Broward County Commission Regular Meeting
Director's Name: Andrew J. Meyers
Department: County Attorney
Information
Requested Action
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MOTION TO APPROVE Consent Decree (Exhibit 1) and Settlement and Cooperation Agreement (Exhibit 2) regarding the soil remediation phase of the Petroleum Products Superfund Site in substantially the proposed forms; authorize the Mayor and Clerk to execute same, subject to review and approval of the final forms for legal sufficiency by the County Attorney’s Office; and authorize the County Administrator to execute amendments that do not increase the County’s financial obligation and to take all necessary administrative and budgetary actions to implement both executed documents.
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Why Action is Necessary
Formal Board approval is necessary to approve the Consent Decree and the Settlement and Cooperation Agreement and provide the referenced authority.
What Action Accomplishes
Approves a Consent Decree and a Settlement and Cooperation Agreement in substantially the forms proposed and provides the referenced authority.
Goal Related Icon(s)
☐County Commission
☐Go Green
☐MAP Broward
Previous Action Taken
Summary Explanation/Background
This item addresses a settlement of soil pollution-related claims for the Petroleum Products Superfund site (“PPC site”), including approval of a Remedial Action Consent Decree (“Consent Decree”) between the United States and nonfederal defendants, and a Settlement and Cooperation Agreement (“Settlement Agreement”) between and among the nonfederal defendants. The PPC site is in Pembroke Park, Florida, and was operated as a waste oil processor (circa. 1950-1970) and a storage and distribution facility (until 1984).
This is the second of three phases of the PPC site remediation. The first consent decree was entered in 1991 and addressed oily waste recovery at the site. This Consent Decree addresses the required soil remediation at the site. The Settlement Agreement allocates costs among the various parties, assigning a 1.63% share to Broward County. The State of Florida has agreed to contract for and manage the required soil remediation.
Broward County’s liability as a waste generator arises from acquisition of a private transit company that sent waste oil to the site; the acquisition was part of the County developing a countywide transit system. During part of the period covered by the first consent decree, and until a few days ago, the County also owned a portion of the site due to a parcel escheating to the County in 2001. The County surplussed that parcel on June 13, 2023, and the sale of that parcel closed on May 22, 2024. To date, the County has managed to avoid owner liability or costs, and the United States has agreed to modify the Consent Decree to reflect the non-owner status of the County.
The effect of the Consent Decree is to provide protection to the defendants, including the County, from further litigation by the United States or between defendants. The Consent Decree also waives certain past and future federal costs and applies federal funds towards future costs. The Consent Decree is presented in substantially final form due to the recent sale of the County’s parcel; at the County’s request, the final form (which is pending consideration by the other parties) is expected to remove any reference to the County as an owner of property within the site.
The Settlement Agreement allocates the costs of remediation that are not covered by the applicable state cleanup program. The parties agree to pay such costs in pro rata percentage shares based on the volume of waste each party had brought to the PPC site, with Broward County allocated a 1.63% share. The County’s 1.63% allocation is unaffected by the County’s ownership status, but the County is also seeking a modification to the Settlement Agreement to reflect the recent sale of the referenced parcel.
The County has paid $168,057.57 to date toward remediation of the site (under a prior 1994 settlement and cooperation agreement). The Transportation Department has been advised that future costs are projected to be less than $362,000 (for an aggregate expected cost to the County of less than $500,000).
The proposed documents include joint and several liability for the applicable defendants, including for any required indemnification obligations. As stated during individual briefings, Superfund liability for responsible parties is joint and several under applicable law, so liability under the proposed documents and under federal law is generally consistent. Absent approval of the Consent Decree and the Settlement Agreement, the County could be exposed to additional litigation (including liability for attorneys’ fees and costs) and potentially liable for a higher share of cleanup costs.
If other settling parties fail to fund their portions of the settlement costs, the County could be liable for additional remediation expenses, although the expectation is that any additional costs would be allocated among the remaining defendants in similar proportion to the original allocation (e.g., the County’s 1.63% allocation). In comparison, the United States has been allocated 57.75% of such costs, and Miami-Dade County has been allocated 9.15%.
This item is presented after the deadline for supplemental items, and the County Attorney’s Office recommends that it not be delayed until the next regular meeting. This item was initially scheduled to appear on the Board’s June 18, 2004, meeting agenda, but the United States has requested that this item be approved by the first week in June, and the County’s recent sale of its parcel (on May 22, 2024) complicated the finalization of the documents.
The County Attorney’s Office recommends approval of this item.
Source of Additional Information
Michael C. Owens, Senior Assistant County Attorney, 954-357-7600
Fiscal Impact
Fiscal Impact/Cost Summary
The source of funds is within the Transportation Department budget. Future costs are projected to be less than $362,000.