STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SPILL RESPONSE, INC., and )

GEORGE GORDON, )

)

Petitioners, )

)

vs. ) Case No. 96-5051

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on April 6, 1998, by video teleconference at sites in Fort Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioners: George Gordon, pro se

6236 Windlass Circle

Boynton Beach, Florida 33457

For Respondent: David Thulman, Esquire

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-0248 may be recovered from Petitioners pursuant to Chapters

376 and 403, Florida Statutes.

PRELIMINARY STATEMENT

By letter dated March 5, 1996, the Department requested that Petitioners reimburse the Department for costs incurred by the Department in connection with its response to Incident Number 95- SE-0248. Petitioners timely requested (in writing) an administrative hearing on the matter. In their written request, Petitioners denied that they "had anything to do" with Incident Number 95-SE-0248. They further claimed that the costs incurred by the Department "were unreasonable and excessive." The case was referred to the Division of Administrative Hearings (Division) on October 29, 1996, for the assignment of an Administrative Law Judge to conduct the administrative hearing Petitioners had requested.

The hearing was initially scheduled to commence on February 25, 1997, but was continued on more than one occasion. As noted above, the hearing was finally held on April 6, 1998.

At the final hearing, four witnesses testified: Anne Meador; Petitioner George Gordon; Douglas White; and Bill Keenan. In addition to testimony of these four witnesses, ten exhibits (Petitioners' Exhibit 1 and Respondent's Exhibits 1, 2, and 4 through 10) were offered and received into evidence. Among these

exhibits were the transcripts of the depositions of Fred Rice, William "Skip" Walton, and Charles Green.

At the conclusion of the evidentiary portion of the hearing, the undersigned announced, on the record, that if the parties desired to file a proposed recommended order, they had to do so no later than 21 days from the date that the transcript of the final hearing was filed with the Division. The transcript was filed with the Division on April 27, 1998. On May 18, 1998, the Department filed an unopposed motion requesting an extension of the deadline for filing proposed recommended orders. By order issued May 19, 1998, the motion was granted and the deadline for filing proposed recommended orders was extended to May 26, 1998. Petitioners and the Department filed proposed recommended orders on May 18, 1998, and May 26, 1998, respectively. These proposed recommended orders have been carefully considered by the undersigned.

FINDINGS OF FACT

1. The Department is a state regulatory agency charged with the responsibility of administering and enforcing the provisions of Chapters 376 and 403, Florida Statutes.

2. Spill Response, Inc. (Spill Response) is a corporation which was formed in approximately 1986 or 1987, and is presently inactive and without any assets.

3. At all times material to the instant case, George Gordon has been the sole owner, president and director of Spill

   Response, and, as such, has directed the operations of the corporation.

4. Spill Response was previously in the oil spill response business, as its name suggests. At such time, it had an office in Port Everglades and stored its equipment on fenced and gated property located at 3211 Southwest 50th Avenue, Davie, Florida, on which approximately a dozen large aboveground petroleum storage tanks (surrounded by concrete containment areas) also were situated.

5. At all times material to the instant case, the property located at 3211 Southwest 50th Avenue, Davie, Florida (FPR site) has been owned by Florida Petroleum Reprocessors, Inc. (FPR), an inactive corporation that previously was in the waste oil recovery business. The FPR site, which is presently FPR's only asset, is the subject of a pending foreclosure action initiated by Charles Green, who, at all times material to the instant case, has held a first mortgage on the property.

6. At all times material to the instant case, George Gordon has been the president and director of FPR, and, as such, has directed the operations of the corporation.

7. In the latter part of 1994, the storage tanks on the FPR site were no longer in commercial use. At that time, Gordon, on behalf of FPR, hired Fred Rice to clean and maintain the site in preparation for its closure. Rice was instructed to remove the

   petroleum residue and sludge from the tanks and from the containment areas.

8. Rice engaged in these petroleum and sludge-removal activities on a part-time basis until the spring of 1995, when he stopped working on the project after not having received timely payment for work he had performed.

