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House Bill 1067c2

Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 By the Committees on General Government Appropriations, Environmental Protection and Representatives Constantine, Eggelletion, Crow, Murman, Peaden, Greene and Putnam 1 A bill to be entitled 2 An act relating to brownfields redevelopment 3 and environmental protection; creating ss. 4 376.77-376.84, F.S., the Brownfields 5 Redevelopment Act; providing legislative 6 intent; providing definitions; providing duties 7 of a local government that designates a 8 brownfield for rehabilitation and 9 redevelopment; providing for notice to the 10 Department of Environmental Protection; 11 providing for public hearings; providing 12 requirements for such designation and 13 specifying effect thereof; requiring 14 establishment of an advisory committee; 15 providing for a brownfield site rehabilitation 16 agreement and providing requirements with 17 respect thereto; providing requirements for 18 contractors performing site rehabilitation and 19 for professional engineers and geologists; 20 providing consequences of failure to comply 21 with a rehabilitation agreement; authorizing 22 the department to enter into delegation 23 agreements with local pollution control 24 programs; providing requirements for local 25 pollution control programs; encouraging state 26 and local governments to offer redevelopment 27 incentives; specifying financial, local, 28 regulatory, and technical assistance incentives 29 that may be included; creating a brownfield 30 redevelopment bonus refund program; providing 31 for refunds from the Economic Development 1 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 Incentive Account to certain qualified target 2 industry businesses for jobs created in a 3 brownfield; providing criteria for 4 participation; providing procedures and 5 requirements for payment of refunds; providing 6 penalties; providing for administration; 7 amending s. 288.095, F.S., to conform; 8 directing the department to establish by rule 9 criteria for determining the tasks that 10 comprise a rehabilitation program and the level 11 at which tasks and programs may be deemed 12 completed; providing requirements for such 13 criteria; providing that source removal may be 14 required under certain conditions; providing 15 eligibility requirements for participation in 16 brownfield rehabilitation; providing liability 17 protection for persons who successfully 18 complete a rehabilitation agreement; providing 19 requirements for issuance of a "no further 20 action" letter evidencing completion of 21 rehabilitation; authorizing negotiation with 22 the United States Environmental Protection 23 Agency regarding enforcement; providing certain 24 liability protection for state and local 25 governments and for certain nonprofit land 26 conservation corporations; providing conditions 27 under which further rehabilitation may be 28 required; providing liability protection for 29 certain lenders; specifying violations and 30 providing penalties; requiring an annual 31 report; providing for the award of grants to 2 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 certain pilot projects; amending s. 376.3071, 2 F.S.; revising application deadlines for 3 cleanup reimbursement from the Inland 4 Protection Trust Fund; providing for audits by 5 the Comptroller; revising eligibility criteria 6 relating to the petroleum cleanup participation 7 program; amending s. 376.30711, F.S.; providing 8 for competitive bidding for certain site 9 rehabilitation; amending s. 376.3072, F.S.; 10 specifying the process for applying certain 11 supplemental deductibles under the Florida 12 Petroleum Liability and Restoration Insurance 13 Program; providing an effective date. 14 15 Be It Enacted by the Legislature of the State of Florida: 16 17 Section 1. Section 376.77, Florida Statutes, is 18 created to read: 19 376.77 Short title.--Sections 376.77-376.84 may be 20 cited as the "Brownfields Redevelopment Act." 21 Section 2. Section 376.78, Florida Statutes, is 22 created to read: 23 376.78 Legislative intent.--The Legislature finds and 24 declares the following: 25 (1) The reduction of public health and environmental 26 hazards on existing commercial and industrial sites is vital 27 to their use and reuse as sources of employment, housing, 28 recreation, and open-space areas. The productive reuse of 29 land is an important component of sound land-use policy that 30 will help prevent the premature development of prime farmland, 31 3 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 open-space areas, and natural areas, and reduce public costs 2 for installing new water, sewer, and highway infrastructure. 3 (2) The abandonment or underuse of brownfield sites 4 also results in the inefficient use of public facilities and 5 services, as well as land and other natural resources; extends 6 conditions of blight in local communities; and contributes to 7 concerns about environmental equity and the distribution of 8 environmental risks across population groups. 9 (3) Incentives should be put in place to encourage 10 responsible persons to voluntarily develop and implement 11 cleanup plans without the use of taxpayer funds or the need 12 for enforcement actions by state and local governments. 13 (4) Environmental and public health hazards cannot be 14 eliminated without clear, predictable remediation standards 15 that provide for the protection of the environment and public 16 health. 17 (5) Site rehabilitation should be based on the actual 18 risk that contamination may pose to the environment and public 19 health, taking into account current and future use and the 20 degree to which contamination may spread and expose the public 21 or the environment to risk. 22 (6) Environmental justice considerations, which 23 include but are not limited to the impact of environmentally 24 hazardous sites on minority and low-income communities and the 25 fair treatment of all people, relating to the redevelopment of 26 hazardous sites should be inherent in meaningful public 27 participation elements of a brownfields redevelopment program. 28 (7) Cooperation among federal, state, and local 29 agencies, local community development organizations, current 30 owners, and prospective purchasers of brownfield sites is 31 4 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 required to accomplish timely cleanup activities and the 2 redevelopment or reuse of brownfield sites. 3 Section 3. Section 376.79, Florida Statutes, is 4 created to read: 5 376.79 Definitions.--As used in ss. 376.77-376.84, 6 unless the context otherwise indicates: 7 (1) "Additive effects" means a scientific principle 8 that the toxicity that occurs as a result of exposure is the 9 sum of the toxicities of the individual chemicals to which the 10 individual is exposed. 11 (2) "Antagonistic effects" means a scientific 12 principle that the toxicity that occurs as a result of 13 exposure is less than the sum of the toxicities of the 14 individual chemicals to which the individual is exposed. 15 (3) "Brownfield" or "brownfield site" means a parcel 16 or a contiguous area of one or more parcels, which have been 17 designated by local government by resolution, that are 18 generally abandoned, idled, or underused industrial and 19 commercial properties where expansion or redevelopment is 20 complicated by actual or perceived environmental 21 contamination. Such areas may include, but are not limited 22 to, portions of community redevelopment areas, enterprise 23 zones, empowerment zones, other such designated economically 24 deprived communities and areas, and United States 25 Environmental Protection Agency designated brownfield pilot 26 projects. 27 (4) "Contaminated site" means any contiguous land, 28 surface water, or groundwater areas that contain contaminants 29 that may be harmful to human health or the environment. 30 (5) "Department" means the Department of Environmental 31 Protection. 5 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 (6) "Engineering controls" means modifications to a 2 site to reduce or eliminate the potential for exposure to 3 contaminants. Such modifications may include, but are not 4 limited to, physical or hydraulic control measures, capping, 5 point of use treatments, or slurry walls. 6 (7) "Institutional controls" means the restriction on 7 use or access to a site to eliminate or minimize exposure to 8 contaminants. Such restrictions may include, but are not 9 limited to, deed restrictions, use restrictions, or 10 restrictive zoning. 11 (8) "Local pollution control program" means a local 12 pollution control program that has received delegated 13 authority from the Department of Environmental Protection 14 under s. 403.182. 15 (9) "Natural attenuation" means the verifiable 16 reduction of contaminants through natural processes, which may 17 include diffusion, dispersion, absorption, and biodegradation. 18 (10) "Person responsible for brownfield site 19 rehabilitation" means the individual or entity that is 20 designated by the local government in its resolution 21 establishing a brownfield to enter into the brownfield site 22 rehabilitation agreement with the department. 23 (11) "Person" means any individual, partner, joint 24 venture, or corporation; any group of the foregoing, organized 25 or united for a business purpose; or any governmental entity. 26 (12) "Site rehabilitation" means the assessment of 27 site contamination and the remediation activities that reduce 28 the levels of contaminants at a site through accepted 29 treatment methods to meet the cleanup target levels 30 established for that site. 31 6 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 (13) "Source removal" means the removal of free 2 product or contaminants from soil that has been contaminated 3 to the extent that leaching to groundwater has or is 4 occurring. 