12-004008EF Department Of Environmental Protection vs. Mark F. Germain, Leesburg's Oldest Filling Station, Inc., And John Doe 1-5 Status: Closed DOAH Final Order on Monday, April 14, 2014.

Summary: Respondent failed to prove he qualified for the innocent purchase defense to liability for petroleum contamination and is ordered to pay a penalty and remediate the property.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL

PROTECTION ,

Petitioner ,

vs. Case No. 12 - 4008EF

MARK F. GERMAIN, LEESBURG'S

OLDEST FILLING STATION, INC.,

AND JOHN DOE 1 - 5 ,

Respondent s .

/

FINAL ORDER

The final hearing in this case was held on December 3 and 4,

2013 , in Tavares, Florida, before Bram D. E. Canter, an

Administrative Law Judge of the Division of Administrative

Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner: Bon nie A. Malloy, Esquire

Janet Tashner, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth B oulevard

Tallahassee, Florida 32399 - 3000

For Respondents: Mark F. Germain, Esquire

2305 Hutchinson Ave nue

Leesburg, Florida 34748 - 5436

STATEMENT OF THE ISSUES

The issues to be determined in this case are whether

Respondents should pay the administrative penalty, investigative

costs, and attorneyÓs fees and undertake the corrective a ctions

that are demanded by the Florida Department of Environmental

Protection (the ÐDepartmentÑ) as set forth in the Final Amended

Notice of Violation, Orders for Corrective Action, and

Administrative Penalty Assessment.

PRELIMINARY STATEMENT

On Septembe r 19, 2012, the Department issued a Notice of

Violation, Orders for Corrective Action, and Administrative

Penalty Assessment (ÐNOVÑ), which included two counts against

Respondent Mark F. Germain (ÐGermainÑ). Germain timely filed a

request for an administr ative hearing to contest the charges.

The Department referred the matter to DOAH to conduct an

evidentiary hearing and to issue a final order. The Department

was subsequently granted leave to amend the NOV twice: first to

add LeesburgÓs Oldest Filling S tation, Inc. (ÐLeesburgÓsÑ) , as

the new property owner and John Doe 1 - 5, and later to add Germain

individually as the corporate officer (ÐFinal NOVÑ). The Final

NOV contains two counts against Germain and LeesburgÓs: Count I

for failing to initiate a sit e assessment and Count II for the

recovery of the DepartmentÓs investigative costs.

On February 5, 2013, Germain filed a Notice of Violation,

Orders for Corrective Action and Administrative Penalty

Assessment seeking to implead the former owner of the sub ject

property. The DepartmentÓs motion to strike the pleading was

granted.

On April 8, 2013, Germain filed a Motion to Dismiss, which

was denied.

On November 27, 2013, the Department filed a motion in

limine to strike the R espondents Ó Ðcommon - law defens es,Ñ which

was granted at the final hearing.

At the final hearing, the Department presented the testimony

of Robert Cilek, Bret LeRoux, and Carolyn Schultz. The

DepartmentÓs Exhibits 1, 2, 4 through 10, 13, and 18 through 21

were admitted into evidence. Germain testified on behalf of

Respondents. Respondents also presented the testimony of

Gustavo Garcia and Charles Griner. Respondents Ó Exhibits A, C

through H, W, and AAAA were admitted into evidence.

The two - volume Transcript of the final hearing wa s filed

with DOAH. The parties submitted proposed orders that were

considered by the Administrative Law Judge in the preparation of

this Final Order.

FINDINGS OF FACT

The Parties

1. The Department is the administrative agency of the state

of Florida hav ing the power and duty to protect FloridaÓs air and

water resources and to administer and enforce the provisions of

chapters 376 and 403, Florida Statutes, and the rules promulgated

thereunder in Florida Administrative Code Title 62.

2. Germain is a licen sed Florida attorney. From May 2006

to January 2013, Germain was the record owner of the real

property at 1120 West Main Street, Leesburg, Lake County, Florida

(the ÐGermain propertyÑ).

3. LeesburgÓs is an active Florida corporation that was

incorporated in January 2013 by Germain. Germain is LeesburgÓs

sole corporate officer and sole shareholder and has managerial

authority over the Germain property.