9. Rice placed the petroleum residue and sludge that he had removed, as well the rags and other materials that he had used in the removal process, in 55-gallon drums. He filled approximately six or seven such drums.

10. A number of other 55-gallon drums containing petroleum residue and sludge (that some person or persons other than Rice had filled) were already on the FPR site.

11. Rice put the six or seven drums that he had filled on a truck that was parked on the site and had “Spill Response, Inc.” and “Florida Petroleum Reprocessors, Inc.” markings on its sides.

12. The truck was owned by Spill Response and had been on the site for some time. It had no battery and was inoperable.

13. Rice told Gordon that he had put the drums he had filled with petroleum residue and sludge on the Spill Response truck.

14. The next time Gordon went the FPR site, in late May of 1995, he discovered that the locks on the gates had been changed and that there were vehicles and equipment on the property that did not belong there.

15. Gordon telephoned the Davie Police Department to complain about the unauthorized use of the FPR site.

16. A police officer was dispatched to the site to investigate.

17. When the officer arrived on the scene, he encountered Gordon outside one of the gates. Although the gate was locked, Gordon and the officer gained access to the site by squeezing through an opening in the gate. Upon entering the site, they looked around.

18. Based upon what they saw, they correctly "figured out" that Certified Crane and Rigging, Inc., d/b/a Certified Equipment Management Company (Certified) was storing its crane equipment and trucks on the site.

19. At all times material to the instant case, Certified has been owned and operated by William "Skip" Walton.

20. Walton is an acquaintance of the aforementioned Charles Green, the holder of the first mortgage on the FPR site.

21. Certified's telephone number was painted on the equipment and vehicles it was storing on the FPR site. The police officer called the number and spoke with Walton. Following his telephone conversation with Walton, the officer informed Gordon that Walton had indicated, during the conversation, that he was leasing the FPR site from Green.

22. Gordon advised the officer that he did not want to press criminal charges (for trespassing) against either Certified or Walton.

23. Gordon subsequently telephoned Green. Green told Gordon that it was true that he had leased the FPR site to Walton. Green explained to Gordon that he "needed to earn some money from the property." (It had been some time since Green had received any mortgage payments from FPR or Gordon.)

24. Gordon contacted his attorney to discuss with her what legal action, if any, he could take to regain possession of the FPR site and be compensated for the unauthorized use of the property. Gordon's attorney advised him that he "would have recourse if [he] wished to pursu[e] the matter in court," but that it might not be cost-effective for him to do so.

25. Gordon took no action, "in court" or otherwise, to regain possession and control of the FPR site; nor did he take any action to retake possession and control of the Spill Response truck or the filled drums that were in the truck and elsewhere on the site. Furthermore, he made no effort to make sure that the drums and their contents were stored and disposed of properly, believing that the proper storage and disposal of these items were now the responsibility of the new occupant of the site. He did not return to the FPR site for over a year.

26. On or about June 6, 1995, the Department was notified (after its regular business hours) that the Spill Response truck

    had been discovered abandoned on the side of the road a few blocks from the FPR site.

27. The following day,1 Ann Meador, an Environmental Specialist III with the Department, went to the location where the truck had been abandoned and served as the Department's on- scene coordinator.

28. The truck was in poor condition and still inoperable. It had been brought (not driven) to the location by someone other than Gordon.

29. The truck contained 37 sealed 55-gallon drums, which were in poor condition (but not yet leaking) and had oil residue on the outside.

30. It could not be reliably determined exactly what was in the drums without removing them from the truck and examining and analyzing their contents.

31. Meador made arrangements for OHM Remediation Services Corporation (OHM), with whom the Department had a contract to perform such services on an emergency basis, to assist in the removal of the drums from the truck.

32. OHM personnel (with "Level B" protective clothing and equipment) responded to the scene and removed all 37 drums from the Spill Response truck.

