14-002451EF Department Of Environmental Protection vs. Joshua L. Putnam Status: Closed DOAH Final Order on Friday, October 31, 2014.

Summary: Respondent is liable for failing to assess or remediate petroleum contamination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Petitioner,

vs. Case No. 14 - 2451EF

JOSHUA L. PUTNAM,

Respondent.

_______________________________/

FINAL ORDER

The final hearing in this case was held by telephone on

September 9, 2014, before Bram D.E. Canter, Administrative Law

Judge of the Division of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioner: Janet M. Tashner, Esquire

Department of Environ mental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

For Respondent: Joshua L. Putnam #D89045; pro se

c/o Columbia Coun ty Correctional

Institution

216 Southeast Corrections Way

Lake City, F lorida 32025 - 2013

STATEMENT OF THE ISSUES

The issues to be determined in this case are whether

Respondent should pay t he administrative penalty, investigative

costs, and attorney's fees , and undertake the corrective actions

that are demanded by the Florida Department of Environmental

Protection ("Department") in its Notice of Violation, Orders for

Corrective Action, and A dministrative Penalty Assessment (ÐNOVÑ).

PRELIMINARY STATEMENT

On February 25, 2014, the Department issued an NOV against

Richard H. Cubbedge, Tammy C. Putnam, and Joshua L. Putnam,

charging them with violations of state law related to a discharge

of die sel fuel. The record does not reflect whether Richard

Cubbedge timely requested a hearing to contest the charges

against him, but no request for hearing from him was referred to

DOAH by the Department. Tammy Putnam requested a hearing and the

Department referred her request to DOAH where it was assigned

Case No. 14 - 2452EF. Ms. PutnamÓs case was subsequently closed

when she and the Department entered into a Consent Order.

Joshua Putnam requested a hearing and the Department referred his

request to DOAH w here it was assigned Case No. 14 - 2451EF.

On August 1, 2014, Mr. Putnam filed a letter with DOAH

requesting legal aid. The request was denied.

At the final hearing, the Department presented the testimony

of Timothy Dohaney. Mr. Putnam testified on his own behalf.

The one - volume Transcript of the final hearing was filed

with DOAH. The Department submitted a proposed final order,

which was considered in the preparation of this Final Order.

Mr. Putnam did not submit any post - hearing writing.

FINDINGS OF FAC T

1. The Department is the administrative agency of the state

of Florida with the power and duty to protect Florida's air and

water resources and to administer and enforce the provisions of

c hapters 376 and 403, Florida Statutes, and the rules promulgated

thereunder in Florida Administrative Code Title 62.

2. Joshua Putnam is a natural person who is currently

incarcerated in the Columbia County Correctional Institution .

Mr. Putnam has been incarcerated since February 16, 2012 , for the

theft of diesel fue l .

3. On or about January 20, 2012, Mr. Putnam discharged 25

to 50 gallons of diesel fuel onto the ground in the backyard of a

residence located at 433 Lena Street, St. Augustine, Florida

(Ðthe propertyÑ).

4. The discharge resulted in Ðcontamination,Ñ as defined in

rule 62 - 780.200(9).

5 . Mr. Putnam has not initiated a site assessment or

remediated the c ontamination.

6 . The property is owned by Tammy Putnam. She and the

Department entered into a Consent Order. The Consent Order was

not filed with DOAH, but it is reasonable to assume that the

Consent Order addresses assessment and remediation of the

contamination on her property .

7 . The Department states that it provided Mr. Putnam an

opportunity to demonstrate that he is financially unable to

assess an d remediate the contamination, but the Department did

not receive all the documentation it requested from Mr. Putnam.

Mr. Putnam has not been employed for six or seven years and is

currently unable to pay to clean up the contamination or to pay

the admini strative penalties.

8 . Mr. Putnam admitted liability and expressed his intent

to remedy the situation as soon as he is released from prison.

His current release date is May 5, 2015.

