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

No. 95-8521-CIV-HURLEY (S.D. Fla. August 2, 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

[27 ELR 21069]

Lynch, J.:

Report and Recommendation on Plaintiff's Motion for Preliminary Injunction

THIS CAUSE came before the court upon the motion of Plaintiff, Fairway Shoppes Joint Venture, for entry of a preliminary injunction requiring Defendant, Dryclean U.S.A. of Florida, Inc. ("Dryclean U.S.A."), to cease discharging hazardous wastes and to assess and remediate the groundwater contamination it caused by its past disposal of dry cleaning chemicals at its facility at 7100 Fairway Drive, Palm Beach Gardens, Florida. A day-long evidentiary hearing was held on January 29, 1996. Having considered the evidence offered at hearing, reviewed the pleadings and affidavits filed by the parties, and being otherwise advised in the premises, the court finds and rules as follows:

Findings of Fact

1. Fairway Shoppes Joint Venture ("Fairway Shoppes") is the owner of the Shoppes on the Green Shopping Center located at 7100 Fairway Drive, Palm Beach Gardens, Florida ("Shopping Center"). Since 1986, Dryclean U.S.A. has owned and operated a dry cleaning business at the Shopping Center. Dryclean U.S.A. has been the only operator of a dry cleaning facility at the Shopping Center since it was built in 1986. As part of its dry cleaning operation, Dryclean U.S.A. regularly uses the chemical perchloroethylene, also known as "perc," ["PCE,"] or tetrachloroethylene.

2. Shoppes on the Green [Shopping Center] is located southwest of the intersection of PGA Boulevard and the Florida Turnpike. The center has 100,000 square feet and is occupied by a variety of tenants, including Publix, Walgreens, and Dryclean U.S.A.'s store. The water used by the tenants at the Shopping Center is supplied through public water supplies and not by wells.

3. The Shoppes on the Green Shopping Center is less than one mile south of Palm Beach County's Seacoast Utilities Hood Road Wellfield ("Seacoast Wellfield"). The Seacoast Wellfield provides up to 12 million gallons of fresh water a day to residents and consumers in Palm Beach County. The Shopping Center is also due west of the Ballen Isles residential development. Ballen Isles has water wells that provide irrigation water for the development's golf course. Immediately south of the Shopping Center is a small lake.

4. In December 1994 and February 1995, Fairway Shoppes conducted tests on soil and groundwater at the Shopping Center. Groundwater samples were collected from directly underneath the space leased by Dryclean U.S.A., from seven locations immediately outside its back door, and from several areas to the north and east of the dry cleaning store. Hydropunch tests performed on samples collected from shallow groundwater 5 to 10 feet below surface and beneath Dryclean U.S.A.'s store, and from the area adjacent to its back door, revealed elevated levels of perc up to 120 times above state drinking water standards. See Ch. 62-550, Fla. Admin. Code. Substantially elevated levels of perc's breakdown components were also detected.

5. Expert testimony presented at hearing demonstrated that there was no known off-site source for the perchloroethylene discovered beneath and surrounding Dryclean U.S.A.'s facility presented at this hearing. First, regional groundwater flow is to the east, yet only an office building and the PGA National residential development are located west of the Shopping Center. Second, the location of the perc contamination in the shallow aquifer, as well as its presence in a 7-foot-deep monitoring well drilled inside Dryclean U.S.A.'s facility, rule out an off-site source. Perchloroethylene is heavier than water and, if released from an off-site source, would not be expected to migrate to the dry cleaner and then ascend upward into the shallow water directly beneath Dryclean U.S.A.'s dry cleaning unit. Finally, although Dryclean U.S.A. suggested that a gasoline station to the northeast of the dry cleaner might have been a potential source of the perchloroethylene, it offered no evidence that perc was actually used at or released from the gasoline station, or that there was a contaminant [27 ELR 21070] plume moving from the gasoline station hundreds of feet against the regional groundwater flow to an area beneath the dry cleaner.

