STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ENVIRONMENTAL REGULATION, | ) ) | |
) | ||
Petitioner, | ) | |
) | ||
vs. | ) CASE NOS. | 88-3077 |
) | 88-5985 | |
GEORGE A. & ANN F. BELLEAU; | ) | |
CROWN LAUNDRY & DRY CLEANERS, | ) | |
INC.; AMERICAN LINEN SUPPLY | ) | |
COMPANY; SKETCHLEY SERVICES, | ) | |
INC., | ) | |
) | ||
Respondents. | ) |
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Pensacola, Florida.
APPEARANCES
For Petitioner: Jack Chisolm, Esquire
Richard Windsor, Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
For Respondent: William D. Preston, Esquire (Sketchley Thomas M. DeRose, Esquire Services, Inc., HOPPING, BOYD, ET AL.
now known as 123 South Calhoun Street Jura Services, Post Office Box 6526
Inc.) Tallahassee, Florida 32301
Thomas P. Healy, Jr., Esquire MAYER, BROWN & PLATT
190 South LaSalle Street Chicago, Illinois 60603
2000
For Respondents: John W. Wilcox, Esquire (George A. & Ann Derek B. Spilman, Esquire
F. Belleau and RUDNICK & WOLFE
Crown Laundry & 101 East Kennedy Boulevard, Suite Dry Cleaners, Inc.) Tampa, Florida 33602
For Respondent: Jeffrey C. Bassett, Esquire (American Linen BARRON, REDDING, ET AL. Supply Company) Post Office Box 2467
Panama City, Florida 32401
STATEMENT OF THE ISSUES
The issues to be resolved in this proceeding concern
generally whether the Respondents named above are liable for the contamination and violations alleged in the Petitioner, Department of Environmental Regulation's (DER) Notice of Violation and Amended Notice of Violation, pursuant to the relevant provisions of Chapter 403, Florida Statutes, and the rules contained in Title 17, Florida Administrative Code, as relevant to this proceeding and treated herein.
PRELIMINARY STATEMENT
This proceeding arose upon a filing of a Notice of Violation (NOV) and Orders for Corrective Action by DER on March 31, 1987. That Notice of Violation was amended (Amended NOV) on October 7, 1988. Those pleadings notified the Respondents, Jura Services, Inc. (formerly Sketchley Services, Inc.)(Jura); American Linen Supply Company (American Linen); Crown Laundry & Dry Cleaners, Inc. (Crown); and George A. and Ann F. Belleau (the Belleaus), of alleged violations of Chapter 403, Florida Statutes, and related rules concerning alleged contamination of ground water underlying the City of Pensacola, Florida. DER thus seeks to establish the Respondents' liability for taking corrective action concerning alleged perchloroethylene (also called tetrachloroethylene)(PCE or PERC) contamination and to establish the Respondents' liability for DER's costs of the related investigation. DER is not seeking liability and damages for natural resources damage in this proceeding but reserves its right to seek that in a later proceeding. The specific details and requirements sought in the proposed Orders of Corrective Action are not themselves at issue in this proceeding. This proceeding concerns the essential issue of whether the contamination has been established, the source of the contamination, and whether all or any of the Respondents are liable therefor.
In essence, DER is alleging that PCE found in the ground water taken from wells in the general vicinity of downtown Pensacola came from a tank (surge tank) located in a laundry and former dry cleaning establishment owned and/or operated by the Respondents at various times in Pensacola (Crown). DER asserts that Crown and the Belleaus are liable for the PCE contamination and the violations alleged in the above pleadings by their status as current owners and operators of the Crown laundry. DER also contends that American Linen and Jura are liable for the PCE contamination and for the alleged violations, as former owners and operators of Crown (or as a successor corporation) at a time when PCE was released to the environment from the subject property.
DER alleges that the Respondents are liable under Section 403.121(2), Florida Statutes, for injury to the waters of the State caused by violations of Chapter 403, Florida Statutes. DER specifically alleges that Section 403.141(1), Florida Statutes, provides for the Respondents' liability for allegedly committing the violations specified in Section 403.161(1), Florida Statutes, concerning liability to the State for any damage caused to State waters and for reasonable costs and expenses in tracing, controlling, and abating the source of pollution and in restoring the waters to their former condition. In order to impose liability under Section 403.141(1), Florida Statutes, DER is attempting to prove a violation of either Section 403.161(1)(a), Florida Statutes, or Section 403.161(1)(b), Florida Statutes, and related rules.
Section 403.161(1)(a), Florida Statutes, proscribes pollution which will harm or injure human health or welfare, animal, plant, or aquatic life or property. Section 403.161(1)(b), Florida Statutes, proscribes the failure to comply with any rule, regulation, order, permit or certificate of DER and that paragraph is implemented, concerning ground water, through former Rule 17-4.245(2), Florida Administrative Code (F.A.C.), now Rule 17-28.700, F.A.C., which provides DER with a cause of action for violation of ground water quality standards. The two ground water criteria at issue are Rule 17-3.402(1), F.A.C., and Rule 17-3.404(1)(a), F.A.C. DER seeks to prove that those water quality standards were violated in order to prove its cause of action under the Rule cited next above and under the above statutory authority.
Jura filed Petitions challenging DER's NOV and Amended NOV. Jura maintains that it never owned the property in question, never owned or operated a laundry or any other
business at that location and, therefore, cannot be held liable for the violations alleged. DER asserts Jura's liability on the basis that it is the corporate successor to Rentex Corporation of Delaware (RCD, Rentex), which is a prior owner of the property from which DER contends that the PCE emanated. DER is contending that both the prior owners and operators, as well as the present owners and operators of the property and Crown, are jointly and severally liable for the alleged contamination by PCE emanating from the surge tank to the ground water in the vicinity of the site. Jura contends that Florida environmental law contains no authority or precedent for holding a successor corporation liable on a theory of successor liability. Jura maintains that when a corporation, such as itself, acquires ownership of another company, such as Rentex, the acquiring company does not acquire liability concerning facilities which the acquired company had already sold to a third party some years earlier. Jura also contends that DER may not apply the relevant statutes and rules retroactively to conduct which occurred prior to the effective date of those statutes and rules. Additionally, Jura maintains that DER did not prove the contamination of ground water or injury to the waters of the State involved by any contamination emanating from the surge tank on the property of Crown.
The other Respondents filed Petitions challenging DER's NOV. American Linen asserts that it is not liable for the contamination alleged because DER may not apply the relevant statutes and rules retroactively to conduct occurring prior to their effective date and that it never handled or disposed of PCE at the laundry facility during the time it owned and operated the facility. It also contends that DER did not carry its burden of establishing that the surge tank caused any contamination of the ground water or injury to waters of the State. Crown and the Belleaus contend that they are not liable because they did not handle or dispose of any PCE at Crown during their ownership and operation of that facility, which commenced on June 3, 1985. They, likewise, contend that DER did not prove that the surge tank caused the contamination of the ground water in question.
A Joint Prehearing Stipulation was entered into by the parties on January 21, 1992 and filed in this proceeding.
DER called five witnesses but presented no expert witnesses. DER's numerous exhibits, identified more particularly in the record of this proceeding which has been transcribed, all were admitted into evidence. Official notice was taken of the Florida and Federal statutes and rules which DER contends are at issue, including Chapter 403, Florida Statutes, and the rules promulgated thereunder. The
Belleaus and Crown called one witness, Charles Ferst, who was accepted as an expert in the field of environmental engineering with emphasis on hydrogeological investigations. All of the exhibits offered by the Belleaus and Crown were admitted into evidence, as reflected in the transcribed record. American Linen called no witnesses but adopted the testimony adduced from witness Ferst. American Linen also proffered the testimony by affidavit of W. R. Crawford, which was admitted into evidence without objection, pursuant to stipulation. Jura called one witness, Dr. James W. Mercer, who was accepted as an expert in the field of hydrogeology, dense non-aqueous phase liquids (DNAPL) behavior and the fate and transport of chemicals in a subsurface environment. All of the exhibits presented by Jura were admitted into evidence, as well. Jura moved to dismiss the proceeding and the Amended NOV as to itself on the basis that Jura is not liable for the acts of Rentex, as a successor in interest, and that the provisions of Chapter 403, Florida Statutes, and the rules promulgated thereunder should not be applied retroactively to Rentex's alleged conduct, which occurred prior to the enactment and effective date of the statutes and rules by which liability is sought to be imposed on Jura. Jura also asserted in the motion that American Linen, as a purchaser of the physical assets of the laundry business, is the legal successor to any liability incurred by Rentex under a "continuity of enterprise" legal theory.
Additionally, Jura moved that official notice not be taken of the Federal Resource Conservation Recovery Act, 42
Subsection 69.01, et. seq. (RCRA), and the regulations promulgated thereunder, and that official notice not be taken of the Federal Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. Subsection 96.01, et. seq. (CERCLA), on the basis that DER has not pled violations of those laws and that testimony be limited to violations occurring after the effective date of the DER statutes or rules at issue. American Linen joins Jura's argument on official notice and on the retroactive application of statutes and rules question. American Linen opposed Jura's argument concerning corporate successor liability based upon continuity of ownership or enterprise. Crown and the Belleaus joined the argument of Jura regarding official notice, and DER opposed those arguments.
After hearing argument on the motions, official notice was taken of the statutes and rules at issue, without prejudice to all Respondents to argue certain limitations on their applicability necessitated by the pleadings and the evidence. Jura's Motion in Limine regarding retroactivity
of statutes and rules and the Motion to Dismiss were denied without prejudice to Jura to support and argue those issues once again in its posthearing submittals after development of the evidence in this proceeding.
Jura also argued by motion that neither DER's original NOV nor the Amended NOV attempted to impose corrective action on Jura but only on the current owner and operator of the facility, the Belleaus and Crown, and that, therefore, it had inadequate notice as of the time of hearing of DER's intent to impose corrective action on Jura. DER contends that the Amended NOV did not seek to impose corrective action solely on the current owners and operators. The Motion to Dismiss and Motion in Limine concerning this argument were denied based upon the NOV and Amended NOV appearing to accord sufficient notice to Jura on this issue without prejudice to Jura to support and argue the issue in posthearing submittals.
Upon conclusion of hearing, the parties ordered the proceeding transcribed and availed themselves of an extended briefing schedule, by stipulation, for the submission of Proposed Recommended Orders. After one agreed-upon extension of the time period, Proposed Recommended Orders were timely filed. The proposed findings of fact contained therein have been addressed in this Recommended Order and are specifically addressed once again in the Appendix attached hereto and incorporated by reference herein.
FINDINGS OF FACT
DER is an agency of the State of Florida charged, under Chapter 403, Florida Statutes, and related rules, with preventing and alleviating environmental contaminations, as pertinent hereto, including such issues involving ground waters of the State of Florida.
The property in question in this proceeding is located at the northwest corner of Blount and Guillemard Streets in Pensacola, Florida. The legal description of that property and the state of the title of the property is as described in the Prehearing Stipulation filed by the parties at page two thereof. The Belleaus are the current owners of the real property at that location. Crown is the owner and operator of a commercial laundry and dry cleaning business situated on that property in the building(s) located thereon. Crown is a corporation authorized to do business in the State of Florida and is a "person" within the meaning of Section 403.031(5), Florida Statutes.
American Linen is a corporation authorized to conduct business in the State of Florida and is also a "person" within the meaning of that Statute. American Linen obtained the property by purchase by corporate warranty deed from Rentex (RCD) on April 23, 1979. It operated a commercial laundry at the property from that date until June 3, 1985, when it sold the laundry business to Crown and the real property upon which it operated to the Belleaus.
In November of 1971, RCD, a Delaware corporation and a 100 percent-owned subsidiary of Rentex Services corporation (RSC), also a Delaware corporation, acquired the property. RCD owned and operated a commercial laundry and dry cleaning business on the property until April 23, 1979, on which date it sold the laundry business and property to American Linen. It actually operated a dry-cleaning service on the property during only 1974 and early 1975.
Sketchley Delaware, Inc. (SDI), a Delaware corporation, purchased RSC, which then became a 100 percent- wholly-owned subsidiary of SDI in 1982. RCD, however, remained a 100 percent-wholly-owned subsidiary of RSC until 1983. In March of 1983, SDI merged with RSC, and the resulting corporation was named "Sketchley Services, Inc." RCD continued as a corporation, 100 percent-wholly-owned as a subsidiary of Sketchley. In October of 1983, RCD merged into Sketchley, and Sketchley survived. Respondent Sketchley has never held title to nor conducted any form of business on the property in question. On March 29, 1991, Sketchley was renamed "Jura Services, Inc." (Jura) and was converted to a close corporation under Delaware law.
This controversy had its origins in May of 1986 when a representative of DER performed a routine sampling of tap water at the DER district office in Pensacola. Those samples were subjected to chemical analysis which revealed the presence of PCE, a widely-used solvent often associated with dry-cleaning operations. That tap water came from the public water supply for the City of Pensacola, supplied by a network of potable water wells. Upon learning of the PCE content in the water supply, DER began an investigation to attempt to locate its source. Analysis of a number of the Escambia County Utilities Authority (ECUA) wells (PW-6, PW- 8, PW-9, and east well) contained quantities of PCE in excess of the maximum contaminant levels for drinking water authorized by DER's rules. Those wells were taken out of service in June of 1986, subjected to carbon filtration which ultimately removed the PCE from the water supply for those wells, and the wells have since been put back in public service.
A ground water investigation was undertaken by DER to determine the source of contamination in the upper portion of the sand and gravel aquifer and in the production zone of the deeper Floridian aquifer which supplies those wells. A total of 29 ground water monitoring wells (MW) were installed and sampled. An analysis of these was prepared (87-04 report).
On February 7, 1987, DER and representatives of the utilities authority and Crown, the operator of the laundry facility, conducted an inspection and clean-out of the surge tank located in the floor of the Crown laundry building. A chemical analysis of three samples of liquid residue in the bottom of the tank revealed the presence of PCE in those sediments in concentrations of 1,952 parts per billion (PPB), 108.5 PPB, and 50 PPB. Additionally, one of the samples revealed trichloroethene at 34 PPB and 1, 2 dichloroethene at 52,800 PPB. Under certain conditions, these last two-named compounds are produced as bi-products of the breakdown of PCE. Based upon this inspection and the investigation of other potential sources, DER took the position that the surge tank at Crown had discharged waste water containing PCE into the adjacent soils and that PCE migrated into ground water produced by the ECUA's public water supply wells, PW-6, PW-8, PW-9, and "east well". Although not stipulating that the samples were representative or to the conclusions to be drawn from the analytical results of testing the samples, the parties stipulated that proper physical and technical procedures and methods were used in the collection, preservation and analysis of all of the samples and the laboratory results were consequently stipulated into evidence.
Jura, American Linen, Crown, and the Belleaus had no actual knowledge that any PCE had been deposited in the surge tank between 1971 and the date in 1979, when American Linen bought the facility.
A commercial laundry has been operated on the subject property since 1971. The laundry was operated by RCD at that time, and in the summer of 1974 and during at least part of 1975, a dry-cleaning operation, in addition to laundry, was conducted by RCD at the site. The dry-cleaning operation involved the use of PCE. This was the only period of time when dry-cleaning operations were conducted on the property until 1985 when Crown conducted a dry-cleaning operation. Crown's operation, however, made no use of PCE, but rather, Crown used "stoddered solvent" as its dry- cleaning fluid. During American Linen's ownership and
operation of the laundry at the site, no dry-cleaning operations, whatever, were conducted. At no time during American Linen's ownership and operation of the laundry at the site nor during the Belleaus ownership, and Crown's operation, of the laundry facility was any PCE used or stored on the property.
Since laundry operations commenced at the site, the waste wash water from the laundry was discharged to the surge tank located beneath the floor of the Crown building. That tank intercepts and stabilizes wash water prior to its discharge to the municipal sanitary sewer system. The surge tank also served as a component of the laundry operation as a thermal recovery system.
Although the surge tank and the commercial laundry and dry-cleaning businesses which have been operated at the site constitutes an "installation" for purposes of Section 403.031(4), Florida Statutes, the tank has never been used for the intentional storage or disposal of any "hazardous substances", as defined in Section 403.703(31), Florida Statutes, by any of the Respondents. The tank has never been used for the intentional disposal of any hazardous substances by American Linen, Crown, the Belleaus, or Jura.
During normal laundry operations, lint, sand and other sediment accumulated in the bottom of the surge tank over a period of time. When the accumulated quantity of sediment became too great so as to interfere with the operation, the liquid and the sediments were removed periodically by a vacuum truck and manual labor, using shovels, buckets, and a dumptruck. The surge tank was cleaned out several times over the pertinent years, including 1976, 1978, or 1979 (before American Linen's purchase), as well as in 1980-81, 1983, 1987, 1990 and 1991. It was possibly cleaned in 1972 or 1973, as well. In the 1976 clean-out, the surge tank was cleaned thoroughly enough that the workers reported searching for loose change on the concrete floor of the tank.
