STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DRYCLEAN USA OF FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 97-0448

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 17 and 18, 1997, via video teleconference, with the Petitioner and the Respondent appearing at Miami, Florida, before Patricia Hart Malono, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Teresa A. Woody, Esquire

Spencer Fane Britt & Browne LLP 1400 Commerce Bank Building 1000 Walnut Street

Kansas City, Missouri 64106

Alan M. Grunspan, Esquire

Kauffman Miller Dickstein & Grunspan NPA 4650 Southeast Financial Center

200 South Biscayne Boulevard Miami, Florida 33131

For Respondent: Jeffrey Brown

Assistant General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Intervenor: Thomas H. Robertson

Assistant County Attorney Metropolitan Dade County Stephen P. Clark Center

111 Northwest First Street, Suite 2810 Miami, Florida 33128-1993

STATEMENT OF THE ISSUE

Whether the Petitioner's application to participate in the Drycleaning Solvent Cleanup Program with regard to its Kendale Lakes facility should be granted or denied.

PRELIMINARY STATEMENT

In a letter dated August 2, 1996, the Department of Environmental Protection ("Department") notified Dryclean USA of Florida, Inc. ("Dryclean USA"), that its facility located at 14099 Southwest 88th Street in Miami, Florida, DEP Facility No. 139502287, had been found ineligible to participate in the Drycleaning Solvent Cleanup Program ("Program") established in Section 376.3078, Florida Statutes (1995). The Department alluded to the condition of eligibility in Section 376.3078(3)(a)3 that a facility not have "been operated in a grossly negligent manner at any time on or after November 19, 1980," and identified the specific basis for the rejection of Dryclean USA's application as follows: "The discharge of drycleaning solvents onto the soils or into the waters of the state were a result of willful actions by the operator." The Department further stated in its August 2, 1996, letter that such willful discharge is defined as gross negligence in Section 376.3078(3)(c).

Dryclean USA timely filed an Amended Petition for Formal Administrative Hearing in which it contested the Department's decision and requested a formal hearing. The Department transmitted the request to the Division of Administrative Hearings for assignment of an administrative law judge. By Notice of Hearing dated March 20, 1997, the hearing was scheduled for June 17 and 18, 1997. Also by order dated March 20, 1997, the Motion to Intervene filed with the Department on October 16, 1996, by Metropolitan Dade County was granted.

Prior to the hearing, the parties filed a Joint Prehearing Stipulation, and Teresa A. Woody, an attorney admitted to practice law in Missouri-but not in Florida, filed an affidavit in support of her request to appear as a qualified representative on behalf of Dryclean USA. On the basis of the information contained in the affidavit, Ms. Woody was accepted as a qualified

representative. Finally, Metropolitan Dade County appeared at the hearing for the limited purpose of withdrawing as Intervenor.

At the hearing, the Department acknowledged that it has the burden of producing evidence to establish that Dryclean USA willfully discharged drycleaning solvent at its Kendale Lakes facility. As a result, in accordance with the agreement of the parties, the Department presented its proof on this issue first. The Department presented the testimony of the following witnesses: Maria Riano, a chemist employed by Metropolitan Dade County's Department of Environment Resource Management ("DERM"); Roberto Abrahante, the chief of DERM's Industrial Facilities Section; and Charles Ziegmont, an environmental specialist with the Department. On rebuttal, the Department presented the testimony of William Linn, a geologist with the Department's Bureau of Waste Cleanup. Respondent's Exhibits 7 through 20, 22, 23, 26, and 28 through 32 were offered and received into evidence. Respondent's Exhibit 28 consists of the transcript and videotape of the deposition of Nicholas Simmons, a former employee of DERM;l Respondent's Exhibit 29 consists of the transcript and videotape of the deposition of Heather Wright, a former employee of DERM;2 Respondent's Exhibit 30 consists of the transcript of the deposition of Steven Lundy, a former employee of Dryclean USA; and Respondent's Exhibit 31 consists of the transcript of the deposit-ion of Monica Resconi, an employee of Dryclean USA. Finally, the Department submitted Respondent's Exhibit 32 as a late-filed exhibit, consisting of the laboratory notes of witness Maria Riano, which is received into evidence.