5 (14) "Synergistic effects" means a scientific 6 principle that the toxicity that occurs as a result of 7 exposure is more than the sum of the toxicities of the 8 individual chemicals to which the individual is exposed. 9 Section 4. Section 376.80, Florida Statutes, is 10 created to read: 11 376.80 Brownfield program administration process.-- 12 (1) A local government with jurisdiction over a 13 brownfield must notify the department of its decision to 14 designate a brownfield for rehabilitation for the purposes of 15 ss. 376.77-376.84. The notification must include a resolution 16 by the local government body to which is attached a map 17 adequate to clearly delineate exactly which parcels are to be 18 included in the brownfield or, alternatively, a less detailed 19 map accompanied by a detailed legal description of the 20 brownfield. If a property owner within the brownfield 21 proposed for designation by the local government requests in 22 writing to have his or her property removed from the proposed 23 designation, the local government shall grant the request. For 24 municipalities, the governing body shall adopt the resolution 25 in accordance with the procedures outlined in s. 166.041, 26 except that the notice for the public hearings on the proposed 27 resolution must be in the form established in s. 28 166.041(3)(c)2. For counties, the governing body shall adopt 29 the resolution in accordance with the procedures outlined in 30 s. 125.66, except that the notice for the public hearings on 31 7 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 the proposed resolution shall be in the form established in s. 2 125.66(4)(b)2. 3 (2) If a local government proposes to designate a 4 brownfield that is outside community redevelopment areas, 5 enterprise zones, empowerment zones, or brownfield pilot 6 project areas designated by the United States Environmental 7 Protection Agency, the local government must conduct at least 8 one public hearing in the area to be designated to provide an 9 opportunity for public input on the size of the area, the 10 objectives for rehabilitation, job opportunities and economic 11 developments anticipated, neighborhood residents' 12 considerations, and other local concerns. Notice of the 13 public hearing must be made in a newspaper of general 14 circulation in the area and such notice must be at least 16 15 inches square in size, must be in ethnic newspapers or local 16 community bulletins, must be posted in the affected area, and 17 must be announced at a scheduled meeting of the local 18 governing body prior to the actual public hearing. In 19 determining the brownfields to be designated, the local 20 government must consider: 21 (a) Whether the brownfield has a reasonable potential 22 for economic development activities. 23 (b) Whether the proposed brownfield represents a 24 reasonably focused approach and is not overly large in 25 geographic coverage. 26 (c) Whether the brownfield has interest from the 27 private sector to participate in rehabilitation. 28 (d) Whether the brownfield contains parcels or parts 29 of parcels suitable for limited recreational open space or 30 cultural or historical preservation purposes. 31 8 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 (3) A local government shall designate a brownfield 2 under the provisions of this act provided that: 3 (a) A person who owns or controls a proposed 4 brownfield site is requesting the designation and has agreed 5 to rehabilitate and redevelop the proposed brownfield site. 6 (b) The rehabilitation and redevelopment of the 7 proposed brownfield site will result in economic productivity 8 of the area along with the creation of new jobs which are not 9 associated with the implementation of the rehabilitation 10 agreement. 11 (c) The redevelopment of the proposed brownfield site 12 is consistent with the local comprehensive plan and is a 13 permittable use under the applicable local land development 14 regulations. 15 (d) Notice of the proposed rehabilitation and 16 redevelopment of the brownfield has been provided to adjacent 17 property owners and residents of the proposed brownfield and 18 the person proposing the brownfield for designation has 19 afforded to those receiving notice the opportunity for 20 comments and suggestions about site rehabilitation. Notice 21 pursuant to this paragraph must be made in a newspaper of 22 general circulation in the area, must be at least 16 inches 23 square in size, and must be posted in the affected area. 24 (e) The person proposing the brownfield for 25 designation has provided reasonable assurance that he or she 26 has sufficient financial resources to implement and complete 27 the rehabilitation agreement and development plan. 28 29 The designation of a brownfield and the identification of a 30 person responsible for brownfield site rehabilitation simply 31 entitles the identified person to negotiate a brownfield site 9 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 rehabilitation agreement with the department or approved local 2 pollution control program. 3 (4) The local government must at the time of the 4 adoption of the resolution notify the department of the entity 5 that it is designating as the person responsible for 6 brownfield site rehabilitation. If the agency or person who 7 will be responsible for the coordination changes during the 8 approval process specified in this section, the department or 9 the affected local pollution control program must notify the 10 affected local government when the change occurs. 11 (5) Local governments or persons responsible for 12 rehabilitation of a brownfield must establish an advisory 13 committee for the purpose of improving public participation 14 and receiving public comments on rehabilitation, remediation, 15 and redevelopment of the brownfield, future land use, local 16 employment opportunities, community safety, and environmental 17 justice. Such advisory committee should include residents 18 within or adjacent to the brownfield, businesses operating 19 within the brownfield, and others deemed appropriate. 20 (6) The person responsible for brownfield site 21 rehabilitation must enter into a brownfield site 22 rehabilitation agreement with the department or an approved 23 local pollution control program. The brownfield site 24 rehabilitation agreement must include: 25 (a) A brownfield site rehabilitation schedule, 26 including milestones for completion of site rehabilitation 27 tasks, submittal of technical reports, rehabilitation plans, 28 and timeframes for the review of assessments, reports, 29 completed cleanup phases or tasks by the department or 30 approved local pollution control program as agreed upon by the 31 parties to the agreement. 10 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 (b) A commitment to conduct site rehabilitation 2 activities under the observation of professional engineers or 3 geologists who are registered in accordance with the 4 requirements of chapter 471 or chapter 492, respectively. 5 Submittals provided by the person responsible for brownfield 6 site rehabilitation must be signed and sealed by a 7 professional engineer registered under chapter 471, or a 8 professional geologist registered under chapter 492, 9 certifying that the submittal and associated work comply with 10 the law and rules of the department and those governing the 11 profession. In addition, upon completion of the approved 12 remedial action, the department shall require a professional 13 engineer registered under chapter 471 or a professional 14 geologist registered under chapter 492 to certify that the 15 corrective action was, to the best of his or her knowledge, 16 completed in substantial conformance with the plans and 17 specifications approved by the department. 18 (c) A commitment to conduct site rehabilitation in 19 accordance with an approved comprehensive quality assurance 20 plan under department rules. 21 (d) A commitment to conduct site rehabilitation 22 consistent with federal, state, and local laws consistent with 23 the brownfield contamination cleanup criteria in s. 376.82, 24 including any applicable requirements for risk-based 25 corrective action. 26 (e) A commitment to secure access for the department 27 or approved local pollution control program to all parcels 28 within the eligible brownfield for activities associated with 29 site rehabilitation. 30 (f) Other provisions that the person responsible for 31 brownfield site rehabilitation and the department agree upon, 11 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 that are consistent with ss. 376.77-376.84 and that will 2 improve or enhance the brownfield site rehabilitation process. 3 (g) An agreement to develop within 2 years an 4 appropriate pollution prevention plan as determined by the 5 person responsible for brownfield site rehabilitation. Such 6 plans may include improved inventory or production controls 7 and procedures for preventing a loss, spills, and leaks of 8 hazardous waste and materials, and include goals for the 9 reduction of releases of toxic materials, and shall be 10 available to the public. 11 (h) A site plan that at a minimum specifies the size 12 of the brownfield, the types of uses proposed, a development 13 completion date, and a list of capital improvements. 14 (i) An agreement between the person responsible for 15 site rehabilitation and the local government with jurisdiction 16 over the brownfield. Such agreement shall contain terms for 17 the redevelopment of the brownfield. 