6. Fairway Shoppes presented evidence that there had been at least one past spill of perchloroethylene during Dryclean U.S.A.'s tenancy. Ms. Victor described the incident as a small accidental spill of less than one gallon of PCE near the dry cleaning machine inside the store in January 1994. The store manager told Ms. Victor that the PCE was immediately absorbed by one of the spill blankets that routinely are maintained adjacent to the dry cleaning machine as a precautionary measure, and that the spill blanket was then put into the drycleaning machine to reclaim the absorbed PCE. Ms. Victor testified that there was no residue as a result of the incident based on what she had been told. She also testified that, based on her experience, it was common in dry cleaning stores to maintain a spill blanket by a dry cleaning machine. At the time of the known spill, in January 1994, no impervious coating had been applied to the floor and there was no secondary containment underneath the dry cleaning machine. There was also testimony that dry cleaning equipment presents several potential sources for the release of perchloroethylene, including the handling of used filters, wastewater from the perc-water separator, filter lint, and new and waste perchloroethylene. Under the Resource Conservation and Recovery Act ("RCRA"), waste perchloroethylene is a "hazardous waste" which must be characterized, stored, and disposed of in accordance with RCRA regulations applicable to small quantity generators like Dryclean U.S.A. A February 1995 environmental compliance audit documented that Dryclean U.S.A. had violated several RCRA regulations regarding housekeeping and recordkeeping.

7. Dryclean U.S.A. offered no proof that the perc contamination found directly beneath the dry cleaning machine was caused by a third party. Kent Martindale, the current manager of the Dryclean U.S.A. facility, testified that he was unaware of any third party which caused a discharge or release of perc at the facility He testified that Dryclean U.S.A. intends to install new equipment, an impermeable epoxy surface on the bare concrete floor, a secondary containment in its facility, in order to reduce the possibility of soil and groundwater contamination from future spills of perchloroethylene. These improvements had not been done as of the date of the hearing.

8. Ms. Victor and Mr. Martindale described the dry cleaning operation, which employs a "dry-to-dry" machine. This machine is equipped with a self-contained distillation unit which reclaims the spent PCE and recycles the distilled PCE back to the working compartment. A water-PCE separator separates water and PCE, based on the densities of each liquid. The separated water is routed into a fixed collection device which contains heating coils that evaporate the separated water. The distilled PCE is continually recycled and reused in the dry cleaning process within the machine. PCE is stored in a storage tank within the machine.

9. There are filters used to recycle the PCE that are changed periodically. The PCE filters are drained for at least 24 hours over a weekend inside the dry cleaning machine in a sealed canister. On Mondays, maintenance personnel transfer the drained filters to a sealed container for pickup by an outside vendor named Safety Kleen. Any PCE drained from the filters is recycled in the dry cleaning machine.

10. PCE is delivered to the facility by an outside vendor by truck. The PCE delivery truck parks at the rear of the dry cleaning store. PCE is pumped through a hose or pipe that runs from the truck to the dry cleaning machine. The store manager told Ms. Victor that she was not aware of any spills inside the store from the delivery of PCE.

11. Ms. Victor testified that there was not a floor drain in the area of the dry cleaning machine. The only drain in the facility was inside of the boiler room which is a walled room separate from the room in which the dry cleaning machine is housed.

12. Store managers are disciplined if they fail to report spill incidents. Dryclean U.S.A. emphasizes to its employees the importance of notifying management of any spill at any of its stores. If a spill does occur, Dryclean U.S.A. employees are instructed to identify the type of spill and take immediate response action. The Dryclean U.S.A. maintenance department must be immediately notified so that it may dispatch maintenance workers to make any necessary equipment repairs or modifications. The district manager is thereafter notified so that he or she may oversee the response action. If the spill is by law a reportable quantity (more than five gallons of liquid), the spill is reported to appropriate regulatory authorities. Mr. Martindale testified that the response action to the small spill described in the PSI Compliance Audit was performed in accordance with Dryclean U.S.A.'s spill response policy.

13. There have been no reported leaks from the equipment or machinery used in the dry cleaning process at the Dryclean U.S.A. store in the Shoppes on the Green [Shopping Center]. Moreover, Mr. Martindale testified that there had not been any reported spills within the Dryclean U.S.A. store in the Shoppes on the Green [Shopping Center] since the January 1994 spill.

