House Bill 4117c1

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    Florida House of Representatives - 1998             CS/HB 4117

        By the Committee on Environmental Protection and
    Representatives Putnam, Dockery and Burroughs





  1                      A bill to be entitled

  2         An act relating to drycleaning solvent cleanup;

  3         amending s. 376.30, F.S.; providing legislative

  4         intent regarding drycleaning solvents; amending

  5         s. 376.301, F.S.; providing definitions;

  6         amending s. 376.303, F.S.; providing for late

  7         fees for registration renewals; amending s.

  8         376.3078, F.S.; providing legislative intent

  9         regarding voluntary cleanup; providing that

10         certain deductibles must be deposited into the

11         Water Quality Assurance Trust Fund; clarifying

12         circumstances under which drycleaning

13         restoration fund may not be used; providing

14         additional criteria for determining eligibility

15         for rehabilitation; specifying when certain

16         deductibles must be paid; amending the date

17         after which no restoration funds may be used

18         for drycleaning site rehabilitation; clarifying

19         who may apply jointly for participation in the

20         program; providing certain liability immunity

21         for certain adjacent landowners; providing for

22         contamination cleanup criteria that incorporate

23         risk-based corrective action principles to be

24         adopted by rule; requiring certain third-party

25         liability insurance coverage for each operating

26         facility; specifying the circumstances under

27         which work may proceed on the next site

28         rehabilitation task without prior approval;

29         requiring the Department of Environmental

30         Protection to give priority consideration to

31         the processing and approval of permits for

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  1         voluntary cleanup projects; providing the

  2         conditions under which further rehabilitation

  3         may be required; providing for continuing

  4         application of certain immunity for real

  5         property owners; requiring the Department of

  6         Environmental Protection to attempt to

  7         negotiate certain agreements with the U.S.

  8         Environmental Protection Agency; amending s.

  9         376.308, F.S.; protecting certain immunity for

10         real property owners; amending s. 376.313,

11         F.S.; correcting a statutory cross reference;

12         amending s. 376.70, F.S.; clarifying certain

13         registration provisions; requiring dry drop-off

14         facilities to pay the gross receipts tax;

15         providing for the payment of taxes and the

16         determination of eligibility in the program;

17         amending ss. 287.0595 and 316.302, F.S.;

18         correcting statutory cross references; amending

19         s. 213.053, F.S.; authorizing the Department of

20         Revenue to release certain information to

21         certain persons; providing an effective date.

22

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

24

25         Section 1.  Subsection (2) of section 376.30, Florida

26  Statutes, is amended to read:

27         376.30  Legislative intent with respect to pollution of

28  surface and ground waters.--

29         (2)  The Legislature further finds and declares that:

30         (a)  The storage, transportation, and disposal of

31  pollutants, drycleaning solvents, and hazardous substances

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  1  within the jurisdiction of the state and state waters is a

  2  hazardous undertaking;

  3         (b)  Spills, discharges, and escapes of pollutants,

  4  drycleaning solvents, and hazardous substances that occur as a

  5  result of procedures taken by private and governmental

  6  entities involving the storage, transportation, and disposal

  7  of such products pose threats of great danger and damage to

  8  the environment of the state, to citizens of the state, and to

  9  other interests deriving livelihood from the state;

10         (c)  Such hazards have occurred in the past, are

11  occurring now, and present future threats of potentially

12  catastrophic proportions, all of which are expressly declared

13  to be inimical to the paramount interests of the state as set

14  forth in this section; and

15         (d)  Such state interests outweigh any economic burdens

16  imposed by the Legislature upon those engaged in storing,

17  transporting, or disposing of pollutants, drycleaning

18  solvents, and hazardous substances and related activities.

19         Section 2.  Section 376.301, Florida Statutes, is

20  amended to read:

21         376.301  Definitions of terms used in ss.

22  376.30-376.319, 376.70, and 376.75.--When used in ss.

23  376.30-376.319, 376.70, and 376.75, unless the context clearly

24  requires otherwise, the term:

25         (1)  "Aboveground hazardous substance tank" means any

26  stationary aboveground storage tank and onsite integral piping

27  that contains hazardous substances which are liquid at

28  standard temperature and pressure and has an individual

29  storage capacity greater than 110 gallons.

30         (2)  "Additive effects" means a scientific principle

31  that theory under which the toxicity that occurs as a result

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  1  of exposure is the sum of the toxicities of the individual

  2  chemicals to which the individual is exposed of chemicals

  3  increases in linear proportion to the increase in the number

  4  of substances.

  5         (3)  "Antagonistic effects" means a scientific

  6  principle that the toxicity that occurs is less than the sum

  7  of the toxicities of the individual chemicals to which the

  8  individual is exposed.

  9         (4)(3)  "Backlog" means reimbursement obligations

10  incurred pursuant to s. 376.3071(12), prior to March 29, 1995,

11  or authorized for reimbursement under the provisions of s.

12  376.3071(12), pursuant to chapter 95-2, Laws of Florida.

13  Claims within the backlog are subject to adjustment, where

14  appropriate.

15         (5)(4)  "Barrel" means 42 U.S. gallons at 60 degrees

16  Fahrenheit.

17         (6)(5)  "Bulk product facility" means a waterfront

18  location with at least one aboveground tank with a capacity

19  greater than 30,000 gallons which is used for the storage of

20  pollutants.

21         (7)(6)  "Cattle-dipping vat" means any structure,

22  excavation, or other facility constructed by any person, or

23  the site where such structure, excavation, or other facility

24  once existed, for the purpose of treating cattle or other

25  livestock with a chemical solution pursuant to or in

26  compliance with any local, state, or federal governmental

27  program for the prevention, suppression, control, or

28  eradication of any dangerous, contagious, or infectious

29  diseases.

30         (8)(7)  "Compression vessel" means any stationary

31  container, tank, or onsite integral piping system, or

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  1  combination thereof, which has a capacity of greater than 110

  2  gallons, that is primarily used to store pollutants or

  3  hazardous substances above atmospheric pressure or at a

  4  reduced temperature in order to lower the vapor pressure of

  5  the contents. Manifold compression vessels that function as a

  6  single vessel shall be considered as one vessel.

  7         (9)  "Contaminant" means any physical, chemical,

  8  biological, or radiological substance present in any medium

  9  which may result in adverse effects to human health or the

10  environment or which creates an adverse nuisance,

11  organoleptic, or aesthetic condition in groundwater.

12         (10)  "Contaminated site" means any contiguous land,

13  sediment, surface water, or groundwater areas that contain

14  contaminants that may be harmful to human health or the

15  environment.

16         (11)(8)  "Department" means the Department of

17  Environmental Protection.

18         (12)(9)  "Discharge" includes, but is not limited to,

19  any spilling, leaking, seeping, pouring, misapplying,

20  emitting, emptying, or dumping of any pollutant which occurs

21  and which affects lands and the surface and ground waters of

22  the state not regulated by ss. 376.011-376.21.

23         (13)(10)  "Drycleaning facility" means a commercial

24  establishment that operates or has at some time in the past

25  operated for the primary purpose of drycleaning clothing and

26  other fabrics utilizing a process that involves any use of

27  drycleaning solvents. The term "drycleaning facility" includes

28  laundry facilities that use drycleaning solvents as part of

29  their cleaning process. The term does not include a facility

30  that operates or has at some time in the past operated as a

31  uniform rental company or a companies, and linen supply

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  1  company companies regardless of whether the facility operates

  2  as or was previously operated as a drycleaning facility.

  3         (14)(11)  "Drycleaning solvents" means any and all

  4  nonaqueous solvents used in the cleaning of clothing and other

  5  fabrics and includes perchloroethylene (also known as

  6  tetrachloroethylene) and petroleum-based solvents, and their

  7  breakdown products. For purposes of this definition,

  8  "drycleaning solvents" only includes those drycleaning

  9  solvents originating from use at a drycleaning facility or by

10  a wholesale supply facility.

11         (15)(12)  "Dry drop-off facility" means any commercial

12  retail store that receives from customers clothing and other

13  fabrics for drycleaning or laundering at an offsite

14  drycleaning facility and that does not clean the clothing or

15  fabrics at the store utilizing drycleaning solvents.

16         (16)(13)  "Engineering controls" means modifications to

17  a site to reduce or eliminate the potential for exposure to

18  petroleum products' chemicals of concern, drycleaning

19  solvents, or other contaminants.  Such modifications may

20  include, but are not limited to, physical or hydraulic control

21  measures, capping, point of use treatments, or slurry walls.

22         (17)(14)  "Wholesale supply facility" means a

23  commercial establishment that supplies drycleaning solvents to

24  drycleaning facilities.

25         (18)(15)  "Facility" means a nonresidential location

26  containing, or which contained, any underground stationary

27  tank or tanks which contain hazardous substances or pollutants

28  and have individual storage capacities greater than 110

29  gallons, or any aboveground stationary tank or tanks which

30  contain pollutants which are liquids at standard ambient

31  temperature and pressure and have individual storage

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  1  capacities greater than 550 gallons. This subsection shall not

  2  apply to facilities covered by chapter 377, or containers

  3  storing solid or gaseous pollutants, and agricultural tanks

  4  having storage capacities of less than 550 gallons.

