STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FINAL ORDER

On February 11 and 25, 2008, a final administrative hearing was held in this case in Tallahassee, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Georgiana Holmes, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent: William R. Waters, Jr., Esquire

Waters & Wolk, P.A.

1618 Mahan Center Boulevard, Suite 104

Tallahassee, Florida 32308-5453

STATEMENT OF THE ISSUES

The issues in this case are whether the Respondents, Enos Kerr and Custom Care Dry Cleaning, Inc., are guilty of the violations alleged in, should take the corrective actions

described in, and should pay the penalties assessed in the Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment, DEP OGC File No. 06-2382-37-HW (the NOV).

PRELIMINARY STATEMENT

The NOV was issued on May 22, 2007. The Respondents filed a Petition for Formal Administrative Review, and the matter was referred to the Division of Administrative Hearings (DOAH) on August 17, 2007. The matter was scheduled for a final hearing on November 25-26, 2008, but a Joint Motion for Continuance was granted, and the final hearing was rescheduled for February 11 and 25, 2008.

On January 28, 2008, the Petitioner, the Department of Environmental Protection (DEP, or the Department), filed a Motion for Summary Final Order. On February 5-6, 2008, the parties filed unilateral prehearing statements, and DEP filed objections to the statement filed by the Respondents. On February 8, 2008, DEP filed a Motion in Limine and a Motion for Judicial Notice.

At the outset of the final hearing on February 11, 2008, the Motion for Summary Final Order and Motion in Limine were denied, and the Motion for Judicial Notice was granted.

During the final hearing, DEP called John Johnson, an Environmental Specialist II who inspected Respondents' premises and participated in enforcement activities, and James Byer, an Engineer IV and Mr. Johnson's supervisor. DEP also had its Exhibits P-1 through P-3, P-5, P-8, P-10 through P-12, P-14, P-16

through P-39, and P-43 admitted in evidence. Enos Kerr testified for the Respondents, who also had Respondents' Exhibits 1 through

5 admitted in evidence. In rebuttal, DEP re-called Mr. Byer and also called William Linn, a professional geologist employed by DEP.

After presentation of evidence, the parties requested a transcript of the final hearing and were given ten days from the filing of the transcript in which to file proposed final orders (PFOs). The Transcript was filed (in three volumes) on March 11, 2008. The timely filed PFOs have been considered in the preparation of this Final Order.

FINDINGS OF FACT

1. Enos Kerr is the President and manager and an owner of Custom Care Dry Cleaning, Inc., a dry-cleaning business located in Tallahassee, Florida. The Respondents have been in business for approximately twenty-five years. For approximately ten years, Custom Care has used Vista LPA-142 as a dry-cleaning solvent. Custom Care uses a spotting agent known as "Picrin" for removal of difficult stains.

2. Vista LPA-142 is also known as paraffinic, napthenic solvent, and aliphatic solvent. It contains 100 percent paraffinic or napthenic solvent. It looks like water but is a white oily liquid that has the odor of hydrocarbon and is a kind of "mineral spirits."

3. "Picrin" contains more than 98 percent chlorinated hydrocarbon. It is listed at 40 Code of Federal Regulations (CFR) § 372.65 and exceeds the de minimis concentration defined in 40 CFR § 372.38.

4. On August 18, 2006, John Johnson, a DEP Environmental Specialist, inspected the premises of Custom Care. He found two partially full 55-gallon steel drums of Vista LPA-142 outside of secondary containment, which contained a 110-gallon storage tank and Custom Care's Midwest dry-cleaning machine (which has a base tank that stores used Vista LPA-142 which has passed through a Filter King purification system for reuse in the dry-cleaning machine). He testified that, not only did Mr. Kerr tell him the drums were full or partially full, they were heavy enough from being full or partially full that Mr. Johnson could not move them easily.

5. On August 18, 2006, Mr. Johnson also observed, hanging on the outside of the wall of the secondary containment area, above the 55-gallon drums, some of the clear plastic tubing, a pump, and a PVC pipe extending from the end of the tubing, which were used to transfer Vista LPA-142 from the 55-gallon drums into the 110-gallon storage tanks. The floor beneath the transfer equipment and the 55-gallon drums was not sealed or otherwise treated to render it impervious.