14. In 1994, the Florida legislature adopted the Florida Drycleaning Contamination Cleanup Act ("FDCCA"). Under the FDCCA, the [Department of Environmental Protection] ("DEP") will assess and remedy to the extent necessary any contamination at dry cleaning facilities at no cost to property owners or the operators of dry cleaning facilities. The DEP's assessment and remedial activities are funded by the Hazardous Waste Trust Fund, which was created by the legislature as part of the FDCCA. There are three funding sources for the Trust. First, all dry cleaning stores must register and pay a fee of $ 100 per store annually. Second, all dry cleaners must pay a tax of 2 percent (1.5 percent prior to January 1, 1996) on their gross revenues. Third, all dry cleaners must pay a $ 5 per gallon tax on all purchases of PCE. These payments are required of each dry cleaning facility irrespective of the absence of any contamination associated with a particular facility.

15. Dryclean U.S.A. has registered under the FDCCA all of its stores, including the Dryclean U.S.A. store in the Shoppes on the Green [Shopping Center]. Dryclean U.S.A. has paid the required taxes on a monthly basis since October 1, 1994. Dryclean U.S.A. pays the $ 5 per gallon tax on all of its purchases of PCE. Under the FDCCA, the DEP will assess and rank dry cleaning sites for site investigation and cleanup. However, no evidence was presented as to when this process will begin nor the methodology which will be used for such site determination.

16. Groundwater samples collected from various locations and at differing depths immediately adjacent to the Dryclean U.S.A. facility revealed the presence of a plume of perc and its related degradation constituents extending downward and outward from Dryclean U.S.A.'s premises into the groundwater. Contaminant levels in the plume substantially exceed state and federal safe drinking water standards for perc, cis-1,2-dichloroethylene, trichloroethylene, and vinyl chloride.

17. PCE was detected in one shallow monitoring well (MW-1) that was drilled to a depth of 17 feet below ground surface and was at the rear of the facility in the area where truck deliveries of PCE are made. PCE was not detected in monitoring wells MW-2 and MW-3 drilled by Plaintiff, both to a depth of 110 feet and located north and east respectively of the dry cleaning store. PCE was detected in some of the hydropunch/geoprobe samples. Chemicals that result from the degradation of PCE were detected in the shallow monitoring well, but not in the deep monitoring wells, and in some cases were detected in the analyses of the hydropunch/geoprobe samples.

18. Some of the samples were analyzed by a portable gas chromatograph in the field at the time that they were taken. Plaintiff's expert testified that the reliability of such field analysis is dependent in part on the proper calibration of the equipment. Plaintiff's expert assumed that the calibrations were performed correctly and in a timely manner, but had not reviewed any records or considered any other information to support this assumption.

19. Some of the samples analyzed by a portable gas chromatograph were also sent to a fixed laboratory (albeit several days after they were collected, as noted above) and the results of the fixed laboratory analyses were sometimes lower than the field laboratory's results and sometimes higher.

20. Both experts agreed that monitoring wells are a more reliable source of information about the location and extent of contamination in groundwater than the hydropunches on [sic] geoprobes. The latter provide only a "snapshot" of one period of time, unlike a monitoring well, from which successive and continuous samples can be taken. Most of the data indicating PCE contamination at the sites is the result [27 ELR 21071] of hydropunches. Of the three monitoring wells installed, only one, MW-1, showed the presence of PCE (at 420 parts per billion) at 17 feet below ground level. MW-1 is located at the rear of the facility where trucks make deliveries of PCE. Both Plaintiff's and Defendant's experts testified that they have never had the experience of having a regulatory agency rely on geoprobe or hydropunch information to design or approve remediation at a site. Both parties' experts agreed that the environmental assessment of the site is incomplete. Defendant's expert further testified that remediation of the site based on the data available could actually cause greater harm than good by potentially taking contamination from shallow levels in the groundwater to deeper levels where no contamination presently exists. Defendant's expert stated that no remediation should be undertaken until the full nature and extent of the contamination had been determined.

21. Groundwater tests revealed substantially elevated levels of trichloroethylene, cis-1,2-dichloroethylene, and trans-1,2-dichloroethylene, in an area northeast of Dryclean U.S.A.'s facility and at depths between 40 and 53 feet. As indicated in Section 9.3.E.1 of the Palm Beach County Code, and its incorporated zones of influence maps, computer groundwater modeling conducted by the South Florida Water Management District ("SFWMD") predicts the rate of speed at which a pollutant will move in areas surrounding the county's water wellfields. Pollutants within Zone 3 of a wellfield will take between 210 to 500 days to reach the wellhead. Pollutants in Zone 4 of a wellfield lie within its one-foot drawdown circumference, which will take over 500 days to reach the wellhead.

