Florida Senate - 2005                        SENATOR AMENDMENT
    Bill No. CS for SB 2510
                        Barcode 692782
                            CHAMBER ACTION
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       05/04/2005 10:27 AM         .                    
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11  Senator Peaden moved the following amendment:
12  
13         Senate Amendment (with title amendment) 
14         On page 18, between lines 21 and 22,
15  
16  insert:  
17         Section 1.  Subsection (3) of section 376.3078, Florida
18  Statutes, is amended to read:
19         376.3078  Drycleaning facility restoration; funds;
20  uses; liability; recovery of expenditures.--
21         (3)  REHABILITATION LIABILITY.--
22         (a)  In accordance with the eligibility provisions of
23  this section, a real property owner, nearby real property
24  owner, or person who owns or operates, or who otherwise could
25  be liable as a result of the operation of, a drycleaning
26  facility or a wholesale supply facility is not liable for or
27  subject to administrative or judicial action brought by or on
28  behalf of any state or local government or agency thereof or
29  by or on behalf of any person to compel rehabilitation or pay
30  for the costs of rehabilitation of environmental contamination
31  resulting from the discharge of drycleaning solvents. Subject
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Florida Senate - 2005 SENATOR AMENDMENT Bill No. CS for SB 2510 Barcode 692782 1 to the delays that may occur as a result of the prioritization 2 of sites under this section for any qualified site, costs for 3 activities described in paragraph (2)(b) shall be absorbed at 4 the expense of the drycleaning facility restoration funds, 5 without recourse to reimbursement or recovery from the real 6 property owner, nearby real property owner, or owner or 7 operator of the drycleaning facility or the wholesale supply 8 facility. Notwithstanding any other provision of this chapter, 9 this subsection applies to causes of action accruing on or 10 after the effective date of this act and applies retroactively 11 to causes of action accruing before the effective date of this 12 act for which a lawsuit has not been filed before the 13 effective date of this act. 14 (b) With regard to drycleaning facilities or wholesale 15 supply facilities that have operated as drycleaning facilities 16 or wholesale supply facilities on or after October 1, 1994, 17 any such drycleaning facility or wholesale supply facility at 18 which there exists contamination by drycleaning solvents shall 19 be eligible under this subsection regardless of when the 20 drycleaning contamination was discovered, provided that the 21 drycleaning facility or the wholesale supply facility: 22 1. Has been registered with the department; 23 2. Is determined by the department to be in compliance 24 with the department's rules regulating drycleaning solvents, 25 drycleaning facilities, or wholesale supply facilities on or 26 after November 19, 1980; 27 3. Has not been operated in a grossly negligent manner 28 at any time on or after November 19, 1980; 29 4. Has not been identified to qualify for listing, nor 30 is listed, on the National Priority List pursuant to the 31 Comprehensive Environmental Response, Compensation, and 2 2:39 PM 04/28/05 s2510c1c-02-c5t
Florida Senate - 2005 SENATOR AMENDMENT Bill No. CS for SB 2510 Barcode 692782 1 Liability Act of 1980 as amended by the Superfund Amendments 2 and Reauthorization Act of 1986, and as subsequently amended; 3 5. Is not under an order from the United States 4 Environmental Protection Agency pursuant to s. 3008(h) of the 5 Resource Conservation and Recovery Act as amended (42 U.S.C.A. 6 s. 6928(h)), or has not obtained and is not required to obtain 7 a permit for the operation of a hazardous waste treatment, 8 storage, or disposal facility, a postclosure permit, or a 9 permit pursuant to the federal Hazardous and Solid Waste 10 Amendments of 1984; 11 12 and provided that the real property owner or the owner or 13 operator of the drycleaning facility or the wholesale supply 14 facility has not willfully concealed the discharge of 15 drycleaning solvents and has remitted all taxes due pursuant 16 to ss. 376.70 and 376.75, has provided documented evidence of 17 contamination by drycleaning solvents as required by the rules 18 developed pursuant to this section, has reported the 19 contamination prior to December 31, 1998, and has not denied 20 the department access to the site. 21 (c) With regard to drycleaning facilities or wholesale 22 supply facilities that cease to be operated as drycleaning 23 facilities or wholesale supply facilities prior to October 1, 24 1994, such facilities, at which there exists contamination by 25 drycleaning solvents, shall be eligible under this subsection 26 regardless of when the contamination was discovered, provided 27 that the drycleaning facility or wholesale supply facility: 28 1. Was not determined by the department, within a 29 reasonable time after the department's discovery, to have been 30 out of compliance with the department rules regulating 31 drycleaning solvents, drycleaning facilities, or wholesale 3 2:39 PM 04/28/05 s2510c1c-02-c5t
