STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GRADY PARKER, )

)

Petitioner, )

)

vs. ) Case No. 97-4411

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on May 26, 1998, by video teleconference at sites in West Palm Beach and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Grady Parker, pro se

1401 West 7th Street

Riviera Beach, Florida 33404

For Respondent: Kisha Pruitt, Esquire

Assistant General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE

Whether the costs incurred by the Department of Environmental Protection, Bureau of Emergency Response (Department) in connection with its response to Incident

Number 95-SE-0371 may be recovered from Petitioner pursuant to Chapter 376, Florida Statutes.

PRELIMINARY STATEMENT

By letter dated August 5, 1997, the Department requested that Petitioner reimburse the Department

$12,638.94 for costs incurred by the Department in connection with its response to Incident Number 95-SE-0371. Petitioner timely requested (in writing) an administrative hearing on the matter. In his written request, Petitioner admitted that he "own[ed]the subject property," but "ha[d] not utilized said property since some time in 1988" and was not "in any way responsible for the purported incident." The case was referred to the Division of Administrative Hearings (Division) on September 19, 1997, for the assignment of an administrative law judge to conduct the administrative hearing that Petitioner had requested.

As noted above, the hearing was held on May 26, 1998. 1/ At the hearing, four witnesses testified: Ann Meador, William Keenan; Frank Sardinha; and Hattie Parker. In addition to the testimony of these four witnesses, four exhibits (Petitioners' Exhibits 1 through 4) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the undersigned announced, on the record, that if the parties desired to file proposed recommended orders,

they had to do so no later than 15 days from the date that the transcript of the final hearing was filed with the Division. The transcript was filed with the Division on July 8, 1998. On July 23, 1998, the Department filed an unopposed motion requesting an extension of the deadline for the filing of proposed recommended orders in the instant case. By order issued July 24, 1998, the motion was granted, and the deadline for filing proposed recommended orders was extended to August 7, 1998. On August 7, 1998, the Department filed its proposed recommended order. This proposed recommended order has been carefully considered by the undersigned. To date, Petitioner has not filed any

post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:

1. The Department is a state regulatory agency charged with the responsibility of administering and enforcing the provisions of Chapters 376, Florida Statutes.

2. At all times material to the instant case, Petitioner has been the owner of a fenced and gated parcel of land, approximately one acre in size, located at 960 Old South Dixie Highway in an industrial area of Jupiter, Florida (Petitioner's Property or Property).

3. Before the incident which is the subject of the instant proceeding (Incident), Petitioner had used the Property to store equipment used in his asphalt paving business.

4. Petitioner removed the equipment from the property in December of 1989, when he moved his business operations to a new location in west Jupiter.

5. Underground tanks that Petitioner had installed on the Property to store diesel fuel used in his asphalt paving business were also removed when Petitioner's business relocated. Groundwater tests were conducted in May of 1990, after the tanks were removed. The results of these tests revealed the absence of any pollutants.

6. Following the relocation of his business to west Jupiter, Petitioner began renting the Property to Schmidt's Auto Body (Schmidt's), an automobile repair business located next to the Property. The rental agreement (which was not in writing), at Petitioner's insistence, included the requirement that Schmidt's maintain the Property and keep it clean.

7. Schmidt's used the Property to store vehicles that needed to be repaired or towed elsewhere.

8. To allow it easier access to Petitioner's Property, Schmidt's built a gate in the fence separating its business from the Property.

9. After Petitioner relinquished possession of the Property to Schmidt's, the Property was used by others, acting without Petitioner's approval or authorization, as a dumping ground for abandoned personal property.

10. Petitioner is now, and has been at all times material to the instant case, legally blind and in failing health.

11. Due to his blindness and poor health, Petitioner had been, prior to the Incident (and he has remained), unable to personally inspect the Property to ascertain Schmidt's compliance with the rental agreement's requirement that it maintain the Property and keep it clean.

12. Petitioner's wife passed by the Property each month when she visited Schmidt's to collect rent for Petitioner, but she did not closely inspect the Property on these visits.

