STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID KIM (NU-LOOK ONE HOUR ) DRY CLEANING), )

)

Petitioner, )

)

vs. ) Case No. 98-2678

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on November 24, 1998, and December 10, 1998, by video teleconference at sites in West Palm and Tallahassee, Florida, before Stuart M. Lerner, a duly designated administrative law judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kevin S. Hennessy, Esquire

Lewis, Longman & Walker, P.A. 1700 Palm Beach Lakes Boulevard Suite 1000

West Palm Beach, Florida 33401

For Respondent: Scott A. Goorland, Esquire

Jeffrey Brown, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether Petitioner's drycleaning facility (Nu-Look One Hour Dry Cleaning) is eligible to participate in the Drycleaning Solvent Cleanup Program.

PRELIMINARY STATEMENT

By letter dated March 20, 1998, Respondent advised Petitioner that his drycleaning facility, Nu-Look One Hour Dry Cleaning, was ineligible to participate in the Drycleaning Solvent Cleanup Program for the following reasons:

1. All registration fees have not been remitted in accordance with Section 376.303(1)(d), Florida Statutes (F.S.). The

   $100.00 renewal registration fee for 1996 and 1997 has not been paid.

   
   

2. An inspection conducted on August 14, 1997, by a representative of the Department revealed that secondary containment had not been installed at the facility. According to Section 376.3078(7), [now 376.3078(9)] F.S., by January 1, 1997, secondary containment must be installed around and beneath all items of equipment which utilize dry cleaning solvents. This section further stipulates that failure to meet this requirement constitutes gross negligence when determining site eligibility in the Program.

   
   

3. In accordance with the conditions of eligibility found in Section 376.3078(3)(a), F.S., facilities operated in a grossly negligent manner at any time on or after November 19, 1980, shall not be eligible to participate in this Program.

Petitioner thereafter filed a Petition contesting this finding of ineligibility. On June 10, 1998, the matter was referred to the

Division of Administrative Hearings for the assignment of an administrative law judge to conduct a Section 120.57(1) hearing.

Prior to the commencement of the Section 120.57(1) hearing, the parties filed a Prehearing Stipulation in which they stipulated to, among other things, the following:

The basis of the Department's determination of ineligibility was limited to Petitioner's nonremittance of registration fees and the lack of secondary containment on the site by January 1, 1997.

Nu-Look has paid all registration fees due and owing and is now current and in compliance with all registration requirements.

The Department has determined facilities delinquent in paying registration fees eligible for the program once the fees have been paid.1

As noted above, the hearing was held on November 24, 1998, and December 10, 1998. Seven witnesses testified at the hearing: Petitioner, Rasik Chokshi, Leslie Smith, Thomas Cozzie, William Burns, Nick Albergo, and Charles Ziegmont. In addition to the testimony of these seven witnesses, the following exhibits were offered and received into evidence: Petitioner's Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 13, 14, 15a and b, 16, 17, 26 a through k, 28a

and b, 31, 33, 34, 35, 39a through c, 40a through c, and 41, and

Respondent's Exhibits 1a, 1e through i, 2, 4, 5 (page 20 thereof

only), 9, 10, 11, 12, 13, 15, 16, 17, and 18.

At the conclusion of the evidentiary portion of the hearing, the undersigned announced on the record that proposed recommended

orders had to be filed no later than 20 days from the date that the transcript of the hearing was filed with the Division of Administrative Hearings. The Transcript was filed with the Division of Administrative Hearings on February 9, 1999. The deadline for filing proposed recommended orders was extended on three occasions, twice at Petitioner's request and once at the request of both parties. On April 19, 1999, Respondent timely filed its Proposed Recommended Order. On that same date, Petitioner filed a notice that he would not be filing a proposed recommended order "due to financial considerations." In his notice, he urged the undersigned "to find that the Department's determination of ineligibility should be found arbitrary and capricious in light of the Department's policy of allowing other facilities into the program that did not have secondary containment until after the January 1, 1997, deadline." Respondent's Proposed Recommended Order, as well as the comments made in Petitioner's notice of intent not to file a proposed recommended order have been carefully considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:

Petitioner and His Facility

1. Petitioner David Kim is a fifty-one-year-old college graduate. He moved from his native Korea to the United States in October of 1971 and has lived in this country ever since.

2. For approximately the past ten years, Mr. Kim has owned and operated a drycleaning business, Nu-Look One Hour Dry Cleaning, which operates out of a facility located at 2968 Jog Road in Greenacres, Florida (Petitioner's Facility).

3. Petitioner is the business' only full-time employee. (There is one other employee. That employee works on a part-time basis.)

4. Petitioner is at the Facility approximately 70 to 72 hours per week. (The Facility is open for business from 7:00

   a.m. to 7:00 p.m., Monday through Saturday.)

   
   

   Petitioner's Knowledge, Prior to January 1, 1997, of Secondary Containment Requirements

   
   

5. In or about March of 1995, the Department of Environmental Protection (Department) mailed a document describing interim registration requirements for drycleaning facilities to every known drycleaning facility in Florida, including Petitioner's Facility. In addition to providing information about registration requirements, the document gave the following "brief description of the Drycleaning Solvent Cleanup Program":

   Drycleaning Contamination Cleanup

   
   

   The 1994 Florida Legislature established, under Chapter 376 of the Florida Statutes (F.S.), a state funded program to cleanup properties that are contaminated with drycleaning solvents caused by drycleaning and wholesale supply facilities. The statute also provides limited immunity from enforcement of state and local environmental regulations that require cleanup of certain discharges of drycleaning solvents. The revenue source for the program is provided by a gross sales receipt law (which became effective October 1, 1994), registration fees, and a per gallon tax on perchloroethylene imported or produced in the state of Florida. Highlights of the program are: . . .

   LIABILITY

   
   

   For eligible facilities, costs incurred by the state for site rehabilitation will be absorbed at the expense of the fund.

   Eligibility in this program may relieve the owner and/or operator from state and local action to compel site restoration.

   Eligibility in this program will not relieve the owner and/or operator from federal government action or from current waste management requirement.

