Senate Bill sb0338e1

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    CS for SB 338                                  First Engrossed



  1                      A bill to be entitled

  2         An act relating to brownfield loan guarantees;

  3         amending s. 376.79, F.S.; revising the

  4         definition of "brownfield sites"; amending s.

  5         376.80, F.S.; revising a condition under which

  6         a local government is required to designate a

  7         brownfield area; revising a required component

  8         of a brownfield site rehabilitation agreement;

  9         revising a requirement of a contractor

10         performing site rehabilitation program tasks;

11         revising contractor requirements that must be

12         certified to the Department of Environmental

13         Protection; revising and providing additional

14         insurance requirements; amending s. 376.82,

15         F.S.; revising terminology with respect to

16         eligibility to participate in the brownfield

17         rehabilitation program; authorizing a county

18         and the Department of Environmental Protection

19         to enter into a written agreement for the

20         performance, funding, and reimbursement of

21         investigative and remedial acts necessary for a

22         property that escheats to the county; amending

23         s. 376.86, F.S.; revising certain restrictions

24         on investing funds maintained in the Inland

25         Protection Trust Fund; providing a schedule for

26         legislative review of the Brownfield Areas Loan

27         Guarantee Program; providing an effective date.

28  

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

30  

31  


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    CS for SB 338                                  First Engrossed



 1         Section 1.  Subsection (3) of section 376.79, Florida

 2  Statutes, is amended to read:

 3         376.79  Definitions relating to Brownfields

 4  Redevelopment Act.--As used in ss. 376.77-376.85, the term:

 5         (3)  "Brownfield sites" means real property, the

 6  expansion, redevelopment, or reuse of which may be sites that

 7  are generally abandoned, idled, or underused industrial and

 8  commercial properties where expansion or redevelopment is

 9  complicated by actual or perceived environmental

10  contamination.

11         Section 2.  Paragraph (b) of subsection (2), paragraph

12  (c) of subsection (5), paragraph (b) of subsection (6) and

13  subsection (7) of section 376.80, Florida Statutes, are

14  amended to read:

15         376.80  Brownfield program administration process.--

16         (2)

17         (b)  A local government shall designate a brownfield

18  area under the provisions of this act provided that:

19         1.  A person who owns or controls a potential

20  brownfield site is requesting the designation and has agreed

21  to rehabilitate and redevelop the brownfield site;

22         2.  The rehabilitation and redevelopment of the

23  proposed brownfield site will result in economic productivity

24  of the area, along with the creation of at least 10 new

25  permanent jobs at the brownfield site, whether full-time or

26  part-time, which are not associated with the implementation of

27  the brownfield site rehabilitation agreement and are not

28  associated with redevelopment project demolition or

29  construction activities pursuant to the redevelopment

30  agreement required under paragraph (5)(i) or an agreement,

31  between the person responsible for site rehabilitation and the


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    CS for SB 338                                  First Engrossed



 1  local government with jurisdiction, which contains terms for

 2  the redevelopment of the brownfield site or brownfield area;

 3         3.  The redevelopment of the proposed brownfield site

 4  is consistent with the local comprehensive plan and is a

 5  permittable use under the applicable local land development

 6  regulations;

 7         4.  Notice of the proposed rehabilitation of the

 8  brownfield area has been provided to neighbors and nearby

 9  residents of the proposed area to be designated, and the

10  person proposing the area for designation has afforded to

11  those receiving notice the opportunity for comments and

12  suggestions about rehabilitation.  Notice pursuant to this

13  subsection must be made in a newspaper of general circulation

14  in the area, at least 16 square inches in size, and the notice

15  must be posted in the affected area; and

16         5.  The person proposing the area for designation has

17  provided reasonable assurance that he or she has sufficient

18  financial resources to implement and complete the

19  rehabilitation agreement and redevelopment plan.

20         (5)  The person responsible for brownfield site

21  rehabilitation must enter into a brownfield site

22  rehabilitation agreement with the department or an approved

23  local pollution control program if actual contamination exists

24  at the brownfield site. The brownfield site rehabilitation

25  agreement must include:

26         (c)  A commitment to conduct site rehabilitation in

27  accordance with department quality assurance rules an approved

28  comprehensive quality assurance plan under department rules;

29         (6)  Any contractor performing site rehabilitation

30  program tasks must demonstrate to the department that the

31  contractor:


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    CS for SB 338                                  First Engrossed



 1         (b)  Has obtained the necessary approvals for

 2  conducting sample collection and analyses pursuant to approval

 3  for the comprehensive quality-assurance plan prepared under

 4  department rules.

