STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 90-6665
)
SAFETY KLEEN CORPORATION, )
)
Respondent. )
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 90-7360
)
DOLORES MAROTTA, )
)
Respondent. )
)
RECOMMENDED ORDER
These consolidated cases were heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on May 1 and 2, 1991, in West Palm Beach, Florida.
APPEARANCES
For Petitioner, Agusta P. Posner, Esquire
Department of Department of Environmental Regulation Environmental 2600 Blair Stone Road
Regulation: Tallahassee, Florida 32399-2400
For Respondent, Pamela P. Garvin, Esquire Safety Kleen Fowler, White, Gillen, Boggs Corporation: Villareal and Banker, P.A.
101 North Monroe Street, Suite 910 Tallahassee, Florida 32301
and
Hala M. Ayoub, Esquire Fowler, White, Gillen, Boggs,
Villareal and Banker, P.A.
501 East Kennedy Boulevard Tampa, Florida 33602
For Respondent, Mary F. Smallwood, Esquire Dolores Marotta: Ruden, Barnett, McClosky, Smith,
Schuster and Russell, P.A. Monroe Park Tower, Suite 1010
101 North Monroe Street Tallahassee, Florida 32301
and
Susan P. Motley, Esquire
Ruden, Barnett, McClosky, Smith, Schuster and Russell, P.A.
Post Office Box 1900
Fort Lauderdale, Florida 33302 STATEMENT OF THE ISSUE
The issue presented is whether Safety Kleen discharged hazardous wastes into the soils and groundwater at a location which it had leased from Dolores Marotta at 1202 Georgia Street, Delray Beach, Florida, from October 1976 to September 1981, and if so, what corrective action should be required of Safety Kleen and Marotta.
PRELIMINARY STATEMENT
The Department of Environmental Regulation issued a notice of violation and order for corrective action on June 17, 1990, alleging that Safety Kleen discharged hazardous materials into the soils and groundwater at property it had leased as an office and warehouse located at 1208 Georgia Street, Delray Beach, Florida, during the period from October, 1976 through September, 1981. The order also ran against the lessor of the property, Dolores Marotta. The proposed orders for corrective action required a contamination assessment plan, and would ultimately require Safety Kleen and Marotta to carry out a remedial action plan.
Safety Kleen petitioned for a formal hearing, as did Ms. Marotta. These separate hearing requests were consolidated in an order entered November 27, 1990. The Department called 10 witnesses and introduced 14 exhibits in evidence. Safety Kleen called four witnesses and introduced 16 exhibits. Mrs. Marotta called one witness and introduced 1 exhibit. A transcript of the hearing was filed and the parties submitted proposed recommended orders.
Rulings on proposed findings of fact are made in the appendix to this Recommended Order.
FINDINGS OF FACT
The Property
Domenic Marotta and Dolores Marotta purchased mini-warehouse property located at 1208 Georgia Street, Delray Beach, Florida in 1977 or 1978, located on a one acre parcel of land. The structure was one year old when the Marottas acquired it. They remained co-owners of the property until 1985, when Dolores Marotta became the sole owner as the result of their divorce.
The property is composed of a concrete structure of about 16,000 square feet which contains twelve warehouse bays, six on each side. These bays have been rented to tenants who conduct a variety businesses from the bays. A concrete slab surrounds the warehouse in front of the bays. Approximately two
feet of soil may be found horizontally from the edge of the concrete slab extending to the chain link fence surrounding the Marotta property. Safety Kleen rented bays at the southeast corner of the warehouse complex.
The warehouse complex is located within the cone of influence for the well field that produces potable water for the City of Delray Beach. The groundwater flows to the northwest, toward the well field. The area upgradient of the warehouse site to the east and south is residential. There is no significant likelihood that the residential area would be the source of groundwater contamination flowing from the residences to the warehouse site. Contamination of the warehouse site would move with the groundwater to the northwest, toward the City of Delray Beach well field.
Safety Kleen and its business
Safety Kleen is a Wisconsin Corporation which does business in Florida. It operates solvent distribution and recycling centers as part of its business. It rented bays from the Marottas in the southeast portion of the warehouse building from October 1976 to September 1981 for use as one of its retail centers. Retail centers are the base for Safety Kleen vans which place and maintain products, including sinks filled with its number 105 parts washer solvent. Customers, such as gas stations and mechanics, use the solvent to degrease auto parts and then dispose of the dirty degreasing solvent through Safety Kleen.
Safety Kleen described its business operations in this way in a letter sent to the U.S. Department of Environmental Protection Agency:
Safety Kleen Corp. (the Company) is engaged in the business of collecting spent solvent and other waste materials generated by its customers, and recycling those materials for reuse. During the period October, 1976 to September, 1981, which was the term of the lease between Safety Kleen and the owner of the site [the Marottas], the company leased a site at 15776 Gwenzell Avenue, also known as 1208 Georgia Street, Delray Beach, Florida as a service center.
* * *
The service center was equipped with two ten thousand gallon storage steel underground tanks, one used to store clean mineral spirits solvent, the other to store waste mineral spirits solvent received from customers.
* * *
The underground storage tanks were installed at the facility by Safety Kleen in 1976.
* * *
On a periodic basis, tanker trucks owned by the company would bring clean solvent to the service center, and remove waste solvent from the dirty solvent tank, for transportation to one of the Company's recycle centers.
* * *
Waste mineral spirits stored in the underground steel tank was a characteristic hazardous waste as described in 40 C.F.R. 261 Subpart C. This waste mineral spirit solvent exhibited the characteristic of ignitability, and was classi- fied as Waste D001.
* * *
At that time of discontinuation of business operations at the Georgia Street facility, no soil or groundwater samples were collected
in the proximity of the underground tanks.
Safety Kleen's 105 parts washer solvent is an aliphatic hydrocarbon solvent, with a medium boiling range. It consists of C9 to C13 hydrocarbons predominately. Its has an initial boiling point of around 300 degrees Fahrenheit and an endpoint of approximately 400 to 420 degrees Fahrenheit. The parts washer solvent consists of approximately 85 percent by weight of mineral spirits. The second component is C8+ aromatics up to and including 12 percent by weight. The remainder is toluene, .5 of 1% by weight, xylene, up to 1% by weight, ethylbenzene at .5 of 1% by weight, 1,1,1,-trichloroethane at up to .5 of 1% by weight, perchlorethylene at up to .5 of 1%, and napthalene at .2 to .3 of 1% by weight.
The parties stipulated that benzene, 1,2-dichloroethylene, ethylbenzene, tetrachloroethylene, 1,1,1-trichloroethane, and xylenes are chemical constituents and breakdown components of mineral spirits such as those used by Safety Kleen in its retail operations.
