SENATE AMENDMENT
    Bill No. CS for SB 956
    Amendment No. ___   Barcode 151890
                            CHAMBER ACTION
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11  Senator Jones moved the following amendment:
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13         Senate Amendment (with title amendment) 
14         On page 2, line 3, through
15            page 3, line 3, delete those lines
16  
17  and insert:  
18         Section 2.  Subsections (1), (3), and (11) of section
19  376.3078, Florida Statutes, are amended to read:
20         376.3078  Drycleaning facility restoration; funds;
21  uses; liability; recovery of expenditures.--
22         (1)  FINDINGS.--In addition to the legislative findings
23  set forth in s. 376.30, the Legislature finds and declares
24  that:
25         (a)  Significant quantities of drycleaning solvents
26  have been discharged in the past at drycleaning facilities as
27  part of the normal operation of these facilities.
28         (b)  Discharges of drycleaning solvents at such
29  drycleaning facilities have occurred and are occurring, and
30  pose a significant threat to the quality of the groundwaters
31  and inland surface waters of this state.
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SENATE AMENDMENT Bill No. CS for SB 956 Amendment No. ___ Barcode 151890 1 (c) Where contamination of the groundwater or surface 2 water has occurred, remedial measures have often been delayed 3 for long periods while determinations as to liability and the 4 extent of liability are made, and such delays result in the 5 continuation and intensification of the threat to the public 6 health, safety, and welfare; in greater damage to the 7 environment; and in significantly higher costs to contain and 8 remove the contamination. 9 (d) Adequate financial resources must be readily 10 available to provide for the expeditious supply of safe and 11 reliable alternative sources of potable water to affected 12 persons and to provide a means for investigation and 13 rehabilitation of contaminated sites without delay. 14 (e) It is the intent of the Legislature to encourage 15 real property owners to undertake the voluntary cleanup of 16 property contaminated with drycleaning solvents and that the 17 immunity provisions of this section and all other available 18 defenses be construed in favor of real property owners. 19 (f) Strong public interests are served by subsections 20 (3) and (11). These include improving the marketability and 21 use of, and the ability to borrow funds as to, property 22 contaminated by drycleaning solvents and encouraging the 23 voluntary remediation of contaminated sites. The extent to 24 which claims or rights are affected by subsections (3) and 25 (11) is offset by the remedies created in this section. The 26 limitations imposed by these subsections on such claims or 27 rights are reasonable when balanced against the public 28 interests served. The claims or rights affected by subsections 29 (3) and (11) are speculative, and these subsections are 30 intended to prevent judicial interpretations allowing windfall 31 awards that thwart the public-interest provisions of this 2 10:35 AM 04/22/03 s0956c1c-13k0a
SENATE AMENDMENT Bill No. CS for SB 956 Amendment No. ___ Barcode 151890 1 section. 2 (3) REHABILITATION LIABILITY.-- 3 (a) In accordance with the eligibility provisions of 4 this section, a no real property owner, nearby real property 5 owner, or no person who owns or operates, or who otherwise 6 could be liable as a result of the operation of, a drycleaning 7 facility or a wholesale supply facility is not liable for or 8 shall be subject to: 9 1. Claims of any person, except for any governmental 10 entity, for property damage of any kind, including, but not 11 limited to, diminished value of real property or improvements; 12 lost or delayed rent, sale, or use of real property or 13 improvements; or stigma to real property or improvements 14 caused by drycleaning-solvent contamination; or 15 2. Administrative or judicial action brought by or on 16 behalf of any state or local government or agency thereof or 17 by or on behalf of any person to compel rehabilitation or pay 18 for the costs of rehabilitation of environmental contamination 19 resulting from the discharge of drycleaning solvents. 20 21 Subject to the delays that may occur as a result of the 22 prioritization of sites under this section for any qualified 23 site, costs for activities described in paragraph (2)(b) shall 24 be absorbed at the expense of the drycleaning facility 25 restoration funds, without recourse to reimbursement or 26 recovery from the real property owner, nearby real property 27 owner, or the owner or operator of the drycleaning facility or 28 the wholesale supply facility. Notwithstanding any other 29 provision of this chapter, this subsection applies to causes 30 of action accruing on or after the effective date of this act 31 and applies retroactively to causes of action accruing before 3 10:35 AM 04/22/03 s0956c1c-13k0a
