STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORCHARD VIEW DEVELOPMENT, )

LIMITED, )

)

Petitioner, )

)

vs. ) Case No. 97-5894

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on April 24, 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: William T. Lamson, President

Orchard View Development, Limited

301 Oriole Parkway

Toronto, Ontario, Canada M5 P2H6

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 97-02-0234 may be recovered from Petitioner pursuant to Chapters 376 and 403, Florida Statutes.

PRELIMINARY STATEMENT

By letter dated October 15, 1997, the Department requested that Petitioner reimburse the Department $6,525.13 for costs incurred by the Department in connection with its response to Incident Number 97-02-0234. Petitioner timely requested (in writing) an administrative hearing on the matter. In its written request, Petitioner stated, among other things, the following:

1. Petitioner denies that it is responsible for the discharge or the existence of the abandoned drums which are the subject of the action.

   
   

2. Petitioner owns the property identified as the place of occurrence of the incident. Petitioner did not place the subject drums on the property and was unaware of the existence of the subject drums.

   
   

3. The amount charged for disposal is excessive and unreasonable.

The case was referred to the Division of Administrative Hearings (Division) on December 15, 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 April 24, 1998.

At the hearing, five witnesses testified: Catherine Porthouse; Jeff Tobergte; Bill Keenan; William T. Lamson;

and William R. Lamson. In addition to the testimony of these five witnesses, seven exhibits (Petitioners' Exhibits

1 through 3 and Respondent's 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 May 15, 1998. Petitioner and the Department filed proposed recommended orders on May 18, 1998, and June 1, 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. Orchard View Development, Limited (Orchard View) is an Ontario, Canada corporation.

3. Its president is William T. Lamsom.

   
   

4. Orchard View is now, and has been since approximately two to six months prior to the incident which is the subject of this proceeding, the owner of a triangular, three-quarter acre parcel of undeveloped land

   (Orchard View's Parcel or the Parcel) located on the fringe of a Boca Raton, Florida residential neighborhood. There are children in the neighborhood who pass by the Parcel on their way to and from school.

5. City streets border Orchard View's Parcel on all sides. Across one of these streets is a creek.

6. Orchard View owns an additional 78 acres of undeveloped land (Orchard View's Acreage or the Acreage) to the north of its Parcel. Only a street separates the Acreage from the Parcel.

7. Orchard View first acquired the Acreage in approximately 1975 and sold it about 14 or 15 years later.

8. During this 14 or 15-year period, the Acreage was used by others, without Orchard View's approval or authorization, as a dumping ground. Numerous items, including boats, automobiles, tires, baby carriages, mattresses and landscaping material, were left abandoned on the property. Steps taken by Orchard View (which was well aware of the problem) to deter such dumping, including posting "no trespassing" signs on the property and erecting a 10-foot dirt barrier on one side of the property, were ineffective. Orchard View also complained to the police about the problem, but the making of these complaints did not result in an amelioration of the situation.

9. Orchard View reacquired the Acreage at approximately the same time it acquired the Parcel. Since Orchard View's reacquisition of the Acreage, unauthorized persons have driven their all-terrain vehicles on the property without the approval or authorization of Orchard View, notwithstanding the "no trespassing" signs on the property.

10. Although aware of the dumping problems in the area, Orchard View has not, at any time after its acquisition of the Parcel, posted "no trespassing" signs on the Parcel or erected a fence or other barrier around the Parcel, nor has it taken any other measure designed to discourage or prevent dumping on the Parcel.

11. On June 9, 1997, at 11:10 a.m., the Department was notified by Lieutenant John Johnson of the Boca Raton Fire Department that four drums, which were labelled “poison and toxic,” had been discovered on the Parcel. The drums did not belong to Orchard View. They had been dumped on the Parcel by some person or persons not associated with Orchard View without Orchard View's knowledge, approval or authorization.

12. Catherine Porthouse, an Environmental Specialist II with the Department, promptly responded to the scene (where she met Lieutenant Johnson) and served as the Department's on-scene coordinator.

13. Because the drums were labelled “poison and toxic” and their contents were unknown, Lieutenant Johnson would not allow anyone, including Porthouse, to approach the drums without "Level B" protective clothing and equipment. Porthouse therefore initially viewed the drums from a distance using binoculars.

14. She noted that three of the drums were leaking and that there was stained soil in the area of the drums. She also saw other solid waste materials nearby.

