STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

METROPOLITAN DADE COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 96-6057

)

ANGIE'S QUALITY CLEANERS, ) d/b/a TONY'S CLEANERS, DEP )

Facility No. 139500552, and ) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondents, )

)

and )

) COLOMBINA HOLDING COMPANY, ) N.V., INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

This case is before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings. Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 (Respondent Cleaners) and Colombina Holding Company, N.V., Inc. (Intervenor) filed a joint motion for summary recommended order, together with undisputed facts,1 exhibits, and a memorandum of law; but no affidavits.

Metropolitan Dade County (Petitioner) responded to the motion.

The Department of Environmental Protection (Respondent DEP) has neither filed a response to the motion nor joined in the motion nor requested a summary recommended order. A series of

cases are before the Division of Administrative Hearings involving Petitioner objecting to Respondent DEP's approval of eligibility for several dry cleaners to participate in the Drycleaning Solvent Contamination Cleanup Program (Drycleaning Cleanup Program), pursuant to Section 376.3078, Florida Statutes. Respondent DEP has consistently argued in the other cases that the eligibility determination should be upheld. It is presumed in the case at hand that Respondent DEP, consistent with its position, does not object to the motion.

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 there being no objection to the issuance of a recommended order but only to which party should receive the favorable ruling by the recommended order. Consequently, the motion for summary recommended order is being treated as a motion 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

Cleaners: Brian S. Adler, Esquire

Luis R. Figueredo, Esquire Litchford, Christopher, et al.

200 South Biscayne Boulevard, Suite 3580 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

For Intervenor: Michael P. Peterson, Esquire

Gunster, Yoakley, et al.

One Biscayne Tower, Suite 3400

2 South Biscayne Boulevard Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue for determination is whether Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 is eligible for state-administered cleanup under the Drycleaning Solvent Cleanup Program pursuant to Section 376.3078, Florida Statutes.

PRELIMINARY STATEMENT

Respondent Cleaners made application with Respondent DEP for state-administered cleanup under the Drycleaning Cleanup Program. By letter dated October 25, 1996, Respondent DEP notified Respondent Cleaners that, among other things, it had been found eligible for the Drycleaning Cleanup Program. By petition dated November 26, 1996, Petitioner contested Respondent Cleaner’s

eligibility for the Drycleaning Cleanup Program and requested a formal hearing.

On December 24, 1996, this matter was referred to the Division of Administrative Hearings. Respondent Cleaners was granted an extension of time to file a response to Petitioner's petition. Colombina Holding Company, N.V., Inc., the owner of the real property on which Respondent Cleaners is situated, was granted intervenor status.

Respondent Cleaners and the Intervenor filed an amended joint motion for summary recommended order and included undisputed facts, exhibits, and a memorandum of law; but no affidavits. Respondent Cleaners and the Intervenor request that Respondent Cleaners be found eligible for the Drycleaners Cleanup Program.

Petitioner responded to the motion and stated in its response that it was relying upon its response to Respondent DEP's motion for summary recommended order. To the contrary, Respondent DEP did not file a motion for summary recommended order in the case at hand. However, Respondent DEP did file such motion in the other series of cases referred to above before DOAH, and Petitioner's response has been the same throughout each case. Petitioner's response in consolidated DOAH Case

Nos. 96-3572 and 96-3574 is sua sponte included as an exhibit to indicate Petitioner's response to the legal arguments advanced by Respondent Cleaners in the case at hand. Citing from

Petitioner's response in the aforementioned consolidated DOAH Cases, Petitioner's position is in essence the following:

The County agrees that, from a factual basis, it has filed its petition based on the willful refusal of the drycleaning facility involved in this action to conduct assessment and remediation activities at the dry cleaning site after being notified to conduct such activities by DERM [Department of Environmental Resources Management], in accordance with local law and the facility's operating permit. The facility, after the enactment of the Drycleaning Contamination Cleanup Act, was notified of the necessity to continue with assessment and remediation of the contamination at the site however, failed to conduct the cleanup. It is the County's position that this willful violation of the lawful obligation to conduct cleanup activities is gross negligence as defined in the statutes.