SENATE AMENDMENT Bill No. CS for SB 956 Amendment No. ___ Barcode 151890 1 the effective date of this act for which a lawsuit has not 2 been filed before the effective date of this act. 3 (b)(a) With regard to drycleaning facilities or 4 wholesale supply facilities that have operated as drycleaning 5 facilities or wholesale supply facilities on or after October 6 1, 1994, any such drycleaning facility or wholesale supply 7 facility at which there exists contamination by drycleaning 8 solvents shall be eligible under this subsection regardless of 9 when the drycleaning contamination was discovered, provided 10 that the drycleaning facility or the wholesale supply 11 facility: 12 1. Has been registered with the department; 13 2. Is determined by the department to be in compliance 14 with the department's rules regulating drycleaning solvents, 15 drycleaning facilities, or wholesale supply facilities on or 16 after November 19, 1980; 17 3. Has not been operated in a grossly negligent manner 18 at any time on or after November 19, 1980; 19 4. Has not been identified to qualify for listing, nor 20 is listed, on the National Priority List pursuant to the 21 Comprehensive Environmental Response, Compensation, and 22 Liability Act of 1980 as amended by the Superfund Amendments 23 and Reauthorization Act of 1986, and as subsequently amended; 24 5. Is not under an order from the United States 25 Environmental Protection Agency pursuant to s. 3008(h) of the 26 Resource Conservation and Recovery Act as amended (42 U.S.C.A. 27 s. 6928(h)), or has not obtained and is not required to obtain 28 a permit for the operation of a hazardous waste treatment, 29 storage, or disposal facility, a postclosure permit, or a 30 permit pursuant to the federal Hazardous and Solid Waste 31 Amendments of 1984; 4 10:35 AM 04/22/03 s0956c1c-13k0a
SENATE AMENDMENT Bill No. CS for SB 956 Amendment No. ___ Barcode 151890 1 2 and provided that the real property owner or the owner or 3 operator of the drycleaning facility or the wholesale supply 4 facility has not willfully concealed the discharge of 5 drycleaning solvents and has remitted all taxes due pursuant 6 to ss. 376.70 and 376.75, has provided documented evidence of 7 contamination by drycleaning solvents as required by the rules 8 developed pursuant to this section, has reported the 9 contamination prior to December 31, 1998, and has not denied 10 the department access to the site. 11 (c)(b) With regard to drycleaning facilities or 12 wholesale supply facilities that cease to be operated as 13 drycleaning facilities or wholesale supply facilities prior to 14 October 1, 1994, such facilities, at which there exists 15 contamination by drycleaning solvents, shall be eligible under 16 this subsection regardless of when the contamination was 17 discovered, provided that the drycleaning facility or 18 wholesale supply facility: 19 1. Was not determined by the department, within a 20 reasonable time after the department's discovery, to have been 21 out of compliance with the department rules regulating 22 drycleaning solvents, drycleaning facilities, or wholesale 23 supply facilities implemented at any time on or after November 24 19, 1980; 25 2. Was not operated in a grossly negligent manner at 26 any time on or after November 19, 1980; 27 3. Has not been identified to qualify for listing, nor 28 is listed, on the National Priority List pursuant to the 29 Comprehensive Environmental Response, Compensation, and 30 Liability Act of 1980, as amended by the Superfund Amendments 31 and Reauthorization Act of 1986, and as subsequently amended; 5 10:35 AM 04/22/03 s0956c1c-13k0a
