Sunshine Jr. Stores, Inc. v. State, Dept. of Environmental Regulation

• Decision Date: 02 February 1990
• Docket Number: No. BQ-98,BQ-98
• Citation: 556 So.2d 1177
• Parties: 15 Fla. L. Weekly D307 SUNSHINE JR. STORES, INC., Appellant, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
• Court: Florida District Court of Appeals

Page 1177

556 So.2d 1177

15 Fla. L. Weekly D307

SUNSHINE JR. STORES, INC., Appellant, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.

No. BQ-98.

District Court of Appeal of Florida First District.

Feb. 2, 1990.

Wilbur E. Brewton and Janice G. Scott, Tallahassee, for appellant.

E. Gary Early, Asst. Gen. Counsel, DER, Tallahassee, for appellee.

EN BANC

THOMPSON, Judge.

Sunshine Jr. Stores, Inc. (Sunshine) appeals a final order of the State of Florida, Department of Environmental Regulation (DER) finding Sunshine, the present owner of the property, jointly liable with a former owner for the cleanup of its property which had become polluted by a leaking underground gasoline storage tank. We reverse.

From 1979 to 1984 K & F Services, Inc. (K & F) owned and operated an Amoco Service Station located on U.S. Highway 98 in Bay County. Gasoline for sale at the station was stored on the premises in underground tanks. Sometime prior to October 1984 K & F ceased to operate the service station. The gas pumps and other equipment were removed, but the underground tanks were not. The tanks were apparently substantially emptied at this time, leaving only three inches of gasoline remaining in each of the three tanks. On October 17, 1984, K & F sold the property to Sunshine, which purchased it with the intention of removing the existing structure and replacing it with a modern convenience store and gas station. At the time of the purchase Sunshine knew that the property had formerly been a service station and knew that the old gasoline storage tanks were still in the ground on the site. Sunshine did not intend to, and did not, do any business on the site using the existing improvements. Instead it immediately hired contractors and began to remove all existing improvements, including the tanks, so as to prepare the site for the new construction. In January 1985 a contractor began removing the existing concrete slab over the underground tanks, at which time he smelled gasoline and notified Sunshine. Sunshine then reported the apparent gasoline leak to DER. Subsequently, it was determined that one of the storage tanks had leaked and that the soil and groundwater beneath the site were polluted with gasoline. It was further determined that gasoline which had previously leaked from the tank was continuing to seep through the soil and into the water table beneath the site, and posed a potential threat to the water table and water wells located nearby.

In a Notice of Violation and Order for Corrective Action dated April 8, 1985 DER named both Sunshine and K & F as respondents, and alleged, in part: (1) that DER is the agency charged with administering Chapters 376 and 403, Fla.Stat. and rules promulgated thereunder; (2) that K & F's activity on the property currently owned by Sunshine resulted in a discharge of refined petroleum products upon the lands and waters of the state; (3) that the discharge from K & F's tank had contaminated groundwater and constituted an odor nuisance, an imminent and substantial danger to public health, and was impairing the reasonable beneficial use of adjacent waters; and (4) that upon application of Chapters 376 and 403, Fla.Stat. and Fla.Admin.Code Rules Chapters 17-3 and 17-4, to the facts of the case, the respondents were in violation of § 376.302, Fla.Stat., (prohibiting discharge of refined petroleum products upon waters and lands of the state); Fla.Admin.Code Rule 17-3.402(1) (requiring that all groundwaters at all places and times be free from toxic pollutants); § 403.161(1)(a), Fla.Stat., (prohibiting pollution harmful to human, animal, aquatic or plant life, or property); and § 403.161(1)(b), Fla.Stat., (making it unlawful for any person to violate any lawful rule or regulation of the Department). The notice of violation did not specifically mention § 403.087, Fla.Stat., relating to the requirement of a permit by a stationary installation which could reasonably be expected to be a source of water pollution.

Upon receipt of the notice of violation, both Sunshine and K & F filed petitions for Chapter 120 proceedings. In its petition for formal administrative hearing, Sunshine denied the charges set out in the notice of violation and asserted as an affirmative defense that any discharge of petroleum products which may have occurred prior to its acquisition of the property was the responsibility of its predecessors in title. At the same time Sunshine filed a motion to dismiss arguing that because the discharge occurred prior to its purchase and use of the property, it had no legal responsibility for the cleanup. In its response to Sunshine's motion to dismiss, DER again failed to specifically allege Sunshine to be in violation of § 403.087, Fla.Stat. Instead, DER realleged violations of Chapter 403, Fla.Stat. generally, and asserted that Sunshine's property was a source of pollution and was a "stationary installation" as defined in Chapter 403.