Safety Kleen activities on the site
The two ten thousand gallon underground storage tanks Safety Kleen installed were pressure tested before the first load was placed in them and tightness tests were preformed twice, and showed no leaks. In 1978, the tanks were sandblasted and coated with epoxy resin to extend their life, a treatment which carried a ten year guarantee from the supplier. Safety Kleen is the only tenant to have used the underground storage tanks which it installed at the site. When closed the tanks were emptied, washed, scrubbed with detergent, and filed with clean water.
To serve its retail customers, the Safety Kleen distribution and recycling center at Georgia Street would have five to seven delivery vans loading virgin mineral spirits sold as parts washer solvent, and unloading waste mineral spirits each day. Since the parts washer solvent is 85% mineral spirits, it will be referred to as mineral spirits or solvent. Each day about
13 drums of dirty solvent collected from customers were rolled off each of the five to seven vans, and pushed over into a dumpster (also sometimes called a hopper). Two sizes of drums were used, 16 gallon and 30 gallon drums, and when filled, those drums were quite heavy. The dumpster drained through pipes into one of the underground storage tanks Safety Kleen had installed. After the drums themselves had been cleaned, Safety Kleen employees refilled those drums with virgin mineral spirits from the other underground storage tank it had installed. The employees were trained and tested on proper procedures for filling and tipping barrels of mineral spirits. They were instructed on safety procedures for handling mineral spirits, and were trained in the use of EPA wipes for cleaning small spills, the use of a clay-like absorbent material, and the use of absorbent rope to encircle spills. All these materials were available on-site. The accounting system for these safety products show that
the safety products were being replaced as on-going maintenance items, but it cannot be determined from the record the extent to which these items were used in any period of time.
The clean underground solvent storage tank would be filled with mineral spirits and the dirty solvent storage tank would be emptied at regular intervals by the driver of a tank truck.
The manager in charge of the southeast for Safety Kleen, was the regional manager for the Florida service centers during most of the time Safety Kleen operated the Georgia Street facility. He acknowledged at hearing that drips in small amounts of both fresh and dirty mineral spirits would occur in the course of Safety Kleen's recycling operations and such spills were an inherent part of the operation. On the other hand, employees were constantly reminded and encouraged to minimize spills. The manager for each center received a bonus based upon the amount of dirty mineral spirits recycled when compared to the amount of virgin spirits delivered to the center. It benefits Safety Kleen to recover as much of the dirty mineral spirits as possible, and to recycle those spirits for reuse. Company employees refer to dirty mineral spirits commonly as "black gold." The value of the recyclable waste mineral spirits had one perverse aspect. Lower level Safety Kleen personnel would have an incentive not to report small spills, such as spills less than 10 gallons, because they could be disciplined or discharged for the loss of those valuable, recyclable waste mineral spirits. It is likely that only large spills would have been reported to Safety Kleen management. The evidence will not support any determination of how often employees used the safety materials available to clean up spills of any size. See Finding 7, above.
During Safety Kleen's tenancy, a concrete curb was placed around three sides of the platform from which the dirty minerals spirits were tipped into the hopper to prevent spills, and maximize the recovery of dirty mineral spirits. Despite Safety Kleen's efforts to recover used solvent, workers at other businesses in the warehouse complex saw spills of dirty solvents when they were being tipped into the hopper, and saw drips from hoses on tankers delivering fresh mineral spirits to the center.
The underground tank which held virgin mineral spirits was filled from tanker trucks which used a flexible hose three to four inches in diameter, which was connected to the bottom of the tanker truck. The amount of mineral spirits to be added to the underground tank had been determined through an internal accounting system Safety Kleen used to record the number of service calls which Safety Kleen truck drivers performed each day at service or gas stations. There was no fill detection system on the underground tanks Safety Kleen installed, though underground tanks in use today have fill detection systems. It would be possible to over fill the underground storage tanks with clean spirits if careful attention were not paid to the refilling process, despite Safety Kleen's efforts to account for the solvent. When a tanker truck delivering clean spirits to the Georgia Street site was emptied, waste mineral spirits would be pumped back into the tanker truck from the underground tank holding dirty mineral spirits.
Once the spent spirits were tipped out of barrels into the hopper and the underground storage tank, stick measurements of the contents of that underground storage tank were taken. Stick measurements are not highly accurate, for one-eighth inch variance in the measured level of spirits by the stick would equal a variance of twenty gallons or more in the ten thousand gallon storage tank. Precise measurement was more difficult due to the buildup
of sludge in the dirty solvent tank; calculation of tank contents could be off by as much as 500 gallons when computed by "sticking the tank." A memorandum authored by CBS Mechanical in October 1981 in connection with the closing of the site noted there was about 1,500 gallons of sludge in the underground tank.
Given the value of used mineral spirits to Safety Kleen, this sludge at the bottom of the tank must have been unrecoverable.
When Safety Kleen first used the site, the concrete slab in front of the bay was new, but by the time it left, there were cracks in the concrete. This would be caused in part, by driving of heavy tanker trucks in the area, as well as by the general use of the concrete slab areas by other tenants.
There is considerable staining of the concrete pad in front of the bay used by Safety Kleen from the fill spout of the underground tank running east to the area containing soil. To warehouse tenants, the perimeter soil area from the edge of the concrete pad in front of the bays to the chain link fence on the property line often looked black, oily or muddy. Neither plants nor grass would grow in that area. Correspondence with the Marottas concerning the closing down of the facility contain references to the removal and replacement of "bad dirt," and the replacement of that "bad dirt" with good dirt and shrubs. The odor of mineral spirits reported by witnesses in the areas used by Safety Kleen, is consistent with evidence that solvents were sometime splashed or spilled during the operations of tipping the barrels of waste mineral spirits into the hopper and from the process of filling the underground tank with virgin mineral spirits from the tanker truck. These mineral spirits flow across the concrete pad to the soil area.
Safety Kleen drafted two internal documents entitled "authorization for expenditure" dated November 16, 1981,, and December 9, 1981, as part of its closing of the Georgia Street site, and these refer to the "removal of contaminated soil." In addition, Mr. Marotta, and not Safety Kleen, had about
60 cubic feet of dirt (from a strip of land fifteen feet long, two feet wide, and two feet deep) removed from the area around Safety Kleen's underground storage tanks after Safety Kleen left the warehouse complex. A considerable quantity of mineral spirits had been spilled to cause such contamination of the soil and staining around the fill pipes for the underground tanks.
Sampling of the site
On October 4, 1989, Department staff conducted a preliminary investigation of the area and took groundwater and soil samples near the two underground storage tanks which had been used by Safety Kleen, and samples of the fluids remaining in the storage tanks. The groundwater samples were taken down gradient from the storage tanks. The soil sample was taken at a depth of
10 feet, the groundwater sample at 16 feet. The soils taken from the excavation holes created by sampling had a strong hydrocarbon odor, and the purge water removed from the excavation hole exhibited a sheen characteristic of hydrocarbon petroleum products, which include mineral spirits.