SENATE AMENDMENT Bill No. CS for SB 956 Amendment No. ___ Barcode 151890 1 and 2 4. Is not under an order from the United States 3 Environmental Protection Agency pursuant to s. 3008(h) of the 4 Resource Conservation and Recovery Act, as amended, or has not 5 obtained and is not required to obtain a permit for the 6 operation of a hazardous waste treatment, storage, or disposal 7 facility, a postclosure permit, or a permit pursuant to the 8 federal Hazardous and Solid Waste Amendments of 1984; 9 10 and provided that the real property owner or the owner or 11 operator of the drycleaning facility or the wholesale supply 12 facility has not willfully concealed the discharge of 13 drycleaning solvents, has provided documented evidence of 14 contamination by drycleaning solvents as required by the rules 15 developed pursuant to this section, has reported the 16 contamination prior to December 31, 1998, and has not denied 17 the department access to the site. 18 (d)(c) For purposes of determining eligibility, a 19 drycleaning facility or wholesale supply facility was operated 20 in a grossly negligent manner if the department determines 21 that the owner or operator of the drycleaning facility or the 22 wholesale supply facility: 23 1. Willfully discharged drycleaning solvents onto the 24 soils or into the waters of the state after November 19, 1980, 25 with the knowledge, intent, and purpose that the discharge 26 would result in harm to the environment or to public health or 27 result in a violation of the law; 28 2. Willfully concealed a discharge of drycleaning 29 solvents with the knowledge, intent, and purpose that the 30 concealment would result in harm to the environment or to 31 public health or result in a violation of the law; or 6 10:35 AM 04/22/03 s0956c1c-13k0a
SENATE AMENDMENT Bill No. CS for SB 956 Amendment No. ___ Barcode 151890 1 3. Willfully violated a local, state, or federal law 2 or rule regulating the operation of drycleaning facilities or 3 wholesale supply facilities with the knowledge, intent, and 4 purpose that the act would result in harm to the environment 5 or to public health or result in a violation of the law. 6 (e)(d)1. With respect to eligible drycleaning solvent 7 contamination reported to the department as part of a 8 completed application as required by the rules developed 9 pursuant to this section by June 30, 1997, the costs of 10 activities described in paragraph (2)(b) shall be absorbed at 11 the expense of the drycleaning facility restoration funds, 12 less a $1,000 deductible per incident, which shall be paid by 13 the applicant or current property owner. The deductible shall 14 be paid within 60 days after receipt of billing by the 15 department. 16 2. For contamination reported to the department as 17 part of a completed application as required by the rules 18 developed under this section, from July 1, 1997, through 19 September 30, 1998, the costs shall be absorbed at the expense 20 of the drycleaning facility restoration funds, less a $5,000 21 deductible per incident. The deductible shall be paid within 22 60 days after receipt of billing by the department. 23 3. For contamination reported to the department as 24 part of a completed application as required by the rules 25 developed pursuant to this section from October 1, 1998, 26 through December 31, 1998, the costs shall be absorbed at the 27 expense of the drycleaning facility restoration funds, less a 28 $10,000 deductible per incident. The deductible shall be paid 29 within 60 days after receipt of billing by the department. 30 4. For contamination reported after December 31, 1998, 31 no costs will be absorbed at the expense of the drycleaning 7 10:35 AM 04/22/03 s0956c1c-13k0a
SENATE AMENDMENT Bill No. CS for SB 956 Amendment No. ___ Barcode 151890 1 facility restoration funds. 2 (f)(e) The provisions of this subsection shall not 3 apply to any site where the department has been denied site 4 access to implement the provisions of this section. 5 (g)(f) In order to identify those drycleaning 6 facilities and wholesale supply facilities that have 7 experienced contamination resulting from the discharge of 8 drycleaning solvents and to ensure the most expedient 9 rehabilitation of such sites, the owners and operators of 10 drycleaning facilities and wholesale supply facilities are 11 encouraged to detect and report contamination from drycleaning 12 solvents related to the operation of drycleaning facilities 13 and wholesale supply facilities. The department shall 14 establish reasonable guidelines for the written reporting of 15 drycleaning contamination and shall distribute forms to 16 registrants under s. 376.303(1)(d), and to other interested 17 parties upon request, to be used for such purpose. 