CODING: Words stricken are deletions; words underlined are additions.House Bill 1067
Florida House of Representatives - 1997 HB 1067
By Representative Constantine
1 A bill to be entitled
2 An act relating to brownfields redevelopment;
3 creating ss. 376.77-376.82, F.S., the
4 Brownfields Redevelopment Act of 1997;
5 providing legislative intent; providing
6 definitions; providing duties of a local
7 government that designates a brownfield area
8 for rehabilitation; providing for notice to the
9 Department of Environmental Protection;
10 providing for public hearings; providing
11 requirements for such designation; providing
12 responsibilities of persons eligible for
13 brownfield rehabilitation; requiring approval
14 of a Corrective Action Rehabilitation Schedule;
15 providing requirements for contractors and site
16 assessment and cleanup activities; requiring
17 approval of site assessments, remedial action
18 reports, and completed tasks, with certain
19 exceptions; providing consequences of failure
20 to comply with a rehabilitation agreement;
21 specifying the factors and criteria to be used
22 in directing and supervising rehabilitation of
23 brownfield sites; providing for issuance of a
24 "No Further Action Order"; providing that
25 source removal may be required under certain
26 conditions; providing requirements for
27 participation in brownfield rehabilitation;
28 providing liability protection for persons who
29 successfully complete an approved
30 rehabilitation schedule; providing requirements
31 for issuance of a letter evidencing completion
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1 of rehabilitation; authorizing negotiation with
2 the United States Environmental Protection
3 Agency regarding enforcement; providing
4 conditions under which further remedial action
5 may be required; providing liability protection
6 for certain financial institutions; providing
7 an effective date.
8
9 Be It Enacted by the Legislature of the State of Florida:
10
11 Section 1. Section 376.77, Florida Statutes, is
12 created to read:
13 376.77 Short title.--Sections 376.77-376.82 may be
14 cited as the "Brownfields Redevelopment Act of 1997."
15 Section 2. Section 376.78, Florida Statutes, is
16 created to read:
17 376.78 Legislative intent.--The Legislature finds and
18 declares the following:
19 (1) The reduction of public health and environmental
20 hazards on existing commercial and industrial sites is vital
21 to their use and reuse as sources of employment and for
22 housing, recreation, and open-space areas. The productive
23 reuse of land is an important component of sound land-use
24 policy that will help prevent the needless development of
25 prime farmland, open-space areas, and natural areas, and
26 reduce public costs for installing new water, sewer, and
27 highway infrastructure.
28 (2) The abandonment or underuse of brownfield sites
29 also results in the inefficient use of public facilities and
30 services, as well as land and other natural resources; extends
31 conditions of blight in local communities; and contributes to
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1 concerns about environmental equity and the distribution of
2 environmental risks across population groups.
3 (3) Incentives should be put in place to encourage
4 responsible persons to voluntarily develop and implement
5 cleanup plans without the use of taxpayer funds or the need
6 for adversarial enforcement actions by state and local
7 governments which frequently serve to delay cleanups and
8 increase their cost.
9 (4) Environmental and public health hazards cannot be
10 eliminated without clear, predictable remediation standards
11 which provide for the protection of the environment and public
12 health.
13 (5) Cleanup plans should be based on the actual risk
14 that contamination on a site may pose to the environment and
15 public health, taking into account its current and future use
16 and the degree to which contamination can spread off site and
17 expose the public or the environment to risk.
18 (6) Cooperation among federal, state, and local
19 agencies, local community development organizations, current
20 owners, and prospective purchasers of brownfield sites is
21 required to accomplish timely cleanup activities and the
22 redevelopment or reuse of brownfield sites.
23 Section 3. Section 376.79, Florida Statutes, is
24 created to read:
25 376.79 Definitions.--As used in ss. 376.77-376.82,
26 unless the context otherwise indicates:
27 (1) "Brownfield sites" means generally commercial or
28 industrial properties where expansion or potential
29 redevelopment is complicated by actual or perceived
30 environmental contamination.
