ARTICLES

   FLORIDA CASE LAW UPDATE
       Robert A. Manning and T. Kent Wetherell, II.,
        Hopping Green Sams & Smith, P.A.
        (September, 1997)  

ENVIRONMENTAL/PERMITTING CASES

FDEP Must Prove that Groundwater Contamination was, In Fact, Caused by Release of Contaminates from a Facility to Impose Liability on the Owners of that Facility, and FDEP Cannot Recover Investigative Costs Under Section 403.727(4), Florida Statutes, Unless it Provides Notice of Its Intent to Seek Such Costs. Belleau v. FDEP, 22 Fla.L.Weekly D1576 (Fla. 1st DCA June 27, 1997).

Baal owned and operated a drycleaning establishment in downtown Pensacola. The Florida Department of Environmental Protection (FDEP) sought to impose liability on Baal for groundwater contamination allegedly caused by the release of perchlorethylene (PCE) from Baal's facility. The uncontroverted evidence in the administrative proceeding challenging FDEP's notice of violation was that Baal's facility could not have caused the contamination. Based upon this evidence, the hearing officer concluded that FDEP failed to adduce sufficient evidence that Baal's facility caused the contamination.

Notwithstanding this finding, FDEP's Final Order imposed liability on Baal for the PCE contamination. The Final Order was based upon the premise that FDEP need not prove a release from Baal's facility since it had shown that the PCE contamination existed downgradient of Baal's facility, PCE was found at Baal's facility and Baal had identified no other possible source of the PCE contamination. From these facts, FDEP concluded that "the only inference which could possibly be drawn is that [Baal's] tank is the source." FDEP's Final Order also imposed investigative costs against Baal even though FDEP's notice of violation did not provide notice of its intent to seek recovery of those costs.

The First DCA reversed and remanded to FDEP with directions to enter a final order consistent with the recommended order. The court held that FDEP erred in rejecting the hearing officer's findings of fact since they were supported by substantial competent evidence. The court also held that FDEP's failure to provide notice in its charging instruments of its intent to seek recovery of investigative costs precluded FDEP from imposing such costs on Baal.

Criminal Charges Based on Willful Violation of FDEP Permit Conditions are Not Unconstitutional. Florida v. Avatar Development Corp., 22 Fla.L.Weekly D1740 (Fla. 4th DCA July 16, 1997).

Appellant, the State of Florida, brought criminal charges against Avatar, and Avatar's vice president, for willful violations of a dredge and fill permit issued by the Florida Department of Environmental Protection (FDEP). The trial court dismissed these criminal charges as unconstitutional on grounds that no administrative agency is allowed to impose a sentence of imprisonment, separation of powers, and violation of due process.

The Fourth DCA reversed the dismissal and remanded the case back to the trial court, answering each of the grounds for dismissal in turn. First, the Fourth DCA held that the State of Florida, and not FDEP brought the charges, and therefore there was no violation of the constitutional prohibition against an administrative agency bringing criminal charges. Second, the Fourth DCA held that FDEP properly exercised its administrative powers in establishing rules and permit conditions governing dredge and fill activities, and that the statutory provisions authorizing FDEP to establish these rules and permit conditions (§§ 403.161(1)(b) and 403.(5), Florida Statutes) do not constitute an unlawful delegation of authority. Third, the Fourth DCA stated that the permittee had actual notice of the potential criminal penalties for violations of the permit conditions, via the permit itself and the specific statutory provisions for Chapter 403, and therefore there was no violation of due process requirements.

While Chapter 403 Permits Local Governments to Control the Zoning of Hazardous Waste Facilities and Impose Conditions to Protect Health and Safety, Imposition of a Local Need Requirement Conflicts with Chapter 403. City of Jacksonville v. American Environmental Services, Inc., 22 Fla.L.Weekly D1897 (Fla. 1st DCA Aug. 5, 1997).

