(DEP Facility No. 509502270), )
vs. ) Case No. 00-0995
Respondent. )
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on June 13, 2000, in West Palm Beach, Florida.
For Petitioner: Kevin S. Hennessy, Esquire
Lewis, Longman & Walker, P.A. 1700 Palm Beach Lakes Boulevard Suite 1000
The issue presented is whether Petitioner is eligible to participate in the Department's Drycleaning Solvent Cleanup Program.
By correspondence dated July 23, 1999, the Department advised Petitioner that its application for participation in the Drycleaning Solvent Cleanup Program was denied, and Petitioner timely requested an evidentiary hearing regarding that denial.
This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.
Petitioner Webbs Cleaners presented the testimony of Joseph C. Smith and Michael T. Smith. The Department presented the testimony of Leslie A. Smith and Susan M. Gash.
Additionally, Petitioner's Exhibits numbered 1-9 and the Department's Exhibits numbered 1-6 were admitted in evidence.
Both parties submitted proposed recommended orders after the conclusion of the final hearing. Those documents have been considered in the entry of this Recommended Order.
Petitioner, Webbs Cleaners, has operated as a dry cleaning facility for approximately twenty-five years under the consecutive ownership of two brothers, Joseph Smith and
Michael Smith. Joseph Smith owned the property and business
from approximately 1975 through 1986, when he sold the business to Michael Smith. Michael Smith sold the business back to Joseph Smith in February 1999. At all times Joseph Smith retained ownership of the real property.
Both owners operated Webbs Cleaners under the corporate structure of JCS, Incorporated. The corporation is a small business, never having earned one million dollars or more of gross revenue in any year.
Webbs Cleaners is a full-service laundry and dry cleaning business, operating at 1601 Broadway, Riviera Beach, Florida.
The dry cleaning business requires the use of a primary cleaning solvent called "perchloroethylene," commonly known as "perc." Webbs stores its supply of perc in the storage tanks of the dry cleaning machine. At the time of the Department's inspection, Webbs' dry cleaning machine had three separate storage tanks: a working tank, a distilling tank, and a fresh tank. Each tank had a volume capacity of approximately thirty to forty gallons.
At the time in question, Phenix Supply Company was Webbs' supplier. Phenix delivered perc to Webbs by truck and usually filled the dry cleaning machine by pump. When a shipment arrived, a lid would be removed on top of the dry cleaning machine and a hose run from the supply truck to the dry
cleaning machine inside Webbs Cleaners. Perc was then pumped from the truck directly into the dry cleaning machine's fresh storage tank. Because of the volumes usually delivered, perc was seldom delivered in five-gallon Dowper cans. When perc was delivered in Dowper cans, the cans were wheeled into the store on a hand truck and emptied into the storage tanks of the dry cleaning machine.
Due to the exorbitant cost of perc, the Smith brothers always made sure every last drop of perc was emptied from the Dowper cans and placed into the dry cleaning machine. All Dowper cans were left "bone dry," stored behind the dry cleaning machine, and returned to Phenix on the next delivery. In the past, the Smith brothers have left empty Dowper cans outside the store on the days they were to be picked up by the supplier or to temporarily make extra room in the secondary containment area.
Dry cleaning facilities generate various types of hazardous waste, which require proper disposal. Such wastes include: filters, filtered lint, bottom still residue (sludge and fatty acids), separator wastewater, mop water and fluorescent light bulbs. Webbs contracted with MCF to dispose of its hazardous wastes generated from the dry cleaning process. The hazardous wastes were placed in fifteen-gallon black drums supplied by MCF.
Pursuant to new regulations, Michael Smith installed a secondary containment system under and completely around his dry cleaning machine in August 1996. Secondary containment has been in place around Webbs' dry cleaning machine since that time.
On November 6, 1997, at approximately 7:00 a.m., Michael Smith placed two empty Dowper cans outside behind the dry cleaning facility so they could be picked up by Phenix. He also placed a five-gallon clear plastic container partially full of soap outside with the two Dowper cans.
At approximately 8:30 a.m. that day, Leslie Smith from the Department and Susan Gash from Palm Beach County appeared unannounced at Webbs to conduct an inspection. They noticed the secondary containment around the dry cleaning machine.
