17-002518 Glenda Q. Mahaney vs. Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, November 15, 2017.

Summary: The Department's Order Requiring Access to Property should be withdrawn or the liability provision of the order should be amended because the Department does not have authority to specify the Petitioner's potential tort liability.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLENDA Q. MAHANEY,

Petitioner,

vs. Case No. 17 - 2518

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in t his case was held on July 28, 2017, by

video teleconference at sites in Tallahassee and Orlando,

Florida, before Bram D.E. Canter, Administrative Law Judge of the

Division of Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner: Glenda Q. Mahaney , pro se

Post Office Box 123

Mount Dora, Florida 32756

For Respondent: William W. Gwaltney, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF TH E ISSUE

The issue to be determined in this case is whether the

Notice of Intent to Issue Order Requiring Access to Property

(ÐAccess OrderÑ) issued by the Department of Environmental

Protection (ÐDepartmentÑ) and directed to Glenda Mahaney, as the

proper ty owner, is a valid exercise of the DepartmentÓs

authority.

PRELIMINARY STATEMENT

On March 10, 2017, Jeff Prather, Director of the

DepartmentÓs Central District Office in Orlando, issued the

Access Order, which would require Petitioner to provide the

Dep artment access to her property located at 15751 Old US Highway

441, in Tavares, Florida, for the purpose of installing temporary

groundwater monitoring wells and to collect groundwater samples

from the temporary wells and from PetitionerÓs potable water

we ll. On or about March 29, 2017, Petitioner filed a petition

for hearing to challenge the DepartmentÓs action.

At the final hearing, Petitioner testified on her own

behalf. She offered no exhibits into evidence. The Department

presented the testimony of Department employees Tracy Jewsbury

and David Phillips. RespondentÓs Exhibit 1 was admitted into

evidence.

Due to disruptions caused by Hurricane Irma, the one - volume

Transcript of the final hearing was not filed with DOAH until

October 27, 2017. Neith er Petitioner nor the Department filed a

proposed recommended order.

FINDINGS OF FACT

1. Petitioner Glenda Mahaney is a natural person and the

owner of the property identified in the Access Order.

2. The Department is the state agency which has been

granted powers and assigned duties under chapters 376 and 403,

Florida Statutes, for the prot ection and restoration of air and

water quality and to adopt rules and issue orders in furtherance

of these powers and duties.

Background

3. The groundwater bene ath a parcel of land adjacent to

PetitionerÓs property was contaminated with petroleum when the

land was used in the past for auto salvage operations.

4. Initial groundwater sampling near the border of

PetitionerÓs property showed groundwater contaminati on by

gasoline constituents which exceeded Groundwater Cleanup Target

Levels (ÐGCTLsÑ). In other words, the contamination was at

levels that required cleanup. However, later sampling showed the

concentration of contaminants had decreased below GCTLs, pro bably

as a result of natural attenuation.

5. The existing data suggests that any groundwater

contamination beneath PetitionerÓs property is probably now at a

level that would not require cleanup. However, the Department

issued the Access Order because th e Department is not certain

about the contamination beneath PetitionerÓs property and because

Petitioner has continually requested further investigation.

6. Petitioner believes contamination from the auto salvage

site has caused illness in a tenant and e ven contributed to other

personsÓ deaths. However, no expert testimony was received on

this subject and no finding is made about whether contamination

exists on PetitionerÓs property which has caused illness or

death.

7. The DepartmentÓs Site Investigat ion Section wants access

to PetitionerÓs property in order to determine whether

contamination has migrated beneath PetitionerÓs property and, if

it has, the extent and concentration of the contaminants.

8. The Department wants to : (a) install up to five

temporary groundwater monitoring wells, (b) collect groundwater

samples from the wells, ( c) collect a groundwater sample from

Petitio nerÓs potable water well, and (d ) remove the monitoring

wells after the sampling.

9. The Access Order includes terms relat ed to advance

notice, scheduling, and related matters.

Liability

10. Although Petitioner believes petroleum contamination is

present and wants it cleaned up, she objects to the provision of

the Access Order related to liability. Paragraph 9(e) of the

Acc ess Order provides:

Ms. Mahaney shall not be liable for any

injury, damage or loss on the property

suffered by the Department, its agents, or

employees which is not caused by the [sic]

negligence or intentional acts.

11. Petitioner insists that she shou ld not be liable under

any circumstances for injuries or damages suffered by

DepartmentÓs agents or employees who come on her property for

these purposes. She demands that the Department come onto her

property Ðat their own risk.Ñ

12. At the final heari ng, the Department stated that it did

not intend to impose on Petitioner a level of liability different

than the liability that would already be applicable under Florida

law. The Department offered to amend Paragraph 9(e) of the

Access Order to indicate t hat PetitionerÓs Ðliability, if any,

shall be determined in accordance with Florida law.Ñ

Scope of the Investigation

13. Petitioner objects to the proposed groundwater sampling

because she does not believe it is extensive enough. Petitioner

also believ es the Department should test for soil contamination.

