HB 0741 2003
1	A bill to be entitled
2	An act relating to liability under the drycleaning solvent
3	cleanup program; amending s. 376.301, F.S.; defining the
4	term "nearby real property owner" with respect to
5	protection and restoration of lands and surface and ground
6	waters; amending s. 376.3078, F.S.; providing additional
7	legislative findings with respect to drycleaning facility
8	restoration; exempting certain real property owners and
9	nearby real property owners from liability for damages
10	arising from contamination by drycleaning solvents in
11	certain circumstances; providing for retroactive
12	application; amending s. 376.30781, F.S.; conforming a
13	cross-reference; amending s. 376.3079, F.S.; redefining
14	the term "third-party liability" with respect to third-
15	party liability insurance; amending s. 376.308, F.S.;
16	revising applicability of provisions that set out
17	liabilities and defenses of facilities; amending s.
18	376.313, F.S.; revising provisions that provide
19	nonexclusiveness of remedies and individual causes of
20	action; providing an effective date.
21
22	Be It Enacted by the Legislature of the State of Florida:
23
24	Section 1. Subsection (47) is added to section 376.301,
25	Florida Statutes, to read:
26	376.301 Definitions of terms used in ss. 376.30-376.319,
27	376.70, and 376.75.--When used in ss. 376.30-376.319, 376.70,
28	and 376.75, unless the context clearly requires otherwise, the
29	term:
30	(47) "Nearby real property owner" means the individual or
31	entity that is vested with ownership, dominion, or legal or
32	rightful title to real property, or that has a ground lease in
33	real property, onto which drycleaning solvent has migrated
34	through soil or groundwater from a drycleaning facility or
35	wholesale supply facility eligible for site rehabilitation under
36	s. 376.3078(3) or from a drycleaning facility or wholesale
37	supply facility that is approved by the department for voluntary
38	cleanup under s. 376.3078(11).
39	Section 2. Subsections (1), (3), and (11) of section
40	376.3078, Florida Statutes, are amended to read:
41	376.3078 Drycleaning facility restoration; funds; uses;
42	liability; recovery of expenditures.--
43	(1) FINDINGS.--In addition to the legislative findings set
44	forth in s. 376.30, the Legislature finds and declares that:
45	(a) Significant quantities of drycleaning solvents have
46	been discharged in the past at drycleaning facilities as part of
47	the normal operation of these facilities.
48	(b) Discharges of drycleaning solvents at such drycleaning
49	facilities have occurred and are occurring, and pose a
50	significant threat to the quality of the groundwaters and inland
51	surface waters of this state.
52	(c) Where contamination of the groundwater or surface
53	water has occurred, remedial measures have often been delayed
54	for long periods while determinations as to liability and the
55	extent of liability are made, and such delays result in the
56	continuation and intensification of the threat to the public
57	health, safety, and welfare; in greater damage to the
58	environment; and in significantly higher costs to contain and
59	remove the contamination.
60	(d) Adequate financial resources must be readily available
61	to provide for the expeditious supply of safe and reliable
62	alternative sources of potable water to affected persons and to
63	provide a means for investigation and rehabilitation of
64	contaminated sites without delay.
65	(e) It is the intent of the Legislature to encourage real
66	property owners to undertake the voluntary cleanup of property
67	contaminated with drycleaning solvents and that the immunity
68	provisions of this section and all other available defenses be
69	construed in favor of real property owners.
70	(f) Strong public interests are served by subsections (3)
71	and (11). These include improving the marketability and use of,
72	and the ability to borrow funds as to, property contaminated by
73	drycleaning solvents and encouraging the voluntary remediation
74	of contaminated sites. The extent to which claims or rights are
75	affected by subsections (3) and (11) is offset by the remedies
76	created in this section. The limitations imposed by these
77	subsections on such claims or rights are reasonable when
78	balanced against the public interests served. The claims or
79	rights affected by subsections (3) and (11) are speculative, and
80	these subsections are intended to prevent judicial
81	interpretations allowing windfall awards that thwart the public-
82	interest provisions of this section.