Facility inspections conducted by Leslie Smith are routine in nature, but extensive. Due to the difficulty in remembering all the details investigated at each facility, Leslie Smith uses a simple checklist system. Called an Inspection Exit Summary, the checklist quantifies deficiencies needing correction. The entire facility inspection report is condensed to a basic evaluation process whereby Leslie Smith simply adds all items marked with an "x," and the total number indicates the number of corrective responses which should be received from the owner/operator of the dry cleaning facility by
a specified date. Information is then exchanged with the owner/operator for each item marked with an "x."
Leslie Smith's routine is always the same. During a typical inspection she first asks for the facility operator, then notes what type of equipment is in use, requests to have any containers opened, takes photographs, and requests copies of business records. The first photograph is always of the dry cleaning unit, confirming if there is secondary containment around the unit and the type of unit in use. When she sees a closed container outside of the secondary containment area, she asks the facility operator to open it so she can see if it is empty. She "makes a big deal" out of determining whether containers have contents in them.
Susan Gash was an environmental specialist with Palm Beach County. At the time of the Webbs inspection, Gash performed inspections for the County's wellfield protection code. She attended the inspection with Leslie Smith because she was being trained on State-related compliance issues. Because Gash was present, Leslie Smith made her own inspection more rigorous than usual.
During the inspection, Leslie Smith and Susan Gash questioned Michael Smith about the contents of one black fifteen-gallon drum and about the three containers behind the facility. Joseph Smith acquired the black drum, located in the
rear of the building, in approximately 1976. When purchased, it contained dry cleaning soap, which is not a hazardous substance. Since it was emptied, the drum has been used on-site for storing sandbags. Webbs is located in an area prone to flooding during heavy rain, and the sandbags are used to help protect the front and rear entrances of the facility.
The five-gallon soap container and two Dowper cans located outside behind the facility were on the ground in a small area between the wall of the next building and a concrete wall between three and three and one-half feet high. The soap container made of clear, white plastic visibly contained liquid. Since soap is not a hazardous solvent, that container is not at issue in this proceeding.
The two Dowper cans at issue are gray, five-gallon cans. On the morning of the inspection, these two empty Dowper cans and the five-gallon soap container had been located within the secondary containment area inside the facility. Because he needed more room, Michael Smith placed the two Dowper cans and the soap container outside between the two walls. He would never have placed the Dowper cans outside if they still contained any perc because perc is hazardous and must be stored within secondary containment and because perc is very expensive and anything of value placed outside his premises in Riviera Beach would be stolen.
For whatever reasons, Leslie Smith chose not to follow her normal routine during the Webbs inspection. Although she always made a "big deal" out of determining whether containers had contents and had the facility operators open them to verify their contents or determine that they were empty, she did not request that any containers at Webbs be opened for inspection. At the final hearing, she testified that she had no authority to open containers to determine contents.
Leslie Smith initially testified that she tried to pick up the Dowper cans but could not lift them because full Dowper cans weigh forty to fifty pounds. She later testified that she could not recall whether she tried to pick them up, shake them, or kick them because she has no recollection after three years. Her notes reflect that the cans were full but do not indicate how she knew that or why she assumed that.
On the other hand, Susan Gash testified that even after three years she has a specific memory of taking her left foot, placing it at the top edge of a Dowper can, and pushing it to determine if the can were empty by rocking it back and forth and listening for splashing. She recalls hearing splashing and that Leslie Smith walked around her, bent over, and picked up the can to determine if it were empty.
Leslie Smith's testimony conflicts with portions of her own testimony and that of Susan Gash. It is unlikely that
Susan Gash rocked one of the Dowper cans back and forth since the Department's own photograph reflects the three cans snuggled tightly into a small area between the wall of the next building and a concrete wall which the uncontroverted testimony describes as three to three and one-half feet high. Further, even if credibility is afforded to their testimony, only one can was discussed, and two Dowper cans are at issue in this proceeding.
When asked by Leslie Smith and Gash about the cans, Michael Smith told them the Dowper cans were "bone dry." He did not see Leslie Smith or Susan Gash lift, push, or kick the cans. Gash told him to put the cans inside the facility, and he did so while the inspectors were still at the facility. He had no difficulty lifting or carrying the empty Dowper cans.