On April 21, 1986, a formal administrative hearing was held, and on June 4, 1986, the hearing officer entered a recommended order wherein he concluded, in part: (1) that the evidence affirmatively proved that the gasoline was not released into the environment during Sunshine's ownership of the property; (2) that § 403.141(2) (providing that if damage attributable to two or more polluters is divisible, each polluter should be held liable only for the damage he caused) and § 376.308(4) (providing a "third party polluter" defense in action to force cleanup of polluted properties) evince the legislative intent not to impose liability on parties in Sunshine's situation; and (3) that all of the pollution at issue was necessarily attributable to parties other than Sunshine and under such circumstances, "the statute exonerates Sunshine from liability...."

In accordance with his interpretation of the facts and the law, the hearing officer thereupon recommended that the order for corrective action be modified to place all responsibility for cleanup of the pollution on K & F, with Sunshine to be responsible only for cooperating with the cleanup effort by permitting reasonable access to the property. DER filed exceptions to the hearing officer's conclusions of law, but did not dispute his findings of fact.

In its final order, DER approved and adopted all of the findings of fact set forth in the recommended order, but rejected certain of the hearing officer's conclusions of law. Specifically, DER ruled (1) that the provisions of § 403.141(2) providing for divisibility of liability wherein environmental damage is divisible apply only to liability for damages, and not to liability for cleanup costs; (2) that the third party defense established by § 376.308(4) did not apply to relieve Sunshine of liability for cleanup since the gasoline contamination at issue was not solely the result of acts or omissions of K & F; (3) that as owner of a contaminated property which is continuing to maintain a source of groundwater pollution appellant is "maintaining" a stationary installation which is a source of pollution contrary to § 403.087; and (4) that Sunshine is therefore responsible for abating the pollution emanating from its property. Accordingly, DER ordered both K & F and Sunshine to comply with the order for corrective action and to proceed with the cleanup of the gasoline spill.

We concur with DER's conclusion that our legislature, in enacting Chapters 376 and 403, mandated liberal construction of the statutes to protect the public health, safety, and welfare. It did not make liability for polluting the environment contingent on a showing of negligence or fault. We also concur in DER's contention that as a state agency charged with interpreting and enforcing Chapters 376 and 403, its interpretation of those statutes should be accorded great weight and that a permissible interpretation of those statutes by DER should be upheld. However, in this case, DER's conclusions of law are based on completely erroneous facts that are contrary to the findings of fact of the hearing officer which DER accepted. DER contends that the third party defense established by § 376.308(4) did not apply to relieve Sunshine for liability for the cleanup since the gasoline contamination at issue was not solely the result of the acts or omissions of K & F, and that as owner of contaminated property which is continuing to constitute a source of groundwater pollution, Sunshine is "maintaining" a stationary installation which is a source of pollution contrary to § 403.087.

The evidence in this case conclusively shows without any contradiction the following facts: (1) that there were three underground tanks on the property purchased by Sunshine but that Sunshine had no knowledge of the conditions of the tanks or that any of the tanks had leaked at anytime in the past; (2) that Sunshine had no knowledge that there had been a discharge of gasoline until its contractor was in the process of removing the tanks in order to construct a new facility; (3) that the three tanks were checked and were found to have three inches of gasoline in the bottom of each tank; (4) that all but one inch of gasoline was pumped out before the tanks were moved; (5) that the tanks were pressure tested and two tanks passed the pressure test but a hole was found in the third tank in one end approximately 30 inches from the bottom of the tank; and (6) that at no time during its ownership of the property did Sunshine ever put gasoline in any of the tanks. Under the above facts, it is impossible that any gasoline was discharged or leaked from the defective storage tank after Sunshine's acquisition of the property and during its ownership. The only hole in the defective tank was approximately 30 inches above the bottom of the tank and the gasoline level in that tank had been reduced to approximately three inches above the bottom prior to Sunshine's acquisition of the property. DER admits that no...