83	(3) REHABILITATION LIABILITY.--
84	(a)In accordance with the eligibility provisions of this
85	section, ano real property owner, nearby real property owner,
86	or noperson who owns or operates, or who otherwise could be
87	liable as a result of the operation of, a drycleaning facility
88	or a wholesale supply facility is not liable for orshall be
89	subject to:
90	1. Claims of any person, except for any governmental
91	entity, for property damage of any kind, including, but not
92	limited to, diminished value of real property or improvements;
93	lost or delayed rent, sale, or use of real property or
94	improvements; or stigma to real property or improvements caused
95	by drycleaning-solvent contamination; or
96	2.Administrative or judicial action brought by or on
97	behalf of any state or local government or agency thereof or by
98	or on behalf of any person to compel rehabilitation or pay for
99	the costs of rehabilitation of environmental contamination
100	resulting from the discharge of drycleaning solvents.
101
102	Subject to the delays that may occur as a result of the
103	prioritization of sites under this section for any qualified
104	site, costs for activities described in paragraph (2)(b) shall
105	be absorbed at the expense of the drycleaning facility
106	restoration funds, without recourse to reimbursement or recovery
107	from the real property owner, nearby real property owner, or the
108	owner or operator of the drycleaning facility or the wholesale
109	supply facility. Notwithstanding any other provision of this
110	chapter, this subsection applies to causes of action accruing on
111	or after the effective date of this act and applies
112	retroactively to causes of action accruing before the effective
113	date of this act for which a lawsuit has not been filed before
114	the effective date of this act.
115	(b)(a)With regard to drycleaning facilities or wholesale
116	supply facilities that have operated as drycleaning facilities
117	or wholesale supply facilities on or after October 1, 1994, any
118	such drycleaning facility or wholesale supply facility at which
119	there exists contamination by drycleaning solvents shall be
120	eligible under this subsection regardless of when the
121	drycleaning contamination was discovered, provided that the
122	drycleaning facility or the wholesale supply facility:
123	1. Has been registered with the department;
124	2. Is determined by the department to be in compliance
125	with the department's rules regulating drycleaning solvents,
126	drycleaning facilities, or wholesale supply facilities on or
127	after November 19, 1980;
128	3. Has not been operated in a grossly negligent manner at
129	any time on or after November 19, 1980;
130	4. Has not been identified to qualify for listing, nor is
131	listed, on the National Priority List pursuant to the
132	Comprehensive Environmental Response, Compensation, and
133	Liability Act of 1980 as amended by the Superfund Amendments and
134	Reauthorization Act of 1986, and as subsequently amended;
135	5. Is not under an order from the United States
136	Environmental Protection Agency pursuant to s. 3008(h) of the
137	Resource Conservation and Recovery Act as amended (42 U.S.C.A.
138	s. 6928(h)), or has not obtained and is not required to obtain a
139	permit for the operation of a hazardous waste treatment,
140	storage, or disposal facility, a postclosure permit, or a permit
141	pursuant to the federal Hazardous and Solid Waste Amendments of
142	1984;
143
144	and provided that the real property owner or the owner or
145	operator of the drycleaning facility or the wholesale supply
146	facility has not willfully concealed the discharge of
147	drycleaning solvents and has remitted all taxes due pursuant to
148	ss. 376.70 and 376.75, has provided documented evidence of
149	contamination by drycleaning solvents as required by the rules
150	developed pursuant to this section, has reported the
151	contamination prior to December 31, 1998, and has not denied the
152	department access to the site.
153	(c)(b)With regard to drycleaning facilities or wholesale
154	supply facilities that cease to be operated as drycleaning
155	facilities or wholesale supply facilities prior to October 1,
156	1994, such facilities, at which there exists contamination by
157	drycleaning solvents, shall be eligible under this subsection
158	regardless of when the contamination was discovered, provided
159	that the drycleaning facility or wholesale supply facility:
160	1. Was not determined by the department, within a
161	reasonable time after the department's discovery, to have been
162	out of compliance with the department rules regulating
163	drycleaning solvents, drycleaning facilities, or wholesale
164	supply facilities implemented at any time on or after November
165	19, 1980;
166	2. Was not operated in a grossly negligent manner at any
167	time on or after November 19, 1980;
168	3. Has not been identified to qualify for listing, nor is
169	listed, on the National Priority List pursuant to the
170	Comprehensive Environmental Response, Compensation, and
171	Liability Act of 1980, as amended by the Superfund Amendments
172	and Reauthorization Act of 1986, and as subsequently amended;
173	and
174	4. Is not under an order from the United States
175	Environmental Protection Agency pursuant to s. 3008(h) of the
176	Resource Conservation and Recovery Act, as amended, or has not
177	obtained and is not required to obtain a permit for the
178	operation of a hazardous waste treatment, storage, or disposal
179	facility, a postclosure permit, or a permit pursuant to the
180	federal Hazardous and Solid Waste Amendments of 1984;
181
182	and provided that the real property owner or the owner or
183	operator of the drycleaning facility or the wholesale supply
184	facility has not willfully concealed the discharge of
185	drycleaning solvents, has provided documented evidence of
186	contamination by drycleaning solvents as required by the rules
187	developed pursuant to this section, has reported the
188	contamination prior to December 31, 1998, and has not denied the
189	department access to the site.