18 (h)(g) A report of drycleaning solvent contamination 19 at a drycleaning facility or wholesale supply facility made to 20 the department by any person in accordance with this 21 subsection, or any rules promulgated pursuant hereto, may not 22 be used directly as evidence of liability for such discharge 23 in any civil or criminal trial arising out of the discharge. 24 (i)(h) The provisions of this subsection shall not 25 apply to drycleaning facilities owned or operated by the state 26 or Federal Government. 27 (j)(i) Due to the value of Florida's potable water, it 28 is the intent of the Legislature that the department initiate 29 and facilitate as many cleanups as possible utilizing the 30 resources of the state, local governments, and the private 31 sector. The department is authorized to adopt necessary rules 8 10:35 AM 04/22/03 s0956c1c-13k0a
SENATE AMENDMENT Bill No. CS for SB 956 Amendment No. ___ Barcode 151890 1 and enter into contracts to carry out the intent of this 2 subsection and to limit or prevent future contamination from 3 the operation of drycleaning facilities and wholesale supply 4 facilities. 5 (k)(j) It is not the intent of the Legislature that 6 the state become the owner or operator of a drycleaning 7 facility or wholesale supply facility by engaging in 8 state-conducted cleanup. 9 (l)(k) The owner, operator, and either the real 10 property owner or agent of the real property owner may apply 11 for the Drycleaning Contamination Cleanup Program by jointly 12 submitting a completed application package to the department 13 pursuant to the rules that shall be adopted by the department. 14 If the application cannot be jointly submitted, then the 15 applicant shall provide notice of the application to other 16 interested parties. After reviewing the completed application 17 package, the department shall notify the applicant in writing 18 as to whether the drycleaning facility or wholesale supply 19 facility is eligible for the program. If the department denies 20 eligibility for a completed application package, the notice of 21 denial shall specify the reasons for the denial, including 22 specific and substantive findings of fact, and shall 23 constitute agency action subject to the provisions of chapter 24 120. For the purposes of ss. 120.569 and 120.57, the real 25 property owner and the owner and operator of a drycleaning 26 facility or wholesale supply facility which is the subject of 27 a decision by the department with regard to eligibility shall 28 be deemed to be parties whose substantial interests are 29 determined by the department's decision to approve or deny 30 eligibility. 31 (m)(l) Eligibility under this subsection applies to 9 10:35 AM 04/22/03 s0956c1c-13k0a
SENATE AMENDMENT Bill No. CS for SB 956 Amendment No. ___ Barcode 151890 1 the drycleaning facility or wholesale supply facility, and 2 attendant site rehabilitation applies to such facilities and 3 to any place where drycleaning-solvent contamination migrating 4 from the eligible facility is found. A determination of 5 eligibility or ineligibility shall not be affected by any 6 conveyance of the ownership of the drycleaning facility, 7 wholesale supply facility, or the real property on which such 8 facility is located. Nothing contained in this chapter shall 9 be construed to allow a drycleaning facility or wholesale 10 supply facility which would not be eligible under this 11 subsection to become eligible as a result of the conveyance of 12 the ownership of the ineligible drycleaning facility or 13 wholesale supply facility to another owner. 14 (n)(m) If funding for the drycleaning contamination 15 rehabilitation program is eliminated, the provisions of this 16 subsection shall not apply. 17 (o)(n)1. The department shall have the authority to 18 cancel the eligibility of any drycleaning facility or 19 wholesale supply facility that submits fraudulent information 20 in the application package or that fails to continuously 21 comply with the conditions of eligibility set forth in this 22 subsection, or has not remitted all fees pursuant to s. 23 376.303(1)(d), or has not remitted the deductible payments 24 pursuant to paragraph (e) (d). 25 2. If the program eligibility of a drycleaning 26 facility or wholesale supply facility is subject to 27 cancellation pursuant to this section, then the department 28 shall notify the applicant in writing of its intent to cancel 29 program eligibility and shall state the reason or reasons for 30 cancellation. The applicant shall have 45 days to resolve the 31 reason or reasons for cancellation to the satisfaction of the 10 10:35 AM 04/22/03 s0956c1c-13k0a