22. The Seacoast Wellfield consists of 14 wells which are screened at various intervals between 72 and 188 feet below surface. The wells are located from 4,100 to 7,300 feet northeast of the Shopping Center. The four wells closest to the Shopping Center are designated for emergency use. The drawdown contours for the wellfield protection zones are based on assumed pumping rates for the year 2010. It is undisputed that the Shopping Center falls within Zone 4 of the Palm Beach County Wellfield Protection Area surrounding the Seacoast Wellfield, and is approximately 1/3 mile south of Zone 3 for the Seacoast Wellfield.

23. Frederick Blickle, P.E., provided expert testimony on behalf of Fairway Shoppes. Mr. Blickle testified that based on his review of chemical analysis of samples collected at the site, lithologic data, the Palm Beach County wellfield protection ordinance and contour map, as well as hydrogeological reports prepared by the SFWMD, the U.S. Geological Survey ("USGS"), and data in the consumptive use permit for the Seacoast Wellfield, groundwater beneath the Shoppes on the Green Shopping Center is currently being drawn toward the Seacoast Wellfield. Mr. Blickle testified that his analysis of the groundwater flow shows that the contaminant plume is moving north toward the Seacoast Wellfield and, unless abated, will enter the Seacoast Wellfield at levels above safe drinking water standards. Groundwater tests at the site reveal that the contaminants have been drawn a minimum of 160 feet to the north. (Geoprobe GP-4) Mr. Blickle further testified that portions of the contaminant plume are migrating eastward, consistent with the regional groundwater flow, toward Ballen Isles. An environmental consultant retained by Dryclean U.S.A. testified that he had not reviewed the SFWMD and USGS hydrogeological data, and that he did not have an opinion as to whether the contaminant plume would migrate toward the Seacoast Wellfield or Ballen Isles wells.

24. There was no dispute as to the following:

(1) there was no evidence that any chemical has moved beyond the property boundaries of the Shoppes on the Green [Shopping Center];

(2) there was no indication of the presence of private wells or well users affected, as of the date of the hearing, by groundwater migration and no well has been taken out of service as a result of any contamination of groundwater; and

(3) no person or business is drawing water from the area directly adjacent to the dry cleaning facility where samples were taken.

25. If the geoprobe sample results are accepted as accurate, the geoprobe located to the east (GP-5), in the direction of regional flow, showed a higher concentration of chemicals than the geoprobe to the north (GP-4), in the direction in which Plaintiff's expert testified groundwater flows. The monitoring well located to the north of GP-4 was clean. The northernmost monitoring well (MW-3), located about 120 feet north of the dry cleaning facility, according to Plaintiff's Hearing Exhibit 2, and the southernmost geoprobe (GP-3), located about 70 feet south of the dry cleaning facility, were sampled and neither showed any contamination.

26. Plaintiff's expert initially testified that the northernmost geoprobe that reflected PCE contamination was 3,400 feet away from the southernmost well of the Hood Road Wellfield. The monitoring well between GP-4 and the wellfield showed no contamination.

27. Groundwater tests conducted by Fairway Shoppes have not determined the full lateral extent of the contaminant plume or its precise distance from the Seacoast Wellfield. Mr. Blickle testified, however, that pollutants from the Shopping Center would take between 6 to 12 months to reach Wellfield Zone 3, and an additional 210 to 500 days from that point to reach the wells at the Seacoast Wellfield. Mr. Blickle further testified that groundwater speed in the area could be considerably faster because of "solution cavities" in soils and sands beneath the Shopping Center. Dryclean U.S.A.'s expert did not express an opinion as to the speed at which the contaminants would move in the area.

28. There was testimony that contaminant fate factors (such as dispersion, dilution, attenuation, degradation, adsorption, and retardation) control the fate of a contaminant in the groundwater and that a contaminant detected at one point might not be detectable at a downgradient point because of the effect of those factors. Concentrations are generally lower the farther one moves away from a spill. In particular, PCE has a high affinity for soil, causing it to tend to adhere to soil in the area of a spill.