The samples taken by DER showed the presence of contaminants in the following concentrations:
Storage Groundwater tanks Soil
napthalene | 330. | ug/l | 1/ | 412 | ug/l | 16,000 ug/kw, | 2/ dw |
benzene | 22. | ug/l | 19 | ug/l | |||
1,2 dichlorobenzene 49. 1,1 dichloroethane 8.8. 1,2 dichloroethylene 19. | ug/l ug/l ug/l | 41 | ug/l | ||||
ethylbenzene 63. tetrachloraethylene 6.4 xylene 310. | ug/l ug/l ug/l | 340 200 | ug/l ug/l | 25 ug/kw, | dw. | ||
toulene 92. | ug/l | ||||||
The following metals were found in the groundwater: cadmium 07. ug/l; chromium
91 ug/l; lead 3.5 ug/l.
Further tests were made on January 10, 1991, of soil and groundwater samples by Environmental Petroleum and Remediation Services. One monitoring well was installed and four subsurface soil borings were taken. That groundwater sample showed:
1,2 dichlorobenzene 78.2 ug/l
ethlybenzene 33.8 ug/l
napthalene 220.0 ug/l
xylene 102. ug/l
The engineer for Environmental Petroleum and Remediation Services who specializes in the assessment of contamination and development of remedial action plans, Kelly Winslow, installed the monitoring well in the area of the underground storage tanks downgradient of the groundwater flow from the tanks. Soil samples were analyzed by use of a field photoionization detector. Surface soil samples showed slightly elevated levels of organic vapors, while the cuttings from deeper portions of the well down to eight feet showed significantly elevated organic vapors. The soils had a definite hydrocarbon odor. These findings were generally consistent with those found by DER's earlier tests from October 4, 1989.
In addition to the Safety Kleen location, several other lessees at the warehouse area were engaged in businesses such as auto repair, auto body work, wood working, carpentry and boat building. There is also some staining of the concrete in front of those bays, but that staining is localized staining of the sort ordinarily associated with leaking oil drip pans from automobiles as occurs in parking lots. The only large areas of stain are near the underground storage tanks, on the east side of the building. There is no evidence of staining in the soil on the other side of the building. Moreover, the Safety Kleen operation was in the southeast corner of the complex. The contamination found in the soil and groundwater is upgradient from the other businesses in the warehouse complex. The contaminated groundwater tends to flow from the Safety Kleen site toward those other businesses, not from those businesses toward the Safety Kleen site. It is more likely than not that the contamination present began on the Safety Kleen site.
A third group of soil samples were collected at the site shortly before the hearing, on April 24, 1991, by consultants for Safety Kleen. Mr. Winslow, the engineer for Mrs. Marotta, also was present when those samples were taken. He saw the samples taken just outside the area with visible signs of staining from a depth of eight to twelve feet, and found that they exhibited a distinct mineral spirits odor. Safety Kleen's consultants had not tested those samples at the time of the hearing.
Characteristics of materials found
Benzene is an organic compound typical of distillate hydrocarbon products. While benzene is found in only trace levels in Safety Kleen's parts washer solvent (in the range of 10 to 20 parts per million), it is a naturally occurring ingredient of gasoline in a concentration range from 1/10 of 1% to 3.7%.
Napthalene is found in most petroleum-like products, including gasoline, diesel fuel, kerosene, and mineral spirits. Naphthalene concentrations in gasoline range from 1/10 of 1% up to 1%; a nominal concentration is 7/10 of a percent. It occurs in Safety Kleen's parts washer solvent at between .2 and .3 of 1% by weight.
Xylene is an aromatic solvent. It is a key ingredient used, along with toluene, to raise the octane of unleaded gasoline. It is found in low levels in Safety Kleen's parts washer solvent.
Chlorobenzene is typically man-made in a petrochemical process and is typically used as a solvent.
1,2-dichlorobenzene is the same chemical as orthodichlorobenzene, and is a component of Safety Kleen's 609 immersion cleaner (a different product not a likely cause of the contamination at issue here). It is an excellent degreasing and decarbonizing chemical, and is used in a variety of chemical formulations, including stripping applications. 1,2-dichlorobenzene is not a component of Safety Kleen's parts washer solvent.
Ethylbenzene is a C8 aromatic hydrocarbon and naturally occurs in petroleum products. It is found in gasoline, diesel fuel, and in Safety Kleen's parts washer solvent.
1,2-dichloroethylene is a degradation product of 1,1,1- trichloroethane. 1,1,1-trichloroethane is a common chlorinated solvent used in the United States today. 1,1,1-trichloroethane is also commonly used for contact cements and various adhesives.
1,1-dichloroethane, which was found on the site, has never shown up in Safety Kleen's product or waste product. But see Finding 43 below.
Tetrachloroethylene is a common solvent used for dry cleaning of clothes, and for degreasing and automotive applications.
The presence of these constituents on the site clearly indicates that there is contamination, but these constituents are not identifiers; they are not unique to any product and their presence does not conclusively identify the source of the contamination.
The constituents identified on the site occur in a variety of commercial products. With the exceptions of the 1,2-dichloroethene, they are compounds commonly used in automotive repair, and automotive body shops.
Significance of the sample data
Contaminants in the soil and groundwater at the Georgia Street site are classified as hazardous in the list found in Appendix VIII published by the
U.S. Environmental Protection Agency at 40 CFR Part 261. These hazardous materials include cadmium, chromium, lead, benzene, chlorobenzene, 1,2- dichlorobenzene, 1,2-dichloroethane, tetrachloroethylene and napthalene.
Merlin Russell is a geologist with the Department of Environmental Regulation who is experienced in evaluating hazardous waste closure permits. He reviewed data provided by Safety Kleen for the closure of three other Safety Kleen sites in Florida (one in Tallahassee, one in Tampa, and a different site, called the Fourth Avenue site, in Delray Beach). Comparing the soil and water samples taken from these three sites with samples taken at the Georgia Street site, Mr. Russell found each of the constituents from the Georgia Street site were also present in at least one of the samples from the other Safety Kleen sites. This similarity in constituents led Mr. Russell to conclude that Safety Kleen's operation is a likely source of the contamination present at the Georgia Street site. On the whole, the evidence is consistent with Mr. Russell's analysis.
James Breece holds a doctorate in chemistry, and is a vice president for Safety Kleen. He agreed that Safety Kleen's operation at Georgia Street would be a possible source of the contamination found there, though he would not agree that the evidence was sufficient to show that Safety Kleen was the actual source of that contamination.
Mr. Breece characterized the Safety Kleen mineral spirits as an aliphatic hydrocarbon solvent, with a medium boiling range, made up predominantly from C9 to C13 hydrocarbons.
