Senate Bill sb2726

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    Florida Senate - 2003                                  SB 2726

    By Senator Argenziano





    3-1589-03                                               See HB

  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         providing the conditions under which further

14         rehabilitation may be required; amending s.

15         199.1055, F.S.; clarifying who may apply for

16         tax credits; clarifying time period for use of

17         tax credits; amending s. 220.1845, F.S.;

18         clarifying who may apply for tax credits;

19         clarifying time period for use of tax credits;

20         allowing taxpayers to claim credit on a

21         consolidated return up to the amount of the

22         consolidated group's tax liability; amending s.

23         376.30781, F.S.; clarifying who may apply for

24         tax credits; converting tax credit application

25         time period to calendar year; moving

26         application deadline to January 15; clarifying

27         that placeholder applications are prohibited;

28         cross-referencing sections governing

29         transferability of tax credits; eliminating

30         outdated language; providing an effective date.

31  

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




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

 2  

 3         Section 1.  Section 376.30701, Florida Statutes, is

 4  created to read:

 5         376.30701  Application of risk-based corrective action

 6  principles to contaminated sites; applicability; legislative

 7  intent; rulemaking authority; contamination cleanup criteria;

 8  limitations; reopeners.--

 9         (1)  APPLICABILITY.--

10         (a)  This section shall not create or establish any new

11  liability for site rehabilitation at contaminated sites.  This

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

13  process to be applied at sites where legal responsibility for

14  site rehabilitation exists pursuant to other provisions of

15  this chapter or chapter 403.  An exceedance of any cleanup

16  target level derived from the cleanup criteria established in

17  subsection (2) shall not, at sites where legal responsibility

18  for site rehabilitation does not exist pursuant to other

19  provisions of this chapter or chapter 403, create liability

20  for site rehabilitation.  This section may also apply to other

21  contaminated sites at which a person conducting site

22  rehabilitation elects to have it apply, even where such person

23  does not have legal responsibility for site rehabilitation

24  pursuant to this chapter or chapter 403.  This section, and

25  any rules adopted pursuant thereto, including the cleanup

26  criteria described in subsection (2), do not create additional

27  authority to prohibit or limit the legal placement of

28  materials or products on land.

29         (b)  This section shall apply to all contaminated sites

30  resulting from a discharge of pollutants or hazardous

31  substances where legal responsibility for site rehabilitation

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




 1  exists pursuant to other provisions of this chapter or chapter

 2  403, except for those contaminated sites subject to the

 3  risk-based corrective action cleanup criteria established for

 4  the petroleum, brownfields, and drycleaning programs pursuant

 5  to ss. 376.3071, 376.81 and 376.3078, respectively.

 6         (c)  This section shall apply to a variety of site

 7  rehabilitation scenarios including, but not limited to, site

 8  rehabilitation conducted voluntarily, site rehabilitation

 9  conducted pursuant to the department's enforcement authority,

10  or site rehabilitation conducted as a state-managed cleanup by

11  the department.

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

13  thereto, shall apply retroactively to all existing

14  contaminated sites where legal responsibility for site

15  rehabilitation exists pursuant to other provisions of this

16  chapter or chapter 403, except those sites for which cleanup

17  target levels have been accepted by the department in an

18  approved technical document, current permit, or other written

19  agreement and except at those sites that have received a "No

20  Further Action" order or a "Site Rehabilitation Completion"

21  order from the department.  However, the person responsible

22  for site rehabilitation can elect to have the provisions of

23  this section, including cleanup target levels established

24  pursuant thereto, apply in lieu of those in an approved

25  technical document, current permit, or other written

26  agreement.

27         (e)  Nothing in this section shall be construed to

28  prohibit or delay actions to respond to a discharge of

29  pollutants or hazardous substances prior to any contact with

30  the department.  The risk-based corrective action process

31  contemplates appropriate emergency response action or initial

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




 1  remedial action prior to any formal application of the

 2  risk-based corrective action process involving site assessment

 3  and, if required, subsequent remedial action.  Any emergency

 4  response actions or initial remedial actions must be conducted

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

 6  laws and regulations.