  5         (19)(16)  "Flow-through process tank" means an

  6  aboveground tank that contains hazardous substances or

  7  specified mineral acids as defined in s. 376.321 and that

  8  forms an integral part of a production process through which

  9  there is a steady, variable, recurring, or intermittent flow

10  of materials during the operation of the process.

11  Flow-through process tanks include, but are not limited to,

12  seal tanks, vapor recovery units, surge tanks, blend tanks,

13  feed tanks, check and delay tanks, batch tanks, oil-water

14  separators, or tanks in which mechanical, physical, or

15  chemical change of a material is accomplished.

16         (20)(17)  "Hazardous substances" means those substances

17  defined as hazardous substances in the Comprehensive

18  Environmental Response, Compensation and Liability Act of

19  1980, Pub. L. No. 96-510, 94 Stat. 2767, as amended by the

20  Superfund Amendments and Reauthorization Act of 1986.

21         (21)(18)  "Institutional controls" means the

22  restriction on use or access to a site to eliminate or

23  minimize exposure to petroleum products' chemicals of concern,

24  drycleaning solvents, or other contaminants.  Such

25  restrictions may include, but are not limited to, deed

26  restrictions, use restrictions, or restrictive zoning.

27         (22)  "Laundering on a wash, dry, and fold basis" means

28  the service provided by the owner or operator of a

29  coin-operated laundry to its customers whereby an employee of

30  the laundry washes, dries, and folds laundry for its

31  customers.

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  1         (23)(19)  "Marine fueling facility" means a commercial

  2  or recreational coastal facility, excluding a bulk product

  3  facility, providing fuel to vessels.

  4         (24)(20)  "Natural attenuation" means an approach to

  5  site rehabilitation that allows natural processes to contain

  6  the spread of contamination and reduce the concentrations of

  7  contaminants in contaminated groundwater and soil. Natural

  8  attenuation processes may include the following: sorption,

  9  biodegradation, chemical reactions with subsurface materials,

10  diffusion, dispersion, and volatilization. the verifiable

11  reduction of petroleum products' chemicals of concern through

12  natural processes which may include diffusion, dispersion,

13  absorption, and biodegradation.

14         (25)(21)  "Operator" means any person operating a

15  facility, whether by lease, contract, or other form of

16  agreement.

17         (26)(22)  "Owner" means any person owning a facility.

18         (27)(23)  "Person" means any individual, partner, joint

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

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

21         (28)(24)  "Person in charge" means the person on the

22  scene who is in direct, responsible charge of a facility from

23  which pollutants are discharged, when the discharge occurs.

24         (29)(25)  "Person responsible for conducting site

25  rehabilitation" means the site owner, operator, or the person

26  designated by the site owner or operator on the reimbursement

27  application.  Mortgage holders and trust holders may be

28  eligible to participate in the reimbursement program pursuant

29  to s. 376.3071(12).

30         (30)(26)  "Petroleum" includes:

31

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  1         (a)  Oil, including crude petroleum oil and other

  2  hydrocarbons, regardless of gravity, which are produced at the

  3  well in liquid form by ordinary methods and which are not the

  4  result of condensation of gas after it leaves the reservoir;

  5  and

  6         (b)  All natural gas, including casinghead gas, and all

  7  other hydrocarbons not defined as oil in paragraph (a).

  8         (31)(27)  "Petroleum product" means any liquid fuel

  9  commodity made from petroleum, including, but not limited to,

10  all forms of fuel known or sold as diesel fuel, kerosene, all

11  forms of fuel known or sold as gasoline, and fuels containing

12  a mixture of gasoline and other products, excluding liquefied

13  petroleum gas and American Society for Testing and Materials

14  (ASTM) grades no. 5 and no. 6 residual oils, bunker C residual

15  oils, intermediate fuel oils (IFO) used for marine bunkering

16  with a viscosity of 30 and higher, asphalt oils, and

17  petrochemical feedstocks.

18         (32)(28)  "Petroleum products' chemicals of concern"

19  means the constituents of petroleum products, including, but

20  not limited to, xylene, benzene, toluene, ethylbenzene,

21  naphthalene, and similar chemicals, and constituents in

22  petroleum products, including, but not limited to, methyl

23  tert-butyl ether (MTBE), lead, and similar chemicals found in

24  additives, provided the chemicals of concern are present as a

25  result of a discharge of petroleum products.

26         (33)(29)  "Petroleum storage system" means a stationary

27  tank not covered under the provisions of chapter 377, together

28  with any onsite integral piping or dispensing system

29  associated therewith, which is used, or intended to be used,

30  for the storage or supply of any petroleum product. Petroleum

31  storage systems may also include oil/water separators, and

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  1  other pollution control devices installed at petroleum product

  2  terminals as defined in this chapter and bulk product

  3  facilities pursuant to, or required by, permits or best

  4  management practices in an effort to control surface discharge

  5  of pollutants.  Nothing herein shall be construed to allow a

  6  continuing discharge in violation of department rules.

  7         (34)(30)  "Pollutants" includes any "product" as

  8  defined in s. 377.19(11), pesticides, ammonia, chlorine, and

  9  derivatives thereof, excluding liquefied petroleum gas.

10         (35)(31)  "Pollution" means the presence on the land or

11  in the waters of the state of pollutants in quantities which

12  are or may be potentially harmful or injurious to human health

13  or welfare, animal or plant life, or property or which may

14  unreasonably interfere with the enjoyment of life or property,

15  including outdoor recreation.

16         (36)(32)  "Real property owner" means the individual or

17  entity that is vested with ownership, dominion, or legal or

18  rightful title to the real property, or which has a ground

19  lease interest in the real property, on which a drycleaning

20  facility or wholesale supply facility is or has ever been

21  located.

22         (37)(33)  "Response action" means any activity,

23  including evaluation, planning, design, engineering,

24  construction, and ancillary services, which is carried out in

25  response to any discharge, release, or threatened release of a

26  hazardous substance, pollutant, or other contaminant from a

27  facility or site identified by the department under the

28  provisions of ss. 376.30-376.319.

29         (38)(34)  "Response action contractor" means a person

30  who is carrying out any response action, including a person

31

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  1  retained or hired by such person to provide services relating

  2  to a response action.

  3         (39)(35)  "Secretary" means the Secretary of

  4  Environmental Protection.

  5         (40)(36)  "Site rehabilitation" means the assessment of

  6  site contamination and the remediation activities that reduce

  7  the levels of contaminants at a site through accepted

  8  treatment methods to meet the cleanup target levels

  9  established for that site.

10         (41)(37)  "Source removal" means the removal of free

11  product, or the removal of contaminants from soil or sediment

12  that has been contaminated by petroleum or petroleum products

13  to the extent that leaching to groundwater or surface water

14  has occurred or is occurring petroleum products' chemicals of

15  concern leach into groundwater.

16         (42)(38)  "Storage system" means a stationary tank not

17  covered under the provisions of chapter 377, together with any

18  onsite integral piping or dispensing system associated

19  therewith, which is or has been used for the storage or supply

20  of any petroleum product, pollutant, or hazardous substance as

21  defined herein, and which is registered with the Department of

22  Environmental Protection under this chapter or any rule

23  adopted pursuant hereto.

24         (43)(39)  "Synergistic effects" means a scientific

25  principle that the toxicity that occurs as a result of

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

27  individual chemicals to which the individual is exposed theory

28  under which the toxicity of chemicals exponentially increases

29  as the number of chemicals in a combination increases.

30         (44)(40)  "Terminal facility" means any structure,

31  group of structures, motor vehicle, rolling stock, pipeline,

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  1  equipment, or related appurtenances which are used or capable

  2  of being used for one or more of the following purposes:

  3  pumping, refining, drilling for, producing, storing, handling,

  4  transferring, or processing pollutants, provided such

  5  pollutants are transferred over, under, or across any water,

  6  estuaries, tidal flats, beaches, or waterfront lands,

  7  including, but not limited to, any such facility and related

  8  appurtenances owned or operated by a public utility or a

  9  governmental or quasi-governmental body. In the event of a

10  ship-to-ship transfer of pollutants, the vessel going to or

11  coming from the place of transfer and a terminal facility

12  shall also be considered a terminal facility.  For the

13  purposes of ss. 376.30-376.319, the term "terminal facility"

14  shall not be construed to include spill response vessels

15  engaged in response activities related to removal of

16  pollutants, or temporary storage facilities created to

17  temporarily store recovered pollutants and matter, or

18  waterfront facilities owned and operated by governmental

19  entities acting as agents of public convenience for persons

20  engaged in the drilling for or pumping, storing, handling,

21  transferring, processing, or refining of pollutants. However,

22  each person engaged in the drilling for or pumping, storing,

23  handling, transferring, processing, or refining of pollutants

24  through a waterfront facility owned and operated by such a

25  governmental entity shall be construed as a terminal facility.

26         (45)(41)  "Transfer" or "transferred" includes

27  onloading, offloading, fueling, bunkering, lightering, removal

28  of waste pollutants, or other similar transfers, between

29  terminal facility and vessel or vessel and vessel.

30         Section 3.  Paragraph (d) of subsection (1) of section

31  376.303, Florida Statutes, is amended to read:

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  1         376.303  Powers and duties of the Department of

  2  Environmental Protection.--

  3         (1)  The department has the power and the duty to:

  4         (d)  Establish a registration program for drycleaning

  5  facilities and wholesale supply facilities.

