Senate Bill sb1952

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    Florida Senate - 2001                                  SB 1952

    By Senator Garcia





    39-852-01

  1                      A bill to be entitled

  2         An act relating to site rehabilitation of

  3         contaminated sites; creating s. 376.30701,

  4         F.S.; extending application of risk-based

  5         corrective-action principles to all

  6         contaminated sites resulting from a discharge

  7         of pollutants or hazardous substances;

  8         providing for contamination cleanup criteria

  9         that incorporate risk-based corrective-action

10         principles to be adopted by rule; providing

11         clarification that cleanup criteria do not

12         apply to offsite relocation or treatment;

13         specifying the conditions under which further

14         rehabilitation may be required; creating s.

15         376.30702, F.S.; creating the State-Owned Lands

16         Cleanup Program to address site rehabilitation

17         of contaminated state-owned lands; stating

18         legislative findings and intent; directing the

19         Department of Environmental Protection to use

20         existing site-priority ranking and cleanup

21         criteria; establishing liability protection;

22         specifying conditions under which the

23         department must seek cost recovery; providing

24         exclusions; amending s. 199.1055, F.S.;

25         providing for tax credits; providing a time

26         period for use of tax credits; amending s.

27         220.1845, F.S.; providing for tax credits;

28         providing a time period for use of tax credits;

29         allowing taxpayers to claim credit on a

30         consolidated return up to the amount of the

31         consolidated group's tax liability; amending s.

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  1         376.30781, F.S.; providing for tax credits;

  2         prescribing the tax-credit application time

  3         period; revising the deadline; prohibiting

  4         placeholder applications; cross-referencing

  5         sections governing transferability of tax

  6         credits; eliminating obsolete provisions;

  7         providing an effective date.

  8

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

10

11         Section 1.  Section 376.30701, Florida Statutes, is

12  created to read:

13         376.30701  Application of risk-based corrective-action

14  principles to contaminated sites; applicability; legislative

15  intent; rulemaking authority; contamination cleanup criteria;

16  limitations; reopeners.--

17         (1)  APPLICABILITY.--

18         (a)  This section does not create or establish any new

19  liability for site rehabilitation at contaminated sites. This

20  section is intended to describe a risk-based corrective-action

21  process to be applied at sites where legal responsibility for

22  site rehabilitation exists pursuant to other provisions of

23  chapter 376 or chapter 403.

24         (b)  This section applies to all contaminated sites

25  resulting from a discharge of pollutants or hazardous

26  substances where legal responsibility for site rehabilitation

27  exists pursuant to other provisions of chapter 376 or chapter

28  403, except for those contaminated sites subject to the

29  risk-based corrective-action cleanup criteria established for

30  the petroleum, brownfields, and drycleaning programs pursuant

31  to ss. 376.3071, 376.81, and 376.3078.

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  1         (c)  This section applies to a variety of site

  2  rehabilitation scenarios including, but not limited to, site

  3  rehabilitation conducted voluntarily, conducted pursuant to

  4  the department's enforcement authority, or conducted as a

  5  state-managed cleanup by the department.

  6         (d)  This section, and any rules adopted pursuant

  7  thereto, shall apply retroactively to all existing

  8  contaminated sites where legal responsibility for site

  9  rehabilitation exists pursuant to other provisions of chapter

10  376 or chapter 403, except to those sites for which cleanup

11  target levels have been accepted by the department in an

12  approved technical document, current permit, or other written

13  agreement and to those sites that have received a No Further

14  Action Order or a Site Rehabilitation Completion Order from

15  the department. However, the person responsible for site

16  rehabilitation may elect to have the provisions of this

17  section, including cleanup target levels established pursuant

18  thereto, apply in lieu of those in an approved technical

19  document, current permit, or other written agreement.

20         (e)  This section may not be construed to prohibit or

21  delay actions to respond to a discharge of pollutants or

22  hazardous substances before any contact with the department.

23  The risk-based corrective-action process contemplates

24  appropriate emergency-response action or initial remedial

25  action before any formal application of the risk-based

26  corrective-action process involving site assessment, and if

27  required, subsequent remedial action. Any emergency response

28  actions or initial remedial actions must be conducted in

29  accordance with all applicable federal, state, and local laws

30  and regulations.

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  1         (2)  INTENT; RULEMAKING AUTHORITY; CLEANUP

  2  CRITERIA.--It is the intent of the Legislature to protect the

  3  health of all people under actual circumstances of exposure.

  4  By July 1, 2002, the secretary of the department shall

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

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

  7  comprise a site rehabilitation program, including a voluntary

  8  site rehabilitation program, and the level at which a

  9  rehabilitation program task and a site rehabilitation program

10  may be considered completed.  In establishing these rules, the

11  department shall apply, to the maximum extent feasible, a

12  risk-based corrective-action process to achieve protection of

13  human health and safety and the environment in a

14  cost-effective manner based on the principles set forth in

15  this subsection. These rules must prescribe a phased

16  risk-based corrective-action process that is iterative and

17  that tailors site rehabilitation tasks to site-specific

18  conditions and risk. The department and the person responsible

19  for site rehabilitation are encouraged to establish decision

20  points at which risk-management decisions will be made. The

21  department shall provide an early decision, when requested,

22  regarding applicable exposure factors and a risk-management

23  approach based on the current and future land use at the site.

