Senate Bill 1202e1

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  1                      A bill to be entitled

  2         An act relating to brownfields redevelopment;

  3         amending s. 376.77, F.S.; correcting a

  4         cross-reference; amending s. 376.79, F.S.;

  5         redefining terms and defining the term

  6         "secretary"; amending s. 376.80, F.S.;

  7         providing that closed military bases may be

  8         designated as brownfield areas; clarifying the

  9         job-creation criteria for the designation of a

10         brownfield site; clarifying certain terms;

11         amending s. 376.81, F.S.; deleting a

12         duplicative provision relating to the issuance

13         of no-further-action orders; amending s.

14         376.82, F.S.; providing clarification regarding

15         the eligibility of certain brownfield sites;

16         clarifying the provisions relating to the job

17         creation eligibility criteria; providing

18         liability protection for properties acquired by

19         local or state governments under certain

20         conditions; amending s. 376.83, F.S.;

21         correcting a cross-reference; amending s.

22         288.106, F.S.; providing that the wage

23         requirement criteria may be waived for a

24         designated brownfield area; requiring the

25         Director of the Office of Tourism, Trade, and

26         Economic Development to approve certain wage

27         requirement waiver requests; amending s.

28         288.107, F.S.; defining the terms "brownfield

29         area" and "brownfield site"; providing

30         legislative intent regarding the inefficient

31         use of public facilities and services in


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  1         brownfield areas; creating the Brownfield Areas

  2         Loan Guarantee Program; creating the Brownfield

  3         Areas Loan Guarantee Council; providing duties

  4         and membership; providing that not more than $5

  5         million of the investment earnings on the

  6         investment of the minimum balance of the

  7         Nonmandatory Land Reclamation Trust Fund in a

  8         fiscal year shall be at risk at any time on one

  9         or more loan guarantees, or as loan loss

10         reserves; requiring lenders seeking loan

11         guarantees from the council to follow certain

12         specified procedures; limiting the

13         circumstances under which a lender may file a

14         claim for a loss pursuant to the guaranty;

15         providing the council with certain rulemaking

16         authority; authorizing the council to receive

17         certain funds; requiring the council to file an

18         annual report to the Legislature; providing for

19         future legislative review; amending s.

20         288.9602, F.S.; providing for the redevelopment

21         of brownfield areas to be included in the

22         declaration of findings regarding economic

23         development; amending s. 288.9605, F.S.;

24         expanding the powers and duties of the Florida

25         Development Finance Corporation to authorize

26         the corporation to make determinations

27         regarding participation in certain partnerships

28         and agreements concerning the redevelopment of

29         brownfield areas and the guaranty of revenue

30         bonds, loan guarantees, or loan loss reserves;

31         requiring the Board of Regents to establish a


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  1         Center for Brownfield Rehabilitation Assistance

  2         in the Environmental Sciences and Policy

  3         Program in the College of Arts and Sciences at

  4         the University of South Florida; specifying the

  5         purpose and duties of the center; amending s.

  6         163.3187, F.S.; providing that local government

  7         comprehensive plan amendments directly related

  8         to proposed redevelopment of designated

  9         brownfield areas may be approved without regard

10         to certain statutory limits on the frequency of

11         amendments to the local comprehensive plan;

12         providing legislative findings and intent

13         regarding lienholders on brownfield property;

14         providing that certain counties and

15         municipalities may apply for designation of an

16         enterprise zone encompassing a brownfield pilot

17         project under certain circumstances; amending

18         s. 376.313, F.S.; correcting references to the

19         Florida Administrative Code; repealing s. 21,

20         ch. 86-159, Laws of Florida, relating to the

21         scheduled repeal of s. 376.313(4), F.S.;

22         providing an effective date.

23

24  Be It Enacted by the Legislature of the State of Florida:

25

26         Section 1.  Section 376.77, Florida Statutes, is

27  amended to read:

28         376.77  Short title.--Sections 376.77-376.85 376.83 may

29  be cited as the "Brownfields Redevelopment Act."

30         Section 2.  Section 376.79, Florida Statutes, is

31  amended to read:


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  1         376.79  Definitions.--As used in ss. 376.77-376.85, the

  2  term:

  3         (1)  "Additive effects" means a scientific principle

  4  that the toxicity that occurs as a result of exposure is the

  5  sum of the toxicities of the individual chemicals to which the

  6  individual is exposed.

  7         (2)  "Antagonistic effects" means a scientific

  8  principle that the toxicity that occurs as a result of

  9  exposure is less than the sum of the toxicities of the

10  individual chemicals to which the individual is exposed.

11         (3)  "Brownfield sites" means sites that are generally

12  abandoned, idled, or underused industrial and commercial

13  properties where expansion or redevelopment is complicated by

14  actual or perceived environmental contamination.

15         (4)  "Brownfield area" means a contiguous area of one

16  or more brownfield sites, some of which may not be

17  contaminated, and which has been designated by a local

18  government by resolution. Such areas may include all or

19  portions of community redevelopment areas, enterprise zones,

20  empowerment zones, other such designated economically deprived

21  communities and areas, and Environmental Protection

22  Agency-designated brownfield pilot projects.

23         (5)  "Contaminated site" means any contiguous land,

24  surface water, or groundwater areas that contain contaminants

25  that may be harmful to human health or the environment.

26         (6)  "Department" means the Department of Environmental

27  Protection.

28         (7)  "Engineering controls" means modifications to a

29  site to reduce or eliminate the potential for exposure to

30  contaminants.  Such modifications may include, but are not

31


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  1  limited to, physical or hydraulic control measures, capping,

  2  point of use treatments, or slurry walls.

  3         (8)  "Environmental justice" means the fair treatment

  4  of all people of all races, cultures, and incomes with respect

  5  to the development, implementation, and enforcement of

  6  environmental laws, regulations, and policies.

  7         (9)  "Institutional controls" means the restriction on

  8  use of or access to a site to eliminate or minimize exposure

  9  to contaminants.  Such restrictions may include, but are not

10  limited to, deed restrictions, use restrictions, or

11  restrictive zoning.

12         (10)  "Local pollution control program" means a local

13  pollution control program that has received delegated

14  authority from the Department of Environmental Protection

15  under s. 403.182 and s. 376.80(11).

16         (11)  "Natural attenuation" means the verifiable

17  reduction of contaminants through natural processes, which may

18  include diffusion, dispersion, adsorption absorption, and

19  biodegradation.

20         (12)  "Person responsible for brownfield site

21  rehabilitation" means the individual or entity that is

22  designated by the local government in its resolution

23  establishing a brownfield area to enter into the brownfield

24  site rehabilitation agreement with the department or an

25  approved local pollution control program and enters into an

26  agreement with the local government for redevelopment of the

27  site.

28         (13)  "Person" means any individual, partner, joint

29  venture, or corporation; any group of the foregoing, organized

30  or united for a business purpose; or any governmental entity.

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  1         (14)  "Secretary" means the Secretary of the Department

  2  of Environmental Protection.

  3         (15)(14)  "Site rehabilitation" means the assessment of

  4  site contamination and the remediation activities that reduce

  5  the levels of contaminants at a site through accepted

  6  treatment methods to meet the cleanup target levels

  7  established for that site.

  8         (16)(15)  "Source removal" means the removal of free

  9  product or contaminants from soil that has been contaminated

10  to the extent that leaching to groundwater has or is

11  occurring.

12         (17)(16)  "Synergistic effects" means a scientific

13  principle that the toxicity that occurs as a result of

14  exposure is more than the sum of the toxicities of the

15  individual chemicals to which the individual is exposed.

16         Section 3.  Section 376.80, Florida Statutes, is

17  amended to read:

18         376.80  Brownfield program administration process.--

19         (1)  A local government with jurisdiction over the

20  brownfield area must notify the department of its decision to

21  designate a brownfield area for rehabilitation for the

22  purposes of ss. 376.77-376.85 ss. 376.77-376.84. The

23  notification must include a resolution, by the local

24  government body, to which is attached a map adequate to

25  clearly delineate exactly which parcels are to be included in

26  the brownfield area or alternatively a less-detailed map

27  accompanied by a detailed legal description of the brownfield

28  area. If a property owner within the area proposed for

29  designation by the local government requests in writing to

30  have his or her property removed from the proposed

31  designation, the local government shall grant the request. For


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  1  municipalities, the governing body shall adopt the resolution

  2  in accordance with the procedures outlined in s. 166.041,

  3  except that the notice for the public hearings on the proposed

  4  resolution must be in the form established in s.

