376.3078 Drycleaning facility restoration; funds; uses; liability; recovery of expenditures.—
(1) FINDINGS.—In addition to the legislative findings set forth in s. 376.30, the Legislature finds and declares that:
(a) Significant quantities of drycleaning solvents have been discharged in the past at drycleaning facilities as part of the normal operation of these facilities.
(b) Discharges of drycleaning solvents at such drycleaning facilities have occurred and are occurring, and pose a significant threat to the quality of the groundwaters and inland surface waters of this state.
(c) Where contamination of the groundwater or surface water has occurred, remedial measures have often been delayed for long periods while determinations as to liability and the extent of liability are made, and such delays result in the continuation and intensification of the threat to the public health, safety, and welfare; in greater damage to the environment; and in significantly higher costs to contain and remove the contamination.
(d) Adequate financial resources must be readily available to provide for the expeditious supply of safe and reliable alternative sources of potable water to affected persons and to provide a means for investigation and rehabilitation of contaminated sites without delay.
(e) It is the intent of the Legislature to encourage real property owners to undertake the voluntary cleanup of property contaminated with drycleaning solvents and that the immunity provisions of this section and all other available defenses be construed in favor of real property owners.
(f) Strong public interests are served by subsections (3) and (11). These include improving the marketability and use of, and the ability to borrow funds as to, property contaminated by drycleaning solvents and encouraging the voluntary remediation of contaminated sites. The extent to which claims or rights are affected by subsections (3) and (11) is offset by the remedies created in this section. The limitations imposed by these subsections on such claims or rights are reasonable when balanced against the public interests served. The claims or rights affected by subsections (3) and (11) are speculative, and these subsections are intended to prevent judicial interpretations allowing windfall awards that thwart the public interest provisions of this section.
(2) FUNDS; USES.—
(a) All penalties, judgments, recoveries, reimbursements, loans, and other fees and charges related to the implementation of this section and the tax revenues levied, collected, and credited pursuant to ss. 376.70 and 376.75, and fees collected pursuant to s. 376.303(1)(d), and deductibles collected pursuant to paragraph (3)(d), shall be deposited into the Water Quality Assurance Trust Fund, to be used upon appropriation as provided in this section. Charges against the funds for drycleaning facility or wholesale supply site rehabilitation shall be made in accordance with the provisions of this section.
(b) Whenever, in its determination, incidents of contamination by drycleaning solvents related to the operation of drycleaning facilities and wholesale supply facilities may pose a threat to the environment or the public health, safety, or welfare, the department shall obligate moneys available pursuant to this section to provide for:
1. Prompt investigation and assessment of the contaminated drycleaning facility or wholesale supply facility sites.
2. Expeditious treatment, restoration, or replacement of potable water supplies as provided in s. 376.30(3)(c)1.
3. Rehabilitation of contaminated drycleaning facility or wholesale supply facility sites, which shall consist of rehabilitation of affected soil, groundwater, and surface waters, using the most cost-effective alternative that is technologically feasible and reliable and that provides adequate protection of the public health, safety, and welfare and minimizes environmental damage, in accordance with the site selection and rehabilitation criteria established by the department under subsection (4), except that nothing in this subsection shall be construed to authorize the department to obligate drycleaning facility restoration funds for payment of costs that may be associated with, but are not integral to, drycleaning facility or wholesale supply facility site rehabilitation.
4. Maintenance and monitoring of contaminated drycleaning facility or wholesale supply facility sites.
5. Inspection and supervision of activities described in this subsection.
6. Payment of expenses incurred by the department in its efforts to obtain from responsible parties the payment or recovery of reasonable costs resulting from the activities described in this subsection.
7. Payment of any other reasonable costs of administration, including those administrative costs incurred by the Department of Health in providing field and laboratory services, toxicological risk assessment, and other assistance to the department in the investigation of drinking water contamination complaints and costs associated with public information and education activities.
8. Reasonable costs of restoring property as nearly as practicable to the conditions that existed prior to activities associated with contamination assessment or remedial action.
The department shall not obligate funds in excess of the annual appropriation.
(c) Drycleaning facility restoration funds may not be used to:
1. Restore sites that are contaminated by solvents normally used in drycleaning operations where the contamination at such sites did not result from the operation of a drycleaning facility or wholesale supply facility.
2. Restore sites that are contaminated by drycleaning solvents being transported to or from a drycleaning facility or wholesale supply facility.
3. Fund any costs related to the restoration of any site that has been identified to qualify for listing, or is listed, on the National Priority List pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 as amended by the Superfund Amendments and Reauthorization Act of 1986, or that is under an order from the United States Environmental Protection Agency pursuant to s. 3008(h) of the Resource Conservation and Recovery Act as amended, or has obtained, or is required to obtain a permit for the operation of a hazardous waste treatment, storage, or disposal facility, a postclosure permit, or a permit pursuant to the federal Hazardous and Solid Waste Amendments of 1984.
4. Pay any costs associated with any fine, penalty, or action brought against a drycleaning facility owner or operator or wholesale supply facility or real property owner under local, state, or federal law.
5. Pay any costs related to the restoration of any site that is operated or has at some time in the past operated as a uniform rental or linen supply facility, regardless of whether the site operates as or was previously operated as a drycleaning facility or wholesale supply facility.
(3) REHABILITATION LIABILITY.—
(a) In accordance with the eligibility provisions of this section, a real property owner, nearby real property owner, or person who owns or operates, or who otherwise could be liable as a result of the operation of, a drycleaning facility or a wholesale supply facility is not liable for or subject to administrative or judicial action brought by or on behalf of any state or local government or agency thereof or by or on behalf of any person to compel rehabilitation or pay for the costs of rehabilitation of environmental contamination resulting from the discharge of drycleaning solvents. Subject to the delays that may occur as a result of the prioritization of sites under this section for any qualified site, costs for activities described in paragraph (2)(b) shall be absorbed at the expense of the drycleaning facility restoration funds, without recourse to reimbursement or recovery from the real property owner, nearby real property owner, or owner or operator of the drycleaning facility or the wholesale supply facility. Notwithstanding any other provision of this chapter, this subsection applies to causes of action accruing on or after the effective date of this act and applies retroactively to causes of action accruing before the effective date of this act for which a lawsuit has not been filed before the effective date of this act.
(b) With regard to drycleaning facilities or wholesale supply facilities that have operated as drycleaning facilities or wholesale supply facilities on or after October 1, 1994, any such drycleaning facility or wholesale supply facility at which there exists contamination by drycleaning solvents shall be eligible under this subsection regardless of when the drycleaning contamination was discovered, provided that the drycleaning facility or the wholesale supply facility:
1. Has been registered with the department;
2. Is determined by the department to be in compliance with the department’s rules regulating drycleaning solvents, drycleaning facilities, or wholesale supply facilities on or after November 19, 1980;
3. Has not been operated in a grossly negligent manner at any time on or after November 19, 1980;
4. Has not been identified to qualify for listing, nor is listed, on the National Priority List pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 as amended by the Superfund Amendments and Reauthorization Act of 1986, and as subsequently amended;
5. Is not under an order from the United States Environmental Protection Agency pursuant to s. 3008(h) of the Resource Conservation and Recovery Act as amended (42 U.S.C.A. s. 6928(h)), or has not obtained and is not required to obtain a permit for the operation of a hazardous waste treatment, storage, or disposal facility, a postclosure permit, or a permit pursuant to the federal Hazardous and Solid Waste Amendments of 1984;
and provided that the real property owner or the owner or operator of the drycleaning facility or the wholesale supply facility has not willfully concealed the discharge of drycleaning solvents and has remitted all taxes due pursuant to ss. 376.70 and 376.75, has provided documented evidence of contamination by drycleaning solvents as required by the rules developed pursuant to this section, has reported the contamination prior to December 31, 1998, and has not denied the department access to the site.