4. John Doe 1 - 5 is a placeholder designation used by the

Department for the purpose of covering all po tential entities to

which Germain might transfer the property. No other such entity

materialized.

Background

5. A gas station was operated on the Germain property

continually from the 1920s through the late 1980s. During the

1980s and perhaps for a long er period, C.E. Griner operated the

gas station under the name GrinerÓs Service Station.

6. GrinerÓs Service Station had at least three underground

storage tanks (ÐUSTsÑ) used to store leaded and unleaded

gasoline.

7. In 1989 or 1990, Griner ceased opera tion of the gas

station and the USTs were filled with concrete and abandoned in

place. The Germain property has not been used as a gas station

since that time.

8. In 1990, the Department inspected the Germain property

and prepared a report. The inspecti on report noted that the USTs

at the Germain property Ðwere not cleaned properly prior to

filling with concrete.Ñ The report also noted that the tanks

were not properly abandoned in place. No evidence was presented

to explain in what way the tanks were n ot properly abandoned, or

to indicate whether the Department took any enforcement action

based on this report.

9. In 1996, Gustavo Garcia purchased the Germain property

from Griner. In May 2006, Germain purchased the property from

Garcia.

10. Another ga s station, operating for many years under

several names (now ÐSunocoÑ), is located at 1200 West Main

Street, across a side street and west of the Germain property.

Since 1990, one or more discharges of petroleum contaminants

occurred on the Sunoco propert y.

11. There were also gas stations at the other two corners

of the Main Street intersection, but no evidence was presented

about their operations or conditions.

12. In March 2003, apparently as part of a pre - purchase

investigation, testing was conducted at the Sunoco property that

revealed petroleum contamination in the groundwater. Soil

contamination was not reported. S&ME, Inc. (ÐS&MEÑ), an

environmental consulting firm, subsequently submitted a discharge

report to the DepartmentÓs Central District O ffice in Orlando.

13. Later in 2003, S&ME conducted an initial site

assessment for the Sunoco property. In the report it produced,

S&ME noted that it found concentrations of petroleum contaminants

in the groundwater that were above the DepartmentÓs Groun dwater

Cleanup Target Levels (ÐGCTLsÑ). The concentrations exceeding

GCTLs were in samples taken from the eastern side of the Sunoco

property, closest to the Germain property.

14. In 2004, S&ME completed a Templated Site Assessment

Report for the Sunoco property. Groundwater samples from the

eastern portion of the Sunoco property again revealed petroleum

contamination exceeding GCTLs.

15. Garcia, who owned the Germain property at the time,

allowed S&ME to conduct soil testing on the Germain property.

T he soil samples were taken by direct push methods and were

tested with an organic vapor analyzer (ÐOVAÑ), which revealed

toluene, ethylbenzene, total xylenes, naphthalene, 1 - methyl

naphthalene, and total recoverable petroleum hydrocarbons

exceeding the Dep artmentÓs Soil Cleanup Target Levels (ÐSCTLsÑ).

16. In 2005, another private environmental consulting firm,

ATC Associates, Inc. (ÐATCÑ), performed a Supplemental Site

Assessment on the Sunoco property and produced a report. As part

of its assessment, AT C installed three monitoring wells on the

Germain property and collected groundwater samples. These

groundwater samples revealed petroleum constituent concentrations

that exceeded GCTLs and were higher than concentrations found in

groundwater samples take n under the Sunoco property.

17. Both the 2004 and 2005 site assessment reports

concluded that the groundwater in the area flowed from the

southeast to the northwest; that is, from the Germain property

toward the Sunoco property. Germain referred to a fi gure in

S&MEÓs 2004 report that he claimed indicated a southeasterly flow

of groundwater from Sunoco toward the Germain property. However,

a preponderance of the evidence establishes that groundwater flow

in the area is generally northwesterly from the Ge rmain property

toward the Sunoco property.

18. Based on the results of its testing, ATC concluded in

its site assessment report that the groundwater contamination on

the eastern portion of the Sunoco property had migrated from the

Germain property.