 7         (2)  INTENT; RULEMAKING AUTHORITY; CLEANUP

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

 9  health of all people under actual circumstances of exposure.

10  By July 1, 2004, the secretary of the department shall

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

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

13  comprise a site rehabilitation program, including a voluntary

14  site rehabilitation program, and the level at which a

15  rehabilitation program task and a site rehabilitation program

16  may be deemed completed.  In establishing these rules, the

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

18  risk-based corrective action process to achieve protection of

19  human health and safety and the environment in a

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

21  this subsection. These rules shall prescribe a phased

22  risk-based corrective action process that is iterative and

23  that tailors site rehabilitation tasks to site-specific

24  conditions and risks.  The department and the person

25  responsible for site rehabilitation are encouraged to

26  establish decision points at which risk management decisions

27  will be made.  The department shall provide an early decision,

28  when requested, regarding applicable exposure factors and a

29  risk management approach based on the current and future land

30  use at the site. These rules shall also include protocols for

31  the use of natural attenuation, the use of institutional and

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




 1  engineering controls, and the issuance of "No Further Action"

 2  orders. The criteria for determining what constitutes a

 3  rehabilitation program task or completion of a site

 4  rehabilitation program task or site rehabilitation program,

 5  including a voluntary site rehabilitation program, must:

 6         (a)  Consider the current exposure and potential risk

 7  of exposure to humans and the environment, including multiple

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

 9  characteristics of each contaminant must be considered in

10  order to determine the feasibility of risk-based corrective

11  action assessment.

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

13  the contamination. However, the department is authorized to

14  temporarily move the point of compliance to the boundary of

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

16  within the property boundary, while cleanup, including cleanup

17  through natural attenuation processes in conjunction with

18  appropriate monitoring, is proceeding. The department also is

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

20  to temporarily extend the point of compliance beyond the

21  property boundary with appropriate monitoring, if such

22  extension is needed to facilitate natural attenuation or to

23  address the current conditions of the plume, provided human

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

25  When temporarily extending the point of compliance beyond the

26  property boundary, it cannot be extended further than the

27  lateral extent of the plume, if known, at the time of

28  execution of a cleanup agreement, if required, or the lateral

29  extent of the plume as defined at the time of site assessment.

30  Temporary extension of the point of compliance beyond the

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

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




 1  actual notice by the person responsible for site

 2  rehabilitation to local governments and the owners of any

 3  property into which the point of compliance is allowed to

 4  extend and constructive notice to residents and business

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

 6  allowed to extend. Persons receiving notice pursuant to this

 7  paragraph shall have the opportunity to comment within 30 days

 8  of receipt of the notice.

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

10  all contaminated sites being cleaned up pursuant to this

11  section ultimately achieve the applicable cleanup target

12  levels provided in this subsection. In the circumstances

13  provided in this subsection, and after constructive notice and

14  opportunity to comment within 30 days after receipt of the

15  notice to local government, owners of any property into which

16  the point of compliance is allowed to extend, and residents of

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

18  extend, the department may allow concentrations of

19  contaminants to temporarily exceed the applicable cleanup

20  target levels while cleanup, including cleanup through natural

21  attenuation processes in conjunction with appropriate

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

23  the environment are protected.

24         (d)  Allow the use of institutional or engineering

25  controls at contaminated sites being cleaned up pursuant to

26  this section, where appropriate, to eliminate or control the

27  potential exposure to contaminants of humans or the

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

29  department and only after constructive notice and opportunity

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

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

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




 1  point of compliance is allowed to extend, and residents of any

 2  property into which the point of compliance is allowed to

 3  extend.  When institutional or engineering controls are

 4  implemented to control exposure, the removal of the controls

 5  must have prior department approval and must be accompanied by

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

 7  unless cleanup target levels under this section have been

 8  achieved.

