STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 97-5686

)

RAY WARREN CRAWLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Bradenton, Florida, on February 23, 1998, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kisha R. Pruitt, Esquire

Thomas M. Beason, Esquire Department of Environmental

Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent: Paul S. Reed, Esquire

Leonard McCue and Associates, P.A.

524 Ninth Street West Bradenton, Florida 34205-7737

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Respondent should be assessed the cost of a clean-up of contaminant which resulted from a motor vehicle accident in which he was involved on June 16, 1997, on State Road 64.

PRELIMINARY MATTERS

By letter dated August 11, 1997, Debra J. Preble, Chief of the Department of Environmental Protection’s Bureau of Emergency Response, advised Respondent that he was responsible for the costs of cleaning up the contaminants spilled as a result of an incident in which he was involved on June 16, 1997, on State Road 64, and requested reimbursement for those costs in the amount of $3,333.95. Through counsel, Respondent protested the assessment and requested the Department seek reimbursement from another individual, Mr. Eason, whose cattle caused the incident. The Department considered this response a request for formal hearing, and this hearing followed.

Petitioner did not present any testimony at the hearing, but sought and obtained permission of the Administrative Law Judge to file a copy of the previously-taken deposition of the Respondent upon its transcription. Respondent interposed no objection to that request, and it was subsequently received and considered.

Petitioner also introduced one exhibit.

Respondent testified in his own behalf and introduced the testimony of John W. Eason, Jr., the alleged owner of the cattle involved in this incident; and trooper David Franklin Tomlinson, Jr., an investigator at the scene of the incident. Respondent also introduced his Exhibits A through C.

A transcript of the proceedings was furnished. Subsequent to the receipt thereof, counsel for both parties submitted

matters in writing which were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent, Ray W. Crawley, is a professional truck driver. On June 16, 1997, he owned a 1990 Mack tractor and an open dump trailer. At approximately 12:15 a.m., on June 16, 1997, Respondent was driving his rig east toward Lake Wales on State Road 64. He chose that road because, having driven it frequently, he knew it to experience normally low traffic and to be a high quality highway. On numerous occasions he had seen both cattle and deer on the highway, and it is a generally accepted fact that the wildlife have the right-of-way.

2. Mr. Crawley had just passed through Zolfo Springs when, in his lights, he saw a cow on the roadside off in the distance. Before he could take any action to slow down, another cow ran onto the road from the south and into his truck. Later examination of the vehicle revealed that this caused the axle pin to shear. As a result, Mr. Crawley, who was driving between 55 and 60 miles per hour in a 60 mile per hour speed zone, lost control of his vehicle. It veered off the road to the right, struck a power pole, demolished a mailbox, went through a fence, and ended up on its side on the south side of the highway in a pasture owned by Ms. Carrie Graham. Mr. Crawley was pinned inside the cab of the truck for a while, but suffered only a cut on his head and pulled muscles. He either was able to extricate

   himself from the wreck or was freed by emergency medical technicians who arrived at the scene shortly after the incident, and who insisted he be taken to the hospital for observation.

   
   

   Mr. Crawley was not cited for speeding or for any other violation as a result of this accident.

3. As a result of the overturning, Respondent’s truck leaked diesel fuel and hydraulic oil from the tractor onto the ground, and this material had to be removed from the site. Approximately 80 gallons of diesel fuel and 40 gallons of hydraulic oil were spilled.

4. The Department contacted Ms. Graham’s brother, Mr. Ken Willis, and Mr. Crawley to inform them that the spill had to be cleaned up. Mr. Willis declined to do so because the cow which caused the accident did not belong to him or Ms. Graham, and he did not think liability for the cleanup was their responsibility. Mr. Crawley also declined responsibility for the cleanup. He claimed the accident was not his fault, and that because of the injuries he sustained, he was incapable of overseeing a contractor hired to effect the cleanup.

5. Mr. Crawley’s tractor and the trailer were both totally destroyed as a result of this accident. His insurance paid him

   $20,000 for the tractor and $16,000 for the trailer. However, his insurance company declined to cover the cost of the cleanup, asserting a lack of fault on his part.

6. Because Respondent did not agree to clean up the spill, the Department hired a contractor to remove the diesel fuel and hydraulic oil on June 20, 1997. The cost of the cleanup was

   $3,333.95, which was paid from the Water Quality Assurance Trust Fund. Respondent does not deny that a cleanup was required; that the Department paid to have the cleanup done by a contractor; that the cost of the cleanup was as stated; or that the cost was reasonable and proper.