Leslie Smith believes that containers of perc not within secondary containment have the largest potential for harm to the environment that she could encounter at a dry cleaning facility. Yet, she did not react to the situation with any immediate concern. She did not direct Michael Smith to place the outside cans inside the secondary containment area. She did not contact Michael Smith or re-visit the site at any later time. She did not direct the Department's hazardous waste employees to the site until three months later. It can only be concluded that Leslie Smith did not believe the Dowper cans
contained any perc. Accordingly, the two Dowper cans were empty on the day in question and did not need to be stored within secondary containment.
Another alleged violation during the November 1997 visit involves a waste drum, which Leslie Smith noted was only partially within the secondary containment area. However, she has no recollection, and her notes do not reflect, whether the drum contained any waste. Webbs is not guilty of gross negligence regarding the waste drum.
The last alleged violation during the inspection refers to whether a container of picrin, which is used for spotting, was outside the secondary containment area and contained solvents equal to more than one quart in volume. Leslie Smith has no recollection, and her notes do not reflect, the volume of the contents in the container. Webbs is not guilty of gross negligence regarding the container of picrin.
The Department's inspection exit summary potentially contains information a facility operator needs in order to know what corrective action, if any, is required. Leslie Smith concedes that without a copy of the inspection exit summary, there would be a great deal of confusion as to what a dry cleaning facility would be required to do to respond appropriately to her investigation. The Department mailed Webbs' copy of the summary to the wrong address.
Michael Smith did not provide any documentation to the Department after Leslie Smith's inspection because it was his understanding that the Department would return after thirty days to re-inspect his premises to verify that any corrective action had been taken. Leslie Smith later reported to the Department's Tallahassee office that Michael Smith had failed to provide a "characterization" or hazardous waste determination report that she had instructed him to obtain from a professional testing source as to the contents of the empty Dowper cans.
After learning from Michael in early 1998 that the Department had performed an inspection at Webbs, Joseph Smith went to the Department's local office and obtained a copy of the inspection report. He then took photographs showing that all corrective actions had been taken and delivered them to the Department. Thereafter, he received no contact from the Department and assumed that nothing further was needed.
In early 1998, Webbs replaced its dry cleaning machine with a new machine and a new secondary containment system. The machine and secondary containment system were purchased and installed simultaneously as a single unit and are still in use.
In February 1998, Susan Gash performed a re-inspection of Webbs for Palm Beach County. She found the facility to be in compliance with all requirements. She found no containers behind the building.
In approximately December 1998, Joseph Smith hired a civil engineer to determine if Webbs needed to participate in the Department's Drycleaning Solvent Cleanup Program. Soil borings were taken, and testing revealed that the site had some dry cleaning solvent contamination.
An application for eligibility in the program was completed and jointly filed by both Joseph Smith, the property owner, and Michael Smith, the owner of the dry cleaning business at that time. The application was filed under the name of Webbs Cleaners.
Webbs Cleaners has never been fined or had any administrative action taken against it.
Webbs Cleaners has never willfully discharged solvents or willfully concealed any discharge.
Webbs Cleaners has never been found to have violated any local, State, or federal law regulating the operation of a dry cleaning facility.
From August 1996 through the time of the final hearing in this cause, Webbs has continuously used secondary containment systems under and around the dry cleaning machine and where solvents and waste materials containing solvents have been used or stored.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.
In order to be eligible for the Department's Drycleaning Solvent Cleanup Program, a dry cleaning facility must meet the requirements set forth in Section 376.3078(3), Florida Statutes. Pursuant to that statute, an applicant must, inter alia, be in compliance with the Department's rules and not have been operated in a grossly negligent manner after November 19, 1980.
RECOMMENDED that a final order be entered determining that Webbs Cleaners is eligible to participate in the Department's Drycleaning Solvent Cleanup Program.
LINDA M. RIGOT
Kevin S. Hennessy, Esquire Lewis, Longman & Walker, P.A. 1700 Palm Beach Lakes Boulevard Suite 1000
Kathy C. Carter, Agency Clerk Office of General Counsel
Teri L. Donaldson, General Counsel Department of Environmental Protection
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.