13. There is no evidence that Petitioner was made aware, by his wife or anyone else, that his Property (which was fenced) was being used as a dumping ground.

14. On September 8, 1995, the day of the Incident, the Jupiter area experienced an unusually heavy rain event and resultant flooding and ponding of water in some spots, including locations on and around Petitioner's Property.

15. Depressions in portions of Petitioner's Property contained standing water, although the entire property was not flooded.

16. At approximately 10:30 a.m. on September 8, 1995, Ann Meador, an Emergency Response Coordinator with the Department, received a report (from Palm Beach County Risk Management) of two 55-gallon drums leaking asphalt sealant on Petitioner's Property. Meador was initially told that the "situation was being handled" by Palm Beach County Risk Management, but she was later advised otherwise.

17. Meador arrived on the scene at approximately 3:00

    
    

    p.m. that same day (September 8, 1995) and served as the Department's on-scene coordinator.

18. Upon arriving on the scene, Meador observed two

    
    

    55-gallon drums which had unsecured lids and were rusted and in otherwise poor condition. One of the drums was labelled "asphalt sealant.“ (Although Petitioner was in the asphalt paving business, he did not use asphalt sealant for any of the work he performed.)

19. Petitioner was not in any way responsible for the drums being on the Property. In fact, at no time prior to the Incident, did he even know that the drums were there.

20. The heavy rains had caused the contents of the drums (product) to overflow.

21. Approximately 85 gallons of product, mixed with water, had spilled onto the ground.

22. Stormwater runoff had carried some of the product to a depression in an unpaved road adjacent to the Property and near a storm drain.

23. Meador reasonably believed that the drums and the spilled product should be removed immediately to avoid the possibility that, with additional rainfall, the product would spread to other areas.

24. After having learned that Petitioner was the owner of the property on which the drums were located and having obtained his telephone number, Meador called the number to inform Petitioner of the leaking drums on his Property. The person to whom Meador spoke identified himself as Petitioner. He told Meador, upon being advised that the drums and product needed to be removed from the Property, that he was not "going to do anything."

25. Following this telephone conversation, Meador hired OHM Remediation Services, Inc. (OHM), a qualified emergency response contractor with whom the Department had a contract, to remove the drums and product (as well as the water and soil the product had contaminated) from the Property and to properly dispose of these items.

26. OHM, in turn, contracted with Magnum Environmental Services (Magnum) to perform these services (as a subcontractor).

27. Magnum personnel responded to the scene and performed these removal and disposal services.

28. To determine the most appropriate means of disposal, samples of the product were collected and analyzed.

29. The analysis revealed that the product was a petroleum derivative.

30. Magnum properly disposed of the drums based upon the results of its analysis.

31. The Department paid OHM $12,033.03 from the Water Quality Assurance Trust Fund for the services Magnum performed (as OHM's subcontractor).

32. In requesting that these services be performed and in paying $12,033.03 for the performance of these services, the Department acted reasonably and prudently.

33. The Department reasonably incurred other expenses (also paid from the Water Quality Assurance Trust Fund) totaling $461.91 in connection with its response to the Incident.

34. The total amount the Department paid from the Water Quality Assurance Trust Fund to have the leaking drums and product (as well as the water and soil the product had

    contaminated) properly removed from Petitioner's Property and disposed of was $12,497.94. 2/

35. The Department is requesting that Petitioner reimburse the Department for these costs.

    CONCLUSIONS OF LAW

    
    

36. The Department is relying on Chapter 376, Florida Statutes, in seeking such reimbursement from Petitioner.

37. Section 376.30, Florida Statutes, describes the "legislative intent" behind the enactment of Section 376.30-

    .319, Florida Statutes. It provides, in pertinent part, as follows:

    376.30 Legislative intent with respect to pollution of surface and ground waters.–

    
    

    1. The Legislature finds and declares:

       
       

       1. That certain lands and waters of Florida constitute unique and delicately balanced resources and that the protection of these resources is vital to the economy of this state;

          
          

       2. That the preservation of surface and ground waters is a matter of the highest urgency and priority, as these waters provide the primary source for potable water in this state; and

          
          

       3. That such use can only be served effectively by maintaining the quality of state waters in as close to a pristine condition as possible, taking into account multiple-use accommodations necessary to provide the broadest possible promotion of public and private interests.

