JAMES J. WOOTEN, )
vs. ) Case No. 97-0662
Respondent. )
Pursuant to notice, a formal hearing was held in this case on June 6, 1997, by video conference between Tampa and Tallahassee, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: James J. Wooten, pro se
St. Petersburg, Florida 33705
For Respondent: Kathelyn M. Jacques, Esquire
The issue is whether Petitioner is liable to Respondent for costs it incurred in removing a drum containing gasoline and water that was located on Petitioner’s property.
By letter dated September 13, 1996, Respondent, Department of Environmental Protection (Department or Respondent), informed
Petitioner, James J. Wooten (Petitioner), that it was assessing him costs of $1,873.64. The letter indicated that this amount represented the costs incurred by Respondent for removal of a "55 gallon drum of gasoline" from his property. Petitioner challenged the Department's claim regarding the assessment and timely filed a Petition for Administrative Proceeding. On February 10, 1997, Respondent forwarded the matter to the Division of Administrative Hearings for assignment to an Administrative Law Judge.
At the final hearing, the Department presented the testimony of one witness, Bill Keenan, operations and management consultant, Bureau of Emergency Response, Department of Environmental Protection. Petitioner offered ten exhibits, all of which were admitted into evidence. James J. Wooten testified on his own behalf and presented the testimony of three witnesses: Craig Quirk, Anthony Regan, and Paul Roney. Petitioner offered no exhibits into evidence.
A transcript of the proceeding was filed on June 26, 1997.
The time set for submitting proposed findings of fact and conclusions of law was ten days from the filing of the transcript. Prior to that, Respondent requested an extension of time in which to file a proposed recommended order. In response thereto, an Order was issued extending the time for filing proposed findings of fact and conclusions of law. Respondent filed a proposed recommended order within the extended time period and, subsequently, filed an amended proposed recommended
order. Petitioner filed no proposed recommended order, but filed written arguments.
At all times relevant to this proceeding, Petitioner owned a house (Petitioner's property or site), located at 217 20th Avenue North, St. Petersburg, Florida. The back of Petitioner's property was adjacent to an alley. Next door to Petitioner's property was another house owned by Petitioner.
Between September 1995 and December 1995, Petitioner's property was unoccupied and undergoing extensive renovations. Petitioner hired Craig Quirk as the carpenter for the renovation project. Mr. Quirk worked on the project on a full-time basis during the entire period Petitioner's property was being renovated.
One morning in late September when Mr. Quirk arrived at Petitioner's property to work, he discovered a wrought-iron stand and a 55-gallon drum in the backyard of Petitioner's property. Prior to that day, the drum had not been on Petitioner's property. Because the stand and drum were in the area where
Mr. Quirk usually parked the vehicle, he and a helper dragged the drum and rack to the edge of the yard. The drum had a cap on it and was not leaking.
Later that morning, when Petitioner came to the site, Mr. Quirk reported his discovery of the 55-gallon drum on Petitioner's property.
At the time renovations were being made to Petitioner's property, Petitioner rented a dumpster which was used as a receptacle for construction debris. Mr. Quirk knew that the house owned by Petitioner and next door to Petitioner's property was on the market. Therefore, during the renovation of Petitioner's property, Mr. Quirk always utilized the dumpster in order to keep Petitioner's property clean.
One or two days after learning about and observing the 55-gallon drum on the site, Petitioner telephoned a friend, Anthony Regan, to seek advice about removing the drum from Petitioner's property. At the time of Petitioner's call, Mr. Regan had two-and-a-half years of experience working as a truck driver for a hazardous waste facility. Although Mr. Regan is not a hazardous waste expert, because of his work experience, he is familiar with certain aspects related to hazardous waste and its disposal. Furthermore, Mr. Regan knows individuals within his company who can provide specific information regarding hazardous waste.
At Petitioner's request, Mr. Regan went to the site to examine the 55-gallon drum and to assess what should be done with it. After being shown the drum by Petitioner, Mr. Regan temporarily removed the cap from the drum and inserted a stick in it. Based on his observation and assessment, Mr. Regan determined that the 55-gallon drum contained petroleum and water. When Mr. Regan observed the drum, it was not leaking and did not appear to be an environmental hazard.
While at the site, Mr. Regan informed Petitioner that county amnesty program might provide assistance in removing the 55-gallon drum from Petitioner's property. Also, Mr. Regan told Petitioner that he would get an estimate from someone at the hazardous waste company for which Mr. Regan worked regarding the cost of removing the drum. Mr. Regan indicated that, after he checked on the county amnesty program and the estimate, he would report his findings to Petitioner.
Between eight and ten days after going to Petitioner's property, Mr. Regan shared the results of his inquiries with Petitioner. First, Mr. Regan learned that the county amnesty program would not remove the drum because it did not belong to Petitioner, but had been dumped on Petitioner's property.