(c) With regard to drycleaning facilities or wholesale supply facilities that cease to be operated as drycleaning facilities or wholesale supply facilities prior to October 1, 1994, such facilities, at which there exists contamination by drycleaning solvents, shall be eligible under this subsection regardless of when the contamination was discovered, provided that the drycleaning facility or wholesale supply facility:
1. Was not determined by the department, within a reasonable time after the department’s discovery, to have been out of compliance with the department rules regulating drycleaning solvents, drycleaning facilities, or wholesale supply facilities implemented at any time on or after November 19, 1980;
2. Was not operated in a grossly negligent manner at any time on or after November 19, 1980;
3. Has not been identified to qualify for listing, nor is listed, on the National Priority List pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, and as subsequently amended; and
4. Is not under an order from the United States Environmental Protection Agency pursuant to s. 3008(h) of the Resource Conservation and Recovery Act, as amended, or has not obtained and is not required to obtain a permit for the operation of a hazardous waste treatment, storage, or disposal facility, a postclosure permit, or a permit pursuant to the federal Hazardous and Solid Waste Amendments of 1984;
and provided that the real property owner or the owner or operator of the drycleaning facility or the wholesale supply facility has not willfully concealed the discharge of drycleaning solvents, has provided documented evidence of contamination by drycleaning solvents as required by the rules developed pursuant to this section, has reported the contamination prior to December 31, 1998, and has not denied the department access to the site.
(d) For purposes of determining eligibility, a drycleaning facility or wholesale supply facility was operated in a grossly negligent manner if the department determines that the owner or operator of the drycleaning facility or the wholesale supply facility:
1. Willfully discharged drycleaning solvents onto the soils or into the waters of the state after November 19, 1980, with the knowledge, intent, and purpose that the discharge would result in harm to the environment or to public health or result in a violation of the law;
2. Willfully concealed a discharge of drycleaning solvents with the knowledge, intent, and purpose that the concealment would result in harm to the environment or to public health or result in a violation of the law; or
3. Willfully violated a local, state, or federal law or rule regulating the operation of drycleaning facilities or wholesale supply facilities with the knowledge, intent, and purpose that the act would result in harm to the environment or to public health or result in a violation of the law.
(e)1. With respect to eligible drycleaning solvent contamination reported to the department as part of a completed application as required by the rules developed pursuant to this section by June 30, 1997, the costs of activities described in paragraph (2)(b) shall be absorbed at the expense of the drycleaning facility restoration funds, less a $1,000 deductible per incident, which shall be paid by the applicant or current property owner. The deductible shall be paid within 60 days after receipt of billing by the department.
2. For contamination reported to the department as part of a completed application as required by the rules developed under this section, from July 1, 1997, through September 30, 1998, the costs shall be absorbed at the expense of the drycleaning facility restoration funds, less a $5,000 deductible per incident. The deductible shall be paid within 60 days after receipt of billing by the department.
3. For contamination reported to the department as part of a completed application as required by the rules developed pursuant to this section from October 1, 1998, through December 31, 1998, the costs shall be absorbed at the expense of the drycleaning facility restoration funds, less a $10,000 deductible per incident. The deductible shall be paid within 60 days after receipt of billing by the department.
4. For contamination reported after December 31, 1998, no costs will be absorbed at the expense of the drycleaning facility restoration funds.
(f) This subsection does not apply to any site where the department has been denied site access to implement the provisions of this section.
(g) In order to identify those drycleaning facilities and wholesale supply facilities that have experienced contamination resulting from the discharge of drycleaning solvents and to ensure the most expedient rehabilitation of such sites, the owners and operators of drycleaning facilities and wholesale supply facilities are encouraged to detect and report contamination from drycleaning solvents related to the operation of drycleaning facilities and wholesale supply facilities. The department shall establish reasonable guidelines for the written reporting of drycleaning contamination and shall distribute forms to registrants under s. 376.303(1)(d), and to other interested parties upon request, to be used for such purpose.
(h) A report of drycleaning solvent contamination at a drycleaning facility or wholesale supply facility made to the department by any person in accordance with this subsection, or any rules promulgated pursuant hereto, may not be used directly as evidence of liability for such discharge in any civil or criminal trial arising out of the discharge.
(i) A drycleaning facility at which contamination by drycleaning solvents exists and which was damaged by accident prior to January 1, 1975, is eligible under this subsection, regardless of whether an application for eligibility was filed on or before December 31, 1998. As used in this paragraph, the term “accident” means an unplanned and unanticipated occurrence beyond the control of the owner or operator of a drycleaning facility which resulted in physical damage to the facility when the actions of responders to such occurrence could reasonably be determined to have caused or exacerbated contamination by drycleaning solvents at such facility.
(j) This subsection does not apply to drycleaning facilities owned or operated by the state or Federal Government.
(k) Due to the value of Florida’s potable water, it is the intent of the Legislature that the department initiate and facilitate as many cleanups as possible utilizing the resources of the state, local governments, and the private sector. The department is authorized to adopt necessary rules and enter into contracts to carry out the intent of this subsection and to limit or prevent future contamination from the operation of drycleaning facilities and wholesale supply facilities.
(l) It is not the intent of the Legislature that the state become the owner or operator of a drycleaning facility or wholesale supply facility by engaging in state-conducted cleanup.
(m) The owner, operator, and either the real property owner or agent of the real property owner may apply for the Drycleaning Contamination Cleanup Program by jointly submitting a completed application package to the department pursuant to the rules that shall be adopted by the department. If the application cannot be jointly submitted, then the applicant shall provide notice of the application to other interested parties. After reviewing the completed application package, the department shall notify the applicant in writing as to whether the drycleaning facility or wholesale supply facility is eligible for the program. If the department denies eligibility for a completed application package, the notice of denial shall specify the reasons for the denial, including specific and substantive findings of fact, and shall constitute agency action subject to the provisions of chapter 120. For the purposes of ss. 120.569 and 120.57, the real property owner and the owner and operator of a drycleaning facility or wholesale supply facility which is the subject of a decision by the department with regard to eligibility shall be deemed to be parties whose substantial interests are determined by the department’s decision to approve or deny eligibility.
(n) Eligibility under this subsection applies to the drycleaning facility or wholesale supply facility, and attendant site rehabilitation applies to such facilities and to any place where drycleaning-solvent contamination migrating from the eligible facility is found. A determination of eligibility or ineligibility shall not be affected by any conveyance of the ownership of the drycleaning facility, wholesale supply facility, or the real property on which such facility is located. Nothing contained in this chapter shall be construed to allow a drycleaning facility or wholesale supply facility which would not be eligible under this subsection to become eligible as a result of the conveyance of the ownership of the ineligible drycleaning facility or wholesale supply facility to another owner.
(o) If funding for the drycleaning contamination rehabilitation program is eliminated, the provisions of this subsection shall not apply.
(p)1. The department shall have the authority to cancel the eligibility of any drycleaning facility or wholesale supply facility that submits fraudulent information in the application package or that fails to continuously comply with the conditions of eligibility set forth in this subsection, or has not remitted all fees pursuant to s. 376.303(1)(d), or has not remitted the deductible payments pursuant to paragraph (e).
2. If the program eligibility of a drycleaning facility or wholesale supply facility is subject to cancellation pursuant to this section, then the department shall notify the applicant in writing of its intent to cancel program eligibility and shall state the reason or reasons for cancellation. The applicant shall have 45 days to resolve the reason or reasons for cancellation to the satisfaction of the department. If, after 45 days, the applicant has not resolved the reason or reasons for cancellation to the satisfaction of the department, the order of cancellation shall become final and shall be subject to the provisions of chapter 120.
(q) A real property owner shall not be subject to administrative or judicial action brought by or on behalf of any person or local or state government, or agency thereof, for gross negligence or violations of department rules prior to January 1, 1990, which resulted from the operation of a drycleaning facility, provided that the real property owner demonstrates that:
1. The real property owner had ownership in the property at the time of the gross negligence or violation of department rules and did not cause or contribute to contamination on the property;
2. The real property owner was a distinct and separate entity from the owner and operator of the drycleaning facility, and did not have an ownership interest in or share in the profits of the drycleaning facility;
3. The real property owner did not participate in the operation or management of the drycleaning facility;
4. The real property owner complied with all discharge reporting requirements, and did not conceal any contamination; and
5. The department has not been denied access.
The defense provided by this paragraph does not apply to any liability under a federally delegated program.