Dryclean USA presented the testimony of the following witnesses: Eddie Rodriguez, Chief Executive Officer of the parent company of Dryclean USA of Florida, Inc.; Michael Gagliano, Dryclean USA's maintenance manager; John Baeringer, a senior geologist with U.S. Environmental Group; and Michael Scott Steiner, president of Steiner Atlantic Company. Petitioner's Exhibits 1, 2, 9 through 11, 17 and 18 were offered and received into evidence. Petitioner's Exhibit 17 consists of designated portions of the transcript of the deposition of Robert Johns, chief of the Industrial Waste Section of DERM; the Department did not file any objections directed to the designated portions of the transcript.

The transcript of the proceedings was filed with the Division of Administrative Hearings on July 16, 1997. On August 26, 1997, the parties filed a Stipulated Motion to Correct Record, which is GRANTED. The corrections to the transcript have been noted.

The parties requested and were granted an extension of time until September 2, 1997, in which to file proposed recommended

orders. These proposed orders were timely filed, together with memoranda in lieu of closing argument; these submissions have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department of Environmental Protection is the state agency responsible for administering the Drycleaning Solvent Cleanup Program set out in Section 376.3078, Florida Statutes (1995).

   
   

2. Dryclean USA is a Florida corporation and is the owner of commercial real property located at 14099 Southwest 88th Street in Miami, Florida. Dryclean USA is an operator of a drycleaning facility at that location, as those terms are defined in Sections 376.301(8) and (21), Florida Statutes. The facility, known as the Kendale Lakes facility, has been operated by Dryclean USA as a drycleaning facility for approximately twenty years.

   
   

3. Drycleaning establishments use solvent in the cleaning process. Tetrachloroethylene, also known as perchloroethylene, is a commonly used drycleaning solvent and is considered a hazardous substance. Tetrachloroethylene is saturated in water at 150,000 parts per billion.

   
   

4. The drycleaning process produces lint that can contain tetrachloroethylene; contact water, which is water that has, at some point during the drycleaning cycle, come into contact with tetrachloroethylene; and sludge from the mechanism that separates pure tetrachloroethylene from water and solid materials produced during the drycleaning process. In addition, tetrachloroethylene accumulates in the filters used in the drycleaning machine.

   These substances must be disposed of as hazardous waste.

   
   

5. Steiner Atlantic Corporation is one of the largest distributors of drycleaning equipment in the country, and Dryclean USA purchases its equipment from this company. The drycleaning machine in the Kendale Lakes facility was purchased from Steiner Atlantic and has been in use at the Kendale Lakes facility since 1991. The machine is a third-generation machine that uses closed-loop technology. Tetrachloroethylene is introduced into the system from a pressurized container that is connected to the drycleaning machine through quick-disconnect valves. The tetrachloroethylene is pumped directed into the machine so that it does not come into contact with the air. Once

   the cleaning cycle is completed, tetrachloroethylene and water are extracted from the clothes, heated, and turned into a vapor. The vapor is routed across condensing coils that chill the vapor and turn it back into a liquid. The liquid goes into a separator, where the tetrachloroethylene and the water are separated; the tetrachloroethylene is returned to the drycleaning machine and the water, called separator water, is collected in a hazardous waste drum, which is hauled off the site by a company which is licensed to dispose of hazardous waste.

   
   

6. Steiner Atlantic develops training programs for its customers and for a number of years has worked with Dryclean USA to develop training programs for Dryclean USA managers and employees. The Dryclean USA training programs are among the most extensive programs that Steiner Atlantic has developed and rank among the best in the country.

   
   

7. The training for Dryclean USA managers both now and in 1995 consists of an intensive three-week program. In addition to courses on how to manage the business, Dryclean USA managers are trained in the operation and maintenance of all the equipment in the drycleaning facility, including the drycleaning machine, and in the legal requirements for handing hazardous waste. The program also includes training in environmental and safety issues, as well as hands-on instruction on the proper handling of tetrachloroethylene and equipment that comes into contact with tetrachloroethylene. Managers are provided with on-going training in addition to the initial training program.

   
   

8. Dryclean USA also has a training program in hazardous waste management for all of its employees, and this program was in place in 1995. All of Dryclean USA's employees receive this training from in-house training personnel or from district managers, and the employees must read a training manual, watch a video, and pass several tests that deal with handling hazardous waste. The employees are taught that tetrachloroethylene and substances contaminated with tetrachloroethylene must be disposed of in hazardous waste containers, which are then hauled away and disposed of by a hazardous waste disposal company. Managers at the Dryclean USA facilities are responsible for ensuring that tetrachloroethylene and substances contaminated with tetrachloroethylene are disposed of properly.

