STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

METROPOLITAN DADE COUNTY, )

)

Petitioner, )

)

vs. )

) REDD'S CLEANERS, DEP FACILITY NO. )

139502588, and STATE OF FLORIDA, ) CASE NO. 96-3571 DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents, )

)

and )

)

SEKOFF INVESTMENTS, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

The parties in the above-styled cause have each requested a summary recommended order. All parties agree that there are no material issues of fact in dispute. They have submitted undisputed facts, agreed upon exhibits, and written argument. This case is before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

Chapter 120, Florida Statutes, does not provide for a summary recommended order. When there are no disputed issues of material fact, Chapter 120 provides for a Subsection 120.57(2) proceeding. In the instant case, the parties originally

requested a Subsection 120.57(1) proceeding and continue to request such a proceeding even though there are no disputed issues of material fact. Subsection 120.569(1) provides for a Subsection 120.57(1) proceeding upon agreement of the parties. In the instant case, the parties have made such an agreement as evidenced by their request to have a recommended order issued in the absence of disputed issues of material fact. Consequently, the parties' motions for summary recommended order are being treated as requests for a recommended order based on stipulated facts and exhibits, and written argument.

APPEARANCES

For Petitioner: Thomas H. Robertson

Assistant County Attorney Metropolitan Dade County Stephen P. Clark Center

111 Northwest 1st Street, Suite 2810 Miami, Florida 33128-1993

For Respondent: Jeffrey Brown

Assistant General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard MS 35

Tallahassee, Florida 32399-3000

For Intervenor: Douglas M. Halsey, Esquire

Kirk L. Burns, Esquire

First Union Financial Center

200 South Biscayne Boulevard, Suite 4980 Miami, Florida 33131-5309

STATEMENT OF THE ISSUES

The issue for determination is whether Redd’s Cleaners, DEP Facility No. 139502588 is eligible for state-administered cleanup under the Drycleaning Solvent Cleanup Program pursuant to Section 376.3078, Florida Statutes.

PRELIMINARY STATEMENT

Redd’s Cleaners, DEP Facility No. 139502588 (Respondent Cleaners) made application with the Department of Environmental Protection (Respondent DEP) for state-administered cleanup under the Drycleaning Solvent Contamination Cleanup Program (Drycleaning Cleanup Program). By letter dated June 11, 1996, Respondent DEP notified Respondent Cleaners that, among other things, it had been found eligible for the Drycleaning Cleanup Program. By petition dated July 11, 1996, Metropolitan Dade County (Petitioner) contested Respondent Cleaner’s eligibility for the Drycleaning Cleanup Program and requested a formal hearing.

On July 31, 1996, this matter was referred to the Division of Administrative Hearings. A hearing was scheduled in this matter. However, prior to hearing, each party filed a motion for summary recommended order, and the hearing was canceled. The parties submitted (1) undisputed facts which comprise the findings of fact in this recommended order;(2) 12 exhibits, which include an affidavit; and (3) written argument. All of the submissions have been considered in this recommended order.

FINDINGS OF FACT

1. Metropolitan Dade County (Petitioner) is a political subdivision of the State of Florida. Pursuant to Chapter 24, Metropolitan Dade County Code, Petitioner regulates, among other

   things, the use, storage, and disposal of industrial wastes and hazardous substances in Dade County.

2. Sekoff Investments, Inc. (Intervenor) is a Florida corporation and is the owner of commercial real property located at 5821 Ponce de Leon Boulevard, Coral Gables, Florida. Intervenor is a "real property owner" as defined by Section 376.301(25), Florida Statutes (1995).

3. Florida Department of Environmental Protection (Respondent DEP) is an agency of the State of Florida. Pursuant to Chapters 20, 376, and 403, Florida Statutes, Respondent DEP has jurisdiction, among other things, over the regulation and protection of the State's surface waters, groundwater, and other natural resources.

4. From 1956 to December 1994, Intervenor leased its property to "drycleaning facilities," as that term is defined by Section 376.301(8), Florida Statutes (1995), which operated under the name "Redd's Cleaners" (Respondent Cleaners). Intervenor was not an owner of the drycleaning facilities, nor did it participate in their management or operation.