  6         1.  Owners or operators of drycleaning facilities and

  7  wholesale supply facilities and real property owners suppliers

  8  shall jointly register each facility owned and in operation

  9  with the department by June 30, 1995, pay initial registration

10  fees by December 31, 1995, and pay annual renewal registration

11  fees by December 31, 1996, and each year thereafter, in

12  accordance with this subsection.  If the registration form

13  cannot be jointly submitted, then the applicant shall provide

14  notice of the registration to other interested parties. The

15  department shall establish reasonable requirements for the

16  registration of such facilities.  The department shall use

17  reasonable efforts to identify and notify drycleaning

18  facilities and wholesale supply facilities of the registration

19  requirements by certified mail, return receipt requested. The

20  department shall provide to the Department of Revenue a copy

21  of each applicant's registration materials, within 30 working

22  days of the receipt of the materials. This copy may be in such

23  electronic format as the two agencies mutually designate.

24         2.a.  The department shall issue an invoice for annual

25  registration fees to each registered drycleaning facility or

26  wholesale supply facility by December 31 of each year. Owners

27  of drycleaning facilities and wholesale supply facilities

28  shall submit to the department an initial fee of $100 and an

29  annual renewal registration fee of $100 for each drycleaning

30  facility or wholesale supply facility owned and in operation.

31  The fee shall be paid within 30 days after receipt of billing

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  1  by the department. Facilities that fail to pay their renewal

  2  fee within 30 days after receipt of billing are subject to a

  3  late fee of $75.

  4         b.  Revenues derived from registration, and renewal,

  5  and late fees shall be deposited into the Water Quality

  6  Assurance Trust Fund to be used as provided in s. 376.3078.

  7         Section 4.  Section 376.3078, Florida Statutes, is

  8  amended to read:

  9         376.3078  Drycleaning facility restoration; funds;

10  uses; liability; recovery of expenditures.--

11         (1)  FINDINGS.--In addition to the legislative findings

12  set forth in s. 376.30, the Legislature finds and declares

13  that:

14         (a)  Significant quantities of drycleaning solvents

15  have been discharged in the past at drycleaning facilities as

16  part of the normal operation of these facilities.

17         (b)  Discharges of drycleaning solvents at such

18  drycleaning facilities have occurred and are occurring, and

19  pose a significant threat to the quality of the groundwaters

20  and inland surface waters of this state.

21         (c)  Where contamination of the groundwater or surface

22  water has occurred, remedial measures have often been delayed

23  for long periods while determinations as to liability and the

24  extent of liability are made, and such delays result in the

25  continuation and intensification of the threat to the public

26  health, safety, and welfare; in greater damage to the

27  environment; and in significantly higher costs to contain and

28  remove the contamination.

29         (d)  Adequate financial resources must be readily

30  available to provide for the expeditious supply of safe and

31  reliable alternative sources of potable water to affected

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  1  persons and to provide a means for investigation and

  2  rehabilitation of contaminated sites without delay.

  3         (e)  It is the intent of the Legislature to encourage

  4  real property owners to undertake the voluntary cleanup of

  5  property contaminated with drycleaning solvents and that the

  6  immunity provisions of this section and all other available

  7  defenses be construed in favor of real property owners.

  8         (2)  FUNDS; USES.--

  9         (a)  All penalties, judgments, recoveries,

10  reimbursements, loans, and other fees and charges related to

11  the implementation of this section and the tax revenues

12  levied, collected, and credited pursuant to ss. 376.70 and

13  376.75, and registration fees collected pursuant to s.

14  376.303(1)(d), and deductibles collected pursuant to paragraph

15  (3)(d), shall be deposited into the Water Quality Assurance

16  Trust Fund, to be used upon appropriation as provided in this

17  section.  Charges against the funds for drycleaning facility

18  or wholesale supply site rehabilitation shall be made in

19  accordance with the provisions of this section.

20         (b)  Whenever, in its determination, incidents of

21  contamination by drycleaning solvents related to the operation

22  of drycleaning facilities and wholesale supply facilities may

23  pose a threat to the environment or the public health, safety,

24  or welfare, the department shall obligate moneys available

25  pursuant to this section to provide for:

26         1.  Prompt investigation and assessment of the

27  contaminated drycleaning facility or wholesale supply facility

28  sites.

29         2.  Expeditious treatment, restoration, or replacement

30  of potable water supplies as provided in s. 376.30(3)(c)1.

31

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  1         3.  Rehabilitation of contaminated drycleaning facility

  2  or wholesale supply facility sites, which shall consist of

  3  rehabilitation of affected soil, groundwater, and surface

  4  waters, using the most cost-effective alternative that is

  5  technologically feasible and reliable and that provides

  6  adequate protection of the public health, safety, and welfare

  7  and minimizes environmental damage, in accordance with the

  8  site selection and rehabilitation criteria established by the

  9  department under subsection (4), except that nothing in this

10  subsection shall be construed to authorize the department to

11  obligate drycleaning facility restoration funds for payment of

12  costs that may be associated with, but are not integral to,

13  drycleaning facility or wholesale supply facility site

14  rehabilitation.

15         4.  Maintenance and monitoring of contaminated

16  drycleaning facility or wholesale supply facility sites.

17         5.  Inspection and supervision of activities described

18  in this subsection.

19         6.  Payment of expenses incurred by the department in

20  its efforts to obtain from responsible parties the payment or

21  recovery of reasonable costs resulting from the activities

22  described in this subsection.

23         7.  Payment of any other reasonable costs of

24  administration, including those administrative costs incurred

25  by the Department of Health and Rehabilitative Services in

26  providing field and laboratory services, toxicological risk

27  assessment, and other assistance to the department in the

28  investigation of drinking water contamination complaints and

29  costs associated with public information and education

30  activities.

31

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  1         8.  Reasonable costs of restoring property as nearly as

  2  practicable to the conditions that existed prior to activities

  3  associated with contamination assessment or remedial action.

  4

  5  The department shall not obligate funds in excess of the

  6  annual appropriation.

  7         (c)  Drycleaning facility restoration funds may not be

  8  used to:

  9         1.  Restore sites that are contaminated by solvents

10  normally used in drycleaning operations where the

11  contamination at such sites did not result from the operation

12  of a drycleaning facility or wholesale supply facility.

13         2.  Restore sites that are contaminated by drycleaning

14  solvents being transported to or from a drycleaning facility

15  or wholesale supply facility.

16         3.  Fund any costs related to the restoration of any

17  site that has been identified to qualify for listing, or is

18  listed, on the National Priority List pursuant to the

19  Comprehensive Environmental Response, Compensation, and

20  Liability Act of 1980 as amended by the Superfund Amendments

21  and Reauthorization Act of 1986, or that is under an order

22  from the United States Environmental Protection Agency

23  pursuant to s. 3008(h) of the Resource Conservation and

24  Recovery Act as amended, or has obtained, or is required to

25  obtain a permit for the operation of a hazardous waste

26  treatment, storage, or disposal facility, a postclosure

27  permit, or a permit pursuant to the federal Hazardous and

28  Solid Waste Amendments of 1984.

29         4.  Pay any costs associated with any fine, penalty, or

30  action brought against a drycleaning facility owner or

31

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  1  operator or wholesale supply facility or real property owner

  2  under local, state, or federal law.

  3         5.  Pay any costs related to the restoration of any

  4  site that is operated or has at some time in the past operated

  5  as a uniform rental or linen supply facility, regardless of

  6  whether the site operates as or was previously operated as a

  7  drycleaning facility or wholesale supply facility.

  8         (3)  REHABILITATION LIABILITY.--In accordance with the

  9  eligibility provisions of this section, no real property owner

10  or no person who owns or operates, or who otherwise could be

11  liable as a result of the operation of, a drycleaning facility

12  or a wholesale supply facility shall be subject to

13  administrative or judicial action brought by or on behalf of

14  any state or local government or agency thereof or by or on

15  behalf of any person to compel rehabilitation or pay for the

16  costs of rehabilitation of environmental contamination

17  resulting from the discharge of drycleaning solvents. Subject

18  to the delays that may occur as a result of the prioritization

19  of sites under this section for any qualified site, costs for

20  activities described in paragraph (2)(b) shall be absorbed at

21  the expense of the drycleaning facility restoration funds,

22  without recourse to reimbursement or recovery from the real

23  property owner or the owner or operator of the drycleaning

24  facility or the wholesale supply facility.