 9         (e)  Consider the additive effects of contaminants. The

10  synergistic and antagonistic effects shall also be considered

11  when the scientific data become available.

12         (f)  Take into consideration individual site

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

14  the current and projected use of the affected groundwater and

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

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

17  the exposed population, the degree and extent of

18  contamination, the rate of contaminant migration, the apparent

19  or potential rate of contaminant degradation through natural

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

21  potential for further migration in relation to site property

22  boundaries.

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

24         1.  Cleanup target levels for each contaminant found in

25  groundwater shall be the applicable state water quality

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

27  target levels for groundwater shall be based on the minimum

28  criteria specified in department rule.  The department shall

29  apply the following, as appropriate, in establishing the

30  applicable cleanup target levels: calculations using a

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

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




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

 2  organoleptic, and aesthetic considerations.  However, the

 3  department shall not require site rehabilitation to achieve a

 4  cleanup target level for any individual contaminant that is

 5  more stringent than the site-specific, naturally occurring

 6  background concentration for that contaminant.

 7         2.  Where surface waters are exposed to contaminated

 8  groundwater, the cleanup target levels for the contaminants

 9  shall be based on the more protective of the groundwater or

10  surface water standards as established by department rule. The

11  point of measuring compliance with the surface water standards

12  shall be in the groundwater immediately adjacent to the

13  surface water body.

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

15  department shall approve alternative cleanup target levels in

16  conjunction with institutional and engineering controls, if

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

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

19  risk reduction techniques, or a combination thereof, that

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

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

22  Where a state water quality standard is applicable, a

23  deviation may not result in the application of cleanup target

24  levels more stringent than the standard.  In determining

25  whether it is appropriate to establish alternative cleanup

26  target levels at a site, the department must consider the

27  effectiveness of source removal, if any, that has been

28  completed at the site and the practical likelihood of the use

29  of low yield or poor quality groundwater, the use of

30  groundwater near marine surface water bodies, the current and

31  projected use of the affected groundwater in the vicinity of

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




 1  the site, or the use of groundwater in the immediate vicinity

 2  of the contaminated area, where it has been demonstrated that

 3  the groundwater contamination is not migrating away from such

 4  localized source, provided human health, public safety, and

 5  the environment are protected.

 6         (h)  Provide for the department to issue a "No Further

 7  Action" order, with conditions, including, but not limited to,

 8  the use of institutional or engineering controls where

 9  appropriate, when alternative cleanup target levels

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

11  or when the person responsible for site rehabilitation can

12  demonstrate that the cleanup target level is unachievable with

13  the use of available technologies.  Prior to issuing such an

14  order, the department shall consider the feasibility of an

15  alternative site rehabilitation technology at the contaminated

16  site.

17         (i)  Establish appropriate cleanup target levels for

18  soils.  Although there are existing state water quality

19  standards, there are no existing statewide soil quality

20  standards.  The Legislature does not intend, through the

21  adoption of this section, to create such soil quality

22  standards.  The specific rulemaking authority granted pursuant

23  to this section merely authorizes the department to establish

24  appropriate soil cleanup target levels.  These soil cleanup

25  target levels will be applicable at sites only after a

26  determination as to legal responsibility for site

27  rehabilitation has been made pursuant to other provisions of

28  this chapter or chapter 403.

29         1.  In establishing soil cleanup target levels for

30  human exposure to each contaminant found in soils from the

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

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




 1  shall apply the following, as appropriate: calculations using

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

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

 4  department shall not require site rehabilitation to achieve a

 5  cleanup target level for an individual contaminant that is

 6  more stringent than the site-specific, naturally occurring

 7  background concentration for that contaminant. Institutional

 8  controls or other methods shall be used to prevent human

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

10  surface. Any removal of such institutional controls shall

11  require such contaminated soils to be remediated.