DER must prove a violation of Section 403.161(1)(a) or (b), Florida Statutes, in order to establish liability for purposes of Section 403.141(1), Florida Statutes, and Section 403.121(2), Florida Statutes. DER has also sought, as of the time of hearing, to impose liability on the Respondents, pursuant to Section 403.727(4), Florida Statutes, which imposes strict liability on the owner and operator or former owner and operator of a facility at which a release to the environment of a hazardous substance has occurred. Section 403.161(1)(a),
Florida Statutes, provides that it is prohibited for a person to cause pollution so as to harm or injure human health or welfare, animal, plant, or aquatic life, or property. In this proceeding, DER did not establish with competent, substantial evidence that the alleged pollution by PCE caused any harm or injury to human health or welfare, animal, plant, or aquatic life, or property. No risk assessment was conducted to determine the potential harm or actual harm. No testimony was presented with regard to the possible health effects or injurious impacts of PCE in the environment. There was no evidence shown to establish what amount of PCE in the environment or ground water might cause or potentially cause such harm to human health or any of the other injurious effects referenced in the above-cited Statute. DER has not adduced any evidence of a preponderant nature to show that any Respondent is thus liable for a violation of Section 403.161(1)(a), Florida Statutes.
Section 403.161(1)(b), Florida Statutes, provides that it is a violation to fail to comply with any rule of DER. Section 403.161(1)(b), Florida Statutes, is implemented with regard to ground water through former Rule 17-4.245(2), Florida Administrative Code, now Rule 17- 28.700, Florida Administrative Code, which provides a cause of action for violation of ground water standards. In order to maintain a cause of action under that Rule, DER must prove that the Respondents violated either Rule 17-3.402(1), Florida Administrative Code (the "Free From" Rule), or Rule 17-3.404(1)(a), Florida Administrative Code, which sets forth the ground water criteria alleged in the NOV and Amended NOV to have been violated.
Concerning Rule 17-3.402(1), Florida Administrative Code, which establishes narrative, minimum health effects-based criteria applicable to ground water, DER has alleged that the Respondents failed to comply with this Rule, but introduced no evidence concerning any health effects of PCE in the ground water. DER produced no evidence whatever regarding the concentration, if any, of PCE, which may be carcinogenic, mutagenic, teratogenic, or toxic, or which would pose a serious danger to the public health, safety or welfare, or create a nuisance, or impair the reasonable and beneficial use of any adjacent ground water. Even assuming that some amount of PCE was released from the surge tank at some period of time, DER failed to present any evidence regarding the quantity of PCE which may have been released, and the concentration in the ground water which could have resulted from a release from the Crown property. It simply was not proven that the concentration shown in the wells, at which samples were
taken, all resulted from any release, if any, which came from the Crown property. Thus, DER failed to adduce evidence which can demonstrate in a preponderant way a violation of the "Free From Rule" cited above or which would support its cause of action under Section 403.161(1)(b), Florida Statutes, with regard to alleged violation of this Rule.
DER has also alleged that the Respondents violated Rule 17-3.404(1)(a), Florida Administrative Code, cross- referencing and incorporating former Rule 17-22.104(1)(g), Florida Administrative Code, now Rule 17-550.310(2)(d), Florida Administrative Code, which sets forth the ground water standard, in the form of maximum contaminant level (MCL) for PCE. In order to demonstrate a violation of Rule 17-3.404(1)(a), Florida Administrative Code, as to each Respondent, DER had to prove that the Respondents caused a release of PCE to the ground water, resulting in a concentration of PCE in the ground water greater than the MCL established by the Rule.
Effective May 23, 1984, DER thus established 3 parts per billion as the MCL for PCE in drinking water and as the water quality standard for PCE applicable in Class G- II ground water, which is the classification of the ground water underlying the Crown property, and occurring at all of the supply wells and monitor wells involved in this proceeding.
In order to demonstrate a violation of the MCL by release of PCE from the laundry property, DER had the burden of proving: (a) that PCE entered the surge tank; (b) that the surge tank, in fact, released it to the environment and to the ground water; (c) that the release of PCE occurred during the ownership and/or operation of the laundry by one or more of the Respondents; and (d) that the amount of PCE entering the ground water during ownership and/or operation of each Respondent caused the concentration of PCE in the ground water to exceed the MCL in effect at the time of each Respondent's ownership and/or operation.
Proof of PCE in the Tank
Rentex installed a dry-cleaning machine at the Crown facility during mid-1974. It was equipped with two PCE holding tanks with PCE being used as the cleaning solvent in the dry-cleaning process. There was a storage tank, four to five feet tall, which stored pure PCE. The other tank was an eight to ten foot tall "cooker" tank used
to heat and reconstitute PCE used in the dry-cleaning process.
The machine was located near the rear of the Crown building, close to the floor drains and the wash room. The dry-cleaning machine was dismantled and removed from the Crown facility to another dry-cleaning establishment in Baltimore sometime in late 1974 or the early part of 1975.
The thrust of DER's case is that spills of PCE occurred from the dry-cleaning machine and its operation at the Crown facility which were allowed to enter the surge tank and thence leaked into the soil, the environment and the ground water. Indeed, several boil-overs of PCE occurred during the period of 1974 and early 1975, when the dry-cleaning operations were being conducted at the facility. Witnesses, Mathias and Hedrick, for DER, established that one spill of PCE in the amount of four to five gallons also occurred, along with several boil-overs from the laundry machine during that time period; however, the actual amount of PCE spilled or boiled over from the dry-cleaning machine and its operation was not established by DER.
Mr. Mathias worked as a maintenance man at the facility during the relevant period when dry-cleaning operations were conducted by RCD. He established that there were several boil-overs of PCE from the cooker tank and that when PCE boiled over from the top of the machine, some quantity would be sprayed onto the floor which was then hosed off into the floor drains, which communicate with the surge tank. He was unable to quantify the amount of PCE spilled on the laundry floor or which reached the surge tank, however. He was not able to definitively establish how many boil-overs he witnessed nor their severity in terms of the amount of PCE which was resultingly spilled on the floor of the laundry. He did not witness any spills of PCE other than those occurring in conjunction with boil-over events.
Mr. Hedrick was also a maintenance man at the facility during RCD's period of ownership and its dry- cleaning operations. He knew of one incident in mid-1974 in which four to five gallons of PCE were spilled directly onto the floor of the laundry due to a hose connecting the holding tank to the cooker tank being inadvertently disconnected. That PCE was washed with a hose into the floor drains and thence into the surge tank. Mr. Hedrick could recall only two boil-overs of PCE from the dry- cleaning machines. These incidents involved PCE spraying
over the top of the cooker tank but did not involve the release of any significant amount of PCE onto the floor.
Mr. Hedrick established that employees were careful in handling the chemical because it was very expensive and they were careful not to waste it. After boil-over events which he described, he observed the level of the PCE in the holding tank, which did not appear to drop much as a result of the boil-overs. He was also responsible for refilling PCE into the holding tank as necessary. His experience was that he was not required to add PCE to the machine as the mere result of a boil-over because the boiling PCE escaped from the top of the machine mostly as foam with very little actual volume of PCE being discharged during such a boil- over event.
Mr. Hedrick's testimony is corroborated by that of Dr. Mercer, an expert in hydrogeology, dense, non-aqueous phase liquid behavior (DNAPL), and the fate and transport of chemicals in the subsurface environment, presented by Jura. Dr. Mercer established that in a boil-over event, the PCE escaping from the top of the machine is pure PCE, chemically, but it escapes in the form of a foam or mist very near the boiling point of approximately 250 Fahrenheit. Because it is very volatile, most of the PCE escaping from the machine in a boil-over event, due to its volatility enhanced by its high heat, dissipates into the atmosphere. Whatever PCE did not volatilize would spread in a thin film over the floor of the facility and, because it was still a warm fluid, would continue to volatilize into the atmosphere. The small amount which did not volatilize would be washed into the floor drains and correspondingly diluted prior to entry into the surge tank, where it would be further diluted by the large volume of warm water present in the tank which would enhance dissolution and dilution. Consequently, the boil-overs would have produced only dissolved PCE entering the tank in small quantities, most of which would be flushed from the tank into the city sanitary sewer system through the outfall line exiting from the wall of the surge tank.
Thus, the testimony of these witnesses establishes that only one spill of four to five gallons of PCE occurred in 1974, most of which was washed into the floor drains and into the surge tank. It was not established that the boil- over events materially contributed to the volume of PCE entering the surge tank during the dry-cleaning operations conducted in 1974 and early 1975. No PCE was shown to have been deposited in the surge tank after dry-cleaning operations ceased in 1974 or at the latest in early 1975 during the RCD ownership and operation of the facility. It
was not shown that PCE was released or discharged to the environment by any other means since that time at or on the property or facility.
Release of PCE to the Environment
DER has thus established that some four to five gallons of PCE from a spill entered the surge tank in 1974 and that some minor quantities from boil-overs entered the tank through wash down of the laundry floor. DER also has the burden to establish the next evidentiary link; that the PCE was released from the surge tank to the environment.
The surge tank consists of a poured concrete floor with concrete-block walls with a plaster or cement covering on the outside of the tank. The concrete-block mortar joints and concrete with which the tank is constructed are porous materials, although the specific porosity has not been quantified. The extent of coverage, the integrity and continuity of the exterior cement or plaster layer over the outside of the tank, and for the life of the tank, is not established. The surge tank was constructed in 1969 in conjunction with the construction of the laundry building. It is 20 feet long by 10 feet deep by 9 feet wide. It is stipulated that the surge tank leaks wash water at some rate because of the porosity of the materials and because of cracks and fissures which have opened in its walls since its construction. Testing of the tank in 1971 revealed that it leaked, at that time, at the rate of 6.5 gallons per day.
No evidence establishes what the leakage rate before 1991
might have been.
There is no direct evidence of a release of PCE from the surge tank to the soil or ground water. Michael Clark testified in this regard, as a member of the Operations Response Team of DER. In his opinion, DNAPL or "separate phase" PCE (undissolved PCE) had escaped from the tank into the ground water; however, he testified that he performed no calculations to determine the quantity of PCE which would have had to enter the surge tank in order to create a release of separate phase PCE. Mr. Clark assumed in the gravamen of his testimony that the contents of a 55- gallon drum of PCE had been released to the surge tank in a spill, in performing his analysis of the potential for release of PCE from the surge tank. He admitted, however, that the release of 55 gallons of PCE had been only hypothetical and no evidence was presented in this case to establish that 55 gallons of PCE had been spilled or otherwise placed in the surge tank. Mr. Clark was neither offered nor qualified as an expert in hydrogeology or any
other field of expertise which could establish that he had any expertise in the movement of chemicals in the environment or in ground water or soils, nor as to the chemical state of those chemicals while in the soils or ground water at any point in time. Mr. Clark's opinion that separate phase PCE was released to the soil and then the ground water from the surge tank and that it resulted in the contamination found in the public water supply wells at issue, as well as in the monitoring wells, is not supported by competent, substantial evidence.
Inasmuch as Mr. Clark's opinion testimony did not demonstrate, by preponderant evidence, that separate phase PCE was released to the environment from the tank and there being no direct evidence of such a release, then inferential evidence must be used to establish whether such a release occurred. PCE was shown to be present in the tank in 1974 based upon the above-described events. The presence of PCE has been detected in the ground water immediately downgradient of the Crown property, as well as in the public drinking water supply wells and the monitoring wells, downgradient of the Crown facility. That evidence, together with the evidence concerning the porous nature of the materials of which the tank is constructed and the tank's condition, which has deteriorated over time, is sufficient to support an inference that some undetermined quantity of dissolved PCE escaped from the surge tank over some undetermined points or periods of time. DER, however, did not adduce evidence which could establish an inference that a release of dissolved PCE or separate phase PCE from the tank would be sufficient to cause the violations of the MCL for PCE found at the monitoring points in the vicinity of the Crown property nor is the evidence sufficient to establish when the releases, if any, which may have contributed to a violation of the MCL for PCE at the monitoring or sampling points may have occurred. The lack of sufficient evidence to support such an inference is pointed out by the testimony of witnesses Mathias and Hedrick, testifying for DER, concerning the quantity of PCE which entered the tank and by the testimony of Jura's expert witness, Dr. James Mercer, regarding the behavior of PCE upon entering the tank and upon a release to the environment. The finding that the evidence is insufficient to support an inference that the tank released sufficient PCE to cause a violation of the MCL for PCE is further supported by the evidence that DER did not exclude, through its PCE source investigation, other potential sources of PCE contamination in the ground water, other than Crown, particularly in view of the evidence concerning the cone of influence of the "east well" and the location of the
contamination in the PW-9 well, located upgradient from the Crown facility.
Dr. Mercer testified concerning the behavior of separate phase PCE with regard to the spill of four to five gallons of pure PCE from the holding tank, as found above. He established that because PCE is very volatile, much of the spill would have volatilized into the atmosphere, although at a slower rate than the boiling temperature of PCE released during boil-over events, as described herein. The spilled PCE, which did not volatilize, would have been washed down with a hose, diluting it and dissolving it in water prior to its entry into the floor drains and the surge tank. In the floor drains and in the tank, some of the PCE would have been entrained or bound up in the lint present in those locations; and some of the PCE would have made its way to the surge tank. Because of prior dilution and dissolution, a relatively small amount of pure PCE would have entered the surge tank. The presence of warm water in the tank would have promoted more dissolution and dilution of the chemical, such that most of the four to five gallons of pure PCE spilled would have become mostly dissolved PCE upon entry into the tank. Some of that would have then been washed out into a sanitary sewer system through the outfall line. Since separate phase PCE is denser than water, any of it in that form entering the tank would sink to the bottom of the waste water in the tank, coming to rest on the layer of sand, lint and other sediments on the bottom of the tank.
Dr. Mercer established that any separate phase PCE from the referenced spill would thus form a layer on top of accumulated sediments at the bottom of the tank, approximately .14 inches thick, assuming that it was evenly distributed over the bottom of the tank. In order for separate phase PCE to penetrate the pore spaces in the sediments, it would have to displace the waste water or wash water already occupying those pore spaces. If the layer, established by Dr. Mercer, was as thin as .14 inches thick, such a thin layer would not penetrate the pore spaces of the sediments because they would be filled already with wash water. That thin layer of separate phase PCE would not exert sufficient hydraulic pressure to displace that water because of the capillary pressure barrier formed between the water in the pore spaces and the separate phase PCE layer on top of the sediments. The capillary pressure effect is the pressure difference between two liquids, which creates a capillary pressure barrier, inhibiting the penetration of separate phase PCE into the pore spaces of the sediments. Dr. Mercer testified that a thickness of 4.7 inches of separate phase PCE, resting on top of the sediments, would
be necessary to overcome the capillary pressure barrier between the wash water and the pore spaces of the saturated sediments and the separate phase PCE layer lying on top of those sediments. Therefore, most of the separate phase PCE would remain as a layer on top of the sediments.
Dr. Mercer opined that if separate phase PCE does not reach the sediments in the bottom of the tank in sufficient volume to maintain the movement of the chemical through that porous medium, the separate phase PCE, which does settle to the top of the sediments, will tend to dissolve over time, partially into the wash water above the layer of PCE at the bottom of the tank and partially into the water occupying the pore spaces within the layer of sediments in the bottom of the tank. Any separate phase PCE, which dissolves into the overlying wash water, will become extremely diluted. Eventually, most of that dissolved PCE would be discharged through the tank's outfall to the public sanitary sewer system.
Any separate phase PCE, which is able to overcome the capillary pressure barrier and move into the pore spaces of the sediments, by displacing wash water within those spaces, would become trapped within those pore spaces, because of an effect known as "residual saturation". When a separate phase liquid moving through a porous medium is not of sufficient volume to maintain its movement, it tends to physically break apart into globules of separate phase liquid within those pore spaces. As more globules form within the spaces, the movement of the separate phase liquid decreases until at some point the flow stops. When the flow stops, the globules of separate phase liquid become trapped within the spaces. The point at which a sufficient percentage of pore spaces are filled with globules of separate phase liquid is called "residual saturation". Because of the effect of residual saturation on any separate phase PCE at the bottom of the tank, Dr. Mercer concluded that separate phase PCE within the pore spaces of the sediments would be unable to flow and would effectually be trapped in the sediments in the bottom of the tank until those sediments were removed, either through dissolution into the wash water in the tank as flushing occurs through use of the tank over time or when the sediments were removed during clean-outs of the tank. Therefore, little, if any, separate phase PCE could have been released from the tank to the environment.
Dr. Mercer's testimony was unrefuted and thus demonstrates that most PCE entering the tank would dissolve into the wash water already present, flow through the
outfall to the sewer system, or become dissolved in the free water and water occupying the pore spaces in the sediments at the bottom of the tank. The evidence supports the finding that little, if any, PCE would be released to the soil surrounding or underlying the tank as a result of the spill of four or five gallons of PCE from the dry-cleaning machine. No evidence was presented to establish the quantity of PCE which could have escaped from the tank as a result of the spill of four or five gallons of PCE into the tank nor was any evidence presented which would establish during what period of time the release to the environment may have occurred.