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1 (2) "Brownfield area" means a contiguous area of
2 several brownfield sites, some of which may not be
3 contaminated, and which has been designated by a local
4 government by resolution. Such areas may include all or
5 portions of community redevelopment areas, empowerment zones,
6 enterprise communities, other such designated economically
7 deprived communities and areas, and brownfield pilot projects
8 designated by the United States Environmental Protection
9 Agency.
10 (3) "Department" means the Department of Environmental
11 Protection.
12 (4) "Person" means any individual, partner, joint
13 venture, or corporation; any group of the foregoing, organized
14 or united for a business purpose; or any governmental entity.
15 Section 4. Section 376.80, Florida Statutes, is
16 created to read:
17 376.80 Brownfield program administration process.--
18 (1) A local government with jurisdiction over a
19 brownfield area must notify the department of its decision to
20 designate a brownfield area for rehabilitation for the
21 purposes of ss. 376.77-376.82. The notification must include
22 a resolution by the local government body to which is attached
23 a detailed map adequate to clearly delineate exactly which
24 parcels are to be included in the brownfield area or,
25 alternatively, a less detailed map accompanied by a detailed
26 legal description of the brownfield area. If a property owner
27 within the area proposed for designation by the local
28 government requests in writing to have his or her property
29 removed from the proposed designation, the local government
30 shall grant the request.
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1 (2) If a local government proposes to designate a
2 brownfield area that is outside of community redevelopment
3 areas, empowerment zones, enterprise communities, or
4 brownfield pilot project areas designated by the United States
5 Environmental Protection Agency, the local government must
6 conduct at least one public hearing in the area to be
7 designated to provide an opportunity for public input on the
8 size of the area, the objectives for rehabilitation, job
9 opportunities and economic developments anticipated,
10 neighborhood residents' considerations, and other local
11 concerns. Notice of the public hearing must be made in a
12 newspaper of general circulation in the area and such notice
13 must be at least 6 inches square in size, must be in ethnic
14 newspapers or local community bulletins, must be posted in the
15 affected area, and must be announced at a scheduled meeting of
16 the local governing body prior to the actual public hearing.
17 In determining the areas to be designated, the local
18 government must consider:
19 (a) Whether the brownfield area has a reasonable
20 potential for economic development activities.
21 (b) Whether the proposed area to be designated
22 represents a reasonable, focused approach and is not overly
23 large in geographic coverage.
24 (c) Whether the area has interest from the private
25 sector to participate in rehabilitation.
26 (3) The local government must notify the department of
27 the agency or person who will be responsible for the
28 coordination of local private actions to rehabilitate the
29 brownfield area.
30 (4) The party eligible for brownfield rehabilitation
31 must provide a Corrective Action Rehabilitation Schedule to
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1 the department or the approved local pollution control program
2 for approval.
3 (5) The eligible party must submit documentation to
4 the department or approved local pollution control program
5 that the contractor performing site rehabilitation activities
6 is a certified professional engineer or a certified geologist
7 who meets all the certification and licensure requirements
8 imposed by law, and has submitted and obtained approval of its
9 comprehensive quality assurance plan prepared under the
10 department's rules.
11 (6) Site assessment and cleanup activities must be
12 consistent with state and federal laws and rules and must be
13 consistent with the department's risk-based corrective action
14 rules and guidelines.
15 (7) All site assessment and remedial action reports
16 must be submitted to and approved by the department or the
17 approved local pollution control program. The department or
18 approved local pollution control program shall approve, deny,
19 or approve with modifications site assessments and remedial
20 action reports within 30 days after their receipt.
21 (8) The department or the approved local pollution
22 control program shall approve, deny, or approve with
23 modifications all completed cleanup phases or tasks within 30
24 days after being notified of their completion.
25 (9) Failure by the department or approved local
26 pollution control program to meet the provisions of subsection
27 (7) or subsection (8) shall constitute approval of the
28 assessment, report, phase, or task, and the eligible party may
29 proceed with site rehabilitation.
