Florida Groundwater Corrective Action and Enforcement Guide

Understanding Rule 62-520.700 and Enforcement Procedures

Table of Contents

Introduction

The Florida Department of Environmental Protection has broad authority to require corrective action when groundwater violations occur. This authority exists whether or not you have a permit, making it crucial to understand when and how the Department can act.

Key Concepts

Understanding corrective action requires grasping several fundamental concepts. First, the Department’s authority is independent of permit status – they can order action even if you’re operating under a valid permit. Second, the type of corrective action depends on the urgency and severity of the situation. Third, cost-benefit analysis plays a role in non-imminent situations but never when there’s immediate danger. Fourth, corrective action can range from simple operational changes to complete aquifer remediation. Finally, failure to comply can result in significant penalties and legal action.

Who Needs This Guide

This guide serves facility operators with groundwater discharges, environmental managers facing violations, consultants designing remediation systems, attorneys handling enforcement cases, and property owners with contamination issues.

Department Authority

Broad Enforcement Powers

Rule 62-520.700 grants the Department sweeping authority to protect groundwater. This authority stems from Florida’s constitutional mandate to protect water resources and statutory requirements in Chapter 403, Florida Statutes.

The Department can order corrective action in several situations: when monitoring shows violations, when complaints trigger investigations, during routine inspections, or when reviewing permit applications. The key phrase in the rule is “whether or not an installation is operating under a currently valid Department permit” – meaning permit compliance doesn’t shield you from corrective action orders.

No Permit Defense

Many operators mistakenly believe that having a valid permit protects them from enforcement. This is false. Your permit authorizes certain discharges under specific conditions, but if those discharges cause unexpected problems, the Department can still require corrective action. Similarly, if monitoring reveals impacts beyond predictions, or if new information shows previously unknown risks, the Department will act.

Relationship to Other Enforcement

Corrective action under Rule 62-520.700 is just one enforcement tool. The Department may simultaneously pursue administrative penalties under Chapter 403, civil litigation for damages, criminal prosecution for knowing violations, and permit revocation or modification. These actions are cumulative, not exclusive.

Imminent Hazard Situations

Definition of Imminent Hazard

An imminent hazard exists when discharge into groundwater represents immediate danger to public health. The Department interprets this broadly to include contamination approaching drinking water wells, pollutants entering surface waters used for recreation, toxic vapors threatening indoor air quality, and explosive or acutely toxic conditions.

Immediate Action Requirements

When the Department determines an imminent hazard exists, they will require immediate action. The word “shall” in the rule makes this mandatory – there’s no discretion or negotiation. Required actions typically include halting the discharge, implementing emergency treatment, containing the plume, notifying affected parties, and providing alternative water supplies.

Emergency Response Procedures

Upon receiving an imminent hazard order, you must act immediately. First, implement the ordered actions without delay. Document all actions taken with photos, logs, and reports. Coordinate with Department emergency response staff. Notify your insurance carrier and legal counsel. Begin planning for long-term remediation.

No Cost Considerations

In imminent hazard situations, cost is irrelevant. The Department won’t consider economic hardship, technical feasibility arguments, or business disruption claims. Public safety overrides all other concerns. Even bankruptcy doesn’t excuse compliance with emergency orders.

Non-Imminent Violations

Triggering Conditions

Non-imminent corrective action applies when no immediate danger exists but problems are developing. Common triggers include plumes approaching the zone of discharge boundary, contamination moving toward drinking water sources, threatened impairment of designated uses, and likely future violations based on current trends.

Department Evaluation Process

For non-imminent situations, the Department conducts a more deliberate evaluation. They assess the severity and extent of contamination, review all available monitoring data, consider hydrogeologic conditions, evaluate potential receptors, and analyze feasible remediation options.

Corrective Action Orders

Non-imminent orders typically provide compliance schedules rather than requiring immediate action. Orders may include deadlines for submittal of corrective action plans, implementation schedules for remediation, interim measures to prevent further spread, enhanced monitoring requirements, and progress reporting obligations.