According to DER Exhibit 11, the October 1989 Report of Savannah Laboratories, in the soil samples from the Georgia Street site, a total of 16,860 ug/kg dry weight of unknown volatile organics are found, 6420 ug/kg of which are in the C8-C10 range, and none of which were identified as being in a lesser or greater range than the C8-C10 range.
In the soil sample, a total of 384,000 ug/kg dry weight of unknown semi-volatile organics are found, 70,000 ug/kg of which are in the C8-C13 range, and none of which were identified as being in a lesser or greater range than C8- C13.
In the groundwater, a total of 726 ug/l of unknown volatile organic hydrocarbons are found, of which 367 ug/l were identified as being in the C8-C10 range, and 92 ug/l in the C7 range (toulene).
Safety Kleen has acknowledged that toluene, xylene, benzene, ethylbenzene, 1,1,1,-trichloroethane, naphthalene, 1,2-dichlorobenzene, 1,2- dichloroethylene, and tetrachloroethylene are constituents, or breakdown products of constituents, present in Safety Kleen mineral spirits.
Dr. Breece could not identify 1,1-dichloroethane as a constituent or breakdown product of Safety Kleen mineral spirits or immersion cleaner, although he acknowledged that it was "probably a degradation product of something."
Jeffrey Brian Watts holds a doctoral degree in chemistry. He is the administrator of the Department's site investigation section, in the Bureau of Waste Cleanup. He authored a book entitled Groundwater Monitoring Parameters and Pollution Sources. Dr. Breece of Safety Kleen agreed that, according to the descriptions in Dr. Watts' book of different characteristic waste profiles generated by different industries 1, 1 - dichloroethane is a degeneration product of 1, 1, 1 - trichloroethane, which is a constituent of Safety Kleen mineral spirits.
Dr. Watts is familiar with the waste chemistry and subsurface waste chemistry of Safety Kleen mineral spirits and related retail product known as immersion cleaner. Dr. Watts has been involved with hundreds of site investigations, which included the evaluation of chemical data to determine a source or likely source of soil and groundwater contamination. In all of his investigations, Dr. Watts only has found 1,2-dichlorobenzene at four sites, two of which involve Safety Kleen (the Georgia Street site is one of those two). Dr. Watts' testimony was persuasive that the soil and groundwater contamination at the Georgia Street site comes from a middle distillant petroleum fraction
with low levels of chlorinated solvent. Safety Kleen mineral spirits are middle distillant petroleum fractions (C9 - C13) volatile organics and have low levels of chlorinated solvent. Gasoline is not a likely source of the contamination of the Georgia Street site because the ratio of benzene-toluene-xylene at the site and the absence of 1, 2 - dichloroethane at the site.
The ratio of napthalene to benzene in fresh or waste mineral spirits as compared to the ratio of napthalene to benzene found in the soil and groundwater at the Georgia Street site differ as a result of subsurface chemical and physical reactions known as partitioning. The more soluble components such as benzene leach into the water while the less soluble components such as napthalene remain in the soil.
The evidence as a whole shows it is more likely than not that the contamination of the soil and consequent continuing contamination of the groundwater up gradient of the wellfield for the City of Delray Beach was caused by the activities of Safety Kleen at the Georgia Street site, either from a leak in an underground tank, or more likely, from frequent spills of mineral spirits or overfilling of the underground tank.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.
Respondents are persons within the meaning Section 403.031(5), Florida Statutes.
Chapters 120, 403 and Parts I and IV Florida Statutes, and Titles 17- 3, 17-28, 17-103, 17-701, and 17-730, Florida Administrative Code, are pertinent to this proceeding.
Hazardous Waste Discharge
The provisions of 40 C.F.R. Section 260.10, as revised as of July 1, 1990, which are EPA's definitions under the Resource Conservation and Recovery Act (RCRA), have been adopted by reference in Rule 17-730.020(1), Florida Administrative Code.
The provisions of 40 C.F.R. Part 261, as revised as of July 1, 1990, which are EPA's rules on the identification of hazardous waste, have been adopted by reference in Rule 17-730.030(1), Florida Administrative Code.
Waste mineral spirits are a listed hazardous waste under 40 C.F.R. Part 261.
The site at 1208 Georgia Street is a "hazardous waste facility" within the meaning of Section 403.703(24), Florida Statutes, since it is a "site . . . at . . . which hazardous waste" has been "disposed of." It is a "facility" within the meaning of 40 C.F.R. Section 260.10, since it is "land and structures
. . . used for . . . disposing of hazardous waste."
"Hazardous substance" is defined in Section 403.703(31), Florida Statutes, as "any substance which is defined as a hazardous substance in the United States Comprehensive Environmental Response, Compensation and Liability Act of 1980." (CERCLA)
CERCLA defines "hazardous substance" as " . . . (B) any element, compound, mixture, solution, or substance designated pursuant to section 102 of this Act . . . . " [42 U.S.C. 9601(14)(B)]
Section 102(a) of CERCLA requires the EPA Administrator to "promulgate
. . . regulations designating . . . hazardous substances . . . ." 42 U.S.C. 9602(a)
The hazardous substances designated by the EPA pursuant to section 102(a) are listed at 40 C.F.R. Section 302.4 and include the following substances found in the soil or groundwater at 1208 Georgia Street: benzene; chlorobenzene; chromium; 1,2-dichlorobenzene; 1,1-dichloroethane; cis-trans 1,2- dichloroethylene; ethylbenzene; lead; naphthalene; toulene; xylenes.
Section 403.727(4), Florida Statutes, makes "the owner . . . of a facility [and] any person who at the time of disposal of any hazardous substance
. . . operated any facility . . . liable for all costs of removal or remedial action incurred by the department under this section and damages for injury to, destruction of, or loss of natural resources . . . resulting from the release .
. . of a hazardous substance . . . "
Respondent Marotta is the "owner . . . of a facility" within the meaning of 40 C.F.R. Section 260.10 and Section 403.727(4)(a), Florida Statutes.
Respondent Safety Kleen is an "operator" within the meaning of 40
C.F.R. Section 260.10 and a "person who at the time of disposal of any hazardous substance . . . operated any facility at which such hazardous substance was disposed of" within the meaning of Section 403.727(4)(b), Florida Statutes.
Respondents are each liable to the Department for remedial action, costs and damages pursuant to Section 403.727(4), Florida Statutes.
Sections 403.727(4), (5), (6) and (7) provide the owners and operators of facilities disposing of any hazardous substance a limited number of defenses to liability. Subsections (6) and (7) refer to owners and operators who have contracted with licensed waste disposal or processing facilities or who have contracts with bonded or insured transporters, respectively. These provisions are not relevant to this case. Section 403.727(5) sets forth the only defenses available here to an owner or an operator:
The following defenses are available to a person alleged to be in violation of this act, who shall plead and prove that the alleged violation was solely the result of any of the following or combination of the following: (emphasis added)
An act of war.