  5  166.041(3)(c)2. For counties, the governing body shall adopt

  6  the resolution in accordance with the procedures outlined in

  7  s. 125.66, except that the notice for the public hearings on

  8  the proposed resolution shall be in the form established in s.

  9  125.66(4)(b)2.

10         (2)(a)  If a local government proposes to designate a

11  brownfield area that is outside community redevelopment areas,

12  enterprise zones, empowerment zones, closed military bases, or

13  designated brownfield pilot project areas, the local

14  government must conduct at least one public hearing in the

15  area to be designated to provide an opportunity for public

16  input on the size of the area, the objectives for

17  rehabilitation, job opportunities and economic developments

18  anticipated, neighborhood residents' considerations, and other

19  relevant local concerns. Notice of the public hearing must be

20  made in a newspaper of general circulation in the area and the

21  notice must be at least 16 square inches in size, must be in

22  ethnic newspapers or local community bulletins, must be posted

23  in the affected area, and must be announced at a scheduled

24  meeting of the local governing body before the actual public

25  hearing. In determining the areas to be designated, the local

26  government must consider:

27         1.  Whether the brownfield area warrants economic

28  development and has a reasonable potential for such

29  activities;

30

31


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  1         2.  Whether the proposed area to be designated

  2  represents a reasonably focused approach and is not overly

  3  large in geographic coverage;

  4         3.  Whether the area has potential to interest the

  5  private sector in participating in rehabilitation; and

  6         4.  Whether the area contains sites or parts of sites

  7  suitable for limited recreational open space, cultural, or

  8  historical preservation purposes.

  9         (b)  A local government shall designate a brownfield

10  area under the provisions of this act provided that:

11         1.  A person who owns or controls a potential

12  brownfield site is requesting the designation and has agreed

13  to rehabilitate and redevelop the brownfield site;

14         2.  The rehabilitation and redevelopment of the

15  proposed brownfield site will result in economic productivity

16  of the area, along with the creation of at least 10 new

17  permanent jobs, whether full-time or part-time, which are not

18  associated with the implementation of the rehabilitation

19  agreement or an agreement, between the person responsible for

20  site rehabilitation and the local government with

21  jurisdiction, which contains terms for the redevelopment of

22  the brownfield site or brownfield area;

23         3.  The redevelopment of the proposed brownfield site

24  is consistent with the local comprehensive plan and is a

25  permittable use under the applicable local land development

26  regulations;

27         4.  Notice of the proposed rehabilitation of the

28  brownfield area has been provided to neighbors and nearby

29  residents of the proposed area to be designated, and the

30  person proposing the area for designation has afforded to

31  those receiving notice the opportunity for comments and


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  1  suggestions about rehabilitation.  Notice pursuant to this

  2  subsection must be made in a newspaper of general circulation

  3  in the area, at least 16 square inches in size, and the notice

  4  must be posted in the affected area; and

  5         5.  The person proposing the area for designation has

  6  provided reasonable assurance that he or she has sufficient

  7  financial resources to implement and complete the

  8  rehabilitation agreement and redevelopment plan.

  9         (c)  The designation of a brownfield area and the

10  identification of a person responsible for brownfield site

11  rehabilitation simply entitles the identified person to

12  negotiate a brownfield site rehabilitation agreement with the

13  department or approved local pollution control program

14  government.

15         (3)  When there is a person responsible for brownfield

16  site rehabilitation, the local government must notify the

17  department of the identity of that person. The local

18  government must at the time of the adoption of the resolution

19  notify the department of the entity that it is designating as

20  the person responsible for brownfield site rehabilitation. If

21  the agency or person who will be responsible for the

22  coordination changes during the approval process specified in

23  subsections (4), (5), and (6), the department or the affected

24  approved local pollution control program must notify the

25  affected local government when the change occurs.

26         (4)  Local governments or persons responsible for

27  rehabilitation and redevelopment of brownfield areas must

28  establish an advisory committee for the purpose of improving

29  public participation and receiving public comments on

30  rehabilitation and redevelopment of the brownfield area,

31  future land use, local employment opportunities, community


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  1  safety, and environmental justice. Such advisory committee

  2  should include residents within or adjacent to the brownfield

  3  area, businesses operating within the brownfield area, and

  4  others deemed appropriate. The advisory committee must review

  5  and provide recommendations to the board of the local

  6  government with jurisdiction on the proposed site

  7  rehabilitation agreement provided in subsection (5).

  8         (5)  The person responsible for brownfield site

  9  rehabilitation must enter into a brownfield site

10  rehabilitation agreement with the department or an approved

11  local pollution control environmental program. The brownfield

12  site rehabilitation agreement must include:

13         (a)  A brownfield site rehabilitation schedule,

14  including milestones for completion of site rehabilitation

15  tasks and submittal of technical reports and rehabilitation

16  plans as agreed upon by the parties to the agreement;

17         (b)  A commitment to conduct site rehabilitation

18  activities under the observation of professional engineers or

19  geologists who are registered in accordance with the

20  requirements of chapter 471 or chapter 492, respectively.

21  Submittals provided by the person responsible for brownfield

22  site rehabilitation must be signed and sealed by a

23  professional engineer registered under chapter 471, or a

24  professional geologist registered under chapter 492,

25  certifying that the submittal and associated work comply with

26  the law and rules of the department and those governing the

27  profession.  In addition, upon completion of the approved

28  remedial action, the department shall require a professional

29  engineer registered under chapter 471 or a professional

30  geologist registered under chapter 492 to certify that the

31  corrective action was, to the best of his or her knowledge,


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  1  completed in substantial conformance with the plans and

  2  specifications approved by the department;

  3         (c)  A commitment to conduct site rehabilitation in

  4  accordance with an approved comprehensive quality assurance

  5  plan under department rules;

  6         (d)  A commitment to conduct site rehabilitation

  7  consistent with state, federal, and local laws and consistent

  8  with the brownfield site contamination cleanup criteria in s.

  9  376.81, including any applicable requirements for risk-based

10  corrective action;

11         (e)  Timeframes for the department's review of

12  technical reports and plans submitted in accordance with the

13  agreement.  The department shall make every effort to adhere

14  to established agency goals for reasonable timeframes for

15  review of such documents;

16         (f)  A commitment to secure site access for the

17  department or approved local pollution control environmental

18  program to all brownfield sites within the eligible brownfield

19  area for activities associated with site rehabilitation;

20         (g)  Other provisions that the person responsible for

21  brownfield site rehabilitation and the department agree upon,

22  that are consistent with ss. 376.77-376.85 ss. 376.77-376.84,

23  and that will improve or enhance the brownfield site

24  rehabilitation process;

25         (h)  A commitment to consider appropriate pollution

26  prevention measures and to implement those that the person

27  responsible for brownfield site rehabilitation determines are

28  reasonable and cost-effective, taking into account the

29  ultimate use or uses of the brownfield site.  Such measures

30  may include improved inventory or production controls and

31  procedures for preventing loss, spills, and leaks of hazardous


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  1  waste and materials, and include goals for the reduction of

  2  releases of toxic materials; and

  3         (i)  Certification that an agreement exists between the

  4  person responsible for brownfield site rehabilitation and the

  5  local government with jurisdiction over the brownfield area.

  6  Such agreement shall contain terms for the redevelopment of

  7  the brownfield area.

  8         (6)  Any contractor performing site rehabilitation

  9  program tasks must demonstrate to the department that the

10  contractor:

11         (a)  Meets all certification and license requirements

12  imposed by law; and

13         (b)  Has obtained approval for the comprehensive

14  quality-assurance plan prepared under department rules.

15         (7)  The contractor must certify to the department that

16  the contractor:

17         (a)  Complies with applicable OSHA regulations.