5. Intervenor's property has never been served by sewers and has a septic tank. Intervenor's property is not in an area served by private drinking water wells or in a cone of influence of a County wellfield.

6. Starting in 1988, Petitioner began inspecting drycleaning facilities and requiring them to obtain operating

   permits pursuant to Section 24, Metropolitan Dade County Code. On February 28, 1989, Petitioner issued Operating Permit No. IW5-3387-88 to Jen-Dan, Inc., d/b/a Respondent Cleaners. Operating Permit Nos. IW5-3387-89, IW5-3387-90, IW5-3387-91,

   IW5-3387-92, and IW5-3387-94 were subsequently issued for the period between April, 1989 through April, 1995.

7. On October 14, 1993, Petitioner collected soil and groundwater samples from the septic tank and storm drain/soakage pit at Intervenor's property and discovered elevated levels of perchloroethylene, a "drycleaning solvent," as that term is defined by Section 376.301(9), Florida Statutes (1995).

8. On March 15, 1994, Petitioner issued Respondent Cleaners and Intervenor a Notice of Violation and Orders for Corrective Action (NOV). The NOV provided that the presence of drycleaning solvents in the septic tank and storm drain/soakage pit violated Sections 24-11, 24-13, 24-14, 24-26, and 24-55, Metropolitan Dade County Code, and ordered Respondent Cleaners and Intervenor to submit a formal plan for the assessment and cleanup of the drycleaning solvent contamination. The cited provisions of the Dade County Code generally provide that it is unlawful to throw, drain, run, seep, or otherwise discharge industrial or liquid wastes into septic tanks, sewers, or waters of the County; to cause or maintain a nuisance or sanitary nuisance as defined by the Metropolitan Dade County Code; or to violate any provision or condition of an operating permit.

9. Intervenor hired the environmental consulting firm, REP Associates, Inc., which prepared and submitted to Petitioner a Contamination Assessment Plan (CAP) dated April 21, 1994. By letter dated May 5, 1994, Petitioner approved the CAP with modifications, and required the immediate pump out and disposal of the contaminated contents of the septic tank and storm drain/soakage pit.

10. In May and June, 1994, Intervenor began collecting soil, groundwater, and sediment samples from the septic tank and storm drain, and installed a groundwater monitoring well, as required by the CAP. The test results disclosed the presence of drycleaning solvents in the soils and groundwater at Intervenor's property. The contaminants in the septic tank and storm drain/soakage pit were a source or a likely source of soil and groundwater contamination at the facility.

11. On May 8, 1994, Respondent DEP announced that it was suspending all enforcement actions against drycleaning facilities based on the Florida Legislature's anticipated passage of the Florida Drycleaning Solvent Contamination Cleanup Act (Drycleaning Act).

12. On June 3, 1994, the Drycleaning Act became effective.

    
    

13. On August 23, 1994, Petitioner mailed Intervenor and Respondent Cleaners a Final Notice Prior to Court Action stating that they were not in strict compliance with the deadlines set forth in the NOV.

14. On September 22, 1994, Intervenor submitted to Petitioner a Report of Sampling and Analysis summarizing the results of the work performed in May and June, 1994. By letter dated September 23, 1994, Intervenor further advised Petitioner that it would be applying for participation in the Drycleaning Solvent Contamination Cleanup Program (Drycleaning Cleanup Program) as soon as Respondent DEP promulgated the necessary implementation rules. Intervenor proposed that Petitioner approve a no further action plan pending its notice of eligibility under the Drycleaning Act.

15. By letter dated September 30, 1994, Petitioner disapproved Intervenor's no further action plan. Petitioner again notified Intervenor and Respondent Cleaners that they must immediately remove and dispose of the contents of the septic tank and storm drain.

16. In December, 1994, Intervenor evicted Respondent Cleaners. Since that date, the former drycleaning facility has remained vacant.

17. On July 18, 1995, Intervenor's environmental consultants removed and properly disposed of the contents of the septic tank and storm drain.

18.1 On October 3, 1995, Intervenor's consultants advanced

new soil borings and installed a new groundwater monitoring well. Groundwater samples were collected on October 24, 1995.

19.2 On February 21, 1996, Intervenor submitted its

Contamination Assessment Report Addendum to Petitioner, summarizing the results of the work performed in July and October, 1995, and requesting a monitoring only plan (MOP). By letter dated February 29, 1996, Petitioner disapproved Intervenor's proposed MOP.