An act of government, either state, federal or local . . .
An act of God . . .
An act or omission of a third party other than an employee or agent of the defen- dant or other than one whose act or omission occurs in connection with a contractual rela- tionship existing, directly or indirectly, with the defendant . . . if the defendant
establishes by a preponderance of the evidence that:
The defendant exercised due care with respect to the . . . hazardous waste . . . and
The defendant took precautions against foreseeable acts or omissions of any such third party and against the consequences that could foreseeably result from such acts or omissions.
Neither Safety Kleen nor Mrs. Marotta have proven one of the defenses provided in Section 403.727(5), Florida Statutes. Mrs. Marotta cannot rely on the fact that the contamination was caused solely by Safety Kleen, because Safety Kleen's acts or omissions occurred in connection with the contractual lease agreement with Mrs. Marotta and her husband as owners of the property. Safety Kleen cannot rely on the fact that discharges from other businesses located at the warehouse complex may have made some contribution to the contamination, because Safety Kleen has not proved, or attempted to prove, that the contamination was caused solely by such third parties. As shown in the Findings of Fact, it is more likely than not that the contamination present was caused by Safety Kleen.
Imminent Hazard
Section 403.726, Florida Statutes, provides as follows:
The department shall take any action necessary pursuant to s. 403.121 or s. 403.131 to abate or substantially reduce any imminent hazard caused by a hazardous substance . . . .
An imminent hazard exists if any hazardous substance creates an immediate and substantial danger to . . . the environment.
Section 403.121, Florida Statutes, authorizes the Department to institute a civil action or an administrative proceeding to establish liability and to recover damages; Section 403.131, Florida Statutes, authorizes the Department to seek injunctive relief.
An imminent hazard to the environment exists here because the hazardous substances in the soil are contaminating the groundwater of the state, this is especially so because the groundwater contributes to a wellfield which serves as a source of potable water for a municipality.
The contaminants found in the soil and groundwater at the Georgia Street site are solid wastes within the meaning of Section 403.703(13), Florida Statutes, and Rule 17-701.020(57), Florida Administrative Code, since they are "discarded material, including solid, liquid, semisolid or contained gaseous material resulting from . . . industrial [or] commercial . . . operations."
Under Section 403.708(1)(a), Florida Statutes, "no person shall place or deposit any solid waste in or on the land or waters located within the state except in a manner approved by the department . . . " This prohibition has been in effect since July 1, 1974 (Laws of Florida, Chapter 74-342 at p. 1098).
Discharge of waste mineral spirits in or on the land or groundwater at the Georgia Street site was not done in a manner approved by the Department. Rule 17-701.040(2)(f), Florida Administrative Code, provides that "No solid waste shall be disposed of by being placed . . . in any natural or artificial body of water including ground water."
Safety Kleen has deposited solid waste into ground waters of the state in violation of Chapter 403, Florida Statutes, and the rules promulgated thereunder.
Ground Water Violations
Section 403.088(1), Florida Statutes, provides that "No person, without written authorization of the department, shall discharge into waters within the state any waste which, by itself or in combination with wastes of other sources, reduces the quality of the receiving waters below the classification established for them."
The groundwater from which samples were taken at the Georgia street site is classified as Class G-II pursuant to Section 403.061(10), Florida Statutes, and Rule 17-520.410, Florida Administrative Code, because it is ungradient of the well field for the City of Delray Beach.
Class G-II groundwater is subject to the minimum criteria for groundwater mandated in Rule 17-520.400, Florida Administrative Code:
All groundwater shall at all places and at all times be free from . . . industrial . . . or other man-induced non-thermal components of discharges in concentrations which, alone or in combination with other substances, or components of discharges (whether thermal or non-thermal) . . . (b) Are carcinogenic, mutagenic, teratogenic, or toxic to human
beings; or . . . (d) Pose a serious danger to the public health, safety, or welfare; or
(e) Create or constitute a nuisance . . . .
The presence of hazardous substances in Class G-II groundwater violates the minimum criteria of Rule 520.400(1), Florida Administrative Code.
Rule 520.420(1)(a), Florida Administrative Code, provides:
In addition to the minimum criteria provided in Section 17-520.400, F.A.C., waters classi- fied as Class G-I and Class G-II groundwater shall meet the following standards: The primary and secondary drinking water quality standards for public water systems established pursuant to the Florida Safe Drinking Water Act. . . .
Safety Kleen has caused violations of the primary drinking water quality standards promulgated in Rule 17-550.310, Florida Administrative Code, at the Georgia Street site by discharging the following inorganic and organic contaminants: Benzene (limited to .001 ug/l), Chromium (limited to .05 ug/l) and tetrachloroethene (a/k/a perchloroethylene) (limited to .003 ug/l). The tested concentrations exceed these standards. See Finding 17.
Maintaining a Stationary Installation
Section 403.087(1), Florida Statutes, provides that: No stationary installation which will reason-
ably be expected to be a source of air or water pollution shall be maintained
. . . without an appropriate and currently valid permit issued by the department. . . .
"Installation" is defined in Section 403.031(4), Florida Statutes, as: any structure, equipment, or facility, or
appurtenances thereto, or operation which may
emit air or water contaminants in quantities prohibited by rules of the department.
The contaminated soil at the Georgia Street site contaminants groundwater, and constitutes a "stationary installation which will reasonably be expected to be a source of . . . water pollution" which is being maintained by the current owner of the property, Mrs. Marotta, without a permit.
Causing Pollution
"Pollution" is defined in Section 403.031(7), Florida Statutes, as: the presence in the . . . waters of the state
of any substances, contaminants or
manmade or man-induced impairment of . . .
waters or alteration of the chemical, physical, biological or radiological integrity of . . .
water at levels which are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property. . . .
Section 403.161(1)(a), Florida Statutes, provides:
It shall be a violation of this chapter, and it shall be prohibited for any person to cause pollution . . . so as to harm or injure human health or welfare, animal, plant or aquatic life or property.
The presence of hazardous substances in the Class G-II groundwater of the state with concentrations of pollutants exceeding those permitted by rule is pollution, and Safety Kleen has caused pollution so as to injure property (groundwater), in violation of Section 403.161(1)(a), Florida Statutes.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered against Safety Kleen and Delores Marotta making the proposed orders for corrective action final, and requiring the development of a contamination assessment plan and implementation of a remedial action plan.
RECOMMENDED in Tallahassee, Leon County, Florida, this 10th day of July 1992.
WILLIAM R. DORSEY, JR.
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 10th day of July 1992.
ENDNOTES
1/ Micrograms per liter, equivalent to parts per billion.