12         2.  Leachability-based soil cleanup target levels shall

13  be based on protection of the groundwater cleanup target

14  levels or the alternate cleanup target levels for groundwater

15  established pursuant to this paragraph, as appropriate.

16  Source removal and other cost-effective alternatives that are

17  technologically feasible shall be considered in achieving the

18  leachability soil cleanup target levels established by the

19  department. The leachability goals shall not be applicable if

20  the department determines, based upon individual site

21  characteristics, and in conjunction with institutional and

22  engineering controls, if needed, that contaminants will not

23  leach into the groundwater at levels that pose a threat to

24  human health, public safety, and the environment.

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

26  department shall approve alternative cleanup target levels in

27  conjunction with institutional and engineering controls, if

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

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

30  risk reduction techniques, or a combination thereof, that

31  

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




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

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

 3  

 4  The department shall require source removal, as a risk

 5  reduction measure, if warranted and cost-effective.  Once

 6  source removal at a site is complete, the department shall

 7  reevaluate the site to determine the degree of active cleanup

 8  needed to continue.  Further, the department shall determine

 9  if the reevaluated site qualifies for monitoring only or if no

10  further action is required to rehabilitate the site.  If

11  additional site rehabilitation is necessary to reach "No

12  Further Action" status, the department is encouraged to

13  utilize natural attenuation and monitoring where site

14  conditions warrant.

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

16  pursuant to this section govern only site rehabilitation

17  activities occurring at the contaminated site.  Removal of

18  contaminated media from a site for offsite relocation or

19  treatment must be in accordance with all applicable federal,

20  state, and local laws and regulations.

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

22  in compliance with subsection (2), additional site

23  rehabilitation is not required unless it is demonstrated that:

24         (a)  Fraud was committed in demonstrating site

25  conditions or completion of site rehabilitation;

26         (b)  New information confirms the existence of an area

27  of previously unknown contamination which exceeds the

28  site-specific rehabilitation levels established in accordance

29  with subsection (2), or which otherwise poses the threat of

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

31  environment;

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




 1         (c)  The remediation efforts failed to achieve the site

 2  rehabilitation criteria established under this section;

 3         (d)  The level of risk is increased beyond the

 4  acceptable risk established under subsection (2) due to

 5  substantial changes in exposure conditions, such as a change

 6  in land use from nonresidential to residential use.  Any

 7  person who changes the land use of the site, thereby causing

 8  the level of risk to increase beyond the acceptable risk

 9  level, may be required by the department to undertake

10  additional remediation measures to ensure that human health,

11  public safety, and the environment are protected consistent

12  with this section; or

13         (e)  A new discharge of pollutants or hazardous

14  substances occurs at the site subsequent to the issuance of a

15  "No Further Action" order or a "Site Rehabilitation

16  Completion" order associated with the original contamination

17  being addressed pursuant to this section.

18         Section 2.  Subsection (1) of Section 199.1055, Florida

19  Statutes, is amended to read:

20         199.1055 Contaminated site rehabilitation tax credit.--

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

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

23  of voluntary cleanup activity that is integral to site

24  rehabilitation at the following sites is available allowed

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

26  any credit allowed by former s. 220.68 for that year:

27         1.  A drycleaning-solvent-contaminated site eligible

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

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

30  cleanup is undertaken by the real property owner pursuant to

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

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




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

 2  facility where the contamination exists; or

 3         3.  A brownfield site in a designated brownfield area

 4  under s. 376.80.

 5         (b)  A tax credit applicant, or multiple tax credit

 6  applicants taxpayer, or multiple taxpayers working jointly to

 7  clean up a single site, may not be granted receive more than

 8  $250,000 per year in tax credits for each site voluntarily

 9  rehabilitated. Multiple tax credit applicants taxpayers shall

10  be granted receive tax credits in the same proportion as their

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

12  conditions and limitations as provided in this section, a

13  municipality, or county, or other taxcredit applicant which

14  voluntarily rehabilitates a site may receive not more than

15  $250,000 per year in tax credits which it can subsequently

16  transfer subject to the provisions in paragraph (g).

