• A leak detection system of monitoring wells were installed and operating in a manner consistent with the technical requirements of DEP rules.

• All inventory, record keeping, and reporting requirements of DEP rules were met and being complied with.

FINDINGS

The staff report found that immunity from civil actions likely encourages compliance ahead of scheduled deadlines, thereby protecting the environment. The law stipulates that an owner or operator must be in compliance at the time of discharge to qualify for the immunity regardless of the specified deadline. Some department rules have extended deadlines, such as the requirement for secondary containment in 2009. Installing devices like tanks with secondary containment earlier than required will prevent further discharge from a leaking site or eliminate a possible discharge. The department, however, was unaware of any cases where the provisions of the law have been used as a defense. Nonetheless, any attempts at early compliance resulting from the provision would seem to benefit the environment.

Owners covered by the immunity from civil actions might be more inclined to report discharges, and therefore remedial action might occur sooner. Notably, the tank regulatory rules of DEP exceed federal requirements. Consequently, any owners or operators in compliance with DEP rules have a decreased potential for harmful discharges. However, when a discharge occurs, those owners/operators in compliance and protected by the immunity may report the discharge sooner because they are less worried about third party liability. When the department is made aware of a discharge, remedial steps can be taken to prevent further environmental damage.

Dry-cleaning Contamination Cleanup Program

In 1994, the Legislature enacted the dry-cleaning contamination cleanup program which was modeled somewhat after the underground petroleum storage tank program. Unlike the underground petroleum storage tank cleanup program, the dry-cleaning site cleanup program was never designed as a reimbursement program without prior DEP approval of costs. The program is handed primarily from a 2 percent gross receipts tax which is levied on dry cleaning facilities and a $5-per-gallon tax on perchloroethylene (PERC) used by dry-cleaners.

The gross revenue from these taxes is approximately $8 million a year. These moneys are deposited into the Water Quality Assurance Trust Fund and are to be used to pay for the cleanup of contaminated dry-cleaning sites. Depending on when application for the program was made, certain deductibles apply. Applications for the program may be made through December 31, 2005. Until that time, it is difficult to determine the actual number of sites which may be ultimately eligible for cleanup under the program.

Since 1983, there has been an increased focus and dedication toward cleaning up sites contaminated by hazardous wastes, hazardous substances, and other pollutants in order to protect Florida's drinking water supply and it's fragile natural resources. The 1983 Water Quality Assurance Act established the Water Quality Assurance Trust Fund to provide a source of funding for hazardous waste contaminated sites.

In 1986, the Legislature further acknowledged that a major threat To Florida's drinking water was caused by contamination from leaking underground petroleum storage Systems. As a result, the Legislature created the Inland Protection Trust Fund to finance the clean up of petroleum contaminated Sites throughout Florida

In 1994, serious concerns were expressed regarding the contamination and potential health and environmental risks as a result of the discharge of solvents commonly used in the dry-cleaning process. Due to the nature of dry-cleaning solvents, cleanup of these types of contaminated sites was expected to be both difficult and costly. As a result, small, independent owners of dry-cleaning facilities may not have the financial resources to investigate, clean up, and monitor these sites. Dry-cleaning solvents are considered to be hazardous substances under both state and federal law; therefore, the owner or operator of a dry cleaning facility may be subject to third party liability as a result of damages resulting from discharge of dry-cleaning solvents. Dry-cleaning solvent contaminated sites were not eligible for cleanup under the underground petroleum storage tanks program, and the Water Quality Assurance Trust Fund did not have the financial resources to address the problem. As a result, the 1994 Legislature established the dry-cleaning contamination cleanup program, which was, modeled somewhat after the underground petroleum storage tank program.

PERC evaporates when exposed to air and dissolves only slightly when mixed with water. Most releases of PERC to the environment are to the air. This is why the EPA, pursuant to the Clean Air Act Amendments of 1990, regulates the emissions of PERC as one of 189 toxic chemicals. When a PERC release occurs on the ground, it does not bind well with the soil and can move through the ground and into the ground water, making cleanup costly and difficult.

The first 85 sites are now nearing the completion of the first task in the rehabilitation process. As more experience is gained cleaning up and remediating those sites, it is anticipated that both the remediation costs and the time necessary to clean up these sites will decrease. To further these efforts, the DEP needs to have clear and specific statutory direction to use innovative approaches to cleanup efforts and the authority to use RBCA principles for these sites. Although the ultimate penalty for failing to register a dry-cleaning facility with the DEP is ineligibility for the cleanup program, penalties for failure to register with the DEP should be imposed to assure that these facilities promptly register and pay the appropriate registration fees timely. The time period in which a facility may apply to the program should be shortened to December 31, 1998, in order to provide more predictability as to the number of sites requiring rehabilitation and bring some closure to the program and assure that the state is committed to cleaning up only contamination that has occurred prior to the requirements for secondary containment. The concept of gross negligence should be clarified for purposes of eligibility determinations for the program. In order to meet the legislative intent of maximizing clean-ups, additional incentives should be provided to encourage voluntary clean up. Such incentives could include tax incentives and streamlining and expediting the clean-up approval process. The DEP's staffing of the program should be realigned with the actual revenues in order to maximize the funds available.