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House Bill 1559

Florida House of Representatives - 1997 HB 1559 By Representative Burroughs 1 A bill to be entitled 2 An act relating to dry cleaning solvent 3 cleanup; amending s. 376.3078, F.S.; providing 4 legislative intent; clarifying certain 5 rehabilitation liability provisions; providing 6 additional criteria for determining eligibility 7 for rehabilitation; providing additional 8 authority for the Department of Environmental 9 Protection to consider certain information in 10 determining rehabilitation eligibility; 11 providing for continuing application of certain 12 immunity for real property owners; amending s. 13 376.308, F.S.; protecting certain immunity for 14 real property owners; amending s. 376.313, 15 F.S.; correcting a cross reference; providing 16 an effective date. 17 18 Be It Enacted by the Legislature of the State of Florida: 19 20 Section 1. Paragraph (e) is added to subsection (1) 21 and paragraph (p) is added to subsection (3) of section 22 376.3078, Florida Statutes, 1996 Supplement, and paragraphs 23 (a), (b), (c), and (k) of subsection (3) and subsection (9) of 24 said section are amended, to read: 25 376.3078 Drycleaning facility restoration; funds; 26 uses; liability; recovery of expenditures.-- 27 (1) FINDINGS.--In addition to the legislative findings 28 set forth in s. 376.30, the Legislature finds and declares 29 that: 30 31 1 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1559 554-158-97 1 (a) Significant quantities of drycleaning solvents 2 have been discharged in the past at drycleaning facilities as 3 part of the normal operation of these facilities. 4 (b) Discharges of drycleaning solvents at such 5 drycleaning facilities have occurred and are occurring, and 6 pose a significant threat to the quality of the groundwaters 7 and inland surface waters of this state. 8 (c) Where contamination of the groundwater or surface 9 water has occurred, remedial measures have often been delayed 10 for long periods while determinations as to liability and the 11 extent of liability are made, and such delays result in the 12 continuation and intensification of the threat to the public 13 health, safety, and welfare; in greater damage to the 14 environment; and in significantly higher costs to contain and 15 remove the contamination. 16 (d) Adequate financial resources must be readily 17 available to provide for the expeditious supply of safe and 18 reliable alternative sources of potable water to affected 19 persons and to provide a means for investigation and 20 rehabilitation of contaminated sites without delay. 21 (e) It is the intent of ss. 376.301-376.75 to 22 encourage real property owners to undertake the voluntary 23 cleanup of property contaminated with drycleaning solvents and 24 that the immunity provisions of this section and all other 25 available defenses shall be construed in favor of real 26 property owners. 27 (3) REHABILITATION LIABILITY.--In accordance with the 28 eligibility provisions of this section, no real property owner 29 or no person who owns or operates, or who otherwise could be 30 liable as a result of the operation of, a drycleaning facility 31 or a wholesale supply facility shall be subject to 2 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1559 554-158-97 1 administrative or judicial action brought by or on behalf of 2 any state or local government or agency thereof or by or on 3 behalf of any person to compel rehabilitation or pay for the 4 costs of rehabilitation of environmental contamination 5 resulting from the discharge of drycleaning solvents. Subject 6 to the delays that may occur as a result of the prioritization 7 of sites under this section for any qualified site, costs for 8 activities described in paragraph (2)(b) shall be absorbed at 9 the expense of the drycleaning facility restoration funds, 10 without recourse to reimbursement or recovery from the real 11 property owner or the owner or operator of the drycleaning 12 facility or the wholesale supply facility. 13 (a) With regard to drycleaning facilities or wholesale 14 supply facilities that have operated as drycleaning facilities 15 or wholesale supply facilities on or after October 1, 1994, 16 any such drycleaning facility or wholesale supply facility at 17 which there exists contamination by drycleaning solvents shall 18 be eligible under this subsection regardless of when the 19 drycleaning contamination was discovered, provided that the 20 drycleaning facility or the wholesale supply facility: 21 1. Has been registered with the department; 22 2. Is determined by the department to be in compliance 23 with the department's rules regulating drycleaning solvents, 24 drycleaning facilities, or wholesale supply facilities on or 25 after November 19, 1980; 26 3. Was Has not been operated in a grossly negligent 27 manner at any time on or after November 19, 1980; 28 4. Has not been identified to qualify for listing, nor 29 is listed, on the National Priority List pursuant to the 30 Comprehensive Environmental Response, Compensation, and 31 3 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1559 