24  These rules must also include protocols for the use of natural

25  attenuation, the use of institutional and engineering

26  controls, and the issuance of "no further action" letters. The

27  criteria for determining what constitutes a rehabilitation

28  program task or completion of a site rehabilitation program

29  task or site rehabilitation program, including a voluntary

30  site rehabilitation program, must:

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  1         (a)  Consider the current exposure and potential risk

  2  of exposure to humans and the environment, including multiple

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

  4  characteristics of each contaminant must be considered in

  5  order to determine the feasibility of risk-based

  6  corrective-action assessment.

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

  8  the contamination.  However, the department may temporarily

  9  move the point of compliance to the boundary of the property,

10  or to the edge of the plume when the plume is within the

11  property boundary, while cleanup, including cleanup through

12  natural attenuation processes in conjunction with appropriate

13  monitoring, is proceeding.  The department may also, pursuant

14  to criteria provided for in this section, temporarily extend

15  the point of compliance beyond the property boundary with

16  appropriate monitoring, if such extension is needed to

17  facilitate natural attenuation or to address the current

18  conditions of the plume, provided that human health, public

19  safety, and the environment are protected.  When temporarily

20  extending the point of compliance beyond the property

21  boundary, it may not be extended further than the lateral

22  extent of the plume, if known, at the time of execution of a

23  cleanup agreement, if required, or the lateral extent of the

24  plume as defined at the time of site assessment. Temporary

25  extension of the point of compliance beyond the property

26  boundary, as provided in this paragraph, must include actual

27  notice by the person responsible for site rehabilitation to

28  local governments and the owners of any property into which

29  the point of compliance is allowed to extend and constructive

30  notice to residents and business tenants of the property into

31  which the point of compliance is allowed to extend. Persons

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  1  receiving notice pursuant to this paragraph must be given the

  2  opportunity to comment within 30 days after receipt of the

  3  notice.

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

  5  all contaminated sites being cleaned up under this section

  6  ultimately achieve the applicable cleanup target levels

  7  provided in this subsection. In the circumstances provided

  8  below, and after constructive notice and opportunity to

  9  comment within 30 days after receipt of the notice to local

10  government, to owners of any property into which the point of

11  compliance is allowed to extend, and to residents on any

12  property into which the point of compliance is allowed to

13  extend, the department may allow concentrations of

14  contaminants to temporarily exceed the applicable cleanup

15  target levels while cleanup, including cleanup through natural

16  attenuation processes in conjunction with appropriate

17  monitoring, is proceeding, if human health, public safety, and

18  the environment are protected.

19         (d)  Allow the use of institutional or engineering

20  controls at contaminated sites being cleaned up under this

21  section, where appropriate, to eliminate or control the

22  potential exposure to contaminants of humans or the

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

24  department and only after constructive notice and opportunity

25  to comment within 30 days after receipt of notice is provided

26  to local governments, to owners of any property into which the

27  point of compliance is allowed to extend, and to residents on

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

29  extend. When institutional or engineering controls are

30  implemented to control exposure, the removal of the controls

31  must have prior department approval and must be accompanied by

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  1  the resumption of active cleanup, or other approved controls,

  2  unless cleanup target levels under this section have been

  3  achieved.

  4         (e)  Consider the additive effects of contaminants.

  5  The synergistic and antagonistic effects must also be

  6  considered when the scientific data become available.

  7         (f)  Take into consideration individual site

  8  characteristics, which includes, but is not limited to, the

  9  current and projected use of the affected groundwater and

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

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

12  the exposed population, the degree and extent of

13  contamination, the rate of contaminant migration, the apparent

14  or potential rate of contaminant degradation through natural

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

16  potential for further migration in relation to site property

17  boundaries.

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

19         1.  Cleanup target levels for each contaminant found in

20  groundwater must be the applicable state water quality

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

22  target levels for groundwater must be based on the minimum

23  criteria specified in department rule.  The department shall

24  apply the following, as appropriate, in establishing the

25  applicable cleanup target levels:  calculations using a

26  lifetime cancer risk level of 1.0E-6; a hazard index of 1 or

27  less; the best achievable detection limit; and nuisance,

28  organoleptic, and aesthetic considerations. However, the

29  department shall not require site rehabilitation to achieve a

30  cleanup target level for any individual contaminant that is

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  1  more stringent than the site-specific, naturally occurring

  2  background concentration for that contaminant.

  3         2.  Where surface waters are exposed to contaminated

  4  groundwater, the cleanup target levels for the contaminants

  5  must be based on the more protective of the groundwater or

  6  surface water standards as established by department rule. The

  7  point of measuring compliance with the surface water standards

  8  shall be in the groundwater immediately adjacent to the

  9  surface water body.

10         3.  Using risk-based corrective-action principles, the

11  department shall approve alternative cleanup target levels in

12  conjunction with institutional and engineering controls, if

13  needed, based upon an applicant's demonstration, using

14  site-specific data, modeling results, risk-assessment studies,

15  risk-reduction techniques, or a combination thereof, that

16  human health, public safety, and the environment are protected

17  to the same degree as provided in subparagraphs 1. and 2.

18  When a state water-quality standard is applicable, a deviation

19  may not result in the application of cleanup target levels

20  more stringent than the standard. In determining whether it is

21  appropriate to establish alternative cleanup target levels at

22  a site, the department must consider the effectiveness of any

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

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

25  groundwater, the use of groundwater near marine surface water

26  bodies, the current and projected use of the affected

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

28  groundwater in the immediate vicinity of the contaminated

29  area, where it has been demonstrated that the groundwater

30  contamination is not migrating away from such localized

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

  2  environment are protected.