15. Porthouse learned that Orchard View was the owner of the property on which the drums were located.

16. At 12:49 p.m. on June 9, 1997, Porthouse telephoned Lamson and advised him that the drums were on the Parcel and that they needed to be removed by an "emergency response contractor."

17. When informed about the presence of the drums on the Parcel, Lamson was not surprised. He realized (as he testified at hearing) that the area was "a good dumping ground."

18. Lamson told Porthouse that he would ask his son, a general contractor who lived and worked near the Parcel, to remove the drums. Porthouse, however, explained to Lamson that the removal of the drums needed to be done by someone qualified, under state and federal law, to handle and transport hazardous substances. Lamson thereupon asked

    Porthouse to provide him with a list of "emergency response contractors" qualified to remove the drums.

19. Porthouse gave Lamson her office and cellular phone numbers and asked him to call her back within no more than three hours to update her on his efforts to hire an "emergency response contractor" to remove the drums.

20. Following Porthouse's telephone conversation with Lamson, the Department faxed to Lamson the list of qualified contractors Lamson had requested during the telephone conversation.

21. After speaking with Porthouse, Lamson attempted to telephone his son. Lamson's son was not in, so Lamson left a message on his son's answering machine telling his son about his telephone conversation with Porthouse concerning the abandoned drums on the Parcel. In his message, Lamson asked that his son look into the matter.

22. Neither Lamson, nor his son, made any arrangements for a qualified "emergency response contractor" to remove the drums from the Parcel; nor did either of them contact Porthouse and advise her that such arrangements had been made or would soon be made.

23. Accordingly, at approximately 4:00 p.m. on June 9, 1997, after having waited over three hours for Lamson to provide her with such information, Porthouse hired Magnum Environmental Services (Magnum), a qualified "emergency

    response contractor" with whom the Department had a contract, to properly dispose of the four abandoned drums (and their contents), as well as the stained soil, on the Parcel.

24. Magnum personnel (with "Level B" protective clothing and equipment) responded to the scene shortly thereafter. By approximately 6:30 or 7:00 p.m. that day (June 9, 1997), Magnum personnel had overpacked, removed from the Parcel and taken to an off-site hazardous waste storage facility the four abandoned drums (and their contents), as well as a fifth drum which contained the stained soil from the site (which Magnum had excavated).

25. Before it had overpacked the drums and removed them from the Parcel, Magnum had examined and sampled the contents of each drum.

26. The samples that Magnum had collected from the drums were sent to the laboratory for analysis.

27. The analysis revealed the following: drum number

    11 contained oil, barium, lead and toluene and had a flashpoint of less than 100 degrees Fahrenheit; drum number

    2 contained oil mixed with water, as well as barium, lead and chromium, and had of flashpoint of between 101 and 139 degrees Fahrenheit; drum number 3 contained oil mixed with water, as well as barium and lead, and had of flashpoint of between 101 and 139 degrees Fahrenheit; drum number 4

    contained oil mixed with water, as well as barium, lead and chromium, and had of flashpoint of over 200 degrees Fahrenheit; drum number 5 contained the soil that had been contaminated by spillage from drum numbers 2, 3 and 4 and had of flashpoint of between 101 and 139 degrees Fahrenheit.

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

29. The Department paid Magnum $6,135.00 from the Water Quality Assurance Trust Fund for the services Magnum performed. In requesting Magnum to perform these services and in paying Magnum $6,135.00 for having done so, the Department acted reasonably and prudently. The amount it paid Magnum was not excessive.2

30. The Department reasonably incurred other expenses (also paid from the Water Quality Assurance Trust Fund) totaling $390.13 in connection with its response to the report it had received concerning the abandonment of the four drums on the Parcel.

31. The total amount the Department paid from the Water Quality Assurance Trust Fund to have these abandoned drums properly removed from the Parcel and disposed of was

    $6,525.13.

    
    

32. The Department is requesting that Orchard View reimburse the Department for these costs.

    CONCLUSIONS OF LAW

    
    

33. The Department is relying on Chapters 376 and 403, Florida Statutes, in seeking such reimbursement from Orchard View.

34. 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.

35. 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."

36. 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.

37. 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. . . .

38. 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. . . .

39. 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.

40. 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

    1. 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 barium(EPA Hazardous Waste Number D005), chromium (EPA Hazardous Waste Number D007), lead (EPA Hazardous Waste Number D008) and toluene (EPA Hazardous Waste Number D030).

41. 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.

42. "[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.

43. "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.

44. 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.

    
    

45. 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)." 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).