190	(d)(c)For purposes of determining eligibility, a
191	drycleaning facility or wholesale supply facility was operated
192	in a grossly negligent manner if the department determines that
193	the owner or operator of the drycleaning facility or the
194	wholesale supply facility:
195	1. Willfully discharged drycleaning solvents onto the
196	soils or into the waters of the state after November 19, 1980,
197	with the knowledge, intent, and purpose that the discharge would
198	result in harm to the environment or to public health or result
199	in a violation of the law;
200	2. Willfully concealed a discharge of drycleaning solvents
201	with the knowledge, intent, and purpose that the concealment
202	would result in harm to the environment or to public health or
203	result in a violation of the law; or
204	3. Willfully violated a local, state, or federal law or
205	rule regulating the operation of drycleaning facilities or
206	wholesale supply facilities with the knowledge, intent, and
207	purpose that the act would result in harm to the environment or
208	to public health or result in a violation of the law.
209	(e)(d)1. With respect to eligible drycleaning solvent
210	contamination reported to the department as part of a completed
211	application as required by the rules developed pursuant to this
212	section by June 30, 1997, the costs of activities described in
213	paragraph (2)(b) shall be absorbed at the expense of the
214	drycleaning facility restoration funds, less a $1,000 deductible
215	per incident, which shall be paid by the applicant or current
216	property owner. The deductible shall be paid within 60 days
217	after receipt of billing by the department.
218	2. For contamination reported to the department as part of
219	a completed application as required by the rules developed under
220	this section, from July 1, 1997, through September 30, 1998, the
221	costs shall be absorbed at the expense of the drycleaning
222	facility restoration funds, less a $5,000 deductible per
223	incident. The deductible shall be paid within 60 days after
224	receipt of billing by the department.
225	3. For contamination reported to the department as part of
226	a completed application as required by the rules developed
227	pursuant to this section from October 1, 1998, through December
228	31, 1998, the costs shall be absorbed at the expense of the
229	drycleaning facility restoration funds, less a $10,000
230	deductible per incident. The deductible shall be paid within 60
231	days after receipt of billing by the department.
232	4. For contamination reported after December 31, 1998, no
233	costs will be absorbed at the expense of the drycleaning
234	facility restoration funds.
235	(f)(e)The provisions of this subsection shall not apply
236	to any site where the department has been denied site access to
237	implement the provisions of this section.
238	(g)(f)In order to identify those drycleaning facilities
239	and wholesale supply facilities that have experienced
240	contamination resulting from the discharge of drycleaning
241	solvents and to ensure the most expedient rehabilitation of such
242	sites, the owners and operators of drycleaning facilities and
243	wholesale supply facilities are encouraged to detect and report
244	contamination from drycleaning solvents related to the operation
245	of drycleaning facilities and wholesale supply facilities. The
246	department shall establish reasonable guidelines for the written
247	reporting of drycleaning contamination and shall distribute
248	forms to registrants under s. 376.303(1)(d), and to other
249	interested parties upon request, to be used for such purpose.
250	(h)(g)A report of drycleaning solvent contamination at a
251	drycleaning facility or wholesale supply facility made to the
252	department by any person in accordance with this subsection, or
253	any rules promulgated pursuant hereto, may not be used directly
254	as evidence of liability for such discharge in any civil or
255	criminal trial arising out of the discharge.