Jacksonville's certificate of need (CON) ordinances required a determination of need regarding proposed hazardous waste facilities and additionally required that the waste handled be only of a type generated in Duval County. The First DCA upheld the circuit court's ruling that as applied to AES's proposed hazardous waste transfer station, Jacksonville's CON land use ordinances are in conflict with and thus are pre-empted by Chapter 403, Florida Statutes. The First DCA found conflict pre-emption based on construction of Chapter 403 as a whole, the legislatively expressed need for hazardous waste facilities, and the prohibition of any local regulation of hazardous waste more stringent than state regulations.

Untimely Compliance with an Order to Remediate does not Preclude Participation in the Dry-cleaning Cleanup Program. Dade County v. Redd's Cleaners, DOAH Case No. 96-3571 (FDEP Final Order June 27, 1997).

The Florida Department of Environmental Protection adopted a recommended order that a dry-cleaning facility's alleged failure to comply with Dade County Department of Environmental Resources Management's order to remediate solvent contamination in a timely manner does not per se constitute gross negligence sufficient to preclude participation in the dry-cleaning contamination cleanup program. According to FDEP, liberal interpretation of the dry-cleaning cleanup program is required by the Legislature's intent to provide funding to promote prompt cleanups that might otherwise be delayed by issues of disputed liability. Dade County filed a notice of appeal to the Third DCA on July 22, 1997.

FDEP's Arsenic Cleanup Goals in Memorandum on Soil Cleanup Goals for Florida are Unenforceable Against a Permit Applicant Because They Violate the Requirement That all Agency Statements of General Application be Promulgated as Rules. City of Stuart v. FDEP, 19 F.A.L.R. 1461 (DOAH Final Order Dec. 9, 1996).

In September 1995 and January 1996, FDEP finalized guidance on generic residential and industrial risk-based cleanup goals for hazardous materials in soils. The Administrative Law Judge ruled that FDEP illegally applied the arsenic soil cleanup goals in the guidance as a default determination of hazardousness. FDEP's application of its arsenic goals forced the dredge and fill permit applicant to overcome the default presumption of hazardousness -- which would result in permit denial -- by either conducting a site specific risk assessment or proposing spoil management strategies acceptable to FDEP. FDEP's use of the guidance levels violated the requirement of the Administrative Procedures Act that agency statements of general applicability must be promulgated as rules. Intervenors appealed this final order to the Fourth DCA. On August 19, 1997 an order was entered giving appellee 10 days to file a response to the appellant's stay of proceedings pending settlement.

LAND USE CASE

FDEP's Efforts to Obtain Access to Property for Purposes of Installing Wells for Contamination Assessment and Remedial Action Does Not Give Rise to an Inverse Condemnation Action. FDEP v. Gibbins, 22 Fla.L.Weekly D1446 (Fla. 5th DCA June 13, 1997).

The Florida Department of Environmental Protection (FDEP) notified Gibbins that it was seeking entry onto Gibbins' land to drill, install and utilize a number of wells to investigate and remediate petroleum contamination of Gibbins' land caused by a nearby service station. Gibbins objected and claimed that FDEP's action effected a taking of his property without compensation in violation of Article X, section 6 of the Florida Constitution. The trial court agreed and awarded Gibbins over $29,000 in attorneys' fees pursuant to Sections 73.091-.092, Florida Statutes.

The Fifth DCA reversed. The court held that FDEP's administrative order providing Gibbins notice of its intent to enter the property did not "evidence an affirmative effort [by FDEP] to acquire or take title to any part of Gibbins' property, as would a petition in eminent domain." Moreover, the court held that FDEP's action did not result in an inverse condemnation because there was no physical appropriation of, or substantial loss of access to Gibbins' land since FDEP ultimately never actually entered Gibbins' land. Accordingly, the Fifth District concluded that the trial court erred in awarding attorneys' fees to Gibbins since there was neither an eminent domain proceeding nor an inverse condemnation.

Robert Manning is an Associate with Hopping Green Sams & Smith, P.A. in Tallahassee, Florida. He received his B.A. from the University of Florida and his J.D. from the University of Tennessee. Robert practices primarily in the areas of air and water quality regulation and permitting.

Kent Wetherell is an Associate with Hopping Green Sams & Smith, P.A. in Tallahassee, Florida. He received his B.A. and his J.D. from Florida State University. Kent practices in the areas of administrative law, land