STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM A. HARDEN, )

)

Petitioner, )

)

vs. ) Case No. 96-5785

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this matter on October 21, 1997, in Fernandina Beach, Florida, before Suzanne F. Hood, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William A. Harden, pro se

Route 3 Box 3158

Townsend, Georgia 31331

For Respondent: Kisha R. Pruitt, Esquire

Kathelyn M. Jacques, Esquire Department of Environmental Protection Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUES

The issues are: (a) whether the accident on December 12, 1995, involving a shrimp trawler, the Atlantic Sun, resulted in a discharge of pollutants into the Atlantic Ocean and caused natural resource damages; and, if so, (b) what amount does

Petitioner William A. Harden owe the Department of Environmental Protection for investigation costs incurred in investigating the break up of the Atlantic Sun and for natural resource damages resulting from the accident.

PRELIMINARY STATEMENT

On or about May 28, 1996, Respondent Department of Environmental Protection (Respondent), advised Petitioner William

1. Harden (Petitioner) that he was liable for costs associated with the investigation of an accident involving the Atlantic Sun and for natural resource damage resulting from that accident. Petitioner challenged Respondent's demand for payment of these costs and damages by letter dated June 17, 1996. Petitioner also requested information concerning an administrative hearing. In August of 1996, Respondent granted Petitioner an extension of time in which to file a petition for a formal hearing.

   Petitioner filed a Petition for Administrative Hearing on September 23, 1996. Respondent referred the petition to the Division of Administrative Hearings on December 10, 1996.

   Respondent filed a Unilateral Response to Initial Order on December 20, 1996. Petitioner did not file a response to the Initial Order.

   On January 15, 1997, the undersigned issued a Notice of Hearing. This notice scheduled the formal hearing for April 8, 1997.

   On March 27, 1997, Petitioner filed a Plea for Stay on Account of Bankruptcy - Chapter 7. Respondent filed an unopposed Motion for Continuance on March 31, 1997. The undersigned granted a continuance and directed the parties to file a status report on or before May 2, 1997.

   On May 1, 1997, Respondent filed a Motion for Continuance and a Response to Petitioner's Plea for Stay on Account of Bankruptcy - Chapter 7.

   On May 9, 1997, the undersigned heard oral argument on Petitioner's Plea for Stay on Account of Bankruptcy - Chapter 7. An Order dated May 13, 1997, denied Petitioner's request for a stay of the proceedings and directed the parties to file a Status Report on or before May 23, 1997.

   On May 23, 1997, Respondent filed a report advising the undersigned of dates that counsel would be available for hearing. Petitioner filed a similar report on May 27, 1997. The undersigned rescheduled the hearing for September 11, 1997.

   Respondent filed a Motion for Summary Recommended Order on September 5, 1997. That same day, Respondent filed a Motion to Join an Indispensable Party and a Motion for Sanctions.

   On September 8, 1997, the undersigned heard oral argument on Respondent's pending motion. Immediately following the argument, the undersigned issued an order denying Respondent's Motion to Join an Indispensable Party and Motion for Summary Recommended

   Order. The undersigned reserved ruling on Respondent's Motion for Sanctions.

   Respondent filed a Motion for Continuance on September 9, 1997. The undersigned granted this motion by order dated September 20, 1997. An order dated September 26, 1997, rescheduled the hearing for October 21, 1997.

   When the hearing commenced on October 21, 1997, Respondent's counsel requested a continuance on grounds that she had a scheduling conflict. Upon further examination, Respondent's counsel revealed that she intended to take annual leave from her employment beginning on the date of the hearing and that she had inadvertently failed to file a timely Motion for Continuance.

   Respondent's counsel also represented that she had not received copies of the Order of Prehearing Instructions entered October 9, 1997, and Petitioner's response thereto dated

   October 15, 1997. Respondent's counsel had not complied with the prehearing order or reviewed Petitioner's proposed exhibits.

