07-003702EF Department Of Environmental Protection vs. Mr. Enos Kerr And Custom Care Dry Cleaning, Inc. Status: Closed DOAH Final Order on Wednesday, April 2, 2008.

Summary: Petitioner proved that Respondent stored dry-cleaning solvent outside secondary containment and on unsealed floors, but did not prove improper disposal of lint and filters.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 07-3702EF

)

MR. ENOS KERR and CUSTOM CARE DRY CLEANING, INC., )

)

)

Respondents. )

)

FINAL ORDER

On February 11 and 25, 2008, a final administrative hearing

was held in this case in Tallahassee, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Georgiana Holmes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent: William R. Waters, Jr., Esquire

Waters & Wolk, P.A.

1618 Mahan Center Boulevard, Suite 104

Tallahassee, Florida 32308-5453

STATEMENT OF THE ISSUES

The issues in this case are whether the Respondents, Enos

Kerr and Custom Care Dry Cleaning, Inc., are guilty of the

violations alleged in, should take the corrective actions

described in, and should pay the penalties assessed in the Notice

of Violation, Orders for Corrective Action, and Administrative

Penalty Assessment, DEP OGC File No. 06-2382-37-HW (the NOV).

PRELIMINARY STATEMENT

The NOV was issued on May 22, 2007. The Respondents filed a

Petition for Formal Administrative Review, and the matter was

referred to the Division of Administrative Hearings (DOAH) on

August 17, 2007. The matter was scheduled for a final hearing on

November 25-26, 2008, but a Joint Motion for Continuance was

granted, and the final hearing was rescheduled for February 11

and 25, 2008.

On January 28, 2008, the Petitioner, the Department of

Environmental Protection (DEP, or the Department), filed a Motion

for Summary Final Order. On February 5-6, 2008, the parties

filed unilateral prehearing statements, and DEP filed objections

to the statement filed by the Respondents. On February 8, 2008,

DEP filed a Motion in Limine and a Motion for Judicial Notice.

At the outset of the final hearing on February 11, 2008, the

Motion for Summary Final Order and Motion in Limine were denied,

and the Motion for Judicial Notice was granted.

During the final hearing, DEP called John Johnson, an

Environmental Specialist II who inspected Respondents' premises

and participated in enforcement activities, and James Byer, an

Engineer IV and Mr. Johnson's supervisor. DEP also had its

Exhibits P-1 through P-3, P-5, P-8, P-10 through P-12, P-14, P-16

through P-39, and P-43 admitted in evidence. Enos Kerr testified

for the Respondents, who also had Respondents' Exhibits 1 through

5 admitted in evidence. In rebuttal, DEP re-called Mr. Byer and

also called William Linn, a professional geologist employed by

DEP.

After presentation of evidence, the parties requested a

transcript of the final hearing and were given ten days from the

filing of the transcript in which to file proposed final orders

(PFOs). The Transcript was filed (in three volumes) on March 11,

2008. The timely filed PFOs have been considered in the

preparation of this Final Order.

FINDINGS OF FACT

1. Enos Kerr is the President and manager and an owner of

Custom Care Dry Cleaning, Inc., a dry-cleaning business located

in Tallahassee, Florida. The Respondents have been in business

for approximately twenty-five years. For approximately ten

years, Custom Care has used Vista LPA-142 as a dry-cleaning

solvent. Custom Care uses a spotting agent known as "Picrin" for

removal of difficult stains.

2. Vista LPA-142 is also known as paraffinic, napthenic

solvent, and aliphatic solvent. It contains 100 percent

paraffinic or napthenic solvent. It looks like water but is a

white oily liquid that has the odor of hydrocarbon and is a kind

of "mineral spirits."

3. "Picrin" contains more than 98 percent chlorinated

hydrocarbon. It is listed at 40 Code of Federal Regulations

(CFR) § 372.65 and exceeds the de minimis concentration defined

in 40 CFR § 372.38.

4. On August 18, 2006, John Johnson, a DEP Environmental

Specialist, inspected the premises of Custom Care. He found two

partially full 55-gallon steel drums of Vista LPA-142 outside of

secondary containment, which contained a 110-gallon storage tank

and Custom Care's Midwest dry-cleaning machine (which has a base

tank that stores used Vista LPA-142 which has passed through a

Filter King purification system for reuse in the dry-cleaning

machine). He testified that, not only did Mr. Kerr tell him the

drums were full or partially full, they were heavy enough from

being full or partially full that Mr. Johnson could not move them

easily.

