May 28, 2014
The Honorable Rick Scott, GovernorState of
Dear Governor Scott:
urges you to veto HB 325, titled “Brownfields.” Florida
Section 3 of HB 325 provides an exemption from liability for property damage related to brownfield rehabilitation caused by a person who has signed a Brownfield Site Rehabilitation Agreement (BSRA) even in situations where the Person Responsible for Site Rehabilitation (PRSR) may have caused the damage by acts of commission or omission. The bill leaves a party injured by the presence of toxic contaminants without recourse to the courts and deprives them of any opportunity to be made whole; it is illogical in that it provides liability protection for property damage but not personal injury; and it extends liability protection to a class of persons that includes those who may have caused damage to others.
Specifically the bill would:
1) Grant broad immunity from property liability to a person responsible for a brownfield site rehabilitation by listing three specific actions that void the immunity and thereby extend that immunity to all other acts or failures to act. The exclusion of anything of the same class that is not included in a list is commonly known by the phrase “expressio unius est exclusio alterius” (when one or more things of a class are expressly mentioned others of the same class are excluded.) On lines 219-226 of the enrolled version of the bill three actions are listed that void liability protection:
- discharge of contaminants on the site,
- fraud in demonstrating site conditions or completing site rehabilitation of a property subject to a brownfield site rehabilitation agreement, or
- exacerbating contamination on the site.
- 376.82 (3)(b): discovery of previously unknown contamination - The contamination could be due to migration from off site (in which case it would not be the site rehabilitator’s fault), or it could be due to a lack of due diligence on the part of the site rehabilitator or his agents during the initial assessment of the property (in which case he should be legally responsible for any damages.)
- 376.82 (3)(c): failure of remediation efforts – Again, the contamination could be from off site or from a deeply buried drum that subsequently ruptures (in which case it would not be the site rehabilitator’s fault) or it could be due to incompetence, running out of money, insufficient supervision, or the like (in which case he should be legally responsible.)
- 376.82 (3)(d): a change in land use – Different land uses must meet different standards for toxics per the Statutes. Industrial sites are able to be rehabilitated to lower standards than residential sites. If a site rehabilitator cleans up a site to industrial standards and then applies for and receives a residential land classification while failing to do the additional clean up to meet residential standards, he should be legally responsible for any damages.
Under current law, a party damaged in any of these reopener scenarios is able to sue. The attorney’s fees provisions of 57.105 provide a significant disincentive to the filing of frivolous suits. But under HB 325, reopener situations in which the site rehabilitator has been delinquent, incompetent, or irresponsible would not be actionable unless the plaintiff can show fraud (a high bar) or that the site rehabilitator is responsible for the presence or worsening of the contamination.
2) Provides illogical protection from liability. Lines 227-230 make it clear that the liability protection introduced in the bill is solely for property damage. (Current law provides no liability protection for site rehabilitators from “damages to property or person”.) In either case, property or personal injury, the cause would be the same – toxic contamination. Yet the bill illogically makes a distinction between the two by providing that site rehabilitators are exempt from suits for property damage. If they are liable for personal injury, they should be equally liable for property damage.
In the case where a party could not have caused an injury, exempting them from liability does no harm to the injured party since the exempted party could not have caused the injury in the first place. But in the case where the exempted party is exempted even though they may have caused the injury because the cost to society of exacting justice from them is deemed to result in a greater injustice elsewhere, the injured party suffers a second injury – loss of access to the court.
The backers of the Brownfields bill have claimed that site rehabilitators are categorically incapable of being the cause of property damage to others because the person who contaminates a site is ineligible to become a site rehabiliatator. Hence, they claim they are entitled to liability protection. Yet they continue to accept liability for personal injury - which can only be caused by the same contamination, and they attempt to brush away the reopener scenarios where there are clear examples of their potential responsibility for damages.
They also claim the potential for lawsuits is a disincentive sufficient to prevent companies from taking on brownfield site rehabilitation projects and therefore, the cost to society is too great to allow injured parties to sue them. Yet, despite repeated requests, no list of illustrative unfair lawsuits was ever produced.
David J. Cullen
on behalf of the Sierra Club
Executive Committee Florida
David J. Cullen