   
   

9. All Dryclean USA employees receive training in handling spills of tetrachloroethylene and substances contaminated with tetrachloroethylene, although the manager is the person responsible for ensuring-that spills are handled correctly and in accordance with the following procedures. First, all employees who will not participate in cleaning up the spill are evacuated from the premises. Certain designated employees, including the

   manager, use the spill kit provided in each facility to contain and absorb the spill. The spill kit consists of safety equipment for the employees handling the spill and of absorbent cloth, such as comforters or blankets, to absorb the tetrachloroethylene.

   The cloth used to absorb the spill is put through the drycleaning cycle to extract the tetrachloroethylene.

   
   

10. Dryclean USA requires that all spills, no matter how small, be immediately reported to the Dryclean USA maintenance department, which promptly dispatches an engineer to assist with the spill if it is the result of an equipment malfunction. Additionally, the employees are required to keep internal records of any spill that is less than one quart and to report to the state any spill in excess of one quart. These procedures are set out both in the Dryclean USA Written Hazard Communication Program manual provided to all employees and in the Dryclean USA Emergency Contingency Plan posted on the bulletin board at each Dryclean USA facility. No spills were reported at the Kendale Lakes facility in April or May 1995.

    
    

11. In addition to the training given to managers and other employees, the maintenance manager of Dryclean USA is also the environmental officer, and he performs semi-annual audits of each facility operated by Dryclean USA with respect to health, safety, and environmental standards. During these audits, the environmental officer ensures that the employees of each facility are aware of the procedures for the routine collection and disposition of substances contaminated with tetrachloroethylene and of the emergency contingency plan for handling spills of tetrachloroethylene and substances contaminated with tetrachloroethylene. No deficiencies were found at the Kendale Lakes facility during the 1995 audits.

    
    

12. In 1994, the soil and groundwater at the Kendale Lakes facility was found to be contaminated by tetrachloroethylene. At that time, Dryclean USA was leasing the property, but, upon learning of the contamination, it purchased the property.

    
    

13. Dryclean USA notified DERM of the contamination, and, in the spring of 1994, it retained the U.S. Environmental Group, an environmental consulting firm that, among other things, performs contamination assessments and develops and institutes remediation plans for sites contaminated with tetrachloroethylene. U.S. Environmental Group prepared a contamination assessment report delineating the area of contamination in the soil and groundwater around the Kendale Lakes facility. It also developed and implemented an interim remedial measures plan for both soil and groundwater contamination.

14. Neither DERM nor U.S. Environmental Group nor any other agency or entity has identified the source of the contamination at the Kendale Lakes site. When U.S. Environmental Group began its assessment of the contamination in 1994, it did not find any discharge occurring from the drycleaning system in place at that time and so concluded that the contamination was historical.

    
    

15. DERM assigned Nicholas Simmons as project manager for the Kendale Lakes site. In the spring of 1995, Mr. Simmons held the position of Hydrogeologist II in DERM's hazardous waste remediation program. His primary responsibilities in this position were to review contamination assessment reports, remedial action plans, and other documents relating to contaminated sites in Dade County and to make recommendations as to whether the reports and plans should be approved or disapproved. He was project manager for a number of sites contaminated with drycleaning solvents.

    
    

16. Before he became a Hydrogeologist II with DERM, Mr. Simmons was a Pollution Control Inspector I with that agency, and his responsibilities included making field inspections of industrial facilities in Dade County, including drycleaning establishments. During his time as a pollution control inspector, Mr. Simmons visited approximately 20 to 30 drycleaning sites, although he did not personally inspect all of them.

    
    

17. On April 28, 1995, Mr. Simmons made a visit to the Kendale Lakes facility in his capacity as DERM project manager to observe U.S. Environmental Group install a new monitoring well inside the facility. While at the facility, Mr. Simmons decided to make a cursory inspection to see if he could locate a source of the contamination at the site. He was unsuccessful in this respect, but he found several "items of concern" at the facility, none of which constituted a violation of any federal, state, or local laws, rules, or regulations or involved a discharge of tetrachloroethylene into the soil or groundwater.

18. One "item of concern" he identified during his April

    28 inspection was what appeared to be a leak from a pipe connected to the drycleaning machine. The liquid dripping from the pipe was clear and was dripping into a three-gallon bucket. Mr. Simmons did not take a sample of the liquid to determine if it was contaminated with tetrachloroethylene, nor did he observe the method of disposal of the liquid. The temporary manager, who was manager at the Kendale Lakes facility only one day per week, told him that he presumed the liquid was disposed of as hazardous waste.

