The Law of Environmental Contamination

A City of St. Petersburg Economic Development Workshop

October 3, 2012

Michael R. Goldstein, Esq.

The Goldstein Environmental

Law Firm, P.A.

mgoldstein@goldsteinenvlaw.com

Office: (305) 777-1682

Cell: (305) 962-7669

THE GOLDSTEIN ENVIRONMENTAL LAW FIRM, P.A.

Transactions, Due Diligence, Development, Brownfields, Cleanups & Compliance

_____________________________________________________________

One Southeast Third Avenue, Suite 2120

Miami, Florida 33131

Telephone: (305) 777-1680

Facsimile: (305) 777-1681

www.goldsteinenvlaw.com

Topics and Themes Covered

Environmental liability scheme has serious financial, regulatory, construction, operational, and existential

implications

Environmental liability is broad and default defenses are narrow

Pendulum of unintended consequences is swinging in your favor

New statutory schemes, regulatory programs, legal tools and structures, and administrative programs to turn risk into reward

“Rise and rise again until lambs become lions”

Metrics & case studies prove the theory

This can be you

This should be you

3

INTRODUCTION TO

ENVIRONMENTAL LIABILITY What does it mean to be “liable?”

Who is legally responsible

• Not necessarily who did it!

• Who has to pay to clean up (remediate)

What is environmental liability?

Soil contamination

Groundwater contamination

Drinking water

Surface waters/sediments

Construction effluent

Air emissions

Vapors

\

SOURCES OF

ENVIRONMENTAL LIABILITY What are the sources of environmental liability?

Laws

• Federal

• State

• Local (county, city)

Implementing regulations

• Interpret the laws so they can be applied

• Includes permitting

Common law – judges’ opinions

• “Nuisance”

• Trespass

• Unjust Enrichment

POTENTIAL SOURCES OF

CONTAMINATION In Florida, there are many potential sources of

soil and groundwater contamination.

Some examples:

Leaking storage tanks (USTs and ASTs)

Spills and industrial discharges

Unsuitable fill material

Improper disposal of waste chemicals

Agricultural use of fertilizers and

pesticides

Naturally occurring metals

Urban background contamination

Hazardous building materials

ENVIRONMENTAL LIABILITY

UNDER

FEDERAL LAW

Environmental Liability and Redevelopment

7

FEDERAL ENVIRONMENTAL

LIABILITY

Comprehensive Environmental

Response, Compensation, and Liability

Act (CERCLA, enacted 1980) – aka

“Superfund”

Serves as a model for state and local

laws – these are more stringent than

the federal law

Environmental Liability

and Redevelopment 8

CERCLA – POTENTIALLY RESPONSIBLE

PARTIES (“PRPs”)

Current owner and operator

Owner of the land or facility, even if leasing it to someone else to use

“operator” includes persons, corporate or individual, who exert actual

control over waste handling and disposal

Former owner/operator at the time of disposal

One who arranges for transport or disposal – “generator”

Sending waste offsite does not rid you of liability

One who transports for disposal

Environmental Liability

and Redevelopment 9

CERCLA – NATURE OF LIABILITY

“Strict Liability” – the contamination does not have to be your fault!

Retroactive – you can be liable for conduct that was formerly legal

Joint and Several – if more than one PRP, the EPA can collect all

cleanup costs against any one of them

Terms “facility,” “hazardous substance” and “release” all defined

broadly

No minimum amount of release required to trigger liability

Owner/Operator Liability

Operator liability through development and construction activities

Environmental Liability

and Redevelopment 10

CERCLA – LIMITED DEFENSES

Act of God

Act of War

Third Party Defense

Innocent Purchaser

Bona Fide Prospective Purchaser (“BFPP”)

Miscellaneous exceptions/defenses

De minimis – your part was too small to count

migration from offsite – your property was affected by contamination

that originated on another site

Environmental Liability

and Redevelopment 11

RCRA

Resource Conservation and Recovery Act (“RCRA”)

“Cradle to grave” program designed to ensure proper

disposal of hazardous wastes at licensed facilities

• The generation, transportation, treatment, storage,

and disposal of hazardous waste.

Complex regulatory program that includes permitting and

transportation requirements

Environmental Liability

and Redevelopment 12

HOW RCRA RELATES TO

REDEVELOPMENT

1. Corrective Action – EPA can order remediation of contamination

at regulated facilities

2. Imminent Hazards – EPA and/or private parties can ask the

courts to require cleanup of contamination that poses an

“imminent and substantial endangerment” to human health or the

environment.

3. Underground Storage Tanks (“USTs”) – Regulated under RCRA

due to potential to leak and contaminate groundwater.

Environmental Liability

and Redevelopment 13

ENVIRONMENTAL LIABILITY

UNDER

FLORIDA LAW

Sources of Statutory Liability

under Florida Law 376.313. F.S. Liabilities and defenses of facilities.

(3) Except as provided in s. 376.3078(3) and (11), nothing contained in ss. 376.30-376.317 prohibits

any person from bringing a cause of action in a court of competent jurisdiction for all damages

resulting from a discharge or other condition of pollution covered by ss. 376.30-376.317.

Nothing in this chapter shall prohibit or diminish a party’s right to contribution from other parties jointly

or severally liable for a prohibited discharge of pollutants or hazardous substances or other pollution

conditions.

