Senate Bill sb1952
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Florida Senate - 2001 SB 1952
By Senator Garcia
39-852-01
1 A bill to be entitled
2 An act relating to site rehabilitation of
3 contaminated sites; creating s. 376.30701,
4 F.S.; extending application of risk-based
5 corrective-action principles to all
6 contaminated sites resulting from a discharge
7 of pollutants or hazardous substances;
8 providing for contamination cleanup criteria
9 that incorporate risk-based corrective-action
10 principles to be adopted by rule; providing
11 clarification that cleanup criteria do not
12 apply to offsite relocation or treatment;
13 specifying the conditions under which further
14 rehabilitation may be required; creating s.
15 376.30702, F.S.; creating the State-Owned Lands
16 Cleanup Program to address site rehabilitation
17 of contaminated state-owned lands; stating
18 legislative findings and intent; directing the
19 Department of Environmental Protection to use
20 existing site-priority ranking and cleanup
21 criteria; establishing liability protection;
22 specifying conditions under which the
23 department must seek cost recovery; providing
24 exclusions; amending s. 199.1055, F.S.;
25 providing for tax credits; providing a time
26 period for use of tax credits; amending s.
27 220.1845, F.S.; providing for tax credits;
28 providing a time period for use of tax credits;
29 allowing taxpayers to claim credit on a
30 consolidated return up to the amount of the
31 consolidated group's tax liability; amending s.
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1 376.30781, F.S.; providing for tax credits;
2 prescribing the tax-credit application time
3 period; revising the deadline; prohibiting
4 placeholder applications; cross-referencing
5 sections governing transferability of tax
6 credits; eliminating obsolete provisions;
7 providing an effective date.
8
9 Be It Enacted by the Legislature of the State of Florida:
10
11 Section 1. Section 376.30701, Florida Statutes, is
12 created to read:
13 376.30701 Application of risk-based corrective-action
14 principles to contaminated sites; applicability; legislative
15 intent; rulemaking authority; contamination cleanup criteria;
16 limitations; reopeners.--
17 (1) APPLICABILITY.--
18 (a) This section does not create or establish any new
19 liability for site rehabilitation at contaminated sites. This
20 section is intended to describe a risk-based corrective-action
21 process to be applied at sites where legal responsibility for
22 site rehabilitation exists pursuant to other provisions of
23 chapter 376 or chapter 403.
24 (b) This section applies to all contaminated sites
25 resulting from a discharge of pollutants or hazardous
26 substances where legal responsibility for site rehabilitation
27 exists pursuant to other provisions of chapter 376 or chapter
28 403, except for those contaminated sites subject to the
29 risk-based corrective-action cleanup criteria established for
30 the petroleum, brownfields, and drycleaning programs pursuant
31 to ss. 376.3071, 376.81, and 376.3078.
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1 (c) This section applies to a variety of site
2 rehabilitation scenarios including, but not limited to, site
3 rehabilitation conducted voluntarily, conducted pursuant to
4 the department's enforcement authority, or conducted as a
5 state-managed cleanup by the department.
6 (d) This section, and any rules adopted pursuant
7 thereto, shall apply retroactively to all existing
8 contaminated sites where legal responsibility for site
9 rehabilitation exists pursuant to other provisions of chapter
10 376 or chapter 403, except to those sites for which cleanup
11 target levels have been accepted by the department in an
12 approved technical document, current permit, or other written
13 agreement and to those sites that have received a No Further
14 Action Order or a Site Rehabilitation Completion Order from
15 the department. However, the person responsible for site
16 rehabilitation may elect to have the provisions of this
17 section, including cleanup target levels established pursuant
18 thereto, apply in lieu of those in an approved technical
19 document, current permit, or other written agreement.
20 (e) This section may not be construed to prohibit or
21 delay actions to respond to a discharge of pollutants or
22 hazardous substances before any contact with the department.
23 The risk-based corrective-action process contemplates
24 appropriate emergency-response action or initial remedial
25 action before any formal application of the risk-based
26 corrective-action process involving site assessment, and if
27 required, subsequent remedial action. Any emergency response
28 actions or initial remedial actions must be conducted in
29 accordance with all applicable federal, state, and local laws
30 and regulations.
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1 (2) INTENT; RULEMAKING AUTHORITY; CLEANUP
2 CRITERIA.--It is the intent of the Legislature to protect the
3 health of all people under actual circumstances of exposure.
4 By July 1, 2002, the secretary of the department shall
5 establish criteria by rule for the purpose of determining, on
6 a site-specific basis, the rehabilitation program tasks that
7 comprise a site rehabilitation program, including a voluntary
8 site rehabilitation program, and the level at which a
9 rehabilitation program task and a site rehabilitation program
10 may be considered completed. In establishing these rules, the
11 department shall apply, to the maximum extent feasible, a
12 risk-based corrective-action process to achieve protection of
13 human health and safety and the environment in a
14 cost-effective manner based on the principles set forth in
15 this subsection. These rules must prescribe a phased
16 risk-based corrective-action process that is iterative and
17 that tailors site rehabilitation tasks to site-specific
18 conditions and risk. The department and the person responsible
19 for site rehabilitation are encouraged to establish decision
20 points at which risk-management decisions will be made. The
21 department shall provide an early decision, when requested,
22 regarding applicable exposure factors and a risk-management
23 approach based on the current and future land use at the site.