Corrective Action Factors

Seven Evaluation Factors

The rule specifies seven factors the Department must consider when determining appropriate corrective action for non-imminent violations:

Factor 1: Plume Direction The Department examines where contamination is heading relative to water supplies. Key considerations include proximity to public water supply wells, private wells downgradient, future wellfield areas, and surface water connections.

Factor 2: Plume Size Both horizontal and vertical extent matter. The Department evaluates surface area affected, depth of penetration, volume of contaminated water, and mass of contaminants present.

Factor 3: Migration Rate How fast the plume moves affects urgency. Factors include groundwater velocity, contaminant mobility, retardation factors, and time to reach receptors.

Factor 4: Toxicity Level The danger posed by contaminants drives response. Considerations include acute vs. chronic effects, carcinogenic potential, concentration vs. standards, and cumulative impacts.

Factor 5: Dilution Rate Natural attenuation affects long-term risks. The Department examines dispersion characteristics, degradation rates, dilution factors, and time to reach safe levels.

Factor 6: Cost-Benefit Analysis For non-imminent situations, economics matter. The analysis includes remediation costs, value of protected resources, technical feasibility, and time requirements.

Factor 7: Water Use Current and future uses affect priorities. Important factors include existing water supplies, planned future uses, environmental uses, and recreational uses.

Balancing Process

The Department weighs these factors holistically, not mechanically. A highly toxic but small plume might require aggressive action, while a large but low-toxicity plume might allow natural attenuation. The key is preventing unacceptable risks while being practical about solutions.

Types of Corrective Actions

Source Control

The first priority is always stopping further contamination. Methods include repairing leaking equipment, improving treatment systems, modifying operational practices, installing secondary containment, and eliminating the discharge entirely.

Active Remediation

When source control isn’t enough, active cleanup may be required. Common technologies include pump and treat systems, air sparging/soil vapor extraction, in-situ chemical treatment, bioremediation enhancement, and permeable reactive barriers.

Containment Strategies

Sometimes containing contamination is more practical than removal. Options include slurry walls or sheet piling, hydraulic containment via pumping, monitored natural attenuation, and institutional controls.

Monitoring and Assessment

Enhanced monitoring often accompanies other actions. Requirements typically include additional monitoring wells, increased sampling frequency, expanded parameter lists, plume delineation studies, and regular progress reports.

Alternative Water Supplies

When contamination threatens water supplies, you may need to provide alternatives. This could include bottled water delivery, point-of-use treatment systems, new well installation, or connection to public water systems.

Enforcement Process

Initial Discovery

Violations are discovered through various means: routine compliance monitoring, complaint investigations, permit application reviews, or accidental discoveries. Once identified, the Department begins formal evaluation.

Notice of Violation

The Department typically issues a Notice of Violation (NOV) describing the problem, citing applicable rules, requiring specific actions, and setting compliance deadlines. This formal notice triggers legal obligations and deadlines.

Consent Orders

Many cases resolve through Consent Orders – negotiated agreements that include agreed-upon facts, corrective action requirements, compliance schedules, stipulated penalties, and dispute resolution procedures. These provide certainty while avoiding litigation.

Administrative Orders

If negotiations fail, the Department issues unilateral Administrative Orders. These are immediately effective and legally binding. Violation of an Order subjects you to additional penalties and potential judicial enforcement.

Judicial Enforcement

For serious violations or non-compliance, the Department may seek court intervention. This can result in injunctions requiring specific actions, civil penalties up to $10,000 per day, recovery of Department costs, and potential criminal prosecution.

Appeal Rights

You have rights to challenge Department actions through administrative hearings on factual disputes, appeals of final orders, and stays pending appeal (rare). However, appeals don’t automatically stay compliance obligations.

Compliance Strategies

Proactive Measures

The best strategy is preventing violations. Key measures include regular equipment maintenance, comprehensive monitoring programs, early warning systems, contingency planning, and staff training.

