Metro. Dade County v. CHASE FED. HOUSING
| Decision Date | 10 June 1999 |
| Docket Number | No. 92,536.,92,536. |
| Citation | 737 So.2d 494 |
| Parties | METROPOLITAN DADE COUNTY, Petitioner, v. CHASE FEDERAL HOUSING CORPORATION, et al. |
| Court | Florida Supreme Court |
Robert A. Ginsburg, Dade County Attorney, and Robert A. Duvall and Thomas H. Robertson, Assistant County Attorneys, Miami, Florida, for Petitioner.
Robert M. Brochin and David Ashton of Morgan, Lewis & Bockius, LLP, Miami, Florida, on behalf of Chase Federal Housing Corp., and Douglas M. Halsey, Kirk L. Burns and Evan M. Goldenberg of Halsey & Burns, P.A., Miami, Florida, on behalf of Suniland Associates, Respondents.
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 THE LEGISLATURE TO APPLY RETROACTIVELY, THUS PRECLUDING ACTIONS AGAINST IMMUNIZED ENTITIES FOR THE RECOVERY BY A GOVERNMENT FOR ENFORCEMENT AND REHABILITATION COSTS EXPENDED PRIOR TO THE ENACTMENT OF THESE SUBSECTIONS?
Id. at 675. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we answer the certified question in the affirmative.
The defendants below, Suniland Associates and Chase Federal Housing Corporation, owned shopping centers along U.S. 1 (South Dixie Highway) in the Suniland area of Dade County. Both defendants leased space in their shopping center to operators of dry cleaning facilities, but neither defendant had owned or operated a dry cleaning facility or had any knowledge of any contamination from dry cleaning solvents occurring on their property.
In 1991, the Department of Environmental Resources Management of Metropolitan Dade County issued Suniland Associates an emergency order to correct a sanitary nuisance in accordance with provisions of the Dade County Code. The emergency order directed Suniland Associates to eliminate dry cleaning solvent contamination discovered in a storm drain and septic tank on its property.
Suniland Associates, at its own expense, conducted environmental assessments, installed a groundwater treatment facility, and pumped the contaminants from the septic tank and storm drain. Suniland Associates expended $450,000 in order to remove the contamination from the property. The dry cleaning facility in the shopping center owned by Suniland Associates ceased operations in 1992. No dry cleaning facility has been in operation on the property since that time.
The County also issued an emergency order to Chase Federal in 1992 after contamination from dry cleaning solvents was discovered in a storm drain in its shopping center. 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.
In December 1994, the County, a political subdivision of the State of Florida, filed suit against defendants and other owners and operators of dry cleaning facilities in the Suniland area. The lawsuit alleged that dry cleaning solvents had contaminated the private wells in a residential neighborhood near the dry cleaning facilities. As a result, the County alleged that it had expended considerable sums investigating the contamination and installing and servicing potable water mains to connect the neighborhood to the public water supply.1 The amended complaint additionally alleged that "contamination continues to exist in the groundwater, and will continue to remain in the groundwater" unless addressed by the defendants and others.
The County's claims for relief were based on Chapter 24 of the Dade County Code, which imposes strict liability for damage caused by pollution. The amended complaint included counts for injunctive relief to compel rehabilitation, damages, civil penalties, attorneys' fees and administrative costs. In addition to seeking to recover the costs expended in removing the contamination from the 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. See ch. 94-355, Laws of Fla. In conjunction with the statewide program, the Legislature established a fund to clean sites contaminated by 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 person who owns or operates, or who otherwise could be liable as a result of the operation of, a drycleaning facility ... shall be 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 this section for any qualified site, costs [of rehabilitation] shall be absorbed at the expense of the drycleaning facility restoration funds, without recourse to reimbursement or recovery from the real property owner or the owner or operator of the drycleaning facility....
(Emphasis supplied.)
An entity can become eligible to participate in the program "regardless of when the drycleaning contamination was discovered," provided the dry cleaning facility 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, 1998.4See §§ 376.3078(3)(a)5., .3078(3)(b)4., Fla. Stat. (Supp.1998).
In March 1996, shortly after DEP promulgated rules to determine eligibility, defendants applied to participate in the statewide program. 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).5 This subsection provides an additional immunity provision for real property owners who voluntarily cleaned up their contaminated property:
(9) A real property owner is authorized to conduct site rehabilitation activities at any time pursuant to department rules ... 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 party that conducts site rehabilitation may not seek cost recovery from the department.... A real property owner that voluntarily conducts such site rehabilitation, whether commenced before or on or after October 1, 1995, shall be immune 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). On appeal, the Third District concluded that the Legislature had clearly expressed its intent to retroactively apply the provisions of the statute because of the comprehensive nature of the Act, the 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. In its argument to this Court, the County does not contest that the defendants became eligible for conditional immunity under subsection 376.3078(3). In addition, the...
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