33. After the drums were unsealed, their contents were examined and sampled to the extent possible2 (as were the contents of three additional drums which were filled with the

    "Level B" protective clothing and equipment that OHM personnel had used during the cleanup operation and then discarded). Each of the drums was assigned a number for identification purposes. To save time and money, samples from some of the drums were composited. The drums were then overpacked and taken to the Department’s hazardous waste storage facility in West Palm Beach, Florida.

34. The Department paid OHM $7,046.93 from the Water Quality Assurance Trust Fund for the services OHM performed. In requesting OHM to perform these services and in paying OHM

    $7,046.93 for having done so, the Department acted reasonably and prudently. The amount it paid OHM was not excessive.

35. The Department hired Laidlaw Environmental Services (Laidlaw) to analyze the samples that OHM had collected and to then properly dispose of the drums and their contents.

36. Laidlaw's analysis revealed the following: drums numbered 1, 2, 3, 4, 5, 9, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 34, 35, 36, 37, and 38 contained oily sludges, oil, oil mixed with water, or oily residues; drum numbered 6 contained benzene and had a flash point between 73 and 140 degrees Fahrenheit; drum numbered 29 contained benzene and lead and had a flash point of less than 73 degrees Fahrenheit; drums numbered 10 and 11 contained benzene and lead; drums numbered 7, 8, 31, 32, 33 and 39 contained benzene, lead, and cadmium.

37. Laidlaw properly disposed of the drums based upon the results of its analysis.

38. The Department paid Laidlaw $21,163.90 from the Water Quality Assurance Trust Fund for the services it performed. In requesting Laidlaw to perform these services and in paying Laidlaw $21,163.90 for having done so, the Department acted reasonably and prudently. The amount it paid Laidlaw was not excessive.

39. The Department reasonably incurred other expenses (also paid from the Water Quality Assurance Trust Fund) totaling

    $129.82 in connection with its response to the report it had received concerning the abandonment of the Spill Response truck.

40. The total amount the Department paid from the Water Quality Assurance Trust Fund to have the drums on the truck properly removed and disposed of was $28,340.65.

41. It was not until Gordon received a letter from the Department advising him of the costs the Department had incurred and requesting that Spill Response and he reimburse the Department for these costs that Gordon became aware of the fact that the truck and the drums had been moved from the FPR site.

    CONCLUSIONS OF LAW

    
    

42. The Department is relying on Sections 376.307(5), 376.307(7), 376.308(1), and 403.727(4)(b), Florida Statutes, in seeking such reimbursement from Spill Response and Gordon.

43. 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.

44. The Department is authorized, by Section 376.307(1)(a), Florida Statutes, to use monies from the Water Quality Assurance Trust Fund (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."

45. 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.

46. 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. In the case of a discharge of hazardous substances, all persons specified in s. 403.727(4). . . .

          
          

    2. In addition to the defense described in paragraph (1)(c), the 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. . . .

47. 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.

    
    

    (17) "Hazardous substances" means those substances defined as hazardous substances in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, Pub.

    L. No. 96-510, 94 Stat. 2767, as amended by the Superfund Amendments and Reauthorization Act of 1986.

    
    

    (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. . . .

    
    

48. 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.

49. Included in the United States Comprehensive Environmental Response, Compensation and Liability Act's definition of "hazardous substances," which the Florida Legislature has adopted and incorporated by reference in Section 376.301(17), Florida Statutes, is "any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42 U.S.C. Section 6921]." The United States Environmental Protection Agency has been delegated the authority, pursuant to 42 U.S.C. Section 6921, to promulgate regulations identifying these characteristics of hazardous waste and listing particular hazardous wastes. It has done so in 40 CFR Part 261. Of particular significance to the

    instant case are 40 CFR Sections 261.21 and 261.24. 40 CFR Section 261.21, provides, in pertinent part, as follows:

    1. A solid waste exhibits the characteristic of ignitability if a representative sample of the waste has any of the following properties:

       
       

       1. It is a liquid, other than an aqueous solution containing less than 24 percent alcohol by volume and has flash point less than 60 degrees C (140 degrees F) . . . .