 5         (7)  The contractor who is performing the majority of

 6  the site rehabilitation program tasks pursuant to a brownfield

 7  site rehabilitation agreement or supervising the performance

 8  of such tasks by licensed subcontractors in accordance with

 9  the provisions of s. 489.113(9) must certify to the department

10  that the contractor:

11         (a)  Complies with applicable OSHA regulations.

12         (b)  Maintains workers' compensation insurance for all

13  employees as required by the Florida Workers' Compensation

14  Law.

15         (c)  Maintains comprehensive general liability coverage

16  with limits of not less than $1 million per occurrence and $2

17  million general aggregate for bodily injury and property

18  damage and comprehensive automobile liability coverage

19  insurance with minimum limits of not less than $2 at least $1

20  million combined single limit. The contractor shall also

21  maintain pollution liability coverage with limits of not less

22  than $3 million aggregate for personal injury or death, $1

23  million per occurrence for personal injury or death, and $1

24  million per occurrence for property damage. The contractor's

25  certificate of insurance shall name per claim and $1 million

26  annual aggregate, sufficient to protect it from claims for

27  damage for personal injury, including accidental death, as

28  well as claims for property damage which may arise from

29  performance of work under the program, designating the state

30  as an additional insured party.

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    CS for SB 338                                  First Engrossed



 1         (d)  Maintains professional liability insurance of at

 2  least $1 million per claim occurrence and $1 million annual

 3  aggregate.

 4         (e)  Has the capacity to perform or directly supervise

 5  the majority of the work at a site in accordance with s.

 6  489.113(9).

 7         Section 3.  Subsection (1) of section 376.82, Florida

 8  Statutes, is amended, and paragraph (l) is added to subsection

 9  (2) of said section, to read:

10         376.82  Eligibility criteria and liability

11  protection.--

12         (1)  ELIGIBILITY.--Any person who has not caused or

13  contributed to the contamination of a brownfield site on or

14  after July 1, 1997, is eligible to participate in the

15  brownfield rehabilitation program established in ss.

16  376.77-376.85, subject to the following:

17         (a)  Potential brownfield sites that are subject to an

18  ongoing formal judicial or administrative enforcement action

19  or corrective action pursuant to federal authority, including,

20  but not limited to, the Comprehensive Environmental Response

21  Compensation and Liability Act, 42 U.S.C. ss. 9601 et seq., as

22  amended; the Safe Drinking Water Act, 42 U.S.C. ss. 300f-300i,

23  as amended; the Clean Water Act, 33 U.S.C. ss. 1251-1387, as

24  amended; or under an order from the United States

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

26  Resource Conservation and Recovery Act, as amended (42

27  U.S.C.A. s. 6928(h)); or that have obtained or are required to

28  obtain a permit for the operation of a hazardous waste

29  treatment, storage, or disposal facility; a postclosure

30  permit; or a permit pursuant to the federal Hazardous and

31  Solid Waste Amendments of 1984, are not eligible for


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    CS for SB 338                                  First Engrossed



 1  participation unless specific exemptions are secured by a

 2  memorandum of agreement with the United States Environmental

 3  Protection Agency pursuant to paragraph (2)(g). A brownfield

 4  site within an eligible brownfield area that subsequently

 5  becomes subject to formal judicial or administrative

 6  enforcement action or corrective action under such federal

 7  authority shall have its eligibility revoked unless specific

 8  exemptions are secured by a memorandum of agreement with the

 9  United States Environmental Protection Agency pursuant to

10  paragraph (2)(g).