(r) A person whose property becomes contaminated due to geophysical or hydrologic reasons from the operation of a nearby drycleaning or wholesale supply facility and whose property has never been occupied by a business that utilized or stored drycleaning solvents or similar constituents is not subject to administrative or judicial action brought by or on behalf of another to compel the rehabilitation of or the payment of the costs for the rehabilitation of sites contaminated by drycleaning solvents, provided that the person:
1. Does not own and has never held an ownership interest in, or shared in the profits of, the drycleaning facility operated at the source location;
2. Did not participate in the operation or management of the drycleaning facility at the source location; and
3. Did not cause, contribute to, or exacerbate the release or threat of release of any hazardous substance through any act or omission.
The defense provided by this paragraph does not apply to any liability under a federally delegated program.
(s) Nothing in this subsection precludes the department from considering information and documentation provided by private consultants, local government programs, federal agencies, or any individual which is relevant to an eligibility determination if the department provides the applicant with reasonable access to the information and its origin.
(4) REHABILITATION CRITERIA.—It is the intent of the Legislature to protect the health of all people under actual circumstances of exposure. The secretary of the department shall establish criteria by rule for the purpose of determining, on a site-specific basis, the rehabilitation program tasks that comprise a site rehabilitation program, including a voluntary site rehabilitation program, and the level at which a rehabilitation program task and a site rehabilitation program may be deemed completed. In establishing the rule, the department shall incorporate, to the maximum extent feasible, risk-based corrective action principles to achieve protection of human health and safety and the environment in a cost-effective manner as provided in this subsection. The rule shall also include protocols for the use of natural attenuation and the issuance of “no further action” letters. The criteria for determining what constitutes a rehabilitation program task or completion of a site rehabilitation program task or site rehabilitation program, including a voluntary site rehabilitation program, must:
(a) Consider the current exposure and potential risk of exposure to humans and the environment, including multiple pathways of exposure. The physical, chemical, and biological characteristics of each contaminant must be considered in order to determine the feasibility of risk-based corrective action assessment.
(b) Establish the point of compliance at the source of the contamination. However, the department is authorized to temporarily move the point of compliance to the boundary of the property, or to the edge of the plume when the plume is within the property boundary, while cleanup, including cleanup through natural attenuation processes in conjunction with appropriate monitoring, is proceeding. The department also is authorized, pursuant to criteria provided for in this section, to temporarily extend the point of compliance beyond the property boundary with appropriate monitoring, if such extension is needed to facilitate natural attenuation or to address the current conditions of the plume, provided human health, public safety, and the environment are protected. When temporarily extending the point of compliance beyond the property boundary, it cannot be extended further than the lateral extent of the plume at the time of execution of the voluntary cleanup agreement, if known, or the lateral extent of the plume as defined at the time of site assessment. Temporary extension of the point of compliance beyond the property boundary, as provided in this paragraph, must include actual notice by the person responsible for site rehabilitation to local governments and the owners of any property into which the point of compliance is allowed to extend and constructive notice to residents and business tenants of the property into which the point of compliance is allowed to extend. Persons receiving notice pursuant to this paragraph shall have the opportunity to comment within 30 days of receipt of the notice.
(c) Ensure that the site-specific cleanup goal is that all sites contaminated with drycleaning solvents ultimately achieve the applicable cleanup target levels provided in this section. In the circumstances provided below, and after constructive notice and opportunity to comment within 30 days from receipt of the notice to local government, to owners of any property into which the point of compliance is allowed to extend, and to residents on any property into which the point of compliance is allowed to extend, the department may allow concentrations of contaminants to temporarily exceed the applicable cleanup target levels while cleanup, including cleanup through natural attenuation processes in conjunction with appropriate monitoring, is proceeding, if human health, public safety, and the environment are protected.
(d) Allow the use of institutional or engineering controls at sites contaminated with drycleaning solvents, where appropriate, to eliminate or control the potential exposure to contaminants of humans or the environment. The use of controls must be preapproved by the department and only after constructive notice and opportunity to comment within 30 days from receipt of notice is provided to local governments, to owners of any property into which the point of compliance is allowed to extend, and to residents on any property into which the point of compliance is allowed to extend. When institutional or engineering controls are implemented to control exposure, the removal of the controls must have prior department approval and must be accompanied by the resumption of active cleanup, or other approved controls, unless cleanup target levels under this section have been achieved.
(e) Consider the additive effects of contaminants. The synergistic and antagonistic effects shall also be considered when the scientific data become available.
(f) Take into consideration individual site characteristics, which shall include, but not be limited to, the current and projected use of the affected groundwater and surface water in the vicinity of the site, current and projected land uses of the area affected by the contamination, the exposed population, the degree and extent of contamination, the rate of contaminant migration, the apparent or potential rate of contaminant degradation through natural attenuation processes, the location of the plume, and the potential for further migration in relation to site property boundaries.
(g) Apply state water quality standards as follows:
1. Cleanup target levels for each contaminant found in groundwater shall be the applicable state water quality standards. Where such standards do not exist, the cleanup target levels for groundwater shall be based on the minimum criteria specified in department rule. The department shall consider the following, as appropriate, in establishing the applicable minimum criteria: calculations using a lifetime cancer risk level of 1.0E-6; a hazard index of 1 or less; the best achievable detection limit; the naturally occurring background concentration; or nuisance, organoleptic, and aesthetic considerations.
2. Where surface waters are exposed to contaminated groundwater, the cleanup target levels for the contaminants shall be based on the lower of the groundwater or surface water standards as established by department rule. The point of measuring compliance with the surface water standards shall be in the groundwater immediately adjacent to the surface water body.
3. The department may set alternative cleanup target levels based upon the person responsible for site rehabilitation demonstrating, using site-specific modeling and risk assessment studies, that human health, public safety, and the environment are protected to the same degree as provided in subparagraphs 1. and 2. Where a state water quality standard is applicable, a deviation may not result in the application of cleanup target levels more stringent than the standard. In determining whether it is appropriate to establish alternative cleanup target levels at a site, the department must consider the effectiveness of source removal that has been completed at the site and the practical likelihood of the use of low yield or poor quality groundwater, the use of groundwater near marine surface water bodies, the current and projected use of the affected groundwater in the vicinity of the site, or the use of groundwater in the immediate vicinity of the contaminated area, where it has been demonstrated that the groundwater contamination is not migrating away from such localized source, provided human health, public safety, and the environment are protected.
(h) Provide for the department to issue a “no further action order,” with conditions where appropriate, when alternative cleanup target levels established pursuant to subparagraph (g)3. have been achieved, or when the person responsible for site rehabilitation can demonstrate that the cleanup target level is unachievable within available technologies. Prior to issuing such an order, the department shall consider the feasibility of an alternative site rehabilitation technology in the area.
(i) Establish appropriate cleanup target levels for soils.
1. In establishing soil cleanup target levels for human exposure to each contaminant found in soils from the land surface to 2 feet below land surface, the department shall consider the following, as appropriate: calculations using a lifetime cancer risk level of 1.0E-6; a hazard index of 1 or less; the best achievable detection limit; or the naturally occurring background concentration. Institutional controls or other methods shall be used to prevent human exposure to contaminated soils more than 2 feet below the land surface. Any removal of such institutional controls shall require such contaminated soils to be remediated.
2. Leachability-based soil target levels shall be based on protection of the groundwater cleanup target levels or the alternate cleanup target levels for groundwater established pursuant to this paragraph, as appropriate. Source removal and other cost-effective alternatives that are technologically feasible shall be considered in achieving the leachability soil target levels established by the department. The leachability goals shall not be applicable if the department determines, based upon individual site characteristics, that contaminants will not leach into the groundwater at levels which pose a threat to human health, public safety, and the environment.
3. Using risk-based corrective action principles, the department shall approve alternative cleanup target levels based upon the person responsible for site rehabilitation demonstrating, using site-specific modeling and risk assessment studies, that human health, public safety, and the environment are protected.
The department shall require source removal, as a risk reduction measure, if warranted and cost-effective. Once source removal at a site is complete, the department shall reevaluate the site to determine the degree of active cleanup needed to continue. Further, the department shall determine if the reevaluated site qualifies for monitoring only or if no further action is required to rehabilitate the site. If additional site rehabilitation is necessary to reach “no further action” status, the department is encouraged to utilize natural attenuation and monitoring where site conditions warrant.