20. In March 1996, Respondent DEP began to accept applications for the Drycleaning Cleanup Program. Intervenor submitted its application for Respondent Cleaners on March 8, 1996.

21.3 By letter dated June 11, 1996, Respondent DEP approved

Intervenor's application and determined that Respondent Cleaners' drycleaning facility was eligible to participate in the Drycleaning Cleanup Program.

1. By Petition for Formal Administrative Hearing served July 11, 1996, Petitioner appealed Respondent DEP's eligibility determination. According to Petitioner, Intervenor's failure to timely comply with Petitioner's order to assess and remediate Respondent Cleaners constitutes gross negligence in the operation of the cleaner, thereby precluding its eligibility in the Drycleaning Cleanup Program.

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

3. The Drycleaning Cleanup Program was created by Section 376.3078, Florida Statutes (Supp. 1994).

4. In Subsection 376.3078(1), Florida Statutes (Supp. 1994), the Florida Legislature recognized that drycleaning facilities usually discharge drycleaning solvents and that such discharges pose a threat to the waters of the State, recognized the need to expeditiously address the contamination and made specific findings that:

   1. Significant quantities of drycleaning solvents have been discharged in the past at drycleaning facilities as part of the normal operation of these facilities.

      
      

   2. Discharges of drycleaning solvents at such drycleaning facilities have occurred and are occurring, and pose a significant threat to the quality of the groundwaters and inland surface waters of this state.

      
      

   3. Where contamination of the groundwater or surface water has occurred, remedial measures have often been delayed for long periods while determinations as to liability and the extent of liability are made, and such delays result in the continuation and intensification of the threat to the public health, safety, and welfare; in greater damage to the environment; and in signifi- cantly higher costs to contain and remove the contamination.

      
      

   4. Adequate financial resources must be readily available to provide for the expeditious supply of safe and reliable alternative sources of potable water to affected persons and to provide a means for investigation and rehabilitation of contaminated sites without delay.

      
      

5. Subsection 376.3078(3), Florida Statutes (Supp. 1994), addressing rehabilitation liability, provides for the

   immunization of dry cleaners from liability and the criteria for eligibility in the Drycleaning Cleanup Program and provides in pertinent part:

   1. REHABILITATION LIABILITY - In accordance with the eligibility provisions of this section, no person who owns or operates, or who otherwise could be liable as a result of the operation of, a drycleaning facility, and no wholesale supplier, shall be subject to administrative or judicial action brought by or on behalf of any state or local government or any person to compel rehabilitation or pay for the costs of rehabilitation of environ- mental contamination resulting from the discharge of drycleaning solvents. Subject to the delays that may occur as a result of the prioritization of sites under paragraph (4)(a) for any qualified site, costs for activities described in paragraph (2)(b) shall be absorbed at the expense of the dry- cleaning facility restoration funds, without recourse to reimbursement or recovery from the owner or operator of the drycleaning facility or the wholesale supplier.

      1. With regard to drycleaning facilities or wholesale suppliers that are being operated as drycleaning facilities or wholesale suppliers at the time the department adopts rules regulating the operation and maintenance of drycleaning facilities or wholesale suppliers, any contamination by drycleaning solvents at such facilities shall be eligible under this subsection regardless of when the drycleaning contamination was discovered, provided that the drycleaning facility or the wholesale supplier:

         1. Has registered with the department;

            
            

         2. Is determined by the department to be in compliance with the department's rules regulating drycleaning facilities or whole- sale suppliers, within a reasonable period of time after such rules are adopted;

         3. Has not been operated in a grossly negligent manner;

            
            

         4. Has third-party liability insurance or otherwise meets applicable financial responsibility requirements;

         
         

         and provided that the owner or operator of the drycleaning facility or the wholesale supplier has not willfully concealed the dis- charge of drycleaning solvents and, where appropriate, has remitted all taxes due pursuant to ss. 376.70 and 376.75.

