STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EASTLAKE WOODLANDS SHOPPING CENTER, )

)

Petitioner, )

)

vs. ) CASE NOS. 94-5432

) STATE OF FLORIDA DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 10, 1995, in Tampa, Florida. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Dominick J. Graziano, Esquire

Joyce A. Nader, Esquire

201 East Kennedy Boulevard, Suite 1125 Tampa, Florida 33602-5117

For Respondent: Lisa M. Duchene, Esquire

W. Douglas Beason, Esquire Assistant General Counsel

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Petitioner is eligible as a "Good Samaritan" for reimbursement of costs associated with the remediation of perchloroethylene contamination at the Eastlake Woodlands Shopping Center pursuant to Section 376.305(6), Florida Statutes (1994 Supp.) 1/

PRELIMINARY STATEMENT

On August 5, 1994, Respondent denied Petitioner's request for a determination of eligibility as a Good Samaritan for reimbursement of costs associated with the assessment and remediation of pollutants at the subject site. Petitioner requested a formal hearing.

At the formal hearing, Petitioner presented the testimony of five witnesses and submitted nine exhibits for admission in evidence. Respondent presented the testimony of two witnesses and submitted two exhibits for admission in evidence.

The identity of the witnesses and exhibits and the evidentiary rulings regarding each are set forth in the transcript of the formal hearing filed with the undersigned on April 26, 1995.

The parties timely filed proposed recommended orders ("PROs") on May 8, 1995. Proposed findings of fact in Respondent's PRO are accepted in this Recommended Order. Proposed findings of fact in Petitioner's PRO are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is Arthur L. Jones, Trustee of the Arthur L. Jones Revocable Trust, also known as Eastlake Woodlands Shopping Center ("Eastlake").

   Petitioner is not and never has been responsible for the discharge of pollutants at Eastlake within the meaning of Section 376.302.

   
   

2. On November 9, 1993, Petitioner requested a determination of eligibility under the "Good Samaritan" program authorized in Section 376.305(6). Petitioner seeks reimbursement of $644,712 in costs associated with the assessment and remediation of perchloroethylene ("PCE") contamination at Eastlake.

   
   

3. From May, 1982, through May, 1986, Eastlake included a dry cleaning establishment among its tenants. The dry cleaning establishment utilized PCE.

   
   

4. PCE contamination was discovered in June, 1992, when a Publix Supermarket adjacent to the former dry cleaning business ("Publix") requested an environmental assessment as part of its expansion at Eastlake. The environmental assessment was performed by Chastain-Skillman, Inc. ("Skillman").

   
   

5. Skillman first discovered PCE contamination at the site as a result of tests of groundwater obtained from behind the former dry cleaning establishment. From July, 1992, through August, 1992, Skillman confirmed the PCE contamination through tests of additional groundwater samples from 10 other locations.

   
   

6. In October, 1992, Petitioner orally notified Respondent of PCE contamination at the site. The PCE contamination was not reported to Respondent's Emergency Response Coordinator.

   
   

7. The PCE contamination was not an emergency. Emergencies typically include incidents such as a petroleum spill related to a vehicular accident, a chemical spill, or a fire related release. The PCE contamination did not constitute an imminent threat to the public health, safety, and welfare. It did not constitute a threat to potable water wells at the site.

   
   

8. PCE is a solvent commonly used in the dry cleaning business. Release of PCE is a relatively common occurrence in the dry cleaning business.

   
   

9. On September 27, 1993, Petitioner and Respondent entered into a consent order with regard to PCE contamination at the site. In relevant part, the consent order requires Petitioner to submit a Contamination Assessment Report and Remedial Action Plan.

   
   

10. Petitioner submitted a Contamination Assessment Report in November, 1992. Petitioner did not submit a Remedial Action Plan because Respondent placed a moratorium on enforcement actions undertaken with regard to PCE contamination at dry cleaning establishments.