(5) DISPOSAL OR REUSE.—The cleanup criteria established pursuant to subsection (4) do not constitute disposal or reuse criteria. Offsite disposal or relocation must be in accordance with all applicable federal, state, and local regulations.
(6) INTENT; APPLICATION.—
(a) It is recognized that restoration of groundwater resources contaminated with certain drycleaning solvents, such as perchloroethylene, may not be achievable using currently available technology. In situations where the use of available technology is not anticipated to achieve water quality standards, the department, at its discretion, may use innovative technology that has been field-tested and that has engineering and cost data available.
(b) Nothing in this subsection shall be construed to restrict the department from temporarily postponing completion of any site rehabilitation program for which drycleaning facility restoration funds are being expended whenever such postponement is deemed necessary in order to make funds available for rehabilitation of a drycleaning facility or wholesale supply facility contamination site with a higher priority status.
(c) The department shall provide the rehabilitation of eligible drycleaning facilities and wholesale supply facilities consistent with this subsection. Nothing in this chapter shall subject the department to liability for any action that may be required of the owner, operator, or real property owner by any private party or any local, state, or federal government entity.
(7) SCORING SYSTEM.—The department shall use the following scoring system to rank and prioritize sites for rehabilitation that have been determined to be eligible for the program pursuant to subsection (3). If the application package documents that a site has one of the following characteristics, then the site shall be allocated the corresponding number of points.
(a) Any site having a condition that exhibits a fire or explosion hazard shall be of highest priority.
(b) Threat to drinking water supply wells.
1. Capacity:
a. A site shall be awarded points based on the permitted capacity of the largest uncontaminated public water supply well or the capacity of the largest uncontaminated private drinking water well constructed prior to the date of contamination discovery that is located within 1 mile of the site. If multiple uncontaminated wells of the same capacity are present within 1 mile, then select the uncontaminated well closest to the site. Points shall be awarded as follows:
For uncontaminated wells (only one shall apply):
Capacity (gallons per day)
Points
greater than 1,000,000
90
100,000 to 1,000,000
60
less than 100,000
30
b. If no points were awarded from sub-subparagraph a., and contaminated wells are present, then the site shall be awarded points based on the permitted capacity of the largest contaminated public water supply well or the capacity of the largest contaminated private drinking water well constructed prior to the date of contamination discovery that is located within 1 mile of the site. If multiple contaminated wells of the same capacity are present within 1 mile, then select the contaminated well closest to the site. Points shall be awarded as follows:
For contaminated wells (only one shall apply):
Capacity (gallons per day)
Points
greater than 1,000,000
25
100,000 to 1,000,000
15
less than 100,000
5
2. A site shall be awarded points based on the proximity of the public water supply well or private well selected in subparagraph 1. as follows. If the well selected is an uncontaminated well, then select only one from sub-subparagraph a. below. If the well selected is a contaminated well, then select only one from sub-subparagraph b. below:
a. For uncontaminated wells:
Distance
Points
within 500 feet
40
within 1/4 mile
30
within 1/2 mile
20
within 1 mile
10
b. For contaminated wells:
Distance
Points
within 500 feet
15
within 1/4 mile
10
within 1/2 mile
8
within 1 mile
5
(c) A site shall be awarded points based on groundwater vulnerability to contamination using the department’s current DRASTIC Index (only one shall apply):
DRASTIC Index
Points
79 and below
3
80 to 99
6
100 to 119
9
120 to 139
12
140 to 159
15
160 to 179
18
180 to 199
21
200 to 266
24
(d) Aquifer Classification (select all that apply):
1. A site located in a G-I or F-I aquifer area shall be awarded 3 points.
2. A site located in a G-II aquifer area shall be awarded 2 points.
3. A site located in a United States Environmental Protection Agency designated sole source aquifer area shall be awarded 1 point.
(e) Conditions favoring a continual source (only one shall apply):
1. If a site has chlorinated drycleaning solvents in the soil at concentrations greater than or equal to 1 milligram per kilogram or in the groundwater at concentrations greater than or equal to 1,500 micrograms per liter, then the site shall be awarded 7 points.
2. If the site has chlorinated drycleaning solvents in the soil at concentrations less than 1 milligram per kilogram or in the groundwater at concentrations less than 1,500 micrograms per liter, then the site shall be awarded 2 points.
(f) Environmental Setting (select all that apply):
1. A site located within 1/2 mile of an uncontaminated surface water body used as a permitted public water system shall be awarded 10 points.
2. A site located within 1/2 mile of an Outstanding Florida Water body shall be awarded 2 points.
3. A site located within 1/4 mile of a surface water body shall be awarded 1 point.
4. A site located within 1/4 mile of an area of critical state concern as defined in chapter 380 shall be awarded 2 points.
(8) SCORING SYSTEM APPLICATION.—
(a) If the department determines that a site is eligible for the program, pursuant to this section, then the department shall develop a score for the site in accordance with provisions of subsection (7).
(b) A priority list of eligible sites shall be developed, by the department, based on an ordering of scored sites such that the highest-scored sites shall be of highest priority for rehabilitation.
(c) Scored sites shall be incorporated into the priority list on a quarterly basis with the ranking of all sites previously on the list being adjusted accordingly.
(d) Assignments for program tasks to be conducted by state contractors shall be made according to the current priority list and shall be based on the department determination of contractor logistics, geographical considerations, and other criteria the department determines are necessary to achieve cost-effective site rehabilitation.
(e) Assignments for the program tasks shall be made beginning with the highest-ranked sites on the priority list at the effective date the assignment is made and proceed through lower-ranked sites.
(f) All scored sites will be added to the priority list on a quarterly basis until all the sites have been assigned.
(g) Once an assignment is made, a subsequent quarterly adjustment to the priority list shall not alter that assignment unless a more cost-effective approach can be achieved by reassignment, a compelling public health condition or an environmental condition warrants a reassignment, or the reassignment is otherwise in the public interest.
(h) Regardless of the score of a site, the department may initiate emergency action for those sites that, in the judgment of the department, are a threat to human health and safety, or where failure to prevent migration of drycleaning solvents would cause irreversible damage to the environment.
(9) REQUIREMENT FOR DRYCLEANING FACILITIES.—It is the intent of the Legislature that the following drycleaning solvent containment shall be required of the owners or operators of drycleaning facilities, as follows:
(a) Owners or operators of drycleaning facilities shall by January 1, 1997, 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. Such dikes or containment structures shall be capable of containing 110 percent of the capacity of each such machine and each such storage area. 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. A drycleaning facility that commenced operating before January 1, 1996, and applied to the program by December 30, 1997, is considered to have had secondary containment timely installed for the purpose of determining eligibility for state-funded site rehabilitation under this section if the drycleaning facility meets the following criteria:
1. Reported in the completed application that the facility was not in compliance with paragraph (a) of this subsection, and entered into a consent order with the department to install secondary containment and installed the required containment by April 15, 1999; or
2. Reported in the completed application that the facility had installed secondary containment but stated in the application that the date the facility installed secondary containment was not known, and was requested by the department subsequent to April 30, 1997, to apply for program eligibility and did so apply within 90 days of the request, and installed secondary containment by February 28, 1998.
The department shall reconsider the applications of facilities that meet the criteria set forth in this paragraph and that were previously determined to be ineligible due to failure to comply with secondary containment requirements. The facilities must meet all other eligibility requirements.
(b) For drycleaning facilities that commence operating subsequent to January 1, 1996, the owners or operators of such facilities shall, prior to the commencement of operations, install beneath each machine or item of equipment in which drycleaning solvents are used a rigid and impermeable containment vessel capable of containing 110 percent of the total tank capacity of each machine.
(c) Notwithstanding the provisions of subsection (3), the owner or operator of a drycleaning facility or wholesale supply facility at which there is a spill of more than 1 quart of drycleaning solvent outside of a containment structure, on or after July 1, 1995, shall report the spill to the state through the State Warning Point pursuant to s. 403.161(1)(d) immediately upon the discovery of such spill, and immediately initiate and complete actions to abate the source of the spill, remove product from all indoor and outdoor surface areas, remove product and dissolved product from any septic tank or catch basin in which the solvent has accumulated, and remove affected soils, if any.
(d) Failure to comply with the requirements of this subsection shall constitute gross negligence with regard to determining site eligibility in subsection (3).