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

  4  action order," with conditions including, but not limited to,

  5  the use of institutional or engineering controls where

  6  appropriate, when alternative cleanup target levels

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

  8  or when the person responsible for site rehabilitation

  9  demonstrates that the cleanup target level is unachievable

10  within available technologies. Before issuing such an order,

11  the department shall consider the feasibility of an

12  alternative site-rehabilitation technology at the contaminated

13  site.

14         (i)  Establish appropriate cleanup target levels for

15  soils.

16         1.  In establishing soil cleanup target levels for

17  human exposure to each contaminant found in soils from the

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

19  shall apply the following, as appropriate: calculations using

20  a lifetime cancer risk level of 1.0E-6; a hazard index of 1 or

21  less; and the best achievable detection limit. However, the

22  department may not require site rehabilitation to achieve a

23  cleanup target level for an individual contaminant which is

24  more stringent than the site-specific, naturally occurring

25  background concentration for that contaminant. Institutional

26  controls or other methods must be used to prevent human

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

28  surface.  Any removal of such institutional controls requires

29  that such contaminated soils be remediated.

30         2.  Leachability-based soil target levels must be based

31  on protection of the groundwater cleanup target levels or the

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  1  alternative cleanup target levels for groundwater established

  2  pursuant to this paragraph, as appropriate. Source removal and

  3  other cost-effective alternatives that are technologically

  4  feasible must be considered in achieving the leachability soil

  5  target levels established by the department. The leachability

  6  goals do not apply if the department determines, based upon

  7  individual site characteristics and in conjunction with

  8  institutional and engineering controls, if needed, that

  9  contaminants will not leach into the groundwater at levels

10  that pose a threat to human health, public safety, or the

11  environment.

12         3.  Using risk-based corrective-action principles, the

13  department shall approve alternative cleanup target levels in

14  conjunction with institutional and engineering controls, if

15  needed, based upon an applicant's demonstration, using

16  site-specific data, modeling results, risk-assessment studies,

17  risk-reduction techniques, or a combination thereof, that

18  human health, public safety, and the environment are protected

19  to the same degree as provided in subparagraphs 1. and 2.

20

21  The department shall require source removal as a

22  risk-reduction measure, if warranted and cost-effective.  Once

23  source removal at a site has been completed, the department

24  shall reevaluate the site to determine the degree of active

25  cleanup needed to continue.  Further, the department shall

26  determine whether the reevaluated site qualifies for

27  monitoring only or if no further action is required to

28  rehabilitate the site.  If additional site rehabilitation is

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

30  is encouraged to use natural attenuation and monitoring where

31  site conditions warrant.

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  1         (3)  LIMITATIONS.--The cleanup criteria established

  2  under this section govern only site rehabilitation activities

  3  occurring at the contaminated site. Removal of contaminated

  4  media from a site for offsite relocation or treatment must be

  5  in accordance with all applicable federal, state, and local

  6  laws and regulations.

  7         (4)  REOPENERS.--Upon completion of site rehabilitation

  8  in compliance with subsection (2), additional site

  9  rehabilitation is not required unless it is demonstrated:

10         (a)  That fraud was committed in demonstrating site

11  conditions or completion of site rehabilitation;

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

13  area of previously unknown contamination that exceeds the

14  site-specific rehabilitation levels established in accordance

15  with subsection (2), or that otherwise poses the threat of

16  real and substantial harm to public health, safety, or the

17  environment;

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

19  site rehabilitation criteria established under this section;

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

21  acceptable risk established under subsection (2) due to

22  substantial changes in exposure conditions, such as a change

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

24  who changes the land use of the site, thus causing the level

25  of risk to increase beyond the acceptable risk level, may be

26  required by the department to undertake additional remediation

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

28  environment are protected consistent with this section; or

29         (e)  That a new discharge of pollutants or hazardous

30  substances or disposal of solid waste or hazardous waste

31  occurs at the site subsequent to the issuance of a "no further

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  1  action" letter or site rehabilitation completion order

  2  associated with the original contamination being addressed

  3  under this section.

  4         Section 2.  Section 376.30702, Florida Statutes, is

  5  created to read:

  6         376.30702  State-Owned-Lands Cleanup Program; findings;

  7  intent; purpose; program requirements; limited liability

  8  protection; cost recovery; exclusions.--

  9         (1)  FINDINGS; INTENT.--In addition to the legislative

10  findings set forth in s. 376.30, the Legislature finds and

11  declares that:

12         (a)  Significant quantities of pollutants or hazardous

13  substances have been discharged in the past on state-owned

14  lands. Generally, these discharges have occurred as part of

15  the normal operation of facilities that existed on the

16  property. Many of these discharges occurred prior to the state

17  acquiring title to the property, or the discharges resulted

18  from the acts of tenants or lessees of the state-owned lands.

19         (b)  These discharges of pollutants and hazardous

20  substances on state-owned lands may pose a significant threat

21  to the quality of the groundwaters and inland surface waters

22  of this state.

23         (c)  Where contamination of the groundwater or surface

24  water has occurred, remedial measures have often been delayed

25  for long periods while determinations as to liability and the

26  extent of liability have been made, and such delays have

27  resulted in the continuation and intensification of the threat

28  to the public health, safety, and welfare; in greater damage

29  to the environment; and in potentially higher costs to contain

30  and remove the contamination.

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  1         (d)  Adequate financial resources must be readily

  2  available to provide for the expeditious supply of safe and

  3  reliable alternative sources of potable water to affected

  4  persons and to provide a means for investigation and

  5  rehabilitation without delay of contaminated sites on

  6  state-owned lands.