6. Petitioner registered his Facility with the Department after learning that he was required to do so.

7. Department staff compiled a mailing list containing the addresses of all drycleaning facilities (including Petitioner's Facility) registered with the Department (Mailing List).

8. In March of 1996, the Department mailed to each of the registered facilities listed on the Mailing List (including Petitioner's Facility) copies of a March 1996 Drycleaning Solvent Cleanup Program Update (March 1996 Update), together with a

   brochure providing general Drycleaning Solvent Cleanup Program (Program) information. It is presumed that Petitioner received these materials at his Facility absent any credible evidence to the contrary.2

9. The March 1996 Update provided, in pertinent part, as follows:

   The Drycleaning Solvent Cleanup Rule (Rule

   62-781, Florida Administrative Code) has been adopted. The rule will become effective on March 13, 1996, and at this time, the Department will begin accepting applications to the Program. A copy of the rule and the forms [are] enclosed. To apply to the Drycleaning Solvent Cleanup Program, the enclosed application form and site screening form must be completed in accordance with the instructions and guidance manual that are attached. The application package must be accompanied by the required attachments and must be signed. . . .

   
   

   The registration fee of $100 was due on December 31, 1995. In February 1996, the Department mailed a second notice to all registered facilities that did not submit their payment. Non-payment of the annual registration fee may affect program eligibility.

   
   

   Also enclosed are a general program information document and a document which offers guidelines for compliance with the secondary containment requirement. Be sure to check out the FDEP's toll-free, Fax-On- Demand System for the Drycleaning Solvent Cleanup Program. This system is updated as new information is available. Currently, the system will allow you to receive this March 1996 program update, registration forms, guidance for secondary containment and copies of the rule and forms by facsimile. The FDEP Fax-On-Demand System is available 7 days a week, 24 hours a day, by calling (800) 789-

   4502.

10. The "general information" contained in the brochure that accompanied the March 1996 Update included the following:

    Program Application

    
    

    The Drycleaning Solvent Cleanup Program Rule (62-781, Florida Administrative Code) specifies requirements for application to the program and provides forms for application to the program and documentation of contamination. The rule becomes effective on March 14, 1996. The Department will begin accepting applications on this date.

    Eligibility and Priority Ranking Section 376.3078(3), Florida Statutes

    identifies certain criteria that must be met

    in order for a site to be eligible for the program. Once the Department has reviewed the program application and determined that a site has met these requirements, then the Department will score the site in accordance with the scoring system in the statute. The score that a site receives will determine the order in which the Department will begin site rehabilitation activities. For eligible sites, costs incurred by the state for site rehabilitation will be absorbed at the expense of the fund minus a deductible amount as specified in the law. Eligibility in this program will not relieve the owner, operator or real property owner from federal actions or from current waste management requirements.

    General Program Requirements

    
    

    An important goal of the Drycleaning Solvent Cleanup Program is to protect the environment from future contamination by drycleaning solvents. In order to achieve this goal, the 1995 Florida Legislature passed requirements for prevention of contamination that apply to all operating drycleaning facilities. In addition to these requirements, the owner, operator and real property owners of drycleaning facilities and wholesale supply

    facilities have certain responsibilities according to the law. Failure to comply with these requirements may affect a site's eligibility. Some of these responsibilities and requirements are summarized below.

    
    

    Secondary containment

    
    

    The deadlines to install secondary containment and the type of containment both depend on when the facility commenced operations:

    
    

    Facilities that begin operation on or after January 1, 1996, must be equipped with secondary containment when the business begins operation. Secondary containment for these facilities must consist of rigid and impermeable containment vessels installed beneath each machine or equipment in which drycleaning solvents are used.

    
    

    Facilities that began operations prior to January 1, 1996, must be equipped with secondary containment by January 1, 1997. Secondary containment for these facilities must consist of rigid and impermeable containment vessels, or a dike around each machine or item of equipment in which drycleaning solvents are used.

    
    

    All facilities, regardless of when operation began, must install secondary containment around any solvent or waste solvent storage areas by January 1, 1997. The secondary containment for storage areas must be either a rigid and impermeable vessel, or a surrounding dike.

    
    

    The rigid and impermeable vessels shall be constructed of metal or other material that cannot be permeated by drycleaning solvents, according to manufacturer product use and limitation recommendations. All diked containment areas must be sealed or otherwise made impervious to drycleaning solvents, including floor surfaces, floor drains, floor joints and inner dike walls. Concrete or asphalt floor surfaces are not impervious to drycleaning solvents. The Department

    recommends the installation of containment vessels rather than the installation of dikes, because the containment vessels offer greater security from releases.

    
    

    A separate information sheet with additional information about secondary containment was mailed to all registered drycleaning facilities in March 1996.

    
    

    For More information

    
    

    This General Program Information document along with other program information is available through the FDEP Fax-On-Demand System.

    
    

11. Sometime in or shortly before May of 1996, Petitioner attended a Department presentation concerning the Program that was given in Palm Beach County [Department Presentation). Among those who spoke to the attendees at the Department Presentation was Leslie Smith, the Department's Southeast District Representative for the Program. Another speaker was a representative of HSA Environmental, a consulting firm hired by the Department to assist it in implementing the Program. At the Presentation (which was similar in format to Department presentations given in other parts of the state), the attendees were given an explanation of secondary containment requirements, including installation deadlines.

12. In July of 1996, the Department mailed to each registered facility (including Petitioner's Facility) copies of a July 1996 Drycleaning Solvent Program Update (July 1996 Update), together with a detailed memorandum entitled, "What you need to know about . . . Secondary Containment Requirements for

    Drycleaning Facilities." It is presumed that Petitioner received these materials at his Facility absent any credible evidence to the contrary.

13. The July 1996 Update provided, in pertinent part, as follows:

    The Drycleaning Solvent Cleanup Program Rule (Rule 62-781, Florida Administrative Code) became effective on March 13, 1996. The Department is now accepting applications to the Program. Application to the program is optional. A copy of the rule and forms was mailed to all registered drycleaning facilities and wholesale supply facilities in March. If you did not receive a copy or need additional copies, please call the Department's Fax-On-Demand system

    at (800) 789-4502, or contact the Department at (904) 488-0190, or the District Office.

