Senate Bill sb2124

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    Florida Senate - 2002                                  SB 2124

    By Senator Laurent





    17-1329-02

  1                      A bill to be entitled

  2         An act relating to liability under the

  3         drycleaning solvent cleanup program; amending

  4         s. 376.301, F.S.; defining the term "nearby

  5         real property owner"; redefining the terms

  6         "contaminated site" and "site rehabilitation";

  7         amending s. 376.3078, F.S.; exempting certain

  8         real property owners and others from claims for

  9         property damage arising from contamination by

10         drycleaning solvents; amending s. 376.308,

11         F.S.; revising provisions governing the

12         statutory construction of immunity provisions;

13         providing an effective date.

14

15  Be It Enacted by the Legislature of the State of Florida:

16

17         Section 1.  Subsections (10) and (41) of section

18  376.301, Florida Statutes, are amended, and subsection (47) is

19  added to that section, to read:

20         376.301  Definitions of terms used in ss.

21  376.30-376.319, 376.70, and 376.75.--When used in ss.

22  376.30-376.319, 376.70, and 376.75, unless the context clearly

23  requires otherwise, the term:

24         (10)  "Contaminated site" means any contiguous land,

25  sediment, surface water, or groundwater areas that contain

26  contaminants, including, but not limited to, drycleaning

27  solvents, which that may be harmful to human health or the

28  environment.

29         (41)  "Site rehabilitation" means the assessment of a

30  contaminated site contamination and the remediation activities

31  that reduce the levels of contaminants at a contaminated site

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  1  through accepted treatment methods to meet the cleanup target

  2  levels established for that site. For purposes of sites

  3  subject to the Resource Conservation and Recovery Act, as

  4  amended, the term includes removal, decontamination, and

  5  corrective action of releases of hazardous substances.

  6         (47)  "Nearby real property owner" means the individual

  7  or entity that is vested with ownership, dominion, or legal or

  8  rightful title to real property, or that has a ground lease or

  9  commercial lease in real property, onto which drycleaning

10  solvent has migrated through soil or groundwater from a

11  drycleaning or wholesale-supply facility eligible for site

12  rehabilitation under s. 376.3078(3) or from a drycleaning or

13  wholesale-supply facility that is approved by the department

14  for voluntary cleanup under s. 376.3078(11).

15         Section 2.  Subsections (3) and (11) of section

16  376.3078, Florida Statutes, are amended to read:

17         376.3078  Drycleaning facility restoration; funds;

18  uses; liability; recovery of expenditures.--

19         (3)  REHABILITATION LIABILITY.--(a)  In accordance with

20  the eligibility provisions of this section, a no real property

21  owner or nearby real property owner or no person who owns or

22  operates, or who otherwise could be liable as a result of the

23  operation of, a drycleaning facility or a wholesale supply

24  facility is not liable for or shall be subject to:

25         1.  Claims of any person, state, or local government

26  for property damages of any kind, including, but not limited

27  to, diminished value of real property or improvements, lost or

28  delayed rent, sale or use of real property or improvements, or

29  stigma to real property or improvements caused by

30  drycleaning-solvent contamination; or

31

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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.

  6

  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.

15         (b)  The real property owner shall provide upon request

16  from any nearby real property owner all reasonably available

17  documentation in the public records in reference to the

18  drycleaning-solvent contamination, including, but not limited

19  to, copies of any soil or groundwater tests and

20  site-assessment reports, and a copy of the department's order

21  of eligibility. The department shall assist the real property

22  owner to provide such documentation. Upon request by a nearby

23  real property owner, the real property owner shall, within 90

24  days after the request, furnish the nearby real property owner

25  with a sworn affidavit in recordable form which certifies:

26         1.  That a drycleaning solvent has migrated through

27  soil or groundwater;

28         2.  That the contaminated site is eligible for site

29  rehabilitation under this subsection or paragraph (1)(c); and

30         3.  That the nearby property is eligible for site

31  rehabilitation.

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  1

  2  This affidavit is a predicate to the real property owner

  3  receiving the defenses contained in subparagraph (a)1.

