI application. Nonetheless, the Martinez case establishes that a postmark is not conclusive evidence of the date of mailing.

    More persuasive evidence is the evidence of Petitioner's ordinary business practices and the unrefuted testimony that the application was timely placed in Petitioner's mail system. Given all the circumstances in this case, DER's strict adherence to the postmark date as the automatic cut off date for eligibility purposes is unwarranted.

    
    

57. The Legislative intent regarding the EDI program is clearly to include as many contamination sites as possible and to foster the cleanup of petroleum contamination within the time frame established by law. In view of the legislative intent and absent a clear direction from DER that all applications had to be postmarked by December 31, 1988, the application submitted by Petitioner which was dated December 30, 1988 and placed in the Petitioner's mail system on December 30, 1988 should be deemed timely filed.

    
    

58. The result reached herein is especially justified because Petitioner was required to expend additional costs and effort in order to submit site characterization information to DER in April of 1989. While the extent of additional costs incurred has not been established, DER is estopped from denying the application as untimely filed when it took no action on the application for over eleven months and required extra costs and expenses to be incurred before notifying the Petitioner that its application was denied as untimely.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order approving Petitioner's application for eligibility under the state's reimbursement program.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of July, 1990.

J. STEPHEN MENTON 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 23rd day of July, 1990.

APPENDIX

Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.

The Petitioner's Proposed Findings of Fact:

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

Adopted in substance in Findings of Fact

1.

1. Adopted in substance in Findings of Fact 3, 9 and 10.

2. Adopted in substance in Findings of Fact

   17 and 20.

3. Adopted in substance in Findings of Fact 20.

4. Adopted in substance in Findings of Fact 26.

5. Adopted in substance in Findings of Fact 22, 36, 37 and 38.

6. Adopted in substance in Findings of Fact

   37 and 38.

7. Adopted in substance in Findings of Fact 40.

8. Adopted in substance in Findings of Fact 41.

9. Rejected as constituting argument rather than a finding of fact.

10. Rejected as argument rather than a finding of fact.

The Respondent's Proposed Findings of Fact:

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact

2. Adopted in substance in Findings of Fact 2.

3. Adopted in substance in Findings of Fact 25.

4. Adopted in substance in Findings of Fact 22.

5. Adopted in substance in Findings of Fact 21.

6. Adopted in substance in Findings of Fact 17.

7. Adopted in substance in Findings of Fact 16.

8. Adopted in substance in Findings of Fact 18.

9. Adopted in substance in Findings of Fact 19.

10. Adopted in substance in Findings of Fact 20.

11. Adopted in substance in Findings of Fact 23.

12. Adopted in substance in Findings of Fact 24.

13. Rejected as constituting argument rather than a finding of fact.

14. Adopted in substance in Findings of Fact 22.

15. Rejected as unnecessary and irrelevant.

16. Adopted in substance in Findings of Fact 15.

COPIES FURNISHED:

Richard A. Pettigrew, Esquire Morgan, Lewis & Bockius

200 South Biscayne Boulevard Miami, Florida 33181

Janet E. Bowman

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Dale W. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel H. Thompson General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

RINKER MATERIALS CORPORATION,

Petitioner,

vs. DOAH CASE NO. 89-7189

OGC CASE NO. 89-1599

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

Respondent.

/

FINAL ORDER

On July 23, 1990, a Hearing Officer from the Division of Administrative Hearings submitted to the Department of Environmental Regulation ("Department") and Rinker Materials Corporation ("Rinker") his Recommended Order, a copy of which is attached as Exhibit "A." On August 7, 1990, the Department filed three Exceptions to the Recommended Order. Rinker did not file Exceptions or respond to the Department's Exceptions. The matter thereupon came before me as Secretary of the Department for final agency action.

