STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

METROPOLITAN DADE COUNTY, )

)

Petitioner, )

)

vs. )

)

INDUSTRIAL EQUIPMENT AND ) Case No. 96-5127

SUPPLY, DEP Facility )

No. 139502056, and the ) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

This case is before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings. The Department of Environmental Protection (Respondent DEP) filed a motion for summary recommended order, together with undisputed facts, an exhibit, an affidavit, and a memorandum of law. Metropolitan Dade County (Petitioner) filed a response in opposition to the motion, but not disagreeing with the undisputed facts.

Subsequently, Industrial Equipment and Supply, DEP Facility No. 1395020561 (Respondent Industrial) filed a motion for summary final order, together with undisputed facts, an exhibit, and a memorandum of law. For the purposes of the motion, Respondent Industrial and Petitioner stipulated to undisputed facts. Also, Respondent Industrial joined in Respondent DEP's motion. As the

undersigned does not have final order authority in this cause, Respondent Industrial's motion is being treated as a motion for summary recommended order. Petitioner filed a response in opposition to the motion, and included an additional fact supported by an affidavit. No response to the additional fact or supporting affidavit was filed by Respondent Industrial.

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. However, 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 the parties agreeing to undisputed facts but at the same time requesting the issuance of a recommended order.

Consequently, the motions for summary recommended order are being treated as motions for a recommended order.

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

Industrial: William L. Pence, Esquire

Nina Kole Brown, Esquire Mark S. Shapiro, Esquire

Akerman, Senterfitt and Edison, P.A. Suntrust International Center

One Southeast Third Avenue, 28th Floor Miami, Florida 33131

For Respondent

DEP: Jeffrey Brown

Assistant General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE

The issue for determination is whether Industrial Equipment and Supply, DEP Facility No. 139502056 is eligible for state- administered cleanup under the Drycleaning Solvent Cleanup Program pursuant to Section 376.3078, Florida Statutes.

PRELIMINARY STATEMENT

Respondent Industrial made application with Respondent DEP for state-administered cleanup under the Drycleaning Solvent Cleanup Program. By letter dated July 31, 1996, Respondent DEP notified Respondent Industrial that, among other things, it had been found eligible for the Drycleaning Solvent Cleanup Program. By petition dated October 4, 1996, Petitioner contested Respondent Industrial's eligibility for the Drycleaning Solvent Cleanup Program and requested a formal hearing.

On November 1, 1996, this matter was referred to the Division of Administrative Hearings. Respondent DEP filed a motion for summary recommended order, together with undisputed facts, an exhibit, an affidavit, and a memorandum of law.

Subsequently, Respondent Industrial filed a motion for summary final order, together with undisputed facts, an exhibit, and a memorandum of law. Both Respondents request that Respondent

Industrial be found eligible for the Drycleaning Solvent Cleanup Program. Petitioner filed responses to both motions.

As stated earlier, both motions are being treated as motions for a recommended order. The undisputed facts, exhibits, affidavits, and written argument have been duly considered in the preparation of 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. Industrial Equipment and Supply, DEP Facility

   
   

   No. 139502056 (Respondent Industrial) is a Florida corporation and the owner of commercial real property located at 2035-2055 Northwest 7th Avenue, Miami, Florida. At this facility site, Respondent Industrial conducts business as a wholesale supplier of drycleaning supplies.

3. The 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, among other things, regulates and is charged with the protection of the State's surface waters, groundwater, and other natural resources.

4. On June 29, 1993, Petitioner's Department of Environmental Resource Management (DERM) issued Respondent

   Industrial a Notice of Violation and Order of Corrective Action (NOV). The NOV provided that evidence of "industrial waste discharges to the ground and groundwater" and that samples collected from Respondent Industrial's monitoring well revealed levels of tetrachloroethylene, also referred to as perchloroethylene (PERC), in violation of Chapter 24, Metropolitan Dade County Environmental Protection Ordinance.2

5. On or about September 20, 1993, in response to the NOV, Respondent Industrial's environmental consultant, Wingerter Environmental, prepared and submitted to DERM a Contamination Assessment Plan (CAP). On November 30, 1993, the CAP was approved by DERM, and subsequently modified on January 29, 1994. The CAP provided for the installation and sampling of five monitoring wells and four soil borings, and the surveying of relevant groundwater elevations.