554-158-97 1 Liability Act of 1980 as amended by the Superfund Amendments 2 and Reauthorization Act of 1986, and as subsequently amended; 3 5. Is not under an order from the United States 4 Environmental Protection Agency pursuant to s. 3008(h) of the 5 Resource Conservation and Recovery Act as amended (42 U.S.C.A. 6 s. 6928(h)), or has not obtained and is not required to obtain 7 a permit for the operation of a hazardous waste treatment, 8 storage, or disposal facility, a postclosure permit, or a 9 permit pursuant to the federal Hazardous and Solid Waste 10 Amendments of 1984; 11 12 and provided that the real property owner or the owner or 13 operator of the drycleaning facility or the wholesale supply 14 facility has not willfully concealed the discharge of 15 drycleaning solvents and has remitted all taxes due pursuant 16 to ss. 376.70 and 376.75, has provided documented evidence of 17 contamination by drycleaning solvents as required by the rules 18 developed pursuant to this section, has reported the 19 contamination prior to December 31, 2005, and has not denied 20 the department access to the site. 21 (b) With regard to drycleaning facilities or wholesale 22 supply facilities that cease to be operated as drycleaning 23 facilities or wholesale supply facilities prior to October 1, 24 1994, such facilities, at which there exists contamination by 25 drycleaning solvents, shall be eligible under this subsection 26 regardless of when the contamination was discovered, provided 27 that the drycleaning facility or wholesale supply facility: 28 1. Was not determined by the department, within a 29 reasonable time after the department's discovery, to have been 30 out of compliance with the department rules regulating 31 drycleaning solvents, drycleaning facilities, or wholesale 4 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1559 554-158-97 1 supply facilities implemented which were in effect at the time 2 of operation at any time on or after November 19, 1980; 3 2. Was not operated in a grossly negligent manner at 4 any time on or after November 19, 1980; 5 3. Has not been identified to qualify for listing, nor 6 is listed, on the National Priority List pursuant to the 7 Comprehensive Environmental Response, Compensation, and 8 Liability Act of 1980, as amended by the Superfund Amendments 9 and Reauthorization Act of 1986, and as subsequently amended; 10 and 11 4. Is not under an order from the United States 12 Environmental Protection Agency pursuant to s. 3008(h) of the 13 Resource Conservation and Recovery Act, as amended, or has not 14 obtained and is not required to obtain a permit for the 15 operation of a hazardous waste treatment, storage, or disposal 16 facility, a postclosure permit, or a permit pursuant to the 17 federal Hazardous and Solid Waste Amendments of 1984; 18 19 and provided that the real property owner or the owner or 20 operator of the drycleaning facility or the wholesale supply 21 facility has not willfully concealed the discharge of 22 drycleaning solvents, has provided documented evidence of 23 contamination by drycleaning solvents as required by the rules 24 developed pursuant to this section, has reported the 25 contamination prior to December 31, 2005, and has not denied 26 the department access to the site. 27 (c) For purposes of determining eligibility, a 28 drycleaning facility or wholesale supply facility was operated 29 in a grossly negligent manner if the department determines 30 that the owner or operator of the drycleaning facility or the 31 wholesale supply facility: 5 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1559 554-158-97 1 1. Willfully discharged drycleaning solvents onto the 2 soils or into the waters of the state after November 19, 1980, 3 with the knowledge, intent, and purpose that the discharge 4 would result in harm to the environment or to public health or 5 result in a violation of the law; 6 2. Willfully concealed a discharge of drycleaning 7 solvents with the knowledge, intent, and purpose that the 8 concealment would result in harm to the environment or to 9 public health or result in a violation of the law; or 10 3. Willfully violated a local, state, or federal law 11 or rule regulating the operation of drycleaning facilities or 12 wholesale supply facilities with the knowledge, intent, and 13 purpose that the act would result in harm to the environment 14 or to public health. For purposes of this subsection, the 15 willful discharge of drycleaning solvents onto the soils or 16 into the waters of the state after November 19, 1980, or the 17 willful concealment of a discharge of drycleaning solvents, or 18 a willful violation of local, state, or federal law or rule 19 regulating the operation of drycleaning facilities or 20 wholesale supply facilities shall be construed to be gross 21 negligence in the operation of a drycleaning facility or 22 wholesale supply facility. 