BACKGROUND

This proceeding involves an application filed with the Department by Rinker requesting a determination of eligibility for reimbursement, pursuant to Section 376.3017(12)(c.), Florida Statute, of the cost of petroleum contamination cleanup at the Rinker FEC Quarry in Miami. The Department denied the application and Rinker filed a timely petition challenging that denial. The sole issue at hearing was whether Petitioner's application for participation in the reimbursement program was timely. The applicable statute requires that the application for reimbursement must be submitted to the Department before January 1, 1989. In this case, the envelope bearing Petitioner's reimbursement report was postmarked January 3, 1989, and was received by the Department on January 9, 1989. Nevertheless, the Hearing Officer recommended that the reimbursement report be considered timely.

RULINGS ON EXCEPTIONS

Exception 1

The Department takes exception to the Hearing Officer's statement in Conclusion of Law Paragraph 14 that "if Rinkers' EDI Application had been submitted by regular mail rather than by registered mail, it is clear that the postmark would have been December 30, 1988." This is actually a finding of fact as opposed to a true conclusion of law. I am not at liberty to reject a finding of fact if it is supported by competent, substantial, evidence. A review of the record discloses that the finding has a proper evidentiary basis, and therefore the exception must be rejected. However, as discussed below in my response to the second exception, the date an applicant could have mailed an application had it so chosen is irrelevant to the determination of whether the application is timely.

Exception 2

Section 376.3017(12)(c), Florida Statutes, states:

Any person initiating site rehabilitation pursuant to this section between January 1, 1985, and December 31, 1988, who intends to file for reimbursement shall submit written notice of such intent to the Department prior to midnight on December 31, 1988 ....

(Emphasis added.)

Previous enactments of this statute set forth submission dates of September 30, 1987, and October 1, 1988. Department Form 17-70.001(1), the application form submitted by Rinker to the Department, was promulgated on October 10, 1986 and has not been modified since. It states, "[I]nformation reported on this form is [to be] filed with and received by the DER during the 15-month grace period beginning on July 1, 1986, and ending on October 1, 1987." Although the form is clear as to the fact that the application must be received by a date certain, the actual date on the form was superceded by subsequent statutory change.

As a matter of policy, the Department has liberally interpreted the phrase in Section 376.3017(12)(c), underscored above, to mean that submission occurs, if an application is mailed rather than hand delivered, on the date the envelope containing the application is actually postmarked, as opposed to the date the application is received by the Department. The Petitioner advances an interpretation of this phrase, adopted by the Hearing Officer, which goes one step further: To obtain a postmark, one must first place an envelope in the mail; therefore, the operative date for determining statutory compliance is the date a reimbursement application is placed in either the U.S. postal mail system or, as in this case, a private company's own internal mail system. The Department's second Exception relates to the Hearing Officer's conclusions regarding the appropriateness of this interpretation of Section 376.3071(12), Florida Statutes.

The challenged legal interpretation is set forth in Conclusion of Law paragraph 13. Because the Department equates submission with the date of postmarking, the Hearing Officer held that the Department has "construed Section 376.3071(12)(c) to include mailing. Therefore, any application mailed prior to the deadline is timely." Although the testimony at hearing was clear concerning the Department's implementing statutory interpretation that postmarking is

equivalent to submission, no evidence was offered that the Department "construed Section 376.3071(12)(c) to include to mailing." Thus, in the Hearing Officer's view, postmarking is the legal equivalent of mailing and, therefore, as a matter of law the Department must consider a reimbursement request to be submitted as of the date of mailing. Implicit in this legal conclusion is the subordinate conclusion that mailing occurs when the envelope is placed in a company's own internal mailing system. (See Finding of Fact paragraphs 20 and 26)

The case cited by the Hearing Officer in support of his interpretation is Martinez v. Ponce de Leon Federal Savings and Loan Association, 558 So.2d 153 (Fla. 3rd DCA 1990). However, that-case merely discusses and applies Florida Civil Procedure Rule 1.080(f), Florida Rule of Civil Procedure, which states that service of a pleading is complete upon mailing. The case did not create the civil procedure rule, and can not be used here to create an administrative rule that "submission" of a reimbursement report is complete upon mailing.