6. Analytical results from the soil and groundwater sampling identified elevated levels of PERC. Based on the analytical results, in May 1994, DERM and Respondent's new environmental consultant, AB2MT, discussed the need for expanding contamination assessment activities, including the installation and sampling of additional soil borings, shallow wells and a deep well.

7. AB2MT completed the additional installation and sampling. Analytical results from the expanded assessment identified elevated levels of PERC, vinyl chloride and

   trichlorethylene.

   
   

8. In May 1994, House Bill No. 2817, the Drycleaning Solvent Contamination Cleanup Act (Drycleaning Act), passed the Florida Legislature and was submitted to the Governor for signature. The Drycleaning Act became law, Chapter 94-355, Laws of Florida, effective July 1, 1994.3

9. On May 8, 1994, after passage of but prior to the Drycleaning Act becoming law, Respondent DEP announced that it was suspending all enforcement actions against drycleaning and wholesale supply facilities based on the Florida Legislature's passage of the Drycleaning Act.

10. On May 16, 1994, Respondent Industrial's expanded contamination assessment report prepared by AB2MT was verbally approved by DERM.

11. On January 24, 1995, DERM forwarded a Final Notice Prior to Court Action (Final Notice) to Respondent Industrial. The Final Notice stated that Respondent Industrial was not in compliance with the NOV, requested that Respondent Industrial enter into an administrative consent agreement within thirty days, and indicated that the case would be turned over to the County Attorney's Office if the referenced violations were not corrected.4

12. On August 30, 1995, a guidance document, regarding applications under the Drycleaning Act, was issued by Respondent DEP. The guidance document stated that Respondent DEP would

    begin accepting applications to the state-administered program created by the Drycleaning Act upon adoption by Respondent DEP of a rule to implement the program.

13. In a meeting on January 25, 1996, DERM informed Respondent Industrial that it had a continuing obligation to cleanup and that it possibly could be found grossly negligent for failing to conduct a cleanup.

14. On March 13, 1996, Respondent DEP adopted the Drycleaning Solvent Cleanup Program Rules (Rules), Chapter 62- 781, Florida Administrative Code. The Rules specified eligibility requirements for applications submitted under the Drycleaning Act.

15. On April 21, 1996, Respondent Industrial made application to Respondent DEP for acceptance into the Drycleaning Solvent Cleanup Program.

16. On September 16, 1996, Respondent Industrial was accepted by Respondent DEP into the Drycleaning Solvent Cleanup Program, pursuant to Chapter 62-781, Florida Administrative Code.

17. By Petition for Formal Administrative Hearing served October 4, 1996, Petitioner appealed Respondent DEP's acceptance of Respondent Industrial into the Drycleaning Solvent Cleanup Program. According to Petitioner, Respondent Industrial's willful failure to assess and remediate contamination at the site of the wholesale supply facility constitutes gross negligence,

    thereby precluding its eligibility in the Drycleaning Solvent Cleanup Program.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

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

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

    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.

       
       

21. Subsection 376.3078(3), Florida Statutes (Supp. 1994), addressing rehabilitation liability, provides for the immunization of drycleaning facilities and wholesale supply facilities from liability and the criteria for eligibility in the Drycleaning Solvent 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.

          
          

22. 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.

23. 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.

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

25. The crux of Petitioner's position is that Respondent Industrial is ineligible for the Drycleaning Solvent Cleanup Program due to Respondent Industrial committing gross negligence as a result of its willful violation of both state and local law by its failure to perform the assessment and cleanup at the wholesale supply facility when notified by Petitioner.

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

27. 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 wholesale supply facilities. Subsection 376.3078(3)(c), Florida Statutes (1995).

28. 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.

29. 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.

30. 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).

31. 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.