5. On August 18, 2006, Mr. Johnson also observed, hanging

on the outside of the wall of the secondary containment area,

above the 55-gallon drums, some of the clear plastic tubing, a

pump, and a PVC pipe extending from the end of the tubing, which

were used to transfer Vista LPA-142 from the 55-gallon drums into

the 110-gallon storage tanks. The floor beneath the transfer

equipment and the 55-gallon drums was not sealed or otherwise

treated to render it impervious.

6. In another part of the premises on that date, also

outside secondary containment, was a Forenta spotting board used

for removal of difficult stains from fabric before placement in

the dry-cleaning machine. Various chemicals, including a plastic

bottle containing "Picrin," were in a box or tray attached to the

spotting board. Beneath the spotting board was an open plastic

waste basket used to collect and contain spotting agent suctioned

from the item of clothing being cleaned and funneled to the

basket. The floor under the spotting board was not sealed.

7. Custom Care's Filter King purification system uses cloth

filters. Periodically, Custom Care replaces the filters

containing lint from the dry-cleaning process. The old filters

are allowed to air-dry in the secondary containment area before

disposal in the municipal solid waste dumpster outside the

premises.

8. At the end of Custom Care's dry-cleaning process, the

dry-cleaned clothes are wrung out during a mechanical spinning

cycle and then manually transferred while still damp or somewhat

wet to a Huebsch dryer, which is outside secondary containment

and on a floor that was not sealed on August 18, 2006. Air-

drying is the last step in the process.

9. DEP did not have the filters and lint analyzed to prove

that they were contaminated with Picrin or any other hazardous

substance. Instead, DEP assumed that there was some

contamination, however small, and relied on the federal "mixture"

rule that even the smallest amount of hazardous waste

contamination turns previously unregulated solid waste into

regulated hazardous waste.

Count I - Secondary Containment

10. Respondents' factual defenses to Count I, for not

having the Vista LPA-142 in secondary containment on August 18,

2006, are: (1) secondary containment was not required because

Vista LPA-142 is not a "dry-cleaning solvent"; and (2) if

secondary containment was required, all of the Vista LPA-142 was

in secondary containment because the 55-gallon drums and transfer

equipment were empty.

11. In support of their first defense to Count I,

Respondents maintain that Vista LPA-142 is an aqueous solvent

because an analysis of a sample from the base tank that collects

used Vista LPA-142 after use and filtration for reuse in the dry-

cleaning machine indicates the presence of 0.34 percent water.

However, the presence of that small amount of water in the sample

did not prove that Vista LPA-142 is an aqueous solvent.

12. Custom Care also contends that Vista LPA-142 is not a

"dry-cleaning solvent" because Custom Care buys it from Phenix

Supply Company, which not only sells product to dry-cleaners but

also sells to other businesses for other uses, making Phenix

Supply something other than a "wholesale supply facility." This

contention is rejected. See Conclusion 33, infra .

13. Also in support of their first defense to Count I,

Respondents pointed to information received from the producer of

Vista LPA-142 that it was biodegradable to carbon dioxide and

water. However, biodegradation would occur only in the presence

of water and naturally-occurring microorganisms and aerobic

conditions. Such biodegradation does not mean that Vista LPA-142

is an aqueous-based solvent and not a naphthenic, petroleum-

based, dry-cleaning solvent.

14. Respondents also believed Vista LPA-142 was not a

petroleum-based dry-cleaning solvent because it has a flashpoint

above 140 degrees Fahrenheit. But there was no evidence to prove

that having a flashpoint above 140 degrees Fahrenheit means that

the Vista LPA-142 is an aqueous-based solvent and not a

naphthenic, petroleum-based, dry-cleaning solvent.

15. In support of their second defense to Count I, Mr. Kerr

denies telling Mr. Johnson the 55-gallon drums were full or

partially full and maintains that the presence of a bung wrench

on one of the drums was a fail-safe sign that both were empty

(and, essentially, proved that Mr. Johnson was lying).