          
          

    2. A solid waste that exhibits the characteristic of ignitability has the EPA Hazardous Waste Number of D001.

       
       

       Among the hazardous wastes listed in 40 CFR Section 261.24 are benzene (EPA Hazardous Waste Number D018), cadmium (EPA Hazardous Waste Number D006), and lead (EPA Hazardous Waste Number D008).

50. Section 403.727(4), Florida Statutes, provides the Department with additional authority to recover response costs in the case of a "release or threatened release of a hazardous substance." It provides as follows:

    In addition to any other liability under this chapter, and subject only to the defenses set forth in subsections (5), (6), and (7):

    
    

    1. The owner and operator of a facility;

       
       

    2. Any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substance was disposed of;

       
       

    3. Any person who, by contract, agreement, or otherwise, arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person or by any other party or entity at any facility owned or operated by another

       party or entity and containing such hazardous substances; and

       
       

    4. Any person who accepts or has accepted any hazardous substances for transport to disposal or treatment facilities or sites selected by such person,

       
       

       is liable for all costs of removal or remedial action incurred by the department under this section and damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from the release or threatened release of a hazardous substance as defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub. L. No. 96-510.

51. "[T]he defenses set forth in subsections (5), (6), and (7)" of Section 403.727, Florida Statutes, are as follows:

    1. The following defenses are available to a person alleged to be in violation of this act, who shall plead and prove that the alleged violation was solely the result of any of the following or 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 this 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.

          
          

       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 by rail, if the defendant establishes by a preponderance of the evidence that:

       
       

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

          
          

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

       
       

    2. A generator or transporter of hazardous wastes who has complied with this act and with the applicable rules adopted under this act and who has contracted for the disposal of hazardous wastes with a licensed hazardous waste disposal or processing facility is relieved from liability for those wastes upon receipt of a certificate of disposal from the disposal or processing facility.

       
       

    3. A generator of hazardous waste who has complied with this act and with the applicable rules under this act and who has contracted for the transportation of hazardous waste to a licensed hazardous waste facility is relieved of liability to the extent that such liability is covered by the insurance or bond of the transporter obtained pursuant to this act.

52. "A party liable for a violation of this section [Section 403.727, Florida Statutes] . . . ha[s] a right to contribution from other parties identified in subsection (4) [thereof] as liable for the pollution conditions." Section 403.727(8), Florida Statutes.

53. Section 403.703, Florida Statutes, contains definitions of terms used in Chapter 403, Florida Statutes, including those used in Section 403.727(4), Florida Statutes. The following are among these definitions:

    (4) "Person" means any and all persons, natural or artificial, including any individual, firm, or association; any municipal or private corporation organized or existing under the laws of this state or any other state; any county of this state; and any governmental agency of this state or the Federal Government.

    
    

    (19) "Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or upon any land or water so that such solid waste or hazardous waste or any constituent thereof may enter other lands or be emitted into the air or discharged into any waters, including groundwaters, or otherwise enter the environment.

    
    

    1. "Hazardous waste" means solid waste, or a combination of solid wastes, which, because of its quantity, concentration, or physical, chemical, or infectious characteristics, may cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible or incapacitating reversible illness or may pose a substantial present or potential hazard to human health or the environment when improperly transported, disposed of, stored, treated, or otherwise managed. The term does not include human remains that are disposed of by persons licensed under chapter 470.

       
       

    2. "Hazardous waste facility" means any building, site, structure, or equipment at or by which hazardous waste is disposed of, stored, or treated.

    
    

    (29) "Hazardous substance" means any substance which is defined as a hazardous

    substance in the United States Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 94 Stat. 2767.