    
    

32. Petitioner does not contend that Respondent Industrial acted with the purpose in mind of causing or aggravating environmental hazards.

33. Section 376.3078 provides for the favorable treatment of wholesale supply facilities. Petitioner argues that wholesale supply facilities must first qualify or be eligible for the Drycleaning Solvent Cleanup Program before a wholesale supply facility is exempt or immune from liability. Petitioner argues further that, until eligibility is found, the wholesale supply

    facility remains liable and obligated to undertake cleanup measures. Petitioner’s arguments are not persuasive.

34. 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).

35. 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.

36. The Legislature provided in Section 376.3078 that, even though contamination by drycleaning solvents exists at a wholesale supply facility, the facility can be eligible for the Drycleaning Solvent Cleanup Program. For the wholesale supply 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 wholesale supply facilities. Furthermore, the Legislature provided that a wholesale supply facility is eligible regardless of when the contamination was discovered.

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

38. As a result, the immunity attaches to a wholesale supply facility even when and if the wholesale supply facility breaches its duty to cleanup.

39. Through the enactment of Section 376.3078, the Legislature provided, in essence, that it is reasonable for a wholesale supply facility to forego assessment and remediation, its duty to cleanup in favor of seeking eligibility in the Drycleaning Solvent Cleanup Program. Consequently, it was reasonable for Respondent Industrial to elect not to proceed further with assessment and remediation. Hence, Respondent Industrial's action or conduct was not unreasonable, not willful. Thunderbird Drive-In Theatre, supra.

40. 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).

    
    

41. 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).

42. Applying the plain language of the statute, Petitioner's local law or rule, which Respondent Industrial is alleged to have violated, does not regulate the operation of a wholesale supply facility. Moreover, assessment and remediation are not an element comprising the operation of a wholesale supply facility.

43. 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 wholesale supply 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 wholesale supply facility is not a local law regulating the operation of a wholesale supply facility.

    Respondent DEP's interpretation is not clearly erroneous and, therefore, should be given great weight.

44. Hence, Respondent Industrial did not commit gross negligence in the operation of a wholesale supply facility.

45. Moreover, the grant of immunity by Subsection 376.3078 from administrative or judicial action is retroactive and applies to actions by Petitioner, prior to the enactment of the immunity, to compel rehabilitation or pay the costs of rehabilitation. See Metropolitan Dade County v. Chase Federal Housing Corp., et al.,

23 Fla. L. Weekly D322 (Fla. 3rd DCA January 28, 1998).

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 Industrial Equipment and Supply, DEP Facility No. 139502056 eligible to participate in the Drycleaning Solvent Cleanup Program.

DONE AND ENTERED this 5th day of May, 1998, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1998.

ENDNOTES

1/ Respondent Industrial indicated the incorrect DEP Facility No. in the style of its pleading. The DEP Facility No. is not 139500243 but is 139502056.

2/ Petitioner's DERM has on record an incident report regarding a spill of PERC at Respondent Industrial on February 17, 1993, in which Groendyke Transportation was the responsible party.

Absorbent was placed on the spill and soil was excavated and placed in drums awaiting sampling before disposal.

3/ The stipulated undisputed facts state that "Following the Governor's signature, the Drycleaning Act became law "

Chapter 94-355, Laws of Florida, states that House Bill No. 2817 became law "without" the Governor's signature.

4/ On December 13, 1995, the County Attorney's Office for Petitioner forwarded a letter to Respondent Industrial indicating that suit would be filed against Respondent Industrial if satisfactory arrangements were not made with DERM to remediate the contamination at issue.

COPIES FURNISHED:

Thomas H. Robertson Assistant County Attorney Metropolitan Dade County Stephen P. Clark Center

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

Jeffrey Brown

Assistant General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

William L. Pence, Esquire Nina Kole Brown, Esquire Mark S. Shapiro, Esquire

Ackerman, Senterefitt and Edison, P.A. SunTrust International Center

One S.E. Third Avenue, 28th Floor Miami, Florida 33131

Kathy Carter, Agency Clerk Office of General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

F. 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: 96-005127

Orders for Case No: 96-005127