11         (b)  Persons who have not caused or contributed to the

12  contamination of a brownfield site on or after July 1, 1997,

13  and who, prior to the department's approval of a brownfield

14  site rehabilitation agreement, are subject to ongoing

15  corrective action or enforcement under state authority

16  established in this chapter or chapter 403, including those

17  persons subject to a pending consent order with the state, are

18  eligible for participation in a brownfield site rehabilitation

19  agreement corrective action if:

20         1.  The proposed brownfield site is currently idle or

21  underutilized as a result of the contamination, and

22  participation in the brownfield program will immediately,

23  after cleanup or sooner, result in increased economic

24  productivity at the site, including at a minimum the creation

25  of 10 new permanent jobs, whether full-time or part-time,

26  which are not associated with implementation of the brownfield

27  site rehabilitation agreement corrective action plan; and

28         2.  The person is complying in good faith with the

29  terms of an existing consent order or department-approved

30  corrective action plan, or responding in good faith to an

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    CS for SB 338                                  First Engrossed



 1  enforcement action, as evidenced by a determination issued by

 2  the department or an approved local pollution control program.

 3         (c)  Potential brownfield sites owned by the state or a

 4  local government which contain contamination for which a

 5  governmental entity is potentially responsible and which are

 6  already designated as federal brownfield pilot projects or

 7  have filed an application for designation to the United States

 8  Environmental Protection Agency are eligible for participation

 9  in a brownfield site rehabilitation agreement corrective

10  action.

11         (d)  After July 1, 1997, petroleum and drycleaning

12  contamination sites shall not receive both restoration funding

13  assistance available for the discharge under this chapter and

14  any state assistance available under s. 288.107.  Nothing in

15  this act shall affect the cleanup criteria, priority ranking,

16  and other rights and obligations inherent in petroleum

17  contamination and drycleaning contamination site

18  rehabilitation under ss. 376.30-376.319, or the availability

19  of economic incentives otherwise provided for by law.

20         (2)  LIABILITY PROTECTION.--

21         (1)  When a property, including a brownfield site,

22  escheats to a county, the county is not subject to any

23  liability imposed by this chapter or chapter 403 for

24  preexisting soil or groundwater contamination due solely to

25  its ownership. However, this paragraph does not affect the

26  rights or liabilities of any past or future owners of the

27  escheated property and does not affect the liability of any

28  governmental entity for the results of its actions that create

29  or exacerbate a pollution source. The county and the

30  Department of Environmental Protection may enter into a

31  written agreement for the performance, funding, and


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    CS for SB 338                                  First Engrossed



 1  reimbursement of the investigative and remedial acts necessary

 2  for a property that escheats to the county.

 3         Section 4.  Subsections (3) and (8) of section 376.86,

 4  Florida Statutes, as amended by section 56 of chapter

 5  2003-399, Laws of Florida, are amended to read:

 6         376.86  Brownfield Areas Loan Guarantee Program.--

 7         (3)  The council may enter into an investment agreement

 8  with the Department of Environmental Protection and the State

 9  Board of Administration concerning the investment of the

10  earnings accrued and collected upon the investment of the

11  balance of funds maintained in the Inland Protection

12  Nonmandatory Land Reclamation Trust Fund. The investment must

13  be limited as follows:

14         (a)  Not more than $5 million of the investment

15  earnings earned on the investment of the minimum balance of

16  the Inland Protection Nonmandatory Land Reclamation Trust Fund

17  in a fiscal year may be at risk at any time on loan guarantees

18  or as loan loss reserves. Of that amount, 15 percent shall be

19  reserved for investment agreements involving predominantly

20  minority-owned businesses which meet the requirements of

21  subsection (4).

22         (b)  Such funds at risk at any time The investment

23  earnings may not be used to guarantee any loan guaranty or

24  loan loss reserve agreement for a period longer than 5 years.

25         (8)  The council shall provide an annual report to the

26  Legislature by February 1 of each year describing its

27  activities and agreements approved relating to redevelopment

28  of brownfield areas. This section shall be reviewed by the

29  Legislature by January 1, 2007 October 1, 2003, and a

30  determination made related to the need to continue or modify

31  this section. New loan guarantees may not be approved in 2007


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    CS for SB 338                                  First Engrossed



 1  2003 until the review by the Legislature has been completed

 2  and a determination has been made as to the feasibility of

 3  continuing the use of the Inland Protection Nonmandatory Land

 4  Reclamation Trust Fund to guarantee portions of loans under

 5  this section.

 6         Section 5.  This act shall take effect July 1, 2004.

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