256	(i)(h)The provisions of this subsection shall not apply
257	to drycleaning facilities owned or operated by the state or
258	Federal Government.
259	(j)(i)Due to the value of Florida's potable water, it is
260	the intent of the Legislature that the department initiate and
261	facilitate as many cleanups as possible utilizing the resources
262	of the state, local governments, and the private sector. The
263	department is authorized to adopt necessary rules and enter into
264	contracts to carry out the intent of this subsection and to
265	limit or prevent future contamination from the operation of
266	drycleaning facilities and wholesale supply facilities.
267	(k)(j)It is not the intent of the Legislature that the
268	state become the owner or operator of a drycleaning facility or
269	wholesale supply facility by engaging in state-conducted
270	cleanup.
271	(l)(k)The owner, operator, and either the real property
272	owner or agent of the real property owner may apply for the
273	Drycleaning Contamination Cleanup Program by jointly submitting
274	a completed application package to the department pursuant to
275	the rules that shall be adopted by the department. If the
276	application cannot be jointly submitted, then the applicant
277	shall provide notice of the application to other interested
278	parties. After reviewing the completed application package, the
279	department shall notify the applicant in writing as to whether
280	the drycleaning facility or wholesale supply facility is
281	eligible for the program. If the department denies eligibility
282	for a completed application package, the notice of denial shall
283	specify the reasons for the denial, including specific and
284	substantive findings of fact, and shall constitute agency action
285	subject to the provisions of chapter 120. For the purposes of
286	ss. 120.569 and 120.57, the real property owner and the owner
287	and operator of a drycleaning facility or wholesale supply
288	facility which is the subject of a decision by the department
289	with regard to eligibility shall be deemed to be parties whose
290	substantial interests are determined by the department's
291	decision to approve or deny eligibility.
292	(m)(l)Eligibility under this subsection applies to the
293	drycleaning facility or wholesale supply facility, and attendant
294	site rehabilitation applies to such facilities and to any place
295	where drycleaning-solvent contamination migrating from the
296	eligible facility is found. A determination of eligibility or
297	ineligibility shall not be affected by any conveyance of the
298	ownership of the drycleaning facility, wholesale supply
299	facility, or the real property on which such facility is
300	located. Nothing contained in this chapter shall be construed
301	to allow a drycleaning facility or wholesale supply facility
302	which would not be eligible under this subsection to become
303	eligible as a result of the conveyance of the ownership of the
304	ineligible drycleaning facility or wholesale supply facility to
305	another owner.
306	(n)(m)If funding for the drycleaning contamination
307	rehabilitation program is eliminated, the provisions of this
308	subsection shall not apply.
309	(o)(n)1. The department shall have the authority to cancel
310	the eligibility of any drycleaning facility or wholesale supply
311	facility that submits fraudulent information in the application
312	package or that fails to continuously comply with the conditions
313	of eligibility set forth in this subsection, or has not remitted
314	all fees pursuant to s. 376.303(1)(d), or has not remitted the
315	deductible payments pursuant to paragraph (e)(d).
316	2. If the program eligibility of a drycleaning facility or
317	wholesale supply facility is subject to cancellation pursuant to
318	this section, then the department shall notify the applicant in
319	writing of its intent to cancel program eligibility and shall
320	state the reason or reasons for cancellation. The applicant
321	shall have 45 days to resolve the reason or reasons for
322	cancellation to the satisfaction of the department. If, after
323	45 days, the applicant has not resolved the reason or reasons
324	for cancellation to the satisfaction of the department, the
325	order of cancellation shall become final and shall be subject to
326	the provisions of chapter 120.
327	(p)(o)A real property owner shall not be subject to
328	administrative or judicial action brought by or on behalf of any
329	person or local or state government, or agency thereof, for
330	gross negligence or violations of department rules prior to
331	January 1, 1990, which resulted from the operation of a
332	drycleaning facility, provided that the real property owner
333	demonstrates that:
334	1. The real property owner had ownership in the property
335	at the time of the gross negligence or violation of department
336	rules and did not cause or contribute to contamination on the
337	property;
338	2. The real property owner was a distinct and separate
339	entity from the owner and operator of the drycleaning facility,
340	and did not have an ownership interest in or share in the
341	profits of the drycleaning facility;
342	3. The real property owner did not participate in the
343	operation or management of the drycleaning facility;
344	4. The real property owner complied with all discharge
345	reporting requirements, and did not conceal any contamination;
346	and
347	5. The department has not been denied access.