(10) INSURANCE REQUIREMENTS.—The owner or operator of an operating drycleaning facility or wholesale supply facility shall have purchased third-party liability insurance for $1 million of coverage for each operating facility. The owner or operator shall maintain such insurance while operating as a drycleaning facility or wholesale supply facility and provide proof of such insurance to the department upon registration renewal each year thereafter. Such requirement applies only if such insurance becomes available to the owner or operator at a reasonable rate and covers liability for contamination subsequent to the effective date of the policy and prior to the effective date, retroactive to the commencement of operations at the drycleaning facility or wholesale supply facility. Such insurance may be offered in group coverage policies with a minimum coverage of $1 million for each member of the group per year. For the purposes of this subsection, reasonable rate means the rate developed based on exposure to loss and underwriting and administrative costs as determined by the Office of Insurance Regulation of the Financial Services Commission, in consultation with representatives of the drycleaning industry.
(11) VOLUNTARY CLEANUP.—A real property owner is authorized to conduct site rehabilitation activities at any time pursuant to department rules, either through agents of the real property owner or through responsible response action contractors or subcontractors, whether or not the facility has been determined by the department to be eligible for the drycleaning solvent cleanup program. A real property owner or any other person who conducts site rehabilitation may not seek cost recovery from the department or the Water Quality Assurance Trust Fund for any such rehabilitation activities. A real property owner who voluntarily initiates such site rehabilitation, whether commenced before or on or after October 1, 1995, shall upon initiation of such site rehabilitation be immune from and have no liability for claims of any person, for property damages of any kind, including, but not limited to, diminished value of real property or improvements; lost or delayed rent, sale, or use of real property or improvements; or stigma to real property or improvements caused by drycleaning-solvent contamination or be subject to any administrative or judicial action brought by or on behalf of any person, state or local government, or agency thereof to compel or enjoin site rehabilitation or pay for the cost of rehabilitation of environmental contamination, and to pay any fines or penalties regarding rehabilitation, as soon as the real property owner:
(a) Conducts contamination assessment and site rehabilitation consistent with state and federal laws and rules;
(b) Conducts such site rehabilitation in a timely manner according to a rehabilitation schedule approved by the department; and
(c) Does not deny the department access to the site. Upon completion of such site rehabilitation activities in accordance with the requirements of this subsection, the department shall render a site rehabilitation completion order.
The immunity set forth in this subsection also applies to any nearby real property owner. This immunity shall continue to apply to any real property owner who transfers, conveys, leases, or sells property on which a drycleaning facility is located so long as the voluntary cleanup activities continue. Notwithstanding any other provision of this chapter, this subsection applies to causes of action accruing on or after the effective date of this act and applies retroactively to causes of action accruing before the effective date of this act for which a lawsuit has not been filed before the effective date of this act.
(12) REOPENERS.—Upon completion of site rehabilitation in compliance with subsection (11), additional site rehabilitation is not required unless it is demonstrated:
(a) That fraud was committed in demonstrating site conditions or completion of site rehabilitation;
(b) That new information confirms the existence of an area of previously unknown contamination which exceeds the site-specific rehabilitation levels established in accordance with subsection (4), or which otherwise poses the threat of real and substantial harm to public health, safety, or the environment;
(c) That the remediation efforts failed to achieve the site rehabilitation criteria established under this section;
(d) That the level of risk is increased beyond the acceptable risk established under subsection (4) due to substantial changes in exposure conditions, such as a change in land use from nonresidential to residential use. Any person who changes the land use of the site, thus causing the level of risk to increase beyond the acceptable risk level, may be required by the department to undertake additional remediation measures to assure that human health, public safety, and the environment are protected consistent with this section; or
(e) That a new discharge occurs at the drycleaning site subsequent to a determination of eligibility for participation in the drycleaning program established under this section.
(13) DEPARTMENTAL DUTY TO SEEK RECOVERY AND REIMBURSEMENT.—
(a) Except as provided in subsection (3) and as otherwise provided by law, the department shall recover from any person causing or having caused the discharge of drycleaning solvents in relation to the operation of a drycleaning facility or wholesale supply facility, jointly and severally, all sums owed or expended from drycleaning facility restoration funds, pursuant to s. 376.308, except that the department may decline to pursue such recovery if it finds the amount involved to be too small or the likelihood of recovery too uncertain.
(b) Except as provided in subsection (3) and as otherwise provided by law, it is the duty of the department in administering the drycleaning facility restoration funds to diligently pursue the reimbursement to the Water Quality Assurance Trust Fund of any sum expended from the fund for rehabilitation in accordance with the provisions of this section, unless the department finds the amount involved to be too small or the likelihood of recovery too uncertain. For the purposes of s. 95.11, the limitation period within which to institute an action to recover such sums shall commence on the last date on which any such sums were expended, and not the date that the discharge occurred.
(c) The Legislature recognizes its limitations in addressing cleanup liability under federal pollution control programs. In an effort to secure federal liability protection for persons willing to undertake remediation responsibility at a drycleaning site, the department shall attempt to negotiate a memorandum of agreement or similar document with the United States Environmental Protection Agency, whereby the United States Environmental Protection Agency agrees to forego enforcement of federal corrective action authority at drycleaning sites that have received a site rehabilitation completion or “no further action” determination from the department or that are in the process of implementing a voluntary cleanup agreement in accordance with this section.
(14) ADVANCED SITE ASSESSMENT.—It is in the public interest, and of substantial environmental and economic benefit to the state, to provide an opportunity to conduct site assessment on a limited basis at contaminated sites in advance of the ranking of the sites on the priority list as specified in subsection (8).
(a) A real property owner who is eligible for site rehabilitation at a facility that has been determined eligible for the drycleaning solvent cleanup program under this section may request an advanced site assessment, and the department may authorize the performance of a site assessment in advance of the ranking of the site on the priority list as specified in subsection (8), if the following criteria are met:
1. The site assessment information would provide new information that would be sufficient for the department to better evaluate the actual risk of the contamination, thereby reducing the risk to public health and the environment;
2. The property owner agrees:
a. To implement the appropriate institutional controls allowed by department rules adopted pursuant to subsection (4) at the time the property owner requests the advanced site assessment; and
b. To implement and maintain, upon completion of the cleanup, the required institutional controls, or a combination of institutional and engineering controls, when the site meets the site rehabilitation criteria for closure with controls in accordance with department rules adopted pursuant to subsection (4);
3. Current conditions at the site allow the site assessment to be conducted in a manner that will result in cost savings to the Water Quality Assurance Trust Fund;
4. There is sufficient money in the annual Water Quality Assurance Trust Fund appropriation for the drycleaning solvent cleanup program to pay for the site assessment; and
5. In accordance with subsection (3), access to the site is provided and the deductible is paid.
(b) A site may be assessed out of priority ranking order when, at the department’s discretion, the site assessment will provide a cost savings to the program.
(c) An advanced site assessment must incorporate risk-based corrective action principles to achieve protection of human health and safety and the environment in a cost-effective manner, in accordance with subsection (4). The site assessment must also be sufficient to estimate the cost and determine the proposed course of action toward site cleanup. Advanced site assessment activities performed under this subsection shall be designed to affirmatively demonstrate that the site meets one of the following findings based on the following specified criteria:
1. Recommend remedial action to mitigate risks that, in the judgment of the department, are a threat to human health or where failure to prevent migration of drycleaning solvents would cause irreversible damage to the environment;
2. Recommend additional groundwater monitoring to support natural attenuation monitoring or long-term groundwater monitoring; or
3. Recommend “no further action,” with or without institutional controls or institutional and engineering controls, for those sites that meet the “no further action” criteria department rules adopted pursuant to subsection (4).
If the site does not meet one of the findings specified in subparagraphs 1.-3., the department shall notify the property owner in writing of this decision, and the site shall be returned to its priority ranking order in accordance with its score.
(d) Advanced site assessment program tasks shall be assigned by the drycleaning solvent cleanup program. In addition to the provisions in paragraph (a), the assignment of site assessment tasks shall be based on the department’s determination of contractor logistics, geographical considerations, and other criteria that the department determines are necessary to achieve the most cost-effective approach.
(e) Available funding for advanced site assessments may not exceed 10 percent of the annual Water Quality Assurance Trust Fund appropriation for the drycleaning solvent cleanup program.