    
    

54. The term "release" is not defined in Section 403.703, Florida Statutes. It is defined, however, in the United States Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), after which the provisions of Section 403.727, Florida Statutes, were patterned. See Department of Environmental Protection v. Eastman Chemical Company, 699 So. 2d 1051 (Fla. 3d DCA 1997)(Sections 376.308 and 403.727, Florida Statutes, referred to as "Florida's mini-CERCLA Acts"); Department of Environmental Protection v. Fleet Credit Corporation, 691 So. 2d 512, 514 (Fla. 4th DCA 1997)("Just like CERCLA, its federal counterpart, Florida's environmental resource and recovery management statutes are remedial in nature and intended to clean up abandoned, inactive waste disposal sites in order to protect the public health, safety, and welfare."). According to the definition of the term set forth in CERCLA, "'release' means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)." (emphasis added). This definition should be accorded significant weight in determining what constitutes a "release" for purposes of Section 403.727(4),

    Florida Statutes. See State v. Jackson, 650 So. 2d 24, 27-28 (Fla. 1995).

55. The Department met its burden under the provisions of "Florida's mini-CERCLA Acts" of establishing in the instant case Spill Response's and Gordon's liability for the response costs that the Department is seeking to recover from them.

56. The abandonment on the side of a public roadway of the Spill Response truck (which was in poor condition) containing drums (which were also in poor condition) filled with "pollutants," as that term is defined in Section 376.301(30), Florida Statutes, and "hazardous substances," as defined in Sections 376.301(17) and 403.703(29), Florida Statutes, constituted a "polluting condition," within the meaning of Chapter 376, Florida Statutes, as well as the "disposal"3 and "release or threatened release of a hazardous substance," within the meaning of Chapter 403, Florida Statutes.

57. Spill Response owned the truck at the time of such abandonment. Gordon was the sole owner, president and director of Spill Response, and directed its operations, including those related to the truck. Their decision to relinquish possession of the truck (which they knew or should have known contained drums filled with "pollutants," as that term is defined in Section 376.301(30), Florida Statutes) without making any arrangements for the proper storage or disposal of these "pollutants" was a cause (albeit not the only cause4) of the "polluting condition"

    that occurred when the Spill Response truck was subsequently abandoned on the side of the road. Because Spill Response and Gordon are "person[s] who caused a discharge or other polluting condition," absent a valid defense, they are liable, pursuant to Chapter 376, Florida Statutes, for the full amount of the reasonable costs incurred by the Department in responding to the situation they helped to create. Furthermore, inasmuch as the Spill Response truck was a "hazardous waste facility," as that term is defined in Section 403.703(22), Florida Statutes (See Department of Environmental Regulation v. Vigna, 1992 WL 160318 (Fla. Department of Environmental Regulation May 18, 1992)), absent a valid defense, they are also subject to such liability pursuant to Section 403.727(4)(b), Florida Statutes, (Spill Response, as the "facility's" owner, and Gordon, as its operator).

58. Spill Response and Gordon claim that they are not liable under either Chapter 376 or 403, Florida Statutes, for the Department's response costs because the Spill Response truck and its contents were moved from the FPR site without their approval or authorization by a "third party."

59. Both Section 376.308, Florida Statutes, and Section 403.727, Florida Statutes, provide for a "third party" defense. Spill Response and Gordon, however, have failed to meet their burden of showing that they exercised the "due care" and took the "precautions" necessary under Section 376.308, Florida Statutes,

    and Section 403.727, Florida Statutes, to escape liability based on a "third party" defense.

60. The Department incurred $28,340.65 in response costs (which were paid from the Water Quality Assurance Trust Fund). These costs were reasonably incurred and were not excessive.

61. The Department is therefore entitled, pursuant to Sections 376 and 403, Florida Statutes, to recover the full amount of these costs from Spill Response and Gordon, who are jointly and severally liable.

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 it is entitled to recover from Petitioners, pursuant to Chapters 376 and 403, Florida Statutes, the $28,340.65 in costs the Department reasonably incurred in connection with its response to Incident Number 95-SE-0248.

DONE AND ENTERED this 8th day of June, 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 8th day of June, 1998.

ENDNOTES

1 It is standard procedure for the Department, absent exigent circumstances, to wait until daylight to respond to a reported discharge because of the added danger of working at night.