348
349	The defense provided by this paragraph does not apply to any
350	liability under a federally delegated program.
351	(q)(p)A person whose property becomes contaminated due to
352	geophysical or hydrologic reasons from the operation of a nearby
353	drycleaning or wholesale supply facility and whose property has
354	never been occupied by a business that utilized or stored
355	drycleaning solvents or similar constituents is not subject to
356	administrative or judicial action brought by or on behalf of
357	another to compel the rehabilitation of or the payment of the
358	costs for the rehabilitation of sites contaminated by
359	drycleaning solvents, provided that the person:
360	1. Does not own and has never held an ownership interest
361	in, or shared in the profits of, the drycleaning facility
362	operated at the source location;
363	2. Did not participate in the operation or management of
364	the drycleaning facility at the source location; and
365	3. Did not cause, contribute to, or exacerbate the release
366	or threat of release of any hazardous substance through any act
367	or omission.
368
369	The defense provided by this paragraph does not apply to any
370	liability under a federally delegated program.
371	(r)(q)Nothing in this subsection precludes the department
372	from considering information and documentation provided by
373	private consultants, local government programs, federal
374	agencies, or any individual which is relevant to an eligibility
375	determination if the department provides the applicant with
376	reasonable access to the information and its origin.
377	(11) VOLUNTARY CLEANUP.--A real property owner is
378	authorized to conduct site rehabilitation activities at any time
379	pursuant to department rules, either through agents of the real
380	property owner or through responsible response action
381	contractors or subcontractors, whether or not the facility has
382	been determined by the department to be eligible for the
383	drycleaning solvent cleanup program. A real property owner or
384	any other person whothatconducts site rehabilitation may not
385	seek cost recovery from the department or the Water Quality
386	Assurance Trust Fund for any such rehabilitation activities. A
387	real property owner whothatvoluntarily conducts such site
388	rehabilitation, whether commenced before or on or after October
389	1, 1995, shall be immune from and have no liability for claims
390	of any person, except for any governmental entity, for property
391	damages of any kind, including, but not limited to, diminished
392	value of real property or improvements; lost or delayed rent,
393	sale, or use of real property or improvements; or stigma to real
394	property or improvements caused by drycleaning-solvent
395	contamination or be subject to any administrative or judicial
396	action brought by or on behalf oftoany person, state or local
397	government, or agency thereof to compel or enjoin site
398	rehabilitation or pay for the cost of rehabilitation of
399	environmental contamination, andorto pay any fines or
400	penalties regarding rehabilitation, as soon as the real property
401	owner:
402	(a) Conducts contamination assessment and site
403	rehabilitation consistent with state and federal laws and rules;
404	(b) Conducts such site rehabilitation in a timely manner
405	according to a rehabilitation schedule approved by the
406	department; and
407	(c) Does not deny the department access to the site. Upon
408	completion of such site rehabilitation activities in accordance
409	with the requirements of this subsection, the department shall
410	render a site rehabilitation completion order.
411
412	The immunity set forth in this subsection also applies to any
413	nearby real property owner.This immunity shall continue to
414	apply to any real property owner who transfers, conveys, leases,
415	or sells property on which a drycleaning facility is located so
416	long as the voluntary cleanup activities continue.
417	Notwithstanding any other provision of this chapter, this
418	subsection applies to causes of action accruing on or after the
419	effective date of this act and applies retroactively to causes
420	of action accruing before the effective date of this act for
421	which a lawsuit has not been filed before the effective date of
422	this act.
