STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES R. BROWN )

d/b/a KINGS ROAD AMOCO, )

DEP FACILITY NO. 168506656, )

)

Petitioner, )

)

vs. ) Case No. 96-2743

)

STATE OF FLORIDA, DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in Jacksonville, Florida, on September 17, 1997, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles R. Brown, pro se

917 Kings Road

Jacksonville, Florida 32205

For Respondent: Jeffrey Brown, Esquire

Douglas Building, Mail Station 35 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE

Whether Petitioner’s application for Early Detection Incentive (EDI) should be approved.

PRELIMINARY STATEMENT

The Petitioner asserts he applied for EDI in a timely fashion. The Department asserts it has no record of Petitioner’s application, and that the copy of the application which Petitioner produced is insufficient to establish eligibility.

The Department denied the Petitioner’s application and advised him of his right to a hearing on whether his application was timely and whether, if so, it established his eligibility for the program.

Petitioner requested a formal hearing and the case was referred to the Division of Administrative Hearings by the Department. Petitioner was noticed for hearing, and after delays to facilitate a settlement, the case was heard.

The Petitioner testified in his own behalf and introduced a copy of his application for EDI as Petitioner’s Exhibit A. The Respondent introduced the deposition of Timothy Delaney, and the testimony of Allene McIntosh and Lewis J. Cornman. The Department introduced Defendant’s Exhibits 1-10, which were received. In addition, the Department introduced exhibits marked DEP Exhibits 1-10.

The Department filed proposed findings which were read and considered. The Petitioner did not file a post hearing pleading.

FINDINGS OF FACT

1. At the time of the inception of the Early Detection Incentive (EDI) Program, Mr. Brown was operating an Exxon service

   station near I-95, and also owned a facility known as Kings Road Amoco.

2. Mr. Brown learned about the EDI program from his position at the Exxon service station.

3. Mr. Brown purchased the Kings Road Amoco site over twenty years ago. At the time of purchase, there were four 3,000 gallon underground storage tanks at the facility. They remained on the property until 1991.

4. On or about September 14, 1987, as indicated by the date on the form, Mr. Brown mailed an EDI application form for the Kings Road Amoco site to the Department in Tallahassee. This document was not received by the Tallahassee office or by the Department’s district office in Jacksonville. In August of 1995, a copy of this form was provided to the Department.

5. It was routine for the Department, upon receipt of an EDI application, to schedule and conduct an inspection of the facility.

6. Mr. Brown followed “industry practice” and applied for the EDI program. He thought that an inspector would come to a facility and inspect for contamination. An inspector did not inspect the Kings Road Amoco site as the result of Petitioner’s application.

7. Mr. Brown has submitted two other discharge reports to the Department for the Kings Road Amoco site, dated February 25, 1991, and October 9, 1991.

8. Mr. Brown knew that the tanks at the Kings Road Amoco site were old, and suspected that his tanks might have had a leak. Other than the age of the tanks and the fact that they were made of galvanized iron, Mr. Brown had no reason to believe the tanks had leaked at the time he submitted the EDI application.

9. On Mr. Brown’s EDI application form, Mr. Brown marked the letter “X” in response to inquiries on the date of discovery; the portion marked “method of discovery” was unmarked. Mr. Brown’s EDI application in this case was consistent with his belief that his tanks had leaked based upon their age; however, it was not evidence of a leak and contamination.

10. It is not possible to know from the age of an underground storage tank whether the tank has leaked. The age of a tank is not considered an indication of leakage because some tanks that have been in the ground a very long time will still maintain their integrity. No inspection or testing was conducted, and no contamination discovered prior to December 31, 1988.

11. Well after the expiration period, Mr. Brown asked Gregory C. Johnson to assist in determining the status of his EDI application; as a result of his inquiries, Mr. Johnson determined as of January 10, 1994, that the application was “misplaced.”

12. A search of the City of Jacksonville files revealed a discharge notification dated February 11, 1991, from Mr. Brown

    concerning a discharge at the Kings Road Amoco site, and inspections by the City of Jacksonville at the site in September of 1989 and April of 1990. The Jacksonville records did not reveal the EDI application for the Kings Road Amoco site.

13. This search revealed no reports of contamination prior to December 31, 1988.

14. The Department has consistently interpreted the statutory term “incident” of contamination to refer to a discharge, as detected by a monitoring well, soil samples, odor, or known accidental leaks.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter. This order is entered pursuant to Section 120.57(1), Florida Statutes.