18         (b)  Maintains workers' compensation insurance for all

19  employees as required by the Florida Workers' Compensation

20  Law.

21         (c)  Maintains comprehensive general liability and

22  comprehensive automobile liability insurance with minimum

23  limits of at least $1 million per occurrence and $1 million

24  annual aggregate, sufficient to protect it from claims for

25  damage for personal injury, including accidental death, as

26  well as claims for property damage which may arise from

27  performance of work under the program, designating the state

28  as an additional insured party.

29         (d)  Maintains professional liability insurance of at

30  least $1 million per occurrence and $1 million annual

31  aggregate.


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  1         (e)  Has the capacity to perform or directly supervise

  2  the majority of the work at a site in accordance with s.

  3  489.113(9).

  4         (8)  Any professional engineer or geologist providing

  5  professional services relating to site rehabilitation program

  6  tasks must carry professional liability insurance with a

  7  coverage limit of at least $1 million.

  8         (9)  During the cleanup process, if the department or

  9  local program fails to complete review of a technical document

10  within the timeframe specified in the brownfield site

11  rehabilitation agreement, the person responsible for

12  brownfield site rehabilitation may proceed to the next site

13  rehabilitation task. However, the person responsible for

14  brownfield site rehabilitation does so at its own risk and may

15  be required by the department or local program to complete

16  additional work on a previous task. Exceptions to this

17  subsection include requests for "no further action,"

18  "monitoring only proposals," and feasibility studies, which

19  must be approved prior to implementation.

20         (10)  If the person responsible for brownfield site

21  rehabilitation fails to comply with the brownfield site

22  rehabilitation agreement, the department shall allow 90 days

23  for the person responsible for brownfield site rehabilitation

24  to return to compliance with the provision at issue or to

25  negotiate a modification to the brownfield site rehabilitation

26  agreement with the department for good cause shown. If an

27  imminent hazard exists, the 90-day grace period shall not

28  apply. If the project is not returned to compliance with the

29  brownfield site rehabilitation agreement and a modification

30  cannot be negotiated, the immunity provisions of s. 376.82 are

31  revoked.


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  1         (11)  The department is specifically authorized and

  2  encouraged to enter into delegation agreements with local

  3  pollution control programs approved under s. 403.182 to

  4  administer the brownfield program within their jurisdictions,

  5  thereby maximizing the integration of this process with the

  6  other local development processes needed to facilitate

  7  redevelopment of a brownfield area.  When determining whether

  8  a delegation pursuant to this subsection of all or part of the

  9  brownfields program to a local pollution control program is

10  appropriate, the department shall consider the following. The

11  local pollution control program must:

12         (a)  Have and maintain the administrative organization,

13  staff, and financial and other resources to effectively and

14  efficiently implement and enforce the statutory requirements

15  of the delegated brownfields program; and

16         (b)  Provide for the enforcement of the requirements of

17  the delegated brownfields program, and for notice and a right

18  to challenge governmental action, by appropriate

19  administrative and judicial process, which shall be specified

20  in the delegation.

21

22  The local pollution control program shall not be delegated

23  authority to take action on or to make decisions regarding any

24  brownfield site on land owned by the local government.  Any

25  delegation agreement entered into pursuant to this subsection

26  shall contain such terms and conditions necessary to ensure

27  the effective and efficient administration and enforcement of

28  the statutory requirements of the brownfields program as

29  established by the act and the relevant rules and other

30  criteria of the department.

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  1         (12)  Local governments are encouraged to use the full

  2  range of economic and tax incentives available to facilitate

  3  and promote the rehabilitation of brownfield areas, to help

  4  eliminate the public health and environmental hazards, and to

  5  promote the creation of jobs and economic development in these

  6  previously run-down, blighted, and underutilized areas.

  7         Section 4.  Section 376.81, Florida Statutes, is

  8  amended to read:

  9         376.81  Brownfield site and brownfield areas

10  contamination cleanup criteria.--

11         (1)  It is the intent of the Legislature to protect the

12  health of all people under actual circumstances of exposure.

13  By July 1, 1998, the secretary of the department shall

14  establish criteria by rule for the purpose of determining, on

15  a site-specific basis, the rehabilitation program tasks that

16  comprise a site rehabilitation program and the level at which

17  a rehabilitation program task and a site rehabilitation

18  program may be deemed completed.  In establishing the rule,

19  the department shall incorporate, to the maximum extent

20  feasible, risk-based corrective action principles to achieve

21  protection of human health and safety and the environment in a

22  cost-effective manner as provided in this subsection.  The

23  rule shall also include protocols for the use of natural

24  attenuation and the issuance of "no further action" letters.

25  The criteria for determining what constitutes a rehabilitation

26  program task or completion of a site rehabilitation program

27  task or site rehabilitation program must:

28         (a)  Consider the current exposure and potential risk

29  of exposure to humans and the environment, including multiple

30  pathways of exposure.  The physical, chemical, and biological

31  characteristics of each contaminant must be considered in


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  1  order to determine the feasibility of risk-based corrective

  2  action assessment.

  3         (b)  Establish the point of compliance at the source of

  4  the contamination.  However, the department is authorized to

  5  temporarily move the point of compliance to the boundary of

  6  the property, or to the edge of the plume when the plume is

  7  within the property boundary, while cleanup, including cleanup

  8  through natural attenuation processes in conjunction with

  9  appropriate monitoring, is proceeding.  The department also is

10  authorized, pursuant to criteria provided for in this section,

11  to temporarily extend the point of compliance beyond the

12  property boundary with appropriate monitoring, if such

13  extension is needed to facilitate natural attenuation or to

14  address the current conditions of the plume, provided human

15  health, public safety, and the environment are protected.

16  When temporarily extending the point of compliance beyond the

17  property boundary, it cannot be extended further than the

18  lateral extent of the plume at the time of execution of the

19  brownfield site rehabilitation agreement, if known, or the

20  lateral extent of the plume as defined at the time of site

21  assessment. Temporary extension of the point of compliance

22  beyond the property boundary, as provided in this paragraph,

23  must include actual notice by the person responsible for

24  brownfield site rehabilitation to local governments and the

25  owners of any property into which the point of compliance is

26  allowed to extend and constructive notice to residents and

27  business tenants of the property into which the point of

28  compliance is allowed to extend. Persons receiving notice

29  pursuant to this paragraph shall have the opportunity to

30  comment within 30 days of receipt of the notice.

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  1         (c)  Ensure that the site-specific cleanup goal is that

  2  all contaminated brownfield sites and brownfield areas

  3  ultimately achieve the applicable cleanup target levels

  4  provided in this section. In the circumstances provided below,

  5  and after constructive notice and opportunity to comment

  6  within 30 days from receipt of the notice to local government,

  7  to owners of any property into which the point of compliance

  8  is allowed to extend, and to residents on any property into

  9  which the point of compliance is allowed to extend, the

10  department may allow concentrations of contaminants to

11  temporarily exceed the applicable cleanup target levels while

12  cleanup, including cleanup through natural attenuation

13  processes in conjunction with appropriate monitoring, is

14  proceeding, if human health, public safety, and the

15  environment are protected.

16         (d)  Allow brownfield site and brownfield area

17  rehabilitation programs to include the use of institutional or

18  engineering controls, where appropriate, to eliminate or

19  control the potential exposure to contaminants of humans or

20  the environment. The use of controls must be preapproved by

21  the department and only after constructive notice and

22  opportunity to comment within 30 days from receipt of notice

23  is provided to local governments, to owners of any property

24  into which the point of compliance is allowed to extend, and

25  to residents on any property into which the point of

26  compliance is allowed to extend. When institutional or

27  engineering controls are implemented to control exposure, the

28  removal of the controls must have prior department approval

29  and must be accompanied by the resumption of active cleanup,

30  or other approved controls, unless cleanup target levels under

31  this section have been achieved.


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  1         (e)  Consider the additive effects of contaminants.

  2  The synergistic and antagonistic effects shall also be

  3  considered when the scientific data become available.

  4         (f)  Take into consideration individual site

  5  characteristics, which shall include, but not be limited to,

  6  the current and projected use of the affected groundwater and

  7  surface water in the vicinity of the site, current and

  8  projected land uses of the area affected by the contamination,

  9  the exposed population, the degree and extent of

10  contamination, the rate of contaminant migration, the apparent

11  or potential rate of contaminant degradation through natural

12  attenuation processes, the location of the plume, and the

13  potential for further migration in relation to site property

14  boundaries.

