STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WATER RECYCLING, INC.,

Petitioner,

vs.

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

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) Case No. 99-5249

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RECOMMENDED ORDER

A formal administrative hearing was held in this case before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, in Orlando, Florida, on February 8 and March 8, 2001.

APPEARANCES

For Petitioner: William H. Haak, Esquire

Lowndes, Drosdick, Doster, Kantor & Reed, P.A.

215 North Eola Drive Post Office Box 2809 Orlando, Florida 32802

For Respondent: Jason Hand, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE

Whether Petitioner is eligible to participate in the State of Florida Drycleaning Solvent Cleanup Program ("DSCP").

PRELIMINARY STATEMENT

On April 24, 1996, Petitioner applied to Respondent for eligibility to participate in the DSCP. Petitioner's application was for Water Recycling, Inc., 35 North Parramore Avenue, Orlando, Florida. By Order dated July 23, 1996, Respondent advised Petitioner that it was not eligible to participate in the DSCP. On August 21, 1996, Petitioner filed a Petition for Administrative Hearing contesting the Department's determination of ineligibility.

On December 13, 1999, this matter was referred to the Division of Administrative Hearings ("DOAH") for a formal administrative hearing pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes. A formal hearing was scheduled; however, the case was abated at the request of the parties. When all disputed issues of material fact were not resolved, a final hearing was scheduled to commence on February 8, 2001. On February 1, 2001, the parties filed a Joint Prehearing Stipulation. The formal hearing commenced on February 8, 2001. However, at the beginning of the hearing it became apparent that there was a misunderstanding between the parties as to the applicable burden of proof and its relationship to the facts that were stipulated to in the Joint Prehearing Stipulation. At the request of the parties, the hearing was continued to allow the parties to conduct further

discovery and prepare additional evidence. By Notice of Hearing dated February 20, 2001, the formal hearing was set to re- commence on March 8, 2001. At the final hearing, Petitioner offered the testimony of Dominick Cirotti, as Petitioner's corporate representative, and the testimony of James Cotton, as an expert witness. In addition to this testimony, Petitioner offered three exhibits in evidence. Respondent offered the testimony of William Burns, as Respondent's agency representative. In addition, ten exhibits were received in evidence.

At the conclusion of the evidentiary portion of the hearing, the parties agreed that the proposed recommended orders would be filed no later than 15 days from the date that the transcript of the hearing was filed with DOAH. On March 30, 2001, the Transcript of the hearing was filed with DOAH. On April 12, 2001, Respondent's Motion for an Extension of Time was granted, and extended the time to file the proposed recommended orders to April 20, 2001. Both parties timely filed their proposals, and each have been given careful consideration in the preparation of this Recommended Order.

FINDINGS OF FACT

1. On December 21, 1995, Petitioner was incorporated as a Florida corporation. Prior to its incorporation, Petitioner did not conduct any business activities. Since that time it has

   provided pretreatment for waste water generated by Associated Uniform Rental, Inc. ("AUR"). AUR is a uniform rental facility that rents uniforms and cleans those same uniforms using a laundry process that involves the use of soaps, softeners, and neutralizers. AUR's uniform cleaning process does not currently use, and has never used, drycleaning chemicals.

2. On April 24, 1996, Petitioner applied to Respondent for eligibility to participate in the DSCP. Petitioner's DSCP application lists the street address for the site as 35 North Parramore Avenue, Orlando, Florida. The application is signed by Dominick Cirotti.

3. Petitioner maintains a business office in the building located at 35 North Parramore Avenue. Although the application for eligibility lists the address for the site as

   35 North Parramore Avenue, Petitioner has operated and continues to operate a waste water treatment system in the northwest corner of the building located at 21 North Parramore Avenue. Petitioner began operating the waste water treatment system after it was incorporated in December 1995.