19. A TC also took soil samples from the Germain property.

It screened the soil samples with an OVA and reported petroleum

contamination exceeding the DepartmentÓs SCTLs.

20. Petroleum contamination in soil typically does not

travel far horizontally. It remai ns in the vicinity of the

source. Therefore, the soil contamination found on the Germain

property indicates an onsite source of the contamination.

21. All of the assessment reports were filed with Seminole

County, presumably with the Department of Public Safety,

Emergency Management Division, which is the local entity with

which the Department contracted to inspect and manage petroleum

facilities in the area. These reports were public records before

Germain purchased his property.

22. A June 2005 Memora ndum from Seminole County informed

Bret LeRoux at the DepartmentÓs Central District O ffice that

ATCÓs 2005 site assessment report indicated the Germain property

was the source of petroleum contamination. The Memorandum

recommended that the Department cont act the owner of the property

about the contamination. The Memorandum was filed at the

Department.

23. After the Department received the Memorandum, it

requested and received the site assessment reports from Seminole

County.

24. The Department did not notify Garcia or the public

about the contamination in 2005. The Department did not notify

Germain about the contamination until August 2007.

All Appropriate Inquiry

25. The principal factual dispute in this case is whether

Germain undertook Ðall approp riate inquiry into the previous

ownership and use of Ñ the Germain property before purchasing it,

as required by section 376.308(1)(c) 1/ :

[A person acquiring title to petroleum -

contaminated property after July 1992] must

also establish by a preponderance of the

evidence that he or she undertook, at the

time of acquisition, all appropriate inquiry

into the previous ownership and use of the

property consistent with good commercial or

customary practice in an effort to minimize

liability.

26. Before he purcha sed the Germain property in 2006,

Germain knew that it had been a gas station for a number of

years. Garcia told Germain that the USTs had been filled with

concrete and were Ðwithin the law.Ñ

27. Germain was also aware that the Sunoco USTs had

recently b een excavated and that there was a problem with the

tanks and possible contamination there.

28. Germain said he spoke with neighbors about the

property, but he did not say what he learned from them.

29. Before the purchase, Germain conducted a visual

ins pection of the property and saw Ðseveral little metal platesÑ

in the parking lot. Germain claimed it was only later that he

learned that some of the plates were covers for groundwater

monitoring wells.

30. Germain said he visited and reviewed files at a Lake

County office , but he was not specific about which county offices

he visited. He also went to the Leesburg Historic Board to

review property records. GermainÓs testimony was not clear about

what records he saw on these visits.

31. Germain did not g o to the office of the Seminole County

Department of Public Safety, Emergency Management Division, to

view records pertaining to the Germain property. He did not

claim to have gone to the DepartmentÓs Central District Office in

Orlando. In other words, G ermain did not go to the offices of

the agencies responsible for regulating petroleum USTs. Nor did

Germain say that he talked to any knowledgeable employee of these

agencies by telephone about possible contamination issues on the

Germain property.

32. W hile at a Lake County office, Germain searched the DEP

website and saw two documents that indicated the USTs on the

Germain property had been closed in place. One of the documents

indicated a cleanup status of Ðno contamination.Ñ Germain

claimed that he relied on these documents to conclude that the

property was clean.

33. The Department explained that the phrase Ðno

contaminationÑ is used in its database as a default where no

contamination has been reported and no discharge form has been

filed. It is n ot a determination based on a site investigation

that the site is free of contamination. However, the Department

had received information that the Germain property was

contaminated, so its explanation of the Ðno contaminationÑ status

for the Germain prope rty was unsatisfactory.

34. Germain does not practice environmental law. He

neither claimed nor demonstrated knowledge or experience with the

legal or factual issues associated with petroleum contamination.

35. Germain did not present evidence to estab lish that he

followed Ðgood commercial or customary practiceÑ in his

investigation of the property as required by section

376.308(1)(c).

36. Good commercial practice in the purchase of property

upon which potentially contaminating activities have occurred

entails consultation with a person with appropriate knowledge and

experience.

37. Germain did not consult with an environmental attorney

or environmental consultant regarding the potential liability

associated with property used as a gas station.