    2. The Legislature further finds and declares that:

       
       

       1. The storage, transportation, and disposal of pollutants and hazardous substances within the jurisdiction of the state and state waters is a hazardous undertaking;

          
          

       2. Spills, discharges, and escapes of pollutants and hazardous substances that occur as a result of procedures taken by private and governmental entities involving the storage, transportation, and disposal of such products pose threats of great danger and damage to the environment of the state, to citizens of the state, and to other interests deriving livelihood from the state;

          
          

       3. Such hazards have occurred in the past, are occurring now, and present future threats of potentially catastrophic proportions, all of which are expressly declared to be inimical to the paramount interests of the state as set forth in this section; and

          
          

       4. Such state interests outweigh any economic burdens imposed by the Legislature upon those engaged in storing, transporting, or disposing of pollutants and hazardous substances and related activities.

          
          

    3. The Legislature intends by the enactment of ss. 376.30-376.319 to exercise the police power of the state by conferring upon the Department of Environmental Protection the power to:

       
       

       1. Deal with the environmental and health hazards and threats of danger and damage posed by such storage, transportation, disposal, and related activities;

       2. Require the prompt containment and removal of products occasioned thereby;

          . . .

          
          

    4. The Legislature further finds and declares that the preservation of the quality of surface and ground waters is of prime public interest and concern to the state in promoting its general welfare, preventing disease, promoting health, and providing for the public safety and that the interest of the state in such preservation outweighs any burdens of liability imposed by the Legislature upon those persons engaged in storing pollutants and hazardous substances and related activities.

       
       

    5. The Legislature further declares that it is the intent of ss. 376.30-

    376.319 to support and complement applicable provisions of the Federal Water Pollution Control Act, as amended, specifically those provisions relating to the national contingency plan for removal of pollutants.

38. The Department is authorized, by Section 376.307(1)(a), Florida Statutes, to use monies from the Water Quality Assurance Trust Fund "[t]o carry out the provisions of ss. 376.30-376.319, relating to assessment, cleanup, restoration, monitoring, and maintenance of any site involving spills, discharges, or escapes of pollutants or hazardous substances which occur as a result of procedures taken by private and governmental entities involving the storage, transportation, and disposal of such products."

39. Subsections (5) and (7) of Section 376.307, Florida Statutes, which provide as follows, authorize the Department to seek the recovery of these monies:

    (5) Except as otherwise provided by law, the department shall recover to the use of the fund from a person or persons at any time causing or having caused the discharge or from the Federal Government, jointly and severally, all sums owed or expended from the fund, pursuant to s. 376.308, except that the department may decline to pursue such recovery if it finds the amount involved too small or the likelihood of recovery too uncertain. Sums recovered as a result of damage due to discharge of a pollutant or other similar disaster shall be apportioned between the fund and the General Revenue Fund so as to repay the full costs to the General Revenue Fund of any sums disbursed therefrom as a result of such disaster. Any request for reimbursement to the fund for such costs, if not paid within

    30 days of demand, shall be turned over

    to the department for collection.

    
    

    (7) Except as otherwise provided by law, the department, in administering the fund, shall diligently pursue the reimbursement to the fund of any sum expended from the fund in accordance with this section for cleanup and abatement, unless the department finds the amount involved too small or the likelihood of recovery too uncertain. For the purposes of s. 95.11, the limitation period within which to institute an action to recover such sums commences on the last date on which any such sums were expended, and not the date that the discharge occurred.

40. Any action initiated by the Department to recover these monies is governed by the provisions of Section

    373.308, Florida Statutes, which provides, in pertinent part, as follows:

    376.308 Liabilities and defenses of facilities.–

    
    

    1. In any suit instituted by the department under ss. 376.30-376.319, it is not necessary to plead or prove negligence in any form or matter. The department need only plead and prove that the prohibited discharge or other polluting condition has occurred. The following persons shall be liable to the department for any discharges or polluting condition:

       
       

       1. Any person who caused a discharge or other polluting condition or who owned or operated the facility, or the stationary tanks or the nonresidential location which constituted the facility, at the time the discharge

          occurred. . . .