    Also the forms can be downloaded from the Internet from the location http://www.dep.state.fl.us/waste/programs/ dryclean/index.htm

    
    

    To apply to the Drycleaning Solvent Cleanup Program, the application form and site screening form must be completed in accordance with the instructions and guidance manual. The application package must be accompanied by the required attachments and must be signed. Forms that have been altered in any way or application packages that are incomplete will be returned to the applicant. Application packages that are returned will delay the processing of the application.

    Therefore, it is important that the application packages be complete and that the forms are not altered. Information on environmental consultants that are available to complete the site screening portion of the application may be obtained from local drycleaning associations.

    Because of the expected volume of applications that the Department will initially receive, it may take the Department

    several weeks to determine if a site is eligible for the program. The Department will mail a letter of determination of program eligibility to the applicant once the review process is complete. . . .

    
    

    Be sure to check out the FDEP's toll-free, Fax-On-Demand System for the Drycleaning Solvent Cleanup Program. This system is updated as new information is available.

    Currently, the system will allow you to receive this June [sic] 1996 program update, registration forms, guidance for secondary containment and copies of the rule and forms by facsimile. The FDEP Fax-On-Demand System is available 7 days a week, 24 hours a day, by calling (800) 789-4502.

14. The memorandum accompanying the July 1996 Update contained the following information regarding secondary containment requirements:

    Section 376.3078(7)(a) and (b), Florida Statutes, requires owners or operators of drycleaning facilities to provide secondary containment of drycleaning solvents. Below are answers to several questions about secondary containment requirements.

    
    

    1. What is secondary containment?

       
       

       The purpose of secondary containment is to prevent releases of drycleaning solvents to the environment and reduce contamination of soils and groundwater. The secondary containment requirements provide for temporary containment of accidental spills or leaks until appropriate response actions are taken by the owner/operator to abate the source of the spill and remove the product from all areas on which the product has accumulated.

       
       

    2. When is secondary containment required to be in place and what type of containment is required?

       The deadlines to install containment and the type of containment both depend on when the facility commenced operations:

       
       

       Facilities that begin operation on or after January 1, 1996, must be equipped with secondary containment when the business begins operation. Secondary containment for these facilities must consist of rigid and impermeable containment vessels installed beneath each machine or item of equipment wh[ere] drycleaning solvents are used.

       
       

       Facilities that began operation prior to January 1, 1996, must be equipped with secondary containment by January 1, 1997. Secondary containment for these facilities must consist of rigid and impermeable containment vessels, or a dike around each machine or item of equipment wh[ere] drycleaning solvents are used.

       
       

       All facilities, regardless of when operations began, must install secondary containment around any solvent or waste solvent storage area by January 1, 1997. The secondary containment for storage areas must be either a rigid and impermeable vessel, or a surrounding dike.

       
       

       The rigid and impermeable vessels shall be constructed of metal or other material that cannot be permeated by drycleaning solvents, according to manufacturer product use and limitation recommendations. All diked contained areas must be sealed or otherwise made impervious to drycleaning solvents, including floor surfaces, floor drains, floor joints and inner dike walls. Concrete or asphalt floor surfaces are not impervious to drycleaning solvents. For information about acceptable sealants for diked surfaces, please see question #4 below. The department recommends the installation of containment vessels rather than the installation of dikes, because containment vessels offer greater security from releases.

       
       

    3. How much secondary containment capacity do I need?

       All machines and equipment that have a tank capacity of greater than one quart and all areas in which solvents or wastes that contain solvents are stored, must have secondary containment. Containment structures must be able to contain at least 110% of the capacity of each such machine or item of equipment and each storage area. The capacity of a machine or equipment is the capacity of the largest single tank in the machine or equipment. The capacity of a solvent or waste storage areas is the volume of the largest container.

       
       

       Floor surfaces should be sealed underneath and at least two feet around all machines or equipment that have a tank capacity of one quart or less and are not within a secondary containment structure.

       
       

       Containment vessels and equipment must be mounted in such a way as not to compromise the integrity of the containment vessel.

       Outdoor storage areas must be roofed or otherwise protected from the accumulation of rainfall.

       
       

    4. What types of floor sealants are acceptable?

       
       

       In order to maintain a secondary containment dike that is impervious to drycleaning solvents, all floor surfaces, floor drains and floor joints within the diked area must be sealed with a solvent-resistant sealer and/or caulking compound (sealant). The Department does not recommend any specific floor sealers or sealants. However, the sealer and sealant must be compatible with and resistant to all solvents used at the facility for a contact period of at least 72 hours, according to manufacturer product use and limitation recommendations. The sealant must be applied and maintained in accordance with manufacturer specifications. Sealant specifications and a record of application dates must be maintained at the facility.

    5. What is required if a spill occurs outside of a containment area

       
       

       Upon discovery of any spill outside of a containment area, the owner or operator of any drycleaning facility or wholesale supply facility must immediately: 1) Initiate and complete actions to abate the source of the spill, remove the discharged solvents from all indoor and outdoor surfaces, remove all discharged solvents and dissolved solvents from any septic tank or catch basin in which the solvent has accumulated, remove affected soils; and, 2) Report the spill or discharge to the State Warning Point, by calling (904) 413-9911.

       
       

       The Department issues this guidance in order to assist owners and operators of drycleaning facilities in complying with Florida law.