30 (10) During the cleanup process, an eligible party may
31 proceed from one phase or task of cleanup to the next prior to
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1 obtaining approval of the technical document for the next
2 phase or task of cleanup. However, the eligible party will be
3 required to complete any additional tasks identified by the
4 department or local pollution control program found during the
5 reviews provided for by subsections (7) and (8).
6 (11) Exceptions to the provisions of subsections (7),
7 (8), and (10) include requests for "No Further Action,"
8 "Monitoring Only Proposals," and feasibility studies which
9 must be approved prior to implementation. The department or
10 local pollution control program shall review and approve,
11 deny, or approve with modifications these requests within 60
12 days after their receipt. Failure by the department or
13 approved local pollution control program to meet the
14 provisions of this subsection shall constitute approval of the
15 request.
16 (12) If the person responsible for brownfield site
17 rehabilitation fails to comply with the brownfield site
18 rehabilitation agreement, the department shall allow 90 days
19 for such person to return to compliance with the provision at
20 issue or to negotiate a modification to the brownfield site
21 rehabilitation agreement with the department for good cause
22 shown. If the project is not returned to compliance with the
23 brownfield site rehabilitation agreement and a modification
24 cannot be negotiated, the provisions of s. 376.82 shall be
25 revoked.
26 (13) The department is authorized and encouraged to
27 enter into delegation agreements with local pollution control
28 programs to administer the brownfield program within their
29 jurisdiction, thereby maximizing the integration of this
30 process with the other local development processes needed to
31 facilitate redevelopment of a brownfield area.
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1 Section 5. Section 376.81, Florida Statutes, is
2 created to read:
3 376.81 Brownfield sites and brownfield area
4 contamination cleanup criteria.--
5 (1) The department and local governments with
6 delegated department responsibilities shall utilize the
7 following factors and criteria in directing and supervising
8 the cleanup and rehabilitation of brownfield sites and
9 brownfield areas contaminated with substances regulated by the
10 department:
11 (a) The current exposure and potential risk of
12 exposure to humans and the environment, including multiple
13 pathways of exposure.
14 (b) The point of compliance shall be at the source of
15 the contamination. However, the department is authorized to
16 temporarily move the point of compliance to the boundary of
17 the property, or to the edge of the plume when the plume is
18 within the property boundary, while cleanup, including cleanup
19 through natural attenuation processes in conjunction with
20 appropriate monitoring, is proceeding. The department also is
21 authorized, pursuant to criteria provided for in this section,
22 to temporarily extend the point of compliance beyond the
23 property boundary with appropriate monitoring, if such
24 extension is needed to facilitate natural attenuation or to
25 address the current conditions of the plume, provided human
26 health, public safety, and the environment are adequately
27 protected. Temporary extension of the point of compliance
28 beyond the property boundary, as provided in this paragraph,
29 shall include notice to local governments and owners of any
30 property into which the point of compliance is allowed to
31 extend.
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1 (c) The cleanup goal shall be that all contaminated
2 brownfields sites and brownfield areas ultimately achieve the
3 applicable cleanup target levels provided in this section.
4 However, the department is authorized to allow concentrations
5 of contaminants to temporarily exceed the applicable cleanup
6 target levels while cleanup, including cleanup through natural
7 attenuation processes in conjunction with appropriate
8 monitoring, is proceeding, provided human health, public
9 safety, and the environment are adequately protected.
10 (d) Brownfield site and brownfield area rehabilitation
11 programs may include the use of institutional or engineering
12 controls to eliminate the potential exposure to contaminants
13 to humans or the environment. Use of such controls must be
14 preapproved by the department. When institutional or
15 engineering controls are implemented to control exposure, the
16 removal of such controls must have prior department approval
17 and must be accompanied by the resumption of active cleanup,
18 or other approved controls, unless cleanup target levels
19 pursuant to this section have been achieved.
20 (e) The synergistic, antagonistic, and additive
21 effects of contaminants shall also be considered when the
22 scientific data become available.