15         (g)  Apply state water quality standards as follows:

16         1.  Cleanup target levels for each contaminant found in

17  groundwater shall be the applicable state water quality

18  standards.  Where such standards do not exist, the cleanup

19  target levels for groundwater shall be based on the minimum

20  criteria specified in department rule.  The department shall

21  consider the following, as appropriate, in establishing the

22  applicable minimum criteria:  calculations using a lifetime

23  cancer risk level of 1.0E-6; a hazard index of 1 or less; the

24  best achievable detection limit; the naturally occurring

25  background concentration; or nuisance, organoleptic, and

26  aesthetic considerations.

27         2.  Where surface waters are exposed to contaminated

28  groundwater, the cleanup target levels for the contaminants

29  shall be based on the surface water standards as established

30  by department rule.  The point of measuring compliance with

31


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    CS for SB 1202                                 First Engrossed



  1  the surface water standards shall be in the groundwater

  2  immediately adjacent to the surface water body.

  3         3.  The department may set alternative cleanup target

  4  levels based upon an applicant's demonstration, using

  5  site-specific modeling and risk assessment studies, that human

  6  health, public safety, and the environment are protected to

  7  the same degree as provided in subparagraphs 1. and 2.  Where

  8  a state water quality standard is applicable, a deviation may

  9  not result in the application of cleanup target levels more

10  stringent than the standard.  In determining whether it is

11  appropriate to establish alternative cleanup target levels at

12  a site, the department must consider the effectiveness of

13  source removal that has been completed at the site and the

14  practical likelihood of the use of low yield or poor quality

15  groundwater, the use of groundwater near marine surface water

16  bodies, the current and projected use of the affected

17  groundwater in the vicinity of the site, or the use of

18  groundwater in the immediate vicinity of the contaminated

19  area, where it has been demonstrated that the groundwater

20  contamination is not migrating away from such localized

21  source, provided human health, public safety, and the

22  environment are protected.

23         (h)  Provide for the department to issue a "no further

24  action order" when alternative cleanup target levels

25  established pursuant to subparagraph (g)3. have been achieved.

26         (h)(i)  Provide for the department to issue a "no

27  further action order," with conditions, where appropriate,

28  when alternative cleanup target levels established pursuant to

29  subparagraph (g)3. have been achieved, or when the person

30  responsible for brownfield site rehabilitation can demonstrate

31  that the cleanup target level is unachievable within available


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    CS for SB 1202                                 First Engrossed



  1  technologies.  Prior to issuing such an order, the department

  2  shall consider the feasibility of an alternative site

  3  rehabilitation technology in the brownfield area.

  4         (i)(j)  Establish appropriate cleanup target levels for

  5  soils.

  6         1.  In establishing soil cleanup target levels for

  7  human exposure to each contaminant found in soils from the

  8  land surface to 2 feet below land surface, the department

  9  shall consider the following, as appropriate: calculations

10  using a lifetime cancer risk level of 1.0E-6; a hazard index

11  of 1 or less; the best achievable detection limit; or the

12  naturally occurring background concentration. Institutional

13  controls or other methods shall be used to prevent human

14  exposure to contaminated soils more than 2 feet below the land

15  surface.  Any removal of such institutional controls shall

16  require such contaminated soils to be remediated.

17         2.  Leachability-based soil target levels shall be

18  based on protection of the groundwater cleanup target levels

19  or the alternate cleanup target levels for groundwater

20  established pursuant to this paragraph, as appropriate. Source

21  removal and other cost-effective alternatives that are

22  technologically feasible shall be considered in achieving the

23  leachability soil target levels established by the department.

24  The leachability goals shall not be applicable if the

25  department determines, based upon individual site

26  characteristics, that contaminants will not leach into the

27  groundwater at levels which pose a threat to human health,

28  public safety, and the environment.

29         3.  The department may set alternative cleanup target

30  levels based upon an applicant's demonstration, using

31


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    CS for SB 1202                                 First Engrossed



  1  site-specific modeling and risk assessment studies, that human

  2  health, public safety, and the environment are protected.

  3         (2)  The department shall require source removal, if

  4  warranted and cost-effective.  Once source removal at a site

  5  is complete, the department shall reevaluate the site to

  6  determine the degree of active cleanup needed to continue.

  7  Further, the department shall determine if the reevaluated

  8  site qualifies for monitoring only or if no further action is

  9  required to rehabilitate the site.  If additional site

10  rehabilitation is necessary to reach "no further action"

11  status, the department is encouraged to utilize natural

12  attenuation and monitoring where site conditions warrant.

13         Section 5.  Section 376.82, Florida Statutes, is

14  amended to read:

15         376.82  Eligibility criteria and liability

16  protection.--

17         (1)  ELIGIBILITY.--Any person who has not caused or

18  contributed to the contamination of a brownfield site on or

19  after July 1, 1997, is eligible to participate in the

20  brownfield rehabilitation program established in ss.

21  376.77-376.85 ss. 376.77-376.84, subject to the following:

22         (a)  Potential brownfield sites that are subject to an

23  ongoing formal judicial or administrative enforcement action

24  or corrective action pursuant to federal authority, including,

25  but not limited to, the Comprehensive Environmental Response

26  Compensation and Liability Act, 42 U.S.C. ss. 9601, et seq.,

27  as amended; the Safe Drinking Water Act, 42 U.S.C. ss.

28  300f-300i, as amended; the Clean Water Act, 33 U.S.C. ss.

29  1251-1387, as amended; or under an order from the United

30  States Environmental Protection Agency pursuant to s. 3008(h)

31  of the Resource Conservation and Recovery Act, as amended (42


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    CS for SB 1202                                 First Engrossed



  1  U.S.C.A. s. 6928(h)); or that have obtained or are required to

  2  obtain a permit for the operation of a hazardous waste

  3  treatment, storage, or disposal facility; a postclosure

  4  permit; or a permit pursuant to the federal Hazardous and

  5  Solid Waste Amendments of 1984, are not eligible for

  6  participation unless specific exemptions are secured by a

  7  memorandum of agreement with the United States Environmental

  8  Protection Agency pursuant to paragraph (2)(e). A brownfield

  9  site within an eligible brownfield area that subsequently

10  becomes subject to formal judicial or administrative

11  enforcement action or corrective action under such federal

12  authority shall have its eligibility revoked unless specific

13  exemptions are secured by a memorandum of agreement with the

14  United States Environmental Protection Agency pursuant to

15  paragraph (2)(g).

16         (b)  Persons who have not caused or contributed to the

17  contamination of a brownfield site on or after July 1, 1997,

18  and who, prior to the department's approval of a brownfield

19  site rehabilitation agreement, are subject to ongoing

20  corrective action or enforcement under state authority

21  established in this chapter or chapter 403, including those

22  persons subject to a pending consent order with the state, are

23  eligible for participation in a brownfield corrective action

24  if:

25         1.  The proposed brownfield site is currently idle or

26  underutilized as a result of the contamination, and

27  participation in the brownfield program will immediately,

28  after cleanup or sooner, result in increased economic

29  productivity at the site, including at a minimum the creation

30  of 10 new permanent jobs, whether full-time permanent or

31


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    CS for SB 1202                                 First Engrossed



  1  part-time, which are not associated with implementation of the

  2  brownfield site corrective action plan; and

  3         2.  The person is complying in good faith with the

  4  terms of an existing consent order or department-approved

  5  corrective action plan, or responding in good faith to an

  6  enforcement action, as evidenced by a determination issued by

  7  the department or an approved local pollution control program.

  8         (c)  Potential brownfield sites owned by the state or a

  9  local government which contain contamination for which a

10  governmental entity is potentially responsible and which are

11  already designated as federal brownfield pilot projects or

12  have filed an application for designation to the United States

13  Environmental Protection Agency are eligible for participation

14  in a brownfield corrective action.

15         (d)  After July 1, 1997, petroleum and drycleaning

16  contamination sites shall not receive both restoration funding

17  assistance available for the discharge under this chapter and

18  any state assistance available under s. 288.107.  Nothing in

19  this act shall affect the cleanup criteria, priority ranking,

20  and other rights and obligations inherent in petroleum

21  contamination and drycleaning contamination site

22  rehabilitation under ss. 376.30-376.319, or the availability

23  of economic incentives otherwise provided for by law.