6. In another part of the premises on that date, also outside secondary containment, was a Forenta spotting board used

   for removal of difficult stains from fabric before placement in the dry-cleaning machine. Various chemicals, including a plastic bottle containing "Picrin," were in a box or tray attached to the spotting board. Beneath the spotting board was an open plastic waste basket used to collect and contain spotting agent suctioned from the item of clothing being cleaned and funneled to the basket. The floor under the spotting board was not sealed.

7. Custom Care's Filter King purification system uses cloth filters. Periodically, Custom Care replaces the filters containing lint from the dry-cleaning process. The old filters are allowed to air-dry in the secondary containment area before disposal in the municipal solid waste dumpster outside the premises.

8. At the end of Custom Care's dry-cleaning process, the dry-cleaned clothes are wrung out during a mechanical spinning cycle and then manually transferred while still damp or somewhat wet to a Huebsch dryer, which is outside secondary containment and on a floor that was not sealed on August 18, 2006. Air- drying is the last step in the process.

9. DEP did not have the filters and lint analyzed to prove that they were contaminated with Picrin or any other hazardous substance. Instead, DEP assumed that there was some contamination, however small, and relied on the federal "mixture" rule that even the smallest amount of hazardous waste

   contamination turns previously unregulated solid waste into regulated hazardous waste.

   Count I - Secondary Containment

   
   

10. Respondents' factual defenses to Count I, for not having the Vista LPA-142 in secondary containment on August 18, 2006, are: (1) secondary containment was not required because Vista LPA-142 is not a "dry-cleaning solvent"; and (2) if secondary containment was required, all of the Vista LPA-142 was in secondary containment because the 55-gallon drums and transfer equipment were empty.

11. In support of their first defense to Count I, Respondents maintain that Vista LPA-142 is an aqueous solvent because an analysis of a sample from the base tank that collects used Vista LPA-142 after use and filtration for reuse in the dry- cleaning machine indicates the presence of 0.34 percent water. However, the presence of that small amount of water in the sample did not prove that Vista LPA-142 is an aqueous solvent.

12. Custom Care also contends that Vista LPA-142 is not a "dry-cleaning solvent" because Custom Care buys it from Phenix Supply Company, which not only sells product to dry-cleaners but also sells to other businesses for other uses, making Phenix Supply something other than a "wholesale supply facility." This contention is rejected. See Conclusion 33, infra.

13. Also in support of their first defense to Count I, Respondents pointed to information received from the producer of

    Vista LPA-142 that it was biodegradable to carbon dioxide and water. However, biodegradation would occur only in the presence of water and naturally-occurring microorganisms and aerobic conditions. Such biodegradation does not mean that Vista LPA-142 is an aqueous-based solvent and not a naphthenic, petroleum- based, dry-cleaning solvent.

14. Respondents also believed Vista LPA-142 was not a petroleum-based dry-cleaning solvent because it has a flashpoint above 140 degrees Fahrenheit. But there was no evidence to prove that having a flashpoint above 140 degrees Fahrenheit means that the Vista LPA-142 is an aqueous-based solvent and not a naphthenic, petroleum-based, dry-cleaning solvent.

15. In support of their second defense to Count I, Mr. Kerr denies telling Mr. Johnson the 55-gallon drums were full or partially full and maintains that the presence of a bung wrench on one of the drums was a fail-safe sign that both were empty (and, essentially, proved that Mr. Johnson was lying). Supposedly, according to Respondents, the Vista LPA-142 always is transferred immediately upon delivery from the 55-gallon drums into the 110-gallon tank and, sometimes, also into the base tank, and that the bung wrench is placed on one of the empty drums as a signal to the supplier that the drums are empty and ready to be removed when the supplier returns in two weeks to check on the drums to see if they are empty and ready to be picked up. This explanation is not logical. To the contrary, the use of the

    bung-wrench signal tends to prove the opposite--i.e., that the drums were not empty. If the Vista LPA-142 always is immediately transferred in its entirety, there would be need for a bung- wrench signal. Indeed, the Vista LPA-142 could be immediately transferred by the supplier (or by the Respondents while the supplier was still on the premises). In addition, Mr. Kerr conceded that there have been many other occasions when the 55- gallon drums were not completely transferred into the 110-gallon storage tank immediately upon delivery. There also have been occasions when three 55-gallon drums have been delivered by the supplier, all of which would not fit into the 110-gallon reserve tank and the base tank.