  4         (c)(a)  With regard to drycleaning facilities or

  5  wholesale supply facilities that have operated as drycleaning

  6  facilities or wholesale supply facilities on or after October

  7  1, 1994, any such drycleaning facility or wholesale supply

  8  facility at which there exists contamination by drycleaning

  9  solvents shall be eligible under this subsection regardless of

10  when the drycleaning contamination was discovered, provided

11  that the drycleaning facility or the wholesale supply

12  facility:

13         1.  Has been registered with the department;

14         2.  Is determined by the department to be in compliance

15  with the department's rules regulating drycleaning solvents,

16  drycleaning facilities, or wholesale supply facilities on or

17  after November 19, 1980;

18         3.  Has not been operated in a grossly negligent manner

19  at any time on or after November 19, 1980;

20         4.  Has not been identified to qualify for listing, nor

21  is listed, on the National Priority List pursuant to the

22  Comprehensive Environmental Response, Compensation, and

23  Liability Act of 1980 as amended by the Superfund Amendments

24  and Reauthorization Act of 1986, and as subsequently amended;

25         5.  Is not under an order from the United States

26  Environmental Protection Agency pursuant to s. 3008(h) of the

27  Resource Conservation and Recovery Act as amended (42 U.S.C.A.

28  s. 6928(h)), or has not obtained and is not required to obtain

29  a permit for the operation of a hazardous waste treatment,

30  storage, or disposal facility, a postclosure permit, or a

31

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  1  permit pursuant to the federal Hazardous and Solid Waste

  2  Amendments of 1984;

  3

  4  and provided that the real property owner or the owner or

  5  operator of the drycleaning facility or the wholesale supply

  6  facility has not willfully concealed the discharge of

  7  drycleaning solvents and has remitted all taxes due pursuant

  8  to ss. 376.70 and 376.75, has provided documented evidence of

  9  contamination by drycleaning solvents as required by the rules

10  developed pursuant to this section, has reported the

11  contamination prior to December 31, 1998, and has not denied

12  the department access to the site.

13         (d)(b)  With regard to drycleaning facilities or

14  wholesale supply facilities that cease to be operated as

15  drycleaning facilities or wholesale supply facilities prior to

16  October 1, 1994, such facilities, at which there exists

17  contamination by drycleaning solvents, shall be eligible under

18  this subsection regardless of when the contamination was

19  discovered, provided that the drycleaning facility or

20  wholesale supply facility:

21         1.  Was not determined by the department, within a

22  reasonable time after the department's discovery, to have been

23  out of compliance with the department rules regulating

24  drycleaning solvents, drycleaning facilities, or wholesale

25  supply facilities implemented at any time on or after November

26  19, 1980;

27         2.  Was not operated in a grossly negligent manner at

28  any time on or after November 19, 1980;

29         3.  Has not been identified to qualify for listing, nor

30  is listed, on the National Priority List pursuant to the

31  Comprehensive Environmental Response, Compensation, and

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  1  Liability Act of 1980, as amended by the Superfund Amendments

  2  and Reauthorization Act of 1986, and as subsequently amended;

  3  and

  4         4.  Is not under an order from the United States

  5  Environmental Protection Agency pursuant to s. 3008(h) of the

  6  Resource Conservation and Recovery Act, as amended, or has not

  7  obtained and is not required to obtain a permit for the

  8  operation of a hazardous waste treatment, storage, or disposal

  9  facility, a postclosure permit, or a permit pursuant to the

10  federal Hazardous and Solid Waste 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, has provided documented evidence of

16  contamination by drycleaning solvents as required by the rules

17  developed pursuant to this section, has reported the

18  contamination prior to December 31, 1998, and has not denied

19  the department access to the site.

