Metropolitan Dade County v. State Dept. of Environmental Protection

• Decision Date: 10 June 1998
• Docket Number: No. 97-2126,97-2126
• Citation: 714 So.2d 512
• Parties: 23 Fla. L. Weekly D1393 METROPOLITAN DADE COUNTY, Appellant, v. The STATE of Florida DEPARTMENT OF ENVIRONMENTAL PROTECTION and Sekoff Investments, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 512

714 So.2d 512

23 Fla. L. Weekly D1393

METROPOLITAN DADE COUNTY, Appellant, v. The STATE of Florida DEPARTMENT OF ENVIRONMENTAL PROTECTION and Sekoff Investments, Inc., Appellees.

No. 97-2126.

District Court of Appeal of Florida Third District.

June 10, 1998.

Rehearing Denied July 29, 1998.

Robert A. Ginsburg, County Attorney, and Thomas H. Robertson and Robert Duvall, Assistant County Attorneys, for appellant.

Jeffrey Brown, Assistant General Counsel, for appellee State of Florida Department of Environmental Protection.

Halsey & Burns, P.A., and Evan M. Goldenberg, Kirk L. Burns, and Douglas M. Halsey, for appellee Sekoff Investments, Inc.

Cindy L. Bartin and Fred McCormack for Florida Drycleaners' Coalition, Inc., as amicus curiae.

Before JORGENSON, GODERICH and SHEVIN, JJ.

SHEVIN, Judge.

Miami-Dade County appeals a final order of the State of Florida Department of Environmental Protection [FDEP] approving the eligibility of Sekoff Investments, Inc. [Sekoff], to participate in the Florida Drycleaning Contamination Cleanup Program [Cleanup Program]. § 376.3078, Fla. Stat. (1995). We affirm.

Sekoff owns the property where Redd's Cleaners, a dry-cleaning establishment, had been operating. FDEP granted Sekoff eligibility to participate in the Program. The County petitioned FDEP for an administrative hearing to contest Sekoff's 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). The hearing officer granted Sekoff's motion to intervene as an additional respondent. The County and Sekoff filed a Joint Statement of Undisputed Material Facts that stated:

8. On March 15, 1994, Dade County issued Redd's Cleaners and Sekoff a Notice of Violation and Orders for Corrective Action ("NOV"). Exhibit A. The NOV stated that the presence of drycleaning solvents in the septic tank and storm drain/soakage pit violated Sections 24-11, 24-13, 24-14, 24-26, and 24-55, Metropolitan Dade County Code, and ordered Redd's Cleaners and Sekoff to submit a formal plan for the assessment and cleanup of the drycleaning solvent contamination. The cited provisions of the Dade County Code generally provide that it is unlawful to throw, drain, run, seep, or otherwise discharge industrial or liquid wastes into septic tanks, sewers, or waters of the County; to cause or maintain a nuisance or sanitary nuisance as defined by the Metropolitan Dade County Code; or to violate any provision or condition of an operating permit.

9. Sekoff hired the environmental consulting firm, REP Associates, Inc., which prepared and submitted to Dade County a Contamination Assessment Plan ("CAP") dated April 21, 1994 Exhibit B. By letter dated May 5, 1994, Dade County approved the CAP with modifications, and required the immediate pump out and disposal of the contaminated contents of the septic tank and storm drain/soakage pit. Exhibit C.

10. In May and June, 1994, Sekoff began collecting soil, groundwater, and sediment samples from the septic tank and storm drain, and installed a groundwater monitoring well, as required by the CAP. Exhibit D. The test results disclosed the presence of drycleaning solvents in the soils and groundwater at the Sekoff property. The contaminants in the septic tank and storm drain/soakage pit were a source or a likely source of soil and groundwater contamination at the facility.

11. 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. Exhibit E.

12. On June 3, 1994, the Drycleaning Act became effective.

13. On August 23, 1994, Dade County mailed Sekoff and Redd's Cleaners a Final Notice Prior to Court Action stating that they were not in strict compliance with the deadlines set forth in the NOV. Exhibit F.

14. On September 22, 1994, Sekoff submitted to Dade County a Report of Sampling and Analysis summarizing the results of the work performed in May and June, 1994. Exhibit D. By letter dated September 23, 1994, Sekoff further advised Dade County that it would be applying for participation in the Drycleaning Solvent Contamination Cleanup Program as soon as FDEP promulgated the necessary implementation rules. Sekoff proposed that the County approve a no further action plan pending its notice of eligibility under the Drycleaning Act. Exhibit G.

15. By letter dated September 30, 1994, Dade County disapproved Sekoff's no further action plan. Dade County again notified Sekoff and Redd's Cleaners that it must immediately remove and dispose of the contents of the septic tank and storm drain. Exhibit H.

16. In December, 1994, Sekoff evicted Redd's Cleaners. Since that date, the former drycleaning facility has remained vacant.

17. On July 18, 1995, Sekoff's environmental consultants removed and properly disposed of the contents of the septic tank and storm drain. On October 3, 1995, Sekoff's consultants advanced new soil borings and installed a new groundwater monitoring well. Groundwater samples were collected on October 24, 1995. On February 21, 1996, Sekoff submitted its Contamination Assessment Report Addendum to Dade County, summarizing the results of the work performed in July and October, 1995 and requesting a monitoring only plan ("MOP"). Exhibit I. By letter dated February 19, 1996, Dade County disapproved Sekoff's proposed MOP. Exhibit J.

18. In March 1996, FDEP began to accept applications for the Drycleaning Solvent Contamination Cleanup Program. Sekoff submitted its application for Redd's Cleaners on March 8, 1996. By letter dated June 11, 1996, FDEP approved Sekoff's application and determined that the Redd's drycleaning facility is eligible to participate in the State program. Exhibit K.

Joint Statement of Undisputed Material Facts, (R-102-05)(emphasis added).

The hearing officer entered a recommended order based on stipulated facts, exhibits, and written argument, § 120.569(1), Fla. Stat. (1997), recommending that Sekoff be found eligible to participate in the Program. In the recommended order, the hearing officer, relying on the definition of "willful" in Thunderbird Drive-In Theatre, Inc. v. Reed, 571 So.2d 1341, 1344 (Fla.App. 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 Sekoff's actions were not unreasonable and not willful in view of the legislature's enactment of section 376.3078. ¹ The FDEP adopted the recommended order, and affirmed Sekoff's eligibility. The County appeals.

I. Standard of Review

Section 120.68, Florida Statutes, provides the parameters for reviewing FDEP's order. 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. Stat. (1997). "[W]e may reverse any erroneous interpretation of law, whether or not the error rises to a level of materiality, so long as the correct interpretation compels a particular action." Schrimsher v. School Bd. of Palm Beach County, 694 So.2d 856, 861 (Fla. 4th DCA), review denied, 703 So.2d 477 (Fla.1997).

We are not unmindful, however, that "the administrative construction of a statute by the agency charged with its administration should not be disregarded or overturned by a reviewing court except for most cogent reasons and unless clearly erroneous." Department of Health & Rehab. Servs. v. A.S., 648 So.2d 128, 132 (Fla.1995). "[A] reviewing court must defer to an agency's interpretation of an operable statute as long as that interpretation is consistent with legislative intent and is supported 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 case, FDEP has the authority to interpret section 376.3078, which 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.

(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.

§ 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...