29. Testimony at hearing further established that a year or more delay in responding to the contaminant plume would increase the likelihood of contaminants reaching the Seacoast Wellfield and would simultaneously increase the difficulty in remediating the contamination. However, there is no evidence presented to this court that the contaminant plume has yet migrated offsite. Nevertheless, this court finds that the mere presence of the contaminant in the soil onsite presents an environmental hazard.

30. The state of Florida DEP, the Palm Beach County Environmental Resources Management agency (PBERM), and the United States Environmental Protection Agency were advised by Plaintiff that environmental samples indicated the presence of PCE. Despite Plaintiff's notification of environmental regulatory agencies, no notices of violation have been issued by any of these agencies to Dryclean U.S.A., Plaintiff, or any other person or entity based on the sample results. Mr. Coller testified that if such notices had been issued, he, as the property manager, would have been advised of them.

Conclusions of Law

31. RCRA provides a cause-of-action for injunctive relief compelling the abatement of contamination created by the improper handling, storage, transportation, or disposal of hazardous wastes. Section 7002(a) states in pertinent part:

(a) In general

Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his behalf—

* * *

(B) against any person, including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal or any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment;

* * *

The district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties . . . to enforce the permit, standard, regulation, condition, requirement, prohibition, or order, referred to in paragraph (1)(A), to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, or both . . . .

[27 ELR 21072]

42 U.S.C. § 6972(a).

32. It is generally recognized that there are three prima facie elements to a claim under Section 7002(a)(1)(B). In order to prevail, a RCRA plaintiff must demonstrate:

(1) the conditions at the site present or may present an imminent and substantial endangerment to health or the environment;

(2) the endangerment stems from the handling, storage, treatment, transportation, or disposal of any solid or hazardous waste; and

(3) the defendant has contributed or is contributing to such handling, storage, treatment, transportation, or disposal.

See United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1382-83 n.9 [19 ELR 21038] (8th Cir. 1989), citing United States v. Bliss, 667 F. Supp. 1298, 1313 [18 ELR 20055] (E.D. Mo. 1987); Craig Lyle Ltd. Partnership v. Land O'Lakes, Inc., 877 F. Supp. 476, 480 [25 ELR 21115] (D. Minn. 1995); see also Lincoln Properties[, Ltd.] v. Higgins, 1993 WL 217429 at *8 [23 ELR 20665] (E.D. Cal. [Jan. 18], 1993); accord United States v. Conservation Chem. Co., 619 F. Supp. 162, 199-200 [16 ELR 20193] (W.D. Mo. 1985).

33. The phrase "may present an imminent and substantial endangerment" has been the subject of considerable litigation and has been construed to mean that a plaintiff need only demonstrate a measurable potential risk of harm. In Lincoln, supra, the court summarized the state of the law:

First, it is significant that the word "may" precedes the standard of liability: "this is 'expansive language,' which is 'intended to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risk posed by toxic wastes. . . .'"

Second, "endangerment" means a threatened or potential harm and does not require proof of actual harm . . . . "When one is endangered, harm is threatened; no actual injury need ever occur."

Third, a finding of "imminence" does not require a showing that actual harm will occur immediately so long as the risk of threatened harm is present [and] . . . even though the harm may not be realized for years. Finally, the word "substantial" "does not require quantification of the endangerment . . . an endangerment is substantial if there is some reasonable cause for concern that someone or something may be exposed to a risk of harm by a release or a threatened release of a hazardous substance if remedial action is not taken."

Lincoln Properties, 1993 WL 217429 at *12-13 (emphasis in original) (citations omitted); see also United States v. Waste Indus., Inc., 734 F.2d 159, 165 [14 ELR 20461] (4th Cir. 1984); Dague v. City of Burlington, 935 F.2d 1343, 1355-56 [21 ELR 21133] (2d Cir. 1991). It is generally recognized that "§ 6972's application is not limited to emergency situations." Lincoln at *12 (emphasis in original) (citations omitted); Waste Indus., Inc., 734 F.2d at 165; Dague, 935 F.2d at 1355-56.