20         (e)(c)  For purposes of determining eligibility, a

21  drycleaning facility or wholesale supply facility was operated

22  in a grossly negligent manner if the department determines

23  that the owner or operator of the drycleaning facility or the

24  wholesale supply facility:

25         1.  Willfully discharged drycleaning solvents onto the

26  soils or into the waters of the state after November 19, 1980,

27  with the knowledge, intent, and purpose that the discharge

28  would result in harm to the environment or to public health or

29  result in a violation of the law;

30         2.  Willfully concealed a discharge of drycleaning

31  solvents with the knowledge, intent, and purpose that the

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  1  concealment would result in harm to the environment or to

  2  public health or result in a violation of the law; or

  3         3.  Willfully violated a local, state, or federal law

  4  or rule regulating the operation of drycleaning facilities or

  5  wholesale supply facilities with the knowledge, intent, and

  6  purpose that the act would result in harm to the environment

  7  or to public health or result in a violation of the law.

  8         (f)(d)1.  With respect to eligible drycleaning solvent

  9  contamination reported to the department as part of a

10  completed application as required by the rules developed

11  pursuant to this section by June 30, 1997, the costs of

12  activities described in paragraph (2)(b) shall be absorbed at

13  the expense of the drycleaning facility restoration funds,

14  less a $1,000 deductible per incident, which shall be paid by

15  the applicant or current property owner. The deductible shall

16  be paid within 60 days after receipt of billing by the

17  department.

18         2.  For contamination reported to the department as

19  part of a completed application as required by the rules

20  developed under this section, from July 1, 1997, through

21  September 30, 1998, the costs shall be absorbed at the expense

22  of the drycleaning facility restoration funds, less a $5,000

23  deductible per incident. The deductible shall be paid within

24  60 days after receipt of billing by the department.

25         3.  For contamination reported to the department as

26  part of a completed application as required by the rules

27  developed pursuant to this section from October 1, 1998,

28  through December 31, 1998, the costs shall be absorbed at the

29  expense of the drycleaning facility restoration funds, less a

30  $10,000 deductible per incident. The deductible shall be paid

31  within 60 days after receipt of billing by the department.

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  1         4.  For contamination reported after December 31, 1998,

  2  no costs will be absorbed at the expense of the drycleaning

  3  facility restoration funds.

  4         (g)(e)  The provisions of this subsection shall not

  5  apply to any site where the department has been denied site

  6  access to implement the provisions of this section.

  7         (h)(f)  In order to identify those drycleaning

  8  facilities and wholesale supply facilities that have

  9  experienced contamination resulting from the discharge of

10  drycleaning solvents and to ensure the most expedient

11  rehabilitation of such sites, the owners and operators of

12  drycleaning facilities and wholesale supply facilities are

13  encouraged to detect and report contamination from drycleaning

14  solvents related to the operation of drycleaning facilities

15  and wholesale supply facilities.  The department shall

16  establish reasonable guidelines for the written reporting of

17  drycleaning contamination and shall distribute forms to

18  registrants under s. 376.303(1)(d), and to other interested

19  parties upon request, to be used for such purpose.

20         (i)(g)  A report of drycleaning solvent contamination

21  at a drycleaning facility or wholesale supply facility made to

22  the department by any person in accordance with this

23  subsection, or any rules promulgated pursuant hereto, may not

24  be used directly as evidence of liability for such discharge

25  in any civil or criminal trial arising out of the discharge.

26         (j)(h)  The provisions of this subsection shall not

27  apply to drycleaning facilities owned or operated by the state

28  or Federal Government.

29         (k)(i)  Due to the value of Florida's potable water, it

30  is the intent of the Legislature that the department initiate

31  and facilitate as many cleanups as possible utilizing the

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  1  resources of the state, local governments, and the private

  2  sector. The department is authorized to adopt necessary rules

  3  and enter into contracts to carry out the intent of this

  4  subsection and to limit or prevent future contamination from

  5  the operation of drycleaning facilities and wholesale supply

  6  facilities.

  7         (l)(j)  It is not the intent of the Legislature that

  8  the state become the owner or operator of a drycleaning

  9  facility or wholesale supply facility by engaging in

10  state-conducted cleanup.

11         (m)(k)  The owner, operator, and either the real

12  property owner or agent of the real property owner may apply

13  for the Drycleaning Contamination Cleanup Program by jointly

14  submitting a completed application package to the department

15  pursuant to the rules that shall be adopted by the department.