24         (2)  LIABILITY PROTECTION.--

25         (a)  Any person, including his or her successors and

26  assigns, who executes and implements to successful completion

27  a brownfield site rehabilitation agreement, shall be relieved

28  of further liability for remediation of the contaminated site

29  or sites to the state and to third parties and of liability in

30  contribution to any other party who has or may incur cleanup

31  liability for the contaminated site or sites.


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    CS for SB 1202                                 First Engrossed



  1         (b)  This section shall not be construed as a

  2  limitation on the right of a third party other than the state

  3  to pursue an action for damages to property or person;

  4  however, such an action may not compel site rehabilitation in

  5  excess of that required in the approved brownfield site

  6  rehabilitation agreement or otherwise required by the

  7  department or approved local pollution control program.

  8         (c)  This section shall not affect the ability or

  9  authority to seek contribution from any person who may have

10  liability with respect to the contaminated site and who did

11  not receive cleanup liability protection under this act.

12         (d)  The liability protection provided under this

13  section shall become effective upon execution of a brownfield

14  site rehabilitation agreement and shall remain effective,

15  provided the person responsible for brownfield site

16  rehabilitation complies with the terms of the site

17  rehabilitation agreement. Any statute of limitations that

18  would bar the department from pursuing relief in accordance

19  with its existing authority is tolled from the time the

20  agreement is executed until site rehabilitation is completed

21  or immunity is revoked pursuant to s. 376.80(10).

22         (e)  Completion of the performance of the remediation

23  obligations at the brownfield site shall be evidenced by a

24  site rehabilitation completion letter or a "no further action"

25  letter issued by the department or the approved local

26  pollution control program, which letter shall include the

27  following statement: "Based upon the information provided by

28  (property owner) concerning property located at (address), it

29  is the opinion of (the Florida Department of Environmental

30  Protection or approved local pollution control program) that

31  (party) has successfully and satisfactorily implemented the


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    CS for SB 1202                                 First Engrossed



  1  approved brownfield site rehabilitation agreement schedule

  2  and, accordingly, no further action is required to assure that

  3  any land use identified in the brownfield site rehabilitation

  4  agreement is consistent with existing and proposed uses."

  5         (f)  Compliance with the agreement referenced in s.

  6  376.80(5)(i) must be evidenced by a finding by the local

  7  government with jurisdiction over the brownfield area that the

  8  terms of the agreement have been met.

  9         (g)  The Legislature recognizes its limitations in

10  addressing cleanup liability under federal pollution control

11  programs.  In an effort to secure federal liability protection

12  for persons willing to undertake remediation responsibility at

13  a brownfield site, the department shall attempt to negotiate a

14  memorandum of agreement or similar document with the United

15  States Environmental Protection Agency, whereby the United

16  States Environmental Protection Agency agrees to forego

17  enforcement of federal corrective action authority at

18  brownfield sites brownfields that have received a site

19  rehabilitation completion or "no further action" determination

20  from the department or the approved local pollution control

21  program or that are in the process of implementing a

22  brownfield site rehabilitation agreement in accordance with

23  this act.

24         (h)  No unit of state or local government may be held

25  liable for implementing corrective actions at a contaminated

26  site within an eligible brownfield area as a result of the

27  involuntary ownership of the site through bankruptcy, tax

28  delinquency, abandonment, or other circumstances in which the

29  state or local government involuntarily acquires title by

30  virtue of its function as a sovereign, or as a result of

31  ownership from donation, or gift, or foreclosure unless the


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    CS for SB 1202                                 First Engrossed



  1  state or local government has otherwise caused or contributed

  2  to a release of a contaminant at the brownfield site.

  3         (i)  The Legislature finds and declares that certain

  4  brownfield sites brownfields may be redeveloped for open

  5  space, or limited recreational, cultural, or historical

  6  preservation purposes, and that such facilities enhance the

  7  redeveloped environment, attract visitors, and provide

  8  wholesome activities for employees and residents of the area.

  9  Further, the Legislature finds that purchasers of contaminated

10  sites who are nonprofit conservation organizations acting for

11  the public interest and who did not cause or contribute to the

12  release of contamination on the site warrant protection from

13  liability.

14         (j)  Notwithstanding any provision of this chapter,

15  chapter 403, other laws, or ordinances of local governments, a

16  nonprofit, charitable, federal tax-exempt, s. 501(c)(3)

17  national land conservation corporation which purchases title

18  to property in the state for the purpose of conveying such

19  land to any governmental entity for conservation, historical

20  preservation or cultural resource, park, greenway, or other

21  similar uses shall not be liable to the state, local

22  government, or any third party for penalties or remediation

23  costs in connection with environmental contamination found in

24  the soil or groundwater of such property, provided that such

25  corporation did not cause the original deposit or release of

26  the environmental contaminants, and provided the department

27  and local pollution control program and responsible parties

28  have access to the land for investigation, remediation, or

29  monitoring purposes.

30         (3)  REOPENERS.--Upon completion of site rehabilitation

31  in compliance with ss. 376.77-376.85 ss. 376.77-376.84, no


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    CS for SB 1202                                 First Engrossed



  1  additional site rehabilitation shall be required unless it is

  2  demonstrated:

  3         (a)  That fraud was committed in demonstrating site

  4  conditions or completion of site rehabilitation;

  5         (b)  That new information confirms the existence of an

  6  area of previously unknown contamination which exceeds the

  7  site-specific rehabilitation levels established in accordance

  8  with s. 376.81, or which otherwise poses the threat of real

  9  and substantial harm to public health, safety, or the

10  environment in violation of the terms of ss. 376.77-376.85 ss.

11  376.77-376.84;

12         (c)  That the remediation efforts failed to achieve the

13  site rehabilitation criteria established under s. 376.81;

14         (d)  That the level of risk is increased beyond the

15  acceptable risk established under s. 376.81 due to substantial

16  changes in exposure conditions, such as a change in land use

17  from nonresidential to residential use. Any person who changes

18  the land use of the brownfield site thus causing the level of

19  risk to increase beyond the acceptable risk level may be

20  required by the department to undertake additional remediation

21  measures to assure that human health, public safety, and the

22  environment are protected to levels consistent with s. 376.81;

23  or

24         (e)  That a new release occurs at the brownfield site

25  subsequent to a determination of eligibility for participation

26  in the brownfield program established under s. 376.80.

27         (4)  ADDITIONAL LIABILITY PROTECTION FOR LENDERS.--

28         (a)  The Legislature declares that, in order to achieve

29  the economic redevelopment and site rehabilitation of

30  brownfield sites brownfields in accordance with this act, it

31  is imperative to encourage financing of real property


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    CS for SB 1202                                 First Engrossed



  1  transactions involving brownfield site rehabilitation plans.

  2  Accordingly, lenders, including those serving as a trustee,

  3  personal representative, or in any other fiduciary capacity,

  4  in connection with a loan, are entitled to the liability

  5  protection established in subsection (2) if they have not

  6  caused or contributed to a release of a contaminant at the

  7  brownfield site.

  8         (b)  Lenders who hold indicia of ownership of a parcel

  9  within a brownfield area primarily to protect a security

10  interest or who own a parcel within a brownfield area as a

11  result of foreclosure or a deed in lieu of foreclosure of a

12  security interest and who seek to sell, transfer, or otherwise

13  divest the parcel via sale at the earliest practicable time

14  are not liable for the release or discharge of a contaminant

15  from the parcel; for the failure of the person responsible for

16  brownfield site rehabilitation to comply with the brownfield

17  site rehabilitation agreement; or for future site

18  rehabilitation activities required pursuant to a reopener

19  provision established in subsection (3) where the lender has

20  not divested the borrower of, or otherwise engaged in,

21  decisionmaking control of the site rehabilitation or site

22  operations or undertaken management activities beyond those

23  required to protect its financial interest while making a good

24  faith effort to sell the site as soon as practicable and when

25  an act or omission of the lender has not otherwise caused or

26  contributed to a release of a contaminant at the brownfield

27  site.