18 (7) Failure by the department or approved local 19 pollution control program to adhere to site rehabilitation 20 agreement milestones as described in subsection (6) concerning 21 the review of assessments, reports, completed cleanup phases, 22 or tasks shall constitute approval of the specific assessment, 23 report, phase, or task, and the eligible party may proceed 24 with site rehabilitation. Exceptions to the provisions of 25 this subsection include requests for "no further action," 26 "monitoring only proposals," and feasibility studies, which 27 must be approved prior to implementation. 28 (8) Any contractor performing site rehabilitation 29 program tasks must demonstrate to the department that the 30 contractor: 31 12 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 (a) Meets all certification and license requirements 2 imposed by law. 3 (b) Has obtained approval for the comprehensive 4 quality-assurance plan prepared under department rules. 5 (9) The contractor must certify to the department that 6 the contractor: 7 (a) Complies with applicable OSHA regulations. 8 (b) Maintains workers' compensation insurance for all 9 employees as required by the Florida Workers' Compensation 10 Law. 11 (c) Maintains comprehensive general liability and 12 comprehensive automobile liability insurance with minimum 13 limits of at least $1 million per occurrence and $1 million 14 annual aggregate, sufficient to protect it from claims for 15 damage for personal injury, including accidental death, as 16 well as claims for property damage which may arise from 17 performance of work under this program, designating the state 18 as an additional insured party. 19 (d) Maintains professional liability insurance of at 20 least $1 million per occurrence and $1 million annual 21 aggregate. 22 (e) Has the capacity to perform or directly supervise 23 the majority of the work at a site in accordance with s. 24 489.113(9). 25 (10) Any professional engineer or geologist providing 26 professional services relating to site rehabilitation program 27 tasks must carry professional liability insurance with a 28 coverage limit of at least $1 million. 29 (11) During the cleanup process, the person 30 responsible for brownfield site rehabilitation may proceed 31 from one phase or task of cleanup to the next prior to 13 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 obtaining approval of the technical document for the next 2 phase or task of cleanup. However, the person responsible for 3 brownfield site rehabilitation will be required to complete 4 any additional tasks identified by the department or local 5 pollution control program found during the reviews provided 6 for by subsection (6). Exceptions to this subsection include 7 requests for "no further action," "monitoring only proposals," 8 and feasibility studies, which must be approved prior to 9 implementation. 10 (12) If the person responsible for brownfield site 11 rehabilitation fails to comply with the brownfield site 12 rehabilitation agreement, the department or approved local 13 pollution control program shall allow 90 days for such person 14 to return to compliance with the provision at issue or to 15 negotiate a modification to the brownfield site rehabilitation 16 agreement for good cause shown. If an imminent hazard exists, 17 the 90-day grace period shall not apply. If the project is not 18 returned to compliance with the brownfield site rehabilitation 19 agreement and a modification cannot be negotiated, the 20 liability protection provisions of s. 376.83 are revoked. 21 (13) Any agreement to extend the completion date of a 22 site rehabilitation agreement shall not be for a term longer 23 than 180 days. One additional extension, not to exceed 180 24 days, may be granted if deemed appropriate by the department 25 or the local pollution control program. 26 (14) The department is specifically authorized and 27 encouraged to enter into delegation agreements with local 28 pollution control programs approved under s. 403.182 to 29 administer the brownfield program within their jurisdiction, 30 thereby maximizing the integration of this process with the 31 other local development processes needed to facilitate 14 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 redevelopment of a brownfield. The department shall include 2 the following requirements when determining whether a 3 delegation of all or a part of the brownfields program to a 4 local pollution control program is appropriate under this 5 subsection. The local pollution control program must: 6 (a) Have and maintain the administrative organization, 7 staff, and financial and other resources to effectively and 8 efficiently implement and enforce the statutory requirements 9 of the delegated brownfields program; and 10 (b) Apply chapter 120, as appropriate, to activities 11 and actions taken pursuant to the brownfields program. 12 13 The local pollution control program shall not be delegated 14 authority to take action on or make decisions regarding any 15 brownfield where a potential conflict of interest exists. Any 16 delegation agreement entered into pursuant to this subsection 17 shall contain such terms and conditions as necessary to ensure 18 the effective and efficient administration and enforcement of 19 the statutory requirements of the brownfields program as 20 established by the act and the rules and other criteria of the 21 department relative to the brownfields program. 22 Section 5. Section 376.81, Florida Statutes, is 23 created to read: 24 376.81 Brownfield redevelopment economic 25 incentives.--It is the intent of the Legislature that 26 brownfield redevelopment activities be viewed as opportunities 27 to significantly improve the utilization, general condition, 28 and appearance of these sites. Different standards than those 29 in place for new development, as allowed under current state 30 and local laws, should be used to the fullest extent to 31 encourage the redevelopment of a brownfield. State and local 15 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 governments are encouraged to offer redevelopment incentives 2 for this purpose, as an ongoing public investment in 3 infrastructure and services, to help eliminate the public 4 health and environmental hazards, and to promote the creation 5 of jobs in these areas. Such incentives may include 6 financial, regulatory, and technical assistance to persons and 7 businesses involved in the redevelopment of the brownfield 8 pursuant to this act. 9 (1) Financial incentives and local incentives for 10 redevelopment may include, but not be limited to: 11 (a) Tax increment financing through community 12 redevelopment agencies pursuant to part III of chapter 163. 13 (b) Enterprise zone tax exemptions for businesses 14 pursuant to chapter 196 and chapter 290. 15 (c) Safe neighborhood improvement districts as 16 provided in ss. 163.501-163.523. 17 (d) Waiver, reduction, or limitation by line of 18 business with respect to occupational license taxes pursuant 19 to chapter 205. 20 (e) Tax exemption for historic properties as provided 21 in s. 196.1997. 22 (f) Residential electricity exemption of up to the 23 first 500 kilowatts of use may be exempted from the municipal 24 public service tax pursuant to s. 166.231. 25 (g) Minority business enterprise programs as provided 26 in s. 287.0943. 27 (h) Electric and gas tax exemption as provided in s. 28 166.231(6). 29 (i) Economic development tax abatement as provided in 30 s. 196.1995. 31 16 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 (j) Grants, including community development block 2 grants. 3 (k) Pledging of revenues to secure bonds. 4 (l) Low-interest revolving loans and zero-interest 5 loan pools. 6 (m) Local grant programs for facade, storefront, 7 signage, and other business improvements. 8 (n) Governmental coordination of loan programs with 9 lenders, such as microloans, business reserve fund loans, 10 letter of credit enhancements, gap financing, land lease and 11 sublease loans, and private equity. 12 (o) Payment schedules over time for payment of fees, 13 within criteria, and marginal cost pricing. 14 (2) Regulatory incentives may include, but not be 15 limited to: 16 (a) Cities' absorption of developers' concurrency 17 needs. 18 (b) Developers' performance of certain analyses. 19 (c) Exemptions and lessening of state and local review 20 requirements. 21 (d) Water and sewer regulatory incentives. 22 (e) Waiver of transportation impact fees and permit 23 fees. 24 (f) Zoning incentives to reduce review requirements 25 for redevelopment changes in use and occupancy; establishment 26 of code criteria for specific uses; and institution of credits 27 for previous use within the area. 28 (g) Flexibility in parking standards and buffer zone 29 standards. 30 (h) Environmental management through specific code 31 criteria and conditions allowed by current law. 17 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 (i) Maintenance standards and activities by ordinance 2 and otherwise, and increased security and crime prevention 3 measures available through special assessments. 4 (j) Traffic-calming measures. 5 (k) Historic preservation ordinances, loan programs, 6 and review and permitting procedures. 7 (l) One-stop permitting and streamlined development 8 and permitting process. 9 (3) Technical assistance incentives may include, but 10 not be limited to: 11 (a) Expedited development applications. 12 (b) Formal and informal information on business 13 incentives and financial programs. 14 (c) Site design assistance. 15 (d) Marketing and promotion of projects or areas. 16 Section 6. Paragraphs (a), (b), and (d) of subsection 17 (3) of section 288.095, Florida Statutes, 1996 Supplement, are 18 amended to read: 19 288.095 Economic Development Trust Fund.