38. If Germain had hired an environmental consultant to

assist him, the consultant would have known where to find public

records about the gas station, including any soil and groundwater

analyses. An environmental consultant would have seen the site

assessment reports and other public records that indicated

petroleum contamination on the Germain property.

39. A consultant would likely have recommended a Phase I

environmental site assessment (ÐESAÑ). A Phase I ESA entails,

generally, determining past uses of a property, inspecting the

property for visible indications of potential contamination, and

reviewing aerial photographs, historical documents, and public

records related to the property and its surroundings. A Phase II

ESA would follow i f potential contami nation is discovered and

usually includes taking soil and groundwater samples.

40. In considering whether all appropriate inquiry was

undertaken by a purchaser of contaminated property, section

376.308(1)(c) directs t he court or administrative law judge to

take into account:

any specialized knowledge or experience on

the part of the defendant, the relationship

of the purchase price to the value of the

property if uncontaminated, commonly known or

reasonably ascertainable information about

the property, th e obviousness of the presence

or likely presence of contamination at the

property, and the ability to detect such

contamination by appropriate inspection.

41. Germain did not have specialized knowledge regarding

the regulation of petroleum USTs . However , as a lawyer, he was

familiar with the practice of employing or working with

professionals with specialized knowledge in order to achieve the

objectives or solve the problems of his clients. If GermainÓs

legal assistance had been sought by a client to so lve an

environmental problem, Germain would have declined to proceed

because he did not possess the requisite knowledge or he would

have sought the assistance of an environmental lawyer or

environmental consultant. In purchasing the Germain property,

Germ ain did not undertake the reasonable steps a lawyer must take

for a client.

42. No evidence was presented about the relationship of the

purchase price to the value of the Germain property.

43. Germain did not show that the site assessment reports

and oth er documents discussed above were not Ð reasonably

ascertainable information.Ñ

44. Although a visual inspection by a lay person would not

have disclosed the presence of contamination at the property, an

environmental consultant would have recognized the gr oundwater

monitor wells and would have known to seek information about the

reason for their installation and the groundwater sampling

results.

45. Taking all relevant considerations into account,

Germain failed to show that he made all appropriate inquiry

before he purchased the Germain property.

46. Germain transferred the property to LeesburgÓs in

January 2013 in part to limit his potential personal liability

for petroleum contamination. The Germain property is LeesburgÓs

primary asset.

47. Because Le esburgÓs took title to the Germain property

after the NOV was issued, it had full knowledge of the

contamination and cannot claim to be an innocent purchaser.

Post - Purchase Investigation

48. In August 2007, the Department sent Germain a letter

informing h im that the Department had reason to believe his

property was contaminated with petroleum and requiring him to

conduct a site assessment pursuant to rule 62 - 770.600(1). 2/

49. In September 2007, the Department sent Germain the 2004

and 2005 site assessment reports.

50. Germain did not conduct a site assessment.

51. At the final hearing, the Department did not state

whether it had made any effort to take enforcement action against

Griner, whom the record evidence indicates was the owner of the

gas station when the discharge occurred.

52. In 2012, the Department issued Germain a notice of

violation for failing to conduct a site assessment and

remediation. After Germain transferred the property to

LeesburgÓs, the Department issued the Final NOV to add Leesb urgÓs

as a Respondent.

53. The Final NOV seeks penalties of $10,000 against

Germain, and $10,000 against LeesburgÓs.

54. While investigating this matter, the Department

incurred expenses of $11,380.37 in investigative costs.

Confirmation of On - site Conta mination

55. Despite the site assessment reports that documented

contamination on the Germain property, Germain disputed the

DepartmentÓs claim that the property was contaminated.

56. The Department conducted testing and completed a Site

Investigation Re port in 2010. Because Germain would not allow

the Department onto his property, the Department installed

groundwater monitoring wells adjacent to the Germain property to

the west and south, and collected groundwater samples.