Charles Ferst testified as an expert in environmental engineering concerning the amount of PCE which may be released from the tank over time. Mr. Ferst testified that the leakage rate of the surge tank likely increased over time until reaching the current rate established in the evidence of 6.5 gallons per day, as determined by the 1991 test. Although the surge tank leaked at earlier periods, Mr. Ferst could not determine when the tank started leaking and could not calculate the leakage rate at any period of time prior to 1991 nor could any other witness. Based upon standard construction practices and the materials used in the tank at the time of its construction in 1969, Mr. Ferst opined that the tank leaked more after 1980 than in earlier years. Using that assumption and the fact that the sediments in the bottom of the tank were cleaned out several times between 1974 and 1991, he calculated the maximum amount of PCE which could have escaped from the tank after 1980. Mr. Ferst's calculations, however, are based upon a number of unsupported assumptions. Although he establishes that the tank leaked more in later years than in earlier years, his calculations and assumptions do little to establish how much PCE may have been released during any particular period of time; and little weight can be given to his conclusions regarding the specific amounts of PCE allegedly released at particular periods of time. DER did not present any evidence concerning the amount of PCE which could have escaped from the tank, even assuming that the tank leaked since 1974, when it was shown that some PCE had been placed in the tank. DER failed to prove that any amount of PCE which may have leaked out of the tank was sufficient to cause a violation of the MCL for PCE, and it did not inferentially demonstrate that any PCE which may have leaked out of the tank caused a violation of the MCL, because it simply failed to show that the violation levels found in the various wells where samples were drawn, solely resulted from contamination emanating from the Crown tank. DER failed to adduce
evidence sufficient to carry its burden of proving a violation of the ground water standard for PCE caused by a release of PCE from the Crown property.
Source of Contamination
DER must prove that a release of PCE from the tank caused or contributed to the PCE contamination found in the public water supply wells and the monitoring wells. Dr. Mercer testified that if it is assumed that the tank is a source of contamination and the PCE concentration data collected by DER is used, the travel time of PCE from the surge tank to one of the monitoring wells, MW-3, where the highest concentrations were found, would indicate a release occurring many years prior to 1969, the year in which the Crown building and surge tank were constructed. Dr. Mercer therefore concluded that the surge tank at the Crown facility was likely not the sole or even the primary source of PCE contamination found by DER.
In attempting to determine the source of the PCE discovered in the subject water supply wells, DER conducted soil sampling in suspected areas of contamination. This soil sampling revealed only two significant areas of PCE contamination in soils, neither of which was near the Crown property. DER then also selected monitoring well locations based upon ease of accessibility in order to determine the source of the contamination quickly. The monitoring wells were placed in the deep, intermediate, and shallow zones of the aquifer system underlying downtown Pensacola. Near the Crown facility, however, the intermediate zone was not present; instead, there was a shallow zone separated from the deep zone by a confining unit of relatively-impervious material.
DER demonstrated that the shallow, intermediate and deep aquifer systems within the downtown Pensacola area are contaminated with PCE and PCE-derived breakdown compounds at widely-varying concentrations. DER did not prove, however, that one or more discreet plumes of PCE contamination exist. Mr. Clark, testifying for DER, attempted to calculate the travel time of contaminants found in MW-3 based upon their being released to the ground water from the Crown facility. Although Mr. Clark indicated this to be, in his belief, between 1970 and 1980, he admitted that he only estimated the travel time of ground water, as opposed to PCE, from the Crown property. Moreover, he averaged high hydraulic conductivity values for monitoring wells quite distant from the Crown property, near PW-9, and ignored data from closer, more relevant wells. Dr. Mercer,
however, testified that the method used by DER to calculate travel time, which relies on conductivity values too far away from the suspected source and wells of concern, and averages only those high-conductivity values, while ignoring more pertinent values, provides a less accurate result.
Hydraulic conductivity values are used to calculate ground water velocities, which can then be used to calculate travel times over a certain distance. Dr. Mercer testified that using the hydraulic conductivity values obtained from monitoring wells in close proximity to an assumed source and which reveal the presence of PCE in significant concentrations, which DER did not do, produces a much slower ground water velocity than that calculated by DER because the hydraulic conductivity values used are much lower.
Averaging the hydraulic conductivity values obtained from monitoring wells which indicated significant concentrations of PCE in close proximity to the Crown facility to calculate travel time for PCE produced an estimate of 37 years for PCE released from the surge tank to reach MW-3. Thus, the PCE would have had to have been released prior to 1969 when the surge tank and the laundry facility were built (or from a different location). Because of this, it was not definitively shown that the PCE found in MW-3 came from the surge tank at the Crown facility. Dr. Mercer's testimony, because of his higher level of training, expertise and experience in hydrogeology and the fate and transport of chemicals in ground water, is accepted over that of Mr.
Clark.
Mr. Ross Mitchell testified regarding DER's search, which he conducted for facilities within the downtown Pensacola area which used or could have been the sources of a release of PCE. That investigation apparently concentrated on dry-cleaning establishments because DER opined that PCE was commonly used in such operations. Mr. Mitchell described his source investigation as "quick and dirty". He indicated that he did not follow up with every lead that he developed and that he established a "ball park" area within which to conduct his investigation. In fact, his investigation concentrated on a specific geographic area, in which other DER personnel had told him high concentrations of PCE had been found in ground water. As part of his investigation, he relied upon verbal representations by owners and operators regarding whether their facilities had ever used PCE. He made no effort to confirm those representations, other than cross-checking, in some instances, whether a given facility had been identified by a PCE supplier as a facility to which it had supplied PCE. However, he did not obtain customer lists from suppliers of PCE and was only able to get fragmentary
information from the suppliers. Mr. Mitchell made no effort to verify whether PCE had ever been used at many of the facilities he had identified. He simply looked for readily- available evidence. That investigation was completed before DER became aware that PCE had been used at the Crown facility. Once that knowledge was obtained, Mr. Mitchell assumed that it would be the source of the PCE contamination found. He did not follow up regarding any of the other facilities which were on his list of suspect locations. He acknowledged at hearing that several of the suspect facilities, other than Crown, had not actually been eliminated as potential sources and acknowledged that he had not considered possible sources, other than dry-cleaning establishments, such as refuse dumpsters at facilities which had been identified as using or having used PCE. He did no environmental sampling around dumpsters at such facilities to detect spillage and did not investigate any records of any of the facilities he had investigated to determine whether they had purchased or used PCE.
Mr. Mitchell located four dry cleaners, all upgradient of the PCE contaminated drinking water wells operated by ECUA. Among the dry cleaners suspected as potential sources of the contamination, only the Crown facility was located hydraulically downgradient of PW-9.
In order for the contamination to travel from the Crown surge tank to PW-9, the pumping regimen employed by ECUA's supply wells would have to reverse the direction of ground water flow or hydraulic gradient. Dr. Mercer's calculations demonstrated that the pumping regimen employed by ECUA could not have reversed the gradient so as to pull contaminants from the Crown facility upgradient to be captured by PW-9. Dr. Mercer and Mr. Clark both agreed that the "east well" pumps continuously throughout the year. PW-
9 does not pump continuously. When the "east well" is pumping, it will capture anything that would be in the subsurface in the vicinity of the Crown facility; and its capture zone would extend upgradient as far as PW-9. Mr. Clark admitted that he had no calculations to support his conclusion that ECUA's pumping of PW-9 could have reversed the gradient in the subsurface to draw contaminants from the Crown facility to PW-9. Accordingly, it is concluded that DER did not adduce sufficient evidence to prove that the Crown facility could be the source of contamination in PW-9.
The source investigation conducted by DER was inadequate to definitively determine whether the Crown facility was the source of PCE contamination or not. DER did not collect adequate soil and ground water samples
throughout the area of known contaminations so as to pinpoint a specific source or sources for the contamination. No soil samples were collected from the immediate area around potential sources identified in close proximity to
PW-9, for instance, such as the other four dry-cleaning establishments. Instead, once DER found PCE in MW-3 in high concentrations, it apparently focused all of its efforts on the Crown facility, assuming it to be the source of contamination. There are other upgradient PCE users (TCE), identified in Exhibit 6 which have not been ruled out as sources by competent evidence and that exhibit also shows that there may be three older dry cleaning sites in the downtown area with underground solvent tanks, which the record does not prove to have been investigated and ruled out as sources.
Since Crown was shown not to be the source of PCE contamination at PW-9, there could be sources of PCE contamination other than Crown which better account for conditions observed in the ground water in downtown Pensacola. DER simply failed in its investigation to adequately rule out other potential sources of contamination within the cone of influence of the public water supply wells, PW-6, PW-8, the "east well", and PW-9. It is as likely as not, for example, that PCE emanating from whatever source or sources contaminated PW-9 (potentially four different dry-cleaning establishments) was also drawn hydraulically downgradient and into the "east well" and other wells. The record reflects that the "east well", for instance, when it is pumping, has a capture zone which extends as far as and including PW-9. DER failed to adequately investigate that potential explanation, as well as other potential sources of the contamination, including the stormwater pond, and thereby failed to prove that contamination emanating from the Crown facility, more likely than not, caused the contamination observed in the ECUA wells, or at least all of it, to the extent of its violating the MCL for PCE in the sites sampled.
DER also seeks to impose liability on the Respondents pursuant to Section 403.727(4), Florida Statutes, which imposes strict liability on the current or former owner or operator at the time of disposal of any hazardous substance, as to a facility at which a release of hazardous substances has occurred. PCE is a hazardous substance, as that term is used in Section 403.727, Florida Statutes. However, Section 403.727, Florida Statutes, did not become effective until 1980; and PCE was not listed as a hazardous substance until 1984. DER has failed to prove in what quantity or during what period of time PCE may have
been released from the surge tank at the Crown facility. It has established that PCE was only placed in the surge tank during 1974 and 1975 and not since, well before the effective date of this statutory provision and the listing of PCE as a hazardous substance. It has produced evidence from which it is inferred that a certain amount of dissolved PCE in laundry waste water leaked from the tank. It has not been established when the leakage started nor in what quantities PCE dissolved into the wash or waste water may have leaked into the surrounding soil, nor what rate (continuously increasing, decreasing, or static) the leakage occurred. Thus, the most that may be inferred is that leakage of dissolved PCE in an unknown concentration occurred sometime after 1974, but it has not been proven that PCE, as a hazardous substance, has been released into the environment during a specific period of time when each of the Respondents owned and/or operated the Crown facility. Thus, DER has failed to adduce evidence sufficient to carry its burden of proving a release of a hazardous substance, subjecting any of the Respondents to liability under Section 403.727, Florida Statutes. In any event, the Respondents were not on notice of the need to defend against a charge under that statutory section since the NOV and the Amended NOV did not inform them that such would be the basis of any purported liability alleged by DER.
DER contended, for the first time at hearing, that the Respondents are liable for violation of the hazardous waste disposal rules. DER alleged at hearing that PCE, as a waste, is a listed hazardous waste, either as a spent solvent or a discarded commercial chemical. No such allegations were included in the NOV or the Amended NOV. However, Dr. Mercer established that any PCE which may have been released into the environment from the surge tank was in dissolved form and not as separate phase PCE. Dissolved PCE has not been shown to be a hazardous waste. Therefore, there is no evidence of record to support a finding that improper disposal of hazardous waste occurred at any point or points in time relevant to his proceeding. Moreover, Mr. Clark testified that he conducted a hazardous waste inspection of the Crown facility in 1982. Mr. Clark determined at that time that there was no hazardous waste being generated in the building or being stored in the building. DER has failed to demonstrate that any hazardous waste was generated or stored on the Crown property or disposed of into the surge tank at anytime by any of the Respondents.
Finally, no evidence has been presented in this case that any of the Respondents had actual or constructive
knowledge of the presence of PCE in the surge tank or of whether or not any release to the surge tank had occurred between 1971 and 1979 or any knowledge of any use or discharge of PCE to the surge tank prior to the commencement of DER's investigation in this action. Only RCD may be presumed to have had knowledge of the spillage of PCE which was discharged to the surge tank in 1974 and 1975, which entity was Jura's predecessor, ultimately merged into the corporation now known as Jura Services, Inc. Additionally, DER seeks in this proceeding only to be reimbursed for the costs of the investigation and tracing of the source of contamination and not for any natural resources damages nor any adjudication of the extent of liability for such damages, except insofar as the Order for Corrective Action which DER seeks to have imposed in this case reserves DER the opportunity to seek a determination after completion of corrective action of the extent to which the Respondents may be liable for natural resources damage, if any.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1991).
This is an enforcement proceeding initiated by the DER by its NOV and subsequently Amended NOV and Orders for Corrective Action. These were served under the DER's authority in Section 403.161(8), Florida Statutes. In order to prevail in its cause of action under Sections 403.121(2), 403.141(1), and 403.161(1), Florida Statutes, as well as former Rule 17-4.245(2), Florida Administrative Code, now Rule 17-28.700, Florida Administrative Code, DER must prove that the Respondents violated one or more of the ground water criteria specified by the DER in the NOV and amended NOV as being the basis for liability. Those criteria are set forth in Rules 17-3.402(1) and 17-3.404(1)(a), Florida Administrative Code. The DER has the burden of proof in this proceeding since it is an enforcement proceeding with the DER being the moving party seeking to change the status quo. See Rule 17-103.130(2), Florida Administrative Code; Agrico Chemical Co. vs. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979), cert. denied,
376 So.2d 759. The DER's burden of proof is to show the
violations in question by a preponderance of the evidence which has been defined as evidence of greater weight or more convincing than evidence which is offered in opposition to it, that is, evidence which, as a whole, shows that the facts sought to be proved more probably occurred than not.
Capps vs. Department of Banking and Finance, 13 FALR 858, 861 (October 6, 1990). Section 403.121(2), Florida Statutes, provides the administrative remedies the DER seeks to advance and enforce in this proceeding by allowing for the initiation of administrative proceedings to order the prevention, abatement or control of conditions creating a violation of the provisions of Chapter 403, Florida Statutes, specified in Section 403.161(1), Florida Statutes, to establish liability and to recover damages for injuries to State waters caused by those violations.
The "Free-From Rule"
Rule 17-3.402(1), Florida Administrative Code, is commonly referred to as "the "free-from" rule. That Rule presently provides that
all ground water shall at all places and at all time be from domestic, industrial, agricultural, or other man-induced non-thermal components of discharges in concentrations which, alone or in combination with other substances or components of discharges (whether thermal or non-thermal):
are harmful to plants, animals, or organisms that are native to the soil and responsible for treatment or stabilization of the discharge relied upon by the department permits; or
are carcinogenic, mutagenic, teratogenic, or toxic to human beings, unless specific criteria are established for such components in Rule 17-3.404; or
are acutely toxic to indigenous species of significance to the aquatic community within surface waters affected by the ground water at the point of contact with surface waters; or
pose a serious danger to the public health, safety, or welfare; or
create or constitute a nuisance; or
impair the reasonable and beneficial use of adjacent waters.
The DER has not presented any evidence to establish that the PCE caused harm or injury to human health and welfare, animal, plant or aquatic life, or property. Consequently, the DER has not carried its burden of proving that any Respondent violated the "free-from" rule quoted above or Section 403.161(1)(a), Florida Statutes, by
"causing" pollution. No risk assessment was conducted to determine such potential harm and no testimony was presented with regard to possible health effects or injurious impacts of PCE in the environment. The DER did not present evidence that any discharge from the surge tank of PCE could have produced a concentration of PCE in ground water which violated any of the above criteria or which could have potentially caused such of the above-described harm. No evidence was presented regarding the concentration of PCE allegedly leaking from the tank. No evidence was presented as to whether PCE harms plants or organisms; whether PCE is carcinogenic, mutagenic, teratogenic or toxic; or whether PCE posed a serious danger to the public health, safety or welfare; or whether it created or constituted a nuisance; or whether the reasonable and beneficial use of adjacent waters was impaired.
The DER has also failed to prove that any Respondent has violated Rule 17-3.404(1), Florida Administrative Code, which sets forth the MCL for PCE. In order to demonstrate a violation of that Rule, the DER had to demonstrate that a Respondent caused a release of PCE to the ground water resulting in the concentration of PCE in the ground water greater than the MCL. The DER thus had to prove: (a) that PCE entered the tank; (b) that the tank in fact released PCE to the environment, and to ground water;
(c) that the release of PCE occurred during the ownership and/or operation of the laundry facility by one or more of the Respondents; and (d) that the amount of PCE entering the ground water during the ownership and/or operation of any or all of the Respondents caused the concentration of PCE in the ground water to exceed the applicable MCL, if any, in effect at the time of any Respondents' ownership and/or operation of the facility. The DER did establish a sufficient factual basis to show that PCE was deposited in the surge tank during the spilling episodes in 1974 and 1975. It established a sufficient factual, evidentiary basis to support an inference that some undetermined quantity of dissolved PCE escaped from the tank at an undetermined point or period of time. It did not, however, establish a sufficient factual, evidentiary basis to support an inference that the tank released a sufficient quantity of PCE to the environment to cause a violation of the MCL for PCE nor sufficient to create an inference as to when any release or releases of the chemical which may have contributed to a violation of the MCL for PCE may have occurred. Further, the MCL for PCE does not even apply to the question of liability for the Respondents who owned or operated the facility prior to the effective date of the MCL rule in 1984, for the reasons discussed infra. Be that as
it may, even if the MCL rule applied equally to all Respondents, the DER's burden of proof to show violations of the MCL has not been sustained. The DER has failed to establish a direct, relevant, causal connection between the contamination found in the ground water at the various wells and the Crown Laundry facility itself. The DER has thus failed to demonstrate a violation of the "free-from" rule by any of the Respondents in this case or to support its cause of action regarding any of the Respondents causing pollution by creating the harm or potential harm mentioned in the above Conclusions regarding Section 403.161(1)(a), Florida Statutes, nor has it supported its cause of action under Section 403.161(1)(b), Florida Statutes, concerning violation of any DER rule, as discussed hereinabove.