4. In January 1996, Petitioner acquired title to the real property located at 35 North Parramore Avenue. Petitioner's predecessor-in-title with respect to the above-referenced real property was AUR, f/k/a/ Atlantic Uniform Services, Inc. AUR originally acquired the property from Associated Uniform Rental

   and Linen Supply, Inc. ("AURLS") on July 21, 1979. AURLS and AUR are different companies. In January 1996, Petitioner also acquired title to the real property comprising the northwest corner of the building located at 21 North Parramore Avenue.

   AUR was Petitioner's predecessor-in-title with respect to both of the above-referenced real property.

5. There is one building located at 21 North Parramore Avenue. The remainder of the building is utilized by AUR in conducting its business operations as a uniform rental company. The waste water treatment plant is separated from the remainder of AUR's building by a knee-wall. Petitioner's waste water treatment system processes waste water generated by the operations of AUR. Petitioner's waste water treatment plant is an integral part of the operation of AUR's uniform rental facility.

6. The building at 35 North Parramore Avenue is located immediately to the north of the building located at 21 North Parramore Avenue. A narrow alleyway separates the two buildings. Prior to transferring the property to Petitioner, AUR used the northwest corner of 21 North Parramore Avenue for the storage of clothing as part of its operations as a uniform rental company. Since 1979, AUR has operated a uniform rental company in the building located at 21 North Parramore Avenue. AUR is currently located in the same building. AUR does not use

   perchloroethylene in its cleaning process. AUR rents uniforms and cleans them in a laundry process. AUR's facilities are utilized primarily for the cleaning and distribution of work apparel.

7. Since 1985, AUR has also maintained an office in the building located at 35 North Parramore Avenue. This office operates as part of AUR's uniform rental company. Dominick Cirotti is a corporate officer of Petitioner as well as the President of AUR. Petitioner and AUR share common employees. Petitioner and AUR also share common office space in the building located at 35 North Parramore Avenue.

8. At some time between 1925 and 1979, various drycleaning businesses operated on the property located at 21 North Parramore Avenue. Drycleaning operations ceased on the real property sometime between 1960 and 1965.

9. In April 1993, AUR retained Environmental Science and Engineering, Inc. ("ESE") to perform a limited site assessment with respect to suspected drycleaning solvent contamination beneath AUR's building on 21 North Parramore Avenue. ESE's assessment, completed on May 6, 1993, was to determine the presence of impacted soil and/or groundwater in the immediate vicinity of a hole in the concrete slab located in that area of the facility which was once used for drycleaning operations. This area was targeted because the hole was a suspected dump

   site for used perchloroethylene, a solvent used in drycleaning. The hole was located in the northwest corner of AUR's building on 21 North Parramore Avenue. ESE collected soil samples and screened the samples for the presence of organic vapors, and also installed a temporary monitor well and collected a groundwater sample. ESE's analytical results verified that "both the soil and groundwater had been affected by a release of chlorinated solvents . . ."

10. In June 1993, ESE performed an additional site assessment with respect to the contamination beneath AUR's building at 21 North Parramore Avenue. On July 28, 1993, ESE provided AUR with a letter that described its findings concerning the suspected contamination. The July 1993 ESE site Assessment Report includes a site plan (Figure 1) which depicts the installation of a temporary well in the northwest corner of the AUR building located at 21 North Parramore Avenue. This temporary monitor well was installed in the vicinity of the hole in the concrete slab. At the time the site assessment was performed by ESE, the northwest corner of the building was still owned by AUR. This monitor well was located in the same part of the building that AUR would later transfer to Petitioner. The additional site assessment performed by ESE confirmed the presence of perchloroethylene contamination.

11. In April 1994, HSA, Inc., was contracted to provide AUR with a Preliminary Contamination Investigation with regard to the perchloroethylene contamination at AUR's building on

    21 North Parramore Avenue. At the time the investigation was performed by HSA, the northwest corner of the building was still owned by AUR. A summary of the investigation's findings provided that soil and groundwater contamination issues apparently resulted from the disposal of purgeable hydrocarbons. Disposal was likely through one of two holes in the concrete slab within the cleaning facility.