       These guidelines and any future revisions can be obtained through the Department's Fax-on- Demand system by calling (800) 789-4505 (24hours/day). If you have any questions regarding these guidelines you may call (904) 488-0190, or write to:

       
       

       Drycleaning Solvent Cleanup Program Florida Department of Environmental

       Protection

       Mail Station 4520 2600 Blair Stone Road

       Tallahassee, Florida 32399-2400

       
       

15. In December of 1996, the Department mailed to each registered facility (including Petitioner's facility) copies of a December 1996 Drycleaning Solvent Program Update (December 1996 Update), which read as follows:

    The Drycleaning Solvent Cleanup Program Rule (Rule 62-781, Florida Administrative Code) became effective March 13, 1996. The Department is continuing to accept applications to the Program. Application to the program is optional. Copies of the rule and forms were mailed to all registered drycleaning facilities and wholesale supply

    facilities in March. If you did not receive a copy, or need additional copies, please call the Department's Fax-On-Demand system at (800) 789-4502, or contact the Department at (904) 488-0190, or the District Office.

    Also, the forms can be downloaded from the Internet from the location: http://www.dep.state.fl.us/waste/programs/ dryclean/index.htm

    
    

    To apply to the Drycleaning Solvent Cleanup Program, the application form and site screening form must be completed in accordance with the instructions and guidance manual. The application package must be accompanied by the required attachments and must be signed. It is important that the application packages be complete and that the forms are not altered. Forms that have been altered or application packages that are incomplete will be returned to the applicant. Application packages that are returned will delay the processing of the application. The Department will mail a letter of determination of program eligibility to the applicant once the review process is complete. Information on environmental consultants that are available to complete the site screening portion of the application may be obtained from local telephone or professional directories or local drycleaning associations.

    Please note that Section 376.3078(7)(a) and (b), [now 376.378(9)(a) and (b)] Florida Statutes, requires owners or operators of drycleaning facilities to install secondary containment of drycleaning solvents, including petroleum-based solvents.

    Secondary containment requirements provide for containment of accidental spills or leaks until appropriate response actions are taken by the owner/operator to abate the source of the spill and remove the product from all areas on which the product has accumulated.

    The statute requires that all facilities, regardless of when operations began, shall have secondary containment installed around any solvent or waste solvent storage area by January 1, 1997. Additional details

    regarding secondary containment requirements are available through the Department's Fax- On-Demand System.

    
    

    Be sure to check out the FDEP's toll-free, Fax-On-Demand System for the Drycleaning Solvent Cleanup Program. This system is updated as new information is available.

    Currently, the system will allow you to receive program updates, registration forms, guidance for secondary containment and copies of the rule and forms by facsimile. The FDEP Fax-On-Demand System is available 7 days a week, 24 hours a day, by calling (800) 789-

    4502.

    It is presumed that Petitioner received the December 1996 Update at his Facility absent any credible evidence to the contrary.

16. As a result of his attendance at the Department Presentation and his receipt of the above-described informational material from the Department, Petitioner was on notice, in advance of the statutorily-imposed January 1, 1997, secondary containment installation deadline, of his obligation to have secondary containment installed at his Facility by January 1, 1997.

    The Preparation, Filing, and Denial of Petitioner's Application

    
    

17. In or about late May of 1996, following the Department Presentation, Petitioner retained the services of HSA Environmental (HSA) to assist him in applying for the admission of his Facility to the Program.

18. Although Petitioner may have believed that HSA "would do or advise him of all work that was necessary at [his Facility]

    to get [the Facility] into the [P]rogram," the evidence fails to establish that HSA agreed, in writing or otherwise, to install secondary containment at his Facility.

19. On June 12, 1996, an HSA employee visited Petitioner's Facility to take a soil sample for testing and analysis in order to determine whether there was contamination by dry cleaning solvents on the site.

20. On or about October 30, 1996, HSA sent Petitioner the following letter:

    In reference to this program, your complete Drycleaning Solvent Cleanup Program Application for this facility is pending due to the following reasons:

    
    

     We have not received your application with the required signatures.

    
    

    Please provide the missing information checked above as soon as possible so that we may complete your application and submit to the Florida Department of Environmental Protection. If documents are provided with this letter, please complete that portion that is marked and return the documents to this office.

    
    

    Upon receipt of the above information, your completed Drycleaning Solvent Cleanup Program Application, which includes the Site Screening Report, with required attachments, will be submitted within ten (10) working days with copies provided to you.

    
    

    Thank you for your assistance in this matter. If you have any questions about the information requested on your application in general, please contact us directly.

    
    

21. On or about January 29, 1997, HSA sent Petitioner another letter. It read as follows:

    In reference to this program, your facility was inspected by HSA on June 12, 1996, and the Site Screening Report was completed on July 8, 1996, but your package has been placed in our PENDING FILE. The reason for this is that we have not received your application with the required information and appropriate signatures. Several telephone calls have been made and letters have been sent requesting this information without success. Further, your account shows an outstanding balance of $1300.00. Enclosed is an Application with instructions. Please complete this application, sign Item 18a, 18b and 19 as marked and return it to me in the enclosed self-addressed envelope. Do not worry about obtaining the signature of the Real Property Owner. I will take care of getting his/her signature. Upon receipt of the application and full payment, your completed Drycleaning Solvent Cleanup Program Application will be submitted to the State of Florida Department of Environmental Protection (FDEP).

    It is in your best interest to take care of this matter quickly. As it stands now you qualify for a $1000.00 deductible when the actual cleanup of your facility starts. This

    $1000.00 deductible applies until June 30, 1997, and all applications received by FDEP prior to this date will qualify for it. On July 1, 1997, this deductible will be increased to $5000.00 per facility.

    Therefore, I think you can see that it's in your best interest to have your package submitted prior to June 30, 1997 and qualify for the $1000.00 deductible.

    
    

    In addition, I need you to verify (to include date completed) that you have installed secondary containment structures around or beneath each machine and each area where drycleaning solvents or waste are stored; and, that the floor surfaces of the facility have been sealed. If you have not had secondary containments installed or the floor sealed, then I need to verify that this has been contracted for, provide documentation

    supporting same, and provide the dates when it will be completed.

    
    

    Thank you for your assistance in this matter. If you have any questions about the information requested or your application in general, please contact me directly.

    
    

22. Petitioner subsequently signed a completed Drycleaning Solvent Cleanup Program Application (Application). The Application, which had been completed with HSA's assistance, was filed with the Department on or about April 24, 1997.