Supposedly, according to Respondents, the Vista LPA-142 always is

transferred immediately upon delivery from the 55-gallon drums

into the 110-gallon tank and, sometimes, also into the base tank,

and that the bung wrench is placed on one of the empty drums as a

signal to the supplier that the drums are empty and ready to be

removed when the supplier returns in two weeks to check on the

drums to see if they are empty and ready to be picked up. This

explanation is not logical. To the contrary, the use of the

bung-wrench signal tends to prove the opposite-- i.e. , that the

drums were not empty. If the Vista LPA-142 always is immediately

transferred in its entirety, there would be need for a bung-

wrench signal. Indeed, the Vista LPA-142 could be immediately

transferred by the supplier (or by the Respondents while the

supplier was still on the premises). In addition, Mr. Kerr

conceded that there have been many other occasions when the 55-

gallon drums were not completely transferred into the 110-gallon

storage tank immediately upon delivery. There also have been

occasions when three 55-gallon drums have been delivered by the

supplier, all of which would not fit into the 110-gallon reserve

tank and the base tank.

16. In addition, during an enforcement meeting on

September 13, 2006, to discuss a draft Hazardous Waste Inspection

Report, while noting other issues with findings in the report,

Mr. Kerr did not take issue with findings concerning the 55-

gallon drums.

17. Also in support of their second defense to Count I,

Respondents maintain that the transfer equipment is emptied of

all Vista LPA-142 before it is re-hung on the wall. This can

indeed be accomplished by quickly extracting the PVC extension

from the drum, reversing its orientation by 180 degrees so that

it point toward the ceiling, and continuing to run the pump until

the tubing is empty. In any event, while stains on the concrete

floor under where the PVC pipe is hung on the wall may be from

Vista LPA-142, which would suggest that the procedure is not

always followed to perfection, the NOV did not cite Respondents

having the transfer equipment outside of secondary containment.

Count II - Unsealed Flooring

18. Respondents' factual defense to Count II, for not

having the flooring sealed between the secondary containment area

where the dry-cleaning machine was and where the Huebsch dryer

was, or where the 55-gallon drums were, is that secondary

containment was not required because Vista LPA-142 is not a "dry-

cleaning solvent." Factually, that defense already has been

addressed in Findings 11-14, supra .

Count III - Disposal of Solid Waste

19. Respondents' factual defenses to Count III, for

unpermitted and unauthorized disposal of solid waste ( i.e. , the

filters and lint) on August 18, 2006, are: (1) that disposal of

the filters and lint in the municipal solid waste dumpster is

permitted and authorized because they are not hazardous waste;

and (2) that, if they were hazardous waste, they were hazardous

due to contamination with Picrin, not with tetrachloroethylene,

also known as perchloroethylene or "perc," as alleged in the NOV.

20. In support of their first defense to Count III,

Respondents contend that all Picrin used in spot removal would be

suctioned out of the item of clothing and collected in the

container below the spotting board, or would be evaporated by the

steam used in the spot removal process. Indeed, Picrin's boiling

point is 165 degrees Fahrenheit, which is lower than the

temperature of steam.

21. Respondents contend, as proof of their first defense,

that if any trace of Picrin remained on clothing after spot

removal, it would be diluted in the Vista LPA-142 used in the

dry-cleaning process and then returned to the base tank for reuse

after the clothes are wrung out, but that a laboratory analysis

of a sample of from the base tank did not indicate the presence

of anything but water. However, actually the analysis was only

performed to detect the presence of water; the sample was not

analyzed for the presence of Picrin, or any of its breakdown

products, or anything other than water. There may be traces of

Picrin in the contents of the dry-cleaning machine's reservoir.

Besides, even if there is no Picrin in the dry-cleaning machine's

base tank, that evidence would not preclude the possibility that

Picrin is filtered out by the Filter King purification process

and is present in the filters and lint.

22. Regardless, while the first defense to Count III was

not proven, DEP presented no evidence on the question whether it

is likely the filters and lint would be contaminated with Picrin.

Rather, DEP's evidence assumed contamination without any further

proof.

23. As to Respondents' second defense to Count III, the NOV

does in fact reference tetrachloroethylene, also known as

perchloroethylene or "perc." However, it also calls the chemical

"Picrin ® which contains 100% Tetrachloroethylene ('Perc')." The

confusion arose because, during his inspection, Mr. Johnson

obtained from Custom Care's files a Material Safety Data Sheet

(MSDS) for Picrin. When he consulted with the manufacturer, he

was told that the MSDS was out-of-date, and the manufacturer

provided him with the current MSDS for Picrin. Then, the draft

Hazardous Waste Inspection Report discussed during the

enforcement meeting on September 13, 2006, referred to "today's

Picrin [which] contains 100% Trichloroethylene ('Perc')."