11. Respondent is in the process of implementing a program for state funded cleanup of contaminated dry cleaning sites throughout the state. Respondent is developing a priority system for cleanup of contaminated dry cleaning sites based upon relative threat to the public health and environment.

    
    

12. There are approximately 2,800 contaminated dry cleaning sites around the state that will be affected by Respondent's dry cleaning program. Petitioner is entitled to apply for reimbursement of future costs once Respondent implements its dry cleaning program.

    
    

13. Respondent has issued a policy memorandum concerning the review of Good Samaritan applications. Respondent's policy differentiates between petroleum contamination and non-petroleum contamination, such as PCE contaminated sites.

    
    

14. Reimbursement of petroleum contamination is funded through the Inland Protection Trust Fund ("IPTF"). Reimbursement of non-petroleum contamination is funded through the Water Quality Assurance Trust Fund ("WQATF").

    
    

15. IPTF funds are statutorily limited to reimbursement of costs associated with petroleum contamination. Respondent's policy is to exhaust the enforcement process before WQATF trust funds are utilized for the assessment and remediation of non- petroleum contamination.

    
    

16. Respondent's policy requires a Good Samaritan to obtain prior approval from Respondent's Emergency Response Section or On-Scene Coordinator before initiating cleanup of a non-petroleum site such as the PCE contaminated site at Eastlake. The requirement for prior approval is designed to allow Respondent to preserve the amount of personnel, equipment, and resources available for statutorily prescribed priorities, including emergency responses. 2/ The requirement also allows Respondent to determine the endpoint of the emergency phase of a cleanup and the beginning of the remedial phase of the cleanup. The requirement for prior approval may be waived in the event of an imminent hazard.

    
    

17. Respondent adequately explicated its non-rule policy for a moratorium on dry cleaning sites and for prior approval of remediation of non-petroleum sites including dry cleaning sites contaminated with PCE. Respondent's explication was adequate even if its policy constitutes an unwritten rule within the meaning of Section 120.57(1)(b)15, Florida Statutes.

    
    

18. Petitioner failed to show good cause for waiver of the requirement for prior approval. The PCE contamination at the site was neither an emergency nor an imminent hazard.

    
    

19. The public was restricted from the contaminated area by a fence surrounding the site. The public was not exposed to or threatened with contamination by inhalation.

    
    

20. No potable water wells are near the site. Therefore, there was no threat of public access to contaminated drinking water.

    
    

21. Petitioner did not obtain prior approval for its remediation of the site. Remediation was undertaken to complete the Publix expansion in a timely manner.

22. Petitioner's efforts in assessing and remediating the site have been exemplary. Petitioner has fully cooperated with Respondent in assessing and remediating the site.

    
    

23. In July, 1993, Petitioner retained American Compliance Technologies ("ACT") as a consultant to assist Petitioner in the remediation of the contaminated site.

    
    

24. ACT prepared a health and safety plan for workers on the site. The plan addressed the risk to workers of exposure to PCE during construction and demolition activities necessary for the Publix expansion.

    
    

25. Construction and demolition activities included removal of the concrete slab at the location of the former dry cleaning business. Disturbance of the soils contaminated with PCE created a potential for exposure of workers to PCE.

    
    

26. The health and safety plan developed by ACT required workers to wear standard protective gear utilized by the industry. The plan satisfied the requirements of OSHA.

    
    

27. ACT did not prepare a risk assessment addressing the potential for exposure of the general public to PCE. Nor did ACT prepare a risk assessment for the potential impact of PCE on groundwater or potable wells. The PCE contamination did not constitute an imminent threat to the public health, safety, and welfare.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

    
    

29. The burden of proof in this proceeding is on Petitioner. Petitioner must show by a preponderance of the evidence that it is entitled reimbursement under the Good Samaritan program. Adam Smith Enterprises v. Department of Environmental Regulation, 553 So. 2d 1260 (Fla. 1st DCA 1990); Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979).