  7         (e)  Site rehabilitation at contaminated sites on

  8  state-owned lands should be based on the actual risk that

  9  contamination may pose to the environment and public health,

10  taking into account current and future land and water use and

11  the degree to which contamination may spread and place the

12  public or the environment at risk.

13         (2)  CREATION; PURPOSES OF PROGRAM.--

14         (a)  There is created the Florida State-Owned-Lands

15  Cleanup Program to be administered by the department. To

16  encourage detection, reporting, and cleanup of contamination

17  on state-owned lands, the department shall, within the

18  guidelines established in this section, implement a cleanup

19  program to provide state-funded and state-managed site

20  rehabilitation for all state-owned property contaminated by

21  discharges of pollutants or hazardous substances that are

22  reported to the department. It is not the intent of this

23  program to provide funding for environmental compliance for

24  ongoing operations on state-owned lands.

25         (b)  Continuation of this program is subject to an

26  annual appropriation from the Legislature. Continued state

27  funding will not be considered an entitlement or a vested

28  right under this section. The department shall not obligate

29  funds in excess of the annual appropriation for this program.

30         (c)  Whenever, in its determination, incidents of

31  contamination on state-owned lands caused by pollutants or

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  1  hazardous substances may pose a threat to the environment or

  2  the public health, safety, or welfare, the department shall

  3  obligate moneys available under this section to provide for:

  4         1.  Prompt investigation and assessment of the

  5  contaminated site.

  6         2.  Expeditious treatment, restoration, or replacement

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

  8         3.  Rehabilitation of contaminated sites, which shall

  9  consist of rehabilitation of affected soil, groundwater,

10  sediment and surface waters, using the most cost-effective

11  alternative that is technologically feasible and reliable and

12  that provides adequate protection of the public health,

13  safety, and welfare and minimizes environmental damage, in

14  accordance with the rehabilitation criteria established by the

15  department under s. 376.30701, except that this subsection

16  must not be construed to authorize the department to obligate

17  funds for payment of costs that may be associated with, but

18  are not integral to, site rehabilitation.

19         4.  Maintenance and monitoring of contaminated sites.

20         5.  Inspection and supervision of activities described

21  in this subsection.

22         6.  Payment of expenses incurred by the department in

23  its efforts to obtain from responsible parties the payment or

24  recovery of reasonable costs resulting from the activities

25  described in this subsection.

26         7.  Payment of any other reasonable costs of

27  administration, including those administrative costs incurred

28  by the Department of Health in providing field and laboratory

29  services, toxicological risk assessment, and other assistance

30  to the department in the investigation of drinking water

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  1  contamination complaints and costs associated with public

  2  information and education activities.

  3         8.  Reasonable costs of restoring property as nearly as

  4  practicable to the conditions that existed prior to activities

  5  associated with contamination assessment or remedial action.

  6         (3)  SITE PRIORITY RANKING AND CLEANUP CRITERIA.--

  7         (a) The department shall determine the priority ranking

  8  of all known contaminated sites on state-owned lands using the

  9  criteria listed in s. 376.3078(7) and (8), except for s.

10  376.3078(7)(e). In applying s. 376.3078(8)(h), the department

11  shall consider all pollutants and hazardous substances. It is

12  the intent of the Legislature that site rehabilitation be

13  conducted first at those sites that pose the greatest threat

14  to human health and the environment, within the availability

15  of funds appropriated annually for this program. However, this

16  subsection must not be construed to restrict the department

17  from modifying the priority status of a rehabilitation site

18  where conditions warrant, taking into consideration the actual

19  distance between the contamination site and groundwater or

20  surface water receptors or other factors that affect the risk

21  of exposure to pollutants and hazardous substances.

22         (b)  The department shall conduct site rehabilitation

23  at contaminated sites being cleaned up under this program

24  using the cleanup criteria established in s. 376.30701 and

25  chapter 62-777, Florida Administrative Code, as that chapter

26  may hereafter be amended.

27         (c)  It is recognized that restoration of groundwater

28  resources contaminated with pollutants or hazardous substances

29  may not be achievable using currently available technology. If

30  the use of available technology is not expected to achieve

31  water quality standards, the department may use innovative

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  1  technology that has been field-tested and that has engineering

  2  and cost data available.

  3         (d)  This subsection may not be construed to restrict

  4  the department from temporarily postponing completion of any

  5  site rehabilitation activities at a contaminated site on

  6  state-owned lands for which funds are being expended under

  7  this section whenever the postponement is considered necessary

  8  in order to make funds available for rehabilitation of another

  9  contamination site on state-owned lands having a higher

10  priority status.

11         (e)  Regardless of a site's priority ranking, the

12  department may temporarily postpone site rehabilitation at a

13  contaminated site on state-owned lands for which federal

14  funding may be available pursuant to the Formerly Used Defense

15  Sites Program. The department, at its discretion, may proceed

16  with state-funded cleanup of such sites if the likelihood of

17  timely federal response is low.

18         (4)  LIMITED LIABILITY PROTECTION.--

19         (a)  Except at contaminated sites subject to site

20  rehabilitation requirements under a federally delegated

21  program, the department may not compel any state agency that

22  controls or manages state-owned lands that are contaminated

23  with pollutants or hazardous substances to conduct site

24  rehabilitation at a contaminated site that has been reported

25  to the department pursuant to paragraph (2)(a). Further,

26  notwithstanding subsection (5), the department may not pursue

27  cost recovery from any state agency for site rehabilitation

28  costs incurred to clean up state-owned lands that are

29  contaminated with pollutants or hazardous substances.

