Senate Bill sb1664
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    Florida Senate - 2005                                  SB 1664
    By Senator Peaden
    2-809-05
  1                      A bill to be entitled
  2         An act relating to contaminated drycleaning
  3         facilities; amending s. 376.3078, F.S.;
  4         providing that a drycleaning facility where an
  5         accident caused or exacerbated contamination is
  6         eligible for an exemption from liability;
  7         defining the term "accident"; providing an
  8         effective date.
  9  
10  Be It Enacted by the Legislature of the State of Florida:
11  
12         Section 1.  Subsection (3) of section 376.3078, Florida
13  Statutes, is amended to read:
14         376.3078  Drycleaning facility restoration; funds;
15  uses; liability; recovery of expenditures.--
16         (3)  REHABILITATION LIABILITY.--
17         (a)  In accordance with the eligibility provisions of
18  this section, a real property owner, nearby real property
19  owner, or person who owns or operates, or who otherwise could
20  be liable as a result of the operation of, a drycleaning
21  facility or a wholesale supply facility is not liable for or
22  subject to administrative or judicial action brought by or on
23  behalf of any state or local government or agency thereof or
24  by or on behalf of any person to compel rehabilitation or pay
25  for the costs of rehabilitation of environmental contamination
26  resulting from the discharge of drycleaning solvents. Subject
27  to the delays that may occur as a result of the prioritization
28  of sites under this section for any qualified site, costs for
29  activities described in paragraph (2)(b) shall be absorbed at
30  the expense of the drycleaning facility restoration funds,
31  without recourse to reimbursement or recovery from the real
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 1  property owner, nearby real property owner, or owner or
 2  operator of the drycleaning facility or the wholesale supply
 3  facility. Notwithstanding any other provision of this chapter,
 4  this subsection applies to causes of action accruing on or
 5  after the effective date of this act and applies retroactively
 6  to causes of action accruing before the effective date of this
 7  act for which a lawsuit has not been filed before the
 8  effective date of this act.
 9         (b)  With regard to drycleaning facilities or wholesale
10  supply facilities that have operated as drycleaning facilities
11  or wholesale supply facilities on or after October 1, 1994,
12  any such drycleaning facility or wholesale supply facility at
13  which there exists contamination by drycleaning solvents shall
14  be eligible under this subsection regardless of when the
15  drycleaning contamination was discovered, provided that the
16  drycleaning facility or the wholesale supply facility:
17         1.  Has been registered with the department;
18         2.  Is determined by the department to be in compliance
19  with the department's rules regulating drycleaning solvents,
20  drycleaning facilities, or wholesale supply facilities on or
21  after November 19, 1980;
22         3.  Has not been operated in a grossly negligent manner
23  at any time on or after November 19, 1980;
24         4.  Has not been identified to qualify for listing, nor
25  is listed, on the National Priority List pursuant to the
26  Comprehensive Environmental Response, Compensation, and
27  Liability Act of 1980 as amended by the Superfund Amendments
28  and Reauthorization Act of 1986, and as subsequently amended;
29         5.  Is not under an order from the United States
30  Environmental Protection Agency pursuant to s. 3008(h) of the
31  Resource Conservation and Recovery Act as amended (42 U.S.C.A.
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 1  s. 6928(h)), or has not obtained and is not required to obtain
 2  a permit for the operation of a hazardous waste treatment,
 3  storage, or disposal facility, a postclosure permit, or a
 4  permit pursuant to the federal Hazardous and Solid Waste
 5  Amendments of 1984;
 6  
 7  and provided that the real property owner or the owner or
 8  operator of the drycleaning facility or the wholesale supply
 9  facility has not willfully concealed the discharge of
10  drycleaning solvents and has remitted all taxes due pursuant
11  to ss. 376.70 and 376.75, has provided documented evidence of
12  contamination by drycleaning solvents as required by the rules
13  developed pursuant to this section, has reported the
14  contamination prior to December 31, 1998, and has not denied
15  the department access to the site.