Second, Mr. Regan reported to Petitioner that the hazardous waste company for which Regan worked could remove the 55-gallon drum from Petitioner's property for $350.00.
Mr. Regan offered to look into the matter further, but prior to doing so went out-of-town for four or five weeks. Upon Mr. Regan’s return, Petitioner immediately contacted him to determine if additional information had been obtained concerning removal of the drum. While Mr. Regan had obtained no more additional information regarding removal of the drum, he suggested that Petitioner call the Sheriff’s Office. It was then that Petitioner made calls to several local agencies regarding the removal of the drum.
Petitioner first called the police department, which in turn referred him to the county dump. The county dump could not assist Petitioner, but referred him to the Sheriff’s Office. Petitioner then called the Sheriff’s Office and spoke to Bob Aukenbaur, who told Petitioner that it was Petitioner's responsibility to have the drum removed.
Because Petitioner was dissatisfied with
Mr. Aukenbaur’s response, Petitioner called and attempted to speak to the Sheriff. Although unsuccessful in this regard, Petitioner did speak to an executive assistant, who promised to check into the matter. Approximately two days later, the executive assistant telephoned Petitioner and indicated that he was unable to find an amnesty program that would provide assistance to Petitioner. However, the executive assistant provided Petitioner with the telephone number of the Department of Environmental Protection and suggested that Petitioner call that agency for help.
Petitioner then contacted the Department's regional office in Tampa, where he spoke to Jane Donnelly. The focus of Petitioner’s inquiry was whether it was his responsibility to remove the drum that had been “illegally dumped” on his property. After asking Petitioner several questions, Ms. Donnelly promised to get back with him.
Several days after Petitioner contacted Department, Leslie Webster, an employee of the Department's regional office in Tampa and a Department trainee, visited the site to
investigate the matter. When Ms. Webster arrived at the site, Petitioner and Paul Roney, the project design supervisor, were there. Petitioner showed Ms. Webster where the drum was located and explained to her that the drum had been dumped on his property.
After Ms. Webster's on-site investigation, a form entitled "Initial Report of Emergency Response Incident" (Initial Report) was completed and forwarded to the Department's Tallahassee office. Petitioner was not provided with the Initial Report. The form bears the signature of Leslie Webster and is dated November 29, 1995. According to the Initial Report, the date of the incident was two weeks prior and the date the incident was reported to the Bureau of Energy Response was November 27, 1995. These dates do not accurately reflect the date of the incident and the date the incident was first reported.
The Initial Report indicates that the incident was reported by Petitioner; that the “type of incident” is identified as “dumping“; that the incident description is noted as “abandoned drum(s)"; that the responsible party is “unknown”, and that the material in the drum is identified as from one to fifty- five gallons of gasoline and water. Also, the Initial Report has a “narrative” section. Nothing in this section indicates that Ms. Webster or anyone in the Department informed Petitioner that he was responsible for having the drum removed from the site.
In situations such as this, the Department typically explains to the property owner what his responsibilities are with respect to a nonleaking drum. The property owner is then given a specified amount of time in which to remove the drum. The amount of time given to the property owner to remove the drum from his property varies, depending on the particular circumstances. The Department communicates this information to property owners in person, by telephone, or in writing. However, the Department's preferred manner of providing notice to property owners is to “talk face to face with people and let them know the circumstances they’re under.”
When a Department investigator or other staff member visits a site and talks to the property owner about his responsibilities for removing pollutants or hazardous substances, no written notice is provided to the property owner reiterating the substance of the conversation.
When Ms. Webster went to investigate the matter related to the drum on Petitioner’s property, there is no evidence that she told the Petitioner that he was responsible for removing the drum and that he was required to do so within a specified time. Likewise, there is no evidence that Ms. Webster told Petitioner that if he failed to remove the drum, the Department would have it removed and assess Petitioner the cost of such removal.
Several days after Ms. Webster went to the site to investigate the matter, the drum remained on Petitioner’s property. Concerned that the drum had not been removed,
Petitioner again called the Department's regional office in Tampa and spoke to Ms. Donnelly. During this conversation, Petitioner acknowledged that Ms. Webster had been to his property, but he expressed concern that the drum had not yet been removed.
Ms. Donnelly then told Petitioner not to worry about it and stated, “I think we’re going to take care of it.”
On or about November 29, 1995, the Department of Environmental Protection had the drum removed at a cost of
$1,783.
By letter dated August 5, 1996, more than eight months after the drum was removed from Petitioner’s property, the Department billed Petitioner $1,873.64 for costs and expenses incurred in removing the drum from Petitioner's property. This amount included administrative and investigative costs of $90.64 and $1,783 for the removal of the drum.
Pursuant to the letter, Petitioner was given thirty days from the date of the letter in which to remit the amount due. Petitioner refused to pay the $1,873.64, and on the date of the hearing, the amount remained outstanding.
