Senate Bill sb2784

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    Florida Senate - 2003                                  SB 2784

    By Senator Alexander





    17-1583-03

  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 tax credit applicants to claim credit

21         on a consolidated return up to the amount of

22         the consolidated group's tax liability;

23         amending s. 376.30781, F.S.; clarifying who may

24         apply for tax credits; converting tax credit

25         application time period to calendar year;

26         moving application deadline to January 15;

27         clarifying that placeholder applications are

28         prohibited; eliminating outdated provisions;

29         providing an effective date.

30  

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

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 1         Section 1.  Section 376.30701, Florida Statutes, is

 2  created to read:

 3         376.30701  Application of risk-based corrective action

 4  principles to contaminated sites; applicability; legislative

 5  intent; rulemaking authority; contamination cleanup criteria;

 6  limitations; reopeners.--

 7         (1)  APPLICABILITY.--

 8         (a)  Any person conducting site rehabilitation due to a

 9  discharge of pollutants or hazardous substances prohibited

10  under this chapter or chapter 403, may voluntarily, or

11  pursuant to the department's enforcement authority if site

12  rehabilitation of such discharge is not subject to s.

13  376.3071(5), s. 376.3078(4), or s. 376.81, request that the

14  department apply the cleanup criteria and risk-based

15  corrective action process provided in subsection (2).

16         (b)  This section does not create or establish any

17  liability for site rehabilitation at a contaminated site. This

18  section is intended to describe a risk-based correction action

19  process to be applied at sites where the department and the

20  person responsible for site rehabilitation have agreed to use

21  risk-based corrective action at the contaminated site. An

22  exceedance of any cleanup target level derived from the

23  cleanup criteria established in subsection (2) does not, in an

24  of itself, create liability for site rehabilitation.

25         (c)  This section, and any rules adopted under this

26  section, including the cleanup criteria described in

27  subsection (2) do not create additional authority to prohibit

28  or limit the legal placement of materials or products on land.

29         (d)  This section may be applied to a variety of site

30  rehabilitation scenarios, including, but not limited to, site

31  rehabilitation conducted voluntarily, conducted under the

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 1  department's enforcement authority, or conducted as a

 2  state-managed cleanup by the department.

 3         (e)  This section does not prohibit or delay actions by

 4  a person to respond to a discharge of pollutants or hazardous

 5  substances. The risk-based corrective action process

 6  contemplates appropriate emergency response action or initial

 7  remedial action, including appropriate field-screening

 8  techniques, prior to any formal application of the risk-based

 9  corrective action process involving site assessment, and, if

10  required, subsequent remedial action. Any emergency response

11  actions or initial remedial actions must be conducted in

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

13  and rules.

14         (f)  This section may also apply to other contaminated

15  sites at which a person conducting site rehabilitation elects

16  to have it apply, regardless of whether the contamination is

17  the result of a discharge, as defined in s. 376.301.

18         (2)  INTENT; RULEMAKING AUTHORITY; CLEANUP

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

20  health of all people under actual circumstances of exposure.

21  By July 1, 2004, the Secretary of Environmental Protection

22  shall establish criteria by rule for the purpose of

23  determining, on a site-specific basis, the rehabilitation

24  program tasks that comprise a site rehabilitation program,

25  including a voluntary site rehabilitation program, and the

26  level at which a rehabilitation program task and a site

27  rehabilitation program may be deemed completed. In

28  establishing these rules, the department shall apply, to the

29  maximum extent feasible, a risk-based corrective action

30  process to achieve protection of human health and safety and

31  the environment in a cost-effective manner based on the

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 1  principles set forth in this subsection. These rules shall

 2  prescribe a phased risk-based corrective action process that

 3  is iterative and that tailors site rehabilitation tasks to

 4  site-specific conditions and risks. The department and the

 5  person responsible for site rehabilitation are encouraged to

 6  establish decision points at which risk management decisions

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

 8  when requested, regarding applicable exposure factors and a

 9  risk management approach based on the current and future land

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

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

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

13  orders. The criteria for determining what constitutes a

14  rehabilitation program task or completion of a site

15  rehabilitation program task or site rehabilitation program,

16  including a voluntary site rehabilitation program, must:

17         (a)  Consider the current exposure and potential risk

18  of exposure to humans and the environment, including multiple

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

20  characteristics of each contaminant must be considered in

21  order to determine the feasibility of a risk-based corrective

22  action assessment.