16  If the application cannot be jointly submitted, then the

17  applicant shall provide notice of the application to other

18  interested parties. After reviewing the completed application

19  package, the department shall notify the applicant in writing

20  as to whether the drycleaning facility or wholesale supply

21  facility is eligible for the program. If the department denies

22  eligibility for a completed application package, the notice of

23  denial shall specify the reasons for the denial, including

24  specific and substantive findings of fact, and shall

25  constitute agency action subject to the provisions of chapter

26  120.  For the purposes of ss. 120.569 and 120.57, the real

27  property owner and the owner and operator of a drycleaning

28  facility or wholesale supply facility which is the subject of

29  a decision by the department with regard to eligibility shall

30  be deemed to be parties whose substantial interests are

31

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  1  determined by the department's decision to approve or deny

  2  eligibility.

  3         (n)(l)  Eligibility under this subsection applies to

  4  the drycleaning facility or wholesale supply facility and

  5  attendant site rehabilitation applies to such facilities and

  6  to any place where drycleaning-solvent contamination from the

  7  eligible facility is found to be located.  A determination of

  8  eligibility or ineligibility shall not be affected by any

  9  conveyance of the ownership of the drycleaning facility,

10  wholesale supply facility, or the real property on which such

11  facility is located.  Nothing contained in this chapter shall

12  be construed to allow a drycleaning facility or wholesale

13  supply facility which would not be eligible under this

14  subsection to become eligible as a result of the conveyance of

15  the ownership of the ineligible drycleaning facility or

16  wholesale supply facility to another owner.

17         (o)(m)  If funding for the drycleaning contamination

18  rehabilitation program is eliminated, the provisions of this

19  subsection shall not apply.

20         (p)(n)1.  The department shall have the authority to

21  cancel the eligibility of any drycleaning facility or

22  wholesale supply facility that submits fraudulent information

23  in the application package or that fails to continuously

24  comply with the conditions of eligibility set forth in this

25  subsection, or has not remitted all fees pursuant to s.

26  376.303(1)(d), or has not remitted the deductible payments

27  pursuant to paragraph (f)(d).

28         2.  If the program eligibility of a drycleaning

29  facility or wholesale supply facility is subject to

30  cancellation pursuant to this section, then the department

31  shall notify the applicant in writing of its intent to cancel

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  1  program eligibility and shall state the reason or reasons for

  2  cancellation. The applicant shall have 45 days to resolve the

  3  reason or reasons for cancellation to the satisfaction of the

  4  department.  If, after 45 days, the applicant has not resolved

  5  the reason or reasons for cancellation to the satisfaction of

  6  the department, the order of cancellation shall become final

  7  and shall be subject to the provisions of chapter 120.

  8         (q)(o)  A real property owner shall not be subject to

  9  administrative or judicial action brought by or on behalf of

10  any person or local or state government, or agency thereof,

11  for gross negligence or violations of department rules prior

12  to January 1, 1990, which resulted from the operation of a

13  drycleaning facility, provided that the real property owner

14  demonstrates that:

15         1.  The real property owner had ownership in the

16  property at the time of the gross negligence or violation of

17  department rules and did not cause or contribute to

18  contamination on the property;

19         2.  The real property owner was a distinct and separate

20  entity from the owner and operator of the drycleaning

21  facility, and did not have an ownership interest in or share

22  in the profits of the drycleaning facility;

23         3.  The real property owner did not participate in the

24  operation or management of the drycleaning facility;

25         4.  The real property owner complied with all discharge

26  reporting requirements, and did not conceal any contamination;

27  and

28         5.  The department has not been denied access.

29

30  The defense provided by this paragraph does not apply to any

31  liability under a federally delegated program.

