House Bill hb1541c1
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Florida House of Representatives - 2002 CS/HB 1541
By the Council for Smarter Government and Representative
Ross
1 A bill to be entitled
2 An act relating to liability under the
3 drycleaning solvent cleanup program; amending
4 s. 376.01, F.S.; defining the term "nearby real
5 property owner"; amending s. 376.3078, F.S.;
6 adding a statement of intent; exempting certain
7 real property owners and others from claims for
8 property damage arising from contamination by
9 drycleaning solvents; amending s. 376.308,
10 F.S.; revising provisions governing the
11 statutory construction of immunity provisions;
12 amending s. 376.313, F.S.; revising provisions
13 governing immunity; amending s. 376.30781,
14 F.S.; correcting a cross reference; providing
15 an effective date.
16
17 Be It Enacted by the Legislature of the State of Florida:
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19 Section 1. Subsection (47) is added to section
20 376.301, Florida Statutes, to read:
21 376.301 Definitions of terms used in ss.
22 376.30-376.319, 376.70, and 376.75.--When used in ss.
23 376.30-376.319, 376.70, and 376.75, unless the context clearly
24 requires otherwise, the term:
25 (47) "Nearby real property owner" means the individual
26 or entity that is vested with ownership, dominion, or legal or
27 rightful title to real property, or that has a ground lease in
28 real property, onto which drycleaning solvent has migrated
29 through soil or groundwater from a drycleaning or wholesale
30 supply facility eligible for site rehabilitation under s.
31 376.3078(3) or from a drycleaning or wholesale supply facility
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1 that is approved by the department for voluntary cleanup
2 pursuant to s. 376.3078(11).
3 Section 2. Subsections (1), (3), and (11) of section
4 376.3078, Florida Statutes, are amended to read:
5 376.3078 Drycleaning facility restoration; funds;
6 uses; liability; recovery of expenditures.--
7 (1) FINDINGS.--In addition to the legislative findings
8 set forth in s. 376.30, the Legislature finds and declares
9 that:
10 (a) Significant quantities of drycleaning solvents
11 have been discharged in the past at drycleaning facilities as
12 part of the normal operation of these facilities.
13 (b) Discharges of drycleaning solvents at such
14 drycleaning facilities have occurred and are occurring, and
15 pose a significant threat to the quality of the groundwaters
16 and inland surface waters of this state.
17 (c) Where contamination of the groundwater or surface
18 water has occurred, remedial measures have often been delayed
19 for long periods while determinations as to liability and the
20 extent of liability are made, and such delays result in the
21 continuation and intensification of the threat to the public
22 health, safety, and welfare; in greater damage to the
23 environment; and in significantly higher costs to contain and
24 remove the contamination.
25 (d) Adequate financial resources must be readily
26 available to provide for the expeditious supply of safe and
27 reliable alternative sources of potable water to affected
28 persons and to provide a means for investigation and
29 rehabilitation of contaminated sites without delay.
30 (e) It is the intent of the Legislature to encourage
31 real property owners to undertake the voluntary cleanup of
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1 property contaminated with drycleaning solvents and that the
2 immunity provisions of this section and all other available
3 defenses be construed in favor of real property owners.
4 (f) Strong public interests are served by the
5 provisions of subsections (3) and (11) such as improving the
6 marketability and use of, and ability to borrow funds as to,
7 property contaminated by drycleaning solvents and encouraging
8 the voluntary remediation of contaminated sites. The extent
9 to which claims or rights are affected by subsections (3) and
10 (11) is offset by the remedies created in this section and the
11 limitations imposed by these subsections on such claims or
12 rights are reasonable when balanced against the public
13 interests served. The claims or right affected by subsections
14 (3) and (11) are speculative and these subsections are
15 intended to prevent judicial interpretations allowing windfall
16 awards that thwart the public interest provisions of this
17 section.
18 (3) REHABILITATION LIABILITY.--
19 (a) In accordance with the eligibility provisions of
20 this section, no real property owner or nearby real property
21 owner or no person who owns or operates, or who otherwise
22 could be liable as a result of the operation of, a drycleaning
23 facility or a wholesale supply facility shall be liable for or
24 subject to:
25 1. Claims of any person, except for any governmental
26 entity, for property damages of any kind, including, but not
27 limited to, diminished value of real property or improvements,
28 lost or delayed rent or sale or use of real property or
29 improvements, or stigma to real property or improvements
30 caused by drycleaning solvent contamination;
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1 2. Administrative or judicial action brought by or on
2 behalf of any state or local government or agency thereof or
3 by or on behalf of any person to compel rehabilitation or pay
4 for the costs of rehabilitation of environmental contamination
5 resulting from the discharge of drycleaning solvents; or.