         
         

      2. With regard to drycleaning facilities or wholesale suppliers that cease to be operated as drycleaning facilities or wholesale suppliers prior to the time the department adopts rules regulating the operation and maintenance of drycleaning facilities or wholesale suppliers, such facilities shall be eligible under this subsection regardless of when the contamination was discovered, provided that the drycleaning facility or wholesale supplier:

         
         

         1. Was operated in a manner consistent with established drycleaning industry standards and state or federal laws or regulations in effect at the time of operation; and

            
            

         2. Is not determined by the department to have been operated in a grossly negligent manner;

         
         

         and provided that the owner or operator of the drycleaning facility or the wholesale supplier has not willfully concealed the discharge of drycleaning solvents and, where appropriate, has remitted all taxes due pursuant to ss. 376.70 and 376.75.

         
         

6. The definition for gross negligence is found in Subsection 376.3078(3), Florida Statutes (Supp. 1994), which provides in pertinent part:

   1. For purposes of this subsection, the willful concealment of a discharge of

   drycleaning solvents, or a willful violation of state or federal law or regulation regulating the operation of drycleaning facilities or wholesale suppliers, or a willful violation of any drycleaning industry standard that existed prior to the adoption of state or federal laws or regulations regulating the operation of drycleaning facilities or wholesale suppliers, shall be construed to be gross negligence in the operation of a drycleaning facility or whole- sale supplier.

7. In 1995, the immunization from liability, the criteria for eligibility, and the gross negligence provisions of Subsection 376.3078(3), Florida Statutes, were amended and provide in pertinent part:

   1. REHABILITATION LIABILITY - In accordance with the eligibility provisions of this section, no real property owner or no person who owns or operates, or who otherwise could be liable as a result of the operation of, a drycleaning facility or a wholesale supply facility shall be subject to administrative or judicial action brought by or on behalf of any state or local government or agency thereof or by or on behalf of any person to compel rehabilitation or pay for the costs of rehabilitation of environmental contamination resulting from the discharge of drycleaning solvents. Subject to the delays that may occur as a result of the prioritization of sites under this section for any qualified site, costs for activities described in paragraph (2)(b) shall be absorbed at the expense of the drycleaning facility restoration funds, without recourse to reimbursement or recovery from the real property owner or the owner or operator of the drycleaning facility or the wholesale supply facility.

      1. With regard to drycleaning facilities or wholesale supply facilities that have operated as drycleaning facilities or wholesale supply facilities on or after

         October 1, 1994, any such drycleaning facility or wholesale supply facility at which there exists contamination by drycleaning solvents shall be eligible under this subsection regardless of when the drycleaning contamination was discovered, provided that the drycleaning facility or the wholesale supply facility:

         
         

         * * *

         
         

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

         
         

         * * *

         
         

         and provided that the real property owner or the owner or operator of the drycleaning facility or the wholesale supply facility has not willfully concealed the discharge of drycleaning solvents and has remitted all taxes due pursuant to ss. 376.70 and 376.75, has provided documented evidence of contamination by drycleaning solvents as required by the rules developed pursuant to this section, has reported the contamination prior to December 31, 2005, and has not denied the department access to the site.

         
         

      2. With regard to drycleaning facilities or wholesale supply facilities that cease to be operated as drycleaning facilities or wholesale supply facilities prior to October 1, 1994, such facilities, at which there exists contamination by drycleaning solvents, shall be eligible under this subsection regardless of when the contamination was discovered, provided that the drycleaning facility or wholesale supply facility:

         
         

         * * *

         
         

         2. Was not operated in a grossly negligent manner at any time on or after November 19, 1980.

         
         

         * * *

         and provided that the real property owner or the owner or operator of the drycleaning facility or the wholesale supply facility has not willfully concealed the discharge of drycleaning solvents, has provided documented evidence of contamination by drycleaning solvents as required by the rules developed pursuant to this section, has reported the contamination prior to December 31, 2005, and has not denied the department access to the site.

         
         

      3. For purposes of this subsection, the willful discharge of drycleaning solvents onto the soils or into the waters of the state after November 19, 1980, or the willful concealment of a discharge of drycleaning solvents, or a willful violation of local, state, or federal law or rule regulating the operation of drycleaning facilities or wholesale supply facilities shall be construed to be gross negligence in the operation of a drycleaning facility or whole- sale supply facility.

8. Petitioner contests the eligibility of Respondent Cleaners only under the gross negligence criteria. Petitioner does not contend that Respondent Cleaners fails to meet the other criteria for eligibility in the Drycleaning Cleanup Program.