14. The DepartmentÓs expert, David Phillips, testified that

the proposed monitoring well locations were selected based on the

direction of groundwater flow in the area and the wells are along

the likel y path of migration of any contaminated groundwater from

the former auto salvage site.

15. Another Department witness, Tracy Jewsbury, testified

that no soil contamination was found on the auto salvage site, so

the Department has no reason to expect there would be soil

contamination on PetitionerÓs property that came from the auto

salvage operation.

16. The Department will use the data collected from the

wells to determine if contamination is present and whether future

contamination assessment and/or reme diation activities are

necessary.

CONCLUSIONS OF LAW

Jurisdiction

17. Petitioner contends that the Department lack s

jurisdiction to order her to provide access, citing

section 403.091(3) , Florida Statutes . Section 403.091 is

entitled ÐInspectionsÑ and s ubsection (3) provides that the

Department may make inspections of premises, equipment, and

records, but only after obtaining consent of the owner or

operator or by obtaining an Ðinspection warrantÑ from a county or

circuit court judge. However, section 4 03.091 is not applicable

here because it addresses the inspection of persons and

facilities being regulated by the Department to determine

compliance with regulations. Petitioner is not a person

regulated by the Department. The Access Order is not for th e

purposes of determining whether Petitioner is in compliance with

regulations.

18. The Access Order cites section 403.061(8) and

s ection 376.303(4) , Florida Statutes , as the DepartmentÓs

authority to issue the order. Section 403.061(8) grants the

Depart ment authority to issue orders Ðto effectuate the control

of air and water pollution and enforce the same by all

appropriate administrative and judicial proceedings.Ñ

19. Section 376.303(4) states:

The department may require a property owner

to provide s ite access for activities

associated with contamination assessment or

remedial action. Nothing herein shall be

construed to prohibit an action by the

property owner to compel restoration of his

or her property or to recover damages from

the person respons ible for the polluting

condition requiring assessment or remedial

action activities.

20. Section 376.303(4) imposes no condition that the

Department obtain the property ownerÓs consent or an inspection

warrant from a court as required by section 403.091( 3).

21. It is concluded that the Department has jurisdiction

pursuant to section 376.303(4) to issue an administrative order

to require access to property.

Liability

22. Most statutory statements about liability in

chapters 376 and 403 are directed t o persons who cause

contamination or otherwise fail to comply with regulations; they

are not directed to innocent, unregulated, adjacent property

owners. However, Section 373.09(4) states:

No person who, voluntarily or at the request

of the department or its designee, renders

assistance in containing or removing

pollutants shall be liable for any civil

damages to third parties resulting solely

from acts or omissions of such person in

re ndering such assistance, except for acts or

omissions amounting to gros s negligence or

willful misconduct.

23. Petitioner, by being ordered to provide access,

probably does not qualify as a person who is acting voluntarily

or at the DepartmentÓs request. Furthermore, it is not clear

that providing access qualifies as rende ring assistance in

containing or removing pollutants.

24. Petitioner conceded at the final hearing that she would

be liable for her intentional acts that caused injury or damages.

However, she believes she should not be liable for any form of

negligence , even gross negligence. She argues that her situation

would be analogous to a fireman injured while fighting a fire in

a burning house.

25. Because the Legislature was silent on the issue of

liability in this particular situation, it must be presumed t hat

the Legislature did not intend to alter in any way a property

ownerÓs potential liability in tort, if any, for injuries or

damages to the DepartmentÓs agents or employees.

26. The Department does not have special expertise to know

that Paragraph 9(e) is an accurate statement of PetitionerÓs

potential liability in tort. Making tort liability

determinations is not one of the DepartmentÓs delegated powers or

duties. The Department acted beyond the authority granted to it

by the Legislature when it sough t to establish in the Access

Order the tort liability that Petitioner would be subject to for

any injuries or damages arising from rehabilitation activities on

PetitionerÓs property.

27. However, the DepartmentÓs offer to amend

Paragraph 9(e) to provide t hat PetitionerÓs Ð liability, if any,

shall be determined in accordance with Florida law, Ñ would remedy

this error. If this amendment is made, whatever protection

Petitioner has under Florida law will not be diminished by the

Access Order.

Scope of the Inv estigation

28. The Department demonstrated a reasonable basis for the

scope of the investigation to be conducted pursuant to the Access

Order. Petition er was not competent by education, training, or

experience to refute the DepartmentÓs technical justifi cation for

the proposed activities.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

withdraw the Access Order or, alternatively, that Paragraph 9(e)

of the Ac cess Order be amended to provide that Ms. MahaneyÓs

potential liability, if any, shall be determined in accordance

with Florida law.

DONE AND ENTERED this 15 th day of November , 2017 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of November , 2017 .

COPIES FURNISHED:

William W. Gwaltney, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Glenda Q. Mahaney

Post Office Box 123

Mount Dora, Florida 32756

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Robert A. Williams, General Counsel

Department of Environmental Protection

Legal Department, Suite 1051 - J

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed )

Noah Valenstein, Secretary

Department of Environmental Protection

Douglas Build ing

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed

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 Recomm ended Order should be filed with the agency that

will issue the Final Order in this case.