Furthermore, in its response Petitioner disputes two of the alleged undisputed facts. Petitioner disputes that Respondent Cleaners "was using its best efforts to comply with the mandate of the NOV [Notice of Violation and Orders of Corrective Action] and to cooperate with Petitioner in the remediation of the site" and that Respondent Cleaners failed to timely address the septic tank problem and to submit a Contamination Assessment Report (emphasis added). Whether Respondent Cleaners used its "best efforts" or "timely" addressed the problem or "submitted" a report are not material facts in dispute and, therefore, have no effect on the determination of this case. (See, the Conclusions of Law of this recommended order.) The remaining facts indicated

as undisputed facts are hereby considered undisputed facts for the determination of the issue in the case at hand.

As stated earlier, the motion for summary recommended order is being treated as a motion for a recommended order. The undisputed facts, exhibits, and written argument have been duly considered in the preparation of this recommended order.

FINDINGS OF FACT

1. Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 (Respondent Cleaners) operates as a drycleaning facility at 1197 West 35th Street, Hialeah, Florida.

2. Colombina Holding Company, N.V., Inc. (Intervenor) is the owner of the real property located at 1197 West 35th Street, Hialeah, Florida.

3. Respondent Cleaners made application with the Florida Department of Environmental Protection (Respondent DEP) for state-administered cleanup under the Drycleaning Solvent Contamination Cleanup Program (Drycleaning Cleanup Program).

4. By letter dated October 25, 1996, Respondent DEP notified Respondent Cleaners, among other things, that its application was approved and that it was eligible to participate in the Drycleaning Cleanup Program.

5. Prior to Respondent Cleaner's approval to participate in the Drycleaning Cleanup Program, Metropolitan Dade County (Petitioner) issued to Respondent Cleaners a Notice of Violation and Orders for Corrective Action (NOV) for contamination at the

   drycleaning facility. The NOV required Respondent Cleaners to assess and remediate the contamination and to pump out and clean a soakage pit.

6. Having received the NOV, Respondent Cleaners obtained the services of an environmental consultant to assess the contamination on the site and to propose a plan of remediation. Respondent Cleaners maintained contact with Petitioner and advised Petitioner of the progress.

7. Petitioner required Respondent Cleaners to submit a Contamination Assessment Report (CAR) and IW Process Change Plans for the facility. Respondent Cleaners complied with the requirement.

8. By letter dated November 21, 1996, counsel for Respondent Cleaners made inquiry to Respondent DEP as to whether pump out or cleaning of contamination in a soakage pit was included within the Drycleaning Cleanup Program.

9. On November 20, 1996, Petitioner's Department of Environmental Resources Management (DERM) conducted a routine inspection and a receptor survey of Respondent Cleaners. No violations were observed by the inspector.

10. Respondent Cleaners has not remediated the contamination at the facility site.

    CONCLUSIONS OF LAW

    
    

11. 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.

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

13. 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 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.

14. 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.

          
          

15. 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.

16. 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.

17. 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.

18. The crux of Petitioner's position is that Respondent Cleaners is ineligible for the Drycleaning Cleanup Program due to Respondent Cleaners 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 of the drycleaning facility when notified by Petitioner.

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

20. 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).

21. 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.

22. 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.

23. 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).

24. 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.

    
    

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

26. 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.

27. 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).

28. 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.

29. 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.

30. 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.

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

32. 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 to elect not to proceed further with

    assessment and remediation. Hence, Respondent Cleaner's action or conduct was not unreasonable, not willful. Thunderbird Drive- In Theatre, supra.

33. 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).

    
    

34. 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).

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

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

37. 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 Angie's Quality Cleaners, d/b/a Tony's Cleaners, DEP Facility No. 139500552 eligible to participate in the Drycleaning Solvent Contamination Cleanup Program.

DONE AND ENTERED this 21st day of April, 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 21st day of April, 1998.

ENDNOTE

1/ A discussion of the undisputed facts is in the Preliminary Statement.

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

Brian S. Adler, Esquire Luis R. Figueredo, Esquire

Litchford, Christopher, et al.

200 South Biscayne Boulevard, Suite 3580 Miami, Florida 33131

Michael P. Peterson, Esquire Gunster, Yoakley, et al.

One Biscayne Tower

2 South Biscayne Boulevard, Suite 3400 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: 96-006057

Orders for Case No: 96-006057