16. As the party seeking eligibility to participate in a cleanup program and as the party seeking affirmative relief, Mr. Brown bears the burden of proof. Eastlake Woodlands Shopping Center v. Department of Environmental Protection, 18 F.A.L.R. 114, 120 (Fla. Department of Environmental Protection 1995); Suddath Van Lines, Inc. v. Department of Environmental Protection, 16 F.A.L.R. 2090, 2107 (Fla. Department of Environmental Protection 1994), aff’d on other grounds, 668

    So. 2d 209 (Fla. 1st DCA 1996); Mohammad’s Supermarket v. Department of Environmental Protection, 17 F.A.L.R. 4586, n. 4 (Fla. Department of Environmental Protection 1995); See Florida

    Department of Transportation v. J.W.C. Company, Inc., 396 So 2d 778 (Fla. 1st DCA 1981). On one hand, Mr. Brown’s testimony that he mailed the EDI application creates a presumption that the Department actually received it. See W.T. Holding, Inc. v.

    Agency for Health Care Administration, 682 So. 2d 1224, 1225 (Fla. 4th DCA 1996).

17. The EDI program was established by the Legislature in 1986. Chapter 86-159, Section 15, at 679, Laws of Fla. Under that program, in its original form:

    To encourage early detection, reporting, and cleanup of contamination from leaking petroleum storage systems, the department shall, within the guidelines established in this subsection, conduct an incentive program which shall provide for a 15-month grace period beginning on October 1, 1987.

    Pursuant thereto:

    
    

    . . . (b) When reporting forms become available for distribution, all sites involving incidents of contamination from petroleum systems initially reported to the department at any time from midnight on June 30, 1986, to midnight on September 20, 1987, shall be qualified sites, provided that such a complete written report is filed with respect thereto within a reasonable time . .

    . .

18. The Statute was amended in 1987 and 1988, ultimately extending the grace period of the program to midnight on December 31, 1988. Chapter 88-331, Section 2, at 1733, Laws of Fla.; Chapter 87-374, Section 3, at 2285-2286, Laws of Fla.

19. Mr. Brown is not eligible in the EDI program for the discharges described in the reports dated February 25, 1991, and

    October 9, 1991, because any “incidents of contamination” described in those reports occurred after December 31, 1988, and because they were reported after the expiration of the program.

20. Under the plain terms of the statute, Mr. Brown is obligated to prove an “incident of contamination” during the grace period between June 30, 1986, and December 31, 1988, in order to be eligible in the EDI program. Section 376.3071(9)(b), Florida Statutes (Supp 1996); See Section 376.3071 (9)(b) 3c (IV) (A), Florida Statutes (Supp 1996).

21. Petitioner testified that he filed an EDI application prior to the deadline. Petition produced an old copy of his application dated September 14, 1987. There is no evidence he did not file a timely application. However, the application alone does not establish contamination.

22. In support of his claim, Mr. Brown testified that he knew the age of his tanks and based on the age of the tanks, he filed the application. Mr. Brown had no objective evidence of contamination.

23. Mr. Brown’s suspicion, standing alone, is insufficient to establish contamination prior to December 31,1988.

24. Mr. Brown offered no competent and substantial evidence to prove an incident of contamination between June 30, 1986, and December 31, 1988.

25. The EDI program, by the plain language of the statute, was intended as an “incentive program” in order “to encourage

    early detection, reporting, and cleanup of contamination from leaking petroleum storage systems.” Chapter 86-159, Section 15, at 679, Laws of Florida; Section 376.3081(9), Florida Statutes (Supp 1996). Mr. Brown submitted a protective application, but never took active measures to discover any actual discharge.

26. Mr. Brown argued that it was Department routine to perform an inspection upon receipt of an EDI application, in order to detect and confirm the existence of contamination. However, the Department owed no statutory duty to applicants in assisting them to detect the existence of “incidents of contamination” for the purpose of program eligibility.

27. Mr. Brown did not prove an incident of contamination prior to December 31, 1988. Mr. Brown is obligated to prove that he reported an “incident of contamination” prior to December 31, 1988. Section 376.3071(9)(b), Florida Statutes (Supp 1996).

28. The only reports of contamination were those after the expiration of the EDI program, and do not establish eligibility to participate in the program.

RECOMMENDATION

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

RECOMMENDED:

That jurisdiction is relinquished to the Department for the entry of a final order denying Mr. Brown’s application to participate in the EDI program.

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

COPIES FURNISHED:

Jeffrey Brown, Esquire Mail Station 35

3900 Commonwealth Boulevard

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

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

Tallahassee, Florida 32399-3000

Charles R. Brown 917 Kings Road

Jacksonville, Florida 32205

Kathy Carter, Agency Clerk Office of General Counsel Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-002743

Orders for Case No: 96-002743