2/ Micrograms per kilogram, dry weight, also equivalent to parts per billion.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 90-6665 AND 90-7360
Rulings on Findings proposed by the Department:
The Findings proposed by the Department generally have been accepted.
Rulings on Findings proposed by Safety Kleen:
Addressed in preliminary statement.
Rejected as unnecessary.
Rejected as unnecessary.
Generally rejected as unnecessary, but the preliminary assessment by the Department is described in Finding 17.
Generally adopted in Finding 17.
Generally adopted in Finding 17.
Generally adopted in Finding 18.
Adopted in Finding 18.
Adopted in Finding 18.
Rejected as unnecessary.
Adopted in Finding 1.
Adopted in Findings 1 and 2.
Rejected as unnecessary.
Generally adopted in Findings 2 and 21.
Generally adopted in Finding 33.
Adopted in Finding 8.
Generally adopted in Finding 8.
Adopted in Findings 5 and 27.
Rejected as unnecessary, but see Finding 27.
Adopted in Finding 8.
Rejected as unnecessary because there is no reason to believe that immersion cleaner was dumped into the underground tank for dirty mineral spirits.
Generally, adopted, though in a briefer form, in Findings 12 and 13.
Rejected for the reasons stated in Finding 10.
Adopted in Finding 12, but the proposed finding that there was never more spent solvent vacuumed into the tanker than the tanker truck could hold, based on the testimony of Mr. Eifler, is rejected as unconvincing, as is the testimony that there were never spills discharge during the process. Spills well could have occurred which Mr. Eifler would not know about.
Adopted in Finding 10.
Adopted in Finding 7.
Rejected because it is not clear that Mr. Eifler would have known about any leaks, although I accept that he was never advised of any leaks.
Adopted in Finding 7.
Adopted in Findings 7 and 13. I accept the testimony that Safety Kleen never received any complaints that the tanks were leaking or improperly cleaned.
This general denial is rejected for the reasons stated throughout the Findings.
Rejected as subordinate to Finding 11.
Rejected as argument.
Generally rejected, see Findings 11, 14 and 15. The muddiness is the not the result only of washing trucks in the area.
Rejected because the contaminated dirt was replaced. See Finding 16.
Generally rejected as subordinate to Finding 11.
Rejected, a relatively large volume of material must have been spilled. See Finding 15.
Generally adopted in Finding 15.
The testimony of Mr. Russell is described in Finding 35. The evidence, viewed as a whole, supports Mr. Russell's opinion by a preponderance of the evidence.
39-41. Rejected as unpersuasive.
The testimony of Ms. Kulakowski has generally been accepted. See Finding 3.
Rejected, the testimony of Ms. Kulakowski, standing alone, is not the basis for the finding that the preponderance of the evidence indicates the contamination was caused by Safety Kleen. All the evidence, taken together, lead to that conclusion.
Rejected as argument.
Rejected as a recitation of testimony.
46-47. The testimony of Mr. Winslow has generally been accepted. It is not clear exactly what the contours of the contaminated soil are, and it is that the contamination would be shaped irregularly as it has settled into the soils over the years.
Rejected because the testimony of Dr. Watts was persuasive.
Rejected, although the Department may perform investigations in other ways in other cases, this does not mean that the evidence presented by the Department here was unpersuasive.
Generally accepted in Finding 36.
Generally accepted in Finding 36.
Adopted in Findings 5 and 37.
Rejected as unnecessary.
Adopted in Finding 32.
Adopted in Finding 23.
Adopted in Finding 24.
Adopted in Finding 25.
Adopted in Finding 26.
Adopted in Finding 27.
Adopted in Finding 28.
Adopted in Finding 29.
Adopted in Finding 30.
Adopted in Finding 31.
Adopted in Finding 32.
Generally adopted in Finding 33.
Generally rejected because the evidence, taken as a whole, points to the activities of Safety Kleen as the source of the pollution. The failure of Safety Kleen to have presented in evidence the findings of its analysis (see Finding of Fact 22) gives rise to an inference that those findings would be damaging to its case.
Rejected based upon the testimony of Dr. Watts.
Rejected because 1,2 dichloroethane is a degeneration product of a constituent of the Safety Kleen solvent. See Finding 43. See also Finding 45.
Rejected as unnecessary. Sufficient other evidence points to Safety Kleen as the source of the pollutions so that the type of extraction procedure for metals is not significant in deciding this case.
It is not necessary for the Department to eliminate present and past businesses operating at the site as the source of contamination. Under the law that is the duty of Safety Kleen, to raise as an affirmative defense. See the Conclusions of Law, page 23.
Generally rejected for the reasons stated in Finding 21.
Generally rejected for the reasons stated in Finding 21.
While other businesses could have contributed to the contamination, that is not the standard here. It is more likely than not that the contamination seen is the result of spills by Safety Kleen.
Generally adopted in Finding 16. It is unlikely that the small amount of contamination resulting from causal spills by other tenants would account for the extent of the contamination, especially with C8-C13 hydrocarbons found by testing.
Rulings on Findings proposed by Delores Marotta:
Adopted in Finding 1.
Adopted in Finding 2.
Adopted in Finding 3.
Adopted in Finding 3.
Adopted in Finding 4.
Generally adopted in Findings 5 and 27.
Adopted in Findings 2, 5 and 12.
Adopted in Findings 8 and 11.
Adopted in Findings 12 and 13.
Adopted in Finding 12.
Adopted in Finding 11.
Adopted in Finding 7.
Adopted in Finding 15.
Adopted in Finding 17.
Adopted in Finding 18.
Adopted in Finding 18.
Adopted in Findings 19 and 20.
Adopted in Findings 19 and 20.
Adopted in Finding 22.
Adopted in Finding 21.
Adopted in Finding 46.
Adopted in Finding 46.
COPIES FURNISHED:
Agusta P. Posner, Esquire
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Pamela Presnell Garvin, Esquire
101 North Monroe Street Suite 910
Tallahassee, Florida 32301
Mary Smallwood, Esquire
101 North Monroe Street Suite 1010
Tallahassee, Florida 32301
Susan P. Motley, Esquire Post Office Box 1900
Fort Lauderdale, Florida 33302
Carol Browner, Secretary
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Daniel H. Thompson General Counsel
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
DEPARTMENT OF ENVIRONMENTAL REGULATION,
Petitioner,
vs. DOAH CASE NO. 90-6665
OGC CASE NO. 90-0606
SAFETY KLEEN CORPORATION,
Respondent.
/ DEPARTMENT OF ENVIRONMENTAL REGULATION,
Petitioner,
vs. DOAH CASE NO. 90-7360
OGC CASE NO. 90-0606
DOLORES MAROTTA,
Respondent.