9. The crux of Petitioner's position is that Respondent Cleaners is ineligible for the Drycleaning Cleanup Program due to Respondent Cleaners and Intervenor committing gross negligence as a result of their willful violation of both state and local law by their failure to perform the assessment and cleanup of the drycleaning facility when notified by Petitioner.

10. Whereas, Respondent DEP's and Intervenor's position is that no gross negligence has been committed because there is no willful violation of state or local law regulating the operation

    of drycleaning facilities.

    
    

11. It is undisputed that Respondent Cleaners began operating at its drycleaning facility in 1956 and ceased operating at the facility in December 1994. In accordance with Subsection 376.3078(3), Florida Statutes (1995), the question is, and the parties agree, whether Respondent Cleaners was operated in a grossly negligent manner on or after November 19, 1980, pursuant to Subsection 376.3078(3)(c), Florida Statutes (1995).

12. Examining what constitutes gross negligence, an inquiry must be made as to whether Respondent Cleaners' and Intervenor's failure to assess and remediate constituted a willful violation of both state and local law or rule regulating the operation of a drycleaning facility.

13. Moreover, not only must state or local law or rule be willfully violated, but the state or local law or rule violated must regulate the operation of drycleaning facilities. Subsection 376.3078(3)(c), Florida Statutes (1995).

14. No argument is presented by the parties that Petitioner's ordinances and mandate to assess and remediate are not considered local law or rule. Petitioner's ordinances are considered local environmental laws of general application.

15. Section 376.315, Florida Statutes, provides that Section 376.3078, as well as other specified sections, is to be liberally constructed to effectuate the purposes of Sections 376.30-376.319, Florida Statutes.

16. Where the legislative intent, as evidenced by a statute, is clear and unambiguous, there is no need for any interpretation or construction, and only the plain meaning of the statute's terms need to be given effect. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918).

17. Regarding the term "willful," guidance for its meaning can be found in Thunderbird Drive-In Theatre v. Reed, 571 So.2d 1341, 1344 (Fla. 4th DCA 1990):

    Prosser and Keeton, authorities on torts, have stated that the "usual meaning" assigned to "willful" . . . "[i]s that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow "

    Prosser and Keeton's definition of willfulness requires that three elements be established: (1) the actor do an intentional act of an unreasonable character (2) in disregard of a known or obvious risk that was great (3) as to make it highly probable that harm would follow. (Emphasis removed)

    
    

    Thus, we perceive that the use of the word "willfully" requires something more than mere knowledge or awareness. Rather, it requires intent and purpose that the act or condition take place.

    
    

18. Petitioner does not contend that Respondent Cleaners and Intervenor acted with the purpose in mind of causing or aggravating environmental hazards.

19. Section 376.3078 provides for the favorable treatment of drycleaning facilities. Petitioner argues that drycleaning facilities must first qualify or be eligible for the Drycleaning Cleanup Program before a drycleaning facility is exempt or immune from liability. Petitioner argues further that, until eligibility is found, the drycleaning facility remains liable and obligated to undertake cleanup measures. Petitioner’s arguments are not persuasive.

20. Subsection 376.305(1), Florida Statutes, which existed prior to the enactment of Section 376.3078, imposes a duty on dischargers of hazardous wastes to undertake corrective measures when discharges of hazardous wastes occur. In determining the effect of a later enacted statute, it is assumed that the Legislature passed the later statute with knowledge of the prior- existing laws. State ex rel. School Board of Martin County v. Department of Education, 317 So.2d 68 (Fla. 1975); Romero v. Shadywood Villas Homeowners Association, Inc., 657 So.2d 1193 (Fla. 3rd DCA 1995). Consequently, it is assumed that when the Florida Legislature enacted Section 376.3078, it acted with knowledge of the existing law, Subsection 376.305(1).

21. The purpose of Section 376.3078 is to provide expeditiously for the cleanup of sites contaminated by the discharge of drycleaning solvents, recognizing that drycleaning facilities discharge the solvents as part of the normal operation

    of the facilities. Also, as part and parcel of this purpose is the avoidance of delays associated with liability.