25         (a)  With regard to drycleaning facilities or wholesale

26  supply facilities that have operated as drycleaning facilities

27  or wholesale supply facilities on or after October 1, 1994,

28  any such drycleaning facility or wholesale supply facility at

29  which there exists contamination by drycleaning solvents shall

30  be eligible under this subsection regardless of when the

31

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  1  drycleaning contamination was discovered, provided that the

  2  drycleaning facility or the wholesale supply facility:

  3         1.  Has been registered with the department;

  4         2.  Is determined by the department to be in compliance

  5  with the department's rules regulating drycleaning solvents,

  6  drycleaning facilities, or wholesale supply facilities on or

  7  after November 19, 1980;

  8         3.  Has not been operated in a grossly negligent manner

  9  at any time on or after November 19, 1980;

10         4.  Has not been identified to qualify for listing, nor

11  is listed, on the National Priority List pursuant to the

12  Comprehensive Environmental Response, Compensation, and

13  Liability Act of 1980 as amended by the Superfund Amendments

14  and Reauthorization Act of 1986, and as subsequently amended;

15         5.  Is not under an order from the United States

16  Environmental Protection Agency pursuant to s. 3008(h) of the

17  Resource Conservation and Recovery Act as amended (42 U.S.C.A.

18  s. 6928(h)), or has not obtained and is not required to obtain

19  a permit for the operation of a hazardous waste treatment,

20  storage, or disposal facility, a postclosure permit, or a

21  permit pursuant to the federal Hazardous and Solid Waste

22  Amendments of 1984;

23

24  and provided that the real property owner or the owner or

25  operator of the drycleaning facility or the wholesale supply

26  facility has not willfully concealed the discharge of

27  drycleaning solvents and has remitted all taxes due pursuant

28  to ss. 376.70 and 376.75, has provided documented evidence of

29  contamination by drycleaning solvents as required by the rules

30  developed pursuant to this section, has reported the

31

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  1  contamination prior to December 31, 1998 2005, and has not

  2  denied the department access to the site.

  3         (b)  With regard to drycleaning facilities or wholesale

  4  supply facilities that cease to be operated as drycleaning

  5  facilities or wholesale supply facilities prior to October 1,

  6  1994, such facilities, at which there exists contamination by

  7  drycleaning solvents, shall be eligible under this subsection

  8  regardless of when the contamination was discovered, provided

  9  that the drycleaning facility or wholesale supply facility:

10         1.  Was not determined by the department, within a

11  reasonable time after the department's discovery, to have been

12  out of compliance with the department rules regulating

13  drycleaning solvents, drycleaning facilities, or wholesale

14  supply facilities implemented which were in effect at the time

15  of operation at any time on or after November 19, 1980;

16         2.  Was not operated in a grossly negligent manner at

17  any time on or after November 19, 1980;

18         3.  Has not been identified to qualify for listing, nor

19  is listed, on the National Priority List pursuant to the

20  Comprehensive Environmental Response, Compensation, and

21  Liability Act of 1980, as amended by the Superfund Amendments

22  and Reauthorization Act of 1986, and as subsequently amended;

23  and

24         4.  Is not under an order from the United States

25  Environmental Protection Agency pursuant to s. 3008(h) of the

26  Resource Conservation and Recovery Act, as amended, or has not

27  obtained and is not required to obtain a permit for the

28  operation of a hazardous waste treatment, storage, or disposal

29  facility, a postclosure permit, or a permit pursuant to the

30  federal Hazardous and Solid Waste Amendments of 1984;

31

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  1  and provided that the real property owner or the owner or

  2  operator of the drycleaning facility or the wholesale supply

  3  facility has not willfully concealed the discharge of

  4  drycleaning solvents, has provided documented evidence of

  5  contamination by drycleaning solvents as required by the rules

  6  developed pursuant to this section, has reported the

  7  contamination prior to December 31, 1998, December 31, 2005,

  8  and has not denied the department access to the site.

  9         (c)  For purposes of determining eligibility, a

10  drycleaning facility or wholesale supply facility was operated

11  in a grossly negligent manner if the department determines

12  that the owner or operator of the drycleaning facility or the

13  wholesale supply facility:

14         1.  Willfully discharged drycleaning solvents onto the

15  soils or into the waters of the state after November 19, 1980,

16  with the knowledge, intent, and purpose that the discharge

17  would result in harm to the environment or to public health or

18  result in a violation of the law;

19         2.  Willfully concealed a discharge of drycleaning

20  solvents with the knowledge, intent, and purpose that the

21  concealment would result in harm to the environment or to

22  public health or result in a violation of the law; or

23         3.  Willfully violated a local, state, or federal law

24  or rule regulating the operation of drycleaning facilities or

25  wholesale supply facilities with the knowledge, intent, and

26  purpose that the act would result in harm to the environment

27  or to public health or result in a violation of the law. For

28  purposes of this subsection, the willful discharge of

29  drycleaning solvents onto the soils or into the waters of the

30  state after November 19, 1980, or the willful concealment of a

31  discharge of drycleaning solvents, or a willful violation of

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  1  local, state, or federal law or rule regulating the operation

  2  of drycleaning facilities or wholesale supply facilities shall

  3  be construed to be gross negligence in the operation of a

  4  drycleaning facility or wholesale supply facility.

  5         (d)1.  With respect to eligible drycleaning solvent

  6  contamination reported to the department as part of a

  7  completed application, as required by the rules developed

  8  pursuant to this section, by June 30, 1997, the costs of

  9  activities described in paragraph (2)(b) shall be absorbed at

10  the expense of the drycleaning facility restoration funds,

11  less a $1,000 deductible per incident, which shall be paid by

12  the applicant or current property owner. The deductible shall

13  be paid within 60 days after receipt of billing by the

14  department.

15         2.  For contamination reported to the department as

16  part of a completed application, as required by the rules

17  developed under this section, from July 1, 1997, through

18  September 30, 1998 June 30, 2001, the costs shall be absorbed

19  at the expense of the drycleaning facility restoration funds,

20  less a $5,000 deductible per incident. The deductible shall be

21  paid within 60 days after receipt of billing by the

22  department.

23         3.  For contamination reported to the department as

24  part of a completed application, as required by the rules

25  developed pursuant to this section, from October 1, 1998 July

26  1, 2001, through December 31, 1998 2005, the costs shall be

27  absorbed at the expense of the drycleaning facility

28  restoration funds, less a $10,000 deductible per incident. The

29  deductible shall be paid within 60 days after receipt of

30  billing by the department.

31

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  1         4.  For contamination reported after December 31, 1998

  2  2005, no costs will be absorbed at the expense of the

  3  drycleaning facility restoration funds.

  4         (e)  The provisions of this subsection shall not apply

  5  to any site where the department has been denied site access

  6  to implement the provisions of this section.

  7         (f)  In order to identify those drycleaning facilities

  8  and wholesale supply facilities that have experienced

  9  contamination resulting from the discharge of drycleaning

10  solvents and to ensure the most expedient rehabilitation of

11  such sites, the owners and operators of drycleaning facilities

12  and wholesale supply facilities are encouraged to detect and

13  report contamination from drycleaning solvents related to the

14  operation of drycleaning facilities and wholesale supply

15  facilities.  The department shall establish reasonable

16  guidelines for the written reporting of drycleaning

17  contamination and shall distribute forms to registrants under

18  s. 376.303(1)(d), and to other interested parties upon

19  request, to be used for such purpose.

20         (g)  A report of drycleaning solvent contamination at a

21  drycleaning facility or wholesale supply facility made to the

22  department by any person in accordance with this subsection,

23  or any rules promulgated pursuant hereto, may not be used

24  directly as evidence of liability for such discharge in any

25  civil or criminal trial arising out of the discharge.

26         (h)  The provisions of this subsection shall not apply

27  to drycleaning facilities owned or operated by the state or

28  Federal Government.

29         (i)  Due to the value of Florida's potable water, it is

30  the intent of the Legislature that the department initiate and

31  facilitate as many cleanups as possible utilizing the

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  1  resources of the state, local governments, and the private

  2  sector. The department is authorized to adopt necessary rules

  3  and enter into contracts to carry out the intent of this

  4  subsection and to limit or prevent future contamination from

  5  the operation of drycleaning facilities and wholesale supply

  6  facilities.

  7         (j)  It is not the intent of the Legislature that the

  8  state become the owner or operator of a drycleaning facility

  9  or wholesale supply facility by engaging in state-conducted

10  cleanup.

11         (k)  The owner, the operator, and either the real

12  property owner or the agent of the real property owner may

13  apply for the Drycleaning Contamination Cleanup Program by

14  jointly submitting a completed application package to the

15  department pursuant to the rules that shall be adopted by the

16  department.  If the application cannot be jointly submitted,

17  then the applicant shall provide notice of the application to

18  other interested parties. After reviewing the completed

19  application package, the department shall notify the applicant

20  in writing as to whether the drycleaning facility or wholesale

21  supply facility is eligible for the program. If the department

22  denies eligibility for a completed application package, the

23  notice of denial shall specify the reasons for the denial,

24  including specific and substantive findings of fact, and shall

25  constitute agency action subject to the provisions of chapter

26  120.  For the purposes of ss. 120.569 and 120.57, the real

27  property owner and the owner and operator of a drycleaning

28  facility or wholesale supply facility which is the subject of

29  a decision by the department with regard to eligibility shall

30  be deemed to be parties whose substantial interests are

31

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  1  determined by the department's decision to approve or deny

  2  eligibility.

  3         (l)  Eligibility under this subsection applies to the

  4  drycleaning facility or wholesale supply facility.  A

  5  determination of eligibility or ineligibility shall not be

  6  affected by any conveyance of the ownership of the drycleaning

  7  facility, wholesale supply facility, or the real property on

  8  which such facility is located.  Nothing contained in this

  9  chapter shall be construed to allow a drycleaning facility or

10  wholesale supply facility which would not be eligible under

11  this subsection to become eligible as a result of the

12  conveyance of the ownership of the ineligible drycleaning

13  facility or wholesale supply facility to another owner.