16. In addition, during an enforcement meeting on September 13, 2006, to discuss a draft Hazardous Waste Inspection Report, while noting other issues with findings in the report, Mr. Kerr did not take issue with findings concerning the 55- gallon drums.

17. Also in support of their second defense to Count I, Respondents maintain that the transfer equipment is emptied of all Vista LPA-142 before it is re-hung on the wall. This can indeed be accomplished by quickly extracting the PVC extension from the drum, reversing its orientation by 180 degrees so that it point toward the ceiling, and continuing to run the pump until the tubing is empty. In any event, while stains on the concrete floor under where the PVC pipe is hung on the wall may be from

    Vista LPA-142, which would suggest that the procedure is not always followed to perfection, the NOV did not cite Respondents having the transfer equipment outside of secondary containment.

    Count II - Unsealed Flooring

    
    

18. Respondents' factual defense to Count II, for not having the flooring sealed between the secondary containment area where the dry-cleaning machine was and where the Huebsch dryer was, or where the 55-gallon drums were, is that secondary containment was not required because Vista LPA-142 is not a "dry- cleaning solvent." Factually, that defense already has been addressed in Findings 11-14, supra.

    Count III - Disposal of Solid Waste

    
    

19. Respondents' factual defenses to Count III, for unpermitted and unauthorized disposal of solid waste (i.e., the filters and lint) on August 18, 2006, are: (1) that disposal of the filters and lint in the municipal solid waste dumpster is permitted and authorized because they are not hazardous waste; and (2) that, if they were hazardous waste, they were hazardous due to contamination with Picrin, not with tetrachloroethylene, also known as perchloroethylene or "perc," as alleged in the NOV.

20. In support of their first defense to Count III, Respondents contend that all Picrin used in spot removal would be suctioned out of the item of clothing and collected in the container below the spotting board, or would be evaporated by the steam used in the spot removal process. Indeed, Picrin's boiling

    point is 165 degrees Fahrenheit, which is lower than the temperature of steam.

21. Respondents contend, as proof of their first defense, that if any trace of Picrin remained on clothing after spot removal, it would be diluted in the Vista LPA-142 used in the

    dry-cleaning process and then returned to the base tank for reuse after the clothes are wrung out, but that a laboratory analysis of a sample of from the base tank did not indicate the presence of anything but water. However, actually the analysis was only performed to detect the presence of water; the sample was not analyzed for the presence of Picrin, or any of its breakdown products, or anything other than water. There may be traces of Picrin in the contents of the dry-cleaning machine's reservoir.

    Besides, even if there is no Picrin in the dry-cleaning machine's base tank, that evidence would not preclude the possibility that Picrin is filtered out by the Filter King purification process and is present in the filters and lint.

22. Regardless, while the first defense to Count III was not proven, DEP presented no evidence on the question whether it is likely the filters and lint would be contaminated with Picrin. Rather, DEP's evidence assumed contamination without any further proof.

23. As to Respondents' second defense to Count III, the NOV does in fact reference tetrachloroethylene, also known as perchloroethylene or "perc." However, it also calls the chemical

    "Picrin ® which contains 100% Tetrachloroethylene ('Perc')." The confusion arose because, during his inspection, Mr. Johnson obtained from Custom Care's files a Material Safety Data Sheet (MSDS) for Picrin. When he consulted with the manufacturer, he was told that the MSDS was out-of-date, and the manufacturer provided him with the current MSDS for Picrin. Then, the draft Hazardous Waste Inspection Report discussed during the enforcement meeting on September 13, 2006, referred to "today's Picrin [which] contains 100% Trichloroethylene ('Perc')."

    Mr. Kerr pointed out that "perc" was tetrachloroethylene, not trichloroethylene. From this, Mr. Johnson and Mr. Byer understood Mr. Kerr to be admitting to the use of "perc," which he was not. In an attempt to correct the report in accordance with Mr. Kerr's comment, DEP modified the report so that the final draft referred to: "today's Picrin [which] contains 100% Tetrachloroethylene ('Perc')."