    
    

30. Petitioner failed to satisfy its burden of proof. Petitioner did not obtain prior approval of its remediation of the contaminated site.

    
    

31. Section 376.305(6) authorizes Respondent to waive the requirement for prior approval for good cause. Good cause is not defined in the statute. Therefore, a determination of good cause is the subject of agency discretion.

    
    

32. In exercising its discretion, Respondent's first consideration is the funding source for the proposed cleanup. The IPTF and WQATF are the only sources available to fund Good Samaritan cleanups.

    
    

33. The IPTF can only be used to fund cleanup of petroleum or petroleum product contamination. The WQATF is the only fund available to fund cleanup of non-petroleum contamination, including contamination from PCE.

    
    

34. Section 376.307 is the governing statute for the WQATF. In determining if good cause exists in this proceeding, Respondent must consider the provisions of Section 376.307.

35. Section 376.307(4)(b) establishes priorities for the expenditure of WQATF funds. The statute provides, in relevant part:

    
    

    . . . [Respondent] shall disburse moneys in the Water Quality Assurance Trust Fund . . . according to the following . . . order:

    1. Emergency actions necessary to protect the public health, safety, and welfare.

    2. Previous obligations.

    3. Restoration or replacement of contaminated private potable wells or water systems.

    4. Response actions carried out pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

    5. Other response actions carried out or authorized by . . . [Respondent].

    6. Other authorized activities, except that, upon a determination by the secretary that sufficient unobligated funds are not available

       in the trust fund to adequately fund any activity

       or activities under this subparagraph, the secretary may elect to disburse available moneys to partially fund such activity or activities, or to withhold funding for such activity or activities.

       
       

36. Before a Good Samaritan cleanup may be funded, Respondent must ensure that adequate funds are available to pay for emergency actions, previous obligations, restoration or replacement of contaminated potable water systems, and CERCLA response actions. CERCLA response actions require Respondent to provide matching money for Superfund cleanups.

    
    

37. Respondent's policy provides in relevant part:

    
    

    Reimbursement from WQATF for "Good Samaritan" cleanups will be for completed program tasks

    . . . in first come - first serve order from available funds budgeted for the purpose of "Good Samaritan" reimbursement. All "Good Samaritan" sites will receive a site score using the USEPA Hazard Ranking System. Funds will be budgeted . . . in accordance with this score and after higher ranking Superfund sites and state cleanup sites have received necessary funding. . . . (emphasis supplied)

    
    

    Policy for the Application of the "Good Samaritan" Provisions of Section 376.305(6), Florida Statutes.

    
    

38. Respondent's policy includes special considerations for emergency responses. That section details what actions must be taken by one who intends to respond to an emergency and later seek reimbursement. It includes specific instructions for contacting Respondent's emergency response personnel who are available 24 hours a day. The requirement for prior approval may be waived when the contamination presents an imminent hazard to the public and the communication lines are unavailable from events such as hurricane Andrew.

39. Petitioner failed to show good cause for waiver of the requirement for prior approval. The PCE contamination at the Publix site did not present an imminent threat to the public from inhalation or contamination of potable water. No one contacted Respondent's emergency staff. Prior approval was not granted by either Respondent's emergency staff or the On-Scene Coordinator. The decision to proceed with remediation was driven by business and profit considerations and not by the need to protect the public from an imminent hazard.

    
    

40. Respondent's policy for determining good cause is consistent with applicable statutory authority. Respondent's explication of its policy is reasonable as applied to the facts and circumstances in this proceeding.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's

application for Good Samaritan eligibility.

RECOMMENDED this 31st day of May, 1995, in Tallahassee, Florida.

DANIEL MANRY

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 31st day of May, 1995.

ENDNOTES

1/ All chapter and section references are to Florida Statutes (1993) unless otherwise stated.