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

24  the contamination. However, the department is authorized to

25  temporarily move the point of compliance to the boundary of

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

27  within the property boundary, while cleanup, including cleanup

28  through natural attenuation processes in conjunction with

29  appropriate monitoring, is proceeding. The department also is

30  authorized, pursuant to criteria provided in this section, to

31  temporarily extend the point of compliance beyond the property

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 1  boundary with appropriate monitoring, if such extension is

 2  needed to facilitate natural attenuation or to address the

 3  current conditions of the plume, provided human health, public

 4  safety, and the environment are protected. When temporarily

 5  extending the point of compliance beyond the property

 6  boundary, it cannot be extended further than the lateral

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

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

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

10  extension of the point of compliance beyond the property

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

12  notice by the person responsible for site rehabilitation to

13  local governments and the owners of any property into which

14  the point of compliance is allowed to extend and constructive

15  notice to residents and business tenants of the property into

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

17  receiving notice pursuant to this paragraph shall have the

18  opportunity to comment within 30 days after receipt of the

19  notice.

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

21  all contaminated sites being cleaned up pursuant to this

22  section ultimately achieve the applicable cleanup target

23  levels provided in this subsection. In the circumstances

24  provided in this subsection, and after constructive notice and

25  opportunity to comment within 30 days after receipt of the

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

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

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

29  extend, the department may allow concentrations of

30  contaminants to temporarily exceed the applicable cleanup

31  target levels while cleanup, including cleanup through natural

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 1  attenuation processes in conjunction with appropriate

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

 3  the environment are protected.

 4         (d)  Allow the use of institutional or engineering

 5  controls at contaminated sites being cleaned up pursuant to

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

 7  potential exposure to contaminants of humans or the

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

 9  department and only after constructive notice and opportunity

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

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

12  point of compliance is allowed to extend, and residents on any

13  property into which the point of compliance is allowed to

14  extend. When institutional or engineering controls are

15  implemented to control exposure, the removal of the controls

16  must have prior department approval and must be accompanied by

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

18  unless cleanup target levels under this section have been

19  achieved.

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

21  synergistic and antagonistic effects shall also be considered

22  when the scientific data become available.

23         (f)  Take into consideration individual site

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

25  the current and projected use of the affected groundwater and

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

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

28  the exposed population, the degree and extent of

29  contamination, the rate of contaminant migration, the apparent

30  or potential rate of contaminant degradation through natural

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

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 1  potential for further migration in relation to site property

 2  boundaries.

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

 4         1.  Cleanup target levels for each contaminant found in

 5  groundwater shall be the applicable state water quality

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

 7  target levels for groundwater shall be based on the minimum

 8  criteria specified in department rule. The department shall

 9  apply the following, as appropriate, in establishing the

10  applicable cleanup target levels: calculations using a

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

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

13  organoleptic, and aesthetic considerations. However, the

14  department shall not require site rehabilitation to achieve a

15  cleanup target level for any individual contaminant that is

16  more stringent than the site-specific, naturally occurring

17  background concentration for that contaminant.

18         2.  Where surface waters are exposed to contaminated

19  groundwater, the cleanup target levels for the contaminants

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

21  surface water standards as established by department rule. The

22  point of measuring compliance with the surface water standards

23  shall be in the groundwater immediately adjacent to the

24  surface water body.

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  human health, public safety, and the environment are protected

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

 2  Where a state water quality standard is applicable, a

 3  deviation may not result in the application of cleanup target

 4  levels more stringent than the standard. In determining

 5  whether it is appropriate to establish alternative cleanup

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

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

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

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

10  groundwater near marine surface water bodies, the current and

11  projected use of the affected groundwater in the vicinity of

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

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

14  the groundwater contamination is not migrating away from such

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

16  the environment are protected.

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

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

19  the use of institutional or engineering controls where

20  appropriate, when alternative cleanup target levels

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

22  or when the person responsible for site rehabilitation can

23  demonstrate that the cleanup target level is unachievable with

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

25  order, the department shall consider the feasibility of an

26  alternative site rehabilitation technology at the contaminated

27  site.

28         (i)  Establish appropriate cleanup target levels for

29  soils.

30         1.  In establishing soil cleanup target levels for

31  human exposure to each contaminant found in soils from the

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

 2  shall apply the following, as appropriate: calculations using

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

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

 5  department shall not require site rehabilitation to achieve a

 6  cleanup target level for an individual contaminant that is

 7  more stringent than the site-specific, naturally occurring

 8  background concentration for that contaminant. Institutional

 9  controls or other methods shall be used to prevent human

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

11  surface. Any removal of such institutional controls shall

12  require such contaminated soils to be remediated.