28         (c)  The economic incentives that were granted to a

29  person responsible for site rehabilitation by state or local

30  governments shall not accrue to a lender who obtains ownership

31  of the brownfield site by one of the methods described in this


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    CS for SB 1202                                 First Engrossed



  1  subsection.  The economic incentives are abated during the

  2  lender's ownership, but they may be transferred and reinstated

  3  upon the sale of the brownfield site.

  4         Section 6.  Section 376.83, Florida Statutes, is

  5  amended to read:

  6         376.83  Violation; penalties.--

  7         (1)  It is a violation of ss. 376.77-376.85 ss.

  8  376.77-376.82, and it is prohibited for any person, to

  9  knowingly make any false statement, representation, or

10  certification in any application, record, report, plan, or

11  other document filed or required to be maintained, or to

12  falsify, tamper with, or knowingly render inaccurate any

13  monitoring device or method required to be maintained under

14  ss. 376.77-376.85 ss. 376.77-376.82, or by any permit, rule,

15  or order issued under this chapter or chapter 403.

16         (2)  Any person who willfully commits a violation

17  specified in subsection (1) is guilty of a misdemeanor of the

18  first degree, punishable by a fine of not more than $10,000 or

19  by 6 months in jail, or by both, for each offense. Each day

20  during any portion of which such violation occurs constitutes

21  a separate offense.

22         Section 7.  Subsection (4) of section 288.106, Florida

23  Statutes, is amended to read:

24         288.106  Tax refund program for qualified target

25  industry businesses.--

26         (4)  APPLICATION AND APPROVAL PROCESS.--

27         (a)  To apply for certification as a qualified target

28  industry business under this section, the business must file

29  an application with the office before the business has made

30  the decision to locate a new business in this state or before

31  the business had made the decision to expand an existing


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    CS for SB 1202                                 First Engrossed



  1  business in this state. The application shall include, but is

  2  not limited to, the following information:

  3         1.  The applicant's federal employer identification

  4  number and the applicant's state sales tax registration

  5  number.

  6         2.  The permanent location of the applicant's facility

  7  in this state at which the project is or is to be located.

  8         3.  A description of the type of business activity or

  9  product covered by the project, including four-digit SIC codes

10  for all activities included in the project.

11         4.  The number of full-time equivalent jobs in this

12  state that are or will be dedicated to the project and the

13  average wage of those jobs. If more than one type of business

14  activity or product is included in the project, the number of

15  jobs and average wage for those jobs must be separately stated

16  for each type of business activity or product.

17         5.  The total number of full-time equivalent employees

18  employed by the applicant in this state.

19         6.  The anticipated commencement date of the project.

20         7.  The amount of:

21         a.  Taxes on sales, use, and other transactions paid

22  under chapter 212;

23         b.  Corporate income taxes paid under chapter 220;

24         c.  Intangible personal property taxes paid under

25  chapter 199;

26         d.  Emergency excise taxes paid under chapter 221; and

27         e.  Excise taxes on documents paid under chapter 201.

28         8.  The estimated amount of tax refunds to be claimed

29  in each fiscal year.

30

31


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    CS for SB 1202                                 First Engrossed



  1         9.  A brief statement concerning the role that the tax

  2  refunds requested will play in the decision of the applicant

  3  to locate or expand in this state.

  4         10.  An estimate of the proportion of the sales

  5  resulting from the project that will be made outside this

  6  state.

  7         11.  A resolution adopted by the governing board of the

  8  county or municipality in which the project will be located,

  9  which resolution recommends that certain types of businesses

10  be approved as a qualified target industry business and states

11  that the commitments of local financial support necessary for

12  the target industry business exist. Before adoption of the

13  resolution, the governing board may review the proposed public

14  or private sources of such support and determine whether the

15  proposed sources of local financial support can be provided.

16         12.  Any additional information requested by the

17  office.

18         (b)  To qualify for review by the office, the

19  application of a target industry business must, at a minimum,

20  establish the following to the satisfaction of the office:

21         1.  The jobs proposed to be provided under the

22  application, pursuant to subparagraph (a)4., must pay an

23  estimated annual average wage equaling at least 115 percent of

24  the average private sector wage in the area where the business

25  is to be located or the statewide private sector average wage.

26  The office may waive this average wage requirement at the

27  request of the local governing body recommending the project

28  and Enterprise Florida, Inc.  The wage requirement may only be

29  waived for a project located in a brownfield area designated

30  under s. 376.80 or in a rural city or county or in an

31  enterprise zone and only when the merits of the individual


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    CS for SB 1202                                 First Engrossed



  1  project or the specific circumstances in the community in

  2  relationship to the project warrant such action.  If the local

  3  governing body and Enterprise Florida, Inc., make such a

  4  recommendation, it must be transmitted in writing and the

  5  specific justification for the waiver recommendation must be

  6  explained.  If the director elects to waive the wage

  7  requirement, the waiver must be stated in writing and the

  8  reasons for granting the waiver must be explained.

  9         2.  The target industry business's project must result

10  in the creation of at least 10 jobs at such project.

11         3.  The business activity or product for the

12  applicant's project is within an industry or industries that

13  have been identified by the office to be high-value-added

14  industries that contribute to the area and to the economic

15  growth of the state and that produce a higher standard of

16  living for citizens of this state in the new global economy or

17  that can be shown to make an equivalent contribution to the

18  area and state's economic progress. The director must approve

19  requests to waive the wage requirement for brownfield areas

20  designated under s. 376.80 unless it is demonstrated that such

21  action is not in the public interest.

22         (c)  Each application meeting the requirements of

23  paragraph (b) must be submitted to the office for

24  determination of eligibility. The office shall review and

25  evaluate each application based on, but not limited to, the

26  following criteria:

27         1.  Expected contributions to the state strategic

28  economic development plan adopted by Enterprise Florida, Inc.,

29  taking into account the long-term effects of the project and

30  of the applicant on the state economy.

31


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    CS for SB 1202                                 First Engrossed



  1         2.  The economic benefit of the jobs created by the

  2  project in this state, taking into account the cost and

  3  average wage of each job created.

  4         3.  The amount of capital investment to be made by the

  5  applicant in this state.

  6         4.  The local commitment and support for the project.

  7         5.  The effect of the project on the local community,

  8  taking into account the unemployment rate for the county where

  9  the project will be located.

10         6.  The effect of any tax refunds granted pursuant to

11  this section on the viability of the project and the

12  probability that the project will be undertaken in this state

13  if such tax refunds are granted to the applicant, taking into

14  account the expected long-term commitment of the applicant to

15  economic growth and employment in this state.

16         7.  The expected long-term commitment to this state

17  resulting from the project.

18         8.  A review of the business's past activities in this

19  state or other states, including whether such business has

20  been subjected to criminal or civil fines and penalties.

21  Nothing in this subparagraph shall require the disclosure of

22  confidential information.

23         (d)  The office shall forward its written findings and

24  evaluation concerning each application meeting the

25  requirements of paragraph (b) to the director within 45

26  calendar days after receipt of a complete application. The

27  office shall notify each target industry business when its

28  application is complete, and of the time when the 45-day

29  period begins. In its written report to the director, the

30  office shall specifically address each of the factors

31  specified in paragraph (c) and shall make a specific


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    CS for SB 1202                                 First Engrossed



  1  assessment with respect to the minimum requirements

  2  established in paragraph (b). The office shall include in its

  3  report projections of the tax refund claim that will be sought

  4  by the target industry business in each fiscal year based on

  5  the information submitted in the application.

  6         (e)1.  Within 30 days after receipt of the office's

  7  findings and evaluation, the director shall enter a final

  8  order that either approves or disapproves the application of

  9  the target industry business. The decision must be in writing

10  and must provide the justifications for approval or

11  disapproval.

12         2.  If appropriate, the director shall enter into a

13  written agreement with the qualified target industry business

14  pursuant to subsection (5).

15         (f)  The director may not enter a final order that

16  certifies any target industry business as a qualified target

17  industry business if the value of tax refunds to be included

18  in that final order exceeds the available amount of authority

19  to enter final orders as determined in s. 288.095(3). A final

20  order that approves an application must specify the maximum

21  amount of tax refund that will be available to the qualified

22  industry business in each fiscal year and the total amount of

23  tax refunds that will be available to the business for all

24  fiscal years.