The DER did not prove that the Crown facility could be the source of the contamination found in PW-9, as shown by the above Findings of Fact. The DER did not substantiate its theory that pumping of PW-9 could reverse contaminant travel and cause it to move upgradient into PW-
In fact, there is a substantial likelihood, based upon the evidence and the above Findings of Fact that contaminants emanating from dry cleaners or other sources near and upgradient of PW-9 were drawn downgradient into the east well, because of the evidence establishing that when the east well is pumping, its zone of capture includes an area extending as far as the PW-9 well. The DER failed to adequately investigate that potential upgradient sources could have caused the pollution levels discovered in the relevant wells, as well as other potential sources of PCE contamination which could have been drawn to any of the wells, from within the capture zone of those wells. The DER simply failed to prove that the contamination emanating from Crown Laundry by a preponderance of the evidence was the cause of the contamination levels observed in ECUA's wells. This is especially true in view of the evidence indicating that, as to contamination found in MW-3, it would have taken approximately 37 years for the PCE to migrate from the surge tank to that well, which would have, if the PCE had come from Crown, required the Crown Laundry to have been built and placed in operation, including the surge tank, well before 1969, when the laundry and the surge tank were actually constructed.
DER also seeks to impose liability, pursuant to Section 403.727(4), Florida Statutes, on the Respondents. That Section provides:
the owner and operator of a facility;
any person who at the time of disposal of
a hazardous substance owned or operated any facility at which such hazardous substances were disposed of;
any person who, by contract, agreement, or otherwise, arranged for disposal or treatment...of hazardous substances owned or
possessed by such person or any other party or entity at any facility owned or operated by another party or entity and containing such hazardous substances; and
any person who accepts or has accepted any hazardous substances for transport to disposal or treatment facilities or sites selected by such persons, 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 cost 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.
The evidence only supports an inference that a release of some undetermined quantity of dissolved PCE may have occurred from the facility at some undetermined time. The DER has not established that dissolved PCE is a hazardous substance. Moreover, it failed to establish when any release of dissolved PCE from a tank may have occurred. Therefore, the DER has not established that any Respondent was an owner or operator of the facility at the time of disposal of any hazardous substance from that facility.
Concerning the current owners and operators of the facility, Crown and the Belleaus, although the DER need not establish when the release of the hazardous substance occurred, it must establish that such release occurred at some time. The DER, as noted above, failed to establish that PCE is a hazardous substance within the meaning of Section 403.727(4), Florida Statutes. Moreover, it did not prove that any such release of a hazardous substance which may have occurred caused any cost of removal or remedial action to be incurred by the DER or that any such release resulted in damage or injury to destruction of or loss of natural resources, including the reasonable cost of assessment thereof, especially in view of the findings concerning other potential sources of the pollutants involved which have not been adequately investigated.
Accordingly, the DER has failed to carry its burden of proof that any Respondent is liable for the contamination found in the subsurface and in the water near the Crown Laundry property pursuant to Section 403.727(4), Florida Statutes.
Moreover, the DER charges that the Respondents are liable under this Section are not entitled to consideration herein because the Respondents were not placed on notice such that they could prepare to defend charges of liability under that Section. Liability under Section 403.727, Florida Statutes, was not pled in the NOV or even in the Amended NOV and the Respondents were not informed of the DER's intent to proceed against them under that Section until the commencement of the hearing. Consequently, proper observance of the due process rights of the Respondents dictates that purported liability under Section 403.727, Florida Statutes, be accorded no consideration in this proceeding.
Even had the DER established a sufficient factual basis to support an inference that PCE escaped from the surge tank during Rentex's period of ownership and operation of the laundry, when the spills occurred, in a sufficient quantity to cause a violation of the MCL for PCE, those facts will not establish the liability of Rentex's corporate successor, Jura, in this case nor would it establish liability for the earlier portion of American Linen's tenure as owner and operator of the facility. The MCL standard for ground water was simply not in effect before May 23, 1984, when the MCL for PCE itself was established, nor was Section 403.727, Florida Statutes, concerning any hazardous substance issue, in effect prior to 1980, even had charges concerning Section 403.727, Florida Statutes, been properly pled and put at issue in this proceeding, which is not the case. It is a well-established rule of statutory construction that, in the absence of an explicit expression of legislative intent to the contrary, that a substantive law can be construed as having prospective effect only. The standards involving the MCL for PCE and the hazardous substance issue, concerning Section 403.727, Florida Statutes, are clearly substantive laws. Consequently, because of the reasons, discussion and legal authority cited by Jura in its Proposed Recommended Order, which are adopted and incorporated by reference herein, because of the Hearing Officer's conclusion that those discussions, proposed conclusions and legal authority are persuasive and convincing, it is concluded that the statute referenced next above, as well as the above-cited Rule concerning the MCL standard for PCE, cannot have retroactive effect.
This is especially true in an enforcement proceeding such as this where the DER, in effect, is attempting to assert liability against parties for actions allegedly committed before such actions were the subject of the legal proscription which the DER is attempting to enforce. This is a different situation from the permitting or licensing situation where a permit applicant may be held to comply with laws enacted after the filing of his application for the permit, so long as he is given notice of it and the opportunity to bring forward evidence to attempt to comply with the new law. See, Turro v. Department of Health and Rehabilitative Services, 458 So.2d 345 (Fla. App. 1st Dist. 1984). Thus, it is concluded that Jura, as corporate successor to Rentex, cannot be held liable under either Section 403.727, Florida Statutes, or Rule 17-3.404, Florida Administrative Code, for the additional reason that those legal provisions cannot be given retroactive applicability in this proceeding.
Concerning the issue of successor liability, because of the failure of proof of any violations of Section 403.161(1)(a) or (b) or of the above-cited and discussed Rules, the issue of successor liability need not be addressed in depth. It is sufficient to conclude, however, that Respondents, American Linen, Crown, and the Belleaus cannot be held liable for any pollution, had it been proved in a legal sense, because they deposited no PCE in the ground water or soil through the surge tank or otherwise and had no knowledge that any PCE had been deposited in the surge tank or even used at the Crown Laundry facility until the DER's investigation revealed such, commencing in 1987. The arguments of these Respondents concerning the meaning of the words "cause pollution" in Section 403.161(1), Florida Statutes, are persuasive and adopted by the Hearing Officer. Causing pollution means more than simply owning and even operating a laundry facility where the pollutant may be leaking or caused by the act of an earlier owner and operator, unbeknownst to these Respondents. Their mere passive ownership and operation of the facility without knowledge of the presence of the PCE cannot impute liability to them. The case of Sunshine Junior Stores, Inc. v. State, 567 So.2d 1177 (Fla. 1st DCA 1990), Rec. Den. 564 So.2d 1085 (Fla. 1990) and the Hearing Officer's Recommended Order underlying that court decision in DOAH Case Nos. 85-2669 and 2812 (Recommended Order filed June 12, 1986) is persuasive and convincing.
Although Jura, under the theory of successor liability due to merger, which merger was stipulated to, may be responsible for Rentex's liability in this matter, that
decision need not be reached because of the basic failure of proof of the subject violations, as found, discussed and concluded above. Although the DER and Jura assert that American Linen might, indeed, be found liable based upon a "continuity of enterprise" theory of successor liability, that argument is unpersuasive. The elements or indicia of liability based upon "continuity of enterprise" are asserted in United States v. Distler, 741 F.Supp. 637, 640 (W.D. Kentucky 1990), cited by Jura. The factors used in determining whether to impose liability pursuant to the continuity of enterprise exception to the normal, non- liability situation where a successor corporation merely buys the assets of a predecessor corporation, include the weighing of such factors as whether the successor corporation retains the same employees; retains the same supervisory personnel; retains the same production facility in the same location; continues producing the same products; retains the same name; maintains continuity of assets and general business operations; and holds itself out to the public as a continuation of the previous corporation. Here, the successor, American Linen, bought from RCD (Rentex) the physical assets of the laundry business and operated that machinery and facility as a laundry. The evidence does not show that it retained many of the same employees nor any of the supervisory personnel, nor did it retain the same name, although it could be said to produce the same products, that is, clean clothes. The record does not reflect whether it maintained continuity of the assets in the general business operations because there is not evidence of any detail of its business operations other than it continued to operate a laundry at the location. The record does not show that the successor kept the same name nor that American Linen held itself out to the public as the continuation of the previous corporation. In fact, it did not. Accordingly, the record does not show that American Linen, the Belleaus, or Crown can be held liable for the spills of PCE caused by RCD based upon theories of successor liability advanced by Jura and DER. Be that as it may, the above Findings of Fact, the competent, substantial, preponderant evidence of the record, and the above Conclusions of Law do not show that any of the Respondents are liable for the violations charged.
Accordingly, in consideration of the above Findings of Fact,
the evidence of record, the applicable statutory, regulatory and case law, it must be concluded that DER has not proven by a preponderance of the evidence that any of the Respondents is liable to DER for the ground water contamination in the City of Pensacola as alleged in the NOV and the Amended NOV.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore
RECOMMENDED that DER enter a Final Order dismissing the Amended NOV against all Respondents.
DONE AND ENTERED this 5th day of November, 1992, in Tallahassee, Leon County, Florida.
Hearings
Hearings
P. MICHAEL RUFF Hearing Officer
Division of Administrative
The DeSoto Building 1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative
this 5th day of November, 1992.
5985
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-3077 & 88-
Petitioner's Proposed Findings of Fact
1-16. Accepted.
Rejected as contrary to the preponderant evidence of record and subordinate to the Hearing Officer's
findings
of fact on this subject matter.
Accepted but not dispositive.
Rejected as contrary to the preponderant weight of the
Hearing
testimony and evidence and subordinate to the
Officer's findings of fact on this subject matter.
Rejected for the same reason.
Accepted but not in itself dispositive of the material
findings
issues and subordinate to the Hearing Officer's
of fact on this subject matter.
Rejected as not in accordance with the preponderant weight of the evidence and subordinate to the
Hearing
Officer's findings of fact on this subject matter.
23-27. Accepted but not in themselves materially dispositive.
28-30. Accepted but not in themselves materially dispositive.
31-34. Accepted.
35-40. Accepted but not in themselves materially dispositive.
41-50. Accepted but not in themselves materially dispositive.
51. Accepted but not in itself dispositive and subordinate to
the Hearing Officer's findings of fact on this
subject
matter.
52-53. Accepted.
Accepted as to the DER intent in placement of the wells.
Accepted but not materially dispositive standing alone.
Accepted.
Accepted to the extent that Crown Laundry has been shown
source
by circumstantial evidence to be inferentially a
of the contamination found in the various wells
mentioned
but not the sole source nor the source actually
causing this made on
violation of appropriate standards and otherwise proposed finding of fact is subordinate to those this subject matter by the Hearing Officer.
Rejected as not entirely in accordance with the preponderant weight of the evidence and as
subordinate to
the Hearing Officer's findings of fact on this
subject
matter.
Accepted as to the levels of chemical depicted in this
the
proposed finding of fact but not as to the material import of the proposed finding of fact concerning
tank being the cause of the excession of the MCL standards.
Accepted but not itself dispositive of material issues
presented. 61-62. Accepted.
Accepted except that the presence of these chemicals in
excession of the MCL inside the tank does not constitute
a violation of any pertinent legal authority.
Accepted.
Accepted to the extent that the walls of the tank are a
continuing source of PCE.
Rejected as subordinate to the Hearing Officer's findings
of fact on this subject matter.
Rejected as subordinate to the Hearing Officer's findings
of fact on this subject matter.
Accepted in terms of the amount spent but rejected otherwise as being, in effect, a conclusion of law.
Rejected as constituting a conclusion of law and not a
proposed finding of fact.
Rejected as constituting a recitation of a portion of the
fact
pleadings at issue and not as a proposed finding of
which is materially dispositive of any issue.
Rejected as not constituting a material proposed finding
of fact but rather a recitation or discussion of the remedies sought by the Petitioner.
Rejected as immaterial in this proceeding.
Accepted but not dispositive.
Rejected as constituting a conclusion of law and not a
proposed finding of fact.
Rejected as subordinate to the Hearing Officer's findings
of fact on this subject matter.
Rejected as subordinate to the Hearing Officer's findings
of fact on this subject matter and as not entirely
in
accordance with the preponderant weight of the
evidence.
Respondent, American Linen Supply Company's Proposed Findings of Fact
1-21. Accepted.
Rejected as subordinate to the Hearing Officer's findings
of fact on this subject matter.
Accepted but not as probative that leakage could have
raised the level of PCE in the monitoring and production
well samples above the maximum contaminant level.
Accepted.
Accepted but subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted but not itself dispositive. 27-28. Accepted.
Respondents, Belleaus and Crown Laundry and Dry Cleaners, Inc.'s Proposed Findings of Fact
1-21. Accepted.
Rejected as subordinate to the Hearing Officer's findings
of fact on this subject matter.
Rejected as subordinate to the Hearing Officer's findings
of fact on this subject matter and to some extent,
as
speculative.
Accepted.
Rejected as subordinate to the Hearing Officer's findings
of fact on this subject matter.
Accepted but not itself dispositive of material issues.
Accepted.
Respondent, Jura Services, Inc.'s Proposed Findings of Fact 1-63. Accepted.
Rejected as subordinate to the Hearing Officer's findings
of fact on this subject matter.
Rejected as subordinate to the Hearing Officer's findings
of fact on this subject matter.
66-68. Accepted.
COPIES FURNISHED:
Carol Browner, Secretary
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, FL 32399-2400
Daniel H. Thompson, Esq.
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, FL 32399-2400
Jack Chisolm, Esq. Richard Windsor, Esq.
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
William D. Preston, Esq. Thomas M. DeRose, Esq.
HOPPING, BOYD, ET AL.
123 S. Calhoun Street
P.O. Box 6526
Tallahassee, Florida 32301
Thomas P. Healy, Jr., Esq. MAYER, BROWN & PLATT
190 South LaSalle Street Chicago, Illinois 60603
John W. Wilcox, Esq. Derek B. Spilman, Esq. RUDNICK & WOLFE
101 East Kennedy Blvd. Suite 2000
Tampa, Florida 33602
Jeffrey C. Bassett, Esq. BARRON, REDDING, ET AL.
Box 2467
Panama City, Florida 32401
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE AGENCY WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE AGENCY CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.
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ORDER ON REMAND
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ENVIRONMENTAL PROTECTION, | ) ) | |
) | ||
Petitioner, | ) | |
) | ||
vs. | ) CASE NOS | 88-3077 |
) | 88-5985 | |
GEORGE A. & ANN F. BELLEAU; | ) | |
CROWN LAUNDRY & DRY CLEANERS, | ) | |
INC.; AMERICAN LINEN SUPPLY | ) | |
COMPANY; and SKETCHLEY | ) | |
SERVICES, INC., | ) | |
) | ||
Respondents. | ) |
)
ORDER ON REMAND
THIS CAUSE comes before the undersigned Hearing Officer pursuant to an order entered by the Department of Environmental Protection (f/k/a Department of Environmental Regulation) remanding this case to the Hearing Officer for "clarification and additional findings (Order of Remand, page 4). The Department Secretary determined that the Hearing Officer applied erroneous legal conclusions in the Recommended Order previously issued in this matter and that these erroneous legal conclusions have led to several findings of fact which are either conflicting or unclear." (Order of Remand, page 16). The Secretary also determined that the Hearing Officer failed to make a finding on one proposed finding of fact raised by the Department and that several findings "were tainted by his application of an incorrect standard of proof. Therefore the Secretary requested that the Hearing Officer reconsider his findings and conclusions regarding violations of Department rules and statutes in light of the Secretary's legal conclusions and to address the findings and conclusions called into question by the Secretary by responding on remand to the following questions:
Did the Department demonstrate that the Crown facility discharged perchloroethylene ("PCE") to the ground water and did this discharge alone or in combination with other sources result in a violation of the applicable maximum contaminant level ("MCL") for PCE at one or more of the wells tested in this case?
Did the Department demonstrate that the surge tank at the Crown facility discharged PCE to the ground water during the periods of ownership or operation of each of the Respondents?
Does the Hearing Officer accept or reject DER's proposed finding of fact number 78?