13         2.  Leachability-based soil cleanup target levels shall

14  be based on protection of the groundwater cleanup target

15  levels or the alternate cleanup target levels for groundwater

16  established pursuant to this paragraph, as appropriate. Source

17  removal and other cost-effective alternatives that are

18  technologically feasible shall be considered in achieving the

19  leachability soil cleanup target levels established by the

20  department. The leachability goals shall not be applicable if

21  the department determines, based upon individual site

22  characteristics, and in conjunction with institutional and

23  engineering controls, if needed, that contaminants will not

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

25  human health, public safety, and the environment.

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

27  department shall approve alternative cleanup target levels in

28  conjunction with institutional and engineering controls, if

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

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

31  risk reduction techniques, or a combination thereof, that

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 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 source

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

 7  the site to determine the degree of active cleanup needed to

 8  continue. Further, the department shall determine if the

 9  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. Soil cleanup target

21  levels to be established under subsection (2) are not

22  standards as that term is defined in s. 403.803. Soil cleanup

23  target levels are only applicable in the context of the

24  risk-based corrective action process described in this

25  section. The risk-based corrective action process described in

26  this section and the rules concerning risk-based corrective

27  action adopted under this section do not create or establish

28  any liability for site rehabilitation independent of other

29  provisions of this chapter or chapter 403.

30  

31  

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

 2  in compliance with subsection (2), additional site

 3  rehabilitation is not required unless it is demonstrated that:

 4         (a)  Fraud was committed in demonstrating site

 5  conditions or completion of site rehabilitation;

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

 7  of previously unknown contamination which exceeds the

 8  site-specific rehabilitation levels established in accordance

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

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

11  environment;

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

13  rehabilitation criteria established under this section;

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

15  acceptable risk established under subsection (2) due to

16  substantial changes in exposure conditions, such as a change

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

18  who changes the land use of the site, thereby causing the

19  level of risk to increase beyond the acceptable risk level,

20  may be required by the department to undertake additional

21  remediation measures to ensure that human health, public

22  safety, and the environment are protected consistent with this

23  section; or

24         (e)  A new discharge of pollutants or hazardous

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

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

27  Completion" order associated with the original contamination

28  being addressed pursuant to this section.

29         Section 2.  Subsection (1) of section 199.1055, Florida

30  Statutes, is amended to read:

31  

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 1         199.1055  Contaminated site rehabilitation tax

 2  credit.--

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

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

 5  of voluntary cleanup activity that is integral to site

 6  rehabilitation at the following sites is available allowed

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

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

 9         1.  A drycleaning-solvent-contaminated site eligible

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

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

12  cleanup is undertaken by the real property owner pursuant to

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

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

15  facility where the contamination exists; or

16         3.  A brownfield site in a designated brownfield area

17  under s. 376.80.

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

19  applicants taxpayer, or multiple taxpayers working jointly to

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

21  $250,000 per year in tax credits for each site voluntarily

22  rehabilitated. Multiple tax credit applicants taxpayers shall

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

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

25  conditions and limitations as provided in this section, a

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

27  voluntarily rehabilitates a site may receive not more than

28  $250,000 per year in tax credits which it can subsequently

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

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

31  fully used in any one year because of insufficient tax

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

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

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

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

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

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

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

 8  its credit.

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

10  220.1845 is ineligible to receive credit under this section in

11  a given tax year.

12         (e)  A tax credit applicant taxpayer that receives

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

14  for rehabilitation of a drycleaning-solvent-contaminated site

15  is ineligible to receive credit under this section for costs

16  incurred by the tax credit applicant taxpayer in conjunction

17  with the rehabilitation of that site during the same time

18  period that state-administered site rehabilitation was

19  underway.

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

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

22  annually.

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

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

25  transferred after a merger or acquisition to the surviving or

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

27  limitations.

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

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

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

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

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

 2  in this section. Such transferred credits may not be

 3  transferred again although they may succeed to a surviving or

 4  acquiring entity subject to the same conditions and

 5  limitations as described in this section.

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

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

 8  the Department of Environmental Protection or an examination

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

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

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

12  of credit taken. Any subsequent deficiencies shall be assessed

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

14  the case of multiple succeeding entities in the order of

15  credit succession.

16         (h)  In order to encourage completion of site

17  rehabilitation at contaminated sites being voluntarily cleaned

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

19  credit applicant taxpayer may claim an additional 10 percent

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

21  final year of cleanup as evidenced by the Department of

22  Environmental Protection issuing a "No Further Action" order

23  for that site.