/
FINAL ORDER
On July 10, 1992, a hearing officer from the Division of Administrative Hearings submitted to me and all parties his Recommended Order in the above- styled cases, a copy of which is attached as Exhibit A. On July 27 Respondent Safety Kleen Corporation ("Safety Kleen") timely filed exceptions to the Recommended Order, to which the Department of Environmental Regulation (`Department") responded on July 31. The matter thereafter came before me as Secretary of the Department for final agency action.
BACKGROUND
This matter arose with the issuance by the Department on June 17, 1990, of a Notice of Violation ("NOV") against Safety Kleen and Delores Marotta. From 1976 to 1981 Safety Kleen leased property in Delray Beach, Palm Beach County, Florida, from Delores Marotta and her former husband, Dominic Marotta. The NOV alleged that while Safety Kleen leased the property it discharged hazardous materials into the soils and groundwater, causing pollution in violation of state water quality standards and otherwise violating Department statutes and rules. The NOV contained proposed orders for corrective action that would require Respondents to develop plans for and implement contamination assessment and remedial action at the property. Both Respondents petitioned for administrative proceedings, which petitions were consolidated by the hearing officer, who held a hearing on the matter on May 1 and 2, 1992.
The hearing officer found that Dominic and Delores Marotta had purchased mini-warehouse property from which Safety Kleen rented bays for operating its business of collecting, storing and recycling spent solvents and other waste materials. The facility also included two underground storage tanks. The hearing officer found that Safety Kleen's operation resulted in spills of contaminants classified as hazardous under Appendix VIII to 40 C.F.R. Pt. 261. Those spills have caused groundwater contamination in violation of state standards. The hearing officer concluded that both Ms. Marotta, who is the current property owner, and Safety Kleen are liable for cleanup of the hazardous substances under Section 403.727(4), Florida Statutes, as owner and operator respectively. The hearing officer also concluded that the spills constituted solid waste violations under Section 403.708(1)(a), Florida Statutes, and applicable rules; groundwater violations under Section 403.088(1), Florida Statutes, and applicable rules; a stationary installation reasonably expected to be a source of water pollution unpermitted under 403.087(1), Florida Statutes; and pollution prohibited by Section 403.161(1)(a), Florida Statutes. The hearing officer therefore recommended that the Department issue a Final Order requiring Respondents to implement the relief requested in the NOV.
RULING ON EXCEPTIONS
Safety Kleen filed 12 exceptions to findings of fact and two exceptions to conclusions of law. My review of these exceptions must be made in accordance with Section 120.57(1)(b)10, Florida Statutes, which precludes me from reweighing a hearing officer's findings of fact if they are based upon competent substantial evidence. See e.g., Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987).
Exception No. 1.
Safety Kleen objects to the hearing officer's Finding of Fact No. 4, in which he states that Safety Kleen's customers "dispose of dirty degreasing solvent." Safety Kleen argues that since it recycles the waste, its customers do not "dispose of" it. The issue is really one of perspective. From the customers' standpoint, it is fair to say they have disposed of their waste. The relevant issue in this case is what Safety Kleen, not its customers, did with the waste. In this regard, the fact that Safety Kleen intended to recycle all of its hazardous waste did not exempt it from treating the waste as hazardous and handling it appropriately. See 40 C.F.R. Section 261.2(c) and 40 C.F.R. Section 261.6. Therefore, the exception is rejected.
Exception No. 2.
Safety Kleen asserts that there is no competent substantial evidence to support the hearing officer's Finding of Fact No. 7 that Safety Kleen was the only tenant to have used the underground storage tank at the site. The evidence is undisputed that Safety Kleen used the tanks, and that the tanks had been welded shut afterwards. (T-130, 208) No evidence was presented that anyone else used them. The Department met its burden here by proving that Safety Kleen used the tanks. The Department did not then have to prove that there was no possible use of the tanks by anyone else. The burden shifted to Safety Kleen to show such other use. J.W.C. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981). At any rate, the critical issue in this case regarding Safety Kleen is whether it caused contamination. Safety Kleen cannot escape liability simply
because the Department failed to prove that no one else could have contributed to the contamination. See Sections 403.141(1) and 403.727(4), Florida Statutes. The exception is therefore rejected.
Exception No. 3.
Safety Kleen claims its facility was a distribution center, not a "recycling center" as stated in the hearing officer's Finding of Fact No. 8. This finding and others describe in detail the functions of Safety Kleen's operation. These descriptions are supported by competent substantial evidence, and are essentially undisputed. The real issue in dispute is not how the facility was supposed to operate, but whether it operated otherwise - in other words, whether spills occurred during operation. Construed in this light, the use of the term "recycling center" has very little significance to the real issue in dispute. The exception is therefore rejected as irrelevant.
Exception No. 4.
Safety Kleen objects to various statements by the hearing officer in Finding of Fact No. 10 regarding spills that occurred during its operation of the facility. My review of the record indicates that there is competent substantial evidence to support his findings that spills did occur, and that the facility site was contaminated by those spills, based upon eyewitness testimony of several witnesses, including a Safety Kleen employee, a neighboring tenant, and Mr. Marotta, as well as the expert testimony of witnesses who analyzed the site and data from it to determine whether the site was contaminated. (E.g., T- 41, 62, 64, 89, 156, 157 170-173, 238, 241-242, 260-262, 295, 349.) Therefore,
the exception is rejected. Exception No. 5.
Safety Kleen asserts there was no competent substantial evidence to support the statement in Finding of Fact No. 11 that workers at other businesses saw spills. There was testimony regarding spills from at least two persons who worked at the warehouse complex. (T-157, 170) Therefore, there is competent substantial evidence to support the finding, and the exception is rejected.
Exception No. 6.
In this exception Safety Kleen objects to how the hearing officer, in Finding of Fact No. 12, characterized Safety Kleen's procedures for detecting spills from its underground tanks. As with its third exception, Safety Kleen appears to be objecting to the hearing officer's terminology rather then the underlying facts that describe what was happening at the facility. Those facts are supported by competent substantial evidence, and the exception is rejected.
Exception No. 7.
Safety Kleen makes two exceptions to Finding of Fact No. 13. The first concerns when stick measurements were made of the contents of the underground storage tanks. Safety Kleen argues that measurements were made prior to and after removal of spent mineral spirits from the tanks, and not after the spent spirits were tipped but of barrels into the hopper. My review of the hearing officer's language indicates that he was not sufficiently precise in describing when the tank contents were measured, and that Safety Kleen's alternative
language is more precise. Therefore, I shall accept this part of the exception. I note further, however, that my acceptance of this exception has no bearing on the validity of the hearing officer's conclusions or recommendation.
Safety Kleen also objects to the hearing officer's statement that "sludge at the bottom of the tank must have been unrecoverable." The record evidence, as Safety Kleen notes, indicates that the sludge was removed from the tank and taken for disposal. The fact that the sludge was disposed of rather than recycled by Safety Kleen makes the hearing officer's "unrecoverable" comment a fair statement, though not perhaps as precise as Safety Kleen would like. Once again, as with exception numbers three and six, the dispute appears to be one of form over substance. The objection is therefore irrelevant to the recommendation before me, and the exception is rejected.