23 (f) Individual site characteristics, which shall
24 include, but not be limited to, the current and projected use
25 of the affected groundwater and surface water in the vicinity
26 of the site, current and projected land uses of the area
27 affected by the contamination, the exposed population, the
28 degree and extent of contamination, the rate of contaminant
29 migration, the apparent or potential rate of contaminant
30 degradation through natural attenuation processes, the
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1 location of the plume, and the potential for further migration
2 in relation to site property boundaries.
3 (g) Applicable state water quality standards.
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 consider the following, as appropriate, in establishing the
10 applicable minimum criteria: calculations using a lifetime
11 cancer risk level of 1.0E-6; a hazard index of 1 or less; the
12 best achievable detection limit; the naturally occurring
13 background concentration; or nuisance, organoleptic, and
14 aesthetic considerations.
15 2. Where surface waters are exposed to contaminated
16 groundwater, the cleanup target levels for the contaminants
17 shall be based on the surface water standards as established
18 by department rule. The point of measuring compliance with
19 the surface water standards shall be in the groundwater
20 immediately adjacent to the surface water body.
21 (h) The department may issue a "No Further Action
22 Order" based upon the degree to which the desired cleanup
23 target level is achievable and can be reasonably and
24 cost-effectively implemented within available technologies or
25 engineering and institutional control strategies. Where a
26 state water quality standard is applicable, a deviation may
27 not result in the application of cleanup target levels more
28 stringent than said standard. In determining whether it is
29 appropriate to establish alternate cleanup target levels at a
30 site, the department may consider the effectiveness of source
31 removal that has been completed at the site and the practical
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1 likelihood of: the use of low yield or poor quality
2 groundwater; the use of groundwater near marine surface water
3 bodies; the current and projected use of the affected
4 groundwater in the vicinity of the site; or the use of
5 groundwater in the immediate vicinity of the contaminated
6 area, where it has been demonstrated that the groundwater
7 contamination is not migrating away from such localized
8 source; provided human health, public safety, and the
9 environment are adequately protected.
10 (i) Appropriate cleanup target levels for soils.
11 1. In establishing soil cleanup target levels for
12 human exposure to each contaminant found in soils from the
13 land surface to 2 feet below land surface, the department
14 shall consider the following, as appropriate: calculations
15 using a lifetime cancer risk level of 1.0E-6; a hazard index
16 of 1 or less; the best achievable detection limit; or the
17 naturally occurring background concentration.
18 2. Leachability-based soil target levels shall be
19 based on protection of the groundwater cleanup target levels
20 or the alternate cleanup target levels for groundwater
21 established pursuant to this paragraph, as appropriate.
22 Source removal and other cost-effective alternatives that are
23 technologically feasible shall be considered in achieving the
24 leachability soil target levels established by the department.
25 The leachability goals shall not be applicable if the
26 department determines, based upon individual site
27 characteristics, that contaminants will not leach into the
28 groundwater at levels which pose a threat to human health,
29 public safety, and the environment.
30 (2) The department shall require source removal, if
31 warranted and cost-effective. Once source removal at a site
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1 is complete, the department shall reevaluate the site to
2 determine the degree of active cleanup needed to continue.
3 Further, the department shall determine if the reevaluated
4 site qualifies for monitoring only or if no further action is
5 required to rehabilitate the site. If additional site
6 rehabilitation is necessary to reach no-further-action status,
7 the department is encouraged to utilize natural attenuation
8 and monitoring where site conditions warrant.
9 Section 6. Section 376.82, Florida Statutes, is
10 created to read:
11 376.82 Eligibility criteria and liability
12 protection.--
13 (1) ELIGIBILITY.--Any person who has not caused or
14 contributed to the contamination of a brownfield site after
15 July 1, 1997, shall be eligible to participate in the
16 brownfield rehabilitation program established in this act,
17 subject to the following:
18 (a) Potential brownfield sites currently subject to
19 ongoing corrective action or enforcement pursuant to federal
20 authority under the Solid Waste Disposal Act, 42 U.S.C. s.