34. Fairway Shoppes has established that Dryclean U.S.A.'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 the Shopping Center disclose levels of contaminants far exceeding the safe drinking water standards promulgated by the state and federal government. See Drinking Water Standards, Maximum Contaminant Limits for Volatile Organic Compounds, Table 2, Fla. Admin. Code § 62-550.740 (1995); National Revised Primary Drinking Water Regulations: Maximum Contaminant Levels, 40 C.F.R. § 141.61. The uncontradicted expert testimony at hearing further established that these contaminants are migrating toward the Seacoast Wellfield and water wells in the Ballen Isles development. A plume of toxic contaminants migrating toward a source of potable water supply for Palm Beach County unquestionably meets the "imminent and substantial endangerment" standard of RCRA. The court need not—and should not—wait until the contaminated water is actually detected in public water supply wells before taking action.

35. The presence of excessive levels of perchloroethylene in the groundwater also establishes an imminent and substantial endangerment to the environment, independent of whether the release of the dry cleaning chemicals may pose a threat to the public health. As observed by the Lincoln Properties court:

The statute speaks of endangerment to health or the environment. The term "environment" appears to include air, soil and water. Neither the statute nor the case law interposes an additional requirement that humans or other life forms be threatened.

Id. at *13 (footnotes omitted); accord Conservation Chem. Co., 619 F. Supp. at 192 ("possible endangerment to the environment alone, will warrant relief").

36. Here, as in Lincoln Properties, the environment has been harmed by the discharge of dry cleaning solvents into the soils and groundwater beneath Dryclean U.S.A.'s facility. Significantly, not only are the contaminants threatening that portion of the aquifer from which the Seacoast Wellfield draws its water, but they are migrating toward the Ballen Isles residential development and its water wells. Although these water wells are apparently used for irrigation, and not for potable water supply, the drawdown affect of these wells may result in further spreading of the contamination into the development.

37. Waste or discarded perchloroethylene and its degradation components are all RCRA "solid wastes." Section 6903 defines solid waste to include any "discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial . . . operations . . . ." 42 U.S.C. § 6903(27) (emphasis added). The discarded perc (and its degradation components) are also "hazardous wastes," as defined by RCRA, because they fall within RCRA's Subtitle C list of regulated substances. See 40 C.F.R. § 261. See Lincoln, supra, at *27 n.34 ("If PCE and TCE fall within the narrower category of Subtitle C hazardous wastes, they are certainly 'hazardous' within the meaning of § 6903(5) and § 6972(a)(1)(B).").

38. Evidence presented at hearing clearly established that Dryclean U.S.A. caused or contributed to the contamination. The dry cleaning solvents found at the Shopping Center were discovered in the shallow soils and groundwater immediately beneath the Dryclean U.S.A. space in the mall, showing that its operations were the source of the contamination. These samples contained elevated levels of perc exceeding state and federal maximum contaminant levels. Because Dryclean U.S.A. undeniably uses perc and has been the only dry cleaner to operate at the Shoppes on the Green 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. No evidence was presented to this court of any other user or generator of perc in the vicinity of the Dryclean U.S.A. facility.

39. Dryclean U.S.A. suggested that the perchloroethylene might have come from a spill during the delivery of the chemical to the facility. There was no evidence, however, that anyone other than Dryclean U.S.A. caused the perc contamination. Even if such evidence had been offered, though, it would not have relieved Dryclean U.S.A. of its liability under RCRA. RCRA imposes liability on any person who "contributed" or who "is contributing" to the handling, transportation, or disposal of hazardous wastes which results in an imminent and substantial endangerment. 42 U.S.C. § 6972(a). The phrase "contributed to" has been liberally construed in RCRA cases. United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1383 [19 ELR 21038] (8th Cir. 1989). In Aceto, the court explained:

although the phrase "contributing to" is not defined by the [RCRA] statute, its plain meaning is "to have a share in any act or effect." [citation omitted] "To have a share in" is arguably less involvement than might be required by the plain meaning of the phrase "to arrange"; "to make plans, prepare. . . ."

872 F.2d at 1384; accord Acme Printing Ink Co. v. Menard, Inc., 812 F. Supp. 1498, 1512 [23 ELR 21061] (E.D. Wis. 1992); Petropoulos v. Columbia Gas of Ohio, Inc., 840 F. Supp. 511, 515 [24 ELR 20726] (S.D. Ohio 1993). If a spill occurred as a result of Dryclean U.S.A.'s purchase of perchloroethylene for use at its facility, Dryclean U.S.A. would have contributed to both the transportation and handling of the chemical.