23 (k) The owner, operator, and real property owner, or 24 agent of the real property owner, may apply for the 25 Drycleaning Contamination Cleanup Program by jointly 26 submitting a completed application package to the department 27 pursuant to the rules adopted by the department. If the 28 application cannot be jointly submitted, then the applicant 29 shall provide notice of the application to other interested 30 parties. After reviewing the completed application package, 31 the department shall notify the applicant in writing as to 6 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1559 554-158-97 1 whether the drycleaning facility or wholesale supply facility 2 is eligible for the program. If the department denies 3 eligibility for a completed application package, the notice of 4 denial shall specify the reasons for the denial, including 5 specific and substantive findings of fact, and shall 6 constitute agency action subject to the provisions of chapter 7 120. For the purposes of ss. 120.569 and 120.57, the real 8 property owner and the owner and operator of a drycleaning 9 facility or wholesale supply facility which is the subject of 10 a decision by the department with regard to eligibility shall 11 be deemed to be parties whose substantial interests are 12 determined by the department's decision to approve or deny 13 eligibility. 14 (p) Nothing in this subsection precludes the 15 department from considering information and documentation 16 provided by private consultants, local government programs, 17 federal agencies, or any individual which is relevant to an 18 eligibility determination if the department provides the 19 applicant with reasonable access to the information and its 20 origin. 21 (9) A real property owner is authorized to conduct 22 site rehabilitation activities at any time pursuant to 23 department rules, either through agents of the real property 24 owner or through responsible response action contractors or 25 subcontractors, whether or not the facility has been 26 determined by the department to be eligible for the 27 drycleaning solvent cleanup program. A real property owner or 28 any other person party that conducts site rehabilitation may 29 not seek cost recovery from the department or the Water 30 Quality Assurance Trust Fund for any such rehabilitation 31 activities. A real property owner that voluntarily conducts 7 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1559 554-158-97 1 such site rehabilitation, whether commenced before or on or 2 after October 1, 1995, shall be immune from liability to any 3 person, state or local government, or agency thereof to compel 4 or enjoin site rehabilitation or pay for the cost of 5 rehabilitation of environmental contamination, or to pay any 6 fines or penalties regarding rehabilitation, as soon so long 7 as the real property owner: 8 (a) Conducts contamination assessment and site 9 rehabilitation consistent with state and federal laws and 10 rules; 11 (b) Conducts such site rehabilitation in a timely 12 manner according to a rehabilitation schedule approved by the 13 department; and 14 (c) Does not deny the department access to the site. 15 Upon completion of such site rehabilitation activities in 16 accordance with the requirements of this subsection, the 17 department shall render a site rehabilitation completion 18 order. 19 20 This immunity shall continue to apply to any real property 21 owner who transfers, conveys, leases, or sells property on 22 which a drycleaning facility is located so long as the 23 voluntary cleanup activities continue. 24 Section 2. Subsection (6) of section 376.308, Florida 25 Statutes, 1996 Supplement, is amended to read: 26 376.308 Liabilities and defenses of facilities.-- 27 (6) Nothing herein shall be construed to affect 28 cleanup program eligibility under ss. 376.305(6), 376.3071, 29 376.3072, 376.3078, and 376.3079. Except as otherwise 30 expressly provided in this chapter, nothing in this chapter 31 8 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 1559 554-158-97 1 shall affect, void, or defeat any immunity of any real 2 property owner under s. 376.3078. 3 Section 3. Paragraph (a) of subsection (5) of section 4 376.313, Florida Statutes, is amended to read: 5 376.313 Nonexclusiveness of remedies and individual 6 cause of action for damages under ss. 376.30-376.319.-- 7 (5)(a) In any civil action against the owner or 8 operator of a drycleaning facility or a wholesale supply 9 facility, or the owner of the real property on which such 10 facility is located, if such facility is not eligible under s. 11 376.3078(3) 376.3978(3), for damages arising from the 12 discharge of drycleaning solvents from a drycleaning facility 13 or wholesale supply facility, the provisions of subsection (3) 14 shall not apply if it can be proven that, at the time of the 15 discharge the alleged damages resulted solely from a discharge 16 from a drycleaning facility or wholesale supply facility that 17 was in compliance with department rules regulating drycleaning 18 facilities or wholesale supply facilities. 19 Section 4. This act shall take effect upon becoming a 20 law. 21 22 ***************************************** 23 HOUSE SUMMARY 24 Clarifies provisions relating to the drycleaning solvent 25 cleanup program. Protects real property owner's immunity from liability for specified costs, fines, and penalties. 26 27 28 29 30 31 9