Florida Senate - 2005 SENATOR AMENDMENT Bill No. CS for SB 2510 Barcode 692782 1 supply facilities implemented at any time on or after November 2 19, 1980; 3 2. Was not operated in a grossly negligent manner at 4 any time on or after November 19, 1980; 5 3. Has not been identified to qualify for listing, nor 6 is listed, on the National Priority List pursuant to the 7 Comprehensive Environmental Response, Compensation, and 8 Liability Act of 1980, as amended by the Superfund Amendments 9 and Reauthorization Act of 1986, and as subsequently amended; 10 and 11 4. Is not under an order from the United States 12 Environmental Protection Agency pursuant to s. 3008(h) of the 13 Resource Conservation and Recovery Act, as amended, or has not 14 obtained and is not required to obtain a permit for the 15 operation of a hazardous waste treatment, storage, or disposal 16 facility, a postclosure permit, or a permit pursuant to the 17 federal Hazardous and Solid Waste Amendments of 1984; 18 19 and provided that the real property owner or the owner or 20 operator of the drycleaning facility or the wholesale supply 21 facility has not willfully concealed the discharge of 22 drycleaning solvents, has provided documented evidence of 23 contamination by drycleaning solvents as required by the rules 24 developed pursuant to this section, has reported the 25 contamination prior to December 31, 1998, and has not denied 26 the department access to the site. 27 (d) For purposes of determining eligibility, a 28 drycleaning facility or wholesale supply facility was operated 29 in a grossly negligent manner if the department determines 30 that the owner or operator of the drycleaning facility or the 31 wholesale supply facility: 4 2:39 PM 04/28/05 s2510c1c-02-c5t
Florida Senate - 2005 SENATOR AMENDMENT Bill No. CS for SB 2510 Barcode 692782 1 1. Willfully discharged drycleaning solvents onto the 2 soils or into the waters of the state after November 19, 1980, 3 with the knowledge, intent, and purpose that the discharge 4 would result in harm to the environment or to public health or 5 result in a violation of the law; 6 2. Willfully concealed a discharge of drycleaning 7 solvents with the knowledge, intent, and purpose that the 8 concealment would result in harm to the environment or to 9 public health or result in a violation of the law; or 10 3. Willfully violated a local, state, or federal law 11 or rule regulating the operation of drycleaning facilities or 12 wholesale supply facilities with the knowledge, intent, and 13 purpose that the act would result in harm to the environment 14 or to public health or result in a violation of the law. 15 (e)1. With respect to eligible drycleaning solvent 16 contamination reported to the department as part of a 17 completed application as required by the rules developed 18 pursuant to this section by June 30, 1997, the costs of 19 activities described in paragraph (2)(b) shall be absorbed at 20 the expense of the drycleaning facility restoration funds, 21 less a $1,000 deductible per incident, which shall be paid by 22 the applicant or current property owner. The deductible shall 23 be paid within 60 days after receipt of billing by the 24 department. 25 2. For contamination reported to the department as 26 part of a completed application as required by the rules 27 developed under this section, from July 1, 1997, through 28 September 30, 1998, the costs shall be absorbed at the expense 29 of the drycleaning facility restoration funds, less a $5,000 30 deductible per incident. The deductible shall be paid within 31 60 days after receipt of billing by the department. 5 2:39 PM 04/28/05 s2510c1c-02-c5t
Florida Senate - 2005 SENATOR AMENDMENT Bill No. CS for SB 2510 Barcode 692782 1 3. For contamination reported to the department as 2 part of a completed application as required by the rules 3 developed pursuant to this section from October 1, 1998, 4 through December 31, 1998, the costs shall be absorbed at the 5 expense of the drycleaning facility restoration funds, less a 6 $10,000 deductible per incident. The deductible shall be paid 7 within 60 days after receipt of billing by the department. 8 4. For contamination reported after December 31, 1998, 9 no costs will be absorbed at the expense of the drycleaning 10 facility restoration funds. 11 (f) The provisions of This subsection does shall not 12 apply to any site where the department has been denied site 13 access to implement the provisions of this section. 