Except as otherwise provided in subsection (4) or subsection (5), in any such suit, it is not necessary

for such person to plead or prove negligence in any form or manner. Such person need only plead and

prove the fact of the prohibited discharge or other pollutive condition and that it has occurred.

The only defenses to such cause of action shall be those specified in s. 376.308treatment facilities or

sites selected by such person,

Sources of Statutory Liability

under Florida Law 376.313. F.S. Liabilities and defenses of facilities.

(4) In any civil action . . . against the owner or operator of a petroleum storage system for damages

arising from a petroleum storage system discharge, the provisions of subsection (3) shall not apply if it

can be proven that, at the time of the discharge:

(a) The alleged damages resulted solely from a discharge from a petroleum storage system which

was installed, replaced, or retrofitted, and maintained, in a manner consistent with the construction,

operation, repair, and maintenance standards established for such systems under chapter 62-761,

Florida Administrative Code, as that chapter may hereafter be amended.

(b) A leak detection system or systems or a monitoring well or wells were installed and operating in a

manner consistent with technical requirements of chapter 62-761, Florida Administrative Code, as that

chapter may hereafter be amended; and

(c) All inventory, recordkeeping, and reporting requirements of chapter 62-761, Florida Administrative

Code, as that chapter may hereafter be amended, have been and are being complied with.

Any person bringing such an action must prove negligence to recover damages under this subsection.

For the purposes of this subsection, noncompliance with this act, or any of the rules promulgated

pursuant hereto, as the same may hereafter be amended, shall be prima facie evidence of negligence.

Sources of Statutory Liability

under Florida Law 376.308. F.S. Liabilities and defenses of facilities.

(1) In any suit instituted by the department under ss. 376.30-376.317, it is not necessary to plead or prove

negligence in any form or matter. The department need only plead and prove that the prohibited discharge or

other polluting condition has occurred. The following persons shall be liable to the department for any

discharges or polluting condition:

(a) Any person who caused a discharge or other polluting condition or who owned or operated the facility, or

the stationary tanks or the nonresidential location which constituted the facility, at the time the discharge

occurred.

(b) In the case of a discharge of hazardous substances, all persons specified in s. 403.727(4).

The owner and operator of a facility;

Any person who at the time of disposal of any hazardous substance owned or operated any facility

at which such hazardous substance was disposed of;

Any person who, by contract, agreement, or otherwise, arranged for disposal or treatment, or

arranged with a transporter for transport for disposal or treatment, of hazardous substances owned

or possessed by such person or by any other party or entity at any facility owned or operated by

another party or entity and containing such hazardous substances; and

Any person who accepts or has accepted any hazardous substances for transport to disposal or

treatment facilities or sites selected by such person,

Sources of Statutory Liability

under Florida Law

376.308(4). F.S. Liability pursuant to this chapter shall be joint and

several. However, if more than one discharge occurred and the damage is

divisible and may be attributed to a particular defendant or defendants, each

defendant is liable only for the costs associated with his or her damages.

The burden shall be on the defendant to demonstrate the divisibility of

damages.

Sources of Statutory Liability

under Florida Law

376.82(5), F.S. Effective July 1, 1996, and operating retroactively to March 29,

1995, notwithstanding any other provision of law, judgment, consent order, order, or

ordinance,

no person who owns or operates a facility or who otherwise could be responsible for

costs as a result of contamination eligible for restoration funding from the Inland

Protection Trust Fund

shall be subject to administrative or judicial action, brought by or on behalf of the

state or any local government or any other person,

to compel rehabilitation in advance of commitment of restoration funding in

accordance with a site’s priority ranking pursuant to s. 376.3071(5)(a) or to pay for

the costs of rehabilitation of environmental contamination resulting from a discharge

of petroleum products that is eligible for restoration funding from the Inland Protection

Trust Fund.

Sources of Statutory Liability

under Florida Law

376.82(5), F.S. (continued)

For purposes of chapter 95, a cause of action to compel rehabilitation of environmental

contamination at a facility resulting from a discharge of petroleum products that is eligible for

restoration funding, or to compel payment of costs for

In the event of a new release, the facility operator shall be required to abate the source of the

discharge.

If free product is present, the operator shall notify the department, which may direct the removal of

free product where prior approval of the scope of work and costs has been granted by the

department.

Nothing herein shall preclude any person from bringing civil action for damages or

personal injury, not to include the cost of restoration or the compelling of restoration in

advance of the state’s commitment of restoration funding in accordance with a site’s

priority ranking pursuant to s. 376.3071(5)(a).

Sources of Statutory Liability

under Florida Law Section 403.727 – “mini RCRA”

Gives Florida Dept. of Environmental Protection authority to

respond to releases of hazardous substances

• Potentially liable parties include hazardous waste

generator, transporter, or facility owner or operator

• Limited defenses:

Act of God, war, government, third party

Generator who contracted with licensed disposal facility

ENVIRONMENTAL LIABILITY UNDER LOCAL

LAW

Chapter 24 of Miami-Dade County Code

Legal, beneficial, or equitable interest standard

Chapter 27 of Broward County Code

Independent enforcement and penalties authority

Additional benefit of BSRA – merge state and local enforcement

authority

Broward County

Hillsborough County

Miami-Dade County