57. The Department confirmed the northwesterly flow of

groundwater documented in previous reports and found elevated

levels of petroleum contaminants above GCTLs, including benzene,

ethylbenzene, toluene, xylene, total lead, EDB, and total

recoverable petroleum hydrocarbons. Monitori ng wells west of, or

downgradient of, the Germain property showed high levels of

groundwater contamination, while monitoring wells to the south

and southeast, or upgradient of the property showed no signs of

contamination, indicating that the source of the groundwater

contamination was on the Germain property.

58. Based on the site assessments and its own

investigation, the Department determined that the Germain

property is the source of petroleum contamination detected along

the eastern portion of the Sun oco property.

59. Germain and LeesburgÓs did not present any expert

testimony to support their claim that the Germain property is not

contaminated or that the contamination migrated to the Germain

property from offsite.

60. A preponderance of the record evidence shows that the

Germain property is the source of the petroleum contamination

found in the onsite soil and groundwater, as well as in

groundwater on the eastern portion of the Sunoco property.

CONCLUSIONS OF LAW

61. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding under sections 120.569, 120.57(1), and 403.121.

62. If the Department has reason to believe a violation has

occurred, it may institute an administrative proceeding to

establish liability, to recover damages, to seek administrative

penalties that do not exceed $10,000, and to order the

prevention, abatement, or control of the conditions creating the

violation. See § 403.121(2)(a) and (b), Fla. Stat.

63. The Department Ós Final NOV charges Respondents with a

violation of a rule that implements the provisions of chapters

376 and 403. The Department may enforce the provisions of

chapters 376 and 403 using the procedures in section 403.121(2).

See § 376.302(2), Fla. Stat.

64. Because the Department seeks to impose administrative

penalties, the Administrative Law Judge is to issue a final order

on all matters. See § 403.121(2)(d), Fla. Stat.

65. The Department has the burden to prove by a

preponderance of the evidence tha t Respondents violated the law

as alleged in the Final NOV. See § 403.121(2)(d), Fla. Stat.

66. Germain contends that the site assessment reports from

2003, 2004, and 2005 are not admissible evidence of contamination

because they are hearsay. To the ex tent the assessment reports

are offered, not for the truth of the matter asserted, but rather

as evidence of information available to a person undertaking all

appropriate inquiry, they are not hearsay. See § 90.801(1)(c),

Fla. Stat.

67. Even as hearsay, the assessment reports are admissible

to supplement and explain non - hearsay evidence. See

§ 120.57(1)(c), Fla. Stat. The 2004 and 2005 site assessment

reports supplement the non - hearsay evidence of contamination on

the Germain property presented by the Department based on its

2010 site investigation.

68. Moreover, expert witnesses may rely on hearsay in

formulating their opinions. See § 90.704, Fla. Stat. An

expertÓs opinion is not rendered less persuasive simply because

he or she relied in part on h earsay in forming opinions.

Count I

69. Count 1 of the Final NOV charges the Respondents with a

violation of rule 62 - 770.600(1), which requires responsible

parties to initiate a site assessment within 30 days of

discovering petroleum contamination.

70. The Germain property is ÐcontaminatedÑ as defined in

rule 62 - 770.200(9).

71. Germain and LeesburgÓs are each a Ðperson responsible

for site rehabilitationÑ as defined in rule 62 - 770.200(38).

72. Germain and LeesburgÓs are each a Ðresponsible party,Ñ

de fined in rule 62 - 770.200(50) as Ð the real property owner, the

facility owner, the facility operator, or the discharger, or

other person or entity responsible for site rehabilitation unless

that entity is the Department.Ñ

73. Section 376.308 imposes stric t liability on the owners

of petroleum - contaminated properties. See § 376.308(1), Fla.

Stat.; see also FT Invs. , Inc. v. State Dep't of Envtl. Prot . , 93

So. 3d 369, 370 Î 71 (Fla. 1st DCA 2012) . To establish liability,

the Department need only plead and prove that a discharge or

other polluting condition h as occurred. See § 376.308(1), Fla.

Stat.

74. Although the statute provides for broad liability as a

means to effectuate the cleanup of contaminated properties,

nothing in the statute suggests that the Department should adopt

a practice of targeting curr ent owners for prosecution rather

than past owners who caused the contamination.

75. Section 376.313(3) provides that a party liable under

section 376.308 may seek contribution from other parties jointly

liable under the statute.