Mr. Kerr pointed out that "perc" was tetrachloroethylene, not

trichloroethylene. From this, Mr. Johnson and Mr. Byer

understood Mr. Kerr to be admitting to the use of "perc," which

he was not. In an attempt to correct the report in accordance

with Mr. Kerr's comment, DEP modified the report so that the

final draft referred to: "today's Picrin [which] contains 100%

Tetrachloroethylene ('Perc')."

24. Even if the NOV is not defective in referring to "Perc"

instead of clearly stating that Picrin was the alleged hazardous

waste involved, DEP failed to prove that Picrin was mixed with

the filters and lint. For that reason, DEP did not prove the

allegations in Count III.

Count IV - Investigative Costs

25. The Department's proof of investigative expenses

incurred consisted of the salary compensation paid to its

investigators.

26. Mr. Johnson’s salary is $17.53 per hour. He spent

approximately 55 hours conducting inspections and investigating

this case, which totals $964.15.

27. Mr. Byer’s salary is $22.87 per hour. He spent

approximately 96 hours investigating this case, which totals

$2,195.52.

Corrective Actions

28. Upon re-inspection of the premises on November 8, 2006,

Respondents were in compliance with all requirements. Deliveries

of Vista LPA-142 were being transferred into the 110-gallon

storage tank and base tank by the supplier upon delivery, and

Respondents had sealed the flooring appropriately. It is not

clear from the evidence what was being done with the filters and

lint, but apparently they were being appropriately disposed of as

hazardous waste at the time of the follow-up inspection.

Other Mitigating Circumstances

29. The evidence reflects a misunderstanding on the part of

Respondents that, because Custom Care uses Vista LPA-142 and is

considered a "mineral spirits" dry-cleaner, as opposed to a

"perc" dry-cleaner that uses "perc" or some other form of

chlorinated hydrocarbon that is a hazardous material in its dry-

cleaning machine, it is not governed by dry-cleaning statutes and

regulations.

CONCLUSIONS OF LAW

30. This is an administrative proceeding under Section

403.121(2), Florida Statutes. Under paragraph (d) of that

subsection, the Department has the burden of proving by a

preponderance of the evidence that Respondents are responsible

for the alleged violations; and, since penalties are assessed in

the NOV, "the administrative law judge shall issue a final order

on all matters, including the imposition of an administrative

penalty."

31. Counts I and II allege violations of Section 376.3078,

Florida Statutes, which in pertinent part requires that

drycleaning facilities:

install dikes or other containment structures

around each machine or item of equipment in

which drycleaning solvents are used and

around any area in which solvents or waste-

containing solvents are stored. . . . To the

extent practicable, each owner or operator of

a drycleaning facility shall seal or

otherwise render impervious those portions of

all dikes' floor surfaces upon which any

drycleaning solvents may leak, spill, or

otherwise be released.

32. Section 376.301, Florida Statutes, includes the

following definitions:

(14) "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 a facility that operates or has

at some time in the past operated as a

uniform rental company or a linen supply

company regardless of whether the facility

operates as or was previously operated as a

drycleaning facility.

(15) "Drycleaning solvents" means any and all

nonaqueous solvents used in the cleaning of

clothing and other fabrics and includes

perchloroethylene (also known as

tetrachloroethylene) and petroleum-based

solvents, and their breakdown products. For

purposes of this definition, "drycleaning

solvents" only includes those drycleaning

solvents originating from use at a

drycleaning facility or by a wholesale supply

facility.

Under these definitions, Custom Care is a "drycleaning facility,"

and Vista LPA-142 is a "drycleaning solvent."

33. Respondents contend that Custom care is not a

"drycleaning facility" because it does not use a "drycleaning

solvent" because the Vista LPA-142 it uses was not "originating

from use at a drycleaning facility or by a wholesale supply

facility." Respondents contend that their supplier, Phenix

Supply Company, is not a "wholesale supply facility" because it

also sells for uses other than dry-cleaning. However, while the

first part of the definition is circular (dry-cleaning solvents

originate from use at a dry-cleaning facility, which is a

facility that uses dry-cleaning solvents), it is concluded that

not only does the Vista LPA-142 in question originate from use at

a dry-cleaning facility, but also that Phenix is a "wholesale

supply facility."

34. Count III alleges improper disposal of solid waste

under Florida Administrative Code Rule 62-701.300(1)(a). Picrin

is a hazardous waste. See § 376.301(54); Fla. Admin. Code R.

mixture of Picrin and non-hazardous waste makes the mixture a

hazardous waste. See CFR § 261.3(a)(2)(iv). However, as found,

DEP failed to prove that Picrin was mixed with the solid waste

disposed of in the municipal solid waste dumpster.