24         Section 3.  Subsection (1) of section 220.1845, Florida

25  Statutes, is amended to read:

26         220.1845  Contaminated site rehabilitation tax

27  credit.--

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

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

30  of voluntary cleanup activity that is integral to site

31  

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 1  rehabilitation at the following sites is available allowed

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

 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, or multiple tax credit

13  applicants taxpayer, or multiple taxpayers working jointly to

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

15  $250,000 per year in tax credits for each site voluntarily

16  rehabilitated. Multiple tax credit applicants taxpayers shall

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

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

19  conditions and limitations as provided in this section, a

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

21  voluntarily rehabilitates a site may receive not more than

22  $250,000 per year in tax credits which it can subsequently

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

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

25  fully used in any one year because of insufficient tax

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

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

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

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

30  which the corporation is eligible in that year under this

31  section after applying the other credits and unused carryovers

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

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

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

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

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

 6  the date of transfer to use its credit.

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

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

 9  220.131(1) may be allowed the credit on a consolidated return

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

11  group and paid by the taxpayer that incurred the

12  rehabilitation costs.

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

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

15  tax year.

16         (f)  A tax credit applicant taxpayer that receives

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

18  rehabilitation of a drycleaning-solvent-contaminated site is

19  ineligible to receive credit under this section for costs

20  incurred by the tax credit applicant taxpayer in conjunction

21  with the rehabilitation of that site during the same time

22  period that state-administered site rehabilitation was

23  underway.

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

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

26  annually.

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

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

29  transferred after a merger or acquisition to the surviving or

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

31  limitations.

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

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

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

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

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

 6  in this section. Such transferred credits may not be

 7  transferred again although they may succeed to a surviving or

 8  acquiring entity subject to the same conditions and

 9  limitations as described in this section.

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

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

12  the Department of Environmental Protection or an examination

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

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

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

16  of credit taken. Any subsequent deficiencies shall be assessed

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

18  the case of multiple succeeding entities in the order of

19  credit succession.

20         (i)  In order to encourage completion of site

21  rehabilitation at contaminated sites being voluntarily cleaned

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

23  credit applicant taxpayer may claim an additional 10 percent

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

25  final year of cleanup as evidenced by the Department of

26  Environmental Protection issuing a "No Further Action" order

27  for that site.

28         Section 4.  Section 376.30781, Florida Statutes, is

29  amended to read:

30         376.30781  Partial tax credits for rehabilitation of

31  drycleaning-solvent-contaminated sites and brownfield sites in

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 1  designated brownfield areas; application process; rulemaking

 2  authority; revocation authority.--

 3         (1)  The Legislature finds that:

 4         (a)  To facilitate property transactions and economic

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

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

 7  drycleaning-solvent-contaminated sites and brownfield sites in

 8  designated brownfield areas.

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

10  the voluntary cleanup of drycleaning-solvent-contaminated

11  sites and brownfield sites in designated brownfield areas by

12  providing a partial tax credit for the restoration of such

13  property in specified circumstances.

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

15  costs of voluntary cleanup activity that is integral to site

16  rehabilitation at the following sites is allowed pursuant to

17  ss. 199.1055 and 220.1845:

18         1.  A drycleaning-solvent-contaminated site eligible

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

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

21  cleanup is undertaken by the real property owner pursuant to

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

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

24  facility where the contamination exists; or

25         3.  A brownfield site in a designated brownfield area

26  under s. 376.80.

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

28  credit applicants taxpayers working jointly to clean up a

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

30  year in tax credits for each site voluntarily rehabilitated.

31  Multiple tax credit applicants taxpayers shall be granted

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 1  receive tax credits in the same proportion as their

 2  contribution to payment of cleanup costs. Tax credits are

 3  available only for site rehabilitation conducted during the

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

 5  submitted.

 6         (c)  In order to encourage completion of site

 7  rehabilitation at contaminated sites that are being

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

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

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

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

12  the Department of Environmental Protection issuing a "No

13  Further Action" order for that site.

14         (3)  The Department of Environmental Protection shall

15  be responsible for allocating the tax credits provided for in

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

17  in tax credits annually.

18         (4)  To claim the credit for site rehabilitation

19  conducted during the current calendar year, each tax credit

20  applicant must apply to the Department of Environmental

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

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

23  developed by the Department of Environmental Protection in

24  cooperation with the Department of Revenue. The form shall

25  include an affidavit from each tax credit applicant certifying

26  that all information contained in the application, including

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

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

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

30  include an affidavit signed by the real property owner stating

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

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 1  the drycleaning facility where the contamination exists.

 2  Approval of partial tax credits must be accomplished on a

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

 4  applications are received by the Division of Waste Management.