24 These rules must also include protocols for the use of natural
25 attenuation, the use of institutional and engineering
26 controls, and the issuance of "no further action" letters. The
27 criteria for determining what constitutes a rehabilitation
28 program task or completion of a site rehabilitation program
29 task or site rehabilitation program, including a voluntary
30 site rehabilitation program, must:
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1 (a) Consider the current exposure and potential risk
2 of exposure to humans and the environment, including multiple
3 pathways of exposure. The physical, chemical, and biological
4 characteristics of each contaminant must be considered in
5 order to determine the feasibility of risk-based
6 corrective-action assessment.
7 (b) Establish the point of compliance at the source of
8 the contamination. However, the department may temporarily
9 move the point of compliance to the boundary of the property,
10 or to the edge of the plume when the plume is within the
11 property boundary, while cleanup, including cleanup through
12 natural attenuation processes in conjunction with appropriate
13 monitoring, is proceeding. The department may also, pursuant
14 to criteria provided for in this section, temporarily extend
15 the point of compliance beyond the property boundary with
16 appropriate monitoring, if such extension is needed to
17 facilitate natural attenuation or to address the current
18 conditions of the plume, provided that human health, public
19 safety, and the environment are protected. When temporarily
20 extending the point of compliance beyond the property
21 boundary, it may not be extended further than the lateral
22 extent of the plume, if known, at the time of execution of a
23 cleanup agreement, if required, or the lateral extent of the
24 plume as defined at the time of site assessment. Temporary
25 extension of the point of compliance beyond the property
26 boundary, as provided in this paragraph, must include actual
27 notice by the person responsible for site rehabilitation to
28 local governments and the owners of any property into which
29 the point of compliance is allowed to extend and constructive
30 notice to residents and business tenants of the property into
31 which the point of compliance is allowed to extend. Persons
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1 receiving notice pursuant to this paragraph must be given the
2 opportunity to comment within 30 days after receipt of the
3 notice.
4 (c) Ensure that the site-specific cleanup goal is that
5 all contaminated sites being cleaned up under this section
6 ultimately achieve the applicable cleanup target levels
7 provided in this subsection. In the circumstances provided
8 below, and after constructive notice and opportunity to
9 comment within 30 days after receipt of the notice to local
10 government, to owners of any property into which the point of
11 compliance is allowed to extend, and to residents on any
12 property into which the point of compliance is allowed to
13 extend, the department may allow concentrations of
14 contaminants to temporarily exceed the applicable cleanup
15 target levels while cleanup, including cleanup through natural
16 attenuation processes in conjunction with appropriate
17 monitoring, is proceeding, if human health, public safety, and
18 the environment are protected.
19 (d) Allow the use of institutional or engineering
20 controls at contaminated sites being cleaned up under this
21 section, where appropriate, to eliminate or control the
22 potential exposure to contaminants of humans or the
23 environment. The use of controls must be preapproved by the
24 department and only after constructive notice and opportunity
25 to comment within 30 days after receipt of notice is provided
26 to local governments, to owners of any property into which the
27 point of compliance is allowed to extend, and to residents on
28 any property into which the point of compliance is allowed to
29 extend. When institutional or engineering controls are
30 implemented to control exposure, the removal of the controls
31 must have prior department approval and must be accompanied by
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1 the resumption of active cleanup, or other approved controls,
2 unless cleanup target levels under this section have been
3 achieved.
4 (e) Consider the additive effects of contaminants.
5 The synergistic and antagonistic effects must also be
6 considered when the scientific data become available.
7 (f) Take into consideration individual site
8 characteristics, which includes, but is not limited to, the
9 current and projected use of the affected groundwater and
10 surface water in the vicinity of the site, current and
11 projected land uses of the area affected by the contamination,
12 the exposed population, the degree and extent of
13 contamination, the rate of contaminant migration, the apparent
14 or potential rate of contaminant degradation through natural
15 attenuation processes, the location of the plume, and the
16 potential for further migration in relation to site property
17 boundaries.
18 (g) Apply state water quality standards as follows:
19 1. Cleanup target levels for each contaminant found in
20 groundwater must be the applicable state water quality
21 standards. Where such standards do not exist, the cleanup
22 target levels for groundwater must be based on the minimum
23 criteria specified in department rule. The department shall
24 apply the following, as appropriate, in establishing the
25 applicable cleanup target levels: calculations using a
26 lifetime cancer risk level of 1.0E-6; a hazard index of 1 or
27 less; the best achievable detection limit; and nuisance,
28 organoleptic, and aesthetic considerations. However, the
29 department shall not require site rehabilitation to achieve a
30 cleanup target level for any individual contaminant that is
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1 more stringent than the site-specific, naturally occurring
2 background concentration for that contaminant.
3 2. Where surface waters are exposed to contaminated
4 groundwater, the cleanup target levels for the contaminants
5 must be based on the more protective of the groundwater or
6 surface water standards as established by department rule. The
7 point of measuring compliance with the surface water standards
8 shall be in the groundwater immediately adjacent to the
9 surface water body.
10 3. Using risk-based corrective-action principles, the
11 department shall approve alternative cleanup target levels in
12 conjunction with institutional and engineering controls, if
13 needed, based upon an applicant's demonstration, using
14 site-specific data, modeling results, risk-assessment studies,
15 risk-reduction techniques, or a combination thereof, that
16 human health, public safety, and the environment are protected
17 to the same degree as provided in subparagraphs 1. and 2.