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7 Subject to The delays that may occur as a result of the
8 prioritization of sites under this section for any qualified
9 site, costs for activities described in paragraph (2)(b) shall
10 be absorbed at the expense of the drycleaning facility
11 restoration funds, without recourse to reimbursement or
12 recovery from the real property owner, nearby real property
13 owner, or the owner or operator of the drycleaning facility or
14 the wholesale supply facility. Notwithstanding any other
15 provisions of chapter 376 to the contrary, the provisions of
16 this subsection shall apply to causes of action accruing on or
17 after the effective date of this act, and shall apply
18 retroactively to causes of action accruing before the
19 effective date of this act, for which no lawsuit has been
20 filed.
21 (b) The real property owner shall provide the
22 following documents to any nearby real property owner upon
23 request:
24 1. An authentic copy of the department's order of
25 eligibility for the drycleaning solvent contamination,
26 suitable for recordation in the public records of any county;
27 and
28 2. All other reasonably available public records
29 regarding the drycleaning solvent contamination, including,
30 but not limited to, copies of any soil or groundwater tests
31 and site assessment reports.
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2 The department shall assist the real property owner to provide
3 such documentation. The real property owner shall record an
4 authentic copy of the order of eligibility or other
5 documentation at the request of any nearby real property owner
6 in the appropriate public records for the nearby real
7 property.
8 (c)(a) With regard to drycleaning facilities or
9 wholesale supply facilities that have operated as drycleaning
10 facilities or wholesale supply facilities on or after October
11 1, 1994, any such drycleaning facility or wholesale supply
12 facility at which there exists contamination by drycleaning
13 solvents shall be eligible under this subsection regardless of
14 when the drycleaning contamination was discovered, provided
15 that the drycleaning facility or the wholesale supply
16 facility:
17 1. Has been registered with the department;
18 2. Is determined by the department to be in compliance
19 with the department's rules regulating drycleaning solvents,
20 drycleaning facilities, or wholesale supply facilities on or
21 after November 19, 1980;
22 3. Has not been operated in a grossly negligent manner
23 at any time on or after November 19, 1980;
24 4. Has not been identified to qualify for listing, nor
25 is listed, on the National Priority List pursuant to the
26 Comprehensive Environmental Response, Compensation, and
27 Liability Act of 1980 as amended by the Superfund Amendments
28 and Reauthorization Act of 1986, and as subsequently amended;
29 5. Is not under an order from the United States
30 Environmental Protection Agency pursuant to s. 3008(h) of the
31 Resource Conservation and Recovery Act as amended (42 U.S.C.A.
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1 s. 6928(h)), or has not obtained and is not required to obtain
2 a permit for the operation of a hazardous waste treatment,
3 storage, or disposal facility, a postclosure permit, or a
4 permit pursuant to the federal Hazardous and Solid Waste
5 Amendments of 1984;
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7 and provided that the real property owner or the owner or
8 operator of the drycleaning facility or the wholesale supply
9 facility has not willfully concealed the discharge of
10 drycleaning solvents and has remitted all taxes due pursuant
11 to ss. 376.70 and 376.75, has provided documented evidence of
12 contamination by drycleaning solvents as required by the rules
13 developed pursuant to this section, has reported the
14 contamination prior to December 31, 1998, and has not denied
15 the department access to the site.