2 Some drums were empty or had residues which did not allow for sampling.

3 This is so even though the drums were not leaking. See Nurad, Inc. v. William E. Hooper and Sons Company, 966 F.2d 857 (4th Cir. 1992)("Finally, we agree with the district court that the Hooper Co.'s claim that there was no statutory disposal is especially insubstantial. The Company disposed of hazardous substances at the site by depositing them in the USTs and abandoning them upon closing its finishing plant in 1962. The statute [CERCLA] provides that 'disposal' includes the 'placing' of any hazardous waste 'into or on any land' so that such hazardous waste 'may enter the environment,' 42 U.S.C. S 6903(3), and courts have specifically held that depositing hazardous waste into enclosed containers fits this definition."); Westwood Pharmaceuticals, Inc. v. National Gas Distribution Corporation, 737 F. Supp. 1272, 1278 (W.D. N.Y. 1990), aff'd, 964 F.2d 85 (2d Cir.1992)("[A]ssuming arguendo that the structural integrity of the subsurface receptacles placed or otherwise used at the site by Iroquois would not have been breached and, therefore, hazardous substances would not have escaped but for the construction activities of Westwood, the court holds that, contrary to the assertion by National Fuel, depositing hazardous substances into such receptacles nonetheless constituted 'disposal' within the meaning of CERCLA.").

4 It appears that a "person" or "persons" (as that term is defined in Sections 376.301(23) and 403.703(4), Florida Statutes) other than Spill Response and Gordon moved the truck and its contents to the location where it was found abandoned. That there may be someone else responsible for the "polluting condition" resulting from the abandonment of the Spill Response truck, however, does not prevent the Department from attempting to recover the full amount of its response costs from Spill Response and Gordon. Liability pursuant to Chapter 376, Florida Statutes, is "joint and several." Section 376.308(4), Florida Statutes.

COPIES FURNISHED:

George Gordon

6236 Windlass Circle

Boynton Beach, Florida 33457

David Thulman, Esquire 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.

1 It is standard procedure for the Department, absent exigent circumstances, to wait until daylight to respond to a reported discharge because of the added danger of working at night.

2 Some drums were empty or had residues which did not allow for sampling.

3 This is so even though the drums were not leaking. See Nurad, Inc. v. William E. Hooper and Sons Company, 966 F.2d 857 (4th Cir. 1992)("Finally, we agree with the district court that the Hooper Co.'s claim that there was no statutory disposal is especially insubstantial. The Company disposed of hazardous substances at the site by depositing them in the USTs and abandoning them upon closing its finishing plant in 1962. The statute [CERCLA] provides that 'disposal' includes the 'placing' of any hazardous waste 'into or on any land' so that such hazardous waste 'may enter the environment,' 42 U.S.C. S 6903(3), and courts have specifically held that depositing hazardous waste into enclosed containers fits this definition."); Westwood

Pharmaceuticals, Inc. v. National Gas Distribution Corporation, 737 F. Supp. 1272, 1278 (W.D. N.Y. 1990), aff'd, 964 F.2d 85 (2d

Cir.1992)("[A]ssuming arguendo that the structural integrity of the subsurface receptacles placed or otherwise used at the site by Iroquois would not have been breached and, therefore, hazardous substances would not have escaped but for the construction activities of Westwood, the court holds that, contrary to the assertion by National Fuel, depositing hazardous substances into such receptacles nonetheless constituted 'disposal' within the meaning of CERCLA.").

4 "A "person" or "persons" (as that term is defined in Sections 376.301(23) and 403.703(4), Florida Statutes) other than Spill Response and Gordon moved the truck and its contents to the location where it was found abandoned. That there may be someone else responsible for the "polluting condition" resulting from the abandonment of the Spill Response truck, however, does not prevent the Department from attempting to recover the full amount of its response costs from Spill Response and Gordon. Liability pursuant to Chapter 376, Florida Statutes, is "joint and several." Section 376.308(4), Florida Statutes.

Docket for Case No: 96-005051

Orders for Case No: 96-005051