2/ See, discussion at paras. 34 - 38, infra.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5432

Petitioner's Proposed Findings Of Fact. 1.-18. Accepted in substance

19. Rejected as not supported by credible and persuasive

evidence

20.-21. Accepted in substance Respondents' Proposed Findings Of Fact.

Respondents' proposed findings of fact are accepted in this Recommended Order.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kenneth Plante, Esquire General Counsel

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Dominick J. Graziano, Esquire Joyce A. Nader, Esquire

201 East Kennedy Boulevard Suite 1125

Tampa, Florida 33602-5117

Lisa M. Duchene, Esquire

W. Douglas Beason, Esquire Assistant General Counsel

Department of Environmental Protection 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 PROTECTION

EASTLAKE WOODLANDS SHOPPING CENTER,

Petitioner,

vs. OGC Case No. 94-2901

DOAH Case No. 94-5432

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

/

FINAL ORDER

On May 31, 1995, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH") submitted his Recommended Order to the Department of Environmental Protection, formerly known as Department of Environmental Regulation (hereafter "Department"). A copy of the Recommended Order was served upon the Petitioner, Eastlake Woodlands shopping Center (hereafter "Petitioner"). A copy of the Recommended Order is attached as Exhibit A.

On June 13, 1995, Petitioner filed a Request for Extension of Time to File Exceptions to Recommended Order until June 30, 1995. Petitioner stipulated in the motion to waive the statutory deadline for the entry of final orders and agreed that the Secretary of the Department would have an additional 30 days in which to enter the Final Order. No objection to the requested extension was filed on behalf of the Department. An order was entered on June 23, 1995, granting Petitioner's requested extension and establishing August 14, 1995, as the deadline for the entry of a Final Order.

A second Request for Extension of Time to File Exceptions to the Recommended Order was filed on behalf of the Petitioner on June 28, 1995. Petitioner's second request sought an additional period of time until July 28, 1995, to file exceptions to the Recommended Order and also stipulated that the Department would have an additional 60 days to enter its Final Order. On July 14, 1995, the Department entered an Order Granting Second Request for Extension of Time to File Exceptions. This second extension order of the Department established July 31, 1995, as the new deadline date for the filing of exceptions by the parties and a new deadline date of October 13, 1995, for the entry of a Final Order in this case.

The Department timely filed a single exception to the Recommended Order on July 31, 1995. The Petitioner did not file any exceptions to the Recommended Order, even after requesting and receiving two extensions of time for filing the exceptions. 1/ Petitioner also failed to file a response to the Department's exception. The matter is now before the Secretary of the Department for final agency action.

BACKGROUND

Petitioner is the owner of East lake Woodlands Shopping Center located in Palm Harbor, Pinellas County, Florida. On November 9, 1993, Petitioner requested from the Department a determination of eligibility as a "Good Samaritan" under Section 376.305(6), Florida Statutes. Petitioner requested reimbursement of costs associated with the assessment and remediation of the pollutant perchloroethylene (hereafter "PCE") at the subject site. The Department denied Petitioner's request on August 5, 1994. Petitioner then filed a challenge to the Department's denial and requested a formal hearing under Section 120.5(1), Florida Statutes. A formal hearing was held before DOAH Hearing Officer Daniel Manry (hereafter "Hearing Officer") on April 10, 1995.

At the formal hearing, Petitioner presented the testimony of five witnesses and submitted nine exhibits for admission in evidence. The Department presented the testimony of two witnesses and submitted two exhibits for admission in evidence. The parties filed Proposed Recommended Orders on May 8, 1995. The Hearing Officer found in his Recommended Order that Petitioner did not obtain prior approval from the Department before initiating cleanup of the PCE contamination at the site as required by Department policy. The Hearing Officer also found that the PCE contamination at the shopping center site did not constitute an emergency or imminent threat to the public health and that Petitioner undertook the remediation for personal business reasons. 2/ The Hearing Officer concluded that Petitioner failed to show good cause for waiver of the Department requirement of prior approval in order to be eligible for reimbursement of remediation costs of the PCE. The ultimate recommendation of the Hearing Officer was that the Department "enter a Final Order denying Petitioner's application for Good Samaritan eligibility."