   After determining that Petitioner was opposed to a continuance for any reason, the undersigned declined to continue the hearing. Respondent then presented the testimony of one witness. The undersigned granted Respondent permission to take the deposition of two witnesses and to submit the transcripts of those depositions as post-hearing exhibits in lieu of testimony at trial.

   Respondent's Exhibit Numbers 1-7 were admitted into evidence without objection. Respondent's Exhibit Numbers 8-9 were pictures which allegedly depicted the wreck of the Atlantic Sun on the jetties. The undersigned reserved ruling on the admissibility of these pictures. Respondent's Exhibit

   Numbers 8-9 are hereby excluded from evidence because they were never authenticated.

   Petitioner testified on his own behalf. He did not offer any exhibits for admission into evidence.

   On October 23, 1997, the undersigned issued a Post-hearing Order. This order gave the parties explicit instructions regarding the submission of post-hearing exhibits.

   The transcript of the proceeding on October 21, 1997, was filed on November 24, 1997. The deposition transcript of one of Respondent's witnesses was filed on December 23, 1997.

   Three exhibits were attached to the deposition transcript of Michael Lehman. The first deposition exhibit had already been admitted into evidence without objection. The second and third deposition exhibits were pictures which allegedly depict the wreck of the Atlantic Sun on the jetties. Michael Lehman did not take the pictures; however, he testified that they accurately represent the scene of the wreck as he recalls from first hand knowledge. Accordingly, the two pictures are admissible into evidence.

   The parties submitted their proposed findings of fact and conclusions of law on January 12, 1998.

   FINDINGS OF FACT

   
   

   1. On December 12, 1995, the commercial fishing vessel, the Atlantic Sun, went aground on the south jetties in the Atlantic Ocean at the entrance to the channel of St. Mary's River. The shrimp trawler broke apart on the jetties near Fernandina Beach, Florida.

   2. Debris from the wrecked ship washed onto the beaches near the jetties.

   3. The United States Coast Guard (USCG) arrived at the scene of the accident and removed Roger Cummings, Captain of the Atlantic Sun, and Daniel Boone, an owner of the vessel, from the scene of the wreck.

   4. The USCG informed the Florida Marine Patrol (FMP) about the accident on December 12, 1995. Michael Lehman, FMP officer, met the USCG officers investigating the accident when they brought Captain Cummings and Mr. Boone to shore. Captain Cummings stated that the ship had 1200 to 1300 gallons of diesel fuel in its tanks when it hit the jetties.

   5. The water was too rough for Officer Lehman to investigate the accident scene that night.

   6. Officer Lehman and another FMP officer went to the site of the wreck on the morning of December 13, 1997. On his way to

      the accident scene, Officer Lehman's boat ran through a sheen of diesel fuel from Eagan's Creek to the end of the jetties.

   7. Officer Lehman found the Atlantic Sun upside down at the end of the rock jetties. There was a strong smell of diesel fuel at the site of the wreck. Diesel fuel ran down both sides of the jetties. The fuel was bubbling up on both sides of the wrecked ship.

   8. On December 14, 1995, the flow of fuel from the capsized vessel was still not contained.

   9. Officer Lehman estimated that approximately 500 gallons of fuel had been discharged into the ocean. He based this estimate on his personal observation at the accident scene, personal experience as an investigator of pollutant discharges, and witness statements. USCG officers estimated that the Atlantic Sun discharged 1,000 gallons of diesel fuel.

   10. The diesel fuel sheen on the water surface eventually affected a large area. It covered the entrance to St. Mary's River Channel from bank to bank. The fuel flowed west and inland from the ship wreck. It covered much of Cumberland Sound. It affected coastal waters from the accident site to Ft. Clinch State Park Beach and south approximately two miles. Special management areas which were affected are: Ft. Clinch State Park, Cumberland National Seashore, and Ft. Clinch Aquatic Preserve.