21 6901 et seq., as amended; the Comprehensive Environmental
22 Response Compensation and Liability Act (CERCLA), 42 U.S.C. s.
23 9601 et seq., as amended; the Safe Drinking Water Act, 42
24 U.S.C. ss. 300f-300i, as amended; or the Clean Water Act, 33
25 U.S.C. ss. 1251-1387, as amended, are not eligible for
26 participation in a brownfield corrective action.
27 (b) Potential brownfield sites currently subject to
28 ongoing corrective action or enforcement pursuant to state
29 authority established in this chapter or chapter 403,
30 including those sites currently subject to a pending consent
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1 order with the state, are eligible for participation in a
2 brownfield corrective action, provided:
3 1. The proposed brownfield site will, immediately
4 after cleanup or sooner, result in increased economic
5 productivity at the site, including at a minimum the creation
6 of 10 new jobs, whether permanent or part time, which are not
7 associated with implementation of the brownfield site
8 corrective action plan; and
9 2. The party is in good faith compliance with the
10 terms of the existing consent order or corrective action plan
11 or is responding to an enforcement action as evidenced by a
12 good faith determination issued by the department or an
13 approved local pollution control program.
14 (2) LIABILITY PROTECTION.--
15 (a) Any person, including his or her successors and
16 assigns, who submits a brownfield site Corrective Action
17 Rehabilitation Schedule to the department or an approved local
18 pollution control program, which schedule is approved and
19 implemented to successful completion, shall be relieved of
20 further liability for remediation of the site to the state and
21 to third parties and for liability in contribution to any
22 other party who has or may incur cleanup liability for the
23 brownfield site.
24 (b) This section shall not be construed as a
25 limitation on the right of a third party other than the state
26 to pursue an action for damages to property or person;
27 however, such an action cannot compel site rehabilitation in
28 excess of that required in the approved Corrective Action
29 Rehabilitation Schedule or otherwise required by the
30 department or approved local pollution control program.
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1 (c) This section shall not affect the ability or
2 authority to seek contribution from any person who may have
3 liability with respect to the site and who did not receive
4 cleanup liability protection under this section.
5 (d) The liability protection provided by this section
6 shall become effective upon the approval of a brownfield site
7 Corrective Action Rehabilitation Schedule and shall remain
8 effective, provided the person implements and completes the
9 approved schedule.
10 (e) Completion of the performance of the remedial
11 obligations at the brownfield site shall be evidenced by a
12 "Site Rehabilitation Completion" letter or a "No Further
13 Action" letter issued by the department or the approved local
14 pollution control program, which letter shall include the
15 following paragraph: "Based upon the information provided by
16 (property owner) concerning property located at (address), it
17 is the opinion of the Florida Department of Environmental
18 Protection (substitute local pollution control agency where
19 applicable) that (party) has successfully and satisfactorily
20 implemented the approved brownfield site Corrective Action
21 Rehabilitation Schedule and, accordingly, no further action is
22 required to assure that this property, when used for the land
23 use identified in the Corrective Action Rehabilitation
24 Schedule, is protective of existing and proposed uses and does
25 not pose an unacceptable risk to human health or the
26 environment."
27 (f) The Legislature recognizes its limitations in
28 addressing cleanup liability under federal pollution control
29 programs. In an effort to secure federal liability protection
30 for persons willing to undertake remediation responsibility at
31 a brownfield site or brownfield area, the department is
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1 directed to attempt to negotiate a memorandum of agreement or
2 similar document with the United States Environmental
3 Protection Agency, whereby the United States Environmental
4 Protection Agency agrees to forego enforcement of federal
5 corrective action authority at brownfield sites or brownfield
6 areas which have received a "Site Rehabilitation Completion"
7 or "No Further Action" determination from the department or
8 the approved local pollution control program or are in the
9 process of implementing a Corrective Action Rehabilitation
10 Schedule in accordance with this act.
11 (3) REOPENERS.--Any person who completes remediation
12 in compliance with this act shall not be required to undertake
13 additional remedial actions unless the department demonstrates
14 any of the following:
15 (a) That fraud was committed in demonstrating site
16 conditions or completion of the Corrective Action
17 Rehabilitation Schedule.
18 (b) That new information confirms the existence of an
19 area of previously unknown contamination which exceeds the
20 site-specific rehabilitation levels established by the
21 department. This reopener shall not be construed to impose
22 future remedial obligations when newly discovered risks or
23 contaminants at a site are the result of advancements in
24 science and technology such as improved detection limits,
25 comprehension of synergistic effects of contamination, or the
26 listing of a new contaminant.