Exception No. 8.
Safety Kleen takes exception to various statements in Finding of Fact No.
15 regarding evidence of contamination on site. I find that there is competent substantial evidence to support the findings, as indicated by the references to the record in my response to Exception No. 5. The exception is therefore rejected.
Exception No. 9.
Safety Kleen takes exception to the hearing officer's reference, in Finding of Fact No. 16, to two of its internal documents that refer to removal of contaminated soil. Safety Kleen argues the documents are hearsay, not corroborated, and therefore not competent substantial evidence. I do not agree that these documents are hearsay. The documents were produced from Safety Kleen's files, were on Safety Kleen letterhead, and were accepted as authentic by Safety Kleen's witness. The documents would thus fall outside of the hearsay rule either as an admission under Section 90.803(18), Florida Statutes, or as a business record under Section 90.803(6), Florida Statutes. Furthermore, the relevance of the documents was corroborative in nature, in that they corroborated the fact that the facility was contaminated. Thus, the documents would be admissible even as hearsay under Section 120.58, Florida Statutes.
Safety Kleen also objects to the hearing officer's finding that a considerable quantity of mineral spirits was being spilled around the fill pipes of the tanks. As I have already concluded, there is competent substantial evidence, both from oral testimony and laboratory data, to support a finding of substantial contamination, which logically would have resulted from spills. The statement to which Safety Kleen objects is a summary of such competent substantial evidence. Therefore, the exceptions to Finding of Fact No. 16 are rejected.
Exception No. 10.
Safety Kleen takes exception to Finding of Fact No. 20, regarding the location of a consultant's monitoring well as being downgradient from the groundwater flow from the tanks. The Department concedes that this exception is well taken, and I concur. I should note, however, that my acceptance of the exception has no bearing on my consideration of the hearing officer's recommendation, since there are substantial other findings to support the fact that the contamination resulted from Safety Kleen's activities.
Exception No. 11.
This exception is to Finding of Fact No. 21, which concludes that contamination was more likely to come from Safety Kleen than from other facilities at the warehouse site. There is competent substantial evidence to support this finding, based upon both the testimony of witnesses (e.g., T-126, 140, 241) and a review of exhibits (e.g., composite exhibit 11). Therefore, the exception is rejected. Exception No. 12.
Safety Kleen takes exception to Finding of Fact No. 46, in which the Hearing Officer summarizes his findings regarding contamination at the facility. The exception takes the hearing officer's statements out of context. When the hearing officer refers to "contamination of the groundwater upgradient of the wellfield from the City of Delray Beach ... caused by the activities of Safety Kleen," it is clear that he is saying that Safety Kleen caused contamination at the facility and that the facility is upgradient of the wellfield. This finding is supported by competent substantial evidence. Similarly, when the hearing officer refers to contamination coming from Safety Kleen's "activities ... either from a leak in an underground tank, or more likely, from frequent spills of mineral spirits or overfilling of the underground tanks," he is not making, as Safety Kleen seems to be arguing, a specific, conclusive finding that the underground tanks leaked. Rather, the purpose of his finding, read as a whole, is to show that he has weighed all the evidence and found that the Department has met its burden of proving, in his words "more likely than not," that the contamination at the facility was caused by the activities of Safety Kleen. As I have concluded previously, there is competent substantial evidence to support his finding. The exception is therefore rejected.
Exception No. 13.
Safety Kleen takes exception to Conclusion of Law No. 6, in which the hearing officer states that waste mineral spirits are a listed hazardous waste. Safety Kleen observes that under 40 C.F.R. Pt. 261 waste mineral spirits are a "characteristic" hazardous waste rather than a "listed" one. I accept this exception, but note that this has no bearing on the recommendation in this case, since the waste remains hazardous in either case.
Exception No. 14.
The final exception is to Conclusions of Law Nos. 14, 15, 17, 23, 24, 30, and 36, all of which relate to the hearing officer's conclusion that the Department met its burden of proving that Safety Kleen caused or contributed to the contamination at the facility site. This exception is essentially reargument, along with supplemental argument, of previous exceptions in which Safety Kleen asserted that the hearing officer's findings in this regard lacked the foundation of competent substantial evidence. Based upon my review of the record and as indicated by my rulings on these previous exceptions, I conclude that competent substantial evidence did exist, and that the hearing officer properly weighed that evidence in light of the Department's burden of proof.
Therefore, this exception is rejected.
Therefore, it is ORDERED:
The Recommended Order in this case is approved and adopted in its entirety, except as modified by this Final Order.
Safety Kleen and Delores Marotta are hereby required to comply with the orders for corrective action contained in the Notice of Violation issued in this case, which orders are made final by this Final Order.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days front the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 22nd day of September, 1992, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
CAROL M. BROWNER
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904)488-4805
FILING AND ACKNOWLEDGEMENT
FILED, on this date pursuant to s. 120.52 Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged.
9/22/92
Clerk Date
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by hand-delivery to William R. Dorsey, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; Ann Cole, Clerk, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and Agusta Posner, Assistant General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by U.S. Mail to Pamela Presnell Garvin, Esquire, 101 North Monroe Street, Suite 910,
Tallahassee, FL 32301; Mary Smallwood, Esquire, 101 North Monroe Street, Suite 1010, Tallahassee, Florida 32301; and Susan P. Motley, Esquire, Post Office Box 1900, Ft. Lauderdale, Florida 33302, on this 22nd day of September, 1992.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DANIEL H. THOMPSON
General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904)488-9730
| Issue Date | Proceedings |
|---|---|
| Jul. 10, 1992 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Nov. 16, 1990 | (Respondent) Notice of Related Case and Motion to Consolidate by Respondent Department of Environmental Regulation filed. (From A. P. Posner) |
| Nov. 16, 1990 | Response to Initial Order filed. (From Augusta P. Posner) |
| Nov. 08, 1990 | (Petitioner) Notice of Related Case filed. (From Pamela Presnell Garvin) |
| Nov. 08, 1990 | (Petitioner) Motion to Preserve Evidence filed. (From Pamela PresnellGarvin) |
| Nov. 06, 1990 | Initial Order issued. |
| Oct. 23, 1990 | Request for Assignment of Hearing Officer and Notice of Preservation of Record; Notice of Violation and Orders for Corrective Action; Petition for Formal Administrative Proceeding (+ exh A); Amended Certificate of Service; and other supporting documents r |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 22, 1992 | Agency Final Order | |
| Jul. 10, 1992 | Recommended Order | Filling of underground storage tanks with virgin and spent mineral spirits probable cause of groundwater contamination. Clean-up ordered. |