The Secretary has asked the Hearing Officer to make findings of fact and conclusions of law on the reasonableness of the corrective actions ordered in the Amended Notice of Violation and of the Department's investigative costs or to find that the reasonableness of the corrective actions and investigative costs was not disputed.
The first question posed by the Secretary, stated above, is answered in the negative. Although the evidence supports an inference of a release of dissolved PCE from the
Crown facility in some undetermined quantity at some undetermined time, it was not established what concentrations were discharged or when the leakage may have started or occurred There was no evidence to establish a finding that any such release which may have occurred caused or contributed to, alone or in combination with other sources, a violation of the MCL. The evidence only supported an inference that dissolved PCE was released (not pure or "separate phase" PCE), therefore- the Department was required to establish that the concentration of PCE in a release from the Crown facility was at least three parts per billion (PPB), which is the MCL for PCE. If its concentration was less than three parts per billion, such a release could not cause or contribute to concentration in the ground water of greater than three parts per billion, because such concentrations are not additive. Moreover, since the evidence suggested a reasonable inference that other potential sources of PCE existed in the vicinity of Crown, it could not, and cannot be reasonably inferred that a release from Crown occurred in a concentration in excess of three parts per billion. The Department failed to establish that a sufficient concentration of PCE was released from the Crown facility to cause a violation, or to establish that Crown was the only nearby source of release of PCE, such that a release in a sufficient quantity could be inferred from the evidence adduced at hearing.
Concerning the second question posed by the Secretary and referenced above, it is found that the Department did not demonstrate that the surge tank at the Crown facility discharged PCE to the ground water during the periods of ownership or operation of each of the Respondents In her order, the Department's Secretary stated that the only reasonable inference" which could be drawn from the evidence in this case was that the surge tank was a continuing source of contamination, at some rate, since 1974 or 1975. The Hearing officer found, however and stills finds, that that inference could not be drawn from the evidence presented in this case. In listing the "facts" which support her inferences the Department Secretary states, citing the Hearing Officer's finding of fact number 8, "that PCE was still present in the surge tank in 1987" (emphasis supplied). The ward "still", however, does not appear in that cited finding of fact made by the Hearing Officer and that is a crucial distinction. The Hearing Officer found that PCE was present in the tank in 1974 and was present in the tank in 1987 but could not find, and does not find, that PCE. was present continuously from 1974 through 1987, because of the uncontroverted evidence of the repeated, thorough clean-outs of the surge tank over the period of
intervening years, referenced in the findings of fact in the Recommended Order. The Department did not establish how PCE could continuously reside in the surge tank and continuously discharge to the ground water during the period of time when these repeated, thorough clean-outs of the tank were occurring or how it could continuously discharge in concentrations sufficient to cause alone, or in combination with other sources, violation of the MCL. Without such proof, the Hearing Officer could not find or infer, and cannot find now, that a continuous release of PCE from the surge tank had more likely than not occurred. The Department should have established, at a minimum, the effect of the repeated clean-outs on the concentration of dissolved PCE in any release which may have occurred between 1974 and 1987. Absent a finding or inference of continuous release, it would have to be determined if the Department demonstrated at what points in time, or during what periods of time, a release of PCE occurred from the Crown facility. The Department introduced no evidence regarding such time periods, other than the spill of PCE to the tank which occurred in 1974. Without such proof, there is no evidence in the record from which a determination can be made whether a release occurred during Jura's predecessor's tenure in ownership and/or operation at the Crown facility or during any of the other Respondents' tenure in ownership or operation of the facility. Absent evidence supportive of such determinations, the Hearing Officer had (and has) no alternative but to find that the Department failed to prove that a release of PCE from the Crown facility occurred during the periods of ownership or operation of each of the Respondents.
The Secretary has also requested that the Hearing Officer make a specific ruling on the Department's proposed finding of fact number 78, which was apparently inadvertently not ruled upon in the Appendix to the Recommended Order, although its subject matter was dealt with in the Hearing Officer's findings of fact in the Recommended Order. Proposed finding of fact number 78 is rejected because the preponderant weight of the substantial, credible evidence, culminating in the findings of fact in the Recommended Order, as clarified above, does not establish that any discharges from the Crown facility alone or in combination with other sources, caused a violation of the applicable water quality standards (MCL). It is subordinate to the Hearing Officer's findings of fact on this subject matter.
The Secretary has also requested the Hearing Officer to make findings of fact and conclusions of law as to the
reasonableness of the corrective actions ordered in this case and of the Department's investigative costs or to find that the reasonableness of the corrective actions or the investigative costs was not disputed. The Department stated in its Proposed Recommended Order that the orders for corrective action were reasonable for application in this case. The Hearing Officer rejected those proposed findings on the grounds that they constituted conclusions of law. In her remand order, the Secretary disagreed with the Hearing Officer that the question of the reasonableness of the corrective actions and investigative costs amounts solely to a conclusion of law, where she states that "a finding of reasonableness, while perhaps a conclusion of law, must be based upon a factual predicate." Therefore, the Secretary asked the Hearing Officer to make a "finding of fact" as to the reasonableness of the corrective actions ordered in the amended NOV and the investigative costs or to find that the reasonableness thereof was not disputed, as well as to make a "conclusion of law" as to the reasonableness of the corrective actions.
The Department established that it had expended
$197,423.00 in investigating the source of the ground water contamination found in the Pensacola area. This figure was accepted as accurate by the Hearing Officer and, indeed the fact of that figure being expended by the Department was not contested by the parties. Rather, the parties contested the reasonableness of the investigative costs and the corrective actions sought to be imposed by the Department in the context of their contesting the Department's position that the Respondents were liable for the statutory and regulatory violations charged.
Accordingly, in specific response to the Secretary's query, it is determined that the corrective actions sought to be imposed and the investigative costs are not reasonable, in the sense that in the Recommended Order and as clarified in this Order, the Hearing Officer has found that the evidence has not established liability on the part of the Respondents. It is axiomatic that the Secretary has the authority to reject or modify conclusions of law made by a Hearing Officer. If in such an effort, it is determined by Final Order that notwithstanding the facts found and clarified in the Recommended Order and in this Order the Respondents are liable as a matter of law, and assuming arguendo that circumstance, the Hearing Officer determines that the investigative costs and the corrective actions sought to be imposed by the Department are reasonable.
In summary, the Hearing Officer has thus responded to the Secretary's queries in the Order of Remand by making the clarifications of findings of fact and additional fact finding requested. The findings made in the Recommended Order and in this Order are based upon the Hearing Officer s determination of the preponderant weight of the substantial credible testimony and evidence, and they were arrived at based upon "ordinary methods of proof". Barker v Board of Medical Examiners, 428 S.2d 720 (Fla. App 1st Dist. 1983)
The Secretary differs with the Hearing Officer as to certain conclusions of law as to application and interpretation of statutes, rules, and case law, referenced in the Order of Remand It is clearly within the authority and prerogative of the Secretary to alter or modify such conclusions of law. The Secretary's reference, at page 16 of the Order of Remand, that the Hearing Officer's erroneous legal conclusions have led to several findings of fact which are either conflicting or unclear is an incorrect proposition. The Hearing Officer's findings of fact are based upon the Hearing Officer's determination of the preponderant weight of the substantial credible evidence.
Those findings of fact, indeed, are not driven nor dictated by conclusions of law, correct or otherwise. They are based upon the preponderant weight of the evidence presented on the factual issues before the Hearing Officer. The Hearing Officer in the Recommended Order, and now, as additionally found and clarified herein, has ruled upon all disputed issues of material fact. It remains for the Secretary, by Final Orders to make the conclusions of law deemed appropriate
Accordingly, the Secretary's remand is accepted by the Hearing Officer to the extent delineated herein, and based upon the foregoing, it is
ORDERED that the Order of Remand is accepted to the extent delineated above and that, with entry of this Order on Remand, jurisdiction of the subject matter is hereby returned to the Secretary, along with the transcript and exhibits.
DONE AND ORDERED this 13th of July, 1994, at Tallahassee, Leon County, Florida.
Hearings
Hearings
P. MICHAEL RUFF Hearing Officer
Division of Administrative
The DeSoto Building 1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative
this 14th day of July, 1994.
COPIES FURNISHED:
Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Kenneth Plante, Esquire General Counsel
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Jack Chisolm, Esquire Richard L. Windsor, Esquire
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
John W. Wilcox, Esquire Derek B. Spilman, Esquire
E. Gary Early, Esquire
AKERMAN, SENTERFITT & EIDSON, P.A.
P.O. Box 3273
Tampa, Florida 33601-3273
Jeffrey C. Bassett, Esquire BARRON, REDDING, ET AL
P.O. Box 2467
Panama City, Florida 32401
William D. Preston, Esquire HOPPING, BOYD, ET AL.
P.O. Box 6526
Tallahassee, Florida 32301
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AGENCY FINAL ORDER
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STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Petitioner,
vs. DOAH Case Nos. 88-3077
88-5985
GEORGE A. & ANN F. BELLEAU, CROWN LAUNDRY & DRY CLEANERS, INC., AMERICAN LINEN SUPPLY COMPANY, JURA SERVICES, INC.,
Respondents.
/
FINAL ORDER
This matter comes before me for final agency action on a Recommended Order and Order on Remand, submitted to me by a hearing officer from the Division of Administrative Hearings.
PROCEDURAL BACKGROUND
On March 31, 1987, the Department filed a Notice of Violation and Orders for Corrective Action (NOV) against the
respondents. The NOV was amended on October 7, 1988 (ANOV). The respondents timely filed petitions and a hearing was held on January 21-23, 1992. The hearing officer issued a recommended order which found the respondents not liable under any theory advanced by the Department. A copy of the recommended order is attached as Exhibit A. The Department filed timely exceptions to the recommended order and respondents American Linen Supply Company (American Linen), George A. Belleau and Ann F. Belleau (the Belleaus), and Crown Laundry and Dry Cleaners, Inc. (Crown) filed untimely exceptions. Respondent Sketchley Services, Inc., now known as Jura Services, Inc., (Jura) filed a response to the Department's exceptions.
Upon a review of the Recommended Order and the record of the case, I entered an Order of Remand on February 3, 1993, requesting the hearing officer make additional fact findings and clarifications after reviewing the Department's correction of his erroneous legal conclusions in my Order of Remand. On July 13, 1994, the hearing officer entered his Order on Remand without conducting a subsequent hearing, a copy of which is attached as Exhibit B. The Department timely filed exceptions to the Order on Remand.
Subsequent to the entry of the Order on Remand, the parties agreed to abate the case in order to determine whether the site would be eligible for the Department's dry cleaner cleanup program. At this time the parties have determined that the site is not eligible and requested that the Department enter a final order. Jura filed responses to the Department's exceptions to the Order on Remand. The other respondents adopted Jura's responses. Through this Final Order, I am vacating my earlier order abating this case.
ORDER ON REMAND
In the Order of Remand, I requested the hearing officer make certain supplementary findings of fact based upon clarifications of the law on which thought the hearing officer was confused. In addition, I made certain preliminary findings of fact and conclusions of law concerning whether the respondents caused or contributed to the violations of water quality standards; whether tetrachloroethylene (PCE) was discharged from the surge tank during periods of ownership or operation of each of the respondents; whether the corrective actions are reasonable; whether the Department's costs and expenses were reasonable; and whether the knowledge of the respondents is a necessary element of the Department's causes of action.
In the Order of Remand I found the Department could prove a violation under the proper interpretation of 403.161(1)(a), F.S., by demonstrating that a particular respondent discharged PCE in an amount which exceeded the maximum contaminant level for PCE; by demonstrating that a hazardous substance had been discharged during a respondent's ownership or operation; or by demonstrating that the discharge of PCE during a respondent's ownership or operation violated Rule 62-520.400, F.A.C., commonly referred to as the "free-from" rule. As discussed below, in this case the Department proved that in 1987 and each of the subsequent years it was sampled, the MCL for PCE was violated in Monitoring Well 20 (MW-20).
I also found that the Department was not required to prove that the PCE levels were solely the result of discharges from the Crown facility under the provisions of 403.141(2), F.S. Indeed, the law provides that no person, by itself or in combination with the wastes from other sources, may violate a groundwater quality standard. In this case, the Department could meet this burden by showing that PCE contamination could be additive, i.e., that the discharge from one respondent could combine with another discharge to cause a violation of the MCL; that a particular respondent actually discharged PCE in an amount that exceeded the MCL; or that the respondent discharged an unknown amount of PCE, but because the Department has proved there is no other source of contamination, the only reasonable inference is that the respondent is the source of the PCE MCL exceedence.
I requested the hearing officer make three specific findings of fact: Did the Department demonstrate that the Crown facility discharged PCE to the ground water, and did the discharge result in a violation of the applicable MCL at one or more of the wells tested; did the Department demonstrate that the surge tank discharged PCE to the ground water during the periods of ownership or operation of each of the respondents; and did the hearing officer accept or reject the Department's proposed finding of fact number 78?
The hearing officer issued his Order on Remand on July 13, 1994. The hearing officer found in response to my request that while the Department proved that dissolved PCE was released "from the Crown facility in some undetermined quantity at some undetermined time," the Department had not proved when the leaks started or occurred or what concentrations were discharged. Further, the hearing officer found that there was no evidence to establish a
finding that a sufficient amount of dissolved PCE was discharged to violate the MCL for PCE. Because the Department failed to establish that Crown was the only nearby source of PCE, he could not make the inference that the Crown facility was the source of contamination in the wells where the MCL was exceeded.
In response to the second question, the hearing officer disagreed with my inference that the surge tank was a continuing source of contamination, at some rate, since 1974 or 1975. Instead, he found that the evidence only supported a finding that PCE was in the tank in 1974 and in 1987, but not in the intervening years, since the surge tank was repeatedly and thoroughly cleaned out. Without the continuous presence of PCE, the surge tank could not continuously discharge PCE to the ground water from 1974 through 1987.
In addition, the hearing officer rejected the Department's proposed finding of fact number 78.
Finally, the hearing officer found that if the respondents are found liable to the Department, the costs and expenses incurred by the Department were reasonable.
THE DEPARTMENT'S CAUSES OF ACTION
The ANOV contains a number of alternative theories of recovery and each theory has a different set of elements which must be proven. As a preliminary matter and in an effort to avoid confusion, I will describe the Department's theories of recovery and the elements of each as they pertain specifically to this case.
Section 403.161(1)(a), F.S.
Section 403.161(1)(a), F.S., provides that it is a violation of Chapter 403 for any person "to cause pollution, except as otherwise provided in this chapter, so as to harm or injure human health or welfare, animal, plant or aquatic life or property." As described in detail in the Order of Remand, the Department can meet its burden of proving a violation of this section by proving that a respondent has discharged a contaminant which alone or in combination with other discharges violates the maximum contaminant levels established for that contaminant. 403.141(2), 403.088(1),
F.S. The proof of a violation of this section may be done in a number of ways. In this case, the Department attempted to prove a violation of 403.161(1)(a), F.S., by proving a violation of Rules 17-520.400 and 17-520.420, F.A.C.
In the situation presented here, there is no issue concerning a discharge of PCE by one of the respondents combining with another PCE discharge to create a violation of 403.161(1)(a), F.S. The hearing officer assumes, I think correctly, that because of the nature of dissolved PCE, discharges of PCE cannot be additive. In other words, a discharge of 2 ppb dissolved PCE combined with a discharge of 2 ppb dissolved PCE will equal a total concentration of 2 ppb dissolved PCE, not 4 ppb as one might intuitively assume. In this particular case and based upon the evidence presented, the hearing officer correctly found that to prove a violation of 403.161(1)(a), F.S., against a particular respondent, the Department had to prove that respondent discharged PCE in an amount greater than the MCL for PCE at the time of the discharge. (Finding of fact number 17 in the Recommended Order.)
As stated above, the alleged violations of Rules 17-
520.400 and 17-520.420, F.A.C., are an integral part of the Department's 403.161(1)(a), F.S., claim in this case. Rule 17-520.420, F.A.C. provides that in addition to the minimum criteria established in 17-520.400, F.A.C., ground waters classified as G-11 must meet the primary and secondary drinking water standards in Rules 17-550.310 and 17-550.320,
Rule 17-550.310(2)(a), F.A.C., sets the standard for PCE (tetrachloroethene) at .003 milligrams per liter (which is the same as 3 micrograms per liter or 3 parts per billion (ppb)). The levels in this rule are commonly referred to as the maximum contaminant levels, or MCLs.
Rule 17-520.400, F.A.C., i.e., the "free-from" rule, provides that all ground water in the state at all places and at all times shall be free from discharges that:
are harmful to plants, animals, or organisms that are native to the soil and responsible for treatment or stabilization of the discharge relied upon by the department permits; or
are carcinogenic, mutagenic, teratogenic, or
toxic
to human beings, unless specific criteria are established
for such components in Rule 17-3.404; or
are acutely toxic to indigenous species of significance to the aquatic community within surface waters affected by the ground water at the point of contact with surface waters; or
pose a serious danger to the public health,
safety,
or welfare; or
create or constitute a nuisance; or
impair the reasonable and beneficial use of adjacent
waters.