18 When a state water-quality standard is applicable, a deviation
19 may not result in the application of cleanup target levels
20 more stringent than the standard. In determining whether it is
21 appropriate to establish alternative cleanup target levels at
22 a site, the department must consider the effectiveness of any
23 source removal that has been completed at the site and the
24 practical likelihood of the use of low yield or poor quality
25 groundwater, the use of groundwater near marine surface water
26 bodies, the current and projected use of the affected
27 groundwater in the vicinity of the site, or the use of
28 groundwater in the immediate vicinity of the contaminated
29 area, where it has been demonstrated that the groundwater
30 contamination is not migrating away from such localized
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1 source, provided human health, public safety, and the
2 environment are protected.
3 (h) Provide for the department to issue a "no further
4 action order," with conditions including, but not limited to,
5 the use of institutional or engineering controls where
6 appropriate, when alternative cleanup target levels
7 established pursuant to subparagraph (g)3. have been achieved,
8 or when the person responsible for site rehabilitation
9 demonstrates that the cleanup target level is unachievable
10 within available technologies. Before issuing such an order,
11 the department shall consider the feasibility of an
12 alternative site-rehabilitation technology at the contaminated
13 site.
14 (i) Establish appropriate cleanup target levels for
15 soils.
16 1. In establishing soil cleanup target levels for
17 human exposure to each contaminant found in soils from the
18 land surface to 2 feet below land surface, the department
19 shall apply the following, as appropriate: calculations using
20 a lifetime cancer risk level of 1.0E-6; a hazard index of 1 or
21 less; and the best achievable detection limit. However, the
22 department may not require site rehabilitation to achieve a
23 cleanup target level for an individual contaminant which is
24 more stringent than the site-specific, naturally occurring
25 background concentration for that contaminant. Institutional
26 controls or other methods must be used to prevent human
27 exposure to contaminated soils more than 2 feet below the land
28 surface. Any removal of such institutional controls requires
29 that such contaminated soils be remediated.
30 2. Leachability-based soil target levels must be based
31 on protection of the groundwater cleanup target levels or the
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1 alternative cleanup target levels for groundwater established
2 pursuant to this paragraph, as appropriate. Source removal and
3 other cost-effective alternatives that are technologically
4 feasible must be considered in achieving the leachability soil
5 target levels established by the department. The leachability
6 goals do not apply if the department determines, based upon
7 individual site characteristics and in conjunction with
8 institutional and engineering controls, if needed, that
9 contaminants will not leach into the groundwater at levels
10 that pose a threat to human health, public safety, or the
11 environment.
12 3. Using risk-based corrective-action principles, the
13 department shall approve alternative cleanup target levels in
14 conjunction with institutional and engineering controls, if
15 needed, based upon an applicant's demonstration, using
16 site-specific data, modeling results, risk-assessment studies,
17 risk-reduction techniques, or a combination thereof, that
18 human health, public safety, and the environment are protected
19 to the same degree as provided in subparagraphs 1. and 2.
20
21 The department shall require source removal as a
22 risk-reduction measure, if warranted and cost-effective. Once
23 source removal at a site has been completed, the department
24 shall reevaluate the site to determine the degree of active
25 cleanup needed to continue. Further, the department shall
26 determine whether the reevaluated site qualifies for
27 monitoring only or if no further action is required to
28 rehabilitate the site. If additional site rehabilitation is
29 necessary to reach "no further action" status, the department
30 is encouraged to use natural attenuation and monitoring where
31 site conditions warrant.
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1 (3) LIMITATIONS.--The cleanup criteria established
2 under this section govern only site rehabilitation activities
3 occurring at the contaminated site. Removal of contaminated
4 media from a site for offsite relocation or treatment must be
5 in accordance with all applicable federal, state, and local
6 laws and regulations.
7 (4) REOPENERS.--Upon completion of site rehabilitation
8 in compliance with subsection (2), additional site
9 rehabilitation is not required unless it is demonstrated:
10 (a) That fraud was committed in demonstrating site
11 conditions or completion of site rehabilitation;
12 (b) That new information confirms the existence of an
13 area of previously unknown contamination that exceeds the
14 site-specific rehabilitation levels established in accordance
15 with subsection (2), or that otherwise poses the threat of
16 real and substantial harm to public health, safety, or the
17 environment;
18 (c) That the remediation efforts failed to achieve the
19 site rehabilitation criteria established under this section;
20 (d) That the level of risk is increased beyond the
21 acceptable risk established under subsection (2) due to
22 substantial changes in exposure conditions, such as a change
23 in land use from nonresidential to residential use. Any person
24 who changes the land use of the site, thus causing the level
25 of risk to increase beyond the acceptable risk level, may be
26 required by the department to undertake additional remediation
27 measures to assure that human health, public safety, and the
28 environment are protected consistent with this section; or
29 (e) That a new discharge of pollutants or hazardous
30 substances or disposal of solid waste or hazardous waste
31 occurs at the site subsequent to the issuance of a "no further
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1 action" letter or site rehabilitation completion order
2 associated with the original contamination being addressed
3 under this section.
4 Section 2. Section 376.30702, Florida Statutes, is
5 created to read:
6 376.30702 State-Owned-Lands Cleanup Program; findings;
7 intent; purpose; program requirements; limited liability
8 protection; cost recovery; exclusions.--
9 (1) FINDINGS; INTENT.--In addition to the legislative
10 findings set forth in s. 376.30, the Legislature finds and
11 declares that:
12 (a) Significant quantities of pollutants or hazardous
13 substances have been discharged in the past on state-owned
14 lands. Generally, these discharges have occurred as part of
15 the normal operation of facilities that existed on the
16 property. Many of these discharges occurred prior to the state
17 acquiring title to the property, or the discharges resulted
18 from the acts of tenants or lessees of the state-owned lands.