-- 20 (3)(a) Contingent upon an annual appropriation by the 21 Legislature, the Office of Tourism, Trade, and Economic 22 Development may approve not more than the lesser of $10 23 million in tax refunds pursuant to ss. 288.104, and 288.106, 24 and 376.815 or the amount appropriated to the Economic 25 Development Incentives Account for such tax refunds, for a 26 fiscal year pursuant to paragraph (b). 27 (b) The total amount of tax refunds approved by the 28 Office of Tourism, Trade, and Economic Development pursuant to 29 ss. 288.104, and 288.106, and 376.815 shall not exceed the 30 amount appropriated to the Economic Development Incentives 31 Account for such purposes for the fiscal year. In the event 18 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 the Legislature does not appropriate an amount sufficient to 2 satisfy projections by the department for tax refunds under 3 ss. 288.104, and 288.106, and 376.815 in a fiscal year, the 4 Office of Tourism, Trade, and Economic Development shall, not 5 later than July 15 of such year, determine the proportion of 6 each refund claim which shall be paid by dividing the amount 7 appropriated for tax refunds for the fiscal year by the 8 projected total of refund claims for the fiscal year. The 9 amount of each claim for a tax refund shall be multiplied by 10 the resulting quotient. If, after the payment of all such 11 refund claims, funds remain in the Economic Development 12 Incentives Account for tax refunds, the secretary shall 13 recalculate the proportion for each refund claim and adjust 14 the amount of each claim accordingly. 15 (d) Moneys in the Economic Development Incentives 16 Account may be used only to pay tax refunds and other payments 17 authorized under s. 288.104, or s. 288.106, or s. 376.815. 18 Section 7. Section 376.815, Florida Statutes, is 19 created to read: 20 376.815 Brownfield redevelopment bonus refunds.-- 21 (1) DEFINITIONS.--As used in this section: 22 (a) "Account" means the Economic Development 23 Incentives Account as authorized in s. 288.095. 24 (b) "Brownfield" or "brownfield site" means a parcel 25 or a contiguous area of one or more parcels, which have been 26 designated by local government by resolution, that are 27 generally abandoned, idled, or underused industrial and 28 commercial properties where expansion or redevelopment is 29 complicated by actual or perceived environmental 30 contamination. Such areas may include, but are not limited 31 to, portions of community redevelopment areas, enterprise 19 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 zones, empowerment zones, other such designated economically 2 deprived communities and areas, and United States 3 Environmental Protection Agency designated brownfield pilot 4 projects. 5 (c) "Director" means the director of the Office of 6 Tourism, Trade, and Economic Development. 7 (d) "Eligible business" means a qualified target 8 industry business as defined in s. 288.106(2)(o). 9 (e) "Jobs" means full-time equivalent positions, 10 consistent with the use of such terms by the Department of 11 Labor and Employment Security for the purpose of unemployment 12 compensation tax, resulting directly from a project in this 13 state. This number does not include temporary construction 14 jobs involved with the construction of facilities for the 15 project and which are not associated with the implementation 16 of the corrective action plan as provided in s. 376.80. 17 (f) "Office" means the Office of Tourism, Trade, and 18 Economic Development. 19 (g) "Project" means the creation of a new business or 20 the expansion of an existing business as defined in s. 21 288.106. 22 (2) BROWNFIELD REDEVELOPMENT BONUS REFUND.--There 23 shall be allowed from the account a bonus refund of $2,500 to 24 any qualified target industry business for each new Florida 25 job created in a brownfield which is claimed on the qualified 26 target industry business's annual refund claim authorized in 27 s. 288.106(6) and approved by the office as specified in the 28 final order issued by the director. 29 (3) CRITERIA.--The minimum criteria for participation 30 in the brownfield redevelopment bonus refund are: 31 20 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 (a) The creation of at least 10 new full-time 2 permanent jobs. Such jobs shall not include construction or 3 site rehabilitation jobs associated with the implementation of 4 a brownfield site agreement as described in 376.80(6). 5 (b) That the designation as a brownfield will 6 diversify and strengthen the economy of the area surrounding 7 the site. 8 (c) That the designation as a brownfield will promote 9 capital investment in the area beyond that contemplated for 10 the rehabilitation of the site. 11 (4) PAYMENT OF BROWNFIELD REDEVELOPMENT BONUS 12 REFUNDS.-- 13 (a) To be eligible to receive a bonus refund for new 14 Florida jobs created in a brownfield, a business must have 15 been certified as a qualified target industry business under 16 s. 288.106 and must have indicated on the qualified target 17 industry tax refund application form submitted in accordance 18 with s. 288.106(4) that the project for which the application 19 is submitted is or will be located in a brownfield and that 20 the business is applying for certification as a qualified 21 brownfield business under this section, and must have signed a 22 qualified target industry tax refund agreement with the office 23 which indicates that the business has been certified as a 24 qualified target industry business located in a brownfield and 25 specifies the schedule of brownfield redevelopment bonus 26 refunds that the business may be eligible to receive in each 27 fiscal year. 28 (b) To be considered to receive an eligible brownfield 29 redevelopment bonus refund payment, the business meeting the 30 requirements of paragraph (a) must submit a claim once each 31 fiscal year on a claim form approved by the office which 21 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 indicates the location of the brownfield, the address of the 2 business facility's brownfield location, the name of the 3 brownfield in which it is located, the number of jobs created, 4 and the average wage of the jobs created by the business 5 within the brownfield as defined in s. 288.106 and the 6 administrative rules and policies for that section. 7 (c) The bonus refunds shall be available on the same 8 schedule as the qualified target industry tax refund payments 9 scheduled in the qualified target industry tax refund 10 agreement authorized in s. 288.106. 11 (d) After entering into a tax refund agreement as 12 provided in s. 288.106, an eligible business may receive 13 brownfield redevelopment bonus refunds from the account 14 pursuant to s. 288.106(3)(c). 15 (e) An eligible business that fraudulently claims a 16 refund under this section: 17 1. Is liable for repayment of the amount of the refund 18 to the account, plus a mandatory penalty in the amount of 200 19 percent of the tax refund, which shall be deposited into the 20 General Revenue Fund. 21 2. Commits a felony of the third degree, punishable as 22 provided in s. 775.082, s. 775.083, or s. 775.084. 23 (f) The office shall review all applications submitted 24 under s. 288.106 which indicate that the proposed project will 25 be located in a brownfield and determine, with the assistance 26 of the Department of Environmental Protection, that the 27 project location is within a brownfield as provided in this 28 act. 29 (g) The office shall approve all claims for a 30 brownfield redevelopment bonus refund payment that are found 31 to meet the requirements of paragraphs (b) and (d). 22 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 (h) The director, with such assistance as may be 2 required from the office and the Department of Environmental 3 Protection, shall specify by written final order the amount of 4 the brownfield redevelopment bonus refund that is authorized 5 for the qualified target industry business for the fiscal year 6 within 30 days after the date that the claim for the annual 7 tax refund is received by the office. 8 (i) The total amount of the bonus refunds approved by 9 the director under this section in any fiscal year must not 10 exceed the total amount appropriated to the Economic 11 Development Incentives Account for this purpose for the fiscal 12 year. In the event that the Legislature does not appropriate 13 an amount sufficient to satisfy projections by the office for 14 brownfield redevelopment bonus refunds under this section in a 15 fiscal year, the office shall, not later than July 15 of such 16 year, determine the proportion of each brownfield 17 redevelopment bonus refund claim which shall be paid by 18 dividing the amount appropriated for tax refunds for the 19 fiscal year by the projected total of brownfield redevelopment 20 bonus refund claims for the fiscal year. The amount of each 21 claim for a brownfield redevelopment bonus tax refund shall be 22 multiplied by the resulting quotient. If, after the payment 23 of all such refund claims, funds remain in the Economic 24 Development Incentives Account for brownfield redevelopment 25 tax refunds, the office shall recalculate the proportion for 26 each refund claim and adjust the amount of each claim 27 accordingly. 28 (j) Upon approval of the brownfield redevelopment 29 bonus refund, the Comptroller shall issue a warrant for the 30 amount specified in the final order. If the final order is 31 appealed, the Comptroller shall not issue a warrant for a 23 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 refund to the qualified target industry business until the 2 conclusion of all appeals of that order. 3 (5) ADMINISTRATION.