22. The Legislature provided in Section 376.3078 that, even though a drycleaning facility discharged drycleaning solvents, the facility can be eligible for the Drycleaning Cleanup Program. For the drycleaning facility to be ineligible, the facility must have committed gross negligence by willfully discharging or willfully concealing the discharge, or willfully violating a law or rule regulating the operation of drycleaning facilities. Furthermore, the Legislature provided that a drycleaning facility is eligible regardless of when the contamination was discovered.

23. Additionally, in accordance with Section 376.3078, a drycleaning facility is eligible for participation in the Drycleaning Cleanup Program even if the facility elected not to perform cleanup measures; a drycleaning facility is immune from administrative or judicial action to compel remediation or pay the costs of remediation if found eligible; and a drycleaning facility, if found eligible, is also eligible for state-funded cleanup.

24. As a result, the immunity attaches to a drycleaning facility even when and if the drycleaning facility breaches its duty to cleanup.

25. Through the enactment of Section 376.3078, the Legislature provided, in essence, that it is reasonable for a drycleaning facility to forego assessment and remediation, its

    duty to cleanup in favor of seeking eligibility in the Drycleaning Cleanup Program. Consequently, it was reasonable for Respondent Cleaners and Intervenor to elect not to proceed further with assessment and remediation. Hence, their action or conduct was not unreasonable, not willful. Thunderbird Drive-In Theatre, supra.

    
    

26. The term "regulate" is defined as

    
    

    To fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws....

    
    

    Black's Law Dictionary 1156 (5th ed. 1979).

    
    

27. The term "operate" is defined to include

    
    

    To work; to set or keep in operation or activity; as, to operate a machine. To superintend; to manage; to direct the affairs of; as, to operate a mine.

    
    

    Webster's New Twentieth Century Dictionary, Unabridged 1253 (2d ed. 1979).

28. Applying the plain language of the statute, Respondent DEP's and Intervenor's argument is persuasive that the local law or rule violated does not regulate the operation of a drycleaning facility. Petitioner's local law does not "fix, establish, or control the means by which the drycleaning facilities manages (sic) or operates (sic) a drycleaning business" or "how drycleaners perform their services [in order] to prevent the discharge of pollutants [during] the course of [their]

    operations." Moreover, assessment and remediation are not an element comprising the operation of a drycleaning facility.

29. Hence, Respondent Cleaners and Intervenor did not commit gross negligence in the operation of a drycleaning facility.

30. Also, Respondent DEP has filed an affidavit, which is included as an exhibit, showing its interpretation of Section 376.3078, in particular, as the interpretation relates to assessment and remediation and willfulness. An agency's interpretation of a statute, which it is responsible for administering, is to be given great weight and should not be overturned unless clearly erroneous. State ex rel. Biscayne Kennel Club v. Board of Business Regulation of Department of Business Regulation, 276 So.2d 823 (Fla. 1973). The affidavit shows that Respondent DEP's interpretation of Section 376.3078 is that a drycleaning facility's failure to assess and remediate in accordance with state or local law is not a per se willful violation and that local law requiring assessment or remediation by a drycleaning facility is not a local law regulating the operation of a drycleaning facility. Respondent DEP's interpretation is not clearly erroneous and, therefore, should be given great weight.

RECOMMENDATION

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

RECOMMENDED that the Department of Environmental Protection enter a final order finding Redd's Cleaners, DEP Facility No. 139502588 eligible to participate in the Drycleaning Solvent Contamination Cleanup Program.

DONE AND ENTERED this 14th day of May, 1997, in Tallahassee, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1997.

ENDNOTES

1/ Not designated a separate finding of fact by the parties but done so by the Administrative Law Judge.

2/ Ibid.

3/ Ibid.

COPIES FURNISHED:

Thomas H. Robertson, Esquire Stephen P. Clark Center Suite 2810

111 Northwest 1st Street Miami, Florida 33128-1993

Jeffrey Brown, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard MS 35

Tallahassee, Florida 32399-3000

Douglas M. Halsey, Esquire Kirk L. Burns, Esquire

First Union Financial Center Suite 4980

200 South Biscayne Boulevard Miami, Florida 33131-5309

Perry Odom, General Counsel Department of Environmental

Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Virginia B. Wetherell, Secretary Department of Environmental

Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 96-003571

Orders for Case No: 96-003571