19 (b) These discharges of pollutants and hazardous
20 substances on state-owned lands may pose a significant threat
21 to the quality of the groundwaters and inland surface waters
22 of this state.
23 (c) Where contamination of the groundwater or surface
24 water has occurred, remedial measures have often been delayed
25 for long periods while determinations as to liability and the
26 extent of liability have been made, and such delays have
27 resulted in the continuation and intensification of the threat
28 to the public health, safety, and welfare; in greater damage
29 to the environment; and in potentially higher costs to contain
30 and remove the contamination.
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1 (d) Adequate financial resources must be readily
2 available to provide for the expeditious supply of safe and
3 reliable alternative sources of potable water to affected
4 persons and to provide a means for investigation and
5 rehabilitation without delay of contaminated sites on
6 state-owned lands.
7 (e) Site rehabilitation at contaminated sites on
8 state-owned lands should be based on the actual risk that
9 contamination may pose to the environment and public health,
10 taking into account current and future land and water use and
11 the degree to which contamination may spread and place the
12 public or the environment at risk.
13 (2) CREATION; PURPOSES OF PROGRAM.--
14 (a) There is created the Florida State-Owned-Lands
15 Cleanup Program to be administered by the department. To
16 encourage detection, reporting, and cleanup of contamination
17 on state-owned lands, the department shall, within the
18 guidelines established in this section, implement a cleanup
19 program to provide state-funded and state-managed site
20 rehabilitation for all state-owned property contaminated by
21 discharges of pollutants or hazardous substances that are
22 reported to the department. It is not the intent of this
23 program to provide funding for environmental compliance for
24 ongoing operations on state-owned lands.
25 (b) Continuation of this program is subject to an
26 annual appropriation from the Legislature. Continued state
27 funding will not be considered an entitlement or a vested
28 right under this section. The department shall not obligate
29 funds in excess of the annual appropriation for this program.
30 (c) Whenever, in its determination, incidents of
31 contamination on state-owned lands caused by pollutants or
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1 hazardous substances may pose a threat to the environment or
2 the public health, safety, or welfare, the department shall
3 obligate moneys available under this section to provide for:
4 1. Prompt investigation and assessment of the
5 contaminated site.
6 2. Expeditious treatment, restoration, or replacement
7 of potable water supplies as provided in s. 376.30(3)(c)1.
8 3. Rehabilitation of contaminated sites, which shall
9 consist of rehabilitation of affected soil, groundwater,
10 sediment and surface waters, using the most cost-effective
11 alternative that is technologically feasible and reliable and
12 that provides adequate protection of the public health,
13 safety, and welfare and minimizes environmental damage, in
14 accordance with the rehabilitation criteria established by the
15 department under s. 376.30701, except that this subsection
16 must not be construed to authorize the department to obligate
17 funds for payment of costs that may be associated with, but
18 are not integral to, site rehabilitation.
19 4. Maintenance and monitoring of contaminated sites.
20 5. Inspection and supervision of activities described
21 in this subsection.
22 6. Payment of expenses incurred by the department in
23 its efforts to obtain from responsible parties the payment or
24 recovery of reasonable costs resulting from the activities
25 described in this subsection.
26 7. Payment of any other reasonable costs of
27 administration, including those administrative costs incurred
28 by the Department of Health in providing field and laboratory
29 services, toxicological risk assessment, and other assistance
30 to the department in the investigation of drinking water
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1 contamination complaints and costs associated with public
2 information and education activities.
3 8. Reasonable costs of restoring property as nearly as
4 practicable to the conditions that existed prior to activities
5 associated with contamination assessment or remedial action.
6 (3) SITE PRIORITY RANKING AND CLEANUP CRITERIA.--
7 (a) The department shall determine the priority ranking
8 of all known contaminated sites on state-owned lands using the
9 criteria listed in s. 376.3078(7) and (8), except for s.
10 376.3078(7)(e). In applying s. 376.3078(8)(h), the department
11 shall consider all pollutants and hazardous substances. It is
12 the intent of the Legislature that site rehabilitation be
13 conducted first at those sites that pose the greatest threat
14 to human health and the environment, within the availability
15 of funds appropriated annually for this program. However, this
16 subsection must not be construed to restrict the department
17 from modifying the priority status of a rehabilitation site
18 where conditions warrant, taking into consideration the actual
19 distance between the contamination site and groundwater or
20 surface water receptors or other factors that affect the risk
21 of exposure to pollutants and hazardous substances.
22 (b) The department shall conduct site rehabilitation
23 at contaminated sites being cleaned up under this program
24 using the cleanup criteria established in s. 376.30701 and
25 chapter 62-777, Florida Administrative Code, as that chapter
26 may hereafter be amended.
27 (c) It is recognized that restoration of groundwater
28 resources contaminated with pollutants or hazardous substances
29 may not be achievable using currently available technology. If
30 the use of available technology is not expected to achieve
31 water quality standards, the department may use innovative
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1 technology that has been field-tested and that has engineering
2 and cost data available.
3 (d) This subsection may not be construed to restrict
4 the department from temporarily postponing completion of any
5 site rehabilitation activities at a contaminated site on
6 state-owned lands for which funds are being expended under
7 this section whenever the postponement is considered necessary
8 in order to make funds available for rehabilitation of another
9 contamination site on state-owned lands having a higher
10 priority status.
11 (e) Regardless of a site's priority ranking, the
12 department may temporarily postpone site rehabilitation at a
13 contaminated site on state-owned lands for which federal
14 funding may be available pursuant to the Formerly Used Defense
15 Sites Program. The department, at its discretion, may proceed
16 with state-funded cleanup of such sites if the likelihood of
17 timely federal response is low.