25         (g)  Nothing in this section shall create a presumption

26  that an applicant will receive any tax refunds under this

27  section. However, the office may issue nonbinding opinion

28  letters, upon the request of prospective applicants, as to the

29  applicants' eligibility and the potential amount of refunds.

30         Section 8.  Subsection (1) of section 288.107, Florida

31  Statutes, is amended to read:


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    CS for SB 1202                                 First Engrossed



  1         288.107  Brownfield redevelopment bonus refunds.--

  2         (1)  DEFINITIONS.--As used in this section:

  3         (a)  "Account" means the Economic Development

  4  Incentives Account as authorized in s. 288.095.

  5         (b)  "Brownfield sites" means sites that are generally

  6  abandoned, idled, or underused industrial and commercial

  7  properties where expansion or redevelopment is complicated by

  8  actual or perceived environmental contamination.

  9         (c)  "Brownfield area" means a contiguous area of one

10  or more brownfield sites, some of which may not be

11  contaminated, and which has been designated by a local

12  government by resolution. Such areas may include all or

13  portions of community redevelopment areas, enterprise zones,

14  empowerment zones, other such designated economically deprived

15  communities and areas, and

16  Environmental-Protection-Agency-designated brownfield pilot

17  projects. "Brownfield" or "brownfield site" means a parcel or

18  a contiguous area of one or more parcels, which have been

19  designated by local government by resolution, that are

20  generally abandoned, idled, or underused industrial and

21  commercial properties where expansion or redevelopment is

22  complicated by actual or perceived environmental

23  contamination.  Such areas may include, but are not limited

24  to, portions of community redevelopment areas, enterprise

25  zones, empowerment zones, other such designated economically

26  deprived communities and areas, and United States

27  Environmental Protection Agency designated brownfield pilot

28  projects.

29         (d)(c)  "Director" means the director of the Office of

30  Tourism, Trade, and Economic Development.

31


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    CS for SB 1202                                 First Engrossed



  1         (e)(d)  "Eligible business" means a qualified target

  2  industry business as defined in s. 288.106(2)(o).

  3         (f)(e)  "Jobs" means full-time equivalent positions,

  4  consistent with the use of such terms by the Department of

  5  Labor and Employment Security for the purpose of unemployment

  6  compensation tax, resulting directly from a project in this

  7  state.  This number does not include temporary construction

  8  jobs involved with the construction of facilities for the

  9  project and which are not associated with the implementation

10  of the site rehabilitation as provided in s. 376.80.

11         (g)(f)  "Office" means the Office of Tourism, Trade,

12  and Economic Development.

13         (h)(g)  "Project" means the creation of a new business

14  or the expansion of an existing business as defined in s.

15  288.106.

16         Section 9.  (1)  The Legislature finds that the

17  underuse of brownfield areas results in the inefficient use of

18  public facilities and services, as well as of land and other

19  natural resources, extends conditions of blight in local

20  communities, and contributes to concerns about environmental

21  equity and the distribution of environmental risks across

22  population groups.

23         (2)  The reuse and redevelopment of brownfield areas is

24  an important component of sound land-use policy for productive

25  urban purposes which will help prevent the premature

26  development of farm land, open space areas, and natural areas

27  and reduce public costs for installing new water, sewer, and

28  highway infrastructure.

29         (3)  The Legislature finds that providing economic and

30  financial incentives to promote the redevelopment of

31


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    CS for SB 1202                                 First Engrossed



  1  brownfield areas is an important and appropriate public

  2  purpose.

  3         Section 10.  Brownfield Areas Loan Guarantee Program.--

  4         (1)  The Brownfield Areas Loan Guarantee Council is

  5  created to review and approve or deny by a majority vote of

  6  its membership, the situations and circumstances for

  7  participation in partnerships by agreements with local

  8  governments, financial institutions, and others associated

  9  with the redevelopment of brownfield areas pursuant to the

10  Brownfield Redevelopment Act for a limited state guaranty of

11  up to 5 years of loan guarantees or loan loss reserves issued

12  pursuant to law. The limited state loan guaranty applies only

13  to 10 percent of the primary lenders loans for redevelopment

14  projects in brownfield areas. A limited state guaranty of

15  private loans or a loan loss reserve is authorized for lenders

16  licensed to operate in the state upon a determination by the

17  council that such an arrangement would be in the public

18  interest and the likelihood of the success of the loan is

19  great.

20         (2)  The Council shall consist of the Secretary of the

21  Department of Environmental Protection or the secretary's

22  designee, the Secretary of the Department of Community Affairs

23  or the secretary's designee, the Executive Director of the

24  State Board of Administration or the executive director's

25  designee, the Executive Director of the Florida Housing

26  Finance Agency or the executive director's designee, and the

27  Director of the Governor's Office of Tourism, Trade, and

28  Economic Development or the director's designee. The

29  chairperson of the  Council shall be the Director of the

30  Governor's Office of Tourism, Trade, Economic Development.

31


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    CS for SB 1202                                 First Engrossed



  1  Staff services for activities of the Council shall be provided

  2  as needed by the member agencies.

  3         (3)  The Council may enter into an investment agreement

  4  with the Department of Environmental Protection and the State

  5  Board of Administration concerning the investment of the

  6  earnings accrued and collected upon the investment of the

  7  balance of funds maintained in the Nonmandatory Land

  8  Reclamation Trust Fund. The investment must be limited as

  9  follows:

10         (a)  Not more than $5 million of the investment

11  earnings earned on the investment of the minimum balance of

12  the Nonmandatory Land Reclamation Trust Fund in a fiscal year

13  may be at risk at any time on loan guarantees or as loan loss

14  reserves. Of that amount, 15 percent shall be reserved for

15  investment agreements involving predominantly minority-owned

16  businesses which meet the requirements of subsection (4).

17         (b)  The investment earnings may not be used to

18  guarantee any loan guaranty or loan loss reserve agreement for

19  a period longer than 5 years.

20         (4)  A lender seeking a limited state guaranty for a

21  loan from the Brownfield Areas Loan Guaranty Council must

22  first provide to the council a report demonstrating that the

23  lender has reviewed the project for redevelopment of the

24  brownfield area and determined its feasibility in accordance

25  with its standard procedures. The procedures include, but are

26  not limited to:

27         (a)  Obtaining a satisfactory credit report from a

28  source deemed reliable by the lender;

29         (b)  Reviewing a report of environmental conditions at

30  the project and determining that actions are underway to

31  comply with specific recommendations;


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    CS for SB 1202                                 First Engrossed



  1         (c)  Investigating the background and experience of the

  2  entity to receive the loan and manage the project and

  3  determining that the managing entity appears to possess the

  4  experience, competence, and capacity to manage the project;

  5         (d)  Determining that conditions exist to establish a

  6  financially sound redevelopment project that exposes the state

  7  loan guarantee program to a reasonable or acceptable level of

  8  risk; and

  9         (e)  Determining that the local government with

10  jurisdiction over the area where the brownfield redevelopment

11  project is located has committed in-kind resources, local

12  financial incentives or local financial resources to the total

13  project cost.

14         (5)  A lender covered by a limited state guaranty for a

15  loan is not entitled to file a claim for loss pursuant to the

16  guaranty unless all reasonable and normal remedies available

17  and customary for lending institutions for resolving problems

18  of loan repayments are exhausted. If the lender has received

19  collateral security in connection with the loan, the lender

20  must first exhaust all available remedies against the

21  collateral security.

22         (6)  The council may, by rule, establish requirements

23  for the issuance of loan guarantees, including contractual

24  provisions to foster reimbursement, in the event of default,

25  to the guarantee fund.

26         (7)  The council may receive public and private funds,

27  federal grants, and private donations in carrying out its

28  responsibilities.

29         (8)  The Council shall provide an annual report to the

30  Legislature by February 1 of each year describing its

31  activities and agreements approved relating to redevelopment


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    CS for SB 1202                                 First Engrossed



  1  of brownfield areas. This section shall be reviewed by the

  2  Legislature by October 1, 2003, and a determination made

  3  related to the need to continue or modify this section. New

  4  loan guarantees may not be approved in 2003 until the review

  5  by the Legislature has been completed and a determination has

  6  been made as to the feasibility of continuing the use of the

  7  Nonmandatory Land Reclamation Trust Fund to guarantee portions

  8  of loans under this section.