19. Mr. Simmons prepared a memorandum dated April 28, 1995, to Mark Pettit, a DERM code enforcement officer, in which he reported in detail the inspection, the observations he made, and the conversations he had with Dryclean USA employees during his visit to the Kendale Lakes facility on that date.

    
    

20. Mr. Simmons visited the Kendale Lakes site again on May 2, 1995, to observe U.S. Environmental Group install equipment for a soil vapor extraction pilot test. Mr. Simmons took the opportunity to re-inspect the facility. Monica Resconi, the manager of the Kendale Lakes facility, was present during this inspection. In addition, Eddie Rodriguez, then-president of Dryclean USA, was present during most of the May 2 inspection.

    
    

21. Mr. Simmons observed that clear liquid was still dripping from the pipe connected to the drycleaning machine into a small bucket. Mr. Simmons asked for and received permission from Ms. Resconi and Mr. Rodriguez to take a sample of the liquid in the bucket, and he submitted it for testing to the DERM laboratory. The laboratory analysis established that the sample contained 220.5 parts per billion of tetrachloroethylene. Mr. Simmons did not ask Ms. Resconi or Mr. Rodriguez how this liquid was disposed of, and he did not observe anyone actually disposing of the liquid.

    
    

22. During Mr. Simmons' May 2 visit to the Kendale Lakes facility, he also observed a whitish liquid in a drum labeled "Hazardous Waste" that was located close to the drycleaning machine. A hose connected the drycleaning machine and the drum, but Mr. Simmons did not know whether there was liquid traveling through the hose or whether liquid would travel from the machine to the drum or vice versa. He also observed what appeared to be the same liquid in a puddle on the floor. He asked Ms. Resconi what the liquid was, and she put her hand into the puddle and identified the liquid as water. She wiped it up with a rag. Mr. Simmons did not observe her disposing of the rag, and he did not take a sample of either the liquid in the drum or the liquid on the floor.

    
    

23. When Mr. Simmons showed Mr. Rodriguez the dripping liquid he had first observed on April 28 and the area where he had observed the puddle of whitish liquid, Mr. Rodriguez immediately called the maintenance manager for Dryclean USA, and a maintenance technician and the maintenance supervisor were promptly sent to the Kendale Lakes facility. They reported to the maintenance manager that the liquid dripping from the pipe was water that had condensed on the outside of a refrigerator pipe because some of the insulation was missing. They also reported that there were no other leaks from the drycleaning machine. When he inspected the machine the following day, the

    maintenance manager found that the insulation on the pipe had been replaced and that the pipe was no longer dripping. He also found no other leaks in the drycleaning machine.

    
    

24. Finally, Mr. Simmons observed a yellow bucket just inside the back door of the facility during his May 2 inspection. The bucket contained dirty water and a mop with a green handle. He asked Ms. Resconi what the bucket contained, and she explained that it was water that had been used to mop the floor of the facility. When he asked how this water was disposed of, Ms. Resconi stated that it was thrown out the back door. Mr. Simmons asked for and received permission from Ms. Resconi and Mr. Rodriguez to collect a sample of the water in the bucket, but the sample he took was not acceptable for analysis and was discarded.

    
    

25. For some time prior to Mr. Rodriguez's meeting with Mr. Simmons, Dryclean USA's policy regarding the disposal of mop water required that water used to mop the front, or store area, of the facility be discarded down the toilet and that water used to mop the back area of the facility where the drycleaning equipment was located be discarded in hazardous waste containers. When Mr. Simmons told Mr. Rodriguez on May 2 that he was concerned that the water in the mop bucket might contain tetrachloroethylene, Mr. Rodriguez responded by directing Ms. Resconi to dispose of all mop water in the hazardous waste containers.

    
    

26. Mr. Simmons prepared a memorandum dated May 2, 1995, to Mark Pettit, a DERM code enforcement officer, in which he reported in detail the inspection, the observations he made, and the conversations he had with Dryclean USA employees during his visit to the Kendale Lakes facility on that date.

    
    

27. In accordance with Mr. Simmons' recommendation, a detailed inspection of the Kendale Lakes facility was ordered. On May 11, 1995, Heather Wright, an inspector with DERM's hazardous facilities section, visited the facility to perform this inspection. Ms. Resconi was not at the facility, but Ms. Wright met with Brad Clayton, the temporary manager at Kendale Lakes, and with Steve Lundy, Dryclean USA's district manager responsible for the Kendale Lakes facility.