There are two well settled presumptions concerning mailing. One is the presumption of receipt, which arises upon proof of mailing. The other is the presumption of mailing, which arises upon proof of the ordinary office practice concerning mailing. Mailing by Rinker or receipt by the Department are not at issue here. Here, the issue is the date of submission of a reimbursement application by Rinker. Neither presumption described above gives rise to a legal conclusion that submission of a document to an agency is effectuated upon mailing. To the contrary, policy pronouncements are utilized when some act is to be effective upon mailing. See, e.g. Rule 1.080, Florida Rules of Civil Procedure ("Service by mail shall be complete upon mailing"). Similarly, when an agency wishes to make submittal effective upon the date of postmarking it can do so through a policy pronouncement. Here, the Department, has established postmarking, not mailing, as the date of submittal widen reimbursement applications are delivered by mail.

It is well settled that the Department's interpretation of its rules and statutes is entitled to great weight:

1. gency determinations with regard to a statutes interpretation and applicability will receive great deference in the absence of clear error or conflict with legislative intent... DER's interpretation of the critical term ... does not have to be the only one, or even the most desirable. It is enough if it is a permissible one.

Little Munyon Island v. Department of Environmental Regulation, 492 So.2d 735, 737 (Fla. 1st DCA 1986). See also Florida Power Corp. v. Department of Environmental Regulation, 431 So.2d 684, 685 (Fla. 1st DCA 1983), where the court stated:

We are not concerned with whether the Department's implementing interpretation of the critical statutory term is the only one possible; nor are we concerned with whether, by our lights, that interpretation is the most desirable one given the statutory scheme we proceeded. It is enough that the Department's implementing interpretation is a permissible one.

As noted by the Hearing Officer, "[t]he statute [Section 376.3017(12), Florida Statutes] could reasonably be interpreted to mean that an applicant must either deliver its Notice of Intent to the Department or place it in the mail.." The statute could also reasonably be interpreted to mean that an applicant must have the envelope containing its Notice of Intent postmarked by midnight on December 31, 1988, the interpretation which has been chosen by the Department.

Even if submittal was to be considered effective upon mailing, such mailing would need to be with the U.S. postal system and not in Rinker's internal mailing system. Cf. Morrison v. Thoelke, 155 So.2d 889 (Fla. 2nd DCA 1963)(the Florida "mailbox rule" case) and Rule 17-103.050(2), F.A.C. It is evident from Petitioners Exhibit 3, the affidavit of Ray Mercier, that the reimbursement application was taker to the post office on January 3, 1989, the date the envelope was "metered and posted." See Respondents Exhibit 1, specifically Rinker's postage meter "stamp" bearing the date January 3, 1989. Since the application was not delivered to the U.S postal service until January 3, 1989, it can not be considered timely.

Petitioners statutory interpretation focuses on the date of mailing, a date which cannot be determined by the Department or by a Hearing Officer without resort to independent extrinsic evidence. The Department's interpretation focuses on a stamped date which makes extrinsic evidence unnecessary and hopefully avoids litigation such as that at issue here. Since the Department's interpretation is permissible and not clearly erroneous or in conflict with legislative intent, it is approved, and the Department's second Exception is granted.

Exception 3

In it's third exception, the Department takes issue with the Hearing Officer's conclusion that the Department is estopped from denying Rinker's application as untimely. Conclusion of Law paragraph 17 states:

The result reached herein is especially justified because Petitioner was required to expend additional costs and effort in order to submit site characterization information to DER in April 1989. While the extent of additional costs incurred has not been established, DER is estopped from denying the application as untimely filed when it took no action on the application for over eleven months and required extra costs and expenses to be incur red before notifying the Petitioner that its application was denied as untimely.

The essential elements of a claim of estoppel are (1) a representation as to a material fact that is contrary to a later asserted position; (2) reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. State of Florida Department of Environmental Regulation v. C.P. Developers, Inc., 512 So.2d 258, 262 (Fla. 1st DCA 1987).