23. On the Application, negative answers were given to the following questions:

    Have secondary containment structures been installed around or beneath each machine or item of equipment in which drycleaning solvents are used?

    
    

    Have secondary containment structures been installed around or beneath each area where drycleaning solvents or waste which contains drycleaning solvents are stored?

    
    

    Have the floor surfaces of the drycleaning facility been sealed or otherwise rendered impervious in any area in which solvents may leak, spill, or otherwise be released?

    
    

24. The Application further reflected that, as of the date the Application was completed and signed (on or about April 22, 1997), the Facility was operating as a drycleaning facility.

25. No information was provided at hearing contradicting the foregoing information provided in Petitioner's Application. Post-Application Inspections of Petitioner's Facility

26. Following the filing of the Application with the Department, on July 24, 1997, Rasik Chokshi, an Environmental

    Specialist II employed by the Florida Department of Health (DOH), conducted an inspection of Petitioner's Facility to determine whether it was in compliance with clean air requirements. (DOH conducts such inspections pursuant to an agreement that it has with the Department.) Petitioner was present at the Facility during the inspection.

27. When conducting inspections of drycleaning facilities, Mr. Chokshi routinely notes whether secondary containment requirements have been met.

28. During his July 24, 1997, inspection of Petitioner's Facility, Mr. Chokshi observed that there was no secondary containment in the drycleaning machine, storage, waste, and spotting board areas of the Facility.

29. Following his inspection, Mr. Chokshi made Petitioner aware of the observations he (Mr. Chokshi) had made regarding the lack of appropriate secondary containment in the Facility. He informed Petitioner that such secondary containment should have been in place by January 1, 1997, and that Petitioner therefore needed to remedy the situation "as soon as possible." Petitioner agreed that secondary containment was needed, and, in response to Mr. Chokshi's inquiry, indicated that he would have the work completed in two months, to which Mr. Chokshi stated, "okay."3

30. On August 14, 1997, Leslie Smith, an Environmental Specialist with the Department who inspects drycleaning facilities from Ft. Pierce to Homestead,4 conducted a routine

    inspection of Petitioner's Facility. This was her first visit to the Facility.

31. Ms. Smith's inspection revealed various violations which she noted on an Inspection Exit Summary Form that was mailed to Petitioner the next business day following the inspection. Among the violations she noted were the following:

    No secondary containment is provided for the drycleaning machine.

    
    

    No secondary containment is provided for the waste containers.

    
    

    No secondary containment is provided for solvent based spotters over one quart in volume.

    
    

    Floors [covered by ceramic tile, with a "very porous" grout] are not sealed.

    
    

32. Before leaving the Facility on August 14, 1997, Ms. Smith discussed these violations with Petitioner.

33. Petitioner agreed, in writing, "to provide written documentation of efforts to address the[se] deficiencies" on or before September 5, 1997.

34. Some time between August 14, 1997, and August 30, 1997, Petitioner, at a cost of $1,850.00, had the necessary work done to correct the secondary containment deficiencies noted by

    Ms. Smith during her inspection. Nonetheless, he did not provide Ms. Smith, by September 5, 1997, with written documentation that such work had been done.

35. On October 13, 1997, Mr. Chokshi paid another visit to Petitioner's facility.

36. During this inspection, he was accompanied by Louis Valcarenghi, a Department Air Pollution Inspector. Ms. Smith had asked Mr. Valcarenghi to look for the presence of secondary containment at the Facility during his inspection.

37. Mr. Valcarenghi's inspection revealed that the Facility was in compliance with air pollution control requirements, and he so informed Petitioner before leaving the Facility.

38. During his inspection of the Facility, Mr. Valcarenghi observed that "[s]econdary containment ha[d] been installed for the dry cleaning machine, waste containers and spotting areas." By memorandum dated October 13, 1997, he advised Ms. Smith of such installation.

Denial of Petitioner's Application

1. By letter dated March 20, 1998, the Department advised Petitioner that the Facility was ineligible to participate in the Program. The failure to install secondary containment at the Facility by January 1, 1997, was cited as a reason for the Department's determination of ineligibility.

   The Department's Enforcement of Secondary Containment Requirements

   
   

2. In response to concerns expressed by the owners and operators of drycleaning facilities (through their representatives) about their ability to meet the statutorily- imposed January 1, 1997, secondary containment deadline,

   John Ruddell, the Director of the Department's Division of Waste Management, sent the following memorandum, dated December 13,

   1996 (December 13, 1996, Memorandum) to the lead enforcement officers in the Department's district offices:

   In the past few weeks, the department has received requests for an extension of the January 1, 1997 deadline for secondary containment from the Neighborhood Cleaners Association, Southeast Fabricare and the Florida Drycleaners Coalition. The reason stated in the request for this extension is a shortage of contractors to complete installation of containment vessels.

   
   

   The statute has been in effect since October 1995; so drycleaner owners and operators have had sufficient notice of the requirement. In addition, drycleaning owners and operators have been reminded of the deadline by notices mailed to each registered drycleaning facility. The department does not have authority to extend this statutory deadline.

   
   

   Drycleaning facility owners missing the deadline are subject to enforcement.

   However, due to the apparent shortage of vendors and installation contractors, as asserted by the Florida Drycleaning Coalition, Directors of District Management may wish to consider exercising a short term deferral of enforcement action. In determining whether to make such a deferral, the following conditions should be considered:

   
   

   1. The facility owner or operator should demonstrate that the facility began operations prior to January 1, 1996. Facilities that began operation after that date were required to have secondary containment when operation commenced.

      
      

   2. The facility owner should have a signed, binding contract, in accordance with Florida Statutes, which cannot be canceled or modified without substantial loss, that was executed by January 1, 1997.

      
      

   3. The installation shall be completed by April 30, 1997.5

      Any such deferral should be limited to the requirements of Section 376.3078(7)(a) [now 376.3078(9)(a)]. No secondary containment requirements under federal or local laws and regulations should be affected by a deferral granted pursuant to the conditions above.