35. It is recognized that federal regulations placed

certain obligations on a generator of hazardous waste to

determine and report whether a mixture constitutes hazardous

waste. See CFR §§ 262.11 and 372.30(a). However, Petitioner is

not charged with violating those regulations.

36. Section 403.121(4)(e) and (5), Florida Statutes,

establishes a penalty of $4,000 for the violation alleged in

Count I and $500 for the violation alleged in Count II.

37. Section 403.121(10), Florida Statutes, allows reduction

of a penalty up to 50 percent upon consideration of mitigating

circumstances, "including good faith efforts to comply prior to

or after discovery of the violations by the department." It also

provides: "Upon an affirmative finding that the violation was

caused by circumstances beyond the reasonable control of the

respondent and could not have been prevented by respondent's due

diligence, the administrative law judge may further reduce the

penalty." While there was no evidence of circumstances beyond

Respondents' reasonable control that caused the violations in

issue, there was evidence that Respondents made good faith

efforts to comply both prior to discovery of the violations (when

they thought they were in compliance because they were a "mineral

spirits" dry-cleaner, not a "perc" dry-cleaner, and therefore not

subject to the dry-cleaning statute) and after discovery of the

violations (as reflected in their being back in compliance at the

time of the follow-up inspection on November 8, 2006). For that

reason, a ten percent reduction of the penalty is appropriate.

After reduction, the appropriate penalties are $3,600 under Count

I and $450 under Count II.

38. DEP requests that Respondents be held liable for the

salary compensation of Messrs. Johnson and Byer for their time

spent working on this matter under Section 403.141(1), Florida

Statutes. Under that statute, Respondents are liable for the

"reasonable costs and expenses of the state in tracing the source

of the discharge, in controlling and abating the source and the

pollutants, and in restoring the air, waters, and property,

including animal, plant, and aquatic life, of the state to their

former condition . . . ." Recovery of salary compensation of DEP

employees is permissible under proper circumstances under this

statute. See Dept. of Environmental Protection v. Gainey , DEP

OGC Case No. 00-0696, DOAH Case No. 00-2391, 2001 Fla. ENV LEXIS

168, *7 (ruling on Exception 2) (DEP June 22, 2001). But in this

case, there was no proof of pollution that had to be traced,

controlled, or abated, or any need for restoration. For that

reason, no costs or expenses are recoverable in this case.

39. Section 403.121(2)(f), Florida Statutes, also provides

for payment of certain costs of the prevailing party, but DEP

made no request under that statute, and the salary compensation

of DEP employees would not be recoverable under that statute.

40. Under Section 403.121(11), Florida Statutes, penalties

collected pursuant to Section 403.121 "shall be deposited in the

Ecosystem Management and Restoration Trust Fund or other trust

fund designated by statute and shall be used to fund the

restoration of ecosystems, or polluted areas of the state, as

defined by the department, to their condition before pollution

occurred." No other trust fund appears to have been designated

by statute. In addition, Section 403.1651(2)(a), Florida

Statutes, provides that the Ecosystem Management and Restoration

Trust Fund "shall be used for the deposit of all moneys recovered

by the state" under Chapter 403, Florida Statutes.

DISPOSITION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED:

That Respondents, jointly and severally, shall pay $4,050 in

penalties into the Ecosystem Management and Restoration Trust

Fund. Payment shall be made by cashier’s check or money order

payable to the "State of Florida Department of Environmental

Protection" and shall include thereon the notations "OGC Case No.

06-2382-37-HW" and "Ecosystem Management and Restoration Trust

Fund." The payment shall be sent to the State of Florida

Department of Environmental Protection, District Director,

Northwest District, 160 Governmental Center, Pensacola, Florida

32502-5794.

DONE AND ORDERED this 2nd day of April, 2008, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of April, 2008.

COPIES FURNISHED :

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Georgiana Holmes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard Mail Station 35

Tallahassee, Florida 32399-3000

William R. Waters, Jr., Esquire

Waters & Wolk, P.A.

1618 Mahan Center Boulevard, Suite 104

Tallahassee, Florida 32308-5453

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

Notice of Appeal with the agency clerk of the Division of

Administrative Hearings and a copy, accompanied by filing fees

prescribed by law, with the District Court of Appeal, First

District, or with the District Court of Appeal in the Appellate

District where the party resides. The notice of appeal must be

filed within 30 days of rendition of the order to be reviewed.