Seaboard System R.R., Inc. v. Clemente for and on Behalf of Metropolitan Dade County
| Decision Date | 12 March 1985 |
| Docket Number | 83-2623 and 83-2464,Nos. 83-2515,s. 83-2515 |
| Citation | 467 So.2d 348,10 Fla. L. Weekly 1139 |
| Parties | 10 Fla. L. Weekly 1139, 10 Fla. L. Weekly 668 SEABOARD SYSTEM RAILROAD, INC., Lone Star Building Centers (Eastern), Inc., and Futura Coral Way Properties 1, Ltd., Appellants, v. Anthony J. CLEMENTE as Director of the Department of Environmental Resources Management, for and on Behalf of METROPOLITAN DADE COUNTY, etc.; Stanley Davidson, individually, Appellees. Anthony J. CLEMENTE as Director of the Department of Environmental Resources Management, for and on Behalf of METROPOLITAN DADE COUNTY etc., Appellant, v. SEABOARD SYSTEM RAILROAD, INC., and Futura Coral Way Properties 1, Ltd., Appellees. FUTURA CORAL WAY PROPERTIES 1, LTD., and Seaboard System, etc., Appellants, v. Anthony J. CLEMENTE as Director etc., for and on Behalf of METROPOLITAN DADE COUNTY, Appellee. |
| Court | Florida District Court of Appeals |
Goodwin, Ryskamp, Welcher & Carrier and Kenneth Ryskamp, Miami, for seaboard.
Peeples, Earl, Reynolds & Blank and Nina S. Kole and Robert Blank, Miami, for Lone Star.
Greenberg, Traurig, Askew, Hoffman, Lipoff, Rosen & Quentel and Clifford Schulman and Timothy A. Smith, Miami, for Futura in No. 83-2515.
Morgan, Lewis & Bockius and Richard A. Pettigrew, Miami, for Davidson.
Robert A. Ginsburg, County Atty. and Peter S. Tell, Asst. County Atty., Miami, for Clemente.
Lapidus & Stettin and Richard L. Lapidus, Miami, for Futura in No. 83-2464.
Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
In these consolidated appeals we are asked to decide the extent of the respective responsibilities of various corporate and individual parties for the elimination and disposal of toxic waste material (toxic sludge) which has accumulated and continues to accumulate on the property located at 7000 Coral Way [the site] in such massive concentrations as to pose a threat to the ground water of Dade County. The trial court issued a preliminary injunction against appellants, Futura's Coral Way Properties I, Ltd. [Futura], Seaboard System Railroad, Inc. [Seaboard], and Lone Star Building Centers, Inc. [Lone Star] and appellee Stanley S. Davidson [Davidson], requiring them to retain environmental consultant Enviropact, Inc. [Enviropact] to effectuate the safe and expeditious removal of the toxic sludge and to conduct additional tests designed to detect the presence of other hazardous substances on the site. The trial court subsequently held Futura and Seaboard in contempt for failing to comply with the preliminary injunction. Futura, Seaboard, and Lone Star appeal the order granting preliminary injunctive relief, and Futura and Seaboard appeal the contempt order. For reasons more fully developed below, we affirm the grant of injunctive relief against appellants pursuant to the anti-pollution and nuisance provisions of Chapter 24 of the Code of Metropolitan Dade County and reverse the judgment of contempt against Futura and Seaboard.
The environmental hazards emanating from the Coral Way site are traceable to the lumber treatment operation conducted between 1968 and 1981 by the various parties who owned or operated the wood-treating facility located on the site. The treatment was designed to prevent termites and to preserve the wood through the use of a chemical solution, chromated copper arsenate, or CCA. The elements comprising this solution, copper, chromium, and arsenic, are classified as heavy metals; arsenic and chromium are regulated contaminants under section 24-11 of the Code of Metropolitan Dade County. The procedure was initiated by inserting the wood to be treated into a long cylindrical pressure-treating tank. After treatment, the wet wood was moved to various open drying areas near the plant and stacked on large timbers elevated from the ground. During the drying process, excess solution dripped from the newly treated wood onto the ground. The accumulation of chromium, copper, arsenic, and creosote drippings from the drying lumber has contaminated and continues to contaminate the soil and ground water on the site of the former wood-treating plant.
