5D04-1182 Kerper v. Dept. of Environmental Protection

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D04-1182

Case Date: 01/10/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2005

THOMAS KERPER AND ALL SALVAGED AUTO PARTS, INC., Appellants, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee. ________________________________/ Opinion filed January 14, 2005 Administrative Appeal from the Department of Environmental Protection. Albert E. Ford, II, and Lea Brueggeman, of Ford & Brueggeman, P.A., Lake Mary, for Appellants. David J. Tarbert and Jason Sherman, Department of Environmental Protection, Tallahassee, for Appellee. Case No. 5D04-1182

PLEUS, J. Thomas Kerper and his business, All Salvaged Auto Parts, Inc. (referred to collectively as "Kerper") appeal a final order of the Department of Environmental Protection ("DEP") finding them liable for failing to clean up used oil discharges. We have jurisdiction pursuant to Article V, section 4(b)(1) of the Florida Constitution. We reverse the final order for lack of competent, substantial evidence showing that Kerper

was the person responsible for discharging the used oil. We also reverse because the DEP lacked authority to impose an unpromulgated rule on Kerper. Facts From 2000 to 2002, Kerper operated an auto parts salvage operation on a portion of land owned by Donald Joynt. Kerper originally intended to purchase the property but changed his mind after discovering environmental problems on the property. Kerper hired an attorney to extricate him from the agreement to purchase Joynt's property. On March 5, 2002, the attorney filed a citizen's complaint with the Orange County Environmental Protection Division against Joynt. Joynt filed an eviction proceeding against Kerper. The evidence conflicted regarding when Kerper vacated the property, but the ALJ found that "the evidence seemed clear that Kerper and ASAP did not go on Joynt's property on or after March 15, 2002." On March 15, DEP inspected the property. Joynt told DEP inspectors that

Kerper was responsible for a 55 gallon drum that was tipped over and leaking what appeared to be used oil. The inspection also revealed other unlabeled drums,

containers of unknown fluids, a burn pile containing oil filters, battery casings and wiring, and areas of dark-stained soil in the area where Kerper had previously operated his business. Joynt accepted responsibility for contamination elsewhere on the property but maintained that Kerper was responsible for these items. As a result of its inspection, DEP filed a notice of violation against Joynt and Kerper alleging eight counts of various environmental violations.1 Joynt opted to settle

The notice of violation alleged the following counts: Count I, failure to respond to used oil releases; Count II, failure to perform a waste determination on an estimated three 55-gallon drums and three 5-gallon containers with unknown contents, on used oil 2

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but Kerper requested an administrative hearing. After a hearing, the administrative law judge ("ALJ") found that DEP proved Count I of the notice of violation (that Kerper failed to respond to used oil discharges), but dismissed the remaining seven counts as moot. DEP later entered a final order in accordance with the ALJ's recommended order. On appeal, Kerper raises seven arguments.2 Two warrant discussion. Lack of Competent, Substantial Evidence Kerper argues that the ALJ's finding that he discharged oil was not supported by competent, substantial evidence. We agree. The only direct evidence presented by DEP that Kerper was the person responsible for spilling used oil was the objected-to hearsay testimony of now-deceased Donald Joynt. Joynt told DEP inspectors that Kerper was responsible for used oil

leaking from an overturned 55 gallon drum on March 15, 2002. Kerper notes that section 120.57, Florida Statutes, allows hearsay to be admitted "for the purposes of supplementing or explaining other evidence, but it shall not be sufficient in itself to

filters, and on burned and buried lead acid batteries; Count III, failure to clearly mark or label containers of used oil; Count IV, failure to document disposal of hazardous waste including gasoline, waste antifreeze, and waste batteries; Count V, failure to document proper disposal of used oil and waste gasoline; Count VI, failure to document reclamation of Freon; Count VII, allowing contaminated stormwater to drain into low areas onsite and offsite without proper pollution controls and stormwater permits; and Count VIII, responsibility for DEP investigative costs "of not less than $500.00: He raises seven arguments: (1) the ALJ's finding that Kerper caused the discharge of oil is not supported by competent, substantial evidence; (2) the ALJ improperly shifted the burden of proof to Kerper to prove that he did not discharge the used oil; (3) the ALJ abused his discretion by admitting evidence of prior bad acts; (4) the ALJ abused his discretion by excluding one of Kerper's witnesses; (5) the DEP's "Corrective Actions for Contaminated Site Case" is an unpromulgated rule; (6) section 376.305, Florida Statutes is facially unconstitutional because it unlawfully delegates legislative authority to DEP; and (7) the ALJ and the DEP erred in refusing to award Kerper attorney's fees and costs.
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support a finding unless it would otherwise be admissible over objection in civil actions." (Emphasis added). There was no other evidence proving that Kerper caused these used oil spills. Despite finding that Kerper was not operating his business or otherwise occupying the property on the date of the inspection, the ALJ apparently inferred that Kerper was at least partly responsible for the used oil spills because he had recently occupied the property. However, there was absolutely no evidence regarding the age of the spills. Neither the two DEP experts nor anyone else testified that the spillages occurred at a time when Kerper occupied the property. To the contrary, DEP experts testified that oil was "oozing" from a hole in the drum and was "leaking while [they] were there" on March 15. They righted the drum and discovered that it was still "partly full of its

contents." If any inference can be derived from this testimony, it would support Kerper's argument that the drum was tipped over after Kerper vacated the property. Accordingly, DEP failed to present competent substantial evidence that Kerper was the person or entity responsible for the discharges. We are also troubled by DEP's arguments regarding the sufficiency of evidence proving that the substance observed was used oil. Used oil is defined as "any oil that has been refined from crude oil, or any synthetic oil, that has been used and as a result of such use is contaminated by physical or chemical impurities." 40 C.F.R.

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