      
      

3. The Department has applied the guidelines set forth in the December 13, 1996, Memorandum, not only in exercising its enforcement authority, but also in making Program eligibility determinations, notwithstanding that the memorandum does not expressly address the issue of Program eligibility.6

4. Facilities that have met the three "conditions" set forth in the December 13, 1996, Memorandum have been deemed eligible by the Department to participate in the Program, even though these facilities did not have the required secondary containment as of January 1, 1997.

5. Petitioner's Facility is not similarly situated to these facilities inasmuch as it meets neither the second "condition" ("signed, binding contract" for secondary containment installation prior to January 1, 1997) nor the third "condition" (completion of installation by April 30, 1997) prescribed in the December 13, 1996, Memorandum.

6. In making Program eligibility determinations, the Department has examined, in addition to the timeliness of secondary containment installation, the nature and sufficiency of the secondary containment devices installed at the facility.

7. The sufficiency of a particular secondary containment device depends on the purpose it is intended to serve.

8. For example, to provide suitable secondary containment for a drycleaning machine, it is necessary to install around the machine a metal pan or other similar structure that cannot be permeated by drycleaning solvents.

9. In the area around a spotting board, where such rigid structures would present a tripping hazard, the Department has reasonably determined that such structures are unnecessary and that floor sealant provides adequate secondary containment.

10. The Department, in determining Program eligibility, has distinguished between the failure to timely install sufficient secondary containment and the failure to maintain sufficient secondary containment that has been timely installed. The former (which is what we have in the instant case), but not the latter, has resulted in a finding by the Department of ineligibility to participate in the Program.

11. Petitioner has failed to demonstrate that the Department, in the past, has knowingly allowed any facility to participate in the Program under circumstances substantially identical to those present in the instant case.

    CONCLUSIONS OF LAW

    
    

12. Petitioner is seeking a determination from the Department that his Facility is eligible for the Program.

13. To be eligible for the Program, a drycleaning facility must meet the requirements set forth in Section 376.3078(3), Florida Statutes, which provides, in pertinent part, as follows:

    (a) With regard to drycleaning facilities . . . that have operated as drycleaning facilities . . . on or after October 1, 1994, any such drycleaning facility . . . at which there exists

    contamination by drycleaning solvents shall be eligible under this subsection regardless of when the drycleaning contamination was discovered, provided that the drycleaning facility . . .:

    1. Has been registered with the department;

       
       

    2. Is determined by the department to be in compliance with the department's rules regulating drycleaning solvents, drycleaning facilities, or wholesale supply facilities on or after November 19, 1980;

       
       

    3. Has not been operated in a grossly negligent manner at any time on or after November 19, 1980;

       
       

    4. Has not been identified to qualify for listing, nor is listed, on the National Priority List pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 as amended by the Superfund Amendments and Reauthorization Act of 1986, and as subsequently amended;

       
       

    5. Is not under an order from the United States Environmental Protection Agency pursuant to s. 3008(h) of the Resource Conservation and Recovery Act as amended (42

    U.S.C.A. s. 6928(h)), or has not obtained and is not required to obtain a permit for the operation of a hazardous waste treatment, storage, or disposal facility, a postclosure permit, or a permit pursuant to the federal Hazardous and Solid Waste Amendments of 1984;

    
    

    and provided that the real property owner or the owner or operator of the drycleaning

    facility . . . has not willfully concealed the discharge of drycleaning solvents and has remitted all taxes due pursuant to ss. 376.70 and 376.75, has provided documented evidence of contamination by drycleaning solvents as required by the rules developed pursuant to this section, has reported the contamination prior to December 31, 1998, and has not denied the department access to the site.

14. Pursuant to subsection (3)(c) of Section 376.3078(3), Florida Statutes,

    (c) For purposes of determining eligibility, a drycleaning facility or wholesale supply facility was operated in a grossly negligent manner if the department determines that the owner or operator of the drycleaning facility or the wholesale supply facility:

    
    

    1. Willfully discharged drycleaning solvents onto the soils or into the waters of the state after November 19, 1980, with the knowledge, intent, and purpose that the discharge would result in harm to the environment or to public health or result in a violation of the law;

       
       

    2. Willfully concealed a discharge of drycleaning solvents with the knowledge, intent, and purpose that the concealment would result in harm to the environment or to public health or result in a violation of the law; or

       
       

    3. Willfully violated a local, state, or federal law or rule regulating the operation of drycleaning facilities or wholesale supply facilities with the knowledge, intent, and purpose that the act would result in harm to the environment or to public health or result in a violation of the law.

    
    

15. Pursuant to Section 376.3078(9)(d), Florida Statutes, the "[f]ailure to comply with the requirements of [subsection (9) of Section 376.3078, Florida Statutes] shall [also] constitute

    gross negligence with regard to determining site eligibility in subsection (3)." These requirements include the following (set forth in subsection (9)(a) of the statute):

    Owners or operators of drycleaning facilities shall by January 1, 1997, install dikes or other containment structures around each machine or item of equipment in which drycleaning solvents are used and around any area in which solvents or waste-containing solvents are stored. Such dikes or containment structures shall be capable of containing 110 percent of the capacity of each such machine and each such storage area. To the extent practicable, each owner or operator of a drycleaning facility shall seal or otherwise render impervious those portions of all dikes' floor surfaces upon which any drycleaning solvents may leak, spill, or otherwise be released.

    Because the failure of the owner or operator of a drycleaning facility to timely comply with the foregoing secondary containment requirements constitutes "gross negligence," within the meaning of Section 376.3078(3)(a)3, Florida Statutes, such failure on the part of the owner or operator results in the facility being ineligible to participate in the Program.

16. In the instant case, the record evidence clearly and convincingly establishes that Petitioner failed to comply in a timely manner with the secondary containment requirements of subsection (9)(a) of Section 376.3078, Florida Statutes.

17. Petitioner does not deny that, by the January 1, 1997, deadline prescribed in this subsection of the statute, the Facility lacked the required secondary containment. Rather, he claims that the Department should, as it has done in the past in

    other cases, excuse his late compliance based upon "[e]quitable considerations."