30         (b)  Except as provided in paragraph (a), this section

31  does not affect the department's ability or authority to

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  1  pursue enforcement against any person who may be liable for

  2  site rehabilitation with respect to a contaminated site on

  3  state-owned lands.

  4         (c)  This subsection does not affect the ability or

  5  authority to seek contribution from any person who may be

  6  liable with respect to a contaminated site on state-owned

  7  lands.

  8         (d)  This section does not subject the department to

  9  liability for any action that may be required of the property

10  owner or the owner or operator of a facility on state-owned

11  lands by any private party or any local, state, or Federal

12  Government entity.

13         (5)  DEPARTMENTAL DUTY TO SEEK RECOVERY AND

14  REIMBURSEMENT.--

15         (a)  Except as provided in subsection (4) and as

16  otherwise provided by law, the department shall recover from

17  any person causing or having caused the discharge of

18  pollutants or hazardous substances on state-owned lands,

19  jointly and severally pursuant to s. 376.308, all sums owed or

20  expended for site rehabilitation at a site being cleaned up in

21  the State-Owned Lands Cleanup Program, except that the

22  department may decline to pursue such recovery if it finds

23  that the amount involved is too small or the likelihood of

24  recovery is too uncertain.

25         (b)  Except as provided in subsection (4) and as

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

27  administering the State-Owned Lands Cleanup Program to

28  diligently pursue the recovery of any sum expended from the

29  fund for site rehabilitation in accordance with the provisions

30  of this section, unless the department finds that the amount

31  involved is too small or the likelihood of recovery is too

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  1  uncertain. For the purposes of s. 95.11, the limitation period

  2  within which to institute an action to recover such sums

  3  begins on the last date on which any such sums were expended

  4  and not the date that the discharge occurred.

  5         (c)  In any action brought under this subsection, a

  6  person against whom the department pursues cost recovery is

  7  not required to reimburse the department for that percentage

  8  of the site rehabilitation costs which the presiding judicial

  9  officer apportions to a state agency that has received limited

10  liability protection pursuant to subsection (4).

11         (6)  EXCLUSIONS.--This section does not apply to the

12  abatement of phosphorus pollution that the state is addressing

13  under ss. 373.4592, 373.4595, and 373.461.

14         Section 3.  Subsection (1) of section 199.1055, Florida

15  Statutes, is amended to read:

16         199.1055  Contaminated site rehabilitation tax

17  credit.--

18         (1)  AUTHORIZATION FOR TAX CREDIT; LIMITATIONS.--

19         (a)  A credit in the amount of 35 percent of the costs

20  of voluntary cleanup activity that is integral to site

21  rehabilitation at the following sites is available allowed

22  against any tax due for a taxable year under s. 199.032, less

23  any credit allowed by s. 220.68 for that year:

24         1.  A drycleaning-solvent-contaminated site eligible

25  for state-funded site rehabilitation under s. 376.3078(3);

26         2.  A drycleaning-solvent-contaminated site at which

27  cleanup is undertaken by the real property owner pursuant to

28  s. 376.3078(11), if the real property owner is not also, and

29  has never been, the owner or operator of the drycleaning

30  facility where the contamination exists; or

31

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  1         3.  A brownfield site in a designated brownfield area

  2  under s. 376.80.

  3         (b)  A tax credit applicant taxpayer, or multiple tax

  4  credit applicants taxpayers working jointly to clean up a

  5  single site, may not be granted receive more than $250,000 per

  6  year in tax credits for each site voluntarily rehabilitated.

  7  Multiple tax credit applicants taxpayers shall be granted

  8  receive tax credits in the same proportion as their

  9  contribution to payment of cleanup costs. Subject to the same

10  conditions and limitations as provided in this section, a

11  municipality, or county, or other tax credit applicant that

12  which voluntarily rehabilitates a site may receive not more

13  than $250,000 per year in tax credits which it can

14  subsequently transfer subject to the provisions in paragraph

15  (g).

16         (c)  If the credit granted under this section is not

17  fully used in any one year because of insufficient tax

18  liability on the part of the tax credit applicant taxpayer,

19  the unused amount may be carried forward for a period not to

20  exceed 5 years. The credit expires 5 years after the date the

21  credit is granted under this section and may not thereafter be

22  used. However, if during the 5-year period the credit is

23  transferred, in whole or in part, under paragraph (g), each

24  transferee has 5 years from the date of transfer to use its

25  credit.

26         (d)  A taxpayer that receives a credit under s.

27  220.1845 is ineligible to receive credit under this section in

28  a given tax year.

29         (e)  A tax credit applicant taxpayer that receives

30  state-funded site rehabilitation pursuant to s. 376.3078(3)

31  for rehabilitation of a drycleaning-solvent-contaminated site

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  1  is ineligible to receive credit under this section for costs

  2  incurred by the tax credit applicant taxpayer in conjunction

  3  with the rehabilitation of that site during the same time

  4  period that state-administered site rehabilitation was

  5  underway.

  6         (f)  The total amount of the tax credits which may be

  7  granted under this section and s. 220.1845 is $2 million

  8  annually.

  9         (g)1.  Tax credits that may be available under this

10  section to an entity eligible under s. 376.30781 may be

11  transferred after a merger or acquisition to the surviving or

12  acquiring entity and used in the same manner with the same

13  limitations.