14         (m)  If funding for the drycleaning contamination

15  rehabilitation program is eliminated, the provisions of this

16  subsection shall not apply.

17         (n)1.  The department shall have the authority to

18  cancel the eligibility of any drycleaning facility or

19  wholesale supply facility that submits fraudulent information

20  in the application package or that fails to continuously

21  comply with the conditions of eligibility set forth in this

22  subsection, or has not remitted all fees pursuant to s.

23  376.303(1)(d), or has not remitted the deductible payments

24  pursuant to paragraph (d).

25         2.  If the program eligibility of a drycleaning

26  facility or wholesale supply facility is subject to

27  cancellation pursuant to this section, then the department

28  shall notify the applicant in writing of its intent to cancel

29  program eligibility and shall state the reason or reasons for

30  cancellation. The applicant shall have 45 days to resolve the

31  reason or reasons for cancellation to the satisfaction of the

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  1  department.  If, after 45 days, the applicant has not resolved

  2  the reason or reasons for cancellation to the satisfaction of

  3  the department, the order of cancellation shall become final

  4  and shall be subject to the provisions of chapter 120.

  5         (o)  A real property owner shall not be subject to

  6  administrative or judicial action brought by or on behalf of

  7  any person or local or state government, or agency thereof,

  8  for gross negligence or violations of department rules prior

  9  to January 1, 1990, which resulted from the operation of a

10  drycleaning facility, provided that the real property owner

11  demonstrates that:

12         1.  The real property owner had ownership in the

13  property at the time of the gross negligence or violation of

14  department rules and did not cause or contribute to

15  contamination on the property;

16         2.  The real property owner was a distinct and separate

17  entity from the owner and operator of the drycleaning

18  facility, and did not have an ownership interest in or share

19  in the profits of the drycleaning facility;

20         3.  The real property owner did not participate in the

21  operation or management of the drycleaning facility;

22         4.  The real property owner complied with all discharge

23  reporting requirements, and did not conceal any contamination;

24  and

25         5.  The department has not been denied access.

26

27  The This defense provided by this paragraph does shall not

28  apply to any liability under pursuant to a federally delegated

29  program.

30         (p)  A person whose property becomes contaminated due

31  to geophysical or hydrologic reasons from the operation of a

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  1  nearby drycleaning or wholesale supply facility and whose

  2  property has never been occupied by a business that utilized

  3  or stored drycleaning solvents or similar constituents is not

  4  subject to administrative or judicial action brought by or on

  5  behalf of another to compel the rehabilitation of or the

  6  payment of the costs for the rehabilitation of sites

  7  contaminated by drycleaning solvents, provided that the

  8  person:

  9         1.  Does not own and has never held an ownership

10  interest in, or shared in the profits of, the drycleaning

11  facility operated at the source location;

12         2.  Did not participate in the operation or management

13  of the drycleaning facility at the source location; and

14         3.  Did not cause, contribute to, or exacerbate the

15  release or threat of release of any hazardous substance

16  through any act or omission.

17

18  The defense provided by this paragraph does not apply to any

19  liability under a federally delegated program.

20         (q)  Nothing in this subsection precludes the

21  department from considering information and documentation

22  provided by private consultants, local government programs,

23  federal agencies, or any individual which is relevant to an

24  eligibility determination if the department provides the

25  applicant with reasonable access to the information and its

26  origin.

27         (4)  SITE SELECTION AND REHABILITATION CRITERIA.--It is

28  the intent of the Legislature to protect the health of all

29  people under actual circumstances of exposure.  By July 1,

30  1999, the secretary of the department shall establish criteria

31  by rule for the purpose of determining, on a site-specific

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  1  basis, the rehabilitation program tasks that comprise a site

  2  rehabilitation program, including a voluntary site

  3  rehabilitation program, and the level at which a

  4  rehabilitation program task and a site rehabilitation program

  5  may be deemed completed.  In establishing the rule, the

  6  department shall incorporate, to the maximum extent feasible,

  7  risk-based corrective action principles to achieve protection

  8  of human health and safety and the environment in a

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

10  rule shall also include protocols for the use of natural

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

12  The criteria for determining what constitutes a rehabilitation

13  program task or completion of a site rehabilitation program

14  task or site rehabilitation program, including a voluntary

15  site rehabilitation program, must:

16         (a)  Consider the current exposure and potential risk

17  of exposure to humans and the environment, including multiple

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

19  characteristics of each contaminant must be considered in

20  order to determine the feasibility of risk-based corrective

21  action assessment.

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

23  the contamination.  However, the department is authorized to

24  temporarily move the point of compliance to the boundary of

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

26  within the property boundary, while cleanup, including cleanup

27  through natural attenuation processes in conjunction with

28  appropriate monitoring, is proceeding.  The department also is

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

30  to temporarily extend the point of compliance beyond the

31  property boundary with appropriate monitoring, if such

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  1  extension is needed to facilitate natural attenuation or to

  2  address the current conditions of the plume, provided human

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

  4  When temporarily extending the point of compliance beyond the

  5  property boundary, it cannot be extended further than the

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

  7  voluntary cleanup agreement, if known, or the lateral extent

  8  of the plume as defined at the time of site assessment.

  9  Temporary extension of the point of compliance beyond the

10  property boundary, as provided in this paragraph, must include

11  actual notice by the person responsible for site

12  rehabilitation to local governments and the owners of any

13  property into which the point of compliance is allowed to

14  extend and constructive notice to residents and business

15  tenants of the property into which the point of compliance is

16  allowed to extend. Persons receiving notice pursuant to this

17  paragraph shall have the opportunity to comment within 30 days

18  of receipt of the notice.

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

20  all sites contaminated with drycleaning solvents ultimately

21  achieve the applicable cleanup target levels provided in this

22  section. In the circumstances provided below, and after

23  constructive notice and opportunity to comment within 30 days

24  from receipt of the notice to local government, to owners of

25  any property into which the point of compliance is allowed to

26  extend, and to residents on any property into which the point

27  of compliance is allowed to extend, the department may allow

28  concentrations of contaminants to temporarily exceed the

29  applicable cleanup target levels while cleanup, including

30  cleanup through natural attenuation processes in conjunction

31

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  1  with appropriate monitoring, is proceeding, if human health,

  2  public safety, and the environment are protected.

  3         (d)  Allow the use of institutional or engineering

  4  controls at sites contaminated with drycleaning solvents,

  5  where appropriate, to eliminate or control the potential

  6  exposure to contaminants of humans or the environment. The use

  7  of controls must be preapproved by the department and only

  8  after constructive notice and opportunity to comment within 30

  9  days from receipt of notice is provided to local governments,

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

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

12  which the point of compliance is allowed to extend. When

13  institutional or engineering controls are implemented to

14  control exposure, the removal of the controls must have prior

15  department approval and must be accompanied by the resumption

16  of active cleanup, or other approved controls, unless cleanup

17  target levels under this section have been achieved.

18         (e)  Consider the additive effects of contaminants.

19  The synergistic and antagonistic effects shall also be

20  considered when the scientific data become available.

21         (f)  Take into consideration individual site

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

23  the current and projected use of the affected groundwater and

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

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

26  the exposed population, the degree and extent of

27  contamination, the rate of contaminant migration, the apparent

28  or potential rate of contaminant degradation through natural

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

30  potential for further migration in relation to site property

31  boundaries.

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

  2         1.  Cleanup target levels for each contaminant found in

  3  groundwater shall be the applicable state water quality

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

  5  target levels for groundwater shall be based on the minimum

  6  criteria specified in department rule.  The department shall

  7  consider the following, as appropriate, in establishing the

  8  applicable minimum criteria:  calculations using a lifetime

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

10  best achievable detection limit; the naturally occurring

11  background concentration; or nuisance, organoleptic, and

12  aesthetic considerations.

13         2.  Where surface waters are exposed to contaminated

14  groundwater, the cleanup target levels for the contaminants

15  shall be based on the lower of the groundwater or surface

16  water standards as established by department rule.  The point

17  of measuring compliance with the surface water standards shall

18  be in the groundwater immediately adjacent to the surface

19  water body.

20         3.  The department may set alternative cleanup target

21  levels based upon the person responsible for site

22  rehabilitation demonstrating, using site-specific modeling and

23  risk assessment studies, that human health, public safety, and

24  the environment are protected to the same degree as provided

25  in subparagraphs 1. and 2.  Where a state water quality

26  standard is applicable, a deviation may not result in the

27  application of cleanup target levels more stringent than the

28  standard.  In determining whether it is appropriate to

29  establish alternative cleanup target levels at a site, the

30  department must consider the effectiveness of source removal

31  that has been completed at the site and the practical

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  1  likelihood of the use of low yield or poor quality

  2  groundwater, the use of groundwater near marine surface water

  3  bodies, the current and projected use of the affected

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

  5  groundwater in the immediate vicinity of the contaminated

  6  area, where it has been demonstrated that the groundwater

  7  contamination is not migrating away from such localized

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

  9  environment are protected.

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

11  action order," with conditions where appropriate, when

12  alternative cleanup target levels established pursuant to

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

14  responsible for site rehabilitation can demonstrate that the

15  cleanup target level is unachievable within available

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

17  shall consider the feasibility of an alternative site

18  rehabilitation technology in the area.