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  1         (r)(p)  A person whose property becomes contaminated

  2  due to geophysical or hydrologic reasons from the operation of

  3  a nearby drycleaning or wholesale supply facility and whose

  4  property has never been occupied by a business that utilized

  5  or stored drycleaning solvents or similar constituents is not

  6  subject to administrative or judicial action brought by or on

  7  behalf of another to compel the rehabilitation of or the

  8  payment of the costs for the rehabilitation of sites

  9  contaminated by drycleaning solvents, provided that the

10  person:

11         1.  Does not own and has never held an ownership

12  interest in, or shared in the profits of, the drycleaning

13  facility operated at the source location;

14         2.  Did not participate in the operation or management

15  of the drycleaning facility at the source location; and

16         3.  Did not cause, contribute to, or exacerbate the

17  release or threat of release of any hazardous substance

18  through any act or omission.

19

20  The defense provided by this paragraph does not apply to any

21  liability under a federally delegated program.

22         (s)(q)  Nothing in this subsection precludes the

23  department from considering information and documentation

24  provided by private consultants, local government programs,

25  federal agencies, or any individual which is relevant to an

26  eligibility determination if the department provides the

27  applicant with reasonable access to the information and its

28  origin.

29         (11)  VOLUNTARY CLEANUP.--A real property owner is

30  authorized to conduct site rehabilitation activities at any

31  time pursuant to department rules, either through agents of

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  1  the real property owner or through responsible response action

  2  contractors or subcontractors, whether or not the facility has

  3  been determined by the department to be eligible for the

  4  drycleaning solvent cleanup program.  A real property owner or

  5  any other person who that conducts site rehabilitation may not

  6  seek cost recovery from the department or the Water Quality

  7  Assurance Trust Fund for any such rehabilitation activities. A

  8  real property owner who that voluntarily conducts such site

  9  rehabilitation, whether commenced before or on or after

10  October 1, 1995, shall be immune from and have no liability

11  for claims of any persons, state, or local government for

12  property damages of any kind, including, but not limited to,

13  diminished value of real property or improvements, lost or

14  delayed rent, sale or use of real property or improvements, or

15  stigma to real property or improvements caused by

16  drycleaning-solvent contamination or be subject to any

17  administrative or judicial action brought by or on behalf of

18  liability to any person, state or local government, or agency

19  thereof to compel or enjoin site rehabilitation or pay for the

20  cost of rehabilitation of environmental contamination, and or

21  to pay any fines or penalties regarding rehabilitation, as

22  soon as the real property owner:

23         (a)  Conducts contamination assessment and site

24  rehabilitation consistent with state and federal laws and

25  rules;

26         (b)  Conducts such site rehabilitation in a timely

27  manner according to a rehabilitation schedule approved by the

28  department; and

29         (c)  Does not deny the department access to the site.

30  Upon completion of such site rehabilitation activities in

31  accordance with the requirements of this subsection, the

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  1  department shall render a site rehabilitation completion

  2  order.

  3

  4  The immunity set forth in this subsection also applies to any

  5  nearby real property owner. The real property owner shall

  6  provide upon request from any nearby real property owner all

  7  reasonably available documentation in the public records in

  8  reference to the drycleaning-solvent contamination, including,

  9  but not limited to, copies of any soil or groundwater tests

10  and site assessment reports and a copy of the department's

11  approved voluntary cleanup agreement. The department shall

12  assist the real property owner in providing such

13  documentation. This immunity shall continue to apply to any

14  real property owner who transfers, conveys, leases, or sells

15  property on which a drycleaning facility is located so long as

16  the voluntary cleanup activities continue.

17         Section 3.  Subsection (6) of section 376.308, Florida

18  Statutes, is amended to read:

19         376.308  Liabilities and defenses of facilities.--

20         (6)  Nothing herein shall be construed to affect

21  cleanup program eligibility under ss. 376.305(6), 376.3071,

22  376.3072, 376.3078, and 376.3079. Except as otherwise

23  expressly provided in this chapter, nothing in this chapter

24  shall affect, void, or defeat any immunity of any real

25  property owner or nearby real property owner under s.

26  376.3078.

27         Section 4.  This act shall take effect upon becoming a

28  law.

29

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  1            *****************************************

  2                          SENATE SUMMARY

  3    Exempts certain real property owners and others from
      claims for property damage arising from contamination by
  4    drycleaning solvents.

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