          
          

    2. [T]he only other defenses of a person specified in subsection (1) are to plead and prove that the occurrence was solely the result of any of the following or any combination of the following:

    
    

    1. An act of war;

       
       

    2. An act of government, either state, federal, or local, unless the person claiming the defense is a governmental body, in which case the defense is available only by acts of other governmental bodies;

       
       

    3. An act of God, which means only an unforeseeable act exclusively occasioned by the violence of nature without the interference of any human agency; or

       
       

    4. An act or omission of a third party, other than an employee or agent of the defendant or other than one whose

    act or omission occurs in connection with a contractual relationship existing, directly or indirectly, with the defendant, except when the sole contractual arrangement arises from a published tariff and acceptance for carriage by a common carrier or by rail, and the defendant establishes by a preponderance of the evidence that:

    
    

    1. The defendant exercised due care with respect to the pollutant concerned, taking into consideration the characteristics of such pollutant, in light of all relevant facts and circumstances.

       
       

    2. The defendant took precautions against any foreseeable acts or omissions of any such third party and against the consequences that could foreseeably result from such acts or omissions. . . .

    
    

    (4) Liability pursuant to this chapter shall be joint and several. However, if more than one discharge occurred and the damage is divisible and may be attributed to a particular defendant or defendants, each defendant is liable only for the costs associated with his or her damages. The burden shall be on the defendant to demonstrate the divisibility of damages. . . .

41. Section 376.301, Florida Statutes, contains "[d]efinitions of terms used in ss. 376.30-376.319." The following are among these definitions:

    (9) "Discharge" includes, but is not limited to, any spilling, leaking, seeping, pouring, misapplying, emitting, emptying, or dumping of any pollutant which occurs and which affects lands and the surface and ground waters of the state not regulated by ss. 376.011- 376.21.

    (15) "Facility" means a nonresidential location containing, or which contained, any underground stationary tank or tanks which contain hazardous substances or pollutants and have individual storage capacities greater than 110 gallons, or any aboveground stationary tank or tanks which contain pollutants which are liquids at standard ambient temperature and pressure and have individual storage capacities greater than 550 gallons. This subsection shall not apply to facilities covered by chapter 377, or containers storing solid or gaseous pollutants, and agricultural tanks having storage capacities of less than

    550 gallons.

    
    

    (23) "Person" means any individual, partner, joint venture, or corporation; any group of the foregoing, organized or united for a business purpose; or any governmental entity.

    
    

    1. "Pollutants" includes any "product" as defined in s. 377.19(11), pesticides, ammonia, chlorine, and derivatives thereof, excluding liquefied petroleum gas.

       
       

    2. "Pollution" means the presence on the land or in the waters of the state of pollutants in quantities which are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property or which may unreasonably interfere with the enjoyment of life or property, including outdoor recreation.

    
    

    (33) "Response action" means any activity, including evaluation, planning, design, engineering, construction, and ancillary services, which is carried out in response to any discharge, release, or threatened release of a hazardous substance, pollutant, or other contaminant from a facility or site identified by the

    department under the provisions of ss. 376.30-376.319. . . .

    
    

42. Section 377.19, Florida Statutes, which is referenced in the definition of "pollutants" found in Section 376.301(30), Florida Statutes, defines “product” as follows:

    (11) "Product" means any commodity made from oil or gas and includes refined crude oil, crude tops, topped crude, processed crude petroleum, residue from crude petroleum, cracking stock, uncracked fuel oil, fuel oil, treated crude oil, residuum, gas oil, casinghead gasoline, natural gas gasoline, naphtha, distillate, condensate, gasoline, waste oil, kerosene, benzene, wash oil, blended gasoline, lubricating oil, blends or mixtures of oil with one or more liquid products or byproducts derived from oil or gas, and blends or mixtures of two or more liquid products or byproducts derived from oil or gas, whether hereinabove enumerated or not.