19         (i)  Establish appropriate cleanup target levels for

20  soils.

21         1.  In establishing soil cleanup target levels for

22  human exposure to each contaminant found in soils from the

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

24  shall consider the following, as appropriate: calculations

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

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

27  naturally occurring background concentration. Institutional

28  controls or other methods shall be used to prevent human

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

30  surface.  Any removal of such institutional controls shall

31  require such contaminated soils to be remediated.

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  1         2.  Leachability-based soil target levels shall be

  2  based on protection of the groundwater cleanup target levels

  3  or the alternate cleanup target levels for groundwater

  4  established pursuant to this paragraph, as appropriate. Source

  5  removal and other cost-effective alternatives that are

  6  technologically feasible shall be considered in achieving the

  7  leachability soil target levels established by the department.

  8  The leachability goals shall not be applicable if the

  9  department determines, based upon individual site

10  characteristics, that contaminants will not leach into the

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

12  public safety, and the environment.

13         3.  The department may set alternative cleanup target

14  levels based upon the person responsible for site

15  rehabilitation demonstrating, using site-specific modeling and

16  risk assessment studies, that human health, public safety, and

17  the environment are protected.

18

19  The department shall require source removal, if warranted and

20  cost-effective.  Once source removal at a site is complete,

21  the department shall reevaluate the site to determine the

22  degree of active cleanup needed to continue.  Further, the

23  department shall determine if the reevaluated site qualifies

24  for monitoring only or if no further action is required to

25  rehabilitate the site.  If additional site rehabilitation is

26  necessary to reach "no further action" status, the department

27  is encouraged to utilize natural attenuation and monitoring

28  where site conditions warrant.

29         (5)  DISPOSAL OR REUSE.--The cleanup criteria

30  established pursuant to subsection (4) do not constitute

31  disposal or reuse criteria. Offsite disposal or relocation

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  1  must be in accordance with all applicable federal, state, and

  2  local rules and regulations. that drycleaning facility

  3  restoration funds in the Water Quality Assurance Trust Fund be

  4  used to fund the rehabilitation of sites that pose a

  5  significant threat to the public health, safety, or welfare.

  6         (a)  The department shall adopt rules to establish

  7  priorities for state-conducted rehabilitation at contaminated

  8  drycleaning facility or wholesale supply facility sites based

  9  upon factors that include, but need not be limited to:

10         1.  The degree to which human health, safety, or

11  welfare may be affected by exposure to the contamination.

12         2.  The size of the population or area affected by the

13  contamination.

14         3.  The present and future uses of the affected aquifer

15  or surface waters, with particular consideration as to the

16  probability that the contamination is substantially affecting,

17  or will migrate to and substantially affect, a known public or

18  private source of potable water.

19         4.  The effect of the contamination on the environment.

20

21  Drycleaning facility restoration funds shall then be obligated

22  for activities described in paragraph (2)(b) at individual

23  sites in accordance with the criteria established in this

24  subsection. However, nothing in this paragraph shall be

25  construed to restrict the department from modifying the

26  priority status of a drycleaning facility or wholesale supply

27  facility rehabilitation site where conditions warrant.

28         (b)  Criteria for determining completion of site

29  rehabilitation program tasks and site rehabilitation programs

30  shall be based upon the factors set forth in paragraph (a) and

31  the following additional factors:

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  1         1.  Individual site characteristics, including natural

  2  rehabilitation processes.

  3         2.  Applicable state water quality standards.

  4         3.  Whether deviation from state water quality

  5  standards or from established criteria is appropriate, based

  6  upon the degree to which the desired rehabilitation level is

  7  achievable and can be reasonably and cost-effectively

  8  implemented within available technologies or control

  9  strategies; except that, where a state water quality standard

10  is applicable, such deviation may not result in the

11  application of standards more stringent than said standard.

12         (6)  INTENT; APPLICATION.--

13         (a)(c)  It is recognized that restoration of

14  groundwater resources contaminated with certain drycleaning

15  solvents, such as perchloroethylene, may not be achievable

16  using currently available technology. In situations where the

17  use of available technology is not anticipated to achieve

18  water quality standards, the department, at its discretion,

19  may use innovative technology that has been field-tested

20  through a federal innovative technology program and that has

21  engineering and cost data available.

22         (b)(d)  Nothing in this subsection shall be construed

23  to restrict the department from temporarily postponing

24  completion of any site rehabilitation program for which

25  drycleaning facility restoration funds are being expended

26  whenever such postponement is deemed necessary in order to

27  make funds available for rehabilitation of a drycleaning

28  facility or wholesale supply facility contamination site with

29  a higher priority status.

30         (c)(e)  The department shall provide the rehabilitation

31  of eligible drycleaning facilities and wholesale supply

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  1  facilities consistent with this subsection.  Nothing in this

  2  chapter shall subject the department to liability for any

  3  action that may be required of the owner, operator, or real

  4  property owner by any private party or any local, state, or

  5  federal government entity.

  6         (7)(5)  SCORING SYSTEM.--The department shall use the

  7  following scoring system to rank and prioritize sites for

  8  rehabilitation that have been determined to be eligible for

  9  the program pursuant to subsection (3).  If the application

10  package documents that a site has one of the following

11  characteristics, then the site shall be allocated the

12  corresponding number of points.

13         (a)  Any site having a condition that exhibits a fire

14  or explosion hazard shall be of highest priority.

15         (b)  Threat to drinking water supply wells.

16         1.  Capacity:

17         a.  A site shall be awarded points based on the

18  permitted capacity of the largest uncontaminated public water

19  supply well or the capacity of the largest uncontaminated

20  private drinking water well constructed prior to the date of

21  contamination discovery that is located within 1 mile of the

22  site.  If multiple uncontaminated wells of the same capacity

23  are present within 1 mile, then select the uncontaminated well

24  closest to the site. Points shall be awarded as follows:

25         For uncontaminated wells (only one shall apply):

26

27         Capacity (gallons per day)         Points

28         greater than 1,000,000             90

29         100,000 to 1,000,000               60

30         less than 100,000                  30

31

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  1         b.  If no points were awarded from sub-subparagraph a.,

  2  and contaminated wells are present, then the site shall be

  3  awarded points based on the permitted capacity of the largest

  4  contaminated public water supply well or the capacity of the

  5  largest contaminated private drinking water well constructed

  6  prior to the date of contamination discovery that is located

  7  within 1 mile of the site.  If multiple contaminated wells of

  8  the same capacity are present within 1 mile, then select the

  9  contaminated well closest to the site.  Points shall be

10  awarded as follows:

11         For contaminated wells (only one shall apply):

12

13         Capacity (gallons per day)         Points

14         greater than 1,000,000             25

15         100,000 to 1,000,000               15

16         less than 100,000                  5

17

18         2.  A site shall be awarded points based on the

19  proximity of the public water supply well or private well

20  selected in subparagraph 1. as follows. If the well selected

21  is an uncontaminated well, then select only one from

22  sub-subparagraph a. below.  If the well selected is a

23  contaminated well, then select only one from sub-subparagraph

24  b. below:

25         a.  For uncontaminated wells:

26

27         Distance                           Points

28         within 500 feet                    40

29         within  1/4  mile                  30

30         within  1/2  mile                  20

31         within 1 mile                      10

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  1

  2         b.  For contaminated wells:

  3

  4         Distance                           Points

  5         within 500 feet                    15

  6         within  1/4  mile                  10

  7         within  1/2  mile                  8

  8         within 1 mile                      5

  9

10         (c)  A site shall be awarded points based on

11  groundwater vulnerability to contamination using the

12  department's current DRASTIC Index (only one shall apply):

13

14         DRASTIC Index                      Points

15         79 and below                       3

16         80 to 99                           6

17         100 to 119                         9

18         120 to 139                         12

19         140 to 159                         15

20         160 to 179                         18

21         180 to 199                         21

22         200 to 266                         24

23

24         (d)  Aquifer Classification (select all that apply):

25         1.  A site located in a G-I or F-I aquifer area shall

26  be awarded 3 points.

27         2.  A site located in a G-II aquifer area shall be

28  awarded 2 points.

29         3.  A site located in a United States Environmental

30  Protection Agency designated sole source aquifer area shall be

31  awarded 1 point.

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  1         (e)  Conditions favoring a continual source (only one

  2  shall apply):

  3         1.  If a site has chlorinated drycleaning solvents in

  4  the soil at concentrations greater than or equal to 1

  5  milligram per kilogram or in the groundwater at concentrations

  6  greater than or equal to 1,500 micrograms per liter, then the

  7  site shall be awarded 7 points.

  8         2.  If the site has chlorinated drycleaning solvents in

  9  the soil at concentrations less than 1 milligram per kilogram

10  or in the groundwater at concentrations less than 1,500

11  micrograms per liter, then the site shall be awarded 2 points.

12         (f)  Environmental Setting (select all that apply):

13         1.  A site located within  1/2  mile of an

14  uncontaminated surface water body used as a permitted public

15  water system shall be awarded 10 points.

16         2.  A site located within  1/2  mile of an Outstanding

17  Florida Water body shall be awarded 2 points.

18         3.  A site located within  1/4  mile of a surface water

19  body shall be awarded 1 point.