SENATE AMENDMENT Bill No. CS for SB 956 Amendment No. ___ Barcode 151890 1 department. If, after 45 days, the applicant has not resolved 2 the reason or reasons for cancellation to the satisfaction of 3 the department, the order of cancellation shall become final 4 and shall be subject to the provisions of chapter 120. 5 (p)(o) A real property owner shall not be subject to 6 administrative or judicial action brought by or on behalf of 7 any person or local or state government, or agency thereof, 8 for gross negligence or violations of department rules prior 9 to January 1, 1990, which resulted from the operation of a 10 drycleaning facility, provided that the real property owner 11 demonstrates that: 12 1. The real property owner had ownership in the 13 property at the time of the gross negligence or violation of 14 department rules and did not cause or contribute to 15 contamination on the property; 16 2. The real property owner was a distinct and separate 17 entity from the owner and operator of the drycleaning 18 facility, and did not have an ownership interest in or share 19 in the profits of the drycleaning facility; 20 3. The real property owner did not participate in the 21 operation or management of the drycleaning facility; 22 4. The real property owner complied with all discharge 23 reporting requirements, and did not conceal any contamination; 24 and 25 5. The department has not been denied access. 26 27 The defense provided by this paragraph does not apply to any 28 liability under a federally delegated program. 29 (q)(p) A person whose property becomes contaminated 30 due to geophysical or hydrologic reasons from the operation of 31 a nearby drycleaning or wholesale supply facility and whose 11 10:35 AM 04/22/03 s0956c1c-13k0a
SENATE AMENDMENT Bill No. CS for SB 956 Amendment No. ___ Barcode 151890 1 property has never been occupied by a business that utilized 2 or stored drycleaning solvents or similar constituents is not 3 subject to administrative or judicial action brought by or on 4 behalf of another to compel the rehabilitation of or the 5 payment of the costs for the rehabilitation of sites 6 contaminated by drycleaning solvents, provided that the 7 person: 8 1. Does not own and has never held an ownership 9 interest in, or shared in the profits of, the drycleaning 10 facility operated at the source location; 11 2. Did not participate in the operation or management 12 of the drycleaning facility at the source location; and 13 3. Did not cause, contribute to, or exacerbate the 14 release or threat of release of any hazardous substance 15 through any act or omission. 16 17 The defense provided by this paragraph does not apply to any 18 liability under a federally delegated program. 19 (r)(q) Nothing in this subsection precludes the 20 department from considering information and documentation 21 provided by private consultants, local government programs, 22 federal agencies, or any individual which is relevant to an 23 eligibility determination if the department provides the 24 applicant with reasonable access to the information and its 25 origin. 26 (11) VOLUNTARY CLEANUP.--A real property owner is 27 authorized to conduct site rehabilitation activities at any 28 time pursuant to department rules, either through agents of 29 the real property owner or through responsible response action 30 contractors or subcontractors, whether or not the facility has 31 been determined by the department to be eligible for the 12 10:35 AM 04/22/03 s0956c1c-13k0a