40. It is generally recognized that in seeking preliminary injunctive relief, the moving party must establish four elements:

(1) a substantial likelihood that it will succeed on the merits;

(2) a substantial threat that it will suffer irreparable injury if the injunction were not granted;

[27 ELR 21073]

(3) the threatened injury outweighs the harm an injunction may cause the defendant; and

(4) the grant of a preliminary injunction will not disserve the public interest.

Nnadi v. Richter, 976 F.2d 682, 690 (11th Cir. 1992); Haitian Refugee Ctr., Inc. v. Baker, 789 F. Supp. 1552, 1558 (S.D. Fla. 1991).

41. The Supreme Court has recognized that environmental injuries may be irreparable per se:

Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment.

Amoco Prod. Co. v. Gambell[, Village of], 480 U.S. 531, 107 S. Ct. 1396, 94 L. Ed. 2d 542 [17 ELR 20574] (1987). It has also been held that because Section 7002 addresses endangerment, as opposed to actual harm, the statute contemplates "a more lenient standard than the traditional requirement of threatened irreparable harm." Waste Industries, 734 F.2d at 165; citing United States v. Price, 688 F.2d 204, 211 [12 ELR 21020] (3d Cir. 1982); see also Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492, 528-29 [5 ELR 20596] (8th Cir. 1975); Conservation Chem. Co., 619 F. Supp. at 193. Accordingly, in a suit based on Section 7002 of RCRA, the requirement of irreparable harm for a preliminary injunction is satisfied by showing a threat of harm to the public health or environment: actual harm to human health or the environment is not required to preliminarily enjoin the polluter. See generally United States v. Vertac Chem. Corp., 489 F. Supp. 870 [10 ELR 20709] (E.D. Ark. 1980).

42. Injunctive relief requiring Dryclean U.S.A. to assess the perc contamination and to take necessary steps to prevent further off-site migration is appropriate in this case. The presence of substantially elevated levels of perc, vinyl chloride, and other toxic chemicals in the groundwater at the site gives rise to a reasonable concern for the public health and environment. To allow these chemicals to remain in this aquifer, used for potable water supply, until this case is tried would entail an unacceptable degree of risk relative to the "harm" to Dryclean U.S.A. in requiring it to clean up the contamination it caused. As discussed supra, Fairway Shoppes has demonstrated a substantial likelihood of success on the merits. A balancing of the equities in this case, as well as the threat of harm to the Defendant, weigh in favor of requiring it to take reasonable measures to protect the public health and the environment.

43. The fact that the FDCCA provides relief, is not controlling. The existence of the FDCCA does not supersede this court's jurisdiction under the RCRA. Further, there is no evidence in this record that the state of Florida has even established priorities of sites nor its methodology for establishing such priorities. Therefore, this court cannot assume that this site will be even listed as a potential for remediation under the FDCCA.

ACCORDINGLY, this court recommends to the district court that within 40 days of entry of the district court's order adopting this Report and Recommendation, Dryclean U.S.A. shall file with the court a report which: (i) completely assesses the lateral and vertical extent of the chlorinated solvent contamination at the Shopping Center, and (ii) proposes a remediation plan designed to prevent further lateral and vertical migration of the contaminant plume. However, since no adjoining landowner was made a party to this proceeding nor is there any evidence that any adjoining landowner has been notified of any potential contamination on their property, the assessment by Dryclean U.S.A. and the proposed remediation plan shall concern itself only with the Plaintiff's property knows as the Shoppes on the Green Shopping Center described herein. This Report and Recommendation does not contemplate nor direct Dryclean U.S.A. to go onto any adjoining landowner's property for these purposes unless said adjoining landowner gives their express written consent for such. Based upon the findings of fact, there has been no evidence that any off-site contamination has yet taken place. If the assessment and proposed plan of remediation reflects off-site contamination, then it can be addressed by this court after submission by Dryclean U.S.A. of the assessment and remediation plan in accordance with this court's recommendation. Dryclean U.S.A. shall provide a copy of such report to Fairway Shoppes which shall file with the court any comments on the report within 10 days of receipt. Thereafter, the court will enter an order setting forth time frames within which Dryclean U.S.A. must implement appropriate remediation for the chlorinated solvent contaminated at the Shopping Center.