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

18  fully used in any one year because of insufficient tax

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

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

21  exceed 5 years. Five years after the date a credit is granted

22  under this section, such credit expires and may not be used.

23  However, if during the 5-year period the credit is

24  transferred, in whole or in part, pursuant to paragraph (g),

25  each transferee has 5 years after the date of transfer to use

26  its credit.

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

28  220.1845 is ineligible to receive credit under this section in

29  a given tax year.

30         (e)  A tax credit applicant taxpayer that receives

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

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




 1  for rehabilitation of a drycleaning-solvent-contaminated site

 2  is ineligible to receive credit under this section for costs

 3  incurred by the tax credit applicant taxpayer in conjunction

 4  with the rehabilitation of that site during the same time

 5  period that state-administered site rehabilitation was

 6  underway.

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

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

 9  annually.

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

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

12  transferred after a merger or acquisition to the surviving or

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

14  limitations.

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

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

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

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

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

20  in this section. Such transferred credits may not be

21  transferred again although they may succeed to a surviving or

22  acquiring entity subject to the same conditions and

23  limitations as described in this section.

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

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

26  the Department of Environmental Protection or an examination

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

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

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

30  of credit taken. Any subsequent deficiencies shall be assessed

31  against any entity acquiring and claiming such credit, or in

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




 1  the case of multiple succeeding entities in the order of

 2  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 3.  Subsection (1) of section 220.1845, Florida

12  Statutes, is amended to read:

13         220.1845 Contaminated site rehabilitation tax credit.--

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

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

16  of voluntary cleanup activity that is integral to site

17  rehabilitation at the following sites is available allowed

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

19         1.  A drycleaning-solvent-contaminated site eligible

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

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

22  cleanup is undertaken by the real property owner pursuant to

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

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

25  facility where the contamination exists; or

26         3.  A brownfield site in a designated brownfield area

27  under s. 376.80.

28         (b)  A tax credit applicant, or multiple tax credit

29  applicants taxpayer, or multiple taxpayers working jointly to

30  clean up a single site, may not be granted receive more than

31  $250,000 per year in tax credits for each site voluntarily

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




 1  rehabilitated. Multiple tax credit applicants taxpayers shall

 2  be granted receive tax credits in the same proportion as their

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

 4  conditions and limitations as provided in this section, a

 5  municipality, or county, or other tax credit applicant which

 6  voluntarily rehabilitates a site may receive not more than

 7  $250,000 per year in tax credits which it can subsequently

 8  transfer subject to the provisions in paragraph (h).

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

10  fully used in any one year because of insufficient tax

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

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

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

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

15  which the corporation is eligible in that year under this

16  section after applying the other credits and unused carryovers

17  in the order provided by s. 220.02(8).  Five years after the

18  date a credit is granted under this section, such credit

19  expires and may not be used.  However, if during the 5-year

20  period the credit is transferred, in whole or in part,

21  pursuant to paragraph (h), each transferee has 5 years after

22  the date of transfer to use its credit.

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

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

25  220.131(1)  may be allowed the credit on a consolidated return

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

27  group and paid by the taxpayer that incurred the

28  rehabilitation costs.

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

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

31  tax year.

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




 1         (f)  A tax credit applicant taxpayer that receives

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

 3  rehabilitation of a drycleaning-solvent-contaminated site is

 4  ineligible to receive credit under this section for costs

 5  incurred by the tax credit applicant taxpayer in conjunction

 6  with the rehabilitation of that site during the same time

 7  period that state-administered site rehabilitation was

 8  underway.

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

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

11  annually.

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

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

14  transferred after a merger or acquisition to the surviving or

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

16  limitations.

