Dodging a bullet on contaminated site cleanup costs

Lazaro Aleman
ECB Publishing, Inc.

After months of negotiations between county representatives and those of the Florida Department of Environmental Protection (FDEP) over a local site with petroleum contamination, the state agency finally acceded to the county's argument that the latter should not be held responsible for the cleanup costs.
On Thursday evening, Dec. 19, Attorney Scott Shirley, who has been negotiating the issue with the FDEP on behalf of the county, presented the Jefferson County Commission with an agreement from the FDEP absolving the county of the cleanup costs for the former Thompson gas station at 1240 N. Jefferson St.
Attached to the agreement was a letter dated Thursday, Dec. 5, and addressed to County Coordinator Barwick Parrish. The letter, from Natasha Limpkin, administrator for the FDEP petroleum restoration program, informed the county of the agency's decision. Limpkin cited the state statute that exempted a government entity of liability for the cleanup of a contaminated property, provided that the property reverted to the county upon the owner's death because of a lack of legal heirs. Which was the argument that Shirley and county officials had been making all along.
The letter from Limpkin stated in part: “Per Section 197.502(8)(a), F.S., when a property escheats to the county under this subsection, the county is not subject to any liability imposed by Chapters 3769 or 403, F.S., for preexisting soil or groundwater contamination due solely to its ownership. Therefore, Jefferson County is not responsible for the Petroleum Cleanup Participation Program (PCPP) or copayment requirements and its cost-share is zero toward the costs of the Limited Contamination Assessment Report (LCAR) and site rehabilitation. The department's cost-share is therefore 100 percent.”
Per the terms of the new agreement, the FDEP will not expend more than $1,200,000 on the site’s rehabilitation, including the $634,628.47 that it has expended on the cleanup to date.
The agreement also makes clear that the department will pursue a site assessment and remediation strategy that is the most cost-effective and it is not required to pursue a more costly or aggressive remediation strategy merely because it has not expended up, to or near, the $1,200,000 cap.
The county came into possession of the long-abandoned Thompson gas station property through the delinquent tax process, because of owed back taxes.
And although contamination had long existed on the property when the county acquired it and the FDEP had already expended more than $600,000 to remediate the contamination, the state agency determined that the county should participate financially in the continuing effort to clean up the site.
In May, the FDEP informed local officials that the parcel was eligible for more state remediation funding, provided that the county, as the new owner, entered a site access agreement for the property.
At the time, Shirley explained to the board that the agreement would allow state personnel and remediation contractors to enter the property for the purpose of conducting contamination remediation activities.
“Failure to provide access within 30 days may result in loss of remediation funding eligibility,” Shirley then told the board, adding that the site was eligible for up to $400,000 in funding.
The caveat, he warned, was that to get the money, the county was required to contribute 25 percent of the cost, or $100,000.
Shirley argued that the county wasn't responsible for the contamination, nor was it legally liable for the cleanup per Florida statute. The FDEP, however, did not buy the argument, insisting that to be eligible for the PCPP funding, the county had to satisfy the 25-percent copay.
“This issue has yet to be fully resolved,” Shirley told the commission several months back, adding that he was continuing to negotiate the matter with the FDEP.
He also informed commissioners at the time that based on FDEP water quality samplings at the site, much of the contamination had been reduced to levels that were in compliance with water quality standards. But the latest round of samplings, he said, had shown four locations where pollutant concentrations were still high.
The four locations, moreover, had the potential to affect the City of Monticello's drinking water wells, as the contamination was about a half mile away from the city's wells, Shirley said. It was this latter contamination, he said, that the FDEP wanted to remediate.
“The next step will probably be chemical injection at each of the wells,” Shirley said, explaining that the chemicals would effectively digest the pollutants in place.
“This is less expensive than the earlier remediations,” he said. “But the bad news is that they still want the county to pay 25 percent of the cost.”
Shirley reiterated that he would continue to negotiate with the FDEP to reduce the county's portion if possible. Too, he said, if the chemical injection method was used, it was estimated that the procedure and monitoring would amount to about $150,000, which would significantly lower the county's contribution.
At the time, the board approve the state remediation funding agreement, contingent on the understanding that Shirley would continue to negotiate the cost.