As discussed in detail in the Order of Remand, proof of a violation of the MCL is by definition proof of pollution. Rule 17-520.300(3), F.A.C. In this case, the Department must prove that a respondent discharged dissolved PCE in excess of the MCL in order to prove a violation of Rule 17- 520.420, F.A.C. Also, proof of a violation of Rule 17- 520.400, F.A.C., would meet the definition of pollution and constitute a violation of 403.161(1)(a), F.S. Generally, proof of a violation of Rule 17-520.400, F.A.C., requires evidence concerning how a contaminant meets one of the listed criteria. However, the presence of hazardous substances in the ground water is per se evidence of a violation of the rule. Department of Environmental Regulation v. Safety Keen Corp., 92 ER FALR 197 (1992).
The remedies available to the Department if it proves a violation of 403.161(1)(a), F.S., include the right to require corrective action to address the contamination under 403.121, F.S., and recovery of the Department's costs and expenses, and damages under 403.141(1), F.S.
Section 403.161(1)(b), F.S.
This section provides that it is a violation of Chapter
403 for any person to violate, among other things, any Department rule. In this case, the Department is alleging that by exceeding the MCL for PCE and violating the "free- from" rule, the respondents have violated this section. The remedies available for a violation of this section are the same as those available for a violation of 403.161(1)(a), F.S.
Section 403.727(4), F.S.
The Department has also alleged that it is entitled to recover its costs and expenses under s 403.727(4), F.S. That section is patterned on, and closely tracks the language of the federal Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA). Proof of its applicability does not require a violation of any rule or statute. Rather, the provision establishes classes of persons who are liable to the Department for natural
resource damages and the Department's costs and expenses incurred in response or remedial actions upon the occurrence of certain conditions. In short, s 403.727(4), F.S., provides that the present owner and present operator, and the past owner or operator, of a facility at the time of disposal of any hazardous substance are liable to the Department.
The statute applies regardless of when the hazardous substance was disposed. Federal courts have consistently held that CERCLA is remedial and may be retroactively applied. Florida Power and Light Co. v. Allis Chalmers Corp., 893 F.2d 1313 (11th Cir. 1990); U.S. v. Northeastern Pharmaceutical and Chemical Co., Inc., 810 F.2d 726, 733
(8th Cir. 1986).
Only the terms "hazardous substance" and "disposal" are defined in s 403.703, F.S. Therefore, the Department must look to the concomitant federal statute in construing the other pertinent terms "facility," "owner," and "operator." Pasco County School Bd. v. Fla. Public Employees Relations Commission, 353 So.2d 108, 116 (Fla. 1st DCA 1 983). CERCLA must be construed liberally because it is designed to protect public health and the environment. Wilshire Westwood Assoc. v. Atlantic Richfield, 881 F.2d 801 (9th Cir. 1989).
The parties stipulated that PCE is a hazardous substance. Courts have interpreted the term hazardous substance to include any amount of the listed substance, regardless of the toxicity of the amount discharged. There is no threshold amount which must be discharged before a substance can be described as a hazardous substance. U.S.
v. Alcan Aluminum Corp., 964 F.2d at 252, 260 (3rd Cir. 1992). This is a significant difference from the threshold requirements for proving a violation of the MCL. Under s 403.703, F.S., a discharge of any amount of PCE can establish liability, while only a discharge of 3 micrograms per liter or greater will establish a violation of s 403.161, F.S.
"Facility" is defined in 42 U.S.C. s 9601 as "any building, structure, installation, equipment, pipe or pipeline (including any pipe in a sewer or publicly owned treatment works,), . . . or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located In order to establish an area is a facility, the plaintiff need only show that a hazardous substance has been placed or otherwise come to be located there. 3550 Stevens Creek Associates v.
Barclays Bank, 915 F.2d 1355, 1360 (9th Cir. 1990). "Owner or operator" is defined in 42 U.S.C. s 9601 as any person owning or operating a facility. The courts have clarified that "operator" is one who had authority to control the cause of the contamination at the time the hazardous substances were released. Nurad Inc. v. William E. Hooper & Sons, Inc., 966 F.2d 837 (4th Cir. 1992), cert. denied., U.S. 113 S.Ct. 377, 121 L.Ed.2d 288 (1992); Kaiser
Aluminum & Chemical Corp. v, Catellus Development ,1992 WL 259374 (9th Cir. 1992).
"Disposal" is defined in s 403.703, F.S., as "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 ground water's, or otherwise enter the environment." Disposal has been construed under CERCLA to encompass the discharge of PCE to a sewer line which then leaked or had the potential to leak to the ground water.
Westfarm Associates, Ltd. Partnership v. Washington Suburban Sanitary Com'n, 66 F.3d 669 (4th Cir. 1995); Lincoln Properties Ltd. v. Higgins, 823 F. Supp. 1528 (E.D. Calif.
1992). In addition, courts have found a release within the meaning of CERCLA in cases involving the spilling of fluids on the floor of an industrial plant, Amland Properties Corp.
v. Aluminum Co. of America, 711 F. Supp. 784 (D. N.J. 1989); the leaching of chemicals from septic tanks, State of Vermont v. Staco, Inc. 684 F. Supp. 822 (D. Vt. 1988), vacated in part, 31 ERC 1814 (D. Vt. 1989), the depositing of hazardous substances into underground pipes or structures, Westwood Pharmaceuticals v. National Fuel Gas Distribution Corp., 737 F. Supp. 1272 (W,D. N.Y. 1990), aff'd., 964 F.2d 85 (2nd Cir. 1992); and the discharging of PCE-contaminated wastewater through a floor drain into a dry well, U.S. v. A & N Cleaners and Launderers, Inc., 788 F. Supp. 1317 (S.D. N.Y. 1992).
Further, liability for disposal is not limited to the initial disposal of the hazardous substance. An owner of a facility which continues to discharge hazardous substances to the environment will be liable even though the tank and hazardous substances were placed by the previous owner.
Nurad. The movement or dispersal of hazardous substances can constitute a separate release. New York v. Shore Realty, Inc. , 759 F.2d 1032 (2nd Cir. 1985).
Liability under CERCLA is joint and several between all defendants. Affn, 269. Therefore, under Pasco County
School Bd. liability under s 403.727(4), F.S., is also joint and several. While a plaintiff must prove the defendant disposed of a hazardous waste, White v. County of Newberry South Carolina, 985 F.2d 168 (4th Cir. 1993), a plaintiff need not prove a nexus between the waste sent to a facility by a particular defendant and the environmental contamination. The plaintiff must prove that the release of hazardous substances was a substantial factor in causing the plaintiff to incur costs. U.S. v. A&N Cleaners and Launderers, Inc., 788 F.Supp. 1317, 1325 (S.D.N.Y. 1992).
There is no requirement to "fingerprint" a waste. United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1154 (1st Cir. 1989). This means that a plaintiff must prove only that hazardous substances once in the custody of a defendant are the same contaminants which caused the plaintiff to incur response costs. Traditional tort notions of proimate cause do not apply in CERCLA. Alcan, at 265. "The only required nexus between the defendant and the site is that the defendant have dumped his waste there and that the hazardous substances found in the defendant's waste are also found at the site." United States v. Wade, 577 F.Supp. 1326, 1333 (E.D. Pa. 1983). It is up to the defendant to prove that its hazardous substances could not have caused the contamination. Monsanto, 858 F.2d 169.
In order to prove liability under s 403.727(4), F.S., the Department must show that the Crown facility constitutes a "facility" under CERCLA, that each respondent is either the present owner or operator of that facility, or that they owned or operated the facility at the time PCE was deposited, discharged, dumped, spilled or placed so that the PCE may have been emitted or discharged to the groundwater. The Department is not required to prove that the PCE discharged by a particular respondent was the PCE which actually caused a violation of the MCL.
There is an issue raised in this proceeding as to whether the Department adequately alleged the applicability of s 403.727(4), F.S., in the ANOV. I find that it was adequately alleged. Clearly, the Department was seeking natural resource damages under that section and was also seeking costs and expenses. The parties stipulated that PCE was a hazardous substance. That term has no efficacy in this case other than in a claim under s 4.03.727(4), F.S. Since the issues of proof and the applicable defenses are identical under s 403.727(4), F.S., regardless of whether the Department is seeking natural resource damages or costs and expenses or both, the respondents were not prejudiced by
a missing reference in the ANOV for costs and expenses under s 403.727(4), F.S.
Remedies
The Department has requested a number of remedies against the respondents. As indicated above, the causes of action advanced by the Department have different remedies. The remedies available for a s 403.161, F.S., violation are injunctive relief under s 403.131, F.S., and the recovery of the Department's costs and expense in tracing and abating the pollution under s403.141(1), F.S. The remedy available under s 403.727(4), F.S. is the recovery of the Department's costs incurred in a removal or remedial action, and damages for the injury to, loss or destruction of natural resources.
SUMMARY OF THE HEARING OFFICER'S FINDINGS
As background for my rulings, I set forth a summary of the hearing officer's pertinent findings in this case.
In 1974 and 1975, approximately four to five gallons of PCE was spilled in the Crown facility and some portion of that entered the surge tank. During that time period, there were an undetermined number of boil-overs from the dry- cleaning machines which sprayed some quantity of PCE onto the floor which was hosed off into the floor drains and then to the surge tank. The parties stipulated that 1974 and 1975 were the only years in which PCE was used as part of the operation of the Crown facility. The parties also stipulated that the surge tank was cleaned a number of times since 1974. The Department proved that PCE entered the surge tank during this time and proved that PCE was present in the surge tank. However, the hearing officer found specifically that the Department did not prove that the PCE in the tank in 1974 and 1975 was the same PCE found in the tank in 1987. Although there was no evidence presented to support a finding that PCE was discharged to the surge tank at any time other than in 1974 and 1975, the hearing officer refused to make the inference that PCE was in the tank continuously from 1974 through 1987.
The surge tank leaked 6.5 gallons a day when it was tested in 1991. It leaked at some rate prior to that time, but the exact rate is unknown. The Department proved that dissolved PCE leaked from the tank at some undetermined quantity at some undetermined time. The Department did not prove that PCE was discharged from the surge tank during any particular respondent's ownership of the Crown facility.
Also, because of the nature of dissolved PCE, a respondent can not contribute to a violation of the maximum contaminant level for PCE if it discharges PCE in an amount lower than the maximum contaminant level. Since the Department did not prove at what levels PCE was discharged, it did not prove that PCE was discharged in excess of the maximum contaminant level.
Ground water in the area of the Crown facility generally flows north to south. Using estimates of the rate of ground water flow, Dr. Mercer testified it would take 37 years for PCE discharged from the surge tank to reach MW-3, thus, the PCE found in MW-3 would have been released prior to 1969 when the surge tank was built, or from another location. MW-3 is approximately 305 feet from the surge tank as measured on Exhibit 31-B, a scale drawing of the area surrounding the Crown facility. The velocity of the ground water is therefore approximately 8.24 feet per year.
Although the Department proved that PCE was discharged from the surge tank in some amount at some time, it did not prove that the levels of PCE found in any of the wells tested by the Department were caused by the respondents.
Because dissolved PCE contamination cannot be additive and the Department did not prove that PCE in excess of the MCL was discharged from the surge tank and the Department did not prove that there were no other likely sources of PCE that could have caused the violations, the Department did not prove that the Crown facility was the source of any of the PCE MCL violations discovered by the Department.
RULINGS ON EXCEPTIONS
In my Order of Remand, I reserved ruling on the parties' exceptions and responses until this Final Order was rendered.
The Department's Exception 1.
The Department objects to the hearing officer's finding of fact number 9 that the respondents had no knowledge that PCE was present in the surge tank. The parties stipulated the respondents had no actual knowledge the PCE had been deposited in the surge tank. The exception is rejected.
However, I agree with the Department that knowledge is not relevant in this action and that Sunshine Junior Stores.
Inc. v. State, 556 So.2d 1177 (Fla. 1st DCA 1990) is not applicable as provided in the Order of Remand.
The Department's Exception 2.
The Department objects to the implication in the hearing officer's finding of fact number 10 that PCE was not stored at the facility during American Linen's ownership. I believe the hearing officer meant that PCE was stored for use in a dry cleaning operation. The exception is rejected.
The Department's Exceptions 3, 4 and 5.
The Department objects to the hearing officer's findings of fact number 14, 15 and 16 that the Department did not prove that the PCE in the ground water constituted pollution so as to harm human health, welfare, animal, plant, or aquatic life, or property. The Department's exception is accepted to the extent provided herein and in the Order of Remand. As discussed above and in the Order of Remand, the Department proved the MCL for PCE was exceeded in MW-20 in 1987 (Testimony of Clark, T129-132, and DER Exhibits 25 and 25-A, the accuracy of which were stipulated to in the Joint Prehearing Stipulation number 20), and 1991 (DER Exhibits 28 and 29, the accuracy of which were stipulated to in the Joint Prehearing Stipulation number 20). The Department's proposed findings of fact 56 and 59 were accepted by the hearing officer in the Recommended Order to the extent they established the levels of PCE in
MW-20. A violation of the MCL constitutes pollution by
definition. Rule 17-520.300(3), F.A.C. The Department's Exception 6.
The Department objects to the hearing officer's finding of fact number 17 which characterizes the Department's burden of proof for violations of Rule 17-3.404(1)(a),
F.A.C. Although the Department correctly interprets the statutory standard for liability, the hearing officer's interpretation of the MCL for PCE in this particular case is correct: for dissolved PCE, the concentrations of two or more discharges are not additive. Therefore, if a Respondent discharges PCE in a concentration lower than the MCL, that Respondent cannot contribute to a violation of the MCL. The exception is rejected.
The Department's Exception 7.
The Department objects to the hearing officer's finding of fact number 19 which summarizes the Department's burden of proving a violation of the maximum contaminant level.
This exception is rejected. The hearing officer's summary of the Department's burden of proof only applies to a
violation of the maximum contaminant levels for ground water and, hence, a violation of s 403.161(1), F.S. However, certain elements may be proved by inference. The hearing officer's description of the burden of proof on the maximum contaminant level is not a correct summary of the Department's burden of proving a claim under s 403.727(4), F.S.
The Department's Exception 8 and 9.
The Department objects to the hearing officer's findings of fact number 23 and 24 which describes the discharges of PCE at the facility due to boil-overs from the dry cleaning machine. The record reflects that Mr. Mathias and Mr. Hedrick gave somewhat contradictory testimony about the number of boil-overs and the amount of PCE lost due to the boil-overs. The hearing officer's assessment of the testimony is based upon substantial competent evidence. The exception is rejected.
The Department's Exceptions 10, II and 12.
The Department objects to the hearing officer's findings of fact number 25, 26 and 27 which concern the amount of PCE which ended up in the surge tank. After reviewing the record, I find the hearing officer's paraphrasing of the testimony within his discretion. While his description of the actual testimony is not exact, his characterizations are a reasonable assessment of the testimony. The evidence showed that there was one spill of
4 to 5 gallons of PCE and a number of boil-overs which contributed an unquantified amount of PCE to the surge tank. While there could have been other spills, the Department presented no evidence to that effect. The hearing officer's conclusion was reasonable based upon the evidence. The exceptions are rejected.
15 The Department's Exception 13.
The Department takes exception to the hearing officer's finding of fact number 28 to the extent it misparaphrases the parties' stipulation. The parties stipulated that the surge tank was constructed of porous material and had cracks and fissures in its walls in 1987, but there was no evidence presented by the Department that there were cracks and fissures in the surge tank prior to 1987. The hearing officer could find that the evidence presented did not establish there were cracks and fissures at the time of construction or soon thereafter. The Department's exception to the hearing officer's finding that no evidence
established what the leakage rate from the surge tank might have been before 1991, is well taken. Mr. Ferst testified that at a minimum the tank leaked since its construction because it was constructed of porous materials. While he was unsure of the exact rate, the fact that it leaked ta some rate was undisputed. Therefore, I accept the exception to the extent that the only evidence presented at hearing was that the surge tank must have leaked at some rate since the time of its construction. The rest of the Department's exception is denied.
The Department's Exception 14.
The Department takes exception to the hearing officer's finding of fact number 29 finding that Mr. Clark was neither offered nor accepted as an expert. I accept this exception because the rules of evidence do not require that a witness be offered as an expert in order to give opinion testimony. Chamblis v. White Motor Corp., 481 So.2d 6 (Fla. 1st DCA 1985). It is the judge's responsibility to determine whether a witness is an expert prior to rendering an opinion. By accepting the opinion testimony at hearing, the hearing officer implicitly accepted the expertise of Mr.
Clark to render the opinion. It would be unfair to accept the opinion and later declare the proponent unqualified, thereby denying the Department the ability to rehabilitate the witness. The hearing officer can weigh the relative expertise of a witness in evaluating his opinions.
The Department's Exception 15.