12. These site investigations corroborate that there is perchloroethylene contamination, and that it originates under two holes in the concrete slab in the northwest corner of the building located at 21 North Parramore Avenue.

13. The perchloroethylene contamination meets the definition of "drycleaning solvents" per Subsection 376.301(9), Florida Statutes (1995). This statute provides that the definition of "drycleaning solvents" only includes " . . . those drycleaning solvents originating from use at a drycleaning facility . . ." Id.

14. Respondent denied the application for eligibility in the DSCP because Petitioner's predecessor-in-title, AUR, operated a uniform rental company on the real property that is the subject-matter of this proceeding.

15. Effective October 1, 1995, the term "drycleaning facility," as defined in Subsection 376.301(8), Florida Statutes, was amended to exclude uniform rental companies from eligibility to participate in the DSCP.

16. At the time the amendment to Subsection 376.301(8), Florida Statutes, became effective, AUR was operating a uniform rental company in the buildings located at 21 North Parramore Avenue and 35 North Parramore Avenue. AUR continues to operate a uniform rental company in the building locates at 21 North Parramore Ave and 35 North Parramore Avenue.

    CONCLUSIONS OF LAW

    
    

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

18. Respondent is the state agency charged by statute with the duty of implementing and enforcing the Cleanup Program pursuant to criteria set forth in Section 376.3078, Florida Statutes. See Metropolitan Dade County v. State, 714 So. 2d 512 (Fla. 3rd DCA 1998).

19. Petitioner has the burden of proving by a preponderance of the evidence that it is eligible to participate in the DSCP. Soap Opera Laundry and Drycleaners v. Department of Environmental Protection, DOAH Case No. 98-4177 (Recommended

    Order dated September 20, 1999); Young v. Department of

    
    

    Community Affairs, 567 So. 2d 2 (Fla. 3d DCA 1990).

    
    

20. Petitioner applied to participate in the program after October 1, 1995. The amended definitions of "drycleaning facility," excluding a uniform rental company from the DSCP, are applicable to Petitioner.

21. In 1994, the Florida Legislature created the DSCP to provide a source of funding for the re-mediation of drycleaning facilities contaminated with drycleaning solvents. See

    Section 376.3078, Florida Statutes (Supp. 1994). The definition of "Drycleaning Facility" initially included uniform rental companies. Subsection 376.301(7), Florida Statutes (Supp. 1994) states as follows:

    "Drycleaning facility" means a commercial establishment that operates or has at some time in the past operated in whole or in part for the purpose of cleaning clothing and other fabrics utilizing a process that involves any use of drycleaning solvents. The term "drycleaning facility" includes laundry facilities that use solvents as part of their cleaning process, uniform rental companies, and linen supply companies.

    
    

22. However, in 1995, the Florida Legislature passed two amendments relating to uniform rental companies. Chapter 95- 239, Laws of Florida, became law on June 9, 1995, and had an effective date of October 1, 1995. The first amendment excluded uniform rental companies from the definition of "Drycleaning

    Facility." Section 376.301(8), Florida Statutes (1995), provides in pertinent part:

    (8) "Drycleaning Facility" means a commercial establishment that operates or has at some time in the past operated for the primary purpose of drycleaning clothing and other fabrics utilizing a process that involves any use of drycleaning solvents. The term "drycleaning facility" includes laundry facilities that use drycleaning solvents as part of their cleaning process. The term does not include uniform rental companies, and linen supply companies regardless of whether the facility was previously operated as a drycleaning facility.

    
    

    The Second amendment involved in the authorized uses of drycleaning facility restoration funds. Subsection 376.3078(2)(c), Florida Statutes (1995), provides that drycleaning facility restoration funds may not be used to pay any costs related to the restoration of any site that is operated as a uniform rental facility, regardless of whether the site was previously operated as a drycleaning facility.