16 (d)(b) With regard to drycleaning facilities or
17 wholesale supply facilities that cease to be operated as
18 drycleaning facilities or wholesale supply facilities prior to
19 October 1, 1994, such facilities, at which there exists
20 contamination by drycleaning solvents, shall be eligible under
21 this subsection regardless of when the contamination was
22 discovered, provided that the drycleaning facility or
23 wholesale supply facility:
24 1. Was not determined by the department, within a
25 reasonable time after the department's discovery, to have been
26 out of compliance with the department rules regulating
27 drycleaning solvents, drycleaning facilities, or wholesale
28 supply facilities implemented at any time on or after November
29 19, 1980;
30 2. Was not operated in a grossly negligent manner at
31 any time on or after November 19, 1980;
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1 3. Has not been identified to qualify for listing, nor
2 is listed, on the National Priority List pursuant to the
3 Comprehensive Environmental Response, Compensation, and
4 Liability Act of 1980, as amended by the Superfund Amendments
5 and Reauthorization Act of 1986, and as subsequently amended;
6 and
7 4. Is not under an order from the United States
8 Environmental Protection Agency pursuant to s. 3008(h) of the
9 Resource Conservation and Recovery Act, as amended, or has not
10 obtained and is not required to obtain a permit for the
11 operation of a hazardous waste treatment, storage, or disposal
12 facility, a postclosure permit, or a permit pursuant to the
13 federal Hazardous and Solid Waste Amendments of 1984;
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15 and provided that the real property owner or the owner or
16 operator of the drycleaning facility or the wholesale supply
17 facility has not willfully concealed the discharge of
18 drycleaning solvents, has provided documented evidence of
19 contamination by drycleaning solvents as required by the rules
20 developed pursuant to this section, has reported the
21 contamination prior to December 31, 1998, and has not denied
22 the department access to the site.
23 (e)(c) For purposes of determining eligibility, a
24 drycleaning facility or wholesale supply facility was operated
25 in a grossly negligent manner if the department determines
26 that the owner or operator of the drycleaning facility or the
27 wholesale supply facility:
28 1. Willfully discharged drycleaning solvents onto the
29 soils or into the waters of the state after November 19, 1980,
30 with the knowledge, intent, and purpose that the discharge
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1 would result in harm to the environment or to public health or
2 result in a violation of the law;
3 2. Willfully concealed a discharge of drycleaning
4 solvents with the knowledge, intent, and purpose that the
5 concealment would result in harm to the environment or to
6 public health or result in a violation of the law; or
7 3. Willfully violated a local, state, or federal law
8 or rule regulating the operation of drycleaning facilities or
9 wholesale supply facilities with the knowledge, intent, and
10 purpose that the act would result in harm to the environment
11 or to public health or result in a violation of the law.
12 (f)(d)1. With respect to eligible drycleaning solvent
13 contamination reported to the department as part of a
14 completed application as required by the rules developed
15 pursuant to this section by June 30, 1997, the costs of
16 activities described in paragraph (2)(b) shall be absorbed at
17 the expense of the drycleaning facility restoration funds,
18 less a $1,000 deductible per incident, which shall be paid by
19 the applicant or current property owner. The deductible shall
20 be paid within 60 days after receipt of billing by the
21 department.
22 2. For contamination reported to the department as
23 part of a completed application as required by the rules
24 developed under this section, from July 1, 1997, through
25 September 30, 1998, the costs shall be absorbed at the expense
26 of the drycleaning facility restoration funds, less a $5,000
27 deductible per incident. The deductible shall be paid within
28 60 days after receipt of billing by the department.
29 3. For contamination reported to the department as
30 part of a completed application as required by the rules
31 developed pursuant to this section from October 1, 1998,
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1 through December 31, 1998, the costs shall be absorbed at the
2 expense of the drycleaning facility restoration funds, less a
3 $10,000 deductible per incident. The deductible shall be paid
4 within 60 days after receipt of billing by the department.
5 4. For contamination reported after December 31, 1998,
6 no costs will be absorbed at the expense of the drycleaning
7 facility restoration funds.
8 (g)(e) The provisions of this subsection shall not
9 apply to any site where the department has been denied site
10 access to implement the provisions of this section.
11 (h)(f) In order to identify those drycleaning
12 facilities and wholesale supply facilities that have
13 experienced contamination resulting from the discharge of
14 drycleaning solvents and to ensure the most expedient
15 rehabilitation of such sites, the owners and operators of
16 drycleaning facilities and wholesale supply facilities are
17 encouraged to detect and report contamination from drycleaning
18 solvents related to the operation of drycleaning facilities
19 and wholesale supply facilities. The department shall
20 establish reasonable guidelines for the written reporting of
21 drycleaning contamination and shall distribute forms to
22 registrants under s. 376.303(1)(d), and to other interested
23 parties upon request, to be used for such purpose.