18. In appropriate circumstances, principles of equity and fairness may be applied in administrative proceedings to prevent unjust results. See Occidental Chemical Agricultural Products, Inc. v. Department of Environmental Regulation, 501 So. 2d 674 (Fla. 1st DCA 1987) and cases cited therein ("It is noteworthy that the administrative process in this State routinely handles cases in which parties have introduced equitable estoppel issues."); Machules v. Department of Administration, 523 So. 2d 1132, 1133-34 (Fla. 1988)("The doctrine of equitable tolling was developed to permit under certain circumstances the filing of a lawsuit that otherwise would be barred by a limitations

    period. . . . The tolling doctrine is used in the interests of justice to accommodate both a defendant's right not to be called upon to defend a stale claim and a plaintiff's right to assert a meritorious claim when equitable circumstances have prevented a timely filing. Equitable tolling is a type of equitable modification which 'focuses on the plaintiff's excusable ignorance of the limitations period and on [the] lack of prejudice to the defendant.' . . . [E]quitable tolling, unlike estoppel, does not require active deception or employer misconduct, but focuses rather on the employee with a reasonably prudent regard for his rights. . . . Generally, the tolling doctrine has been applied when the plaintiff has been misled or

    lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum."). Petitioner, however, has not met his burden of establishing that this is an appropriate case for the application of these equitable principles. See Flanigan's Enterprises, Inc. v. Barnett Bank of Naples, 614 So. 2d 1198, 1200 (Fla. 5th DCA 1993)("It is well established that when estoppel is raised as a defense, the burden of proof is on the party asserting it."); see also Balino v.

    Department of Health and Rehabilitative Services, 348 So. 2d 349,

    
    

    350 (Fla. 1st DCA 1977)("[T]he burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.").

19. The doctrine of equitable tolling cannot be applied to excuse Petitioner's failure to have installed secondary containment by the January 1, 1997, deadline set forth in subsection (9)(a) of Section 376.3078, Florida Statutes. See Vantage Healthcare Corporation v. Agency for Health Care Administration, 687 So. 2d 306 (Fla. 1st DCA 1997)(Agency erred in accepting late-filed letter of intent from health care provider; in rejecting argument that doctrine of equitable tolling should be applied to extend the filing deadline, the court stated the following:

    In every case cited by Manatee in which the doctrine of equitable tolling has been applied, a party was attempting through judicial or quasi-judicial proceedings to

    assert or protect a claim or right. "The doctrine of equitable tolling was developed to permit under certain circumstances the filing of a lawsuit that otherwise would be barred by a limitations period." Machules v. Department of Administration, 523 So. 2d 1132 (Fla. 1988)(emphasis added). Machules considered the denial of an appeal as untimely. Similarly, in Stewart v. Dep't of Corrections, 561 So. 2d 15 (Fla. 4th DCA 1990) the court invoked the doctrine of equitable tolling and reversed dismissal of a notice of appeal which was filed one day late. Phillip v. University of Florida, 680 So. 2d 508 (Fla. 1st DCA 1996) was an appeal from the denial of a 120.57 hearing on the grounds that the petition had been untimely filed. In Castillo v. Dep't of Administration, 593 So. 2d 1116 (Fla. 2d DCA 1992), the court reversed and remanded the denial of a petition for an administrative hearing. Hamilton County Board of County Commissioners v. Dep't of Environmental Regulation, 587 So. 2d 1378 (Fla. 1st DCA 1991) also applied the doctrine in the context of actual litigation, as did Dep't of Environmental Regulation v. Puckett Oil Co., Inc., 577 So. 2d 988 (Fla. 1st DCA 1991).

    The certificate of need application process

    is not comparable to such judicial or quasi- judicial proceedings. We have found no authority extending the doctrine of equitable tolling to facts such as in the present case.)

    
    

20. Neither do the facts of the instant case justify the application of the doctrine of equitable estoppel. Equitable estoppel may be applied against the government only in rare instances and under exceptional circumstances to prevent the government from taking a position, with respect to an issue of fact, that is contrary to a position the government has previously asserted, where it would be unfair and inequitable, because of the other party's detrimental reliance on the

    government's previously-asserted position, to allow the government to now maintain such a position. A review of the record in the instant case does not reveal the presence of those "exceptional circumstances" necessary to sustain an estoppel claim against the Department.

21. "To sustain a claim of estoppel against the state or one of its subdivisions, there must be (1) a representation as to some material fact by the party estopped . . .; (2) reliance upon the representation by the party claiming estoppel; and (3) a change in such party's position caused by his reliance on the representation to his detriment. Furthermore, the [representation] on which the aggrieved party relied must be one on which he had a right to rely."' Monroe County v. Hemisphere Equity Realty, Inc., 634 So. 2d 745, 747 (Fla. 3d DCA 1994), quoting, with approval, from Calusa Golf, Inc. v. Dade County,

    426 So. 2d 1165, 1167 (Fla. 3d DCA 1983). In the instant case, there has been no showing made that the Department made any representation, factual or otherwise, that caused Petitioner to miss the January 1, 1997, installation deadline. The representations concerning secondary containment requirements that the Department made to Petitioner in advance of the deadline (which representations were made in the written material that the Department mailed to the Facility and all other registered drycleaning facilities) were neither inaccurate nor misleading. To the contrary, these representations put Petitioner on notice

    as to those things he needed to do and by when he needed to do them in order to meet statutorily-prescribed secondary containment requirements.