(f) The total funds committed to any one site may not exceed $70,000.
(g) The department shall prioritize the requests for advanced site assessment, based on the date of receipt and the environmental and economic value to the state, until 10 percent of the annual Water Quality Assurance Trust Fund appropriation, as provided in paragraph (e), has been obligated.
Cited 82 times | Published | Supreme Court of Florida | 1999 WL 393685
...Goldenberg of Halsey & Burns, P.A., Miami, Florida, on behalf of Suniland Associates, Respondents. PARIENTE, J. We have for review Metropolitan Dade County v. Chase Federal Housing Corp., 705 So.2d 674 (Fla. 3d DCA 1998), a decision certifying the following question to be one of great public importance: ARE SUBSECTIONS 376.3078(3) AND 376.3078(9), FLORIDA STATUTES (1995), [OF THE DRY CLEANING CONTAMINATION CLEANUP ACT,] WHICH PROVIDE TO ELIGIBLE ENTITIES CONDITIONAL IMMUNITY FROM CERTAIN ADMINISTRATIVE AND JUDICIAL ACTIONS BY STATE AND LOCAL GOVERNMENTS AND AGENCIES, INTENDED BY T...
...Chase Federal, also at its own expense, conducted environmental assessments and installed a groundwater treatment system in response to the emergency order. Chase Federal expended over $100,000 during its efforts to remove the contamination from its property. Chase states that in reliance on subsections 376.3078(3) and (9) of the Dry Cleaning Contamination Cleanup Act, it did not complete the rehabilitation of the contamination and is presently seeking to complete rehabilitation under those provisions of the Act....
...water supply, the amended complaint also sought an injunction to compel the containment of on-site and off-site contamination. Defendants moved for summary judgment, claiming immunity from suit by the County based on the immunity provisions found in section 376.3078, Florida Statutes (1995), of the Dry Cleaning Contamination Cleanup Act. The Legislature enacted section 376.3078 in 1994, prior to the filing of the County's lawsuit, as part of a comprehensive statewide program for the elimination of contamination previously and presently caused by the discharge of dry-cleaning solvents....
...[2] The Act provides that the owners or operators of dry cleaning establishments, who could be liable as a result of contamination from dry cleaning solvents, would be eligible to apply to pay a deductible and have the contaminated sites cleaned by the State. See § 376.3078, Fla. Stat. (Supp. 1994). In 1995, real property owners were added to the list of those eligible to participate in the program. See § 376.3078(3), Fla. Stat. (1995). In return for disclosure of dry cleaning contamination and participation in the program, section 376.3078(3) provides conditional immunity for eligible real property owners and owners of dry cleaning facilities: (3) REHABILITATION LIABILITY.In accordance with the eligibility provisions of this section, no real property owner or no pers...
...y has not been operated in a grossly negligent manner at any time after November 1980, and provided the entity registers with the Department of Environmental Protection (DEP), complies with DEP rules, and obtains third-party liability insurance. [3] § 376.3078(3)(a). In order to be eligible to participate in the program, entities must have discovered and reported the dry cleaning contamination to the DEP before December 31, 1998. [4] See §§ 376.3078(3)(a)5., .3078(3)(b)4., Fla....
...In June and July of 1996, DEP determined that defendants were eligible to participate in the program. DEP provided the County with notice of its right to appeal the determination of eligibility, but the County did not do so. In its motion for summary judgment, Suniland Associates also claimed immunity based on subsection 376.3078(9), Florida Statutes (1995)....
...ne from liability to any person, state or local government, or agency thereof to compel or enjoin site rehabilitation or pay for the cost of rehabilitation of environmental contamination, or to pay any fines or penalties regarding rehabilitation.... § 376.3078(9), Fla. Stat. (1995) (emphasis supplied). [6] The trial court granted both defendants' motions for summary judgment on the basis of statutory immunity provided by subsection 376.3078(3) and determined that Suniland Associates was additionally immune from suit pursuant to subsection 376.3078(9)....
...fact that the statute applied to contamination that occurred prior to its enactment, and the absence of a savings clause. See Chase Federal Housing Corp., 705 So.2d at 676. The Third District made no distinction between the immunity provisions of subsection 376.3078(3) and those of subsection 376.3078(9). See id. *499 In its argument to this Court, the County does not contest that the defendants became eligible for conditional immunity under subsection 376.3078(3)....
...However, the mere fact that "retroactive application of a new statute would vindicate its purpose more fully ... is not sufficient to rebut the presumption against retroactivity." Landgraf, 511 U.S. at 285-86, 114 S.Ct. 1483; see Hassen, 674 So.2d at 110; Arrow Air, 645 So.2d at 425. Because subsections 376.3078(3) and (9) provide conditional immunity from liability for contamination occurring before the statute's enactment, the immunity provisions operate retroactively. The County has conceded that once a defendant qualifies for eligibility under subsection 376.3078(3), the Act would prevent recovery of costs subsequently expended, even though those costs related to contamination occurring prior to the statute's enactment....
...bility are made, and such delays result in the continuation and intensification of the threat to the public health, safety, and welfare; in greater damage to the environment; and in significantly higher costs to contain and remove the contamination. § 376.3078(1)(c), Fla....
...hreat to Florida's groundwater caused by past and presently occurring dry cleaning contamination. We turn next to the language of the Act and an overview of the statutory scheme. In return for participating in the program, entities eligible under subsection 376.3078(3) receive the right to have rehabilitation activities funded from the trust fund, as well as immunity from suit to compel performance of site rehabilitation or to compel payment of the costs of rehabilitation. The owners or operators of an operating dry cleaning business can become eligible to participate in the program " regardless of when the drycleaning contamination was discovered. " § 376.3078(3)(a), Fla....
...Even if the dry cleaning business is no longer in operation, the owners or operators are still eligible to participate in the program "regardless of when the contamination was discovered," as long as the business was operated in compliance with state and federal regulations. § 376.3078(3)(b)....
...by or on behalf of any state or local government or agency thereof or by or on behalf of any person to compel rehabilitation or pay for the costs of rehabilitation of environmental contamination resulting from the discharge of drycleaning solvents," § 376.3078(3) (emphasis supplied), " regardless of when the drycleaning contamination was discovered. " § 376.3078(3)(a) (emphasis supplied). Thus, the clear statutory language provides that after DEP determines that the defendants are eligible to participate in the program, they are granted immunity from actions from local governments to recover the costs of rehabilitation. See § 376.3078(3). As noted above, the County *502 does not challenge that eligibility determination. Therefore, the language of subsection 376.3078(3) rebuts the presumption in favor of prospective application and provides a clear expression of legislative intent that the conditional immunity applies retroactively to immunize defendants from actions to recover costs of rehabilitation expended prior to the passage of the Act. Further, the language of subsection 376.3078(9), granting immunity to real property owners who voluntarily cleaned the contamination on their property, contains an express command that the provision provides conditional immunity for past acts. The section 376.3078(9) immunity applies to voluntary clean-ups "commenced before or on or after October 1, 1995," the effective date of the amendment....
...The County's interpretation of these subsections, that they grant an entity immunity only from costs expended after eligibility was determined, would require that we rewrite the express terms of the statute and add phrases that do not appear within the text. Specifically, we would have to add to subsection 376.3078(3) that the immunity would be granted only from actions to recover costs expended after the eligibility was determined....
...We reject an interpretation of Hassen that leads to the unbending principle that the inclusion of an effective date in a statute will always supersede the clearly expressed legislative intent that the statute be applied retroactively. [11] Unlike the provision in Hassen, section 376.3078 is not silent as to its retroactive effect. As to subsection 376.3078(9), although that provision became effective October 1, 1995, the text of subsection 376.3078(9) specifically states that whether the voluntary clean-up commenced before or after October 1, 1995, the real property owner "shall be immune from liability." The County's interpretation would require us to disregard the clear language of the Act. As to subsection 376.3078(3), the inclusion of an effective date comports with the overall intent of the Act to provide for conditional immunity for past acts, but only after eligibility has been determined. The Act directs the Department to promulgate rules to determine the criteria for eligibility and to prioritize the rehabilitation of eligible sites before any entities can be afforded statutory immunity. See § 376.3078(3)(a)1. Therefore, only after the effective date could entities apply to become eligible to receive statutory immunity for past contamination "regardless of when the drycleaning contamination was discovered." § 376.3078(3)(a)....