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

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

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

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

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

22  in this section. Such transferred credits may not be

23  transferred again although they may succeed to a surviving or

24  acquiring entity subject to the same conditions and

25  limitations as described in this section.

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

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

28  the Department of Environmental Protection or an examination

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

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

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

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




 1  of credit taken.  Any subsequent deficiencies shall be

 2  assessed against any entity acquiring and claiming such

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

 4  order of credit succession.

 5         (i)  In order to encourage completion of site

 6  rehabilitation at contaminated sites being voluntarily cleaned

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

 8  credit applicant taxpayer may claim an additional 10 percent

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

10  final year of cleanup as evidenced by the Department of

11  Environmental Protection issuing a "No Further Action" order

12  for that site.

13         Section 4.  Section 376.30781, Florida Statutes, is

14  amended to read:

15         376.30781 Partial tax credits for rehabilitation of

16  drycleaning-solvent-contaminated sites and brownfield sites in

17  designated brownfield areas; application process; rulemaking

18  authority; revocation authority.--

19         (1)  The Legislature finds that:

20         (a)  To facilitate property transactions and economic

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

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

23  drycleaning-solvent-contaminated sites and brownfield sites in

24  designated brownfield areas.

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

26  the voluntary cleanup of drycleaning-solvent-contaminated

27  sites and brownfield sites in designated brownfield areas by

28  providing a partial tax credit for the restoration of such

29  property in specified circumstances.

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

31  costs of voluntary cleanup activity that is integral to site

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




 1  rehabilitation at the following sites is allowed pursuant to

 2  ss. 199.1055 and 220.1845:

 3         1.  A drycleaning-solvent-contaminated site eligible

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

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

 6  cleanup is undertaken by the real property owner pursuant to

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

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

 9  facility where the contamination exists; or

10         3.  A brownfield site in a designated brownfield area

11  under s. 376.80.

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

13  credit applicants taxpayers working jointly to clean up a

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

15  year in tax credits for each site voluntarily rehabilitated.

16  Multiple tax credit applicants taxpayers shall be granted

17  receive tax credits in the same proportion as their

18  contribution to payment of cleanup costs. Tax credits are

19  available only for site rehabilitation conducted during the

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

21  submitted.

22         (c)  In order to encourage completion of site

23  rehabilitation at contaminated sites that are being

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

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

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

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

28  the Department of Environmental Protection issuing a "No

29  Further Action" order for that site.

30         (3)  The Department of Environmental Protection shall

31  be responsible for allocating the tax credits provided for in

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




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

 2  in tax credits annually.

 3         (4)  To claim the credit for site rehabilitation

 4  conducted during the current calendar year, each tax credit

 5  applicant must apply to the Department of Environmental

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

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

 8  developed by the Department of Environmental Protection in

 9  cooperation with the Department of Revenue. The form shall

10  include an affidavit from each tax credit applicant certifying

11  that all information contained in the application, including

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

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

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

15  include an affidavit signed by the real property owner stating

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

17  the drycleaning facility where the contamination exists.

18  Approval of partial tax credits must be accomplished on a

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

20  applications are received by the Division of Waste Management.

21  A tax credit An applicant shall submit only one complete

22  application per site for each calendar year's site

23  rehabilitation costs.  Incomplete placeholder applications

24  shall not be accepted and will not secure a place in the

25  first-come, first-served application line per year.  To be

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

27         (a)  Have entered into a voluntary cleanup agreement

28  with the Department of Environmental Protection for a

29  drycleaning-solvent-contaminated site or a Brownfield Site

30  Rehabilitation Agreement, as applicable; and

31  

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




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

 2  376.3078(3)(d) for eligible drycleaning-solvent-cleanup

 3  program sites.