46. In the instant case, the Department met its burden under the provisions of "Florida's mini-CERCLA Acts" of establishing Orchard View's liability for the response costs that the Department is seeking to recover.

47. The abandonment on a vacant lot, located on the fringe of a residential neighborhood, of four drums (three of which were leaking) containing "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.

48. Orchard View owned the vacant lot on which these abandoned drums (filled with "pollutants" and "hazardous substances") were found. It therefore was the owner of a "hazardous waste facility," as that term is defined in Section 403.703(22), Florida Statutes, at which "hazardous substances" were disposed of. Accordingly, absent a valid defense, it is liable, pursuant to Chapters 376 and 403, Florida Statutes, for the full amount of the costs reasonably incurred by the Department in responding to the report it received regarding the abandonment of these drums.

49. Orchard View claims that it is not liable under either Chapter 376 or 403, Florida Statutes, for the Department's response costs because the drums were illegally dumped on the Parcel without Orchard View's approval or authorization by a "third party" trespasser.

50. Both Section 376.308, Florida Statutes, and Section 403.727, Florida Statutes, provide for a "third party" defense. Orchard View, however, has failed to meet its burden of showing that it 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. Although aware of the illegal dumping activities in the area, Orchard Park took no action to legally enclose the Parcel pursuant to Chapter 588, Florida Statutes,4 or to otherwise try to

    deter or prevent would-be trespassers from using the Parcel as a dumping ground (an occurrence which was reasonably foreseeable).

51. The Department incurred $6,525.13 in response costs (which were paid from the Water Quality Assurance Trust Fund). These costs were reasonably incurred and were not excessive.

52. The Department is therefore entitled, pursuant to Sections 376 and 403, Florida Statutes, to recover the full amount of these costs from Orchard View.

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 Orchard View, pursuant to Chapters 376 and 403, Florida Statutes, the $6,525.13 in costs it reasonably incurred in connection with its response to Incident Number 97-02-0234.

DONE AND ENTERED this 15th 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 15th day of June, 1998.

ENDNOTES

1 At the time of sampling, each of the five drums had been assigned a number for purposes of identification.

2 The written "price quotes" from other contractors that Orchard View offered into evidence do not demonstrate otherwise. Not only do these "price quotes" constitute hearsay evidence insufficient, pursuant to Section 120.57(1)(c), Florida Statutes, to support a finding of fact, in addition, it does not appear that these "price quotes" are for services identical to those that Magnum performed.

3 This is so even with respect to the abandoned drum that was 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 Chapter 588, Florida Statutes, provides, in pertinent part, as follows:

588.01 Requirements of general fence.–

All fences or enclosures of land shall be substantially constructed, whether with rails, logs, post and railing, iron, steel, or other material, and not less than 5 feet high; to the extent of

2 feet from the ground there shall not be a space between the material used in the construction of any fence greater than 4 inches; provided, that when any fence or enclosure shall be made with a trench or a ditch, the same shall be 4 feet wide; and in that case the fence shall be 5 feet high from the bottom of the ditch to the top of the fence.

588.011 Legal fence; requirements.–

1. Any fence or enclosure at least 3 feet in height made of barbed or other wire consisting of not less than three strands of wire stretched securely on posts, trees, or other supports, standing not more than 20 feet apart, shall be considered as a legal fence.

   
   

2. Any fence or enclosure made of any other material which meets substantially the minimum requirements or specifications mentioned in subsection

(1) shall be considered as a legal fence. . . .

588.09 Legally enclosed land; fenced and posted.–

1. Land shall be legally enclosed land, or posted land, when enclosed by a legal fence, and when there shall be

   placed along the boundary of said land in the manner herein provided posted notices to the public; provided that it shall not be necessary to erect any fence along any portion of the boundaries of the land formed by any ocean, gulf, bay, river, creek, or lake.

   
   

2. The fences, enclosures, and the posted notices, when erected, placed, and maintained as herein required shall be notice to the public that the land enclosed thereby is private property upon which unauthorized entry for any purpose is prohibited and shall constitute a warning to unauthorized persons to remain off of or to depart from said land.

1. Posted notices; requirement.–

   
   

   Posted notices to the public as required by s. 588.09 shall be signs upon which there shall appear prominently, in letters of not less than 2 inches in height, the word "posted," and in addition thereto there shall appear the name of the owner, lessee, or occupant of said land. Said posted notices shall be placed along, on, or close within the boundaries of any legally enclosed or posted land in a manner and in such position as to be clearly noticeable from the outside of the enclosure, and said notices shall be placed not farther than 500 feet apart along, and at each corner, of the boundaries of the land, and also at each gateway or opening of the fence enclosing the same. Said notices shall be placed along all boundaries formed by the waters mentioned herein on trees or posts close to the banks of said waters in position so as they may be noticeable to persons approaching the boundary formed by said waters.