18 (4) LIMITED LIABILITY PROTECTION.--
19 (a) Except at contaminated sites subject to site
20 rehabilitation requirements under a federally delegated
21 program, the department may not compel any state agency that
22 controls or manages state-owned lands that are contaminated
23 with pollutants or hazardous substances to conduct site
24 rehabilitation at a contaminated site that has been reported
25 to the department pursuant to paragraph (2)(a). Further,
26 notwithstanding subsection (5), the department may not pursue
27 cost recovery from any state agency for site rehabilitation
28 costs incurred to clean up state-owned lands that are
29 contaminated with pollutants or hazardous substances.
30 (b) Except as provided in paragraph (a), this section
31 does not affect the department's ability or authority to
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1 pursue enforcement against any person who may be liable for
2 site rehabilitation with respect to a contaminated site on
3 state-owned lands.
4 (c) This subsection does not affect the ability or
5 authority to seek contribution from any person who may be
6 liable with respect to a contaminated site on state-owned
7 lands.
8 (d) This section does not subject the department to
9 liability for any action that may be required of the property
10 owner or the owner or operator of a facility on state-owned
11 lands by any private party or any local, state, or Federal
12 Government entity.
13 (5) DEPARTMENTAL DUTY TO SEEK RECOVERY AND
14 REIMBURSEMENT.--
15 (a) Except as provided in subsection (4) and as
16 otherwise provided by law, the department shall recover from
17 any person causing or having caused the discharge of
18 pollutants or hazardous substances on state-owned lands,
19 jointly and severally pursuant to s. 376.308, all sums owed or
20 expended for site rehabilitation at a site being cleaned up in
21 the State-Owned Lands Cleanup Program, except that the
22 department may decline to pursue such recovery if it finds
23 that the amount involved is too small or the likelihood of
24 recovery is too uncertain.
25 (b) Except as provided in subsection (4) and as
26 otherwise provided by law, it is the duty of the department in
27 administering the State-Owned Lands Cleanup Program to
28 diligently pursue the recovery of any sum expended from the
29 fund for site rehabilitation in accordance with the provisions
30 of this section, unless the department finds that the amount
31 involved is too small or the likelihood of recovery is too
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1 uncertain. For the purposes of s. 95.11, the limitation period
2 within which to institute an action to recover such sums
3 begins on the last date on which any such sums were expended
4 and not the date that the discharge occurred.
5 (c) In any action brought under this subsection, a
6 person against whom the department pursues cost recovery is
7 not required to reimburse the department for that percentage
8 of the site rehabilitation costs which the presiding judicial
9 officer apportions to a state agency that has received limited
10 liability protection pursuant to subsection (4).
11 (6) EXCLUSIONS.--This section does not apply to the
12 abatement of phosphorus pollution that the state is addressing
13 under ss. 373.4592, 373.4595, and 373.461.
14 Section 3. Subsection (1) of section 199.1055, Florida
15 Statutes, is amended to read:
16 199.1055 Contaminated site rehabilitation tax
17 credit.--
18 (1) AUTHORIZATION FOR TAX CREDIT; LIMITATIONS.--
19 (a) A credit in the amount of 35 percent of the costs
20 of voluntary cleanup activity that is integral to site
21 rehabilitation at the following sites is available allowed
22 against any tax due for a taxable year under s. 199.032, less
23 any credit allowed by s. 220.68 for that year:
24 1. A drycleaning-solvent-contaminated site eligible
25 for state-funded site rehabilitation under s. 376.3078(3);
26 2. A drycleaning-solvent-contaminated site at which
27 cleanup is undertaken by the real property owner pursuant to
28 s. 376.3078(11), if the real property owner is not also, and
29 has never been, the owner or operator of the drycleaning
30 facility where the contamination exists; or
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1 3. A brownfield site in a designated brownfield area
2 under s. 376.80.
3 (b) A tax credit applicant taxpayer, or multiple tax
4 credit applicants taxpayers working jointly to clean up a
5 single site, may not be granted receive more than $250,000 per
6 year in tax credits for each site voluntarily rehabilitated.
7 Multiple tax credit applicants taxpayers shall be granted
8 receive tax credits in the same proportion as their
9 contribution to payment of cleanup costs. Subject to the same
10 conditions and limitations as provided in this section, a
11 municipality, or county, or other tax credit applicant that
12 which voluntarily rehabilitates a site may receive not more
13 than $250,000 per year in tax credits which it can
14 subsequently transfer subject to the provisions in paragraph
15 (g).
16 (c) If the credit granted under this section is not
17 fully used in any one year because of insufficient tax
18 liability on the part of the tax credit applicant taxpayer,
19 the unused amount may be carried forward for a period not to
20 exceed 5 years. The credit expires 5 years after the date the
21 credit is granted under this section and may not thereafter be
22 used. However, if during the 5-year period the credit is
23 transferred, in whole or in part, under paragraph (g), each
24 transferee has 5 years from the date of transfer to use its
25 credit.
26 (d) A taxpayer that receives a credit under s.
27 220.1845 is ineligible to receive credit under this section in
28 a given tax year.
29 (e) A tax credit applicant taxpayer that receives
30 state-funded site rehabilitation pursuant to s. 376.3078(3)
31 for rehabilitation of a drycleaning-solvent-contaminated site
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1 is ineligible to receive credit under this section for costs
2 incurred by the tax credit applicant taxpayer in conjunction
3 with the rehabilitation of that site during the same time
4 period that state-administered site rehabilitation was
5 underway.