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

 5  an applicant must annually file an application for

 6  certification, which must be received by the Division of Waste

 7  Management of the Department of Environmental Protection by

 8  January 15 of the year following the calendar year for which

 9  site rehabilitation costs are being claimed in a tax credit

10  application December 31.  The tax credit applicant must

11  provide all pertinent information requested on the tax credit

12  application form, including, at a minimum, the name and

13  address of the tax credit applicant and the address and

14  tracking identification number of the eligible site. Along

15  with the tax credit application form, the tax credit applicant

16  must submit the following:

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

18  the Water Quality Assurance Trust Fund to cover the

19  administrative costs associated with the department's review

20  of the tax credit application;

21         (b)  Copies of contracts and documentation of contract

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

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

24  transactions involving actual costs incurred for that tax year

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

26  376.301 and 376.79;

27         (c)  Proof that the documentation submitted pursuant to

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

29  certified public accountant in accordance with standards

30  established by the American Institute of Certified Public

31  Accountants.  Specifically, the certified public accountant

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




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

 2  and paid by conducting an independent review of the data

 3  presented by the tax credit applicant. Accuracy and validity

 4  of costs incurred and paid would be determined once the level

 5  of effort was certified by an appropriate professional

 6  registered in this state in each contributing technical

 7  discipline. The certified public accountant's report would

 8  also attest that the costs included in the application form

 9  are not duplicated within the application. A copy of the

10  accountant's report shall be submitted to the Department of

11  Environmental Protection with  the tax credit application; and

12         (d)  A certification form stating that site

13  rehabilitation activities associated with the documentation

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

15  the observation of, and related technical documents have been

16  signed and sealed by, an appropriate professional registered

17  in this state in each contributing technical discipline. The

18  certification form shall be signed and sealed by the

19  appropriate registered professionals stating that the costs

20  incurred were integral, necessary, and required for site

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

22  376.79.

23         (6)  The certified public accountant and appropriate

24  registered professionals submitting forms as part of a tax

25  credit application must verify such forms. Verification must

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

27  the provisions of s. 92.525(3).

28         (7)  The Department of Environmental Protection shall

29  review the tax credit application and any supplemental

30  documentation that the tax credit applicant may submit prior

31  to the annual application deadline in order to have the

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




 1  application considered complete submitted by each applicant,

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

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

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

 5  Upon verification that the tax credit applicant has met these

 6  requirements, the department shall issue a written decision

 7  granting eligibility for partial tax credits (a tax credit

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

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

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

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

12  certifications from the appropriate registered technical

13  professionals.

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

15  Environmental Protection shall inform each eligible tax credit

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

17  each eligible tax credit applicant with a tax credit

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

19  Department of Revenue to claim the tax credit or be

20  transferred pursuant to s. 199.1055(1)(g) or s.

21  220.1845(1)(h). Credits will not result in the payment of

22  refunds if total credits exceed the amount of tax owed.

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

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

25  annual tax credit authorization, such application will then be

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

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

28  prior year application.

29         (10)  The Department of Environmental Protection may

30  adopt rules to prescribe the necessary forms required to claim

31  tax credits under this section and to provide the

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    Florida Senate - 2003                                  SB 2726
    3-1589-03                                               See HB




 1  administrative guidelines and procedures required to

 2  administer this section. Prior to the adoption of rules

 3  regulating the tax credit application, the department shall,

 4  by September 1, 1998, establish reasonable interim application

 5  requirements and forms.

 6         (11)  The Department of Environmental Protection may

 7  revoke or modify any written decision granting eligibility for

 8  partial tax credits under this section if it is discovered

 9  that the tax credit applicant submitted any false statement,

10  representation, or certification in any application, record,

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

12  partial tax credits under this section. The Department of

13  Environmental Protection shall immediately notify the

14  Department of Revenue of any revoked or modified orders

15  affecting previously granted partial tax credits.

16  Additionally, the tax credit applicant taxpayer must notify

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

18  claimed.

19         Section 5.  This act shall take effect upon becoming a

20  law.

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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