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A lawsuit filed in federal court by Miami-Dade County to force the U.S. government to pay $250 million for ground pollution cleanup at Miami International Airport has received a boost from a judge’s early decisions in the case, an attorney for the county says. In pretrial rulings on motions this month, U.S. District Judge Jose E. Martinez found the federal government liable for contamination of at least one section of the airport that it used for military aircraft repairs. The judge granted the federal government motions to summarily strike some counts in the lawsuit but required that most counts proceed to a bench trial, which started Dec. 5 and is expected to conclude in early January. The lawsuit, based on the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), the Resource Conservation and Recovery Act (RCRA) as well as Florida environmental statutes and the Miami-Dade County Code, is one of the largest environmental actions in county history. Miami-Dade hopes to recover about $100 million for airport clean-up costs and $150 million in interest and penalties. The military used Miami International Airport for more than 30 years, beginning in 1942, for aircraft overhauls and maintenance. Hundreds of overhauls and repairs were performed there each month. But while military aircraft are largely gone, the county contends that the military and its contractors left behind vast amounts of hazardous solvents and other pollutants spilled on porous ground directly above the region’s main source of drinking water, the Biscayne Aquifer. The county filed suit in 2001 to force the federal government to pay for the cleanup, naming as the defendant the “United States of America.” Miami-Dade, which already has spent millions of dollars on various clean-up projects, says the pollutants appear to be leaching into the aquifer and endangering the water quality. The federal government claims that Miami-Dade and its private-sector tenants were largely responsible for the pollution problems at the airport. That includes one longtime tenant, defense contractor Aerodex Inc., which went bankrupt in the late 1970s and is no longer in business. Last week, the county’s lead attorney in the case, Mitchell J. Rotbert of Rockville, Md., hailed a ruling by Judge Martinez on a motion by the federal government to have sections of the county’s complaint stricken based on sovereign immunity. The judge ruled that the government may have waived its immunity in 1990 when it declared the airport a Formerly Used Defense Site (FUDS) under the Defense Environmental Restoration Program, administered by the U.S. Army Corps of Engineers. “That ruling is substantial,” Rotbert said in an interview. “By that ruling, the court has recognized that the FUDS program means something to counties and municipalities that end up having to clean up contamination left behind by the armed forces during periods of conflict and Cold War in the latter part of the 20th century.” Rotbert, formerly a partner at Greenberg Traurig, is working on the case with an associate at his firm, Sabrina Mizrachi. Greenberg Traurig partners Peter M. Gillon and Ronald W. Kleinman and associate Reed Rubenstein, all of that firm’s Washington, D.C., office, are serving as co-counsel for the county. The federal government’s lead lawyer in the case, Lewis Barr of the Department of Justice in Washington, D.C., did not return calls seeking comment. On Dec. 4, Martinez ruled on three motions that had been argued on Oct. 28. He denied a defense motion for partial summary judgment on most of the county’s liability claims. The county had introduced enough evidence of hazardous waste disposal by the government at the airport to warrant a trial, he ruled. On a second motion, the county won a split decision. In that motion, the county sought summary judgment that the federal government be held liable as a former owner of a 250-acre section on the west side of the airport, known as Miami International Air Depot. The federal government conceded that for the purposes of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, it is a former owner of 144 acres of the depot area. The government owned this area from 1943 to 1948, then leased it for Air Force use from 1948 to 1966. As a result, Judge Martinez found, the government bears strict liability “and may be forced to contribute to the costs for cleanup of hazardous waste contamination.” But the government refused to acknowledge ownership of about 100 acres of depot area for the period from 1948 on. On that land, the judge found that the government had an easement by which it could use the 100 acres but that it didn’t own the land under Florida law. On that basis, he rejected the county’s motion for summary judgment on that claim. Rotbert said that despite the county’s loss on that point involving the additional 100 acres, it is in a strong position in the trial. “By virtue of the 1948 deed, as construed by Judge Martinez, the U.S. has had the legal right to come onto the airport and conduct the cleanup, as required by Congress under the FUDS act,” Rotbert said. “And they didn’t do it.”

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