20         4.  A site located within  1/4  mile of an area of

21  critical state concern as defined in chapter 380 shall be

22  awarded 2 points.

23         (8)(6)  SCORING SYSTEM APPLICATION.--

24         (a)  If the department determines that a site is

25  eligible for the program, pursuant to this section, then the

26  department shall develop a score for the site in accordance

27  with provisions of subsection (5).

28         (b)  A priority list of eligible sites shall be

29  developed, by the department, based on an ordering of scored

30  sites such that the highest-scored sites shall be of highest

31  priority for rehabilitation.

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  1         (c)  Scored sites shall be incorporated into the

  2  priority list on a quarterly basis with the ranking of all

  3  sites previously on the list being adjusted accordingly.

  4         (d)  Assignments for program tasks to be conducted by

  5  state contractors shall be made according to the current

  6  priority list and shall be based on the department

  7  determination of contractor logistics, geographical

  8  considerations, and other criteria the department determines

  9  are necessary to achieve cost-effective site rehabilitation.

10         (e)  Assignments for the program tasks shall be made

11  beginning with the highest-ranked sites on the priority list

12  at the effective date the assignment is made and proceed

13  through lower-ranked sites.

14         (f)  All scored sites will be added to the priority

15  list on a quarterly basis until all the sites have been

16  assigned.

17         (g)  Once an assignment is made, a subsequent quarterly

18  adjustment to the priority list shall not alter that

19  assignment unless a more cost-effective approach can be

20  achieved by reassignment, a compelling public health condition

21  or an environmental condition warrants a reassignment, or the

22  reassignment is otherwise in the public interest.

23         (h)  Regardless of the score of a site, the department

24  may initiate emergency action for those sites that, in the

25  judgment of the department, are a threat to human health and

26  safety, or where failure to prevent migration of drycleaning

27  solvents would cause irreversible damage to the environment.

28         (9)(7)  REQUIREMENT FOR DRYCLEANING FACILITIES.--It is

29  the intent of the Legislature that the following drycleaning

30  solvent containment shall be required of the owners or

31  operators of drycleaning facilities, as follows:

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  1         (a)  Owners or operators of drycleaning facilities

  2  shall by January 1, 1997, install dikes or other containment

  3  structures around each machine or item of equipment in which

  4  drycleaning solvents are used and around any area in which

  5  solvents or waste-containing solvents are stored.  Such dikes

  6  or containment structures shall be capable of containing 110

  7  percent of the capacity of each such machine and each such

  8  storage area.  To the extent practicable, each owner or

  9  operator of a drycleaning facility shall seal or otherwise

10  render impervious those portions of all dikes' floor surfaces

11  upon which any drycleaning solvents may leak, spill, or

12  otherwise be released.

13         (b)  For drycleaning facilities that commence operating

14  subsequent to January 1, 1996, the owners or operators of such

15  facilities shall, prior to the commencement of operations,

16  install beneath each machine or item of equipment in which

17  drycleaning solvents are used a rigid and impermeable

18  containment vessel capable of containing 110 percent of the

19  total tank capacity of each machine.

20         (c)  Notwithstanding the provisions of subsection (3),

21  the owner or operator of a drycleaning facility or wholesale

22  supply facility at which there is a spill of more than 1 quart

23  of drycleaning solvent outside of a containment structure, on

24  or after July 1, 1995, shall report the spill to the state

25  through the State Warning Point pursuant to s. 403.161(1)(d)

26  immediately upon the discovery of such spill, and immediately

27  initiate and complete actions to abate the source of the

28  spill, remove product from all indoor and outdoor surface

29  areas, remove product and dissolved product from any septic

30  tank or catch basin in which the solvent has accumulated, and

31  remove affected soils, if any.  Costs incurred by an owner or

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  1  operator for such response actions, up to a maximum of $10,000

  2  in the aggregate for all spills at a single facility, shall be

  3  credited to the owner or operator against the future gross

  4  receipts tax set forth in s. 376.70 and, in the case of a

  5  wholesale supply facility, against the future tax on

  6  production or importation of perchloroethylene, as set forth

  7  in s. 376.75.

  8         (d)  Failure to comply with the requirements of this

  9  subsection shall constitute gross negligence with regard to

10  determining site eligibility in subsection (3).

11         (10)(8)  INSURANCE REQUIREMENTS.--The owner or operator

12  of an operating drycleaning facility or wholesale supply

13  facility shall, by January 1, 1999 180 days after October 1,

14  1995, have purchased third-party liability insurance for $1

15  million of coverage for each operating facility.  The owner or

16  operator shall maintain such insurance while operating as a

17  drycleaning facility or wholesale supply facility and provide

18  proof of such insurance to the department upon registration

19  renewal each year thereafter. Such requirement applies only if

20  such insurance becomes available to the owner or operator at a

21  reasonable rate and covers liability for contamination

22  subsequent to the effective date of the policy and prior to

23  the effective date, retroactive to the commencement of

24  operations at the drycleaning facility or wholesale supply

25  facility. Such insurance may be offered in group coverage

26  policies with a shared aggregate of not less that $15 million

27  per year that occurred both before and after the effective

28  date of the policy. For the purposes of this subsection,

29  reasonable rate means the rate developed based on exposure to

30  loss and underwriting and administrative costs as determined

31  by the Department of Insurance, in consultation with

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  1  representatives of the drycleaning industry. Failure to comply

  2  with this subsection shall subject the owner and operator to

  3  the provisions of s. 376.302.

  4         (11)(9)  VOLUNTARY CLEANUP.--A real property owner is

  5  authorized to conduct site rehabilitation activities at any

  6  time pursuant to department rules, either through agents of

  7  the real property owner or through responsible response action

  8  contractors or subcontractors, whether or not the facility has

  9  been determined by the department to be eligible for the

10  drycleaning solvent cleanup program.  A real property owner or

11  any other person party that conducts site rehabilitation may

12  not seek cost recovery from the department or the Water

13  Quality Assurance Trust Fund for any such rehabilitation

14  activities. A real property owner that voluntarily conducts

15  such site rehabilitation, whether commenced before or on or

16  after October 1, 1995, shall be immune from liability to any

17  person, state or local government, or agency thereof to compel

18  or enjoin site rehabilitation or pay for the cost of

19  rehabilitation of environmental contamination, or to pay any

20  fines or penalties regarding rehabilitation, as soon so long

21  as the real property owner:

22         (a)  Conducts contamination assessment and site

23  rehabilitation consistent with state and federal laws and

24  rules;

25         (b)  Conducts such site rehabilitation in a timely

26  manner according to a rehabilitation schedule approved by the

27  department; and

28         (c)  Does not deny the department access to the site.

29  Upon completion of such site rehabilitation activities in

30  accordance with the requirements of this subsection, the

31

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  1  department shall render a site rehabilitation completion

  2  order.

  3

  4  This immunity shall continue to apply to any real property

  5  owner who transfers, conveys, leases, or sells property on

  6  which a drycleaning facility is located, so long as the

  7  voluntary cleanup activities continue.

  8         (12)  REOPENERS.--Upon completion of site

  9  rehabilitation in compliance with subsection (11), additional

10  site rehabilitation is not required unless it is demonstrated:

11         (a)  That fraud was committed in demonstrating site

12  conditions or completion of site rehabilitation;

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

14  area of previously unknown contamination which exceeds the

15  site-specific rehabilitation levels established in accordance

16  with subsection (4), or which otherwise poses the threat of

17  real and substantial harm to human health, public safety, or

18  the environment;

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

20  site rehabilitation criteria established under this section;

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

22  acceptable risk established under subsection (4) due to

23  substantial changes in exposure conditions, such as a change

24  in land use from nonresidential to residential use. Any person

25  who changes the land use of the site thus causing the level of

26  risk to increase beyond the acceptable risk level may be

27  required by the department to undertake additional remediation

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

29  environment are protected consistent with this section; or

30         (e)  That a new discharge occurs at the drycleaning

31  site subsequent to a determination of eligibility for

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  1  participation in the drycleaning program established under

  2  this section.

  3         (13)(10)  DEPARTMENTAL DUTY TO SEEK RECOVERY AND

  4  REIMBURSEMENT.--

  5         (a)  Except as provided in subsection (3) and as

  6  otherwise provided by law, the department shall recover from

  7  any person causing or having caused the discharge of

  8  drycleaning solvents in relation to the operation of a

  9  drycleaning facility or wholesale supply facility, jointly and

10  severally, all sums owed or expended from drycleaning facility

11  restoration funds, pursuant to s. 376.308, except that the

12  department may decline to pursue such recovery if it finds the

13  amount involved to be too small or the likelihood of recovery

14  too uncertain.

15         (b)  Except as provided in subsection (3) and as

16  otherwise provided by law, it is the duty of the department in

17  administering the drycleaning facility restoration funds to

18  diligently pursue the reimbursement to the Water Quality

19  Assurance Trust Fund of any sum expended from the fund for

20  rehabilitation in accordance with the provisions of this

21  section, unless the department finds the amount involved to be

22  too small or the likelihood of recovery too uncertain.  For

23  the purposes of s. 95.11, the limitation period within which

24  to institute an action to recover such sums shall commence on

25  the last date on which any such sums were expended, and not

26  the date that the discharge occurred.