423	Section 3. Subsection (4) of section 376.30781, Florida
424	Statutes, is amended to read:
425	376.30781 Partial tax credits for rehabilitation of
426	drycleaning-solvent-contaminated sites and brownfield sites in
427	designated brownfield areas; application process; rulemaking
428	authority; revocation authority.--
429	(4) To claim the credit, each applicant must apply to the
430	Department of Environmental Protection for an allocation of the
431	$2 million annual credit by December 31 on a form developed by
432	the Department of Environmental Protection in cooperation with
433	the Department of Revenue. The form shall include an affidavit
434	from each applicant certifying that all information contained in
435	the application, including all records of costs incurred and
436	claimed in the tax credit application, are true and correct. If
437	the application is submitted pursuant to subparagraph (2)(a)2.,
438	the form must include an affidavit signed by the real property
439	owner stating that it is not, and has never been, the owner or
440	operator of the drycleaning facility where the contamination
441	exists. Approval of partial tax credits must be accomplished on
442	a first-come, first-served basis based upon the date complete
443	applications are received by the Division of Waste Management.
444	An applicant shall submit only one application per site per
445	year. To be eligible for a tax credit the applicant must:
446	(a) Have entered into a voluntary cleanup agreement with
447	the Department of Environmental Protection for a drycleaning-
448	solvent-contaminated site or a Brownfield Site Rehabilitation
449	Agreement, as applicable; and
450	(b) Have paid all deductibles pursuant to s.
451	376.3078(3)(e)s. 376.3078(3)(d)for eligible drycleaning-
452	solvent-cleanup program sites.
453	Section 4. Subsection (3) of section 376.3079, Florida
454	Statutes, is amended to read:
455	376.3079 Third-party liability insurance.--
456	(3) For purposes of this section and s. 376.3078, the
457	term:
458	(a) "Third-party liability" means the insured's liability,
459	other than for site rehabilitation costs and property damage,
460	for bodily injury or property damagecaused by an incident of
461	contamination related to the operation of a drycleaning facility
462	or wholesale supply facility.
463	(b) "Incident" means any sudden or gradual discharge of
464	drycleaning solvents arising from the operation of a drycleaning
465	facility or wholesale supply facility that results in a need for
466	site rehabilitation or results in bodily injury or property
467	damage neither expected nor intended by the drycleaning facility
468	owner or operator or wholesale supply facility.
469	Section 5. Subsection (6) of section 376.308, Florida
470	Statutes, is amended to read:
471	376.308 Liabilities and defenses of facilities.--
472	(6) This section may notNothing herein shallbe construed
473	to affect cleanup program eligibility under ss. 376.305(6),
474	376.3071, 376.3072, 376.3078, and 376.3079. Except as otherwise
475	expressly provided in this chapter, nothing in this chapter
476	shall affect, void, or defeat any immunity of any real property
477	owner or nearby real property ownerunder s. 376.3078.
478	Section 6. Subsection (3) and paragraph (a) of subsection
479	(5) of section 376.313, Florida Statutes, are amended to read:
480	376.313 Nonexclusiveness of remedies and individual cause
481	of action for damages under ss. 376.30-376.319.--
482	(3) Except as provided in s. 376.3078(3) and (11)
483	Notwithstanding any other provision of law, nothing contained in
484	ss. 376.30-376.319 prohibits any person from bringing a cause of
485	action in a court of competent jurisdiction for all damages
486	resulting from a discharge or other condition of pollution
487	covered by ss. 376.30-376.319. Nothing in this chapter shall
488	prohibit or diminish a party's right to contribution from other
489	parties jointly or severally liable for a prohibited discharge
490	of pollutants or hazardous substances or other pollution
491	conditions. Except as otherwise provided in subsection (4) or
492	subsection (5), in any such suit, it is not necessary for such
493	person to plead or prove negligence in any form or manner. Such
494	person need only plead and prove the fact of the prohibited
495	discharge or other pollutive condition and that it has occurred.
496	The only defenses to such cause of action shall be those
497	specified in s. 376.308.
498	(5)(a) In any civil action against the owner or operator
499	of a drycleaning facility or a wholesale supply facility, or the
500	owner of the real property on which such facility is located, if
501	such facility is not eligible under s. 376.3078(3) and is not
502	involved in voluntary cleanup under s. 376.3078(11), for damages
503	arising from the discharge of drycleaning solvents from a
504	drycleaning facility or wholesale supply facility, the
505	provisions of subsection (3) shall not apply if it can be proven
506	that, at the time of the discharge the alleged damages resulted
507	solely from a discharge from a drycleaning facility or wholesale
508	supply facility that was in compliance with department rules
509	regulating drycleaning facilities or wholesale supply
510	facilities.
511	Section 7. This act shall take effect upon becoming a law.