SENATE AMENDMENT Bill No. CS for SB 956 Amendment No. ___ Barcode 151890 1 drycleaning solvent cleanup program. A real property owner or 2 any other person who that conducts site rehabilitation may not 3 seek cost recovery from the department or the Water Quality 4 Assurance Trust Fund for any such rehabilitation activities. A 5 real property owner who that voluntarily conducts such site 6 rehabilitation, whether commenced before or on or after 7 October 1, 1995, shall be immune from and have no liability 8 for claims of any person, except for any governmental entity, 9 for property damages of any kind, including, but not limited 10 to, diminished value of real property or improvements; lost or 11 delayed rent, sale, or use of real property or improvements; 12 or stigma to real property or improvements caused by 13 drycleaning-solvent contamination or be subject to any 14 administrative or judicial action brought by or on behalf of 15 to any person, state or local government, or agency thereof to 16 compel or enjoin site rehabilitation or pay for the cost of 17 rehabilitation of environmental contamination, and or to pay 18 any fines or penalties regarding rehabilitation, as soon as 19 the real property owner: 20 (a) Conducts contamination assessment and site 21 rehabilitation consistent with state and federal laws and 22 rules; 23 (b) Conducts such site rehabilitation in a timely 24 manner according to a rehabilitation schedule approved by the 25 department; and 26 (c) Does not deny the department access to the site. 27 Upon completion of such site rehabilitation activities in 28 accordance with the requirements of this subsection, the 29 department shall render a site rehabilitation completion 30 order. 31 13 10:35 AM 04/22/03 s0956c1c-13k0a
SENATE AMENDMENT Bill No. CS for SB 956 Amendment No. ___ Barcode 151890 1 The immunity set forth in this subsection also applies to any 2 nearby real property owner. This immunity shall continue to 3 apply to any real property owner who transfers, conveys, 4 leases, or sells property on which a drycleaning facility is 5 located so long as the voluntary cleanup activities continue. 6 Notwithstanding any other provision of this chapter, this 7 subsection applies to causes of action accruing on or after 8 the effective date of this act and applies retroactively to 9 causes of action accruing before the effective date of this 10 act for which a lawsuit has not been filed before the 11 effective date of this act. 12 Section 3. Subsection (4) of section 376.30781, 13 Florida Statutes, is amended to read: 14 376.30781 Partial tax credits for rehabilitation of 15 drycleaning-solvent-contaminated sites and brownfield sites in 16 designated brownfield areas; application process; rulemaking 17 authority; revocation authority.-- 18 (4) To claim the credit, each applicant must apply to 19 the Department of Environmental Protection for an allocation 20 of the $2 million annual credit by December 31 on a form 21 developed by the Department of Environmental Protection in 22 cooperation with the Department of Revenue. The form shall 23 include an affidavit from each applicant certifying that all 24 information contained in the application, including all 25 records of costs incurred and claimed in the tax credit 26 application, are true and correct. If the application is 27 submitted pursuant to subparagraph (2)(a)2., the form must 28 include an affidavit signed by the real property owner stating 29 that it is not, and has never been, the owner or operator of 30 the drycleaning facility where the contamination exists. 31 Approval of partial tax credits must be accomplished on a 14 10:35 AM 04/22/03 s0956c1c-13k0a
SENATE AMENDMENT Bill No. CS for SB 956 Amendment No. ___ Barcode 151890 1 first-come, first-served basis based upon the date complete 2 applications are received by the Division of Waste Management. 3 An applicant shall submit only one application per site per 4 year. To be eligible for a tax credit the applicant must: 5 (a) Have entered into a voluntary cleanup agreement 6 with the Department of Environmental Protection for a 7 drycleaning-solvent-contaminated site or a Brownfield Site 8 Rehabilitation Agreement, as applicable; and 9 (b) Have paid all deductibles pursuant to s. 10 376.3078(3)(e) s. 376.3078(3)(d) for eligible 11 drycleaning-solvent-cleanup program sites. 12 13 14 ================ T I T L E A M E N D M E N T =============== 15 And the title is amended as follows: 16 On page 1, lines 7-11, delete those lines 17 18 and insert: 19 waters; amending s. 376.3078, F.S.; providing 20 additional legislative findings with respect to 21 drycleaning facility restoration; exempting 22 certain real property owners and nearby real 23 property owners from liability for damages 24 arising from contamination by drycleaning 25 solvents in certain circumstances; providing 26 for retroactive application; amending s. 27 376.30781, F.S.; conforming a cross-reference; 28 amending 29 30 31 15 10:35 AM 04/22/03 s0956c1c-13k0a