Ober v. Department of Environmental Protection
| Decision Date | 28 February 1997 |
| Docket Number | No. 96-2217,96-2217 |
| Citation | 688 So.2d 435 |
| Parties | 22 Fla. L. Weekly D543 Stephen OBER, Appellant, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee. |
| Court | Florida District Court of Appeals |
Robert J. Riggio, Daytona Beach, for Appellant.
W. Douglas Beason, Assistant General Counsel, Tallahassee, for Appellee.
Appellant Stephen Ober (Ober) appeals from an order of the Department of Environmental Protection (D.E.P.) reversing the recommendation of a hearing officer, thus denying Ober reimbursement for the clean-up of storage tanks and contaminated soil on Ober's property. We reverse.
Ober is the owner of property in Daytona Beach which had been leased and used as an AAMCO transmission shop in the 1980's. The property contained five underground storage tanks and a 55 gallon oil/water separator. In 1987, the Volusia County Environmental Control Division inspected the site and determined that it was contaminated. Ober hired an environmental contractor to remove, clean and dispose of the underground storage tanks and to remove and clean the soil. This was accomplished, and the contractor filed a closure report. According to the report four of the six tanks had multiple holes ranging from pin size to one inch in diameter.
In January 1991, Ober applied for entry into the Abandoned Tank Restoration Program in accordance with section 376.305(7), Fla. Stat. 1 This program provides financial assistance to clean a site contaminated by petroleum or petroleum products. In July 1991, the site was determined to be "clean" by County officials. On August 16, 1991, the Department of Environmental Regulation 2 informed Ober that "the contamination related to the storage of petroleum products as defined in Section 376.301(1), Fla. Stat., at this site is eligible for reimbursement of allowable costs pursuant to Section 376.305(7), Fla. Stat., under the Abandoned Tank Restoration Program." (emphasis added) On February 14, 1992, Ober submitted his request for reimbursement for the clean-up and related costs, which amounted to $46,765.24.
In April 1993 D.E.P. denied Ober's request for reimbursement on the basis of its conclusion that the costs claimed were occasioned by surface spillage of ineligible contaminants; that the source of contamination was overfilled 55-gallon drums and other improper disposal and storage methods; and that the underground storage system was not the source of contamination of the facility. Ober then filed a petition for administrative hearing.
At the hearing, Edward Smith testified for Ober. Smith is a state certified pollutant storage systems specialty contractor and was the project manager for the clean-up activities at the site. Roger Register and Brian King, both employees of D.E.P., testified on behalf of the Department. In his recommended order, the hearing officer stated the issue to be "... whether the contamination at issue regarding the underground storage tanks was the result of a release of a 'petroleum product or products' from a 'petroleum storage system.' " Based on the evidence presented, the hearing officer found certain of the tanks at the rear of the facility had contained waste oil or transmission fluid which had leaked and contaminated the soil. He then specifically found:
19. Finally, it is shown that transmission fluid and waste oil, as well as the other, solvent-related constituents of the contamination at the site are petroleum or petroleum products. They can be, and are used, as a mixture amounting to a "liquid fuel commodity made from petroleum" and such waste petroleum products are often used in Florida, particularly for boiler fuel to fire industrial-type boilers. These compounds found at the site are both petroleum and petroleum products and are hydrocarbons as defined in Section 376.301, Florida Statutes. It was thus demonstrated that the contamination at the facility was the result of a discharge of petroleum products, from a petroleum storage system, in the manner and for the reasons delineated more particularly above.
The hearing officer reached a similar conclusion of law:
30. The contamination was caused, according to the preponderant evidence, by waste oil and transmission fluid, as well as hydrocarbon, petroleum-based solvents. Waste oil and transmission fluid are commonly used as fuel commodities in Florida, predominately as boiler fuel. These findings are largely predicated on the testimony of Mr. Smith, who was best able to testify concerning the nature of the products which leaked into the soils and groundwater and the saturated nature of the soils at the subject site. Mr. Smith supervised the entire project and was on the site practically every day, making his observations. No one from the Department was present during cleanup of the site, and the Department has admitted that no one from the Department visited the site until the day before hearing, approximately five and one-half years after the tanks were removed and the contamination cleaned up. It has been established that the contaminants referenced in the above Findings of Fact constitute petroleum products and petroleum because the waste oils, transmission fluid and the aromatic solvents are all hydrocarbons and are derived from petroleum. Thus, they meet the above statutory definition (citations omitted).
Under section 120.57, Fla. Stat., an agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules over which it has substantive jurisdiction. However, rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. In addition, the agency may not reject or modify the findings of fact unless the agency first determines that the findings of fact were not based upon competent substantial...
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