24 (i)(g) A report of drycleaning solvent contamination
25 at a drycleaning facility or wholesale supply facility made to
26 the department by any person in accordance with this
27 subsection, or any rules promulgated pursuant hereto, may not
28 be used directly as evidence of liability for such discharge
29 in any civil or criminal trial arising out of the discharge.
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1 (j)(h) The provisions of this subsection shall not
2 apply to drycleaning facilities owned or operated by the state
3 or Federal Government.
4 (k)(i) Due to the value of Florida's potable water, it
5 is the intent of the Legislature that the department initiate
6 and facilitate as many cleanups as possible utilizing the
7 resources of the state, local governments, and the private
8 sector. The department is authorized to adopt necessary rules
9 and enter into contracts to carry out the intent of this
10 subsection and to limit or prevent future contamination from
11 the operation of drycleaning facilities and wholesale supply
12 facilities.
13 (l)(j) It is not the intent of the Legislature that
14 the state become the owner or operator of a drycleaning
15 facility or wholesale supply facility by engaging in
16 state-conducted cleanup.
17 (m)(k) The owner, operator, and either the real
18 property owner or agent of the real property owner may apply
19 for the Drycleaning Contamination Cleanup Program by jointly
20 submitting a completed application package to the department
21 pursuant to the rules that shall be adopted by the department.
22 If the application cannot be jointly submitted, then the
23 applicant shall provide notice of the application to other
24 interested parties. After reviewing the completed application
25 package, the department shall notify the applicant in writing
26 as to whether the drycleaning facility or wholesale supply
27 facility is eligible for the program. If the department denies
28 eligibility for a completed application package, the notice of
29 denial shall specify the reasons for the denial, including
30 specific and substantive findings of fact, and shall
31 constitute agency action subject to the provisions of chapter
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1 120. For the purposes of ss. 120.569 and 120.57, the real
2 property owner and the owner and operator of a drycleaning
3 facility or wholesale supply facility which is the subject of
4 a decision by the department with regard to eligibility shall
5 be deemed to be parties whose substantial interests are
6 determined by the department's decision to approve or deny
7 eligibility.
8 (n)(l) Eligibility under this subsection applies to
9 the drycleaning facility or wholesale supply facility, and
10 attendant site rehabilitation applies to such facilities and
11 to any place where drycleaning solvent contamination migrating
12 from the eligible facility is found to be located. A
13 determination of eligibility or ineligibility shall not be
14 affected by any conveyance of the ownership of the drycleaning
15 facility, wholesale supply facility, or the real property on
16 which such facility is located. Nothing contained in this
17 chapter shall be construed to allow a drycleaning facility or
18 wholesale supply facility which would not be eligible under
19 this subsection to become eligible as a result of the
20 conveyance of the ownership of the ineligible drycleaning
21 facility or wholesale supply facility to another owner.
22 (o)(m) If funding for the drycleaning contamination
23 rehabilitation program is eliminated, the provisions of this
24 subsection shall not apply.
25 (p)(n)1. The department shall have the authority to
26 cancel the eligibility of any drycleaning facility or
27 wholesale supply facility that submits fraudulent information
28 in the application package or that fails to continuously
29 comply with the conditions of eligibility set forth in this
30 subsection, or has not remitted all fees pursuant to s.
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1 376.303(1)(d), or has not remitted the deductible payments
2 pursuant to paragraph (f)(d).
3 2. If the program eligibility of a drycleaning
4 facility or wholesale supply facility is subject to
5 cancellation pursuant to this section, then the department
6 shall notify the applicant in writing of its intent to cancel
7 program eligibility and shall state the reason or reasons for
8 cancellation. The applicant shall have 45 days to resolve the
9 reason or reasons for cancellation to the satisfaction of the
10 department. If, after 45 days, the applicant has not resolved
11 the reason or reasons for cancellation to the satisfaction of
12 the department, the order of cancellation shall become final
13 and shall be subject to the provisions of chapter 120.