-- 4 (a) The office is authorized to verify information 5 provided in any claim submitted for tax credits under this 6 section with regard to employment and wage levels or the 7 payment of the taxes to the appropriate agency or authority, 8 including the Department of Revenue, the Department of Labor 9 and Employment Security, or any local government or authority. 10 (b) To facilitate the process of monitoring and 11 auditing applications made under this program, the office may 12 provide a list of qualified target industry businesses to the 13 Department of Revenue, to the Department of Labor and 14 Employment Security, to the Department of Environmental 15 Protection, or to any local government authority. The office 16 may request the assistance of those entities with respect to 17 monitoring the payment of the taxes listed in 288.106(3). 18 Section 8. Section 376.82, Florida Statutes, is 19 created to read: 20 376.82 Brownfield contamination cleanup criteria.-- 21 (1) It is the intent of the Legislature to protect the 22 health of all people under actual circumstances of exposure. 23 By July 1, 1998, the secretary of the department shall 24 establish criteria by rule for the purpose of determining, on 25 a site-specific basis, the rehabilitation program tasks that 26 comprise a site rehabilitation program and the level at which 27 a rehabilitation program task and a site rehabilitation 28 program may be deemed completed. In establishing the rule, 29 the department shall incorporate, to the maximum extent 30 feasible, risk-based corrective-action principles to achieve 31 protection of human health and safety and the environment in a 24 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 cost-effective manner as provided in this subsection. The 2 rule shall also include protocols for the use of natural 3 attenuation and the issuance of "no further action" letters. 4 The criteria for determining what constitutes a rehabilitation 5 program task or completion of a site rehabilitation program 6 task or site rehabilitation program must: 7 (a) Consider the current exposure and potential risk 8 of exposure to humans and the environment, including multiple 9 pathways of exposure. The physical, chemical, and biological 10 characteristics of each contaminant must be considered in 11 order to determine the feasibility of risk-based 12 corrective-action assessment. 13 (b) Establish the point of compliance at the source of 14 the contamination. However, the department is authorized to 15 temporarily move the point of compliance to the boundary of 16 the property, or to the edge of the plume when the plume is 17 within the property boundary, while cleanup, including cleanup 18 through natural attenuation processes in conjunction with 19 appropriate monitoring, is proceeding. The department also is 20 authorized, pursuant to criteria provided for in this section, 21 to temporarily extend the point of compliance beyond the 22 property boundary with appropriate monitoring, if such 23 extension is needed to facilitate natural attenuation or to 24 address the current conditions of the plume, provided human 25 health, public safety, and the environment are adequately 26 protected. Temporary extension of the point of compliance 27 beyond the property boundary, as provided in this paragraph, 28 must include actual notice to local governments and owners of 29 any property into which the point of compliance is allowed to 30 extend. 31 25 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 (c) Ensure that the site-specific cleanup goal is that 2 all contaminated brownfields ultimately achieve the applicable 3 cleanup target levels provided in this section. However, the 4 department is authorized to allow concentrations of 5 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) Allow brownfield rehabilitation programs to 11 include the use of institutional or engineering controls where 12 appropriate to eliminate or control the potential exposure to 13 contaminants to humans or the environment. Use of such 14 controls must be preapproved by the department. When 15 institutional or engineering controls are implemented to 16 control exposure, the removal of such controls must have prior 17 department approval and must be accompanied by the resumption 18 of active cleanup, or other approved controls, unless cleanup 19 target levels pursuant to this section have been achieved. 20 (e) Consider the synergistic, antagonistic, and 21 additive effects of contaminants when the scientific data 22 become available. 23 (f) Take into consideration individual site 24 characteristics, which shall include, but not be limited to, 25 the current and projected use of the affected groundwater and 26 surface water in the vicinity of the site, current and 27 projected land uses of the area affected by the contamination, 28 the exposed population, the degree and extent of 29 contamination, the rate of contaminant migration, the apparent 30 or potential rate of contaminant degradation through natural 31 attenuation processes, the location of the plume, and the 26 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 potential for further migration in relation to site property 2 boundaries. 3 (g) Apply state water quality standards as follows: 4 1. Cleanup target levels for each contaminant found in 5 groundwater shall be the applicable state water quality 6 standards. Where such standards do not exist, the cleanup 7 target levels for groundwater shall be based on the minimum 8 criteria specified in department rule. The department shall 9 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 3. The department may set alternative cleanup target 22 levels based upon an applicant's demonstration, using 23 site-specific modeling and risk assessment studies, that human 24 health, public safety, and the environment are adequately 25 protected to the same degree as provided in subparagraphs 1. 26 and 2. Where a state water quality standard is applicable, a 27 deviation may not result in the application of cleanup target 28 levels more stringent than the standard. In determining 29 whether it is appropriate to establish alternative cleanup 30 target levels at a site, the department must consider the 31 effectiveness of source removal that has been completed at the 27 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 site and the practical likelihood of the use of low-yield or 2 poor quality groundwater, the use of groundwater near marine 3 surface water bodies, the current and projected use of the 4 affected groundwater in the vicinity of the site, or the use 5 of 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 (h) Provide for the department to issue a "no further 11 action order" when alternative cleanup target levels 12 established pursuant to subparagraph (g)3. have been achieved 13 or issue a "no further action order" based upon the degree to 14 which the desired cleanup target level is achievable and can 15 be reasonably and cost-effectively implemented within 16 available technologies or engineering and institutional 17 control strategies. 18 (i) Establish appropriate cleanup target levels for 19 soils. 20 1. In establishing soil cleanup target levels for 21 human exposure to each contaminant found in soils from the 22 land surface to 2 feet below land surface, the department 23 shall consider the following, as appropriate: calculations 24 using a lifetime cancer risk level of 1.0E-6; a hazard index 25 of 1 or less; the best achievable detection limit; or the 26 naturally occurring background concentration. Institutional 27 controls or other methods shall be used to prevent human 28 exposure to contaminated soils more than 2 feet below the land 29 surface. Any removal of such institutional controls shall 30 require such contaminated soils to be remediated. 31 28 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 2. Leachability-based soil target levels shall be 2 based on protection of the groundwater cleanup target levels 3 or the alternate cleanup target levels for groundwater 4 established pursuant to this paragraph, as appropriate. 5 Source removal and other cost-effective alternatives that are 6 technologically feasible shall be considered in achieving the 7 leachability soil target levels established by the department. 8 The leachability goals shall not be applicable if the 9 department determines, based upon individual site 10 characteristics, that contaminants will not leach into the 11 groundwater at levels which pose a threat to human health, 12 public safety, and the environment. 13 3. The department may set alternative cleanup target 14 levels based upon an applicant's demonstration, using 15 site-specific modeling and risk assessment studies, that human 16 health, public safety, and the environment are adequately 17 protected. 18 (2) The department shall require source removal, if 19 warranted and cost-effective. Once source removal at a site 20 is complete, the department shall reevaluate the site to 21 determine the degree of active cleanup needed to continue. 22 Further, the department shall determine if the reevaluated 23 site qualifies for monitoring only or if no further action is 24 required to rehabilitate the site. If additional site 25 rehabilitation is necessary to reach no-further-action status, 26 the department is encouraged to utilize natural attenuation 27 and monitoring where site conditions warrant. 28 Section 9. Section 376.83, Florida Statutes, is 29 created to read: 30 376.83 Eligibility criteria and liability 31 protection.-- 29 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 (1) ELIGIBILITY.