7. The cow which ran into the side of Mr. Crawley’s truck and prompted the accident was not owned by him. Though it is impossible to tell at this time, it would appear that this cow was with several (approximately 15) cows which were owned by

   Mr. John Eason, a citrus grower and rancher who runs cattle both on his home property and on pasture which he leases from someone else. The pasture he leases runs along State Road 64, and is totally fenced. There are two gates on the side which abuts the highway, and another gate which permits access to the pasture from the barn. There is also a small gate which permits access from the outside to the yard behind the owner’s property, from which access to the pasture may be gained through the barn.

8. Mr. Eason relates he was called to the accident scene the evening in question and was told his cattle had escaped from the pasture. By the time he arrived, most of the cattle had been rounded up and were being put back into the pasture. He was also advised that it appeared the cattle had escaped through the

   second gate further down the road from the accident site. Since the cows could not have opened the gate, it is clear that the gate was left open by someone who used it earlier. After helping with the round-up of the remaining escapees, Mr. Eason got them back into the pasture and the gates were all closed.

9. Once that was done, Mr. Eason made an examination of the dead animal and determined that it was a heifer. Mr. Eason claims not to have owned any heifers. If his claim is accepted as true, the dead animal was not his. He did not claim the carcass at the time, and the animal was hauled away by the driver of the wrecker which came to the scene. None of the animals owned by Mr. Eason bear his brand. Most are not branded at all, and those which are branded bear the brand of a prior owner from whom Eason purchased the animal.

10. Taken together, the evidence presented at the hearing fails to show any negligence in this accident on the part of Mr. Crawley. The ownership of the cow in question cannot be determined with any degree of certainty, but it is likely the animal was owned by Mr. Eason. No evidence was presented to indicate who was responsible for leaving open the pasture gate through which the cow was given access to the highway. It does not appear that any identifiable party was negligent in this matter.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has

    jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

12. The Department seeks to assess against the Respondent the costs of the clean-up of pollutants leaked onto the ground as a result of the accident in which he was involved on June 16, 1997. The Department cites as authority for its efforts the pertinent provisions of Section 376.30, Florida Statutes.

13. Section 376.30(1), Florida Statutes, defines the state’s position on the clean-up of pollutant spills and the statute also authorizes the Department to effect clean-up of spills and discharges when the individual who caused the spill either refuses to or cannot effect clean-up.

14. Section 376.308(1), Florida Statutes, provides that in any suit instituted by the Department under the provisions of Sections 376.30 through 376.319, Florida Statutes, “it is not necessary to prove negligence in any form or manner.” The Department need only plead and prove that the prohibited discharge has occurred”, and the statute further includes as a liable party, “(a) [a]ny person who caused a discharge or other polluting condition ....” This creates an almost strict liability situation.

15. However, at Section 376.308(2), Florida Statutes, the legislation provides defenses to the individuals described above. In addition to an act of war, an act of government, and an act of God, a charged individual may be able to cite as a defense an act

    or omission of an independent third party, provided the charged individual exercised due care and took precautions against any foreseeable acts or omissions of such third party. These defenses must be strictly applied.

16. In the instant case, the evidence clearly establishes that Respondent Crawley was driving the vehicle when it overturned, spilling a contaminant onto the ground. Under the terms of the statute cited, the Department need not show negligence on Crawley’s part to hold him responsible. To escape that responsibility, however, Mr. Crawley must show by a preponderance of the evidence that an act or omission of someone else caused the spill; that he exercised due care; and that he took precautions against any foreseeable acts or omissions of a third party. Though Mr. Crawley was not exceeding the speed limit at the time of the accident, he was driving at a high speed along a dark highway which was known to carry a danger of livestock crossings and collisions, and he did not identify anyone else whose act or omission caused him to lose control of the vehicle. He did not meet his evidentiary burden so as to escape liability.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a Final Order holding Respondent responsible for clean-up costs in the amount of $3,333.95 arising out of the

spill in which he was involved on June 16, 1997.

DONE AND ENTERED this 7th day of April, 1998, in Tallahassee, Leon County, Florida.

_ ARNOLD H. POLLOCK

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) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1998.

COPIES FURNISHED:

Kisha R. Pruitt, Esquire Thomas M. Beason, Esquire Department of Environmental

Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Paul S. Reed, Esquire Leonard A. McCue and

Associates, P.A.

524 Ninth Street West Bradenton, Florida 34205-7737

Virginia B. Wetherell, Secretary Department of Environmental

Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel Department of Environmental

Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk Department of Environmental

Protection

3900 Commonwealth Boulevard

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: 97-005686

Orders for Case No: 97-005686