    
    

28. Ms. Wright made a detailed inspection of the facility on May 11, 1995, and found that the floor around the drycleaning machine was dry and that there was no evidence of leaks from the drycleaning machine.

    
    

29. Mr. Lundy discussed with Ms. Wright the procedure for cleaning up spills of tetrachloroethylene or substances known to be contaminated with tetrachloroethylene, and he told her that

    spills were picked up with absorbent cloth, which was then put into the drycleaning machine to extract the tetrachloroethylene from the cloth. He also told her that any other materials known to be contaminated with tetrachloroethylene were disposed of in hazardous waste druMs.

    
    

30. Ms. Wright questioned Mr. Lundy on the method of disposing of water in the mop bucket, which was located just inside the back door of the facility. He told her that it was thrown out the back door of the facility, but he also told her that spills were not cleaned up with the mop, which was used only to mop the floors of the facility. Ms. Wright collected a sample of the water in the mop bucket and submitted it to the DERM laboratory for testing. The laboratory analysis established that the sample contained 121,928 parts per billion of tetrachloroethylene, an amount close to saturation.3 Ms. Wright did not observe the manner in which the employees of the Kendale Lakes facility disposed of the water in the mop bucket.

    
    

31. Ms. Wright prepared an Incident Report dated May 11, 1995, in which she reported in detail the inspection, the observations she made, and the conversations she had with Dryclean USA employees during her visit to the Kendale Lakes facility on that date.

    
    

32. When Mr. Rodriguez learned that the sample of water taken from the mop bucket at the Kendale Lakes facility contained almost 122,000 parts per billion of tetrachloroethylene, he instituted a new policy regarding the handling of mop water at all Dryclean USA facilities. Pursuant to a memo dated June 8, 1995, the new procedure requires that two mop buckets be maintained in each Dryclean USA facility, one to be used exclusively for mopping in the front "store" portion of the facility and one to be used exclusively for mopping in the back of the facility where the drycleaning equipment is located. The bucket used for mopping the back of the facility must be red, and the mop used must have a red handle. The water in the bucket used to mop the front of the facility must be discarded into the toilet, and the water in the red bucket, as well as the mop heads, must be disposed of as hazardous waste.

    
    

33. According to samples taken by U.S. Environmental Group in November 1996, the level of tetrachloroethylene in samples of groundwater taken from Monitoring Well Number 2, located just outside the back door of the Kendale Lakes facility, was 499 parts per billion, a very small amount but one which was significantly higher than the samples taken from other monitoring wells at the Kendale Lakes site. This indicates that there has been a discharge of tetrachloroethylene in the vicinity of the back door of the facility, but the contamination in this area is

    in the form of pockets of pure tetrachloroethylene in the soil under the asphalt in the back of the facility. This is not consistent with the discharge of tetrachloroethylene that is dissolved in water.

    
    

34. From 1994, when it began working at the Kendale Lakes facility, until the present, U.S. Environmental Group has found no indication of additional or increased contamination from tetrachloroethylene at the Kendale Lakes facility.

    
    

35. On April 1, 1996, Dryclean USA applied to the Department for a determination that its Kendale Lakes facility was eligible to participate in the Drycleaning Solvent Cleanup Program. As part of its review process, the Department requested that DERM provide answers to certain questions relating to the Kendale Lakes facility. One of the questions was whether DERM was aware of any "willful" discharge of contaminated materials at the Kendale Lakes site; DERM answered "Unknown." Also in response to the Department's inquiries, DERM provided the Department with materials that included the inspection reports submitted by Mr. Simmons and Ms. Wright in late April and early May 1995 and the laboratory analysis of the mop water sample taken by Ms. Wright on May 11, 1995. The Department relied on the information received from DERM in reviewing the application.

    
    

36. In a letter dated August 2, 1996, the Department notified Dryclean USA that its application for the Kendale Lakes facility was denied because it had determined that Dryclean USA had willfully discharged drycleaning solvents "onto the soils or into the waters of the State." The sole basis for this conclusion was the information in Mr. Simmons' and Ms. Wright's reports that Ms. Resconi and Mr. Lundy stated during the inspections on May 2 and May 11, respectively, that the water in the mop bucket found beside the back door of the facility was routinely thrown out of the back door and on the laboratory results showing that the sample of water taken from the mop bucket on May 11, 1995, contained approximately 122,000 parts per billion of tetrachloroethylene.