  9         Section 11.  Subsections (1), (6), and (8) of section

10  288.9602, Florida Statutes, are amended to read:

11         288.9602  Findings and declarations of necessity.--The

12  Legislature finds and declares that:

13         (1)  There is a need to enhance economic activity in

14  the cities and counties of the state by attracting

15  manufacturing, development, redevelopment of brownfield areas,

16  business enterprise management, and other activities conducive

17  to economic promotion in order to provide a stronger, more

18  balanced, and stable economy in the cities and counties of the

19  state.

20         (6)  In order to improve the prosperity and welfare of

21  the cities and counties of this state and its inhabitants, to

22  improve and promote the financing of projects related to the

23  economic development of the cities and counties of this state,

24  including redevelopment of brownfield areas, and to increase

25  the purchasing power and opportunities for gainful employment

26  of citizens of the cities and counties of this state, it is

27  necessary and in the public interest to facilitate the

28  financing of such projects as provided for in this act and to

29  do so without regard to the boundaries between counties,

30  municipalities, special districts, and other local

31  governmental bodies or agencies in order to more effectively


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    CS for SB 1202                                 First Engrossed



  1  and efficiently serve the interests of the greatest number of

  2  people in the widest area practicable.

  3         (8)  In order to efficiently and effectively achieve

  4  the purposes of this act, it is necessary and in the public

  5  interest to create a special development finance authority to

  6  cooperate and act in conjunction with public agencies of this

  7  state and local governments of this state, through interlocal

  8  agreements pursuant to the Florida Interlocal Cooperation Act

  9  of 1969, in the promotion and advancement of projects related

10  to economic development, including redevelopment of brownfield

11  areas, throughout the state.

12         Section 12.  Paragraph (w) is added to subsection (2)

13  of section 288.9605, Florida Statutes, to read:

14         288.9605  Exercise of powers by the corporation.--

15         (2)  The corporation is authorized and empowered to:

16         (w)  Determine the situations and circumstances for

17  participation in partnerships by agreement with local

18  governments, financial institutions, and others associated

19  with the redevelopment of brownfield areas pursuant to the

20  Brownfield Redevelopment Act for a limited state guaranty of

21  revenue bonds, loan guarantees, or loan loss reserves.

22         Section 13.  Interdisciplinary Center for Brownfield

23  Rehabilitation Assistance.--The Board of Regents shall

24  establish a Center for Brownfield Rehabilitation Assistance in

25  the Environmental Sciences and Policy Program in the College

26  of Arts and Sciences at the University of South Florida with

27  the collaboration of other related disciplines such as

28  business administration, environmental science, and medicine.

29  The center shall work in conjunction with other colleges in

30  the State University System.  The Center for Brownfield

31  Rehabilitation Assistance shall:


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    CS for SB 1202                                 First Engrossed



  1         (1)  Conduct research relating to problems and

  2  solutions associated with rehabilitation and restoration of

  3  brownfield areas as defined in section 376.79, Florida

  4  Statutes. The research must include identifying innovative

  5  solutions to removing contamination from brownfield sites to

  6  reduce the threats to drinking water supplies and other

  7  potential public health threats from contaminated sites.

  8         (2)  Provide public service to local, regional, and

  9  state agencies, units of government, and authorities by

10  helping them to create workable mechanisms, partnerships with

11  public and private sectors and other techniques for

12  rehabilitating brownfield areas.

13         (3)  Conduct special research relating to risk-based

14  corrective actions for rehabilitation of brownfield areas.

15         (4)  Develop a base of informational and financial

16  support from the private sector for the activities of the

17  center.

18         Section 14.  Paragraph (g) is added to subsection (1)

19  of section 163.3187, Florida Statutes, to read:

20         163.3187  Amendment of adopted comprehensive plan.--

21         (1)  Amendments to comprehensive plans adopted pursuant

22  to this part may be made not more than two times during any

23  calendar year, except:

24         (g)  Any local government comprehensive plan amendments

25  directly related to proposed redevelopment of brownfield areas

26  designated under s. 376.80 may be approved without regard to

27  statutory limits on the frequency of consideration of

28  amendments to the local comprehensive plan.

29         Section 15.  Brownfield Property Ownership Clearance

30  Assistance.--

31


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    CS for SB 1202                                 First Engrossed



  1         (1)  The Legislature recognizes that some brownfield

  2  redevelopment projects are more difficult to redevelop due to

  3  the existence of various types of liens on the property and

  4  complications from previous ownership having declared

  5  bankruptcy. Oftentimes lien holders on brownfield property are

  6  reluctant to foreclose on the property out of concern for

  7  liability questions and may be willing to settle for a reduced

  8  value on their lien to clear up any of their rights to the

  9  property and to clear the way for organized efforts by a

10  private and public partnership to revitalize and redevelop

11  brownfield areas.

12         (2)  The Legislature recognizes that a revolving loan

13  fund could assist in the early stages of redeveloping

14  brownfields by helping to clear prior liens on the property

15  through a negotiated process. Such a revolving loan fund could

16  be repaid in later years from the resale of brownfield

17  properties following site rehabilitation and other activities

18  that will enhance the properties' ultimate value.

19         Section 16.  Notwithstanding any provision of law to

20  the contrary, the governing body of a municipality or county

21  containing a United States Environmental Protection Agency

22  brownfield pilot project that was designated as of May 1,

23  1997, may apply to the Office of Tourism, Trade, and Economic

24  Development for designation of one enterprise zone

25  encompassing the brownfield pilot project, if the project is

26  located in a county with a population less than 1 million. The

27  application must be submitted by December 31, 1999, and must

28  comply with the requirements of section 290.0055, Florida

29  Statutes, except section 290.0055(3), Florida Statutes.

30  Notwithstanding the provisions of section 290.0065, Florida

31  Statutes, limiting the total number of enterprise zones


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    CS for SB 1202                                 First Engrossed



  1  designated and the number of enterprise zones within a

  2  population category, the Office of Tourism, Trade, and

  3  Economic Development shall designate one enterprise zone under

  4  this section if the zone is consistent with the limitations

  5  imposed under this section. The Office of Tourism, Trade, and

  6  Economic Development shall establish the initial effective

  7  date of the enterprise zone designated pursuant to this

  8  section.

  9         Section 17.  Subsection (4) of section 376.313, Florida

10  Statutes, is amended to read:

11         376.313  Nonexclusiveness of remedies and individual

12  cause of action for damages under ss. 376.30-376.319.--

13         (4)  In any civil action brought after July 1, 1986,

14  against the owner or operator of a petroleum storage system

15  for damages arising from a petroleum storage system discharge,

16  the provisions of subsection (3) shall not apply if it can be

17  proven that, at the time of the discharge:

18         (a)  The alleged damages resulted solely from a

19  discharge from a petroleum storage system which was installed,

20  replaced, or retrofitted, and maintained, in a manner

21  consistent with the construction, operation, repair, and

22  maintenance standards established for such systems under

23  chapter 62-761 17-61, Florida Administrative Code, as that

24  chapter may hereafter be amended. The requirement of

25  consistency with such standards may be satisfied only by being

26  in compliance with the standards at the time of the discharge,

27  regardless of the time specified for compliance under the

28  schedule provided in said chapter.

29         (b)  A leak detection system or systems or a monitoring

30  well or wells were installed and operating in a manner

31  consistent with technical requirements of chapter 62-761


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    CS for SB 1202                                 First Engrossed



  1  17-61, Florida Administrative Code, as that chapter may

  2  hereafter be amended; and

  3         (c)  All inventory, recordkeeping, and reporting

  4  requirements of chapter 62-761 17-61, Florida Administrative

  5  Code, as that chapter may hereafter be amended, have been and

  6  are being complied with.

  7

  8  Any person bringing such an action must prove negligence to

  9  recover damages under this subsection. For the purposes of

10  this subsection, noncompliance with this act, or any of the

11  rules promulgated pursuant hereto, as the same may hereafter

12  be amended, shall be prima facie evidence of negligence.

13         Section 18.  Section 21 of chapter 86-159, Laws of

14  Florida, is repealed.

15         Section 19.  This act shall take effect July 1, 1998.

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