14 (q)(o) A real property owner shall not be subject to
15 administrative or judicial action brought by or on behalf of
16 any person or local or state government, or agency thereof,
17 for gross negligence or violations of department rules prior
18 to January 1, 1990, which resulted from the operation of a
19 drycleaning facility, provided that the real property owner
20 demonstrates that:
21 1. The real property owner had ownership in the
22 property at the time of the gross negligence or violation of
23 department rules and did not cause or contribute to
24 contamination on the property;
25 2. The real property owner was a distinct and separate
26 entity from the owner and operator of the drycleaning
27 facility, and did not have an ownership interest in or share
28 in the profits of the drycleaning facility;
29 3. The real property owner did not participate in the
30 operation or management of the drycleaning facility;
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1 4. The real property owner complied with all discharge
2 reporting requirements, and did not conceal any contamination;
3 and
4 5. The department has not been denied access.
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6 The defense provided by this paragraph does not apply to any
7 liability under a federally delegated program.
8 (r)(p) A person whose property becomes contaminated
9 due to geophysical or hydrologic reasons from the operation of
10 a nearby drycleaning or wholesale supply facility and whose
11 property has never been occupied by a business that utilized
12 or stored drycleaning solvents or similar constituents is not
13 subject to administrative or judicial action brought by or on
14 behalf of another to compel the rehabilitation of or the
15 payment of the costs for the rehabilitation of sites
16 contaminated by drycleaning solvents, provided that the
17 person:
18 1. Does not own and has never held an ownership
19 interest in, or shared in the profits of, the drycleaning
20 facility operated at the source location;
21 2. Did not participate in the operation or management
22 of the drycleaning facility at the source location; and
23 3. Did not cause, contribute to, or exacerbate the
24 release or threat of release of any hazardous substance
25 through any act or omission.
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27 The defense provided by this paragraph does not apply to any
28 liability under a federally delegated program.
29 (s)(q) Nothing in this subsection precludes the
30 department from considering information and documentation
31 provided by private consultants, local government programs,
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1 federal agencies, or any individual which is relevant to an
2 eligibility determination if the department provides the
3 applicant with reasonable access to the information and its
4 origin.
5 (11) VOLUNTARY CLEANUP.--A real property owner is
6 authorized to conduct site rehabilitation activities at any
7 time pursuant to department rules, either through agents of
8 the real property owner or through responsible response action
9 contractors or subcontractors, whether or not the facility has
10 been determined by the department to be eligible for the
11 drycleaning solvent cleanup program. A real property owner or
12 any other person who that conducts site rehabilitation may not
13 seek cost recovery from the department or the Water Quality
14 Assurance Trust Fund for any such rehabilitation activities. A
15 real property owner who that voluntarily conducts such site
16 rehabilitation, whether commenced before or on or after
17 October 1, 1995, shall be immune from, and shall have no
18 liability for claims of any person, except for any
19 governmental entity, for property damages of any kind,
20 including, but not limited to, diminished value of real
21 property or improvements, lost or delayed rent or sale or use
22 of real property or improvements, or stigma to real property
23 or improvements caused by drycleaning solvent contamination or
24 administrative or judicial action brought by or on behalf of
25 liability to any person, state or local government, or agency
26 thereof to compel or enjoin site rehabilitation or pay for the
27 cost of rehabilitation of environmental contamination, or to
28 pay any fines or penalties regarding rehabilitation, as soon
29 as the real property owner:
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1 (a) Conducts contamination assessment and site
2 rehabilitation consistent with state and federal laws and
3 rules;
4 (b) Conducts such site rehabilitation in a timely
5 manner according to a rehabilitation schedule approved by the
6 department; and
7 (c) Does not deny the department access to the site.
8 Upon completion of such site rehabilitation activities in
9 accordance with the requirements of this subsection, the
10 department shall render a site rehabilitation completion
11 order.
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13 The immunity set forth in this subsection shall also apply to
14 any nearby real property owner. The real property owner shall
15 provide upon request from any nearby real property owner all
16 reasonably available documentation in the public records in
17 reference to the drycleaning solvent contamination, including,
18 but not limited to, copies of any soil or groundwater tests
19 and site assessment reports, and a copy of the department's
20 approved voluntary cleanup agreement. The department shall
21 assist the real property owner to provide such documentation.
22 This immunity shall continue to apply to any real property
23 owner who transfers, conveys, leases, or sells property on
24 which a drycleaning facility is located so long as the
25 voluntary cleanup activities continue. Notwithstanding any
26 other provisions of chapter 376 to the contrary, the
27 provisions of this subsection shall apply to causes of action
28 accruing on or after the effective date of this act, and shall
29 apply retroactively to causes of action accruing before the
30 effective date of this act, for which no lawsuit has been
31 filed.