14 (g) In order to identify those drycleaning facilities 15 and wholesale supply facilities that have experienced 16 contamination resulting from the discharge of drycleaning 17 solvents and to ensure the most expedient rehabilitation of 18 such sites, the owners and operators of drycleaning facilities 19 and wholesale supply facilities are encouraged to detect and 20 report contamination from drycleaning solvents related to the 21 operation of drycleaning facilities and wholesale supply 22 facilities. The department shall establish reasonable 23 guidelines for the written reporting of drycleaning 24 contamination and shall distribute forms to registrants under 25 s. 376.303(1)(d), and to other interested parties upon 26 request, to be used for such purpose. 27 (h) A report of drycleaning solvent contamination at a 28 drycleaning facility or wholesale supply facility made to the 29 department by any person in accordance with this subsection, 30 or any rules promulgated pursuant hereto, may not be used 31 directly as evidence of liability for such discharge in any 6 2:39 PM 04/28/05 s2510c1c-02-c5t
Florida Senate - 2005 SENATOR AMENDMENT Bill No. CS for SB 2510 Barcode 692782 1 civil or criminal trial arising out of the discharge. 2 (i) A drycleaning facility at which contamination by 3 drycleaning solvents exists and which was damaged by accident 4 prior to January 1, 1975, is eligible under this subsection, 5 regardless of whether an application for eligibility was filed 6 on or before December 31, 1998. As used in this paragraph, the 7 term "accident" means an unplanned and unanticipated 8 occurrence beyond the control of the owner or operator of a 9 drycleaning facility which resulted in physical damage to the 10 facility when the actions of responders to such occurrence 11 could reasonably be determined to have caused or exacerbated 12 contamination by drycleaning solvents at such facility. 13 (j)(i) The provisions of This subsection does shall 14 not apply to drycleaning facilities owned or operated by the 15 state or Federal Government. 16 (k)(j) Due to the value of Florida's potable water, it 17 is the intent of the Legislature that the department initiate 18 and facilitate as many cleanups as possible utilizing the 19 resources of the state, local governments, and the private 20 sector. The department is authorized to adopt necessary rules 21 and enter into contracts to carry out the intent of this 22 subsection and to limit or prevent future contamination from 23 the operation of drycleaning facilities and wholesale supply 24 facilities. 25 (l)(k) It is not the intent of the Legislature that 26 the state become the owner or operator of a drycleaning 27 facility or wholesale supply facility by engaging in 28 state-conducted cleanup. 29 (m)(l) The owner, operator, and either the real 30 property owner or agent of the real property owner may apply 31 for the Drycleaning Contamination Cleanup Program by jointly 7 2:39 PM 04/28/05 s2510c1c-02-c5t
Florida Senate - 2005 SENATOR AMENDMENT Bill No. CS for SB 2510 Barcode 692782 1 submitting a completed application package to the department 2 pursuant to the rules that shall be adopted by the department. 3 If the application cannot be jointly submitted, then the 4 applicant shall provide notice of the application to other 5 interested parties. After reviewing the completed application 6 package, the department shall notify the applicant in writing 7 as to whether the drycleaning facility or wholesale supply 8 facility is eligible for the program. If the department denies 9 eligibility for a completed application package, the notice of 10 denial shall specify the reasons for the denial, including 11 specific and substantive findings of fact, and shall 12 constitute agency action subject to the provisions of chapter 13 120. For the purposes of ss. 120.569 and 120.57, the real 14 property owner and the owner and operator of a drycleaning 15 facility or wholesale supply facility which is the subject of 16 a decision by the department with regard to eligibility shall 17 be deemed to be parties whose substantial interests are 18 determined by the department's decision to approve or deny 19 eligibility. 20 (n)(m) Eligibility under this subsection applies to 21 the drycleaning facility or wholesale supply facility, and 22 attendant site rehabilitation applies to such facilities and 23 to any place where drycleaning-solvent contamination migrating 24 from the eligible facility is found. A determination of 25 eligibility or ineligibility shall not be affected by any 26 conveyance of the ownership of the drycleaning facility, 27 wholesale supply facility, or the real property on which such 28 facility is located. Nothing contained in this chapter shall 29 be construed to allow a drycleaning facility or wholesale 30 supply facility which would not be eligible under this 31 subsection to become eligible as a result of the conveyance of 8 2:39 PM 04/28/05 s2510c1c-02-c5t