14         2.  The entity or its surviving or acquiring entity as

15  described in subparagraph 1., may transfer any unused credit

16  in whole or in units of no less than 25 percent of the

17  remaining credit.  The entity acquiring such credit may use it

18  in the same manner and with the same limitation as described

19  in this section. Such transferred credits may not be

20  transferred again although they may succeed to a surviving or

21  acquiring entity subject to the same conditions and

22  limitations as described in this section.

23         3.  In the event the credit provided for under this

24  section is reduced either as a result of a determination by

25  the Department of Environmental Protection or an examination

26  or audit by the Department of Revenue, such tax deficiency

27  shall be recovered from the first entity, or the surviving or

28  acquiring entity, to have claimed such credit up to the amount

29  of credit taken.  Any subsequent deficiencies shall be

30  assessed against any entity acquiring and claiming such

31

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  1  credit, or in the case of multiple succeeding entities in the

  2  order of credit succession.

  3         (h)  In order to encourage completion of site

  4  rehabilitation at contaminated sites being voluntarily cleaned

  5  up and eligible for a tax credit under this section, the tax

  6  credit applicant taxpayer may claim an additional 10 percent

  7  of the total cleanup costs, not to exceed $50,000, in the

  8  final year of cleanup as evidenced by the Department of

  9  Environmental Protection issuing a "No Further Action" order

10  for that site.

11         Section 4.  Subsection (1) of section 220.1845, Florida

12  Statutes, is amended to read:

13         220.1845  Contaminated site rehabilitation tax

14  credit.--

15         (1)  AUTHORIZATION FOR TAX CREDIT; LIMITATIONS.--

16         (a)  A credit in the amount of 35 percent of the costs

17  of voluntary cleanup activity that is integral to site

18  rehabilitation at the following sites is available allowed

19  against any tax due for a taxable year under this chapter:

20         1.  A drycleaning-solvent-contaminated site eligible

21  for state-funded site rehabilitation under s. 376.3078(3);

22         2.  A drycleaning-solvent-contaminated site at which

23  cleanup is undertaken by the real property owner pursuant to

24  s. 376.3078(11), if the real property owner is not also, and

25  has never been, the owner or operator of the drycleaning

26  facility where the contamination exists; or

27         3.  A brownfield site in a designated brownfield area

28  under s. 376.80.

29         (b)  A tax credit applicant taxpayer, or multiple tax

30  credit applicants taxpayers working jointly to clean up a

31  single site, may not be granted receive more than $250,000 per

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  1  year in tax credits for each site voluntarily rehabilitated.

  2  Multiple tax credit applicants taxpayers shall be granted

  3  receive tax credits in the same proportion as their

  4  contribution to payment of cleanup costs. Subject to the same

  5  conditions and limitations as provided in this section, a

  6  municipality, or county, or other tax credit applicant that

  7  which voluntarily rehabilitates a site may receive not more

  8  than $250,000 per year in tax credits which it can

  9  subsequently transfer subject to the provisions in paragraph

10  (h).

11         (c)  If the credit granted under this section is not

12  fully used in any one year because of insufficient tax

13  liability on the part of the corporation, the unused amount

14  may be carried forward for a period not to exceed 5 years. The

15  carryover credit may be used in a subsequent year when the tax

16  imposed by this chapter for that year exceeds the credit for

17  which the corporation is eligible in that year under this

18  section after applying the other credits and unused carryovers

19  in the order provided by s. 220.02(8). The credit expires 5

20  years after the date the credit is granted under this section

21  and may not thereafter be used. However, if during the 5-year

22  period the credit is transferred, in whole or in part, under

23  paragraph (h), each transferee has 5 years from the date of

24  transfer to use its credit.

25         (d)  A taxpayer that files a consolidated return in

26  this state as a member of an affiliated group under s.

27  220.131(1) may be allowed the credit on a consolidated return

28  basis up to the amount of tax imposed upon the consolidated

29  group and paid by the taxpayer that incurred the

30  rehabilitation costs.

31

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  1         (e)  A taxpayer that receives credit under s. 199.1055

  2  is ineligible to receive credit under this section in a given

  3  tax year.

  4         (f)  A tax credit applicant taxpayer that receives

  5  state-funded site rehabilitation under s. 376.3078(3) for

  6  rehabilitation of a drycleaning-solvent-contaminated site is

  7  ineligible to receive credit under this section for costs

  8  incurred by the tax credit applicant taxpayer in conjunction

  9  with the rehabilitation of that site during the same time

10  period that state-administered site rehabilitation was

11  underway.

12         (g)  The total amount of the tax credits which may be

13  granted under this section and s. 199.1055 is $2 million

14  annually.

15         (h)1.  Tax credits that may be available under this

16  section to an entity eligible under s. 376.30781 may be

17  transferred after a merger or acquisition to the surviving or

18  acquiring entity and used in the same manner and with the same

19  limitations.

20         2.  The entity or its surviving or acquiring entity as

21  described in subparagraph 1., may transfer any unused credit

22  in whole or in units of no less than 25 percent of the

23  remaining credit.  The entity acquiring such credit may use it

24  in the same manner and with the same limitation as described

25  in this section. Such transferred credits may not be

26  transferred again although they may succeed to a surviving or

27  acquiring entity subject to the same conditions and

28  limitations as described in this section.

29         3.  In the event the credit provided for under this

30  section is reduced either as a result of a determination by

31  the Department of Environmental Protection or an examination

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  1  or audit by the Department of Revenue, such tax deficiency

  2  shall be recovered from the first entity, or the surviving or

  3  acquiring entity, to have claimed such credit up to the amount

  4  of credit taken.  Any subsequent deficiencies shall be

  5  assessed against any entity acquiring and claiming such

  6  credit, or in the case of multiple succeeding entities in the

  7  order of credit succession.