76. Germain contends tha t he is not liable because he is no

longer the owner of the property and was not the person who

caused the contamination. The statute would lose all

effectiveness if an owner could escape liability by simply

transferring his property after the commencemen t of an

enforcement action. T he legislature mandated a liberal

construction of the statute to protect the surface and ground

waters of Florida from pollution discharges. See § 376.315, Fla.

Stat . Because Germain owned the property at the time the

Depart ment issued the first NOV, he is a responsible party

regardless of his transfer of the property to LeesburgÓs.

77. Germain can only avoid liability under section 376.308

if he can prove that he qualifies for one of the affirmative

defenses contained in p aragraphs (1)(c) or (2)(d) of the section,

known as the Ðinnocent purchaserÑ and Ðthird partyÑ defenses,

respectively. Germain has the burden to prove by a preponderance

of the evidence his qualification for an affirmative defense.

78. The innocent purc haser defense allows a purchaser of

contaminated property to escape liability if the purchaser can

show that he or she: (1) acquired title to property contaminated

by the activities of a previous owner or operator or other third

party; (2) did not cause o r contribute to the discharge; (3) did

not know of the polluting condition at the time the owner

acquired title ; and (4) if title was acquired after July 1, 1992,

undertook, at the time of acquisition, all appropriate inquiry

into the previous ownership an d use of the property consistent

with good commercial or customary practice in an effort to

minimize liability. See § 376.308(1)(c), Fla. Stat.

79. Germain failed as a matter of law to conduct all

appropriate inquiry based on the findings made herein. To

qualify for the innocent purchaser defense requires more than the

inefficient and incomplete investigations of a person without

specialized knowledge. In this case, GermainÓs failure to obtain

the assistance of a person with specialized knowledge befor e

purchasing a former gas station was fatal to his claim of being

an innocent purchaser.

80. Th is conclusion is supported by the Environmental

Protection AgencyÓs (ÐEPAÑ) regulatory definition of Ðall

appropriate inquiriesÑ for the innocent purchaser defe nse under

the Comprehensive Environmental Response, Compensation, and

Liability Act. In EPAÓs regulations, an Ðall appropriate

inquiriesÑ defense requires that an environmental professional be

employed to conduct the investigation. See Voggenthaler v. Md.

Square LLC , 724 F.3d 1050, 1062 (9th Cir. 2013) ( citing 40 C.F.R.

312.20).

81. In their proposed orders, the Department and Germain

address at length the third party defense under section

376.308(2)(d), which was unnecessary because the third party

defense cannot be used to circumvent the requirements of the

innocent purchaser defense. In FT Invs. , the court stated:

When it amended section 376.308 to explicitly

provide an innocent purchaser defense, the

legislature expressed the clear intent that a

purchaser of property must establish he or

she did n ot have knowledge of the petroleum

contamination after making an appropriate

inquiry, essentially adopting Judge Ervin's

position in his dissenting opinion in

[ Sunshine Jr. Stores, Inc. v. Dep't of Envtl.

Regulation , 556 So. 2d 1177, 1184 (Fla. 1st

DCA 1990).] This requirement would be

rendered superfluous if a purchaser could

simply circumvent it by asserting a third

party defense.

It is not enough for Germain to demonstrate that he did not cause

or know about the contamination. He still must have undertaken

all appropriate inquiry before purchasing the property.

82. Section 403.121(3)(g) provides that for failure to

timely assess or remediate petroleum cont amination, the

Department shall assess a penalty of $2,000.

83. Pursuant to section 403.121(6), the Department may

assess an additional penalty of $2,000 per day for each day

during which the violation occurred. Because the Department may

only assess adm inistrative penalties totaling $10,000 in an

administrative action, the Department assesses the penalty for

five days.

84. The Administrative Law Judge may reduce a penalty up to

50 percent for mitigating factors. § 403.121(10), Fla. Stat.

85. Here, a 50 percent reduction in the penalty assessed to

Germain is appropriate because the Department failed to notify

Garcia of the contamination in 2005 as required by s ection

376.30702(3). If Garcia had been notified, Germain may not have

purchased the propert y. Accordingly, Germain will be assessed a

penalty of $5,000.