16         (c)  With regard to drycleaning facilities or wholesale
17  supply facilities that cease to be operated as drycleaning
18  facilities or wholesale supply facilities prior to October 1,
19  1994, such facilities, at which there exists contamination by
20  drycleaning solvents, shall be eligible under this subsection
21  regardless of when the contamination was discovered, provided
22  that the drycleaning facility or wholesale supply facility:
23         1.  Was not determined by the department, within a
24  reasonable time after the department's discovery, to have been
25  out of compliance with the department rules regulating
26  drycleaning solvents, drycleaning facilities, or wholesale
27  supply facilities implemented at any time on or after November
28  19, 1980;
29         2.  Was not operated in a grossly negligent manner at
30  any time on or after November 19, 1980;
31  
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 1         3.  Has not been identified to qualify for listing, nor
 2  is listed, on the National Priority List pursuant to the
 3  Comprehensive Environmental Response, Compensation, and
 4  Liability Act of 1980, as amended by the Superfund Amendments
 5  and Reauthorization Act of 1986, and as subsequently amended;
 6  and
 7         4.  Is not under an order from the United States
 8  Environmental Protection Agency pursuant to s. 3008(h) of the
 9  Resource Conservation and Recovery Act, as amended, or has not
10  obtained and is not required to obtain a permit for the
11  operation of a hazardous waste treatment, storage, or disposal
12  facility, a postclosure permit, or a permit pursuant to the
13  federal Hazardous and Solid Waste Amendments of 1984;
14  
15  and provided that the real property owner or the owner or
16  operator of the drycleaning facility or the wholesale supply
17  facility has not willfully concealed the discharge of
18  drycleaning solvents, has provided documented evidence of
19  contamination by drycleaning solvents as required by the rules
20  developed pursuant to this section, has reported the
21  contamination prior to December 31, 1998, and has not denied
22  the department access to the site.
23         (d)  For purposes of determining eligibility, a
24  drycleaning facility or wholesale supply facility was operated
25  in a grossly negligent manner if the department determines
26  that the owner or operator of the drycleaning facility or the
27  wholesale supply facility:
28         1.  Willfully discharged drycleaning solvents onto the
29  soils or into the waters of the state after November 19, 1980,
30  with the knowledge, intent, and purpose that the discharge
31  
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 1  would result in harm to the environment or to public health or
 2  result in a violation of the law;
 3         2.  Willfully concealed a discharge of drycleaning
 4  solvents with the knowledge, intent, and purpose that the
 5  concealment would result in harm to the environment or to
 6  public health or result in a violation of the law; or
 7         3.  Willfully violated a local, state, or federal law
 8  or rule regulating the operation of drycleaning facilities or
 9  wholesale supply facilities with the knowledge, intent, and
10  purpose that the act would result in harm to the environment
11  or to public health or result in a violation of the law.
12         (e)1.  With respect to eligible drycleaning solvent
13  contamination reported to the department as part of a
14  completed application as required by the rules developed
15  pursuant to this section by June 30, 1997, the costs of
16  activities described in paragraph (2)(b) shall be absorbed at
17  the expense of the drycleaning facility restoration funds,
18  less a $1,000 deductible per incident, which shall be paid by
19  the applicant or current property owner. The deductible shall
20  be paid within 60 days after receipt of billing by the
21  department.
22         2.  For contamination reported to the department as
23  part of a completed application as required by the rules
24  developed under this section, from July 1, 1997, through
25  September 30, 1998, the costs shall be absorbed at the expense
26  of the drycleaning facility restoration funds, less a $5,000
27  deductible per incident. The deductible shall be paid within
28  60 days after receipt of billing by the department.
29         3.  For contamination reported to the department as
30  part of a completed application as required by the rules
31  developed pursuant to this section from October 1, 1998,
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 1  through December 31, 1998, the costs shall be absorbed at the
 2  expense of the drycleaning facility restoration funds, less a
 3  $10,000 deductible per incident. The deductible shall be paid
 4  within 60 days after receipt of billing by the department.