...ncourage real property owners to undertake the voluntary cleanup of property contaminated with drycleaning solvents and that the immunity provisions of this section and all other available defenses be construed in favor of real property owners. *503 § 376.3078(1)(e), Fla....
...Scott, 707 So.2d 1112, 1116 (Fla.1998). The Third District's opinion in this case was issued on January 3, 1998, see Chase Federal Housing Corp., 705 So.2d at 674, five months before the Legislature passed this law in May 1998. See ch. 98-189, § 18, at 1670, Laws of Fla. (codified at § 376.3078(1)(e), Fla....
...79 Fla. 1, 17, 83 So. 627, 632 (1920). CONCLUSION We find that the Legislature has clearly expressed its intent through the language of the statute as well as the structure and purpose of the Act to apply the immunity provisions found in subsections 376.3078(3) and (9) to preclude the County's lawsuit to recover its rehabilitation costs....
...[3] In 1995, the statute was amended so that all owners or operators of currently operating dry cleaning businesses must obtain third-party liability insurance in the amount of $1 million of coverage, regardless of participation in the program. See § 376.3078(8), Fla....
...[4] Since the DEP did not promulgate rules to determine eligibility to participate in the program until March 1996, the window for eligible entities to apply to participate in the program was less than three years. [5] This provision is now codified at 376.3078(11), Fla. Stat. (Supp.1998). [6] Though not directly at issue in this case, the 1995 amendments also added a third immunity provision applicable to real property owners who are not involved in the ownership or operation of the dry cleaning facility. See § 376.3078(3)( o ), Fla....
...However, the Knowles analysis has not been used recently by this Court when discussing retroactivity. [10] To the extent that the County is seeking an injunction based on its assertion of continuing contamination in the groundwater, it is clear that subsection 376.3078(3), Florida Statutes (1995), would bar the County's request for prospective injunctive relief once eligibility is determined....
...argues that the consent decree does not comply with certain State of Florida pollution risk standards for certain toxic substances present in the Wingate Landfill. Bass Dillard argues that Florida Statutes Section 376.80(2)(b)(1) regarding brownfields, Section 376.3078 regarding voluntary cleanup of property contaminated with dry cleaning solvents, and Section 376.3071 regarding petroleum pollution, constitute state Applicable or Relevant and Appropriate Requirements ("ARARs") that the EPA is required to attain in their remedial action....
...In the drycleaning solvent statute, the 10 to the minus 6 cancer risk risk level only applies to property owners participating in the voluntary program at a minimum, and at a maximum only applies to property with dry-cleaning solvents underneath. Florida Statutes § 376.3078....
Cited 2 times | Published | Florida 2nd District Court of Appeal | 2001 WL 387944
...In April 1999 the trial court denied this motion. Publix subsequently filed an answer raising as an affirmative defense that it had obtained in October 1998 a certificate from the state declaring that it was eligible for the dry-cleaning clean-up program under section 376.3078, Florida Statutes (1995). Publix alleged that its eligibility for this program immunized it from suit pursuant to section 376.3078(3). Courtney's reply to Publix's affirmative defenses stated that section 376.3078(3) only immunizes polluters from a suit to require rehabilitation, and another portion of the same chapter, section 376.313, Florida Statutes (1995), specifically states that damage actions may still proceed. Publix moved for summary judgment on two bases: first, it contended that it was entitled to complete immunity under section 376.3078(3) because it had satisfied the eligibility requirements of that subsection for the clean-up program; and second, that it was also entitled to immunity under section 376.3078(11), Florida Statutes (Supp.1998), because it had conducted a voluntary clean-up before qualifying for the program....
...a commensurate increase in costs. It is probably impossible with existing technology to clean up the site. The trial court granted summary final judgment to Publix, holding that Publix was indeed entitled to a full immunity from suit under sections 376.3078(3) and (11). The court held that "if parties such as Publix meet the applicable requirements [of section 376.3078], as Publix has done, they shall obtain immunity against all other claims, including the claims of Courtney, and to hold otherwise would render the Dry Cleaning Solvent Cleanup Program toothless." This appeal followed....
...ho find and properly report to the state dry-cleaning chemical pollution on their property, the WQAA does not prohibit an adjoining landowner from pursuing a common law cause of action for diminution in the value of his land. Before the enactment of section 376.3078, this state recognized common law causes of action for a landowner whose land was damaged by pollution from an adjoining landowner....
...Dep't of Transp., 476 So.2d 735 (Fla. 1st DCA 1985) (negligence, trespass, and nuisance). The plain language of the statutes simply does not justify the emasculation of common law causes of action against adjoining landowners for diminution in property value. Section 376.3078 establishes a Hazardous Waste Management Fund to supply rehabilitation for contaminated dry-cleaning facility sites. Section 376.3078(3) provides, in pertinent part: REHABILITATION LIABILITY.In accordance with the eligibility provisions of this section, no real property owner or no person who owns or operates, or who otherwise could be liable as a result of the o...
...by or on behalf of any state or local government or agency thereof or by or on behalf of any person to compel rehabilitation or pay for the costs of rehabilitation of environmental contamination resulting from the discharge of drycleaning solvents. § 376.3078(3), Fla....
...to compel or enjoin site rehabilitation or pay for the cost of rehabilitation of environmental contamination, or to pay fines or penalties regarding rehabilitation," in the event the property owner conducts a voluntary clean-up of the contamination. § 376.3078(11), Fla. Stat. (Supp.1998). The plain language of sections 376.3078(3) and (11) suggests that immunity will only exist against those actions seeking rehabilitation or payment for *1049 the costs associated with rehabilitation of environmental contamination. A court may not import words or meaning into a statute that does not appear on the face of the statute. McLaughlin v. State, 721 So.2d 1170, 1172 (Fla. 1998). In this case, the trial court concluded that sections 376.3078(3) and (11) should be read to grant immunity from all causes of action where damages for the diminution in value were sought because any other interpretation would render the sections "toothless." However, section 376.313(3) states that the...
...one another." Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992) (emphasis in original) (citations omitted). Reading the two statutes together, it can be seen that common law causes of action survive the enactment of section 376.3078, and an injured landowner is only prohibited from bringing suit for site rehabilitation under the statute....
...e repair costs or the diminution in value of the property, to allow an adjoining landowner such as Courtney to recover damages under a common-law cause of action would be a back-door way of allowing the landowner to recover rehabilitation costs, and section 376.3078 immunizes a real property owner from liability for rehabilitation costs. Therefore, under section 376.3078, all common law causes of action must be prohibited, despite the language of section 376.313 preserving these causes of action....
...n value of the property. So the measure of damages under the common law in cases such as the instant one is either the diminution of value or the restoration costs, but not restoration costs that exceed the diminution in value of the property. *1050 Section 376.3078 immunizes a real property owner from suit for restoration costs; it should not be read to eliminate common law causes of action altogether but to limit damages in those actions to diminution in property value....
...auses of action that he may possess. Here Courtney has not even asserted a cause of action under the WQAA. Rather, it has asserted common law causes of action, which by the very terms of section 376.313(3) are preserved. When the legislature enacted 376.3078 in 1994 (after Mostoufi was decided) to grant immunity only from suit for rehabilitation costs, it would have understood that a plaintiff would still be able to bring suit for other types of damages. This is perfectly consistent with the legislature's decision to leave the savings clause in section 376.313(3), even though other portions of the statute were amended by the 1994 legislation. Because Publix's immunity under section 376.3078 does not extend to the common law causes of action asserted by Courtney, we reverse the trial court's order granting summary final judgment in this case....
Cited 1 times | Published | Florida 3rd District Court of Appeal
...ater mains, to impose penalties, and to seek attorney's fees and administrative costs. However, the Florida Legislature enacted the "Drycleaning Contamination Cleanup Act" [the Act], ch. 94-355, amended by ch. 95-239, Laws of Florida, which includes section 376.3078, Florida Statutes (1995)....
...ed by and presently being caused by the discharge of drycleaning solvents. The legislature established a fund and procedures for carrying out the necessary remedial measures. Pertinent to this case are the provisions of the Act, found in subsections 376.3078(3) [2] and 376.3078(9) [3] , Florida Statutes (1995), which provide conditional immunity to various entities when they meet certain eligibility requirements....