24. Even if the NOV is not defective in referring to "Perc" instead of clearly stating that Picrin was the alleged hazardous waste involved, DEP failed to prove that Picrin was mixed with the filters and lint. For that reason, DEP did not prove the allegations in Count III.

    Count IV - Investigative Costs

    
    

25. The Department's proof of investigative expenses incurred consisted of the salary compensation paid to its investigators.

26. Mr. Johnson’s salary is $17.53 per hour. He spent approximately 55 hours conducting inspections and investigating this case, which totals $964.15.

27. Mr. Byer’s salary is $22.87 per hour. He spent approximately 96 hours investigating this case, which totals

    $2,195.52.

    
    

    Corrective Actions

    
    

28. Upon re-inspection of the premises on November 8, 2006, Respondents were in compliance with all requirements. Deliveries of Vista LPA-142 were being transferred into the 110-gallon storage tank and base tank by the supplier upon delivery, and Respondents had sealed the flooring appropriately. It is not clear from the evidence what was being done with the filters and lint, but apparently they were being appropriately disposed of as hazardous waste at the time of the follow-up inspection.

    Other Mitigating Circumstances

    
    

29. The evidence reflects a misunderstanding on the part of Respondents that, because Custom Care uses Vista LPA-142 and is considered a "mineral spirits" dry-cleaner, as opposed to a "perc" dry-cleaner that uses "perc" or some other form of chlorinated hydrocarbon that is a hazardous material in its dry- cleaning machine, it is not governed by dry-cleaning statutes and regulations.

    CONCLUSIONS OF LAW

    
    

30. This is an administrative proceeding under Section 403.121(2), Florida Statutes. Under paragraph (d) of that subsection, the Department has the burden of proving by a preponderance of the evidence that Respondents are responsible for the alleged violations; and, since penalties are assessed in the NOV, "the administrative law judge shall issue a final order on all matters, including the imposition of an administrative penalty."

31. Counts I and II allege violations of Section 376.3078, Florida Statutes, which in pertinent part requires that drycleaning facilities:

    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. . . . 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.

    
    

32. Section 376.301, Florida Statutes, includes the following definitions:

    1. "Drycleaning facility" means a commercial establishment that operates or has at some time in the past operated for the primary purpose of drycleaning clothing and other fabrics utilizing a process that involves any use of drycleaning solvents. The term "drycleaning facility" includes laundry facilities that use drycleaning solvents as part of their cleaning process. The term does not include a facility that operates or has

       at some time in the past operated as a uniform rental company or a linen supply company regardless of whether the facility operates as or was previously operated as a drycleaning facility.

       
       

    2. "Drycleaning solvents" means any and all nonaqueous solvents used in the cleaning of clothing and other fabrics and includes perchloroethylene (also known as tetrachloroethylene) and petroleum-based solvents, and their breakdown products. For purposes of this definition, "drycleaning solvents" only includes those drycleaning solvents originating from use at a drycleaning facility or by a wholesale supply facility.

       
       

       Under these definitions, Custom Care is a "drycleaning facility," and Vista LPA-142 is a "drycleaning solvent."

33. Respondents contend that Custom care is not a "drycleaning facility" because it does not use a "drycleaning solvent" because the Vista LPA-142 it uses was not "originating from use at a drycleaning facility or by a wholesale supply facility." Respondents contend that their supplier, Phenix Supply Company, is not a "wholesale supply facility" because it also sells for uses other than dry-cleaning. However, while the first part of the definition is circular (dry-cleaning solvents originate from use at a dry-cleaning facility, which is a facility that uses dry-cleaning solvents), it is concluded that not only does the Vista LPA-142 in question originate from use at a dry-cleaning facility, but also that Phenix is a "wholesale supply facility."

34. Count III alleges improper disposal of solid waste under Florida Administrative Code Rule 62-701.300(1)(a). Picrin is a hazardous waste. See § 376.301(54); Fla. Admin. Code R. 62-730.030(1); CFR §§ 261.3(a)(2)(ii) and 261.31(a)(F002). A mixture of Picrin and non-hazardous waste makes the mixture a hazardous waste. See CFR § 261.3(a)(2)(iv). However, as found, DEP failed to prove that Picrin was mixed with the solid waste disposed of in the municipal solid waste dumpster.