    
    

37. The parties have stipulated that, except for the issue of whether there has been a willful discharge of drycleaning solvent at Dryclean USA's Kendale Lakes facility subsequent to November 1, 1980, the application at issue in this proceeding satisfies all of the statutory criteria to establish Dryclean USA's eligibility to participate in the Drycleaning Solvent Cleanup Program for that facility.

    
    

38. The evidence presented by the Department is not sufficient to support a finding that there were willful discharges of drycleaning solvent at the Kendale Lakes facility

    subsequent to November 19, 1980. The evidence does not establish that spills of tetrachloroethylene and substances contaminated with tetrachloroethylene were routinely cleaned up with a mop and the mop water discharged out the back door of the Kendale Lakes facility. Dryclean USA's employees received extensive training in the proper disposal of hazardous waste and the proper method for handing spills of tetrachloroethylene and substances contaminated with tetrachloroethylene, and its managers were given additional training that included information on the legal and environmental aspects of tetrachloroethylene contamination.

    There was no plausible reason suggested by the evidence for Ms. Resconi to flout the policies and procedures established by her employer. Furthermore, the evidence presented by the Department is simply too tenuous to establish, as the Department proposes, that Ms. Resconi admitted to Mr. Simmons that spills of tetrachloroethylene and substances contaminated with tetrachloroethylene were routinely cleaned up with a mop and the mop water discharged out the back door of the Kendale Lakes facility.4

39. At most, the evidence establishes that water used to mop the floor of the Kendale Lakes facility was most likely discharged out the back door until May 2, 1995, when Mr. Rodriguez directed Ms. Resconi to dispose of all mop water at the facility in the hazardous waste containers, and that, on May 11, 1995, the water in the mop bucket contained a significant amount of tetrachloroethylene. There is no evidence that Dryclean USA or its employees knew that the water in the mop bucket on May 11, 1995, contained tetrachloroethylene or that the water in the mop bucket on May 11, 1995, was discharged out the back door of the facility or that any mop water containing tetrachloroethylene was discharged out the back door of the facility. In fact, the uncontroverted evidence is that there has been no increase in the level of tetrachloroethylene contamination at the Kendale Lakes facility since at least 1994.

    CONCLUSIONS OF LAW

    
    

40. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Section 120.57(1), Florida Statutes (Supp. 1996).

    
    

41. Section 376.3078, Florida Statutes (1995), establishes the Drycleaning Solvent Cleanup Program, which permits eligible drycleaning facilities to use designated restoration funds to assess, monitor, and rehabilitate sites which have been contaminated by drycleaning solvent The program is based on findings by the legislature in Section 376.3078(1) which include the following:

    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.

       
       

42. Based on these findings, the legislature provided in Section 376.3078 that those persons operating drycleaning facilities would be immune from liability for the rehabilitation of contaminated sites:

    
    

    (3) 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.

43. Elibility to participate in the Drycleaning Solvent Cleanup Program is determined pursuant to Section 376.3078(3):

    
    

    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:

       
       

       1. Has been registered with the department;

          
          

       2. Is determined by the department to be in compliance with-the department's rules regulating drycleaning solvents, drycleaning facilities, or wholesale supply facilities on or after November 19, 1980;

          
          

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

          
          

       4. Has not been identified to qualify for listing, nor is listed, on the National Priority List pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 as amended by the Superfund Amendments and Reauthorization Act of 1986, and as subsequently amended;

          
          

       5. Is not under an order from the United States Environmental Protection Agency pursuant to S. 3008(h) of the Resource Conservation and Recovery Act as amended (42

       U.S.C.A. S. 6928(h)), or has not obtained and is not required to obtain a permit for the operation of a hazardous waste treatment, storage, or disposal facility, a postclosure permit, or a permit pursuant to the federal Hazardous and Solid Waste Amendments of 1984;

       
       

       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.

       
       

44. On the basis of the parties' stipulation limiting the issue in this case to whether Dryclean USA willfully discharged dryclean solvent out the back door of its Kendale Lake facility, the only statutory criterion which the Department asserts it does not meet is the criterion in Section 376.3078(3)(a)3, which requires that the facility not have been operated in a grossly negligent manner subsequent to November 19, 1980.

    
    

45. In Section 376.3078(3), gross negligence is defined as follows:

    
    

    (c) 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 wholesale supply facility.