Florida Senate - 2005 SENATOR AMENDMENT Bill No. CS for SB 2510 Barcode 692782 1 the ownership of the ineligible drycleaning facility or 2 wholesale supply facility to another owner. 3 (o)(n) If funding for the drycleaning contamination 4 rehabilitation program is eliminated, the provisions of this 5 subsection shall not apply. 6 (p)(o)1. The department shall have the authority to 7 cancel the eligibility of any drycleaning facility or 8 wholesale supply facility that submits fraudulent information 9 in the application package or that fails to continuously 10 comply with the conditions of eligibility set forth in this 11 subsection, or has not remitted all fees pursuant to s. 12 376.303(1)(d), or has not remitted the deductible payments 13 pursuant to paragraph (e). 14 2. If the program eligibility of a drycleaning 15 facility or wholesale supply facility is subject to 16 cancellation pursuant to this section, then the department 17 shall notify the applicant in writing of its intent to cancel 18 program eligibility and shall state the reason or reasons for 19 cancellation. The applicant shall have 45 days to resolve the 20 reason or reasons for cancellation to the satisfaction of the 21 department. If, after 45 days, the applicant has not resolved 22 the reason or reasons for cancellation to the satisfaction of 23 the department, the order of cancellation shall become final 24 and shall be subject to the provisions of chapter 120. 25 (q)(p) A real property owner shall not be subject to 26 administrative or judicial action brought by or on behalf of 27 any person or local or state government, or agency thereof, 28 for gross negligence or violations of department rules prior 29 to January 1, 1990, which resulted from the operation of a 30 drycleaning facility, provided that the real property owner 31 demonstrates that: 9 2:39 PM 04/28/05 s2510c1c-02-c5t
Florida Senate - 2005 SENATOR AMENDMENT Bill No. CS for SB 2510 Barcode 692782 1 1. The real property owner had ownership in the 2 property at the time of the gross negligence or violation of 3 department rules and did not cause or contribute to 4 contamination on the property; 5 2. The real property owner was a distinct and separate 6 entity from the owner and operator of the drycleaning 7 facility, and did not have an ownership interest in or share 8 in the profits of the drycleaning facility; 9 3. The real property owner did not participate in the 10 operation or management of the drycleaning facility; 11 4. The real property owner complied with all discharge 12 reporting requirements, and did not conceal any contamination; 13 and 14 5. The department has not been denied access. 15 16 The defense provided by this paragraph does not apply to any 17 liability under a federally delegated program. 18 (r)(q) A person whose property becomes contaminated 19 due to geophysical or hydrologic reasons from the operation of 20 a nearby drycleaning or wholesale supply facility and whose 21 property has never been occupied by a business that utilized 22 or stored drycleaning solvents or similar constituents is not 23 subject to administrative or judicial action brought by or on 24 behalf of another to compel the rehabilitation of or the 25 payment of the costs for the rehabilitation of sites 26 contaminated by drycleaning solvents, provided that the 27 person: 28 1. Does not own and has never held an ownership 29 interest in, or shared in the profits of, the drycleaning 30 facility operated at the source location; 31 2. Did not participate in the operation or management 10 2:39 PM 04/28/05 s2510c1c-02-c5t
Florida Senate - 2005 SENATOR AMENDMENT Bill No. CS for SB 2510 Barcode 692782 1 of the drycleaning facility at the source location; and 2 3. Did not cause, contribute to, or exacerbate the 3 release or threat of release of any hazardous substance 4 through any act or omission. 5 6 The defense provided by this paragraph does not apply to any 7 liability under a federally delegated program. 8 (s)(r) Nothing in this subsection precludes the 9 department from considering information and documentation 10 provided by private consultants, local government programs, 11 federal agencies, or any individual which is relevant to an 12 eligibility determination if the department provides the 13 applicant with reasonable access to the information and its 14 origin. 15 16 (Redesignate subsequent sections.) 17 18 19 ================ T I T L E A M E N D M E N T =============== 20 And the title is amended as follows: 21 On page 1, line 20, after the semicolon, 22 23 insert: 24 amending s. 376.3078, F.S.; providing that a 25 drycleaning facility where an accident caused 26 or exacerbated contamination is eligible for an 27 exemption from liability; defining the term 28 "accident"; 29 30 31 11 2:39 PM 04/28/05 s2510c1c-02-c5t