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Fairway Shoppes Joint Venture v. Dryclean U.S.A. of Fla., Inc.

ELR Citation: 27 ELR 21069
Nos. 95-8521d-CIV-HURLEY, (S.D. Fla., 08/02/1996)

The court orders a dry cleaning company to assess tetrachloroethylene (perc) contamination in the soil and groundwater surrounding one of its facilities and to propose a remediation plan. Adopting a magistrate judge's report and recommendation, the court holds that the magistrate clearly understood and properly applied Resource Conservation and Recovery Act (RCRA) §7002 to the present case. The magistrate first held that the company's past handling, transportation, storage, or disposal of hazardous wastes may present an imminent and substantial endangerment to health or the environment. Groundwater samples collected at plaintiff's shopping center, where the facility is located, disclose levels of contaminants that far exceed safe drinking water standards. Although there is no evidence that the contamination plume has migrated off site to nearby drinking water wells, a plume of toxic contaminants migrating toward a source of potable water supply meets RCRA's imminent and substantial endangerment standard. The magistrate need not—and should not—wait until the contaminated water is actually detected in public water supply wells before taking action. Further, the environment has been harmed by the discharge of dry cleaning solvents into the soil and groundwater. The magistrate next held that waste or discarded perc and its degradation components are all hazardous wastes as defined by RCRA. Also, evidence presented at a hearing clearly established that the dry cleaning company caused or contributed to the contamination. Because the company is the only dry cleaner to operate at the shopping center, the trail of contaminants leading from its premises to the dissolved perc plume in the groundwater proves that it is responsible for the contamination. And even if the perc came from a spill during the delivery of the chemical to the facility, the company would still be liable for contributing to both the transportation and handling of the chemical. The magistrate next held that injunctive relief requiring the company to assess the perc contamination and to take necessary steps to prevent further off-site migration is appropriate in this case. To allow these chemicals to remain in the aquifer until this case is tried would entail an unacceptable degree of risk relative to the harm to the company in requiring it to clean up the contamination it caused. Moreover, plaintiff has demonstrated a substantial likelihood of success on the merits. And a balancing of the equities weigh in favor of requiring the company to take reasonable measures to protect public health and the environment.

Counsel for Plaintiff
Kirk L. Burns
Law Offices of Douglas M. Halsey
First Union Financial Center
200 S. Biscayne Blvd., Ste. 4980, Miami FL 33131
(305) 375-0077

Counsel for Defendant
John M. Barkett
Coll, Davidson, Carter, Smith, Salter & Barkett
3200 Miami Center
201 S. Biscayne Blvd., Miami FL 33131
(305) 373-5200