The Department takes exception to the hearing officer's finding of fact number 30 that the Department did not prove that enough PCE was discharged from the surge tank to violate the MCL for PCE. I accept this exception only to the extent that it is clear from the record that DEP proved the MCL violations found in MW-20 were caused by discharges from the surge tank. For all other monitoring wells and sample locations, I accept the hearing officer's findings that the Department failed to meet its burden of proof. I also find the Department failed to prove that discharges of PCE from the surge tank in sufficient quantities to violate the MCL occurred at any time earlier than in the last couple of years prior to 1987.
By accepting the Department's exception as to MW-20, I am rejecting the hearing officer's finding of fact on that issue as being unsupported by competent substantial evidence. I realize that a factual finding is in most cases binding on the agency. Pasco Co. School Bd. v. Florida
Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1978). However, a review of the record fails to reveal any substantial competent evidence to support a finding that MW-20 was not contaminated by discharges from the surge tank sometime prior to 1987.
The hearing officer found that some PCE was discharged at some time from the surge tank. However, the hearing officer inferred that none of the monitoring wells were proven to be affected by the discharge. The hearing officer did not specifically address MW-20 which all witnesses agreed was contaminated, most likely, with PCE discharged from the surge tank.
MW-20 was located approximately 10 to 20 feet from the surge tank as measured on Exhibit 31-B, a scale drawing. (Exhibit 31-B is reduced and attached as Exhibit C to this Final Order.) Exhibit 31-B also reveals that there is no other possible source of PCE between the well and the surge tank (designated "Discharge Tank" on the exhibit). The evidence showed that the shallow monitoring wells directly upgradient of the surge tank (MW-6, MW-11, MW-21, and MW-22) were uncontaminated. If those wells were uncontaminated and MW-20 was contaminated, the source of the contamination must have come from the surge tank. This is the only reasonable inference.
The reasonableness of this inference was clear to all the experts at the hearing. All the witnesses testified that, in their opinion, the PCE contamination in MW-20 came from the Crown facility. Dr. Mercer, an expert offered by Jura, testified as follows (T 568):
Mr. Chisolm, Q: Thank you. Now, you are not saying,
are Non- in
you, Dr.Mercer, that because there was no DNAPL [Dense Aqueous Phase Liquid], that the contamination picked up monitoring well 20 could not have come from Crown
Laundry,
are you?
Dr. Mercer, A: No, I am not.
Q: In fact, wouldn't you agree it is more probable than not
that this is coming from Crown Laundry, based on the
data
you have looked at?
A: Yes.
Q: So it is reasonable to me that if this well is clean and
this well is clean and this one is dirty, that Crown is
the
the
source [of the contamination in MW-20].
A: There is a lot of other evidence. In taking all of evidence into consideration, yes, I would agree with
that.
Based upon the evidence presented, there could be no likely source other than the surge tank of the PCE contamination in MW-20. Jura responded to this exception by arguing the hearing officer could reasonably infer "that if FDEP failed to identify a source of PCE responsible for the contamination in PW-9, then FDEP may have also failed to identify the source 18 at MW-20." If that was the hearing officer's basis for failing to find contamination in the absence of any contrary evidence, it is rejected as failing to comport with the essential requirements of law. The fact that the Department failed to prove a connection between PCE discharges from the surge tank and PCE contamination in PW- 9, cannot affect the validity of the evidence proving the contamination in MW-20 came from the surge tank.
The Department's Exceptions 16, 17, 18, 19 and 20.
The Department takes exception to the hearing officer's findings of fact number 31, 32, 33, 34 and 35 which concern the behavior of PCE in the surge tank These findings of fact rely heavily on the opinions of Dr. Mercer, which are based on a number of suppositions about the condition and contents of the surge tank which may or may not have been accurate.
I find that given the evidence before the hearing officer concerning the conditions and contents of the surge tank, his findings of fact on these issues are based upon substantial competent evidence and the exceptions are rejected.
The Department's Exception 21.
The Department takes exception to the hearing officer's finding of fact number 36 which provides that Mr. Ferst could not determine when the tank started leaking. In fact, Mr. Ferst testified that the tank started leaking immediately because it was made of concrete which is porous
to some degree. However, Mr. Ferst could not be certain at what rate the tank leaked at that time and all of his opinions concerning the leak rate of the tank prior to 1991 were assumptions based upon the general nature of construction and concrete. I think it was reasonable for the hearing officer to discount the value of Mr. Ferst's testimony concerning the amount of PCE discharged from the tank at any particular time. However, I accept the Department's exception to the extent the only evidence presented clearly demonstrated that the tank began leaking immediately, albeit at an unknown rate.
The Department's Exception 22.
The Department takes exception to the hearing officer's characterizations of the Department's burdens of proof in finding of fact number 37. The exception is accepted as set forth above in the previous discussion of the Department's causes of action. The Department also excepts to the hearing officer's finding that Dr. Mercer concluded the Crown facility was not the likely source of any of the contamination found by the Department. As described above, the hearing officer's finding that none of the monitoring wells were contaminated by discharges from the surge tank was rejected as unsupported by competent substantial evidence. In regards to MW-20 which Dr. Mercer concluded was likely contaminated with PCE from the surge tank, this exception is also accepted.
The Department's Exception 23.
The Department takes exception to the hearing officer's finding of fact number 38 concerning the criteria used by the Department to choose monitoring well locations. The finding does not state that ease of accessibility was the exclusive criteria used and the exception is rejected.
The Department's Exception 24.
The Department takes exception to the hearing officer's finding of fact number 39 concerning the travel time of PCE from MW-20 to MW-3. However, as described above in the summary of the hearing officer's findings, it is a simple matter of measurement and arithmetic to determine the rate of ground water flow using the findings of the hearing officer. The hearing officer's underlying findings of fact concerning the travel time of PCE in the ground water are based upon substantial competent evidence and the exception to those underlying facts is rejected.
The Department's Exception 25.
The Department takes exception to the hearing officer's finding of fact number 42 concerning the contamination in
PW-9. I find that the hearing officer's conclusion that the Department did not prove that the pumping of PW-9 was sufficient to draw contaminants from the Crown facility to be acceptable based upon the evidence presented. The exception is rejected.
The Department's Exception 26.
The Department takes exception to the hearing officer's finding of fact number 43 concerning whether the Department proved the Crown facility was a source of PCE. As discussed above in response to the Department's Exception 15, find that the Department did prove the facility was the likely source of PCE contamination in MW-20. The Department also excepts to the hearing officer's finding that the Department ignored the possibility of other sources and concentrated on proving the Crown facility was the source. The Department could have attempted to prove that Crown was the source of contamination by either proving there were no other possible sources other than the Crown facility, or by proving that the Crown facility was a source. However, the Department does not have to prove both. In the case of MW- 20, the Department proved that the Crown facility was the source of contamination by proving there were discharges of PCE from the surge tank and there were no other likely sources. The exception is granted as to MW-20 and rejected in all other aspects.
The Department's Exception 27.
The Department takes exception to the hearing officer's finding of fact number 44 concerning the contamination in the public supply wells. The exception is rejected because the hearing officer's finding of fact is supported by substantial competent evidence.
The Department's Exception 28.
The Department takes exception to the hearing officer's finding of fact number 45 concerning liability under s 403.727(4). For the reasons stated above, s 403.727(4) is by necessity applied to acts which occurred before the passage of the statute. The hearing officer inferred from the evidence presented by the Department "that a certain amount of dissolved PCE in laundry waste water leaked from the tank," but found that it did not establish when the PCE
was discharged. However, as I found in response to the Department's Exception 21, the uncontradicted evidence at hearing was that the tank has been leaking continuously since it was first constructed in 1969. The hearing officer is correct in finding that the rate at which it leaked is unknown, but the fact it leaked is acknowledged by everyone, including the hearing officer. I also reject the hearing officer's conclusion of law that s 403.727(4), F.S., requires a finding that PCE leaked from the tank. The definition of "disposal" in s 403.703, F.S., clearly encompasses placing a hazardous substance into the land or water such that it may be emitted or discharged to the ground water or environment. Proof of actual discharge to the environment is not a necessary element for proving liability under s 403.727(4), F.S. In this case, the PCE was discharged to the surge tank which leaked. It was therefore placed in a situation where it may be emitted or discharged to the ground water or the environment. In fact, in regard to MW-20, the Department proved an actual discharge to the ground water from the surge tank. The exception is granted.
The Department's Exception 29.
The Department takes exception to the hearing officer's finding of fact number 46 concerning the applicability of the hazardous waste rules. My review of the ANOV confirms that the respondents did not have adequate notice of allegations concerning the hazardous waste rules. The exception is rejected.
The Department's Exception 30.
The Department takes exception to the hearing officer's finding of fact number 47 concerning the notice of the respondents of the PCE in the surge tank. This issue was addressed in the Order of Remand. To the extent provided in the Order of Remand, the exception is accepted.
The Department's Exception 31.
The Department takes exception to the hearing officer's conclusion of law number 49 concerning proper citations and the Department's burden of proof. I accept that the proper statutory citation should be s 403.121, F.S., and that the rule citations should be Rules 17-522.700, 17-520.400, and 17- 520.420, F.A.C. The Department is correct that the respondents have the burden of proving divisibility.
However, in this case, since the Hearing Officer found and I accept his finding, that for dissolved PCE, the
concentrations are not additive, the Department had the burden of proving each respondent caused a violation of the MCL to prove a violation of s 403.161 and the groundwater rule. As a practical matter, the only divisibility that could be proven by the respondents is that some portion of the contamination plume was or wasn't their responsibility.
The Department's Exceptions 32 and 33.
The Department takes exception to the hearing officer's conclusions of law number 51 and 52 concerning proof of a violation of s 403.161(1 )(a). For the reasons outlined above, the exception is granted.
The Department's Exception 34.
The Department takes exception to the hearing officer's conclusion of law number 53 which concerns the contamination in wells PW-9 and MW-3. For the reasons set forth above, this exception is rejected.
The Department's Exception 35.
The Department takes exception to the hearing officer's conclusion of law number 55 finding that dissolved PCE is not a hazardous substance. This is a question of law. The federal law upon which the definition of hazardous substance is derived makes no distinction between PCE in a pure or dissolved form. I reject the hearing officer's conclusion that dissolved PCE is not a hazardous substance and accept the exception.
The Department's Exception 36.
The Department takes exception to the hearing officer's conclusion of law number 56 finding that dissolved PCE is not a hazardous substance and that the release of PCE caused the Department to incur costs of removal or remedial action. The issue concerning the characterization of PCE is addressed in the response to the Department's Exception 35. For the reasons set forth above, I accepted the exception concerning proof under s 403.727(4), F.S. The Department has the burden to show that the respondents are liable under this statute. It also has the burden to demonstrate the costs and expenses were properly incurred. It was not required to exclude all other possible sources of PCE contamination.
The Department's Exception 37.
The Department takes exception to the hearing officer's conclusion of law number 57 holding that the respondents did not have adequate notice of the Department's claim under s 403.727(4), F.S. For the reasons above, the exception is granted. The respondents had adequate notice of the claim and their due process rights were not violated.
The Department's Exceptions 38 and 39.
The Department takes exception to the hearing officer's conclusions of law number 58 and 59 concerning the retroactive application of s 403.727(4), F.S. For the reasons stated above, I accept the exception.
24 The Department's Exception 40.
The Department takes exception to the hearing officer's conclusion of law number 60 concerning the need to prove knowledge or notice in order to prove a violation of s 403.161(1)(a), F.S. I addressed this issue in depth in the Order of Remand. The exception is accepted as provided therein.
The Department's Exception 41.
The Department takes exception to the hearing officer's conclusion of law number 61 concerning the liability of respondent Jura for the actions of one of its predecessor corporations. The hearing officer found that a decision on the liability of Jura "need not be reached because of the basic failure of proof of the subject violations." Because of my finding of liability under s 403.727(4), F.S., for the discharges of PCE in 1974 and 1975, the issue of successor liability must be reached. The parties stipulated that Rentex was incorporated into Jura through a series of mergers. The settled rule is that a corporation which acquires assets through a merger or series of mergers takes the liabilities of the merged corporation. U.S. v. Carolina Transformer Co., 978 F.2d 832, 838 (4th Cir. 1992); Louisiana-Pacific Corp. v. ASARCO Inc., 909 F.2d 1260 (9th Cir. 1990). Applying that settled rule in this case, the issue of successor liability can be reached as a matter of law, and I find that Jura assumed the liability of Rentex.
Therefore I accept the exception as to the successor
liability of Jura. However, I accept the hearing officer's finding that the Department did not prove the liability of American Linen based upon a "continuity of enterprise"
theory of successor liability. Crown, the Belleaus and American Linen's Exceptions to the Recommended
Order
These exceptions were untimely and will not be considered.
The Department's Exceptions to the Order on Remand
The Department's first exception is to the hearing officer's conclusion that the Department did not demonstrate that the PCE discharged from the Crown facility resulted in a violation of the MCL for PCE at one or more of the wells tested. As described above, I reject that finding as it applies to MW-20. The hearing officer inferred that some dissolved PCE was discharged from the surge tank, but also found that the Department did not exclude the possibility that other sources of PCE could have caused the MCL violations in the wells tested. Based upon this finding, the hearing officer concluded that other sources of PCE could have caused the violations and therefore the Department failed to prove the source of the PCE was the surge tank. I agree with the Department to the extent that it argues the hearing officer has imposed an inappropriate burden; the Department does not have the burden to exclude all other possible sources of contamination. It must meet an initial burden of proving that the surge tank was a source of PCE contamination, which it did in this case. It is then up to the respondents to prove that there were other sources which could have caused or contributed to the MCL violations discovered. The respondents did not meet this burden.
The Department also excepts to the hearing officer's finding that the surge tank leaked PCE continuously from 1974 through 1987. As discussed above, I believe this is a permissible inference, however, the hearing officer specifically refused to make this inference. I accept his refusal as an acceptable interpretation of the evidence.
The Department next excepts to the hearing officer's finding that the Department failed to demonstrate during which periods of ownership PCE was discharged. As discussed above, the importance of this issue depends on particular cause of action alleged. In an action under s 403.161(1), F.S., it is important to know at what point PCE was discharged from the surge tank in concentrations which exceeded the MCL. Based upon the hearing officer's findings and the findings in this final order, it is clear the Department only established such a discharge during the
ownership and operation of the facility of the Belleaus and Crown Laundry. A discharge of PCE from the tank in any amount can also create a violation of s 403.161(1 )(a), F.S., since I have previously held that the presence of a hazardous substance in the environment in any concentration constitutes "pollution" by definition. Department of Environmental Regulation v. Safety
Kleen Corporation. However, by accepting the hearing officer's refusal to infer that PCE was present in the surge tank at any time other than 1974-75 and 1987, I can not determine that PCE was discharged from the tank during the ownership of the facility by any other the other respondents.
CONCLUSION
As to the specific causes of action, I make the following conclusions.
Section 403.161(1)(a), F.S.
Based upon the my conclusion that the Department proved that discharges from the surge tank caused the violations of the MCL for PCE in MW-20, I find the Department proved a violation of s 403.161(1)(a), F.S. As discussed above, a violation of the MCL is pollution perse. The remaining question is which of the respondents is liable for this violation. The hearing officer found that the earliest violation of the MCL proven by the Department occurred in 1987. Given the most conservative estimates of the velocity of the ground water flow in that area and the location of
MW-20, I conclude that the present owner and operator of the facility is liable under this section. However, based upon the hearing officer's refusal to infer that violations of the MCL for PCE likely occurred earlier than 1987, I cannot conclude that other respondents are liable for this violation.
As appropriate relief, George A. Belleau, Ann F. Belleau and Crown are jointly and severally liable for the implementation of the Corrective Actions for Ground Water Contamination Cases, attached to the ANOV. In addition, under s 403.141(1), F.S., persons liable under s 403.161(1), F.S., are liable to the Department for its costs in tracing and abating the source of pollution. I conclude that the expenses incurred by the Department in tracing the source of pollution are recoverable under s 403.141(1), F.S. The hearing officer found that the costs claimed by the Department, $ 197,423.18, were reasonable and this finding was not excepted to by any of the respondents.
Section 403.161(1)(b), F.S.
For the same reasons described for violation of s 403.161(10(a), F.S., the Belleaus and Crown are liable for violation of s 403.161(1)(b), F.S.. The Department did not prove the other respondents are liable for this section.
Section 403.727(4), F.S.
The Department proved, and the hearing officer agreed, that PCE, a hazardous substance, was discharged from the facility into the surge tank during the ownership and operation of the facility by Rentex. That discharge of PCE to the surge tank coupled with the undisputed porosity of the surge tank, create liability for Rentex, and its successor-in-interest, Jura, under s 403.727(4), F.S. The discharge of PCE to the surge tank placed that PCE in a position that it could be discharged to the environment.
This is enough to satisfy the proof requirements under CERCLA and s 403.727(4), F.S.
The presence of PCE in the surge tank in 1987 also creates liability under this section for the Belleaus and Crown, the owner and operator of the facility during the recent discharges from the surge tank. The finding by the hearing officer that PCE was discharged in some amount from the surge tank is enough to establish liability for the Belleaus and Crown under s 403.727(4), F.S. Jura, Crown and the Belleaus are jointly and severally liable to the Department for its costs incurred in this action. The hearing officer found that amount, $197,423.18, to be reasonable. Therefore, respondents Jura, George Belleau, Ann BeIleau and Crown are jointly and severally liable to the Department for $197,423.18.