The Department has incurred litigation costs of
$2,090.93.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.
The Department is the administrative agency charged with the responsibility of administering and enforcing the provisions of Chapter 376, Florida Statutes. Pursuant to Section 376.30(3)(a) and (b), Florida Statutes, the Legislature has conferred upon the Department of Environmental Protection the power to
Deal with the environmental and health hazards and threat of danger and damage posed by such storage, transportation, disposal, and related activities;
Require the prompt containment and removal of products occasioned thereby. . . .
Section 376.302, Florida Statutes, provides that it is a violation of Chapter 376, Florida Statutes, to "discharge pollutants or hazardous substances into or upon the surface or ground waters of the states or land."
Section 376.308, Florida Statutes, provides in relevant part the following:
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.
Any person who caused a discharge or other polluting condition or who owned or operated the facility . . . at the time the discharge occurred.
The above quoted provision imposes liability on a person who owns property on which a discharge or pollutant condition occurs.
According to Section 376.301(23), Florida Statutes, the term "pollutant" is
. . . any product defined in s. 377.19(11), pesticides, ammonia, chlorine, and derivatives thereof, excluding liquefied petroleum gas.
Section 376.301(23), Florida Statutes. Gasoline is a product within the meaning of Section 377.19(11), Florida Statutes, and is, therefore, a pollutant.
To establish a prima facie case under Section 376.308(1), Florida Statutes, the Department must show:
that Petitioner is a facility owner, and
that a "discharge" or "polluting condition" has occurred on Petitioner's property.
Section 403.727(4), Florida Statutes, provides in relevant part the following:
(4) In addition to any other liability under this chapter, and subject only to the defenses set forth in Sections (5), (6), and (7).
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;
* * *
is liable for all cost of removal or remedial action incurred by the Department under this Section . . . .
Pursuant to this provision, the owner of a facility upon which a hazardous substance was disposed of is liable for costs incurred by the Department in removal of such hazardous substance.
The Water Quality Assurance Trust Fund (Fund) allows the Department to utilize money from the Fund for the investigation, assessment, cleanup, restoration, maintenance, and monitoring of any site contaminated with hazardous waste, hazardous substances, or pollutants. Section 376.307(2)(b) and
1., Florida Statutes.
The Department utilized $1,873.64 from the Fund to investigate, assess, and remove the 55-gallon drum containing gasoline and water from Petitioner’s property. When such expenditures have been made, the Department is mandated to reimburse the Fund by diligently pursuing the recovery of any sums expended from the Fund from the party responsible. Sections 376.303(1)(j) and 376.307(7), Florida Statutes.
A person who owns property where a pollutant condition or hazardous substance occurs is the responsible party and, thus, is liable to the Department for removal costs incurred by the Department. Sections 376.308(1) and 403.727(4), Florida Statutes.
In the instant case, the Department asserts and it is undisputed that Petitioner is the owner of the property on which the 55-gallon drum containing pollutants was located. Accordingly, the Department met its initial burden by providing by preponderance of the evidence that the Petitioner was the owner of the property on which the drum was located and is, therefore, the responsible party. Sections 376.308(1) and 403.727(4), Florida Statutes.
Notwithstanding the liability imposed by the provision of Sections 376.308 and 403.727(4), Florida Statutes, persons subject thereto may challenge such liability by successfully raising one of the statutorily authorized defenses. The defenses that may be raised by a facility owner, such as Petitioner, are that the occurrence was solely the result of an act of war; an act of government; an act of God; or an act or omission of a third party, other than an employer or agent of the facility owner. Sections 376.308(2) and 403.727(5), Florida Statutes.
In the instant case, Petitioner has alleged that the 55-gallon drum containing a pollutant was dumped on his property
by an unknown person or persons. This fact is not in dispute and is supported by information provided in the Department's Initial Report.
However, to successfully prevail on the third party defense, Petitioner must demonstrate that he (1) exercised due care with respect to the hazardous substances and/or pollutants, in light of all relevant facts and circumstances; and (2) took precautions against any foreseeable acts or omissions of any such third party and against foreseeable consequences from such acts or omissions. Sections 376.308(2)(d) 1. and 2. and 403.727(5)(d)
under the Act Section 376.307(7), Florida Statutes. However, when Petitioner successfully raises a third party defense, costs cannot be recovered from Petitioner. Thus, Petitioner is not liable to the Department for costs incurred by the Department in removing the drum or in litigating this matter.
RECOMMENDED that a Final Order be entered by the Department dismissing the claim against Petitioner, James J. Wooten, and finding that he is not liable to the Department for $3,964.57 in costs.
DONE AND ORDERED this 18th day of September, 1997, in Tallahassee, Leon County, Florida.
James J. Wooten, pro se
CAROLYN S. HOLIFIELD
Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1997.
St. Petersburg, Florida 33705
Kathelyn M. Jacques, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard
F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
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.