    
    

46. Because this case involves Dryclean USA's application to participate in the Dryclean Solvent Cleanup Program, it is Dryclean USA's burden to prove by a preponderance of the evidence that it is eligible to participate in the program. See Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1982)("[T]he party asserting the affirmative of an issue before the administrative tribunal carries the burden of proof."). The Department, however, must present evidence to demonstrate that Dryclean USA committed the act upon which it bases its decision of ineligibility to participate in the program:

    
    

    "The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue.

    Florida Department of Transportation v. J.W.C. Company, 396 So 2d 778 (Fla. 1st DCA 1981). Thus, the majority is correct in its observation that appellants had the burden of presenting evidence of their fitness for registration. The majority is also correct in its holding that the Department had the burden of presenting evidence that appellants

    had violated certain statutes and were thus unfit for registration."

    
    

    Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932, 934 (Fla. 1996)(quoting Osborne Stern and Co. v. Department of Banking and Finance, Division of Securities and Investor Protection, 647 So. 2d 245, 250 (Fla. 1st DCA 1996)(Booth, J., concurring and dissenting)). The Florida Supreme Court also stated in Osborne Stern that it wished to "emphasize the correctness of Judge Booth's conclusion that, while the burden of producing evidence may shift between the parties in an application dispute proceeding, the burden of persuasion remains upon the applicant to prove her entitlement to the license." Id.

    
    

47. Therefore, while Dryclean USA has the burden of proving by a preponderance of the evidence that it satisfies all of the criteria for eligibility to participate in the Dryclean Solvent Cleanup Program, the Department has the burden of producing evidence to establish that Dryclean USA willfully discharged drycleaning solvents "onto the soils or into the waters of the state after November 1, 1980," and, therefore, operated the Kendale Lakes facility in a grossly negligent manner.

    
    

48. In Thunderbird Drive-In Theatre, Inc. v. Reed, 571 So. 2d 1341, 1344 (Fla. 4th DCA 1990), the court discussed the meaning of the term "willful" as follows:

    
    

    In Kinq v. Eastern Airlines, Inc., 536 So.2d 1023, 1027 (Fla. 3d DCA 1987), the court presented a definition of willful misconduct as "the intentional performance of an act with knowledge that the . . . act will probably result in injury or damage" or as "reckless disregard of the consequences" or as "a deliberate purpose not to discharge some duty necessary to safety." In Smith v. Sno Eaqles Snowmobile Club, Inc., 823 F.2d 1193, 1198 (7th Cir.1987), the court referred to the following definition of willful conduct:

    
    

    Prosser and Keeton, authorities on torts, have stated that the "usual meaning" assigned to "willful" (as well as reckless and wanton) "[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 Handbook of the Law of Torts Sec. 34 at 213 (5th ed.

    1984). 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.

    
    

    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.

    Accord Miller v. State, 636 So. 2d 144, 150 (Fla. 1st DCA 1994).

    
    

49. Based upon the facts as found herein and the definition of "willful" approved by the court in Thunderbird Drive-In Theatre, the Department did not carry its burden of producing evidence that Dryclean USA operated its Kendale Lakes facility in a grossly negligent manner by willfully discharging drycleaning solvent at that facility subsequent to November 19, 1980. Therefore, Dryclean USA has met its burden of proving by a preponderance of the evidence that it is eligible to participate in the Dryclean Solvent Cleanup Program with respect to the Kendale Lakes facility.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a Final Order granting the Drycleaning Solvent Cleanup Program Application submitted by Dryclean USA of Florida, Inc., for its facility located at 14099 Southwest 88th Street, Miami, Florida.

DONE AND ENTERED this 2nd day of January, 1998, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 2nd day of January, 1998.

ENDNOTES

1/ Dryclean USA filed objections to certain portions of the deposition testimony. The rulings on these objections are as follows:

The objection to consideration of Exhibits 1, 2, 6, and 27 to the deposition is sustained.

The objections are overruled with respect to the deposition testimony found at page 17, lines 12 through 14; page 40, line 7,

through page 41, line 3; page 41, line 9, through page 42, line

1; page 42, lines 9 through 14; and page 110, line 4, through

page 119, line 6.

The objections are sustained with respect to the deposition testimony found at page 96, line 3, through page 102, line 16,

and page 110, line 18, through page 114, line 14.

2/ Dryclean USA filed objections to certain portions of the deposition testimony. The rulings on these objections are as follows:

The objections are overruled with respect to the deposition testimony found at page 20, line 24, through page 21, line 7, and

page 52, lines 9 through 24.