6 (f) The total amount of the tax credits which may be
7 granted under this section and s. 220.1845 is $2 million
8 annually.
9 (g)1. Tax credits that may be available under this
10 section to an entity eligible under s. 376.30781 may be
11 transferred after a merger or acquisition to the surviving or
12 acquiring entity and used in the same manner with the same
13 limitations.
14 2. The entity or its surviving or acquiring entity as
15 described in subparagraph 1., may transfer any unused credit
16 in whole or in units of no less than 25 percent of the
17 remaining credit. The entity acquiring such credit may use it
18 in the same manner and with the same limitation as described
19 in this section. Such transferred credits may not be
20 transferred again although they may succeed to a surviving or
21 acquiring entity subject to the same conditions and
22 limitations as described in this section.
23 3. In the event the credit provided for under this
24 section is reduced either as a result of a determination by
25 the Department of Environmental Protection or an examination
26 or audit by the Department of Revenue, such tax deficiency
27 shall be recovered from the first entity, or the surviving or
28 acquiring entity, to have claimed such credit up to the amount
29 of credit taken. Any subsequent deficiencies shall be
30 assessed against any entity acquiring and claiming such
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1 credit, or in the case of multiple succeeding entities in the
2 order of credit succession.
3 (h) In order to encourage completion of site
4 rehabilitation at contaminated sites being voluntarily cleaned
5 up and eligible for a tax credit under this section, the tax
6 credit applicant taxpayer may claim an additional 10 percent
7 of the total cleanup costs, not to exceed $50,000, in the
8 final year of cleanup as evidenced by the Department of
9 Environmental Protection issuing a "No Further Action" order
10 for that site.
11 Section 4. Subsection (1) of section 220.1845, Florida
12 Statutes, is amended to read:
13 220.1845 Contaminated site rehabilitation tax
14 credit.--
15 (1) AUTHORIZATION FOR TAX CREDIT; LIMITATIONS.--
16 (a) A credit in the amount of 35 percent of the costs
17 of voluntary cleanup activity that is integral to site
18 rehabilitation at the following sites is available allowed
19 against any tax due for a taxable year under this chapter:
20 1. A drycleaning-solvent-contaminated site eligible
21 for state-funded site rehabilitation under s. 376.3078(3);
22 2. A drycleaning-solvent-contaminated site at which
23 cleanup is undertaken by the real property owner pursuant to
24 s. 376.3078(11), if the real property owner is not also, and
25 has never been, the owner or operator of the drycleaning
26 facility where the contamination exists; or
27 3. A brownfield site in a designated brownfield area
28 under s. 376.80.
29 (b) A tax credit applicant taxpayer, or multiple tax
30 credit applicants taxpayers working jointly to clean up a
31 single site, may not be granted receive more than $250,000 per
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1 year in tax credits for each site voluntarily rehabilitated.
2 Multiple tax credit applicants taxpayers shall be granted
3 receive tax credits in the same proportion as their
4 contribution to payment of cleanup costs. Subject to the same
5 conditions and limitations as provided in this section, a
6 municipality, or county, or other tax credit applicant that
7 which voluntarily rehabilitates a site may receive not more
8 than $250,000 per year in tax credits which it can
9 subsequently transfer subject to the provisions in paragraph
10 (h).
11 (c) If the credit granted under this section is not
12 fully used in any one year because of insufficient tax
13 liability on the part of the corporation, the unused amount
14 may be carried forward for a period not to exceed 5 years. The
15 carryover credit may be used in a subsequent year when the tax
16 imposed by this chapter for that year exceeds the credit for
17 which the corporation is eligible in that year under this
18 section after applying the other credits and unused carryovers
19 in the order provided by s. 220.02(8). The credit expires 5
20 years after the date the credit is granted under this section
21 and may not thereafter be used. However, if during the 5-year
22 period the credit is transferred, in whole or in part, under
23 paragraph (h), each transferee has 5 years from the date of
24 transfer to use its credit.
25 (d) A taxpayer that files a consolidated return in
26 this state as a member of an affiliated group under s.
27 220.131(1) may be allowed the credit on a consolidated return
28 basis up to the amount of tax imposed upon the consolidated
29 group and paid by the taxpayer that incurred the
30 rehabilitation costs.
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1 (e) A taxpayer that receives credit under s. 199.1055
2 is ineligible to receive credit under this section in a given
3 tax year.
4 (f) A tax credit applicant taxpayer that receives
5 state-funded site rehabilitation under s. 376.3078(3) for
6 rehabilitation of a drycleaning-solvent-contaminated site is
7 ineligible to receive credit under this section for costs
8 incurred by the tax credit applicant taxpayer in conjunction
9 with the rehabilitation of that site during the same time
10 period that state-administered site rehabilitation was
11 underway.
12 (g) The total amount of the tax credits which may be
13 granted under this section and s. 199.1055 is $2 million
14 annually.
15 (h)1. Tax credits that may be available under this
16 section to an entity eligible under s. 376.30781 may be
17 transferred after a merger or acquisition to the surviving or
18 acquiring entity and used in the same manner and with the same
19 limitations.
20 2. The entity or its surviving or acquiring entity as
21 described in subparagraph 1., may transfer any unused credit
22 in whole or in units of no less than 25 percent of the
23 remaining credit. The entity acquiring such credit may use it
24 in the same manner and with the same limitation as described
25 in this section. Such transferred credits may not be
26 transferred again although they may succeed to a surviving or
27 acquiring entity subject to the same conditions and
28 limitations as described in this section.