 5  A tax credit An applicant shall submit only one complete

 6  application per site for each calendar year's site

 7  rehabilitation costs. Incomplete placeholder applications

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

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

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

11         (a)  Have entered into a voluntary cleanup agreement

12  with the Department of Environmental Protection for a

13  drycleaning-solvent-contaminated site or a Brownfield Site

14  Rehabilitation Agreement, as applicable; and

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

16  376.3078(3)(d) for eligible drycleaning-solvent-cleanup

17  program sites.

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

19  an applicant must annually file an application for

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

21  Management of the Department of Environmental Protection by

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

23  site rehabilitation costs are being claimed in a tax credit

24  application December 31. The tax credit applicant must provide

25  all pertinent information requested on the tax credit

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

27  address of the tax credit applicant and the address and

28  tracking identification number of the eligible site. Along

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

30  must submit the following:

31  

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

 2  the Water Quality Assurance Trust Fund to cover the

 3  administrative costs associated with the department's review

 4  of the tax credit application;

 5         (b)  Copies of contracts and documentation of contract

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

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

 8  transactions involving actual costs incurred for that tax year

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

10  376.301 and 376.79;

11         (c)  Proof that the documentation submitted pursuant to

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

13  certified public accountant in accordance with standards

14  established by the American Institute of Certified Public

15  Accountants. Specifically, the certified public accountant

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

17  and paid by conducting an independent review of the data

18  presented by the tax credit applicant. Accuracy and validity

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

20  of effort was certified by an appropriate professional

21  registered in this state in each contributing technical

22  discipline. The certified public accountant's report would

23  also attest that the costs included in the application form

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

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

26  Environmental Protection with the tax credit application; and

27         (d)  A certification form stating that site

28  rehabilitation activities associated with the documentation

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

30  the observation of, and related technical documents have been

31  signed and sealed by, an appropriate professional registered

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 1  in this state in each contributing technical discipline. The

 2  certification form shall be signed and sealed by the

 3  appropriate registered professionals stating that the costs

 4  incurred were integral, necessary, and required for site

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

 6  376.79.

 7         (6)  The certified public accountant and appropriate

 8  registered professionals submitting forms as part of a tax

 9  credit application must verify such forms. Verification must

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

11  the provisions of s. 92.525(3).

12         (7)  The Department of Environmental Protection shall

13  review the tax credit application and any supplemental

14  documentation that the tax credit applicant may submit prior

15  to the annual application deadline in order to have the

16  application considered complete submitted by each applicant,

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

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

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

20  Upon verification that the tax credit applicant has met these

21  requirements, the department shall issue a written decision

22  granting eligibility for partial tax credits (a tax credit

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

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

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

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

27  certifications from the appropriate registered technical

28  professionals.

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

30  Environmental Protection shall inform each eligible tax credit

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

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 1  each eligible tax credit applicant with a tax credit

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

 3  Department of Revenue to claim the tax credit or be

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

 5  220.1845(1)(h). Credits will not result in the payment of

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

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

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

 9  annual tax credit authorization, such application will then be

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

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

12  prior year application.

13         (10)  The Department of Environmental Protection may

14  adopt rules to prescribe the necessary forms required to claim

15  tax credits under this section and to provide the

16  administrative guidelines and procedures required to

17  administer this section. Prior to the adoption of rules

18  regulating the tax credit application, the department shall,

19  by September 1, 1998, establish reasonable interim application

20  requirements and forms.

21         (11)  The Department of Environmental Protection may

22  revoke or modify any written decision granting eligibility for

23  partial tax credits under this section if it is discovered

24  that the tax credit applicant submitted any false statement,

25  representation, or certification in any application, record,

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

27  partial tax credits under this section. The Department of

28  Environmental Protection shall immediately notify the

29  Department of Revenue of any revoked or modified orders

30  affecting previously granted partial tax credits.

31  Additionally, the tax credit applicant taxpayer must notify

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

 2  claimed.

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

 4  real property owner who receives state-funded site

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

 6  drycleaning-solvent-contaminated site is ineligible to receive

 7  a tax credit under s. 199.1055 or s. 220.1845 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         Section 5.  This act shall take effect upon becoming a

13  law.

14  

15            *****************************************

16                          SENATE SUMMARY

17    Provides for risk-based corrective action principles to
      apply to sites that are contaminated as a result of a
18    discharge or pollutants or hazardous substances. Requires
      the Department of Environmental Protection to establish
19    the cleanup criteria by rule. Revises provisions granting
      a tax credit for the costs of voluntary cleanup activity.
20    (See bill for details.)

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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