43. In the instant case, the record evidence establishes that there was a "discharge" (as defined in Section 376.301(9), Florida Statutes) of "pollutants" (as defined in Section 376.301(30), Florida Statutes) on Petitioner's Property, which constituted a "polluting condition" (as that term is used in Section 376.308, Florida Statutes). The Department, however, has failed to meet its burden, under the provisions of Chapter 376, Florida Statutes, of establishing Petitioner's liability for this "polluting condition."

44. In its proposed recommended order, the Department contends that Petitioner is liable pursuant to Section 376.308(1)(a), Florida Statutes, because he owned the property on which the "discharge" occurred and that property was a nonresidential location which constituted a "facility," as defined in Section 376.301(15), Florida Statutes.

45. The Property's "nonresidential location," as well as Petitioner's ownership of the Property at the time of the "discharge," are undisputed. The record evidence, however, is insufficient to establish that, at the time of the "discharge," Petitioner's Property was a "facility," as that term is used in Section 376.308(1)(a), Florida Statutes.

46. Petitioner's Property did, at one time (prior to the "discharge"), contain underground stationary tanks in which "pollutants" (specifically, diesel fuels) were stored, but there is no indication in the record that these tanks had "individual storage capacities greater than 110 gallons." A "nonresidential location" having (or having had) underground stationary tanks containing hazardous substances or pollutants qualifies as a "facility," as defined in Section 376.301(15), Florida Statutes, and as used in Section 376.308(1)(a), Florida Statutes, only if the individual storage capacities of the tanks in question exceed or (in those cases, such as the instant one, where

    the tanks have been removed) exceeded 110 gallons. Since the Department did not prove that the underground stationary tanks that had been on Petitioner's Property had such individual storage capacities, it failed to establish that the Property constituted a "facility." Absent a showing that the Property was a "facility," Petitioner's mere ownership of the Property is not a basis upon which he can be held responsible, pursuant to Section 376.308(1)(a), Florida Statutes, for the "discharge" that occurred on the Property.

47. Moreover, when Section 376.308(1)(a), Florida Statutes, is read together with the other provisions of Chapter 376, Florida Statutes, particularly those which specifically describe the Legislature's intent in enacting Sections 376.30 through 376.319, Florida Statutes, it is apparent that the statute does not make the owner of a "facility" liable for every "discharge" that occurs at that "facility." Where there is no nexus between the "discharge" and the stationary tanks that are (or were) at the "facility," the owner of the "facility" is not liable for the "discharge" under Section 376.308(1)(a), Florida Statutes (provided, of course, he did not cause the "discharge.") In the instant case, the record evidence affirmatively establishes that there was no connection between the "discharge" and the underground tanks that had

    previously been on the Property. The "pollutants" that were "discharged" on the Property came, not from the tanks, but from drums that had been brought on the Property, by some unknown person or persons other than Petitioner, who were acting without Petitioner's knowledge or authorization.

    Accordingly, even if the Department had established that the Property was a "facility," the record evidence would still not support a finding that Petitioner should be held liable, by virtue of his ownership of the Property, for the "discharge" that occurred on the Property.

48. Because the record evidence does not show that Petitioner caused the "discharge" in the instant case, by negligence or otherwise, or that he should be held responsible for the "discharge" based merely upon his ownership of the Property, the Department should terminate its efforts to require Petitioner to reimburse the Department for the costs it incurred in responding to the "discharge."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered by the Department finding that Petitioner is not liable for the costs the Department incurred in responding to Incident Number 95-SE-0371.

DONE AND ENTERED this 28th day of August, 1998, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1998.

ENDNOTES

1/ The hearing was originally scheduled to commence on January 23, 1998, but was continued at the request of the Department.

2/ The Department acknowledges that the original invoice it sent to Petitioner (which indicated that the total costs incurred by the Department in connection with the Incident was $12,638.94) was incorrect.

COPIES FURNISHED:

Grady Parker

1401 West 7th Street

Riviera Beach, Florida 33404

Kisha Pruitt, Esquire Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

F. Perry Odom, Esquire General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-004411

Orders for Case No: 97-004411