2. Owner to maintain fences and notices.–

The owner of legally enclosed land shall maintain in reasonable good condition the fence or enclosure around such land and shall maintain in legible condition any and all posted notices as required by ss. 588.09, 588.10, but a substantial or reasonably effective compliance with the provisions of ss. 588.011, 588.09, 588.10, disregarding minor or inconsequential differences in the size, shape, or condition thereof, shall be sufficient for the purpose of evidencing the legal enclosure of said land. . . .

COPIES FURNISHED:

William T. Lamson, President Orchard View Development, Limited

301 Oriole Parkway

Toronto, Ontario, Canada M5 P2H6

William T. Lamson, President Orchard View Development, Limited 2300 Southwest 42nd Street

Ocala, Florida 34474

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 At the time of sampling, each of the five drums had been assigned a number for purposes of identification.

2 The written "price quotes" from other contractors that Orchard View offered into evidence do not demonstrate otherwise. Not only do these "price quotes" constitute hearsay evidence insufficient, pursuant to Section 120.57(1)(c), Florida Statutes, to support a finding of fact, in addition, it does not appear that these "price quotes" are for services identical to those that Magnum performed.

3 This is so even with respect to the abandoned drum that was 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 Chapter 588, Florida Statutes, provides, in pertinent part, as follows:

588.01 Requirements of general fence.–

All fences or enclosures of land shall be substantially constructed, whether with rails, logs, post and railing, iron, steel, or other material, and not less than 5 feet high; to the extent of

2 feet from the ground there shall not be a space between the material used in the construction of any fence greater

than 4 inches; provided, that when any fence or enclosure shall be made with a trench or a ditch, the same shall be 4 feet wide; and in that case the fence shall be 5 feet high from the bottom of the ditch to the top of the fence.

588.011 Legal fence; requirements.–

1. Any fence or enclosure at least 3 feet in height made of barbed or other wire consisting of not less than three strands of wire stretched securely on posts, trees, or other supports, standing not more than 20 feet apart, shall be considered as a legal fence.

   
   

2. Any fence or enclosure made of any other material which meets substantially the minimum requirements or specifications mentioned in subsection

(1) shall be considered as a legal fence. . . .

588.09 Legally enclosed land; fenced and posted.–

1. Land shall be legally enclosed land, or posted land, when enclosed by a legal fence, and when there shall be placed along the boundary of said land in the manner herein provided posted notices to the public; provided that it shall not be necessary to erect any fence along any portion of the boundaries of the land formed by any ocean, gulf, bay, river, creek, or lake.

   
   

2. The fences, enclosures, and the posted notices, when erected, placed, and maintained as herein required shall be notice to the public that the land enclosed thereby is private property upon which unauthorized entry for any purpose is prohibited and shall constitute a warning to unauthorized persons to remain off of or to depart from said land.

1. Posted notices; requirement.–

   
   

   Posted notices to the public as required by s. 588.09 shall be signs upon which there shall appear prominently, in letters of not less than 2 inches in height, the word "posted," and in addition thereto there shall appear the name of the owner, lessee, or occupant of said land. Said posted notices shall be placed along, on, or close within the boundaries of any legally enclosed or posted land in a manner and in such position as to be clearly noticeable from the outside of the enclosure, and said notices shall be placed not farther than 500 feet apart along, and at each corner, of the boundaries of the land, and also at each gateway or opening of the fence enclosing the same. Said notices shall be placed along all boundaries formed by the waters mentioned herein on trees or posts close to the banks of said waters in position so as they may be noticeable to persons approaching the boundary formed by said waters.

2. Owner to maintain fences and notices.–

The owner of legally enclosed land shall maintain in reasonable good condition the fence or enclosure around such land and shall maintain in legible condition any and all posted notices as required by ss. 588.09, 588.10, but a substantial or reasonably effective compliance with the provisions of ss. 588.011, 588.09, 588.10, disregarding minor or inconsequential differences in the size, shape, or condition thereof, shall be sufficient for the purpose of evidencing the legal enclosure of said land. . . .

Docket for Case No: 97-005894

Orders for Case No: 97-005894