29 3. In the event the credit provided for under this
30 section is reduced either as a result of a determination by
31 the Department of Environmental Protection or an examination
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1 or audit by the Department of Revenue, such tax deficiency
2 shall be recovered from the first entity, or the surviving or
3 acquiring entity, to have claimed such credit up to the amount
4 of credit taken. Any subsequent deficiencies shall be
5 assessed against any entity acquiring and claiming such
6 credit, or in the case of multiple succeeding entities in the
7 order of credit succession.
8 (i) In order to encourage completion of site
9 rehabilitation at contaminated sites being voluntarily cleaned
10 up and eligible for a tax credit under this section, the tax
11 credit applicant taxpayer may claim an additional 10 percent
12 of the total cleanup costs, not to exceed $50,000, in the
13 final year of cleanup as evidenced by the Department of
14 Environmental Protection issuing a "No Further Action" order
15 for that site.
16 Section 5. Section 376.30781, Florida Statutes, is
17 amended to read:
18 376.30781 Partial tax credits for rehabilitation of
19 drycleaning-solvent-contaminated sites and brownfield sites in
20 designated brownfield areas; application process; rulemaking
21 authority; revocation authority.--
22 (1) The Legislature finds that:
23 (a) To facilitate property transactions and economic
24 growth and development, it is in the interest of the state to
25 encourage the cleanup, at the earliest possible time, of
26 drycleaning-solvent-contaminated sites and brownfield sites in
27 designated brownfield areas.
28 (b) It is the intent of the Legislature to encourage
29 the voluntary cleanup of drycleaning-solvent-contaminated
30 sites and brownfield sites in designated brownfield areas by
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1 providing a partial tax credit for the restoration of such
2 property in specified circumstances.
3 (2)(a) A credit in the amount of 35 percent of the
4 costs of voluntary cleanup activity that is integral to site
5 rehabilitation at the following sites is allowed pursuant to
6 ss. 199.1055 and 220.1845:
7 1. A drycleaning-solvent-contaminated site eligible
8 for state-funded site rehabilitation under s. 376.3078(3);
9 2. A drycleaning-solvent-contaminated site at which
10 cleanup is undertaken by the real property owner pursuant to
11 s. 376.3078(11), if the real property owner is not also, and
12 has never been, the owner or operator of the drycleaning
13 facility where the contamination exists; or
14 3. A brownfield site in a designated brownfield area
15 under s. 376.80.
16 (b) A tax credit applicant taxpayer, or multiple tax
17 credit applicants taxpayers working jointly to clean up a
18 single site, may not be granted receive more than $250,000 per
19 year in tax credits for each site voluntarily rehabilitated.
20 Multiple tax credit applicants taxpayers shall be granted
21 receive tax credits in the same proportion as their
22 contribution to payment of cleanup costs. Tax credits are
23 available only for site rehabilitation conducted during the
24 calendar tax year for in which the tax credit application is
25 submitted.
26 (c) In order to encourage completion of site
27 rehabilitation at contaminated sites that are being
28 voluntarily cleaned up and that are eligible for a tax credit
29 under this section, the tax credit applicant may claim an
30 additional 10 percent of the total cleanup costs, not to
31 exceed $50,000, in the final year of cleanup as evidenced by
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1 the Department of Environmental Protection issuing a "no
2 further action" order for that site.
3 (3) The Department of Environmental Protection shall
4 be responsible for allocating the tax credits provided for in
5 ss. 199.1055 and 220.1845, not to exceed a total of $2 million
6 in tax credits annually.
7 (4) To claim the credit for site rehabilitation
8 conducted during the current calendar year, each tax credit
9 applicant must apply to the Department of Environmental
10 Protection for an allocation of the $2 million annual credit
11 by January 15 of the following year December 31 on a form
12 developed by the Department of Environmental Protection in
13 cooperation with the Department of Revenue. The form shall
14 include an affidavit from each tax credit applicant certifying
15 that all information contained in the application, including
16 all records of costs incurred and claimed in the tax credit
17 application, are true and correct. If the application is
18 submitted pursuant to subparagraph (2)(a)2., the form must
19 include an affidavit signed by the real property owner stating
20 that it is not, and has never been, the owner or operator of
21 the drycleaning facility where the contamination exists.
22 Approval of partial tax credits must be accomplished on a
23 first-come, first-served basis based upon the date complete
24 applications are received by the Division of Waste Management.
25 A tax credit An applicant shall submit only one complete
26 application per site for each calendar year's site
27 rehabilitation costs per year. Incomplete placeholder
28 applications may not be accepted and will not secure a place
29 in the first-come, first-served application line. To be
30 eligible for a tax credit the tax credit applicant must:
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1 (a) Have entered into a voluntary cleanup agreement
2 with the Department of Environmental Protection for a
3 drycleaning-solvent-contaminated site or a Brownfield Site
4 Rehabilitation Agreement, as applicable; and
5 (b) Have paid all deductibles pursuant to s.
6 376.3078(3)(d) for eligible drycleaning-solvent-cleanup
7 program sites.