Pertinent to this litigation is the fact that both the wood-treating plant and the property on which it was located have undergone several changes in ownership and operation during the evolution of the present pollution problem. Seaboard owned the land from 1941 through 1980. During this period, Seaboard leased the land underlying the wood-treating plant, first to Miami Wood Treating Facility from 1941 to 1968, then to Lindsley Lumber, a subsidiary of Lone Star from 1968 to 1972. Lone Star acquired the plant in 1972 and continued operating it until 1979, when it sold the facility to Davidson Lumber. Seaboard's ownership of the land terminated in 1980, when Davidson purchased the land beneath the wood-treating plant. Davidson ceased operation of the plant in 1981. In 1982, Futura entered the picture, purchasing the property from Davidson to conduct its real estate development business.
Procedurally, this action commenced when Dade County issued administrative Notices of Violation and Orders for Corrective Action to Futura and, subsequently, to Davidson. The notices cited Futura and Davidson with pollution and nuisance violations pursuant to Chapter 24 of the Dade County Code and required the submission of a plan for the elimination and disposal of the hazardous substances. Futura refused to comply with the notice requirements. Davidson, however, entered into a consent agreement with the county, admitting partial responsibility for the code violations and agreeing to retain environmental consultant, Enviropact, to conduct testing on the site to determine the extent of the contamination.
Subsequent to this administrative action, the county filed a complaint against Davidson, Futura, Lone Star, and Seaboard (defendants) seeking injunctive and other relief for alleged violations of the anti-pollution and nuisance ordinances of the Dade County Code. A few months later, the county served defendants with a formal administrative order, advising the parties of the extensive soil and ground water pollution on the site and requiring the immediate removal of toxic sludge located in certain areas on the site; these "hot spots" contain high concentrations of the contaminants. The county then filed a Motion for Preliminary Injunctive Relief against all of the defendants, seeking removal of the toxic sludge and requiring further testing in compliance with the previously issued administrative order. After conducting a hearing on the motion, the trial court entered an Order Granting Preliminary Injunctive Relief. The trial court found:
(a) Irreparable harm to the public health, safety, and welfare has occurred and will continue to occur unless injunctive relief is granted.
(b) Defendants Lone Star Building Centers (Eastern), Inc., Seaboard System Railroad, Inc., Stanley S. Davidson, individually, and Futura's Coral Way Properties I, Ltd., have violated and continue to violate Sections 24-11(1)(a), (b) and (c) of the Code of Metropolitan Dade County, 24-14 of the Code of Metropolitan Dade County, and 24-26 of the Code of Metropolitan Dade County, Florida, and therefore irreparable injury has occurred and continues to occur as a matter of law. Harvey v. Wittenberg, 384 So.2d 940 (Fla.3d DCA 1980); State v. Samscot Enterprises, Inc., 297 So.2d 69 (Fla.4th DCA 1974); Rich v. Ryals, 212 So.2d 641 (Fla.1968). Plaintiff has therefore demonstrated a substantial likelihood of success on the merits.
(c) The violations aforesaid consist, in part, of toxic sludge located on the subject property which must be expeditiously and safely removed from the property and disposed of in accordance with all applicable laws.
(d) The Court specifically finds that the protection of the drinking water supply of the citizens of this community far outweighs any alleged interests of any or all of the aforesaid defendants. The toxic sludge in its present location poses a serious threat to the waters of Dade County and the health, safety, and welfare of the community which depends upon those waters for its potable water supply.
(e) The Court finds that the evidence adduced at the aforesaid hearing clearly indicates that other areas on the subject property are in violation of the aforesaid provisions of the Code of Metropolitan Dade County, Florida, and similarly may pose a serious threat to the waters of Dade County and the health, safety and welfare of the community which depends upon those waters for its potable water supply. Similarly, protection from this threat to the drinking water supply of the citizens of this county clearly outweighs any alleged interests of any or all of the aforesaid defendants.
(f) Preliminary injunctive relief is clearly in the public interest, and the failure to grant such relief would result in further injury to the public. Wilson v. Sandstrom, 317 So.2d 732 (Fla.1975); Dept. of Business Regulation v. Provende, Inc., 399 So.2d 1038 (Fla.3d DCA 1981).
Based upon these findings, the trial court ordered, in pertinent part, the following injunctive relief:
(a) The aforesaid Defendants shall forthwith jointly retain the services of Enviropact, Inc., as the primary consultant and contractor to accomplish the expeditious and safe removal, transportation and disposal of the toxic sludge on the subject property ....
(b) The aforesaid Defendants shall forthwith and until further Order of this Court retain the services of Enviropact, Inc. as the primary consultant and contractor to accomplish such further testing as may be reasonable and necessary to determine the extent and nature of the ground and water pollution in the other areas of the subject property. Said testing shall be accomplished no later than sixty (60) days from the date of this Order.
Upon motion by the county, the trial court subsequently entered an order...
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