Therefore, it is ORDERED:
The Recommended Order and Order on Remand in this case are approved and adopted in their entirety, except as modified by this Final Order.
George Belleau, Ann Belleau and Crown are jointly and severally liable for the implementation of the Corrective Actions for Ground Water Contamination Cases, attached to the ANOV.
Jura, George Belleau, Ann Belleau and Crown are jointly and severally liable to the Department for
$197,423.18.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, F.S., by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within
30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 25th day of May, 1996 in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
VIRGINIA B. WETHERELL
Secretary
Marjorie Stoneman Douglas Building 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-2400
FILING OF ACKNOWLEDGEMENT FILED,
on this date, pursuant to Section 120.52, Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged.
Kathy Carter 5/30/96 Clerk Date
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing has been furnished by hand delivery to the Clerk of the Division of Administrative Hearings, and to P. Michael Ruff, Hearing Officer, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and to Jack Chisolm and Richard Windsor, 3900 Commonwealth
Boulevard, Tallahassee FL 32399-2400, and to the following by U.S. Mail on this 31st day of May, 1996.
David K. Thulman Assistant General Counsel
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-2400
(904) 921-9655
Service List
John W. Wilcox Jeffery C. Bassett
P.O. Box 3273 P.O. Box 2467
Tampa Florida 33601-3273 Panama City Florida 32402- 2467
Harry B. Stackhouse | William D. Preston | ||
P.O. Box 13010 | P.O. 6526 | ||
Pensacola Florida | 32591-3010 | Tallahassee Florida | 32314- |
6526 |
Thomas P. Healy, Jr.
190 S. LaSallee St. Chicago IL 60603
| Issue Date | Proceedings |
|---|---|
| Oct. 22, 1997 | Final Order filed. |
| May 31, 1996 | Final Order filed. |
| Feb. 26, 1996 | Crown And The Belleaus Joinder In And Adoption of Jura Services, Inc,Inc.'s Response to Department of Environmental Protection's Exceptions to Findings In Order On Remand Dated July 13, 1994; Cover Letter filed. |
| Feb. 22, 1996 | American Linen's Joinder in and Adoption of "Jura Services, Inc.'s Response to Department of Environmental Protection's Exceptions to Findings in 'Order on Remand' Dated July 13, 1994" filed. |
| Nov. 07, 1994 | Joint Motion to Hold In Abeyance filed. |
| Jul. 18, 1994 | Ltr. to V. Wetherell from PMR forwarding Exhibits and Transcripts. |
| Jul. 13, 1994 | Order on Remand sent out. |
| Apr. 08, 1993 | (Petitioner) Motion to Establish Schedule And Procedures Regarding Order of Remand filed. |
| Feb. 03, 1993 | Order of Remand filed. (with 3 large maps and 2 boxes of transcripts and exhibits) |
| Nov. 05, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held January 21-23, 1992. |
| Jun. 10, 1992 | Copies of Authorities Cited in PRO w/cover ltr filed. (From Thomas M. DeRose) |
| Jun. 05, 1992 | Order sent out. (request for leave to exceed page limit for proposed recommended order, is hereby waived; and parties are hereby accorded leave to file proposed recommended order not to exceed 60 pages) |
| Jun. 03, 1992 | CC Federal Cases & Non-Reported Cases Cited in PRO filed. (From Jack Chisolm) |
| Jun. 02, 1992 | Proposed Findings of Fact and Conclusions of Law Submitted by Respondent American Linen Supply Co. & cover ltr; Proposed Recommended Order; Proposed Findings of Fact and Conclusions of Law Submitted by Respondents George A. & Ann |
| Jun. 01, 1992 | Respondent Jura Services, Inc.'s Proposed Findings of Fact, Conclusions of Law and Recommended Order filed. |
| Jun. 01, 1992 | Agreed Motion for Extension of Time to File Memorandum of Law and Proposed Recommended Order filed. |
| May 26, 1992 | Respondent, Jura Services, Inc.'s Request for Leave to Exceed Page Limit for Proposed Recommended Order filed. |
| May 15, 1992 | Order sent out. (parties to have till 6/1/92 to file post-hearing pleadings) |
| May 08, 1992 | Order Granting Extension of Time to Serve Memoranda and Proposed Recommended Orders (unsigned) w/cover ltr filed. (From Jack Chisolm) |
| May 08, 1992 | State of Florida Department of Environmental Regulation's Motion for Extension of Time to File Memorandum of Law and Proposed Recommended Order filed. |
| Mar. 26, 1992 | Respondents' Joint Motion for Additional Time in Which to File Memoranda of Law and Proposed Recommended Orders w/(unsigned) Order & cover ltr filed. |
| Mar. 20, 1992 | Transcript (Volumes I - V) filed. |
| Jan. 21, 1992 | Final Hearing Held 1/21-23/92; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk's Office case file. |
| Jan. 21, 1992 | Joint Prehearing Stipulation filed. |
| Jan. 21, 1992 | Notice of Taking Deposition filed. |
| Jan. 21, 1992 | Crown and the Belleau's Witness List filed. |
| Jan. 16, 1992 | DER Exhibit List; DER'S Revised Witness List filed. |
| Jan. 15, 1992 | DER'S Request for Judicial Notice; Notice of Intent to Use Document Summary filed. |
| Dec. 20, 1991 | DER Witness List; DER Exhibit List filed. |
| Dec. 18, 1991 | Notice of Conflict filed. (From John W. Wilcox) |
| Dec. 11, 1991 | (Petitioner) Notice of Taking Deposition filed. |
| Nov. 25, 1991 | (Respondents) Amended Notice of Deposition filed. (From |
| Nov. 25, 1991 | Amended Notice of Taking Deposition filed. (From John W. Wilcox) |
| Nov. 18, 1991 | Notice of Change of Depositions filed. (From John W. Wilcox) |
| Nov. 14, 1991 | Letter to Jack Chisolm from John W. Wilcox (re: Chnages in the deposition schedule) filed. |
| Nov. 13, 1991 | DER'S Response to Request for Entry Upon land; DER'S Response to Request for Admissions filed. |
| Nov. 12, 1991 | Notice of Taking Deposition (5) filed. (From John Wilcox) |
| Nov. 07, 1991 | Notice of Taking Deposition (5) filed. (From John Wilcox) |
| Oct. 31, 1991 | (Respondent) Request for Admissions to the Department of Environmental Regulation; Respondent, Jura Services Ins.'s Request to Department of Environemtal Regulation For Entry Upon Land filed. |
| Sep. 06, 1991 | Revised Stipulated Prehearing Schedule filed. (From Jack Chisolm et al) |
| Aug. 23, 1991 | (Respondent) Notice of Name Change filed. (From William D. Preston) |
| Jul. 31, 1991 | Order sent out. (hearing rescheduled for Jan. 21-24, 1992; 10:30am; Pensacola). |
| Jul. 08, 1991 | Motion for Continuance filed. (From John W. Wilcox) |
| Jul. 08, 1991 | Amended Notice of Hearing sent out. (hearing set for Sept. 19-20, 1991; 10:00am; Pensacola). |
| Jun. 17, 1991 | Notice of Hearing sent out. (hearing set for Sept 19-20, 1991; 10:00am; Pensa) |
| Jun. 05, 1991 | DER'S Response to Order to Show Cause Dated April 11, 1991 filed. (from Jack Chisolm) |
| Apr. 22, 1991 | Respondents' Response to Order to Show Cause filed. (From John W. Wilcox) |
| Apr. 11, 1991 | Order to Show Cause sent out. |
| Aug. 17, 1990 | Motion to Stay Proceedings filed. |
| Jul. 06, 1990 | Order of Abatement sent out. (until 10/15/90) |
| Jun. 29, 1990 | Joint Motion to Cancel Hearing and Hold Matter in Abeyance filed. (From William D. Preston) |
| Mar. 28, 1990 | (Petitioner) Revised Prehearing Stipulation filed. |
| Jan. 29, 1990 | (Respondent) Notice of Service of Sketchley Services, Inc.'s Supplemental Response to Department of Environmental Regulations Third Set ofInterrogatories filed. |
| Jan. 09, 1990 | Order of Continuance (Hearing on 02/19-22/90 Cancelled; new hearing date 7/16/90; 9:30am; Pensacola) sent out. |
| Jan. 03, 1990 | Joint Motion for Continuance filed. |
| Dec. 29, 1989 | (Joint) Revised Prehearing Stipulation filed. |
| Dec. 22, 1989 | DER's Supplemental Response to Expert Witness Interrogatories of Respondents filed. |
| Dec. 15, 1989 | Notice of Taking Deposition filed. (from J. Wilcox). |
| Oct. 05, 1989 | Order sent out. (hearing set for Feb. 19-22, 1990; 9:30am; Pensacola) |
| Sep. 25, 1989 | Revised Prehearing Stipulation filed. |
| Sep. 25, 1989 | Joint Motion for Continuance filed. |
| Sep. 12, 1989 | DER`S Answers to Sketchley Services, Inc.`s Request for Production of Documents filed. |
| Sep. 08, 1989 | Crown Laundry & Dry Cleaners, Inc.'s Interrogatories to State of Florida Departmjent of Environmental Regulation & attachment filed. |
| Jul. 14, 1989 | Order sent out. (hearing set for Nov. 14-17, 1989; 9:30am; Pensacola) |
| Jul. 13, 1989 | Revised Prehearing Stipulation filed. |
| Jul. 12, 1989 | Deposition of Hayes Hedrick filed. |
| Jul. 12, 1989 | Notice of Taking Deposition filed. |
| Jul. 03, 1989 | Notice of Taking Deposition filed. (from J. Wilcox). |
| Jun. 30, 1989 | Sketchley Services, Inc.'s Amended Notice of Taking Deposition filed. |
| Jun. 23, 1989 | Joint Motion for Continuance filed. |
| Jun. 22, 1989 | Notice of Service of Creown Laundry & Dry Cleraners, Inc.'s Response to Department of Environmental Regulation's Interrogatories Numbered Nine Through Twelve filed. |
| Jun. 22, 1989 | Notice of Service of Crown Laundry and Dry Cleaners, Inc.'s Responses to Department of Environmental Regulation's Request for Production filed. |
| Jun. 19, 1989 | Department of Environmental Regulation's Answers to Request for Admissions from American Linen Supply Company filed. |
| Jun. 19, 1989 | Notice of Service of Response to State of Florida Department of Environmental Regulation's Third Interrogatories to Resodnent American Linen Supply Company filed. |
| Jun. 15, 1989 | Notice of Service of Sketchley Service, Inc.'s Responses to Department of Environmental Regulation's Third Set of Interrogatories filed. |
| Jun. 12, 1989 | First Request for Production of Documents Propounded by Respondent, Crown Laundry & Dry Cleaners, Inc., to Petitioner, State of Florida Department of Environmental Regulation filed. |
| Jun. 12, 1989 | American Linen Supply Company's Notice of Serving Interrogatories to State of Florida Department of Environmental Regualation filed. |
| Jun. 12, 1989 | CC Crown Laundry & Dry Cleaners, Inc.'s Interrogatories to State of Florida Department of Environmental Regulation filed. |
| Jun. 09, 1989 | Sketchley Services, Inc.'s Notice of Taking Deposition filed. |
| Jun. 09, 1989 | Request for Production Crown Laundry and Dry Cleaners filed. |
| Jun. 09, 1989 | Geroge A. and Ann F. Belleau and Crown Laundry & Dry Cleaners, Inc.'sPreliminary Witness List filed. |
| Jun. 08, 1989 | Notice of Service of American Linen Supply Company's Responses to State of Florida Department of Enviromental Regulation's Interrogatories Numbered Nine Through Twelve filed. |
| Jun. 05, 1989 | American Linen Supply Company's Preliminary Witness and Exhibit List filed. |
| Jun. 02, 1989 | Notice of Service of Sketchley Services, Inc.'s Response to Department of Environmental Regulation's Interrogatories Numbered Nine Through Twelve filed. |
| Jun. 02, 1989 | Notice of Service of Interrogatories (4) filed. |
| Jun. 02, 1989 | DER Preliminary Witness List filed. |
| Jun. 01, 1989 | Sketchley Services Inc.'s Prliminary Witness and Exhibit Lists filed. |
| May 30, 1989 | Notice of Taking Deposition filed. |
| May 23, 1989 | Prehearing Stipulation filed. |
| May 22, 1989 | Amended Notice of Taking Deposition filed. |
| May 19, 1989 | Notice of Taking Deposition filed. |
| May 03, 1989 | Certificate of Service; Department of Enviromental Regulation's Interrogatories Numbered Nine Through Twelve to Respondents George A. and Ann F. Belleau filed. |
| May 03, 1989 | Certificate of Service; Department of Enviromental Regulation's Interrogatories Numbered Nine Through Twelve to Respondent Sketchley Services, Inc filed. |
| May 03, 1989 | Certificate of Service; Department of Enviromental Regulation's Interrogatories Numbered Nine Through Twelve to Respondent American Linen Supply Company filed. |
| May 03, 1989 | Certificate of Service; Department of Enviromental Regulation's Interrogatories Numbered Nine Through Twelve to Respondent Crown Laundry & Dry Cleaners filed. |
| Mar. 27, 1989 | Notice of Hearing sent out. (hearing set for July 20-21, 1989, 10:00am, Pensacola) |
| Mar. 20, 1989 | CC Letter to PMR from M. D. Wondra filed. |
| Mar. 13, 1989 | Second Amended Notice of Taking Deposition filed. |
| Mar. 08, 1989 | Order sent out. (hearing cancelled) |
| Mar. 02, 1989 | CC Letter to PMR from J. Chisolm filed. |
| Feb. 27, 1989 | Notice of Military Service filed. |
| Feb. 16, 1989 | Notice of Hearing sent out. (hearing set for March 22, 1989; 10:30am; Pensacola) |
| Feb. 16, 1989 | Order sent out. (Cases 88-3077 and 5985 are consolidated) |
| Feb. 16, 1989 | Order sent out. (Motion to authorize T. Healy as Respondent's counsel granted.) |
| Jan. 30, 1989 | State of Florida Department of Environmental Regulation`s Non Opposition of Motion to Authorize Thomas B. Haley, Jr. to Appear as Qualified Representative of Sketchley Services, Inc. |
| Jan. 17, 1989 | Affidavit of Thomas P. Healy, Jr.; Motion to Authorize Thomas P. Healy, Jr. to Appear as Qualified Representative of Sketchley Services, Inc. filed. |
| Jan. 03, 1989 | Order Closing File sent out. CASE CLOSED, patient DISCHARGED. |
| Jan. 03, 1989 | Notice of Substitution of Counsel filed. |
| Dec. 29, 1988 | Amended Certificate of Service filed. |
| Dec. 28, 1988 | Notice of Appearance of Counsel for Department of Environmental Regulation filed. |
| Dec. 19, 1988 | Order sent out. (IN RE: motion to consolidate and counsel for the department is directed to ascertain the correct styles, case numbers and whereabouts of any other petitions for formal proceedings related tothe Notice of Violation) |
| Nov. 17, 1988 | Amended PEtition for Formal Administrative Proceeding in Response to Amended Notice of Violation filed. |
| Oct. 18, 1988 | Notice of Amended Notice of Violation filed. |
| Sep. 12, 1988 | Response of Sketchley Services, Inc. to the Department of Environmental Regulation's Motion to Consolidate and Motion to Amend Notice of Violation filed. |
| Sep. 06, 1988 | Department of Environmental Regulation's First Interrgatories Numbered one Through Eight to Respondent American Linen Supply Company filed. |
| Sep. 06, 1988 | Notice of Filing filed. |
| Sep. 02, 1988 | Department of Environmental Regulation`s Motion to Consolidate and Motion to Amend Notice of Violation filed. |
| Sep. 01, 1988 | Notice of Response to Interrogatories filed. |
| Aug. 01, 1988 | (Respondent's) Response to Hearing Officer's Order filed. |
| Jul. 29, 1988 | Certificate of Service filed. (from R. Windsor). |
| Jul. 22, 1988 | Order sent out. (re: governing rules) |
| Jul. 11, 1988 | Order sent out.(Governing Rules) |
| Jul. 11, 1988 | Initial Order sent out. |
| Jun. 22, 1988 | Request for Assignment of Hearing Officer and Notice of Preservation of Record; Notice of Violation and Orders for Corrective Action filed. |
| May 19, 1988 | Petition for Administrative Proceeding filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 22, 1997 | Agency Final Order | |
| Jun. 27, 1997 | Opinion | |
| May 31, 1996 | Agency Final Order | |
| Feb. 03, 1993 | Remanded from the Agency | |
| Nov. 05, 1992 | Recommended Order | Complex envir enforcement nov dismissed on failure of proof and non-retro- activity of pivotal statute and rules. DER did not rule to other sources. 2nd Agency FO (Adopted in Toto) issued and filed on 10/22/97. |