RULING ON DEPARTMENT'S EXCEPTION

The Department's exception does not take issue with the Hearing Officer's recommendation that a Final Order be entered denying Petitioner's request for eligibility as a "Good Samaritan" under Section 376.305(6) for reimbursement of the PCE remediation costs at the site. The Department only takes exception to the second sentence of Finding of Fact 12 wherein the Hearing Officer found that "Petitioner is entitled to apply for reimbursement of future costs once Respondent implements its dry cleaning program." The Department contends that this finding of the Hearing Officer is erroneous and is contrary to the uncontroverted testimony at the DOAH final hearing of Douglas Jones, the Bureau Chief of the Department's Bureau of Waste Cleanup. My review of the record reflects that this exception of the Department seems to be well-taken.

Mr. Jones repeatedly testified that the "Dry Cleaner" program still in the process of implementation by the Department is not a reimbursement program where site owners or their contractors will conduct the cleanup and seek reimbursement from the Department of cleanup costs. (Tr. 87-88, 102, 104-106) Instead, the Dry Cleaner program is a state-funded cleanup program under which the Department will be responsible for conducting the cleanup. (Tr. 88, 102) There does not appear to be any other competent substantial evidence of record to support this challenged finding of the Hearing Officer. Consequently, the Department's exception to the second sentence of Finding of Fact 12 is granted. It is therefore ORDERED:

1. The second sentence of Finding of Fact 12 on page four of the Recommended Order is modified to read as follows:

   Petitioner will be entitled to apply for participation in the program for state-funded cleanup of contaminated dry cleaning sites when Respondent implements this program.

   
   

2. The Recommended Order, as modified in paragraph A above, is adopted and incorporated herein by reference.

   
   

3. The application of Petitioner, Eastlake Woodlands Shopping Center, for eligibility for reimbursement under Section 376.305(6), Florida Statutes, for cleanup costs of PCE at the subject site is DENIED.

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, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.

DONE AND ORDERED this 29th day of September, 1995, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

VIRGINIA B. WETHERELL

Secretary

Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Filed September 29, 1995.

ENDNOTES

1/ Petitioner's counsel filed a Notice of Withdrawal as Counsel of Record for Petitioner effective July 7, 1995. This Notice of Withdrawal directs that all further service upon Petitioner be effectuated by delivery to Arthur L. Jones, Trusted c/o James L. Case, Esquire, 2810 East Oakland Park Boulevard, Suite 102, Fort Lauderdale, Florida 33306.

2/ The Hearing Officer found that Petitioner's remediation efforts were the result of a need to timely complete the expansion of a Publix supermarket at the shopping center.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by

U.S. Mail to:

Dominick J. Graziano, Esquire Arthur L. Jones, Trustee Joyce A Nader, Esquire c/o James L. Case, Esquire

Hearne, Graziano & Nader, P.A. 2810 E. Oakland Park Blvd, 102

201 E Kennedy Blvd, Ste 1125 Fort Lauderdale, Florida 33306 Tampa, Florida 33602-5117

and by hand delivery to:

Ann Cole, Clerk and

Daniel Manry, Hearing Officer Division of Administrative Hearings The DeSoto Bldg

1230 Apalachee Pkwy

Tallahassee Florida 32399-1550

Lisa M. Duchene, Esquire

W. Douglas Beason, Esquire

Department of Environmental Protection 2600 Blair Stone Rd

Tallahassee Florida 32399-2400 this 29th day of September, 1995.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

J. TERRELL WILLIAMS Assistant General Counsel 3900 Commonwealth Blvd. Mail Station 35

Tallahassee, Florida 32399-3000 Telephone: 904/488-9314

Docket for Case No: 94-005432

Orders for Case No: 94-005432