...From this we conclude that the legislature has clearly expressed its intention that the Act is to be retroactively applied. As we consider this to be a matter of great public importance, we certify the following question to the Florida Supreme Court: ARE SUBSECTIONS 376.3078(3) AND 376.3078(9), FLORIDA STATUTES (1995), WHICH PROVIDE TO ELIGIBLE ENTITIES CONDITIONAL IMMUNITY FROM CERTAIN ADMINISTRATIVE AND JUDICIAL ACTIONS BY STATE AND LOCAL GOVERNMENTS AND AGENCIES, INTENDED BY THE LEGISLATURE TO APPLY RETROACTIVELY, THUS PRECL...
...Miami-Dade County appeals a final order of the State of Florida Department of Envi *514 ronmental Protection [FDEP] approving the eligibility of Sekoff Investments, Inc. [Sek-off], to participate in the Florida Drycleaning Contamination Cleanup Program [Cleanup Program]. § 376.3078, Fla....
...ad been operating. FDEP granted Sekoff eligibility to participate in the Program. The County petitioned FDEP for an administrative hearing to contest Sekoffs eligibility. The County contended that Sekoff had committed gross negligence, as defined in section 376.3078(3)(c), because Sekoff was in “willful violation of local law ......
...regulating the operation of drycleaning facilities,” for failure to comply with the County’s cleanup requests. The County maintained that this gross negligence disqualified Sekoff from participating in the Cleanup Program and enjoying statutory immunity from County enforcement efforts. § 376.3078(3)....
...On May 8, 1994, FDEP announced it was suspending all enforcement actions against drycleaning facilities based on the Legislature’s anticipated passage of the Florida Drycleaning Solvent Contamination Cleanup Act (“Drycleaning Act” or “Act”)[§ 376.3078], discussed below....
...4th DCA 1990)(willful “requires intent and purpose that the act or condition take place”), review denied, 577 So.2d 1328 (Fla.1991), concluded that Sekoffs actions were not unreasonable and not willful in view of the legislature’s enactment of section 376.3078....
...The County’s Petition was heard based on a stipulated fact statement; therefore, FDEP resolved no issues of fact. For this reason, this court can set aside FDEP’s order only “if it finds that: ... The agency has erroneously interpreted a provision of law [section 376.3078,] and a correct interpretation compels a particular action[.]” § 120.68(7)(d), Fla....
...rted by substantial, competent evidence.” Martinson v. Breit’s Tower Serv., Inc., 680 So.2d 599, 599 (Fla. 3d DCA 1996); Nelson v. Dade County Aviation Dept., 616 So.2d 56, 57 (Fla. 3d DCA 1993). In this ease, FDEP has the authority to interpret section 376.3078, which *516 details eligibility for participation in the Cleanup Program. See Public Employees Relations Comm. v. Dade County Police Benevolent Ass’n, 467 So.2d 987, 989 (Fla.1985). II. Drycleaning Facilities Restoration Statute: Section 376.3078, Florida Statutes In enacting section 376.3078, and creating the Cleanup Program, the legislature declared that (a) Significant quantities of drycleaning solvents have been discharged in the past at dry-cleaning facilities as part of the normal operation of these facilities....
...bility are made, and such delays result in the continuation and intensification of the threat to the public health, safety, and welfare; in greater damage to the environment; and in significantly higher costs to contain and remove the contamination. § 376.3078(1). Upon being granted eligibility to participate in the Cleanup Program, the property owner becomes immune from “administrative or judicial action brought by or on behalf of any state or local government or agency_” § 376.3078(3). A contaminated drycleaning facility is eligible to participate in the Cleanup Program provided the facility was not operated in a grossly negligent manner. Section 376.3078(3)(e) defines gross negligence as, inter alia, “a willful violation of [a] local ......
...s regulating operations of drycleaning facilities by failing to comply with the County’s NOV cleanup requests. 3 The County urges that FDEP’s order improperly defined “willful violation” and in so doing violated the legislative intent behind section 376.3078....
...In interpreting statutory terms, words must be given their plain and ordinary meaning. See Gar-Con Dev. v. Department of Environmental Regulation, 468 So.2d 413 (Fla.App. 1st DCA), review denied, 479 So.2d 117 (Fla.1985). Although the legislature did define “gross negligence” in section 376.3078(3)(c), it did not define “willful violation.” In construing an undefined term, we must look to the common or usual meaning of the term....
...so great as to make it highly probable that harm would follow_” Thunderbird Drive-In, 571 So.2d at 1344 (quoting Smith, 823 F.2d at 1198 ). Furthermore, we are unpersuaded by the argument that this definition violates the legislative intent behind section 376.3078. In enacting 376.3078 the legislature realistically acknowledged that “[discharge of dryclean-ing solvents at such drycleaning facilities have occurred and are occurring _” § 376.3078(l)(b), Fla. Stat. (1995)(emphasis added). The legislature declared that “remedial measures have often been delayed for long periods while determinations as to liability and the extent of liability are made ....” § 376.3078(l)(e), Fla....
...In so finding, the legislature expressed its sense of urgency in promoting remediation — even to the extent of conferring immunity on Cleanup Program participants. The legislature expressly extended this immunity to facilities “at which there exists contamination,” § 376.3078(3)(a), (b), Fla....
...n is a condition precedent to eligibility in the Cleanup Program. No such requirement was written into the statute. FDEP was not obligated to create such a requirement. We will not create one here. Additionally, the legislature expressly stated that section 376.3078 was to be liberally construed to effect the purposes stated therein....
...irm FDEP’s final order. 4 III. Third District Court of Appeal Precedent We are also unpersuaded by the County’s argument that affirming FDEP’s order disregards precedent from this court. This court has addressed the scope of the immunity under section 376.3078 in two cases; neither case, however, tested the propriety of an FDEP order awarding a facility eligibility for participation in the Cleanup Program....
...trative enforcement. The issue on appeal in that case was whether the entities, were entitled to immunity prior to a grant of eligibility in the Cleanup Program. The second case addressed whether the immunity extended to dryeleaning facilities under section 376.3078, was retroactive....
...92,536 (Fla. Mar. 9, 1998). This holding is not antagonistic to our conclusion in the present case and does not aid the County’s position here. Neither case supports reversal. IV. Conclusion In enacting the Drycleaning Facilities Restoration statute, § 376.3078, the legislature ensured that financial resources would be readily available “to provide a means for investigation and rehabilitation of contaminated sites without delay.” § 376.3078(l)(d). Using revenues from taxes on gross receipts of drycleaning facilities under section 376.70, and on the production or importation of per-chloroethylene under section 376.75, § 376.3078(2)(a), FDEP rehabilitates sites contaminated by discharged drycleaning solvents “that pose a significant threat to the public health, safety, or welfare.” § 376.3078(4), Fla. Stat. (1995). FDEP has correctly interpreted section 376.3078, see § 120.68(7)(d), Fla....
...The County has not demonstrated that Sekoffs behavior was a “willful violation” of local ordinances sufficient to disqualify it from participation in the Cleanup Program. The FDEP’s order is therefore affirmed. Affirmed. . We note that on May 24, 1998, the legislature amended section 376.3078(3)(c), Florida Statutes, to clarify the definition of "gross negligence.” Pursuant to the amendment, a diycle-aning facility has committed "gross negligence” if it, inter alia, has “3....
...with the knowledge, intent, and purpose that the act would result in harm. Ch. 98-189, § 10, Laws of Fla. In this case, the FDEP applied a definition of "gross negligence” that comports with the definition set forth in the amendment. . There are other misdeeds that disqualify an applicant from participation. See § 376.3078(3)(c), (3)(b)l-4, Fla....
...p. 12 (emphasis added). The Stipulated Facts outline Sekoffs compliance with the County’s NOV. . This holding makes it unnecessary to reach the issue of whether the County’s enforcement actions "regulat[e] the operation of dryeleaning facilities § 376.3078(3)(c), Fla....
This Florida statute resource is curated by Graham W. Syfert, Esq., a Jacksonville, Florida personal injury and workers' compensation attorney. For legal consultation, call 904-383-7448.