86. The affirmative defenses of section 376.308 do not

apply to LeesburgÓs as it had full knowledge of the contamination

before acquiring the property.

87. Germain contends that section 376.3 0715 would extend a

successful innocent purchaser defense to LeesburgÓs. Section

376.30715 pertains to eligibility for financial assistance and is

inapplicable.

88. The Department correctly contends that GermainÓs

transfer to LeesburgÓs was ineffective t o avoid his liability and

Germain is the appropriate respondent. Therefore, LeesburgÓs,

although also liable, will not be assessed a separate $10,000

administrative penalty. I f Germain does not pay the penalties

and investigative costs as ordered herein the Department may look

to the assets of LeesburgÓs.

Count II

89. In Count II of the Final NOV, the Department seeks to

recover its investigative costs. Section 403.141 allows for

recovery of the Ð reasonable costs and expenses of the state in

tracing the source of the discharge .Ñ The Department is entitled

to recover $11,380.37 from Germain for the Department Ós

investigative costs .

AttorneyÓs Fees

90. The Department is seeking attorneyÓs fees. Section

120.595 provides that a final order in a proceedin g pursuant to

section 120.57(1) shall award reasonable costs and a reasonable

attorneyÓs fee to the prevailing party only where the

nonprevailing adverse party has been determined by the

administrative law judge to have participated in the proceeding

for a n improper purpose. The facts do not support an award of

attorneyÓs fees.

DISPOSITION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is ORDERED that:

A. Within 30 days of this Order, Respondents shall initiate

a site assessment and submit a site assessment report in

accordance with rule 62 - 780.600. Respondents shall assess and

clean up all petroleum contamination at the property in

accordance with chapter 62 - 780 and the timeframes therein.

B. Any non - petroleum contamination disco vered during

activities undertaken in the paragraph above shall be addressed

in accordance with chapters 376 and 403 and all applicable

Department rules promulgated thereunder.

C. Within 30 days of the effective date of this Order,

Germain shall pay $5,0 00.00 to the Department for the

administrative penalties imposed above. Payment shall be made by

cashierÓs check or money order payable to the ÐState of Florida

Department of Environmental ProtectionÑ and shall include thereon

the notations ÐOGC Case No. 12 - 0727Ñ and ÐEcosystem Management

and Restoration Trust Fund.Ñ The payment shall be sent to the

State of Florida Department of Environmental Protection, Central

District, 3319 Maguire Boulevard, Suite 232, Orlando, Florida,

32803.

D. In addition to the administrative penalties, within 90

days of the effective date of this Order, Germain shall pay

$11,380.37 to the Department for costs and expenses. Payment

shall be made by cashierÓs check or money order payable to the

ÐState of Florida Department of En vironmental ProtectionÑ and

shall include thereon the notations ÐOGC Case No. 12 - 0727Ñ and

ÐEcosystem Management and Restoration Trust Fund.Ñ The payment

shall be sent to the State of Florida Department of Environmental

Protection, Central District, 3319 Maguire Boulevard, Suite 232,

Orlando, Florida, 32803.

DONE AND ORDERED this 14th day of February , 2014 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearin gs

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of February , 2014 .

ENDNOTE S

1/ A ll references to the Florida Statutes are to the 2013

codification.

2/ Some of the rules cited herein refer to rules in place at the

time the first NOV was issued, but that have since been repealed

and replaced. The outcome of this case would not be dif ferent

under the new rules. For example, rule 62 - 770.600(1) required a

responsible party to initiate a site assessment within 30 days of

discovering petroleum contamination, while new rule

62 - 780.600 requires a person responsible for site rehabilitation,

which includes responsible parties, to commence a site assessment

within 60 days of discovering a discharge. Germain did not

comply with either time frame.

COPIES FURNISHED:

Mark F. Germain, Esquire

2305 Hutchinson Avenue

Leesburg, Florida 34748 - 5436

Bonnie A . Malloy, Esquire

Janet Tashner, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Matthew Z. Leopold, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 3 0 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a par ty resides or

as otherwise provided by law.