--Any person who has not caused or 2 contributed to the contamination of a brownfield after July 1, 3 1997, is eligible to participate in the brownfield 4 rehabilitation program established in ss. 376.77-376.84, 5 subject to the following: 6 (a) Contaminated sites that are subject to an ongoing 7 formal judicial or administrative enforcement action or 8 corrective action pursuant to federal authority, including, 9 but not limited to, the Comprehensive Environmental Response 10 Compensation and Liability Act, 42 U.S.C. ss. 9601 et seq., as 11 amended; the Safe Drinking Water Act, 42 U.S.C. ss. 300f-300i, 12 as amended; the Clean Water Act, 33 U.S.C. ss. 1251-1387, as 13 amended, or under an order from the United States 14 Environmental Protection Agency pursuant to s. 3008(h) of the 15 Resource Conservation and Recovery Act, as amended, 42 16 U.S.C.A. s. 6928(h), or that have obtained or are required to 17 obtain a permit for the operation of a hazardous waste 18 treatment, storage, or disposal facility, a postclosure 19 permit, or a permit pursuant to the federal Hazardous and 20 Solid Waste Amendments of 1984, are not eligible for 21 participation unless specific exemptions are secured by a 22 memorandum of agreement with the United States Environmental 23 Protection Agency pursuant to paragraph (2)(g). A contaminated 24 site within an eligible brownfield that subsequently becomes 25 subject to formal judicial or administrative enforcement 26 action or corrective action under such federal authority shall 27 have its eligibility revoked unless specific exemptions are 28 secured by a memorandum of agreement with the United States 29 Environmental Protection Agency pursuant to paragraph (2)(g). 30 (b) Persons who have not caused or contributed to the 31 contamination of a proposed brownfield after July 1, 1997, and 30 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 who, prior to the department's approval of a brownfield site 2 rehabilitation agreement, are subject to ongoing corrective 3 action or enforcement under state authority established in 4 this chapter or chapter 403, including those persons subject 5 to a pending consent order with the state, are eligible for 6 participation in a brownfield corrective action if: 7 1. The proposed brownfield is currently idle or 8 underutilized as a result of the contamination, and 9 participation in the brownfield program will immediately, 10 after cleanup or sooner, result in increased economic 11 productivity at the brownfield, including the creation of new 12 jobs, whether permanent or part time, which are not associated 13 with implementation of the brownfield site rehabilitation 14 agreement; and 15 2. The person is complying in good faith with the 16 terms of an existing consent order or department-approved 17 corrective-action plan, or responding in good faith to an 18 enforcement action, as evidenced by a determination issued by 19 the department or an approved local pollution control program. 20 (c) Proposed brownfields owned by the state or a local 21 government which contain contamination for which a 22 governmental entity is potentially responsible and which are 23 already designated as federal brownfield pilot projects or 24 have filed an application for designation to the United States 25 Environmental Protection Agency are eligible for participation 26 in a brownfield program. 27 (d) Petroleum sites and drycleaning sites eligible for 28 state sponsored cleanups as provided by this chapter are not 29 eligible for participation in the program under ss. 30 376.77-376.84 unless the site owner waives his or her 31 eligibility for the state-sponsored cleanup. Proof of waiver 31 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 must be evidenced by a letter from the site owner to the 2 department requesting that the petroleum site or drycleaning 3 site be removed from the department's list of eligible sites. 4 (2) LIABILITY PROTECTION.-- 5 (a) Any person, including his or her successors and 6 assigns, who executes and implements to successful completion 7 a brownfield site rehabilitation agreement, shall be relieved 8 of further liability for remediation of the contaminated site 9 or sites to the state and to third parties and of liability in 10 contribution to any other party who has or may incur cleanup 11 liability for the contaminated site or sites. 12 (b) This section shall not be construed as a 13 limitation on the right of a third party other than the state 14 to pursue an action for damages to property or person; 15 however, such an action may not compel site rehabilitation in 16 excess of that required in the approved brownfield site 17 rehabilitation agreement or otherwise required by the 18 department or approved local pollution control program. 19 (c) This section shall not affect the ability or 20 authority to seek contribution from any person who may have 21 liability with respect to the contaminated site and who did 22 not receive cleanup liability protection under this act. 23 (d) The liability protection provided under this 24 section shall become effective upon execution of a brownfield 25 site rehabilitation agreement and shall remain effective, 26 provided the person responsible for brownfield site 27 rehabilitation complies with the terms of the site 28 rehabilitation agreement. Any statute of limitations that 29 would bar the department from pursuing relief in accordance 30 with its existing authority is tolled from the time the 31 32 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 agreement is executed until site rehabilitation is completed 2 or immunity is revoked pursuant to s. 376.80(12). 3 (e) Completion of the performance of the remediation 4 obligations at the brownfield shall be evidenced by a site 5 rehabilitation completion letter or a "no further action" 6 letter issued by the department or the approved local 7 pollution control program, which letter shall include the 8 following statement: "Based upon the information provided by 9 (property owner) concerning property located at (address), it 10 is the opinion of (the Florida Department of Environmental 11 Protection or approved local pollution control program) that 12 (party) has successfully and satisfactorily implemented the 13 approved brownfield site rehabilitation agreement schedule 14 and, accordingly, no further action is required to assure that 15 any land use identified in the brownfield site rehabilitation 16 agreement is consistent with existing and proposed uses." 17 (f) Compliance with the agreement referenced in s. 18 376.80(6)(i) must be evidenced by a finding by the local 19 government with jurisdiction over the brownfield that the 20 terms of the agreement have been met. 21 (g) The Legislature recognizes its limitations in 22 addressing cleanup liability under federal pollution control 23 programs. In an effort to secure federal liability protection 24 for persons willing to undertake remediation responsibility at 25 a brownfield, the department shall attempt to negotiate a 26 memorandum of agreement or similar document with the United 27 States Environmental Protection Agency, whereby the United 28 States Environmental Protection Agency agrees to forgo 29 enforcement of federal corrective-action authority at 30 brownfields that have received a site rehabilitation 31 completion or "no further action" determination from the 33 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 department or the approved local pollution control program or 2 that are in the process of implementing a brownfield site 3 rehabilitation agreement in accordance with this act. 4 (h) No unit of state or local government may be held 5 liable for implementing corrective actions at a contaminated 6 site within an eligible brownfield as a result of the 7 involuntary ownership of the site through bankruptcy, tax 8 delinquency, abandonment, or other circumstances in which the 9 state or local government involuntarily acquires title by 10 virtue of its function as a sovereign, or as a result of 11 ownership from donation or gift, unless the state or local 12 government has otherwise caused or contributed to a release of 13 a contaminant at the brownfield site. 14 (i) The Legislature finds and declares that certain 15 brownfields may be redeveloped for open space, or limited 16 recreational, cultural, or historical preservation purposes, 17 and that such facilities enhance the redeveloped environment, 18 attract visitors, and provide wholesome activities for 19 employees and residents of the area. Further, the Legislature 20 finds that purchasers of contaminated sites who are nonprofit 21 conservation organizations acting for the public interest and 22 who did not cause or contribute to the release of 23 contamination on the site warrant protection from liability. 24 (j) Notwithstanding any provision of this chapter, 25 chapter 403, other laws, or ordinances of local governments, a 26 nonprofit, charitable, federal tax exempt, 501(c)(3) national 27 land conservation corporation which purchases title to 28 property in the state for the purpose of conveying such land 29 to any governmental entity for conservation, historical 30 preservation or cultural resource, park, greenway, or other 31 similar uses shall not be liable to the state, local 34 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 government, or any third party for penalties or remediation 2 costs in connection with environmental contamination found in 3 the soil or groundwater of such property, provided that such 4 corporation did not cause the original deposit or release of 5 the environmental contaminants, and provided the department 6 and local pollution control program and responsible parties 7 have access to the land for investigation, remediation, or 8 monitoring purposes. 9 (3) REOPENERS.