 5         4.  For contamination reported after December 31, 1998,
 6  no costs will be absorbed at the expense of the drycleaning
 7  facility restoration funds.
 8         (f)  The provisions of This subsection does shall not
 9  apply to any site where the department has been denied site
10  access to implement the provisions of this section.
11         (g)  In order to identify those drycleaning facilities
12  and wholesale supply facilities that have experienced
13  contamination resulting from the discharge of drycleaning
14  solvents and to ensure the most expedient rehabilitation of
15  such sites, the owners and operators of drycleaning facilities
16  and wholesale supply facilities are encouraged to detect and
17  report contamination from drycleaning solvents related to the
18  operation of drycleaning facilities and wholesale supply
19  facilities.  The department shall establish reasonable
20  guidelines for the written reporting of drycleaning
21  contamination and shall distribute forms to registrants under
22  s. 376.303(1)(d), and to other interested parties upon
23  request, to be used for such purpose.
24         (h)  A report of drycleaning solvent contamination at a
25  drycleaning facility or wholesale supply facility made to the
26  department by any person in accordance with this subsection,
27  or any rules promulgated pursuant hereto, may not be used
28  directly as evidence of liability for such discharge in any
29  civil or criminal trial arising out of the discharge.
30         (i)  A drycleaning facility at which contamination by
31  drycleaning solvents exists and which was damaged by accident
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 1  at any time is eligible under this subsection, regardless of
 2  whether an application for eligibility was filed on or before
 3  December 31, 1998. As used in this paragraph, the term
 4  "accident" means an unplanned and unanticipated occurrence
 5  beyond the control of the owner or operator of a drycleaning
 6  facility which resulted in physical damage to the facility
 7  when the actions of responders to such occurrence could
 8  reasonably be determined to have caused or exacerbated
 9  contamination by drycleaning solvents at such facility.
10         (j)(i)  The provisions of This subsection does shall
11  not apply to drycleaning facilities owned or operated by the
12  state or Federal Government.
13         (k)(j)  Due to the value of Florida's potable water, it
14  is the intent of the Legislature that the department initiate
15  and facilitate as many cleanups as possible utilizing the
16  resources of the state, local governments, and the private
17  sector. The department is authorized to adopt necessary rules
18  and enter into contracts to carry out the intent of this
19  subsection and to limit or prevent future contamination from
20  the operation of drycleaning facilities and wholesale supply
21  facilities.
22         (l)(k)  It is not the intent of the Legislature that
23  the state become the owner or operator of a drycleaning
24  facility or wholesale supply facility by engaging in
25  state-conducted cleanup.
26         (m)(l)  The owner, operator, and either the real
27  property owner or agent of the real property owner may apply
28  for the Drycleaning Contamination Cleanup Program by jointly
29  submitting a completed application package to the department
30  pursuant to the rules that shall be adopted by the department.
31  If the application cannot be jointly submitted, then the
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 1  applicant shall provide notice of the application to other
 2  interested parties. After reviewing the completed application
 3  package, the department shall notify the applicant in writing
 4  as to whether the drycleaning facility or wholesale supply
 5  facility is eligible for the program. If the department denies
 6  eligibility for a completed application package, the notice of
 7  denial shall specify the reasons for the denial, including
 8  specific and substantive findings of fact, and shall
 9  constitute agency action subject to the provisions of chapter
10  120. For the purposes of ss. 120.569 and 120.57, the real
11  property owner and the owner and operator of a drycleaning
12  facility or wholesale supply facility which is the subject of
13  a decision by the department with regard to eligibility shall
14  be deemed to be parties whose substantial interests are
15  determined by the department's decision to approve or deny
16  eligibility.
17         (n)(m)  Eligibility under this subsection applies to
18  the drycleaning facility or wholesale supply facility, and
19  attendant site rehabilitation applies to such facilities and
20  to any place where drycleaning-solvent contamination migrating
21  from the eligible facility is found.  A determination of
22  eligibility or ineligibility shall not be affected by any
23  conveyance of the ownership of the drycleaning facility,
24  wholesale supply facility, or the real property on which such
25  facility is located.  Nothing contained in this chapter shall
26  be construed to allow a drycleaning facility or wholesale
27  supply facility which would not be eligible under this
28  subsection to become eligible as a result of the conveyance of
29  the ownership of the ineligible drycleaning facility or
30  wholesale supply facility to another owner.