27         (c)  The Legislature recognizes its limitations in

28  addressing cleanup liability under federal pollution control

29  programs. In an effort to secure federal liability protection

30  for persons willing to undertake remediation responsibility at

31  a drycleaning site, the department shall attempt to negotiate

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  1  a memorandum of agreement or similar document with the United

  2  States Environmental Protection Agency, whereby the United

  3  States Environmental Protection Agency agrees to forego

  4  enforcement of federal corrective action authority at

  5  drycleaning sites that have received a site rehabilitation

  6  completion or "no further action" determination from the

  7  department or that are in the process of implementing a

  8  voluntary cleanup agreement in accordance with this section.

  9         Section 5.  Subsection (6) of section 376.308, Florida

10  Statutes, is amended to read:

11         376.308  Liabilities and defenses of facilities.--

12         (6)  Nothing herein shall be construed to affect

13  cleanup program eligibility under ss. 376.305(6), 376.3071,

14  376.3072, 376.3078, and 376.3079. Except as otherwise

15  expressly provided in this chapter, nothing in this chapter

16  shall affect, void, or defeat any immunity of any real

17  property under s. 376.3078.

18         Section 6.  Paragraph (a) of subsection (5) of section

19  376.313, Florida Statutes, is amended to read:

20         376.313  Nonexclusiveness of remedies and individual

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

22         (5)(a)  In any civil action against the owner or

23  operator of a drycleaning facility or a wholesale supply

24  facility, or the owner of the real property on which such

25  facility is located, if such facility is not eligible under s.

26  376.3078(3) s. 376.3978(3), for damages arising from the

27  discharge of drycleaning solvents from a drycleaning facility

28  or wholesale supply facility, the provisions of subsection (3)

29  shall not apply if it can be proven that, at the time of the

30  discharge the alleged damages resulted solely from a discharge

31  from a drycleaning facility or wholesale supply facility that

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  1  was in compliance with department rules regulating drycleaning

  2  facilities or wholesale supply facilities.

  3         Section 7.  Section 376.70, Florida Statutes, is

  4  amended to read:

  5         376.70  Tax on gross receipts of drycleaning

  6  facilities.--

  7         (1)  There is levied a gross receipts tax on each

  8  drycleaning facility and dry drop-off facility, as defined in

  9  s. 376.301, for the privilege of engaging in the business of

10  laundering and drycleaning clothing and other fabrics in this

11  state. The tax shall be at a rate of 2 1.5 percent of all

12  charges imposed by the drycleaning facility or the dry

13  drop-off facility for the drycleaning or laundering of

14  clothing or other fabrics. Beginning January 1, 1996, the tax

15  rate shall be 2 percent of such charges. Gross receipts from

16  coin-operated laundry machines and from laundry done on a

17  wash, dry, and fold basis shall not be subject to tax.

18         (2)  Each drycleaning facility or dry drop-off facility

19  imposing a charge for the drycleaning or laundering of

20  clothing or other fabrics is required to register with the

21  Department of Revenue and become licensed for the purposes of

22  this section. The owner or operator of the facility shall

23  register the facility with the Department of Revenue.

24  Drycleaning facilities or dry drop-off facilities operating at

25  more than one location are only required to have a single

26  registration. The fee for registration is $30. The owner or

27  operator of the facility shall pay the registration fee to the

28  Department of Revenue.

29         (3)  The tax imposed by this section is due on the 1st

30  day of the month succeeding the month in which the charge is

31  imposed and shall be paid on or before the 20th day of each

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  1  month.  The tax shall be reported on forms and in the manner

  2  prescribed by the Department of Revenue by rule.  The proceeds

  3  of the taxes, after deducting the administrative costs

  4  incurred by the Department of Revenue in administering,

  5  auditing, collecting, distributing, and enforcing the tax,

  6  shall be transferred by the Department of Revenue into the

  7  Water Quality Assurance Trust Fund and shall be used as

  8  provided in s. 376.3078.  For the purposes of this section,

  9  the proceeds of the tax include all funds collected and

10  received by the Department of Revenue, including interest and

11  penalties on delinquent taxes.

12         (4)  Any drycleaning facility which includes in the

13  total retail charge to a consumer of drycleaning services any

14  portion of the tax imposed pursuant to this section shall

15  disclose on the receipt for the amount charged for such

16  services the amount of such tax and a statement that the

17  imposition of the tax was requested by the Florida Dry

18  Cleaners Coalition.

19         (5)  Gross receipts arising from charges for services

20  taxable pursuant to this section to persons who also impose

21  charges to others for those same services are exempt from the

22  tax imposed pursuant to this section.

23         (6)(5)(a)  The Department of Revenue shall administer,

24  collect, and enforce the tax imposed under this section

25  pursuant to the procedures for administration, collection, and

26  enforcement of the general state sales tax imposed under

27  chapter 212, except as provided in this subsection. Such

28  procedures include, but are not limited to, those regarding

29  the filing of consolidated returns, the granting of sale for

30  resale exemptions, and the interest and penalties on

31  delinquent taxes. The tax shall not be included in the

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  1  computation of estimated taxes pursuant to s. 212.11, nor

  2  shall the dealer's credit for collecting taxes or fees in s.

  3  212.12 apply. The provisions of s. 212.07(4) shall not apply

  4  to the tax imposed by this section.

  5         (b)  The Department of Revenue, under the applicable

  6  rules of the Public Employees Relations Commission, is

  7  authorized to employ persons and incur other expenses for

  8  which funds are appropriated by the Legislature. The

  9  Department of Revenue is empowered to adopt such rules and

10  shall prescribe and publish such forms as may be necessary to

11  effectuate the purposes of this section.

12         (c)  The Department of Revenue is authorized to

13  establish audit procedures and to assess delinquent taxes.

14         (7)  The department shall not deny eligibility in the

15  drycleaning solvent cleanup program because of the facility

16  owner's, the facility operator's, and the real property

17  owner's failure to remit all taxes due pursuant to this

18  section and s. 376.75, unless the Department of Revenue:

19         (a)  Ascertains the amount of the delinquent tax, if

20  any, and communicates this amount in writing to the

21  drycleaning solvent cleanup program applicant and the real

22  property owner; and

23         (b)  Provides a method to the facility owner, the

24  facility operator, and the real property owner for the payment

25  of the taxes.

26

27  Pursuant to this subsection, the owner or operator of a

28  drycleaning facility must demonstrate to the satisfaction of

29  the Department of Revenue that failure to remit all taxes due

30  in a timely manner was not due to willful and overt actions to

31  avoid payment of taxes.

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  1         (8)(6)  The Legislature declares that the failure to

  2  promptly implement the provisions of this section would

  3  present an immediate threat to the welfare of the state.

  4  Therefore, the executive director of the Department of Revenue

  5  is authorized to adopt emergency rules pursuant to s.

  6  120.54(4) to implement this section. Notwithstanding any other

  7  provision of law, such emergency rules shall remain effective

  8  for 180 days from the date of adoption. Other rules of the

  9  Department of Revenue related to and in furtherance of the

10  orderly implementation of this section shall not be subject to

11  a s. 120.56(2) rule challenge or a s. 120.54(3)(c)2. drawout

12  proceeding, but, once adopted, shall be subject to a s.

13  120.56(3) invalidity challenge. Such rules shall be adopted by

14  the Governor and Cabinet and shall become effective upon

15  filing with the Department of State, notwithstanding the

16  provisions of s. 120.54(3)(e)6.

17         Section 8.  Paragraph (a) of subsection (1) of section

18  287.0595, Florida Statutes, is amended to read:

19         287.0595  Pollution response action contracts;

20  department rules.--

21         (1)  The Department of Environmental Protection shall

22  establish, through the promulgation of administrative rules as

23  provided in chapter 120:

24         (a)  Procedures for determining the qualifications of

25  responsible potential bidders prior to advertisement for and

26  receipt of bids for pollution response action contracts,

27  including procedures for the rejection of unqualified bidders.

28  Response actions are those activities described in s.

29  376.301(37) s. 376.301(33).

30         Section 9.  Paragraph (f) of subsection (2) of section

31  316.302, Florida Statutes, is amended to read:

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  1         316.302  Commercial motor vehicles; safety regulations;

  2  transporters and shippers of hazardous materials;

  3  enforcement.--

  4         (2)

  5         (f)  A person who operates a commercial motor vehicle

  6  having a declared gross vehicle weight of less than 26,000

  7  pounds solely in intrastate commerce and who is not

  8  transporting hazardous materials, or who is transporting

  9  petroleum products as defined in s. 376.301 s. 376.301(27), is

10  exempt from subsection (1). However, such person must comply

11  with 49 C.F.R. parts 382, 392, 393, and 49 C.F.R. s. 396.9.

12         Section 10.  Paragraph (o) is added to subsection (7)

13  of section 213.053, Florida Statutes, to read:

14         213.053  Confidentiality and information sharing.--

15         (7)  Notwithstanding any other provision of this

16  section, the department may provide:

17         (o)  Information relative to ss. 376.70 and 376.75 to

18  the Department of Environmental Protection in the conduct of

19  its official business and to the facility owner, facility

20  operator, and real property owner as defined in s. 376.301.

21         Section 11.  This act shall take effect July 1 of the

22  year in which enacted.

23

24

25

26

27

28

29

30

31

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