   11. By December 16, 1995, Officer Lehman could no longer see fuel coming from the area of the wreckage. By that time, the spilled fuel had dissipated.

   12. The accident occurred within one statute mile seaward of the coastline of the state of Florida.

   13. The two FMP officers worked a total of 18 hours during the course of their investigation. The cost to Respondent for the two officers' time was $244.80.

   14. The FMP officers used a single engine boat in their investigation for five hours. The single engine boat cost Respondent $100.00. They used a twin engine boat for six hours to conduct the investigation. The twin engine boat cost Respondent $240.00.

   15. The FMP officers drove a total of 76 miles in patrol vehicles. At $0.20 per mile, the total cost for mileage was

       $15.20.

       
       

   16. The FMP officer spent $5.00 developing pictures which were taken during their investigation.

   17. Respondent incurred clerical expenses during the investigation in the amount of $33.60.

   18. Respondent's total cost for the investigation was

       
       

       $638.60.

       
       

   19. Respondent assessed Petitioner with damages to natural resources. The damages were based on the total amount of pollutants discharged into Florida's coastal waters as a result

       of the Atlantic Sun going aground on the jetties. The amount of pollutants was 500 gallons of diesel fuel. Impact to special management areas was also taken into consideration in determining the natural resource damages.

   20. Respondent utilized a statutory formula to assess Petitioner with natural resource damages in the amount of

       $8,008.47. Respondent sent Petitioner a final agency action letter advising him of the total assessment in the amount of

       $8,647.07.

       
       

       CONCLUSIONS OF LAW

       
       

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

   22. Respondent is the agency charged with the duty of administering and enforcing the "Pollutant Discharge Prevention and Control Act." Sections 376.011-376.17 and 376.19-376.21, Florida Statutes.

   23. As an owner of the Atlantic Sun, Petitioner is a person as defined in Section 376.031(12), Florida Statutes.

   24. Diesel fuel is a pollutant as defined in Section 376.031(14), Florida Statutes.

   25. Section 376.041, Florida Statutes, prohibits the "discharge of pollutants into or upon any coastal waters, estuaries, tidal flats, beaches, and lands adjoining the seacoast of the state." Petitioner violated Section 376.041, Florida

       Statutes, when the Atlantic Sun went aground on the jetties and discharged at least 500 gallons of diesel fuel into Florida's coastal waters.

   26. Respondent has met its burden of pleading and proving by a preponderance of the evidence that the prohibited discharge occurred. Section 376.12(6), Florida Statutes.

   27. Under Section 376.121(1), Florida Statutes, Petitioner is liable for damage to natural resources because his ship discharged a pollutant in violation of Section 376.041, Florida Statutes.

   28. Respondent is entitled to recover the cost of its investigation and for damage to natural resources from Petitioner. Sections 376.11, 376.12(4), and 376.121, Florida Statutes.

   29. The compensation schedule for damage to natural resources is set forth in Section 376.121(4), Florida Statutes. The Natural Resources Damage Compensation Worksheet, Respondent's Exhibit Number 3, correctly outlines the parameters used to assess damage to natural resources.

   30. In this case, Petitioner owes Respondent $638.60 for investigative costs and $8,008.47 for natural resources damages.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order assessing Petitioner $638.60 in investigative costs and $8,008.47 in natural resource damages.

DONE AND ENTERED this 5th day of February, 1998, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1998.

COPIES FURNISHED:

Kisha R. Pruitt, Esquire Kathelyn M. Jacques, Esquire

Department of Environmental Protection Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Daniel Boone Boone and Harden Atlantic Sun

Post Office Box 438 Darien, Georgia 31305

William A. Harden Boone and Harden Atlantic Sun Route 3, Box 3158

Townsend, Georgia 31337

Kathy Carter, Agency Clerk

Department of Environmental Protection Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

F. Perry Odom, Esquire

Department of Environmental Protection Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Virginia B. Wetherell, Secretary 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: 96-005785

Orders for Case No: 96-005785