9 . While investigating this matter, the Department incurred

$1,000 in c osts.

CONCLUSIONS OF LAW

10 . If the Department has reason to believe a violation of

the law it administers has occurred, it may institute an

administrative proceeding to establish liability, recover

damages, impose administrative penalties that do not exc eed

$10,000, and order the prevention, abatement, or control of the

conditions creating the violation. See § 403.121(2)(a) and (b),

Fla. Stat. (2014).

1 1 . 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.

1 2 . The Department has the burden to prove by a

preponderance of the evidence that Mr. Putnam violated the law as

charged in the NOV. See § 403.121(2)(d), Fla. Stat.

1 3 . Mr. Putnam is a "Person Responsible for Site

Rehabilitation" as defined in rule 62 - 780.200(3 1 ) , because he

discharged the diesel fuel on the property.

1 4 . Count I of the NOV charges Mr. Putnam with a violation

of r ule 62 - 780.600, which requires responsible parties to

initiate a site assessment within 60 days of discovering

petroleum and to submit a site assessment report to the

Department within 270 days. Mr. Putnam is liable under Count I.

1 5 . Section 403.121(3)(g) provides that for failure to

timely assess or remed iate petroleum contamination, the

Department shall assess a penalty of $2,000.

1 6 . Pursuant to section 403.121(6), the Department may

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

which a violation occurred. Because the Department may only

assess administrative penalties totaling $10,000 in an

administrative action, the Department assesses the penalty for

five days.

1 7 . The Administrative Law Judge may reduce a penalty up to

50 percent for mitigating factors. § 403.121 (1), Fla. Stat. A

50 percent reduction in the penalty is appropriate here because

Mr. Putnam has been unable to take corrective action due to his

incarceration and lack of financial assets .

1 8 . In Count II of the NOV the Department seeks to recover

its investigative co sts. The Department is entitled to recover

$1,000 from Mr. Putnam for the Department's investigative costs.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that:

1. Within one year of the date of this Order, Josh ua Putnam

shall initiate a site assessment and submit a site assessment

report in accordance with r ule 62 - 780.600. He shall assess and

clean up all petroleum contamination at the Property in

accordance with chapter 62 - 780 and the timeframes therein.

2. W ithin one year of the date of this Order, Joshua Putnam

shall pay $5,000 to the Department for the administrative penalty

imposed above. Payment shall be made by cashier's check or money

order payable to the "State of Florida Department of

Environmental P rotection" and shall include thereon the notations

"OGC Case No. 13 - 1321" and "Ecosystem Management and Restoration

Trust Fund." The payment shall be sent to the State of Florida

Department of Environmental Protection, 8800 Baymeadows Way West,

Suite 100, Jacksonville, F lorida 32256.

3. W ithin one year from the date of this Order,

Joshua Putnam shall pay $1,000 to the Department for its

investigative costs unless these costs have already been paid by

Tammy Putnam . Payment shall be made by cashier's chec k or money

order payable to the "State of Florida Department of

Environmental Protection" and shall include thereon the notations

"OGC Case No. 13 - 1321" and "Ecosystem Management and Restoration

Trust Fund." The payment shall be sent to the State of Flori da

Department of Environmental Protection, 8800 Baymeadows Way West,

Suite 100, Jacksonville, Florida 32256.

DONE AND ORDERED this 31st day of October , 2014 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Admi nistrative Law Judge

Division of Administrative Hearings

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 Heari ngs

this 31st day of October , 2014 .

COPIES FURNISHED:

Janet M. Tashner, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Joshua L. Putnam

c/o Columbia Correctional Ins titution

D89045

216 Southeast Corrections Way

Lake City, Florida 32025 - 2013

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Matthew Z. Leop old, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevar d

Tallahassee, Florida 32399 - 3000

(eServed)

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 30 days of rendition

of the order to be reviewed, and a cop y 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 party resides or

as otherwise provided by law.