  8         (i)  In order to encourage completion of site

  9  rehabilitation at contaminated sites being voluntarily cleaned

10  up and eligible for a tax credit under this section, the tax

11  credit applicant taxpayer may claim an additional 10 percent

12  of the total cleanup costs, not to exceed $50,000, in the

13  final year of cleanup as evidenced by the Department of

14  Environmental Protection issuing a "No Further Action" order

15  for that site.

16         Section 5.  Section 376.30781, Florida Statutes, is

17  amended to read:

18         376.30781  Partial tax credits for rehabilitation of

19  drycleaning-solvent-contaminated sites and brownfield sites in

20  designated brownfield areas; application process; rulemaking

21  authority; revocation authority.--

22         (1)  The Legislature finds that:

23         (a)  To facilitate property transactions and economic

24  growth and development, it is in the interest of the state to

25  encourage the cleanup, at the earliest possible time, of

26  drycleaning-solvent-contaminated sites and brownfield sites in

27  designated brownfield areas.

28         (b)  It is the intent of the Legislature to encourage

29  the voluntary cleanup of drycleaning-solvent-contaminated

30  sites and brownfield sites in designated brownfield areas by

31

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  1  providing a partial tax credit for the restoration of such

  2  property in specified circumstances.

  3         (2)(a)  A credit in the amount of 35 percent of the

  4  costs of voluntary cleanup activity that is integral to site

  5  rehabilitation at the following sites is allowed pursuant to

  6  ss. 199.1055 and 220.1845:

  7         1.  A drycleaning-solvent-contaminated site eligible

  8  for state-funded site rehabilitation under s. 376.3078(3);

  9         2.  A drycleaning-solvent-contaminated site at which

10  cleanup is undertaken by the real property owner pursuant to

11  s. 376.3078(11), if the real property owner is not also, and

12  has never been, the owner or operator of the drycleaning

13  facility where the contamination exists; or

14         3.  A brownfield site in a designated brownfield area

15  under s. 376.80.

16         (b)  A tax credit applicant taxpayer, or multiple tax

17  credit applicants taxpayers working jointly to clean up a

18  single site, may not be granted receive more than $250,000 per

19  year in tax credits for each site voluntarily rehabilitated.

20  Multiple tax credit applicants taxpayers shall be granted

21  receive tax credits in the same proportion as their

22  contribution to payment of cleanup costs. Tax credits are

23  available only for site rehabilitation conducted during the

24  calendar tax year for in which the tax credit application is

25  submitted.

26         (c)  In order to encourage completion of site

27  rehabilitation at contaminated sites that are being

28  voluntarily cleaned up and that are eligible for a tax credit

29  under this section, the tax credit applicant may claim an

30  additional 10 percent of the total cleanup costs, not to

31  exceed $50,000, in the final year of cleanup as evidenced by

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  1  the Department of Environmental Protection issuing a "no

  2  further action" order for that site.

  3         (3)  The Department of Environmental Protection shall

  4  be responsible for allocating the tax credits provided for in

  5  ss. 199.1055 and 220.1845, not to exceed a total of $2 million

  6  in tax credits annually.

  7         (4)  To claim the credit for site rehabilitation

  8  conducted during the current calendar year, each tax credit

  9  applicant must apply to the Department of Environmental

10  Protection for an allocation of the $2 million annual credit

11  by January 15 of the following year December 31 on a form

12  developed by the Department of Environmental Protection in

13  cooperation with the Department of Revenue. The form shall

14  include an affidavit from each tax credit applicant certifying

15  that all information contained in the application, including

16  all records of costs incurred and claimed in the tax credit

17  application, are true and correct. If the application is

18  submitted pursuant to subparagraph (2)(a)2., the form must

19  include an affidavit signed by the real property owner stating

20  that it is not, and has never been, the owner or operator of

21  the drycleaning facility where the contamination exists.

22  Approval of partial tax credits must be accomplished on a

23  first-come, first-served basis based upon the date complete

24  applications are received by the Division of Waste Management.

25  A tax credit An applicant shall submit only one complete

26  application per site for each calendar year's site

27  rehabilitation costs per year. Incomplete placeholder

28  applications may not be accepted and will not secure a place

29  in the first-come, first-served application line. To be

30  eligible for a tax credit the tax credit applicant must:

31

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  1         (a)  Have entered into a voluntary cleanup agreement

  2  with the Department of Environmental Protection for a

  3  drycleaning-solvent-contaminated site or a Brownfield Site

  4  Rehabilitation Agreement, as applicable; and

  5         (b)  Have paid all deductibles pursuant to s.

  6  376.3078(3)(d) for eligible drycleaning-solvent-cleanup

  7  program sites.

  8         (5)  To obtain the tax credit certificate, a tax credit

  9  an applicant must annually file an application for

10  certification, which must be received by the Department of

11  Environmental Protection's Division of Waste Management

12  Protection by January 15 of the year following the calendar

13  year for which site rehabilitation costs are being claimed in

14  a tax credit application December 31. The tax credit applicant

15  must provide all pertinent information requested on the tax

16  credit application form, including, at a minimum, the name and

17  address of the applicant and the address and tracking

18  identification number of the eligible site. Along with the

19  application form, the applicant must submit the following:

20         (a)  A nonrefundable review fee of $250 made payable to

21  the Water Quality Assurance Trust Fund to cover the

22  administrative costs associated with the department's review

23  of the tax credit application;

24         (b)  Copies of contracts and documentation of contract

25  negotiations, accounts, invoices, sales tickets, or other

26  payment records from purchases, sales, leases, or other

27  transactions involving actual costs incurred for that tax year

28  related to site rehabilitation, as that term is defined in ss.