8 (5) To obtain the tax credit certificate, a tax credit
9 an applicant must annually file an application for
10 certification, which must be received by the Department of
11 Environmental Protection's Division of Waste Management
12 Protection by January 15 of the year following the calendar
13 year for which site rehabilitation costs are being claimed in
14 a tax credit application December 31. The tax credit applicant
15 must provide all pertinent information requested on the tax
16 credit application form, including, at a minimum, the name and
17 address of the applicant and the address and tracking
18 identification number of the eligible site. Along with the
19 application form, the applicant must submit the following:
20 (a) A nonrefundable review fee of $250 made payable to
21 the Water Quality Assurance Trust Fund to cover the
22 administrative costs associated with the department's review
23 of the tax credit application;
24 (b) Copies of contracts and documentation of contract
25 negotiations, accounts, invoices, sales tickets, or other
26 payment records from purchases, sales, leases, or other
27 transactions involving actual costs incurred for that tax year
28 related to site rehabilitation, as that term is defined in ss.
29 376.301 and 376.79;
30 (c) Proof that the documentation submitted pursuant to
31 paragraph (b) has been reviewed and verified by an independent
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1 certified public accountant in accordance with standards
2 established by the American Institute of Certified Public
3 Accountants. Specifically, the certified public accountant
4 must attest to the accuracy and validity of the costs incurred
5 and paid by conducting an independent review of the data
6 presented by the applicant. Accuracy and validity of costs
7 incurred and paid would be determined once the level of effort
8 was certified by an appropriate professional registered in
9 this state in each contributing technical discipline. The
10 certified public accountant's report would also attest that
11 the costs included in the application form are not duplicated
12 within the application. A copy of the accountant's report
13 shall be submitted to the Department of Environmental
14 Protection with the tax credit application; and
15 (d) A certification form stating that site
16 rehabilitation activities associated with the documentation
17 submitted pursuant to paragraph (b) have been conducted under
18 the observation of, and related technical documents have been
19 signed and sealed by, an appropriate professional registered
20 in this state in each contributing technical discipline. The
21 certification form shall be signed and sealed by the
22 appropriate registered professionals stating that the costs
23 incurred were integral, necessary, and required for site
24 rehabilitation, as that term is defined in ss. 376.301 and
25 376.79.
26 (6) The certified public accountant and appropriate
27 registered professionals submitting forms as part of a tax
28 credit application must verify such forms. Verification must
29 be accomplished as provided in s. 92.525(1)(b) and subject to
30 the provisions of s. 92.525(3).
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1 (7) The Department of Environmental Protection shall
2 review the tax credit application and any supplemental
3 documentation that the tax credit applicant may submit before
4 the annual application deadline in order to have the
5 application considered complete submitted by each applicant,
6 for the purpose of verifying that the tax credit applicant has
7 met the qualifying criteria in subsections (2) and (4) and has
8 submitted all required documentation listed in subsection (5).
9 Upon verification that the tax credit applicant has met these
10 requirements, the department shall issue a written decision
11 granting eligibility for partial tax credits (a tax credit
12 certificate) in the amount of 35 percent of the total costs
13 claimed, subject to the $250,000 limitation, for the calendar
14 tax year for in which the tax credit application is submitted
15 based on the report of the certified public accountant and the
16 certifications from the appropriate registered technical
17 professionals.
18 (8) On or before March 1, the Department of
19 Environmental Protection shall inform each eligible tax credit
20 applicant of the amount of its partial tax credit and provide
21 each eligible tax credit applicant with a tax credit
22 certificate that must be submitted with its tax return to the
23 Department of Revenue to claim the tax credit or be
24 transferred under s. 199.1055(g) or s. 220.1845(h). Credits
25 will not result in the payment of refunds if total credits
26 exceed the amount of tax owed.
27 (9) If a tax credit an applicant does not receive a
28 tax credit allocation due to an exhaustion of the $2 million
29 annual tax credit authorization, such application will then be
30 included in the same first-come, first-served order in the
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1 next year's annual tax credit allocation, if any, based on the
2 prior year application.
3 (10) The Department of Environmental Protection may
4 adopt rules to prescribe the necessary forms required to claim
5 tax credits under this section and to provide the
6 administrative guidelines and procedures required to
7 administer this section. Prior to the adoption of rules
8 regulating the tax credit application, the department shall,
9 by September 1, 1998, establish reasonable interim application
10 requirements and forms.
11 (11) The Department of Environmental Protection may
12 revoke or modify any written decision granting eligibility for
13 partial tax credits under this section if it is discovered
14 that the tax credit applicant submitted any false statement,
15 representation, or certification in any application, record,
16 report, plan, or other document filed in an attempt to receive
17 partial tax credits under this section. The Department of
18 Environmental Protection shall immediately notify the
19 Department of Revenue of any revoked or modified orders
20 affecting previously granted partial tax credits.
21 Additionally, the tax credit applicant taxpayer must notify
22 the Department of Revenue of any change in its tax credit
23 claimed.
24 (12) A tax credit applicant An owner, operator, or
25 real property owner who receives state-funded site
26 rehabilitation under s. 376.3078(3) for rehabilitation of a
27 drycleaning-solvent-contaminated site is ineligible to receive
28 a tax credit under s. 199.1055 or s. 220.1845 for costs
29 incurred by the tax credit applicant taxpayer in conjunction
30 with the rehabilitation of that site during the same time
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1 period that state-administered site rehabilitation was
2 underway.
3 Section 6. This act shall take effect upon becoming a
4 law.
5
6 *****************************************
7 SENATE SUMMARY
8 Provides for the application of risk-based
corrective-action principles to specified sites that are
9 contaminated by the discharge of pollutants and hazardous
substances. Creates the Florida State-Owned-Lands Cleanup
10 Program to be administered by the Department of
Environmental Protection. Revises the process for
11 obtaining credits from the intangible personal property
tax and the corporation income tax for the voluntary
12 cleanup of contaminated sites.
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