The objection is sustained with respect to the deposition testimony found at page 43, line 14, through page 44, line 8, and the answers to the questions posed therein are stricken.

3/ The bucket from which the sample was taken was a partially filled three- to four- gallon bucket, which, in addition to water, contained dirt and bits of lint and other debris. The amount of tetrachloroethylene in the water to produce this level of concentration would be between one-third and four-tens of a teaspoon.

4/ The only evidence cited by the Department to support this contention is the testimony of Mr. Simmons, who testified at his deposition as follows:

Q. [by Mr. Brown]. I'd like you, again referring to Exhibit Number 12, read page 2, paragraph 4 of that memorandum [dated May 2, 1995].

* * *

A. Paragraph 4 reads:

"At the rear door of the facility was a yellow mop bucket half filled with water. I asked Miss Roscone [sic] what was done with the mop water when they were done mopping up spills. She told me the usual practice is to throw it out the back door."

Q. Based on your recollection, were you in a conversation with Miss Roscone?

A. Yes.

Q. When did that conversation begin?

A. A few minutes prior to asking her those questions.

Q. What did you discuss in that conversation?

A. Primarily the problems that I had observed that I just discussed regarding the leaks and the hoses. And, you know, because she had identified herself as the manager, I felt it was my obligation to point out these problems to her.

Q. Did Miss Roscone explain what was done when dry cleaning solvent was spilled on the floor of the facility?

A. Did she specifically explain that? Not to my recollection. I mean it -- no.

Q. Did you discuss generally the facility's routine with respect to cleaning up spills?

A. I don't remember the actual conversation in detail other than what I've indicated here. I think it was just our general understanding that the mop was used to pick up spills. I don't know whether or not that was specifically communicated back and forth.

Q. It says -- your memorandum states "I asked Miss Roscone what was done with the mop water when they were mopping up spills."

What did "spills" refer to?

A. Well, what I was referring to was spills of any kind, including the ones that I had already pointed out to her regarding the back of the machine, that she had placed her hand in and pronounced was, quote-unquote, just water.

Q. From the context of the conversation was it clear that that was what you were referring to?

A. It was clear to me.

Q. Okay. To your recollection, was that conveyed to Miss Roscone?

A. To my recollection, it was clear to Miss Roscone and I think it would have been clear to anybody that I was speaking to that when I referred to spills it was any spills, including the ones that we had just discussed.

Q. To the best of your recollection, what did she tell you with respect to the facility's routine handling of spills?

A. Basically that any spills were mopped up with this mop water were dumped out the back door as the usual practice.

(Exhibit 28 at 41-43.) And:

Q. Did you point out that leak to Miss Roscone during the course of that [May 2, 1995] inspection?

A. Definitely.

Q. Did you, after you observed that leak, have a discussion concerning the bucket that was depicted in Exhibit 11 [the mop bucket beside the back door of the facility]?

A. Yes.

Q. Can you explain the timing of those two different conversations?

A. I indicated to her the area behind the machine. And when I walked around -- this is

-- I'm not sure if I can describe it verbally, but I was behind the machine. I had to step out from behind the machine. I pointed out to her that there was a spill and that it was continuing to leak.

We then proceeded around the front of the machine. I believe we actually spoke about providing receipts for the disposal of the contents in the drum, although I'm not 100% sure about that.

And then we stood next to the yellow bucket and I indicated to her that it was that bucket that I was talking about when I asked her what was done with their mop water when they were done mopping up the spills.

Q. And again, with respect to the bucket depicted on the right side of Exhibit 11, did she explain to you what she had done with that -- what was done with the water in that mop bucket?

A. Yes. She indicated that it was put out the back door, dumped out the back door.

(Exhibit 28 at 118-19). This testimony is simply not sufficient to permit with a reasonable degree of confidence a finding that

Ms. Resconi was aware that Mr. Simmons' question regarding disposal of the water in the mop bucket presupposed that the mop and bucket were used to clean up spills.

COPIES FURNISHED:

Teresa A. Woody, Esquire

Spencer, Fane, Britt & Browne, LLP 1400 Commerce Bank Building

1000 Walnut Street

Kansas City, Missouri 64106

Alan Grunspan, Esquire

First Union Financial Center

200 South Biscayne Boulevard Suite 4650

Miami, Florida 33131

Jeffrey Brown, Esquire Assistant General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-9730

Kathy Carter, Agency Clerk Office of the 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

Mail Station 35

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: 97-000448

Orders for Case No: 97-000448