--Upon completion of site rehabilitation 10 in compliance with this act, no additional site rehabilitation 11 shall be required unless it is demonstrated: 12 (a) That fraud was committed in demonstrating site 13 conditions or completion of the site rehabilitation. 14 (b) That new information confirms the existence of an 15 area of previously unknown contamination which exceeds the 16 site-specific rehabilitation levels established in accordance 17 with s. 376.82 and poses an imminent hazard to public health, 18 safety, or the environment in violation of the terms of ss. 19 376.77-376.84. The determination of imminent hazard must be 20 made by the department. 21 (c) That the remediation efforts failed to achieve the 22 site rehabilitation criteria established by this act. 23 (d) That the level of risk is increased beyond the 24 acceptable risk established in this act due to substantial 25 changes in exposure conditions, such as in a change in land 26 use from nonresidential use to residential use. Any person 27 who changes the land use of the brownfield, thus causing the 28 level of risk to increase beyond the acceptable risk level, 29 may be required by the department or approved local pollution 30 control program to undertake additional remediation measures 31 35 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 to assure that human health, public safety, and the 2 environment are protected to levels consistent with this act. 3 (e) That a new release occurs at the brownfield 4 subsequent to a determination of eligibility for participation 5 in the brownfield program established in this act. 6 (4) ADDITIONAL LIABILITY PROTECTION FOR LENDERS.-- 7 (a) The Legislature declares that, in order to achieve 8 the economic redevelopment and site rehabilitation of 9 brownfields in accordance with this act, it is imperative to 10 encourage financing of real property transactions involving 11 brownfield site rehabilitation plans. Accordingly, lenders, 12 including those serving as a trustee, personal representative, 13 or in any other fiduciary capacity, are entitled to the 14 liability protection established in subsection (2) if they 15 have not caused or contributed to a release of a contaminant 16 at the brownfield. 17 (b) Lenders who hold indicia of ownership of a parcel 18 within a brownfield solely to protect a security interest or 19 who own a parcel within a brownfield as a result of 20 foreclosure or a deed in lieu of foreclosure of a security 21 interest and who seek to sell, transfer, or otherwise divest 22 the parcel via sale at the earliest practicable time are not 23 liable for the release or discharge of a contaminant from the 24 parcel; for the failure of the person responsible for 25 brownfield site rehabilitation to comply with the brownfield 26 site rehabilitation agreement; or for future site 27 rehabilitation activities required pursuant to a reopener 28 provision established in subsection (3) where the lender has 29 not divested the borrower of, or otherwise engaged in, 30 decisionmaking control of the site rehabilitation or site 31 operations or undertaken management activities beyond those 36 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 required to protect its financial interest while making a good 2 faith effort to sell the site as soon as practicable and when 3 an act or omission of the lender has not otherwise caused or 4 contributed to a release of a contaminant at the brownfield. 5 (c) Lenders who obtain ownership of brownfields by 6 methods described in this subsection shall not be eligible for 7 economic incentives that were granted to a person responsible 8 for site rehabilitation by state or local governments. 9 Section 10. Section 376.84, Florida Statutes, is 10 created to read: 11 376.84 Violations; penalties-- 12 (1) It is a violation of ss. 376.77-376.83, and it is 13 prohibited for any person to knowingly make any false 14 statement, representation, or certification in any 15 application, record, report, plan, or other document filed or 16 required to be maintained, or to falsify, tamper with, or 17 knowingly render inaccurate any monitoring device or method 18 required to be maintained under ss. 376.77-376.83, or by any 19 permit, rule, or order issued under this chapter or chapter 20 403. 21 (2) Any person who willfully commits a violation 22 specified in subsection (1) commits a misdemeanor of the first 23 degree, punishable by a fine of not more than $10,000 or by 6 24 months in jail, or both, for each offense. Each day during 25 any portion of which such violation occurs constitutes a 26 separate offense. 27 Section 11. The Department of Environmental Protection 28 shall prepare an annual report to the Speaker of the House of 29 Representatives and the President of the Senate, beginning in 30 December 1998, which shall include, but not be limited to: 31 37 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 (1) The number of brownfields that have been 2 remediated under the provisions of this act. 3 (2) The number of brownfields that are undergoing 4 remediation. 5 (3) The number and size of brownfields that have been 6 designated. 7 (4) The number of petroleum and drycleaning sites that 8 are participating or have participated. 9 (5) The number of brownfields that have utilized 10 site-specific rehabilitation criteria, including those based 11 on risk-based corrective-action principles. 12 (6) The relationship of the state's program to the 13 United States Environmental Protection Agency brownfields 14 program. 15 (7) Local government incentives that have been offered 16 for brownfields and the locales where offered. 17 18 The report shall be available for public comment 60 days prior 19 to submittal to the Speaker of the House of Representatives 20 and the President of the Senate, and comment received shall be 21 submitted with the report to the Speaker of the House of 22 Representatives and the President of the Senate. 23 Section 12. (1) The Legislature recognizes that the 24 United States Environmental Protection Agency has created 25 several pilot projects for redevelopment of brownfields to 26 gather information on the best ways to return old industrial 27 and commercial sites to productive use in situations where 28 redevelopment is complicated by potential environmental 29 contamination. These pilot project areas will perform initial 30 work to seek developers to restore the sites, and will also 31 incorporate the efforts of lenders, regulators, and other 38 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 groups. The United States Environmental Protection Agency is 2 flexible, allowing local governments to use a variety of 3 approaches to rehabilitate abandoned or underutilized sites, 4 neighborhoods, and small regional areas. 5 (2) The Legislature has determined that it would be 6 beneficial to provide similar incentives in this state for the 7 rehabilitation and redevelopment of brownfields. Accordingly, 8 the department shall, contingent upon funds being available in 9 the General Appropriations Act for fiscal year 1997-1998, 10 award grants in the amount of $1 million to each United States 11 Environmental Protection national or regional brownfield pilot 12 project. These grants shall be awarded to existing pilot 13 projects and to any additional pilot projects that receive 14 designation prior to December 31, 1997. 15 Section 13. The introductory paragraph and paragraph 16 (k) of subsection (12) and paragraph (g) of subsection (13) of 17 section 376.3071, Florida Statutes, 1996 Supplement, are 18 amended to read: 19 376.3071 Inland Protection Trust Fund; creation; 20 purposes; funding.-- 21 (12) REIMBURSEMENT FOR CLEANUP EXPENSES.--Except as 22 provided in s. 2(3), chapter 95-2, Laws of Florida, this 23 subsection shall not apply to any site rehabilitation program 24 task initiated after March 29, 1995. Effective August 1, 1996, 25 no further site rehabilitation work on sites eligible for 26 state-funded cleanup from the Inland Protection Trust Fund 27 shall be eligible for reimbursement pursuant to this 28 subsection. The person responsible for conducting site 29 rehabilitation may seek reimbursement for site rehabilitation 30 program task work conducted after March 28, 1995, in 31 accordance with s. 2(2) and (3), chapter 95-2, Laws of 39 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 Florida, regardless of whether the site rehabilitation program 2 task is completed. A site rehabilitation program task shall 3 be considered to be initiated when actual onsite work or 4 engineering design, pursuant to chapter 62-770, Florida 5 Administrative Code, which is integral to performing a site 6 rehabilitation program task has begun and shall not include 7 contract negotiation and execution, site research, or project 8 planning. All reimbursement applications pursuant to this 9 subsection must be submitted to the department by January 3, 10 1997 December 31, 1996. The department shall not accept any 11 applications for reimbursement or pay any claims on 12 applications for reimbursement received after that date; 13 however, if an application was returned by the department on 14 the grounds of untimely filing, it shall be refiled within 30 15 days after the effective date of this act in order to be 16 processed. 17 (k) Audits.-- 18 1. The department is authorized to perform financial 19 and technical audits in order to certify site restoration 20 costs and ensure compliance with this chapter. The department 21 shall seek recovery of any overpayments based on the findings 22 of these audits. The department must commence any audit within 23 5 years after the date of reimbursement, except in cases where 24 the department alleges specific facts indicating fraud. 