31  
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 1         (o)(n)  If funding for the drycleaning contamination
 2  rehabilitation program is eliminated, the provisions of this
 3  subsection shall not apply.
 4         (p)(o)1.  The department shall have the authority to
 5  cancel the eligibility of any drycleaning facility or
 6  wholesale supply facility that submits fraudulent information
 7  in the application package or that fails to continuously
 8  comply with the conditions of eligibility set forth in this
 9  subsection, or has not remitted all fees pursuant to s.
10  376.303(1)(d), or has not remitted the deductible payments
11  pursuant to paragraph (e).
12         2.  If the program eligibility of a drycleaning
13  facility or wholesale supply facility is subject to
14  cancellation pursuant to this section, then the department
15  shall notify the applicant in writing of its intent to cancel
16  program eligibility and shall state the reason or reasons for
17  cancellation. The applicant shall have 45 days to resolve the
18  reason or reasons for cancellation to the satisfaction of the
19  department. If, after 45 days, the applicant has not resolved
20  the reason or reasons for cancellation to the satisfaction of
21  the department, the order of cancellation shall become final
22  and shall be subject to the provisions of chapter 120.
23         (q)(p)  A real property owner shall not be subject to
24  administrative or judicial action brought by or on behalf of
25  any person or local or state government, or agency thereof,
26  for gross negligence or violations of department rules prior
27  to January 1, 1990, which resulted from the operation of a
28  drycleaning facility, provided that the real property owner
29  demonstrates that:
30         1.  The real property owner had ownership in the
31  property at the time of the gross negligence or violation of
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 1  department rules and did not cause or contribute to
 2  contamination on the property;
 3         2.  The real property owner was a distinct and separate
 4  entity from the owner and operator of the drycleaning
 5  facility, and did not have an ownership interest in or share
 6  in the profits of the drycleaning facility;
 7         3.  The real property owner did not participate in the
 8  operation or management of the drycleaning facility;
 9         4.  The real property owner complied with all discharge
10  reporting requirements, and did not conceal any contamination;
11  and
12         5.  The department has not been denied access.
13  
14  The defense provided by this paragraph does not apply to any
15  liability under a federally delegated program.
16         (r)(q)  A person whose property becomes contaminated
17  due to geophysical or hydrologic reasons from the operation of
18  a nearby drycleaning or wholesale supply facility and whose
19  property has never been occupied by a business that utilized
20  or stored drycleaning solvents or similar constituents is not
21  subject to administrative or judicial action brought by or on
22  behalf of another to compel the rehabilitation of or the
23  payment of the costs for the rehabilitation of sites
24  contaminated by drycleaning solvents, provided that the
25  person:
26         1.  Does not own and has never held an ownership
27  interest in, or shared in the profits of, the drycleaning
28  facility operated at the source location;
29         2.  Did not participate in the operation or management
30  of the drycleaning facility at the source location; and
31  
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 1         3.  Did not cause, contribute to, or exacerbate the
 2  release or threat of release of any hazardous substance
 3  through any act or omission.
 4  
 5  The defense provided by this paragraph does not apply to any
 6  liability under a federally delegated program.
 7         (s)(r)  Nothing in this subsection precludes the
 8  department from considering information and documentation
 9  provided by private consultants, local government programs,
10  federal agencies, or any individual which is relevant to an
11  eligibility determination if the department provides the
12  applicant with reasonable access to the information and its
13  origin.
14         Section 2.  This act shall take effect upon becoming a
15  law.
16  
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18                          SENATE SUMMARY
19    Grants a contaminated drycleaning facility an exemption
      from liability for restoration where an accident caused
20    or exacerbated contamination. Defines the term
      "accident".
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