22. Notwithstanding the notice he received from the Department regarding these requirements, Petitioner failed to take the necessary action to ensure that these requirements were met. It was not until approximately eight months after the January 1, 1997, deadline that secondary containment was installed at the Facility.7 By all appearances, Petitioner's failure to act sooner was the product of his own lack of diligence, not circumstances that were beyond his control or otherwise extraordinary or unusual. Accordingly, even if the Department, in making Program eligibility determinations, had the authority to extend the statutorily-prescribed January 1, 1997, secondary containment installation deadline, this would not be an appropriate case to exercise such authority. Compare with Vantage Healthcare Corporation v. Agency for Health Care Administration, 687 So. 2d 306 (Fla. 1st DCA 1997)("Nor do the 'equities' in this situation mandate that this letter of intent be accepted, despite having been filed late. Manatee chose to wait until the eleventh hour, selected the carrier which was to deliver the letters, and failed to follow up and confirm that the letters had been received."); Environmental Resource Associates of Florida, Inc. v. Department of General Services, 624 So. 2d 330, 331 (Fla. 1st DCA 1993)("There is nothing extraordinary in

    the failure to timely file in this case. Quite to the contrary, the problem in this case is the too ordinary occurrence of a party's attorney failing to meet a filing deadline"; agency's "denial of an administrative hearing for the reason that appellant did not timely file a request for hearing" upheld).

23. It is true, as Petitioner points out, that the Department, following the policy laid out in its December 13, 1996, Memorandum (Exemption Policy), has "allow[ed] other facilities into the program that did not have secondary containment until after the January 1, 1997, deadline." Pursuant to this policy, however, a drycleaning facility that did not have secondary containment by January 1, 1997, will be deemed eligible by the Department to participate in the Program only if the following three conditions are met:

    1. The facility owner or operator should demonstrate that the facility began operations prior to January 1, 1996. Facilities that began operation after that date were required to have secondary containment when operation commenced.

       
       

    2. The facility owner should have a signed, binding contract, in accordance with Florida Statutes, which cannot be canceled or modified without substantial loss, that was executed by January 1, 1997.

       
       

    3. The installation shall be completed by April 30, 1997.

       
       

       Unlike the other cases where facilities have been allowed into the Program in accordance with Petitioner's Exemption Policy, in the instant case there was no "signed, binding contract" for

       installation of the required secondary containment executed on or before January 1, 1997, nor was the installation completed by April 30, 1997.8 Because these conditions were not met in the instant case, the Department's entry of a final order finding Petitioner's Facility ineligible to participate in the Program would not be inconsistent with the eligibility determinations it has made in those other cases where these conditions were met.

24. Petitioner has not demonstrated that the Department, at any time in the past, has found a drycleaning facility eligible to participate in the Program under circumstances substantially the same as those present in the instant case. Moreover, even if the Department had done so, it would not be bound to find Petitioner's Facility eligible to participate in the Program.

    The Department is not required to grant Program-eligible status to a drycleaning facility that does not meet the eligibility requirements set forth by the Legislature in Section 376.3078, Florida Statues, simply because it erroneously did so in a prior case involving a similarly situated facility.

25. Inasmuch as Petitioner's Facility does not meet the statutorily-prescribed Program eligibility requirements and "equitable considerations" do not mandate that these requirements be waived, it should be deemed ineligible to participate in the Program.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department issue a final order finding that that Petitioner's Facility is not eligible to participate in the Program.

DONE AND ORDERED this 4th day of May, 1999, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1999.

ENDNOTES

1/ In view of this stipulation, the lone legal issue remaining in dispute is whether Nu-Look One Hour Dry Cleaning is ineligible to participate in the Drycleaning Solvent Cleanup Program because it did not have secondary containment by January 1, 1997.

2/ See Brown v. Giffen Industries, Inc., 281 So. 2d 897 (Fla. 1973); W.T. Holding, Inc. v. Agency for Health Care Administration, 682 So. 2d 1224, 1225 (Fla. 4th DCA 1996);

Camerota v. Kaufman, 666 So. 2d 1042, 1045 (Fla. 4th DCA 1996); Allstate Insurance Co. v. Eckert, 472 So. 2d 807, 809 (Fla. 4th DCA 1985).

3/ Because the inspection took place after the statutory deadline (January 1, 1997) for secondary containment installation and after the April 30, 1997, deadline for secondary containment installation set forth in the Department's December 13, 1996,

Memorandum (which will be discussed later in this Proposed Recommended Order), any statements made by Mr. Chokshi during the inspection could not have been responsible for Petitioner's failure to have met these deadlines.

4/ Ms. Smith inspects over one hundred facilities per year.

5/ This constituted a four-month extension of the January 1, 1997, installation deadline. Four months is approximately the maximum amount of time that the Department ordinarily will give a noncompliant owner or operator of a drycleaning facility to correct a deficiency.

6/ These eligibility determinations have been made at the level of the Director of the Department's Division of Waste Management.

7/ In his post-hearing submittal, Petitioner argued that "[t]he fact that secondary containment was installed within thirty (30) days of notice to [him by Ms. Smith of his noncompliance with secondary containment requirements], and the statute's allowance for facilities in the program to come into compliance within a forty-five (45) day time period (Section 376.3078(3)(n)2, Florida Statutes) provides authority for entry into the program in this case." Petitioner's reliance on Section 376.3078(3)(n)2, Florida Statutes, is misplaced inasmuch as this subsection of Section 376.3078 addresses the continuing Program eligibility of drycleaning facilities which have met initial eligibility requirements and have been allowed into the Program, whereas the instant case involves a facility's efforts to gain initial entry into the Program. It is Section 376.3078(3)(a), Florida Statutes, not 376.3078(3)(n), Florida Statutes, which establishes the requirements for such initial entry into the Program of a drycleaning facility like Petitioner's.

8/ It is significant to note that, under the Exemption Policy, the owner/operator of a drycleaning facility, in order for the facility to be eligible for Program participation, must have done more than merely have entered into a written contract for installation of secondary containment by January 1, 1997. The owner/operator must have also monitored the progress of the contract work and made sure that the work was completed by

April 30, 1997. Accordingly, even if Petitioner produced a written contract for secondary containment installation executed on or before January 1, 1997, his Facility would still be ineligible under the Exemption Policy because secondary containment was not installed by April 30, 1997.

COPIES FURNISHED:

Kevin S. Hennessy, Esquire Lewis, Longman & Walker, P.A. 1700 Palm Beach Lakes Boulevard Suite 1000

West Palm Beach, Florida 33401

Scott A. Goorland, Esquire Jeffrey Brown, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk Office of the General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 98-002678

Orders for Case No: 98-002678