25 2. Upon determination by the department that any 26 portion of costs which have been reimbursed are disallowed, 27 the department shall give written notice to the applicant 28 setting forth with specificity the allegations of fact which 29 justify the department's proposed action and ordering 30 repayment of disallowed costs within 60 days of notification 31 of the applicant. 40 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 3. In the event the applicant does not make payment to 2 the department within 60 days of receipt of such notice, the 3 department shall seek recovery in a court of competent 4 jurisdiction to recover reimbursement overpayments made to the 5 person responsible for conducting site rehabilitation, unless 6 the department finds the amount involved too small or the 7 likelihood of recovery too uncertain. 8 4. In addition to the amount of any overpayment, the 9 applicant shall be liable to the department for interest of 1 10 percent per month or the prime rate, whichever is less, on the 11 amount of overpayment, from the date of overpayment by the 12 department until the applicant satisfies the department's 13 request for repayment pursuant to this paragraph. The 14 calculation of interest shall be tolled during the pendency of 15 any litigation. 16 5. Financial and technical audits frequently are 17 conducted under this section many years after the site 18 rehabilitation activities were performed and the costs 19 examined in the course of the audit were incurred by the 20 person responsible for site rehabilitation. During the 21 intervening span of years, the department's rule requirements 22 and its related guidance and other nonrule policy directives 23 may have changed significantly. The Legislature finds that it 24 may be appropriate for the department to provide relief to 25 persons subject to such requirements in financial and 26 technical audits conducted pursuant to this section. 27 a. The department is authorized to grant variances and 28 waivers from the documentation requirements of subparagraph 29 (e)2. and from the requirements of rules applicable in 30 technical and financial audits conducted under this section. 31 Variances and waivers shall be granted when the person 41 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 responsible for site rehabilitation demonstrates to the 2 department that application of a financial or technical 3 auditing requirement would create a substantial hardship or 4 would violate principles of fairness. For purposes of this 5 subsection, "substantial hardship" means a demonstrated 6 economic, technological, legal, or other type of hardship to 7 the person requesting the variance or waiver. For purposes of 8 this subsection, "principles of fairness" are violated when 9 the application of a requirement affects a particular person 10 in a manner significantly different from the way it affects 11 other similarly situated persons who are affected by the 12 requirement or when the requirement is being applied 13 retroactively without due notice to the affected parties. 14 b. A person whose reimbursed costs are subject to a 15 financial and technical audit under this section may file a 16 written request to the department for grant of a variance or 17 waiver. The request shall specify: 18 (I) The requirement from which a variance or waiver is 19 requested. 20 (II) The type of action requested. 21 (III) The specific facts which would justify a waiver 22 or variance. 23 (IV) The reason or reasons why the requested variance 24 or waiver would serve the purposes of this section. 25 c. Within 90 days after receipt of a written request 26 for variance or waiver under this subsection, the department 27 shall grant or deny the request. If the request is not granted 28 or denied within 90 days of receipt, the request shall be 29 deemed approved. An order granting or denying the request 30 shall be in writing and shall contain a statement of the 31 relevant facts and reasons supporting the department's action. 42 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 The department's decision to grant or deny the petition shall 2 be supported by competent substantial evidence and is subject 3 to ss. 120.569 and 120.57. Once adopted, model rules 4 promulgated by the Administration Commission under s. 120.542 5 shall govern the processing of requests under this provision; 6 however, the department may process requests prior to the 7 adoption of those model rules. 8 6. The Comptroller may audit the records of persons 9 who receive or who have received payments pursuant to this 10 chapter in order to verify site restoration costs, ensure 11 compliance with this chapter, and verify the accuracy and 12 completeness of audits performed by the department pursuant to 13 this paragraph. The Comptroller may contract with entities or 14 persons to perform audits pursuant to this subparagraph. The 15 Comptroller shall commence any audit within 1 year after the 16 department's completion of an audit conducted pursuant to this 17 paragraph, except in cases where the department or the 18 Comptroller alleges specific facts indicating fraud. 19 (13) PETROLEUM CLEANUP PARTICIPATION PROGRAM.--To 20 encourage detection, reporting, and cleanup of contamination 21 caused by discharges of petroleum or petroleum products, the 22 department shall, within the guidelines established in this 23 subsection, implement a cost-sharing cleanup program to 24 provide rehabilitation funding assistance for all property 25 contaminated by discharges of petroleum or petroleum products 26 occurring before January 1, 1995, subject to a copayment 27 provided for in a preapproved site rehabilitation agreement. 28 Eligibility shall be subject to an annual appropriation from 29 the Inland Protection Trust Fund. Additionally, funding for 30 eligible sites shall be contingent upon annual appropriation 31 in subsequent years. Such continued state funding shall not 43 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 be deemed an entitlement or a vested right under this 2 subsection. Eligibility in the program shall be 3 notwithstanding any other provision of law, consent order, 4 order, judgment, or ordinance to the contrary. 5 (g) The following shall be excluded from participation 6 in the program: 7 1. Sites at which the department has been denied 8 reasonable site access to implement the provisions of this 9 section. 10 2. Sites that were active facilities when owned or 11 operated by the Federal Government. 12 3. Sites that are identified by the United States 13 Environmental Protection Agency to be on, or which qualify for 14 listing on, the National Priorities List under Superfund. 15 This exception does not apply to those sites for which 16 eligibility has been requested or granted as of the effective 17 date of this act under the Early Detection Incentive Program 18 established pursuant to s. 15, chapter 86-159, Laws of 19 Florida. 20 4. The contamination is covered under the Early 21 Detection Incentive Program, the Abandoned Tank Restoration 22 Program or the Petroleum Liability and Restoration Insurance 23 Program, in which case site rehabilitation funding assistance 24 shall continue under the respective program. 25 5. Any person who knowingly acquires title to 26 contaminated property shall not be eligible for restoration 27 funding pursuant to this subsection. The provisions of this 28 subsection do not relieve any person who has acquired title 29 subsequent to July 1, 1992, from the duty to establish by a 30 preponderance of the evidence that he or she undertook, at the 31 time of acquisition, all appropriate inquiry into the previous 44 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 ownership and use of the property consistent with good 2 commercial or customary practice in an effort to minimize 3 liability, as required by s. 376.308(1)(c). The provisions of 4 this subparagraph do not apply to any person who acquires 5 title by succession or devise. 6 Section 14. Subsection (8) is added to section 7 376.30711, Florida Statutes, 1996 Supplement, to read: 8 376.30711 Preapproved site rehabilitation, effective 9 March 29, 1995.-- 10 (8) If site rehabilitation work pursuant to ss. 11 376.3071-376.3075 has not commenced by July 1, 1997, the 12 department shall only allow site rehabilitation on such sites 13 based on competitive bids for preapproved costs and 14 rehabilitation procedures. 15 Section 15. Subsection (3) of section 376.3072, 16 Florida Statutes, 1996 Supplement, is amended to read: 17 376.3072 Florida Petroleum Liability and Restoration 18 Insurance Program.-- 19 (3) Sites that were certified as insured facilities 20 and that were denied coverage for a discharge under the 21 Petroleum Liability and Restoration Insurance Program may 22 request a reevaluation under the criteria in subsection (2). 23 Such request shall be made by December 31, 1996. If the 24 contamination is redetermined to be eligible, the deductible 25 and coverage limit in effect at the time the discharge was 26 reported shall be applicable. The redetermination shall not 27 affect the department's authority for assessing supplemental 28 deductibles or civil penalties. The department shall not 29 assess a supplemental deductible or civil penalty for alleged 30 failure to report or abate a discharge when the owner or 31 operator can establish no discharge occurred. Notwithstanding 45 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HBs 1067 & 955 610-104-97 1 any department order to the contrary, the supplemental 2 deductibles in subparagraph (2)(d)2.f. shall not be applied 3 cumulatively but, rather, the highest applicable supplemental 4 deductible shall be applied. 5 Section 16. This act shall take effect July 1, 1997. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 46