23. The evidence shows that AUR discovered solvent contamination on its own property in 1993, and that this solvent contamination originated from the northwest corner of 21 North Parramore Avenue. AUR owned the northwest corner of 21 North Parramore Avenue until January 1996. AUR still owns the remainder of the building located at 21 North Parramore Avenue. It is undisputed that AUR still operated its uniform rental

    plant at 21 North Parramore Avenue, and operates its uniform rental office at 35 North Parramore Avenue.

24. In addition to ownership and use of property by a uniform rental company as an office and as a plant, the evidence shows that the real property Petitioner acquired from AUR (the northwest corner of 21 North Parramore Avenue) was used by AUR to store racks of clothes until Petitioner installed the waste water treatment system.

25. If AUR had applied for eligibility in the DSCP, it would have been denied for these very reasons. AUR is a uniform rental company, and the evidence shows that the contamination originated from the northwest corner of its uniform rental company, where AUR stored racks of clothing.

26. The definition of "drycleaning facility" per Subsection 376.301(8), Florida Statutes (1995), specifically states that the definition does not include uniform rental companies, regardless of whether the facility was previously operated as a drycleaning facility. Furthermore, Subsection 376.3078(2)(c)(5), Florida Statutes (1995), explicitly states that drycleaning facility restoration funds may not be used to pay any costs related to the restoration of any site that is operated as a uniform rental facility, regardless of whether the site was previously operated as a drycleaning facility. It is undisputed that AUR is a uniform rental company.

27. Each of the following events occurred after October 1, 1995, the effective date for the amended definition of "drycleaning facility": (a) On December 21, 1995, Petitioner was incorporated in the State of Florida. As previously stated, Dominick Cirotti, a corporate officer for Petitioner and the president of AUR, testified that Petitioner conducted no activities before it was incorporated in the State of Florida;

    (b) On January 8, 1996, Petitioner acquired the building located at 35 North Parramore Avenue and the Northwest corner of the building located at 21 North Parramore Avenue; and (c) In April of 1996, Petitioner applied to the DSCP.

28. As a matter of law, the effective date for determining Petitioner's eligibility starts on October 1, 1995, the effective date of the amendment to Subsection 376.301(8), Florida Statutes. Petitioner is not eligible to participate in the DSCP because, as of the effective date of the statute, a uniform rental company was being operated on the real property on which Petitioner is located.

29. The 1995 definition of "drycleaning facility" may not be ignored until the time that a party such as Petitioner submits its application to the DSCP. Doing such would allow a uniform rental company that is operated after October 1, 1995, to simply transfer its property to a third party, such as Petitioner, and have the third party apply for eligibility to

    the DSCP. This interpretation circumvents the clear intent and plain language of Subsections 376.301(8), and 376.3078(2)(c)(5), Florida Statutes (1995).

30. Petitioner has failed to meet its burden of proving by a preponderance of evidence that it is eligible to participate in the DSCP. In fact, the record established that the real property that Petitioner used to apply to the DSCP was operated by AUR as a uniform rental company well beyond

    October 1, 1995, the effective date of the amendment.

    
    

31. Inasmuch as the real property does not meet the statutorily-prescribed definition of "drycleaning facility" per Subsection 376.301(8), Florida Statutes (1995), Petitioner is not eligible to participate in the DSCP.

RECOMMENDATION

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

RECOMMENDED that the Secretary declare Petitioner not eligible to participate in the Drycleaning Solvent Cleanup Program, and its application should be denied.

DONE AND ENTERED this 11th day of May, 2001, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2001.

COPIES FURNISHED:

William H. Haak, Esquire Lowndes, Drosdick, Doster,

Kantor & Reed, P.A.

215 North Eola Drive Post Office Box 2809 Orlando, Florida 32802

Jason Hand, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Kathy C. Carter, Agency Clerk Department of Environmental Protection Office of General Counsel

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Teri L. Donaldson, 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: 99-005249

Orders for Case No: 99-005249