The parties shall have 10 days from the date of this Report and Recommendation within which to file objections, if any, with the Honorable Daniel T.K. Hurley, United States District Court Judge, who has been assigned to try this case.

Hurley, J.:

Order Adopting March 7, 1996 Report and Recommendations of U.S. Magistrate Judge Granting Preliminary Injunction, Referring Reporting and Monitoring to U.S. Magistrate Judge, and Resolving Various Motions

This matter comes before the court upon the Report and Recommendation of United States Magistrate Judge Frank J. Lynch Jr., entered March 7, 1996. The defendant filed timely objections, requiring this court to make a de novo review of the record pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure.

Having made a de novo review of the record, the court adopts the magistrate judge's findings. Defendant makes numerous attacks on the magistrate judge's analysis of the application of the Resource Conservation and Recovery Act (RCRA). However, the court concludes that the magistrate judge clearly understood and properly applied RCRA Section 7002 to the present case. Therefore, the Report and Recommendation of the magistrate judge is adopted. Accordingly, it is hereby

ORDERED and ADJUDGED as follows:

III. Decretal Provisions

1. The Report and Recommendation of United States Magistrate Judge Frank J. Lynch Jr. is adopted.

2. Plaintiff Fairway Shoppes' [18-1] Motion for Preliminary Injunction is GRANTED as detailed below.

3. Defendant shall immediately cease discharging perchloroethylene and other hazardous wastes.

4. Pursuant to Federal Rule 65(c), Plaintiff shall post a bond in such sum as Magistrate Judge shall deem proper. The court respectfully asks the Magistrate Judge to set the sum of the bond (if any) within 15 days from the entry of this order.

5. No later than 30 days from the entry of this order, Defendant shall submit a report detailing the feasibility of the following preventive measures (if such measures are not already in place):

(a) a secondary containment system; and

(b) an impermeable epoxy seal on the bare concrete floor.

6. Furthermore, as required by the Magistrate Judge, Defendant shall conduct a comprehensive and complete assessment of the contamination at the Shopping Center. This assessment shall be performed in accordancewith the procedures detailed in the Florida Department of Environmental Protection guidance document, Corrective Action for Contamination Site Cases. The Defendant shall submit a copy of Corrective Action for Contamination Site Cases to the court for the record. The assessment shall be conducted as follows:

(a) no later than 30 days from the entry of this order, Defendant shall file a report detailing the steps taken by it to complete the environmental assessment,

(b) no later than 60 days from the entry of this order, Defendant shall file a final report which includes the lateral and vertical extent of the perc and its related degradation constituents. The report shall also include a proposed remediation plan designed to prevent further lateral and vertical migration of the contaminant plume.

7. The court respectfully requests that the Magistrate Judge monitor compliance with this order and consider all motions related thereto, including motions to adjust and amend these reporting requirements.

8. This order does not limit Plaintiff's right to move for additional relief should the assessment reveal a need for such. In accordance with the Magistrate Act, 28 U.S.C. § 63(b)(1)(A), and Federal Rule of Civil [27 ELR 21074] Procedure 72, all such motions, if any, are hereby REFERRED to Magistrate Judge Lynch for final disposition or report, as appropriate.

9. Plaintiff Fairway Shoppes' [13-1] Unopposed Motion for Enlargement of Time to Respond to Defendant Dryclean U.S.A. of Florida, Inc.'s Answer and Counterclaim is GRANTED.

10. Defendant Dryclean U.S.A.'s [46-1] Motion for Oral Argument With Respect to Objections to the March 7, 1996 Report and Recommendation of U.S. Magistrate Judge Regarding Motion for Preliminary Injunction is DENIED.

11. Defendant Dryclean U.S.A.'s [46-2] Motion to Extend Page Limit of Objections to the March 7, 1996 Report and Recommendation of U.S. Magistrate Judge is GRANTED.

12. Defendant Dryclean U.S.A.'s [7-1] Application for Limited Appearance is GRANTED. Teresa A. Woody, Esq. is recognized pro hoc vice for the Defendant.

13. Plaintiff's July 22, 1996 Motion to Expedite Resolution of Motion for Preliminary Injunction is mooted by this order.