The only Finding of Fact paragraph relating to estoppel is Paragraph 27, which states: "After the EDI Form was filed but prior to the eligibility

determination, Petitioner was required to submit Site characterization information and documentation of the Site conditions before the initiation of cleanup." This finding does not suggest that Rinker was required by the Department to submit site specific information. The information mentioned in Finding of Fact paragraph 27 is actually required by the statute at issue here:

[W]ritten notice of such intent [shall be submitted] to the Department prior to midnight on December 31, 1988, together with documentation of site conditions prior to initiation of cleanup. Within 60 days after receipt of such notice and sufficient documentation of site conditions prior to initiation of cleanup, the Department shall determine whether the person is ineligible to apply for reimbursement under subparagraph (b)1. or subparagraph (b)2. and shall notify the applicant as to his eligibility in writing.

(Emphasis added.) Section 376.3071(12)(c), Florida Statutes.

No evidence has been presented in this case that Rinker was in any way misled or otherwise confused by Department forms or representations. Therefore, because the factual comprising estoppel are not present in this case, the doctrine of estoppel does not apply.

Application of the doctrine of estoppel is also inappropriate here because it was not properly raised as an issue in the case. Estoppel is an affirmative defense. Phoenix Insurance Co. v. McQueen, 286 So.2d 570, Fla. 1st DCA 1973); Department of Revenue v. Hobbs, 386 So.2d 367 (Fla. 1st DCA 1979). See also Rule 1.110(d), Florida Rules of Civil Procedure. To be available in an administrative proceeding, it must be properly pleaded. Doheny v. Grove Isles Ltd., 442 So.2d 996 (Fla. 1st DCA 1983). The defense of estoppel was neither pleaded in Rinker's petition nor argued in the parties proposed Recommended Orders. In fact, the Recommended Order itself declares that "the sole issue in this case is whether the Petitioner filed a timely application for participation in the Reimbursement Program." Because estoppel was not properly raised as an issue in this case, and because the factual elements of estoppel are not present here, the Department's third Exception is granted.

One additional observation made by the Hearing Officer needs comment. At Conclusion of Law paragraph 17 the Hearing Officer states, "[G]iven all the circumstances in this case, DER's strict adherence to the postmark date as the automatic cutoff date for eligibility purposes is unwarranted." Although one might sympathize with an applicant whose key employee is on vacation at a crucial time, such sympathy does not warrant a statutory interpretation which fosters uncertainty and litigation. In this case, the operative statute requires submittal to the Department before January 1, 1989; the form utilized by the applicant informed it that such submittal was to be "filed with and received by the Department;" and Rinker's employees knew that the form "needed to be sent out before the end of the year." (Transcript at Page 21) The Hearing Officer's comment suggests that the burden is the Department to determine when an applicant is unclear about its responsibilities, and to then take steps to make clear that which is unclear. If an applicant is confused about its

responsibilities with respect to the Department's procedures, then it should contact the Department and obtain clarification. An applicant who does not do so proceeds at its own risk.

Therefore, It is ORDERED:

1. The findings of fact and conclusions of law of the hearing officer are adopted except as modifed by this Final Order.

   
   

2. Application No. 138628827 from Rinker for reimbursement is hereby denied.

Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of 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 6th day of September, 1990, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT ENVIRONMENTAL REGULATION

DALE TWACHTMANN

Secretary

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

Telephone: (904)488-4805

FILING AND ACKNOWLEDGMENT

FILED, on this date, pursuant to s 120.52 Florida statutes, with the designated Department Clerk, receipt of which is hereby acknowledged.

9/6/90

Clerk Date

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to:

Richard A. Pettigrew, Esq. Janet E. Bowman, Esq. Morgan, Lewis & Bockius Department of Environmental

200 S Biscayne Blvd Regulation

Miami FL 33181 2600 Blair Stone Rd Tallahassee FL 32399-2400

J. Stephen Menton Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Pkwy

Tallahassee FL 32399-1550

by U.S. Mail on this 7th day of September, 1990.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

WILLIAM H. CONGDON

Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Telephone: (904)488-9730

Docket for Case No: 89-007189

Orders for Case No: 89-007189