Early Problem Detection

Catching problems early reduces corrective action scope. Implement statistical analysis of monitoring data, trend identification procedures, investigation protocols for anomalies, and regular third-party audits.

Cooperation with Department

When problems arise, cooperation yields better outcomes. Best practices include immediate notification of problems, transparent communication, prompt response to requests, and good faith compliance efforts.

Documentation Practices

Thorough documentation supports your position. Maintain complete operational records, all monitoring data, maintenance logs, correspondence files, and photographic documentation.

Expert Support

Complex situations require expert help. Consider hiring environmental consultants, remediation contractors, legal counsel, and hydrogeologic experts. Their expertise can save money long-term.

Cost Considerations

Typical Corrective Action Costs

Costs vary dramatically based on contamination extent and chosen remedy:

Factors Affecting Costs

Major cost drivers include area and depth of contamination, contaminant types and concentrations, hydrogeologic complexity, cleanup standards required, and time constraints imposed.

Funding Options

Potential funding sources include insurance coverage (check policies carefully), state cleanup funds (petroleum and drycleaning), potentially responsible party contributions, and tax incentives for brownfield redevelopment.

Cost Optimization

Reduce costs through early action to limit spread, innovative technology selection, phased implementation approaches, performance-based contracting, and regulatory flexibility where appropriate.

Financial Assurance

The Department may require financial assurance for long-term corrective actions. Options include surety bonds, insurance policies, trust funds, letters of credit, and corporate guarantees.

Case Studies

Case 1: Industrial Facility Solvent Release

An electronics manufacturer discovered chlorinated solvent contamination extending beyond their property. The plume threatened a municipal wellfield one mile away.

Department Response: Ordered immediate source control, required interim wellhead treatment, mandated aggressive remediation, and established strict timelines.

Outcome: Five-year remediation program costing $3 million. Facility remained operational throughout. Municipal wells protected. Compliance achieved through Consent Order.

Lessons: Early detection and cooperation reduced ultimate costs. Protecting municipal supplies was non-negotiable. Phased approach allowed continued operations.

Case 2: Gasoline Station Release

A station’s monitoring detected benzene exceeding standards at the property boundary. No immediate receptors, but residential areas 1,000 feet downgradient.

Department Response: Required enhanced monitoring, approved monitored natural attenuation, mandated deed restrictions, and set performance standards.

Outcome: Ten-year monitoring program with declining concentrations. Natural attenuation successful. Total cost under $200,000.

Lessons: Risk-based approach saved money. Good site characterization essential. Long-term monitoring commitment required.

Case 3: Wastewater Treatment Plant

A municipal plant’s monitoring showed nitrate plume expanding beyond predicted boundaries, approaching private wells.

Department Response: Required operational modifications, mandated advanced treatment upgrades, ordered alternative water for affected residents, and imposed strict compliance schedule.

Outcome: $5 million treatment upgrade. Two-year implementation. Six homes connected to city water. Successful compliance achieved.

Lessons: Municipal facilities not exempt from enforcement. Protecting private wells paramount. Public communication critical.

Conclusion

Corrective action authority gives the Department powerful tools to protect Florida’s groundwater resources. Understanding this authority and preparing for potential enforcement helps facilities manage risks and respond effectively when problems arise. The key to successful outcomes lies in prevention where possible, early detection and response when problems occur, cooperation with regulators throughout the process, and commitment to protecting human health and the environment.

Remember that corrective action orders are not suggestions – they carry the full force of law. Failure to comply can result in escalating enforcement, mounting penalties, and potential criminal liability. However, facilities that work cooperatively with the Department often find practical, cost-effective solutions that protect the environment while allowing continued operations.

The investment in proper monitoring, maintenance, and compliance far outweighs the costs of corrective action and enforcement. By understanding your obligations and maintaining proactive environmental management, you can avoid the disruption, expense, and liability that comes with groundwater violations.