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1 Section 3. Subsection (6) of section 376.308, Florida
2 Statutes, is amended to read:
3 376.308 Liabilities and defenses of facilities.--
4 (6) Nothing herein shall be construed to affect
5 cleanup program eligibility under ss. 376.305(6), 376.3071,
6 376.3072, 376.3078, and 376.3079. Except as otherwise
7 expressly provided in this chapter, nothing in this chapter
8 shall affect, void, or defeat any immunity of any real
9 property owner or nearby real property owner under s.
10 376.3078.
11 Section 4. Subsections (3) and (5) of section 376.313,
12 Florida Statutes, are amended to read:
13 376.313 Nonexclusiveness of remedies and individual
14 cause of action for damages under ss. 376.30-376.319.--
15 (3) Notwithstanding any other provision of law Except
16 as provided in s. 376.3078(3) and (11), nothing contained in
17 ss. 376.30-376.319 prohibits any person from bringing a cause
18 of action in a court of competent jurisdiction for all damages
19 resulting from a discharge or other condition of pollution
20 covered by ss. 376.30-376.319. Nothing in this chapter shall
21 prohibit or diminish a party's right to contribution from
22 other parties jointly or severally liable for a prohibited
23 discharge of pollutants or hazardous substances or other
24 pollution conditions. Except as otherwise provided in
25 subsection (4) or subsection (5), in any such suit, it is not
26 necessary for such person to plead or prove negligence in any
27 form or manner. Such person need only plead and prove the fact
28 of the prohibited discharge or other pollutive condition and
29 that it has occurred. The only defenses to such cause of
30 action shall be those specified in s. 376.308.
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1 (5)(a) In any civil action against the owner or
2 operator of a drycleaning facility or a wholesale supply
3 facility, or the owner of the real property on which such
4 facility is located, if such facility is not eligible under s.
5 376.3078(3) and is not involved in voluntary cleanup pursuant
6 to s. 376.3078(11), for damages arising from the discharge of
7 drycleaning solvents from a drycleaning facility or wholesale
8 supply facility, the provisions of subsection (3) shall not
9 apply if it can be proven that, at the time of the discharge
10 the alleged damages resulted solely from a discharge from a
11 drycleaning facility or wholesale supply facility that was in
12 compliance with department rules regulating drycleaning
13 facilities or wholesale supply facilities.
14 (b) Any person bringing such an action must prove
15 negligence in order to recover damages under this subsection.
16 For the purposes of this subsection, noncompliance with s.
17 376.303 or s. 376.3078, or any of the rules promulgated
18 pursuant thereto, or any applicable state or federal law or
19 regulation, as the same may hereafter be amended, shall be
20 prima facie evidence of negligence.
21 Section 5. Paragraph (b) of subsection (4) of section
22 376.30781, Florida Statutes, is amended to read:
23 376.30781 Partial tax credits for rehabilitation of
24 drycleaning-solvent-contaminated sites and brownfield sites in
25 designated brownfield areas; application process; rulemaking
26 authority; revocation authority.--
27 (4) To claim the credit, each applicant must apply to
28 the Department of Environmental Protection for an allocation
29 of the $2 million annual credit by December 31 on a form
30 developed by the Department of Environmental Protection in
31 cooperation with the Department of Revenue. The form shall
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1 include an affidavit from each applicant certifying that all
2 information contained in the application, including all
3 records of costs incurred and claimed in the tax credit
4 application, are true and correct. If the application is
5 submitted pursuant to subparagraph (2)(a)2., the form must
6 include an affidavit signed by the real property owner stating
7 that it is not, and has never been, the owner or operator of
8 the drycleaning facility where the contamination exists.
9 Approval of partial tax credits must be accomplished on a
10 first-come, first-served basis based upon the date complete
11 applications are received by the Division of Waste Management.
12 An applicant shall submit only one application per site per
13 year. To be eligible for a tax credit the applicant must:
14 (b) Have paid all deductibles pursuant to s.
15 376.3078(3)(f)(d) for eligible drycleaning-solvent-cleanup
16 program sites.
17 Section 6. This act shall take effect upon becoming a
18 law.
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