35. It is recognized that federal regulations placed certain obligations on a generator of hazardous waste to determine and report whether a mixture constitutes hazardous waste. See CFR §§ 262.11 and 372.30(a). However, Petitioner is not charged with violating those regulations.

36. Section 403.121(4)(e) and (5), Florida Statutes, establishes a penalty of $4,000 for the violation alleged in Count I and $500 for the violation alleged in Count II.

37. Section 403.121(10), Florida Statutes, allows reduction of a penalty up to 50 percent upon consideration of mitigating circumstances, "including good faith efforts to comply prior to or after discovery of the violations by the department." It also provides: "Upon an affirmative finding that the violation was caused by circumstances beyond the reasonable control of the respondent and could not have been prevented by respondent's due diligence, the administrative law judge may further reduce the penalty." While there was no evidence of circumstances beyond

    Respondents' reasonable control that caused the violations in issue, there was evidence that Respondents made good faith efforts to comply both prior to discovery of the violations (when they thought they were in compliance because they were a "mineral spirits" dry-cleaner, not a "perc" dry-cleaner, and therefore not subject to the dry-cleaning statute) and after discovery of the violations (as reflected in their being back in compliance at the time of the follow-up inspection on November 8, 2006). For that reason, a ten percent reduction of the penalty is appropriate.

    After reduction, the appropriate penalties are $3,600 under Count I and $450 under Count II.

38. DEP requests that Respondents be held liable for the salary compensation of Messrs. Johnson and Byer for their time spent working on this matter under Section 403.141(1), Florida Statutes. Under that statute, Respondents are liable for the "reasonable costs and expenses of the state in tracing the source of the discharge, in controlling and abating the source and the pollutants, and in restoring the air, waters, and property, including animal, plant, and aquatic life, of the state to their former condition . . . ." Recovery of salary compensation of DEP employees is permissible under proper circumstances under this statute. See Dept. of Environmental Protection v. Gainey, DEP OGC Case No. 00-0696, DOAH Case No. 00-2391, 2001 Fla. ENV LEXIS 168, *7 (ruling on Exception 2) (DEP June 22, 2001). But in this case, there was no proof of pollution that had to be traced,

    controlled, or abated, or any need for restoration. For that reason, no costs or expenses are recoverable in this case.

39. Section 403.121(2)(f), Florida Statutes, also provides for payment of certain costs of the prevailing party, but DEP made no request under that statute, and the salary compensation of DEP employees would not be recoverable under that statute.

40. Under Section 403.121(11), Florida Statutes, penalties collected pursuant to Section 403.121 "shall be deposited in the Ecosystem Management and Restoration Trust Fund or other trust fund designated by statute and shall be used to fund the restoration of ecosystems, or polluted areas of the state, as defined by the department, to their condition before pollution occurred." No other trust fund appears to have been designated by statute. In addition, Section 403.1651(2)(a), Florida Statutes, provides that the Ecosystem Management and Restoration Trust Fund "shall be used for the deposit of all moneys recovered by the state" under Chapter 403, Florida Statutes.

DISPOSITION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:

That Respondents, jointly and severally, shall pay $4,050 in penalties into the Ecosystem Management and Restoration Trust Fund. Payment shall be made by cashier’s check or money order payable to the "State of Florida Department of Environmental Protection" and shall include thereon the notations "OGC Case No.

06-2382-37-HW" and "Ecosystem Management and Restoration Trust Fund." The payment shall be sent to the State of Florida Department of Environmental Protection, District Director, Northwest District, 160 Governmental Center, Pensacola, Florida 32502-5794.

DONE AND ORDERED this 2nd day of April, 2008, in Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON 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 2nd day of April, 2008.

COPIES FURNISHED:

Lea Crandall, Agency Clerk

Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Georgiana Holmes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard Mail Station 35

Tallahassee, Florida 32399-3000

William R. Waters, Jr., Esquire Waters & Wolk, P.A.

1618 Mahan Center Boulevard, Suite 104

Tallahassee, Florida 32308-5453

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 07-003702EF

Orders for Case No: 07-003702EF