27 (c) That the remediation efforts failed to achieve the
28 cleanup standards or protection levels established by this
29 act.
30 (d) That the level of risk is increased beyond the
31 acceptable risk established in this act due to substantial
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1 changes in exposure conditions, such as in a change in land
2 use from nonresidential use to residential use. Any person
3 who changes the land use of the brownfield site or brownfield
4 area, thus causing the level of risk to increase beyond the
5 acceptable risk level, may be required by the department or
6 approved local pollution control program to undertake
7 additional remediation measures to assure that human health,
8 public safety, and the environment are protected to levels
9 consistent with this act.
10 (e) That a new release occurs at the brownfield site
11 subsequent to a determination of eligibility for participation
12 in the brownfield program established in this act.
13 (4) ADDITIONAL LIABILITY PROTECTION FOR FINANCIAL
14 INSTITUTIONS.--
15 (a) The Legislature declares that, in order to achieve
16 the economic redevelopment and site rehabilitation of
17 brownfield sites and brownfield areas in accordance with this
18 act, it is imperative to encourage financing of real property
19 transactions involving brownfield site corrective action
20 plans. Accordingly, lenders, trustees, personal
21 representatives, or any other fiduciaries are entitled to the
22 liability protection established under subsection (2),
23 provided they have not caused or contributed to a release of a
24 contaminant at the brownfield site or brownfield area.
25 (b) Lenders who hold indicia of ownership at a
26 brownfield site primarily to protect a security interest or
27 who own a brownfield site as a result of foreclosure of a
28 security interest who seek to sell, transfer, or otherwise
29 divest the site by means of sale at the earliest possible time
30 shall not be liable for the release or discharge of a
31 contaminant from a brownfield site; for the failure of a
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1 brownfield site owner to complete the Corrective Action
2 Rehabilitation Schedule; or for future site rehabilitation
3 activities required pursuant to a reopener established under
4 subsection (3) where the lender has not divested the borrower
5 of, or otherwise engaged in, decisionmaking control of the
6 site rehabilitation or site operations or undertaken
7 management activities beyond those required to protect its
8 financial interest and where the lender has not otherwise
9 caused or contributed to a release of a contaminant at the
10 brownfield site.
11 Section 7. This act shall take effect July 1, 1997.
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14 HOUSE SUMMARY
15
Creates the Brownfields Redevelopment Act of 1997.
16 Provides legislative intent and definitions. Provides
duties of a local government that designates a brownfield
17 area for rehabilitation. Provides for notice to the
Department of Environmental Protection and provides for
18 public hearings. Provides requirements for such
designation. Provides responsibilities of persons
19 eligible for brownfield rehabilitation. Requires
approval of a Corrective Action Rehabilitation Schedule.
20 Provides requirements for contractors and site assessment
and cleanup activities. Requires approval of site
21 assessments, remedial action reports, and completed
tasks, with certain exceptions. Provides consequences of
22 failure to comply with a rehabilitation agreement.
Specifies the factors and criteria to be used in
23 directing and supervising rehabilitation of brownfield
sites. Provides for issuance of a "No Further Action
24 Order." Provides that source removal may be required
under certain conditions. Provides requirements for
25 participation in brownfield rehabilitation. Provides
liability protection for persons who successfully
26 complete an approved rehabilitation schedule. Provides
requirements for issuance of a letter evidencing
27 completion of rehabilitation. Authorizes negotiation
with the United States Environmental Protection Agency
28 regarding enforcement. Provides conditions under which
further remedial action may be required. Provides
29 liability protection for certain financial institutions.
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