29  376.301 and 376.79;

30         (c)  Proof that the documentation submitted pursuant to

31  paragraph (b) has been reviewed and verified by an independent

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  1  certified public accountant in accordance with standards

  2  established by the American Institute of Certified Public

  3  Accountants. Specifically, the certified public accountant

  4  must attest to the accuracy and validity of the costs incurred

  5  and paid by conducting an independent review of the data

  6  presented by the applicant. Accuracy and validity of costs

  7  incurred and paid would be determined once the level of effort

  8  was certified by an appropriate professional registered in

  9  this state in each contributing technical discipline.  The

10  certified public accountant's report would also attest that

11  the costs included in the application form are not duplicated

12  within the application. A copy of the accountant's report

13  shall be submitted to the Department of Environmental

14  Protection with the tax credit application; and

15         (d)  A certification form stating that site

16  rehabilitation activities associated with the documentation

17  submitted pursuant to paragraph (b) have been conducted under

18  the observation of, and related technical documents have been

19  signed and sealed by, an appropriate professional registered

20  in this state in each contributing technical discipline. The

21  certification form shall be signed and sealed by the

22  appropriate registered professionals stating that the costs

23  incurred were integral, necessary, and required for site

24  rehabilitation, as that term is defined in ss. 376.301 and

25  376.79.

26         (6)  The certified public accountant and appropriate

27  registered professionals submitting forms as part of a tax

28  credit application must verify such forms. Verification must

29  be accomplished as provided in s. 92.525(1)(b) and subject to

30  the provisions of s. 92.525(3).

31

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  1         (7)  The Department of Environmental Protection shall

  2  review the tax credit application and any supplemental

  3  documentation that the tax credit applicant may submit before

  4  the annual application deadline in order to have the

  5  application considered complete submitted by each applicant,

  6  for the purpose of verifying that the tax credit applicant has

  7  met the qualifying criteria in subsections (2) and (4) and has

  8  submitted all required documentation listed in subsection (5).

  9  Upon verification that the tax credit applicant has met these

10  requirements, the department shall issue a written decision

11  granting eligibility for partial tax credits (a tax credit

12  certificate) in the amount of 35 percent of the total costs

13  claimed, subject to the $250,000 limitation, for the calendar

14  tax year for in which the tax credit application is submitted

15  based on the report of the certified public accountant and the

16  certifications from the appropriate registered technical

17  professionals.

18         (8)  On or before March 1, the Department of

19  Environmental Protection shall inform each eligible tax credit

20  applicant of the amount of its partial tax credit and provide

21  each eligible tax credit applicant with a tax credit

22  certificate that must be submitted with its tax return to the

23  Department of Revenue to claim the tax credit or be

24  transferred under s. 199.1055(g) or s. 220.1845(h). Credits

25  will not result in the payment of refunds if total credits

26  exceed the amount of tax owed.

27         (9)  If a tax credit an applicant does not receive a

28  tax credit allocation due to an exhaustion of the $2 million

29  annual tax credit authorization, such application will then be

30  included in the same first-come, first-served order in the

31

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  1  next year's annual tax credit allocation, if any, based on the

  2  prior year application.

  3         (10)  The Department of Environmental Protection may

  4  adopt rules to prescribe the necessary forms required to claim

  5  tax credits under this section and to provide the

  6  administrative guidelines and procedures required to

  7  administer this section. Prior to the adoption of rules

  8  regulating the tax credit application, the department shall,

  9  by September 1, 1998, establish reasonable interim application

10  requirements and forms.

11         (11)  The Department of Environmental Protection may

12  revoke or modify any written decision granting eligibility for

13  partial tax credits under this section if it is discovered

14  that the tax credit applicant submitted any false statement,

15  representation, or certification in any application, record,

16  report, plan, or other document filed in an attempt to receive

17  partial tax credits under this section. The Department of

18  Environmental Protection shall immediately notify the

19  Department of Revenue of any revoked or modified orders

20  affecting previously granted partial tax credits.

21  Additionally, the tax credit applicant taxpayer must notify

22  the Department of Revenue of any change in its tax credit

23  claimed.

24         (12)  A tax credit applicant An owner, operator, or

25  real property owner who receives state-funded site

26  rehabilitation under s. 376.3078(3) for rehabilitation of a

27  drycleaning-solvent-contaminated site is ineligible to receive

28  a tax credit under s. 199.1055 or s. 220.1845 for costs

29  incurred by the tax credit applicant taxpayer in conjunction

30  with the rehabilitation of that site during the same time

31

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  1  period that state-administered site rehabilitation was

  2  underway.

  3         Section 6.  This act shall take effect upon becoming a

  4  law.

  5

  6            *****************************************

  7                          SENATE SUMMARY

  8    Provides for the application of risk-based
      corrective-action principles to specified sites that are
  9    contaminated by the discharge of pollutants and hazardous
      substances. Creates the Florida State-Owned-Lands Cleanup
10    Program to be administered by the Department of
      Environmental Protection. Revises the process for
11    obtaining credits from the intangible personal property
      tax and the corporation income tax for the voluntary
12    cleanup of contaminated sites.

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

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