HB 0485 2004
1	A bill to be entitled
2	An act relating to rehabilitation of contaminated sites;
3	amending s. 376.86, F.S.; increasing the percentage of
4	primary lenders loans for redevelopment projects in
5	brownfield areas to which the limited state loan guaranty
6	under the Brownfield Areas Loan Guarantee Program applies;
7	revising provisions with respect to an authorized
8	investment agreement between the Brownfield Areas Loan
9	Guarantee Council and the Department of Environmental
10	Protection and the State Board of Administration
11	concerning the investment of specified funds maintained in
12	the Nonmandatory Land Reclamation Trust Fund; requiring
13	legislative review of provisions of the Brownfield Areas
14	Loan Guarantee Program which pledge portions of the
15	Nonmandatory Land Reclamation Trust Fund as a contingency
16	on loan guarantees made pursuant to the program; providing
17	purpose of the review; prohibiting approval of new loan
18	guarantees until the legislative review has been completed
19	and specified determinations made; extending dates for
20	required legislative review of the Brownfield Areas Loan
21	Guarantee Program and restriction on approval for new loan
22	guarantees; amending s. 376.30781, F.S.; increasing the
23	tax credit for rehabilitation of drycleaning-solvent-
24	contaminated sites and brownfield sites in designated
25	brownfield areas; increasing the maximum amount that a tax
26	credit applicant, or multiple tax credit applicants
27	working jointly to clean up a single site, may be granted
28	per year in tax credits for each site voluntarily
29	rehabilitated; increasing the total annual amount of
30	contaminated site rehabilitation tax credits allocated by
31	the Department of Environmental Protection; amending ss.
32	199.1055 and 220.1845, F.S.; increasing the amount of the
33	contaminated site rehabilitation tax credit; increasing
34	the maximum amount that a tax credit applicant, or
35	multiple tax credit applicants working jointly to clean up
36	a single site, may be granted per year in tax credits for
37	each site voluntarily rehabilitated; increasing the total
38	annual amount a municipality, county, or other tax credit
39	applicant which voluntarily rehabilitates a site may
40	receive per year in tax credits which it can subsequently
41	transfer to specified entities; increasing the total
42	amount of tax credits which may be granted annually;
43	amending s. 288.107, F.S.; revising the definition of
44	"eligible business" with respect to brownfield
45	redevelopment bonus refunds; authorizing the Office of
46	Tourism, Trade, and Economic Development to waive the
47	fixed capital investment requirement for an eligible
48	business for specified projects; providing conditions and
49	requirements with respect to such waiver; amending s.
50	376.79, F.S.; revising the definition of "brownfield
51	sites"; amending s. 376.80, F.S.; revising a condition
52	under which a local government is required to designate a
53	brownfield area; revising a required component of a
54	brownfield site rehabilitation agreement; revising a
55	requirement of a contractor performing site rehabilitation
56	program tasks; revising contractor requirements that must
57	be certified to the Department of Environmental
58	Protection; revising and providing additional insurance
59	requirements; amending s. 376.82, F.S.; revising
60	terminology with respect to eligibility to participate in
61	the brownfield rehabilitation program; providing an
62	effective date.
63
64	Be It Enacted by the Legislature of the State of Florida:
65
66	Section 1. Subsections (1), (3), and (8) of section
67	376.86, Florida Statutes, as amended by section 56 of chapter
68	2003-399, Laws of Florida, are amended to read:
69	376.86 Brownfield Areas Loan Guarantee Program.--
70	(1) The Brownfield Areas Loan Guarantee Council is created
71	to review and approve or deny by a majority vote of its
72	membership, the situations and circumstances for participation
73	in partnerships by agreements with local governments, financial
74	institutions, and others associated with the redevelopment of
75	brownfield areas pursuant to the Brownfields Redevelopment Act
76	for a limited state guaranty of up to 5 years of loan guarantees
77	or loan loss reserves issued pursuant to law. The limited state
78	loan guaranty applies only to 20 10percent of the primary
79	lenders loans for redevelopment projects in brownfield areas. A
80	limited state guaranty of private loans or a loan loss reserve
81	is authorized for lenders licensed to operate in the state upon
82	a determination by the council that such an arrangement would be
83	in the public interest and the likelihood of the success of the
84	loan is great.
85	(3) The council may enter into an investment agreement
86	with the Department of Environmental Protection and the State
87	Board of Administration concerning the investment of the
88	earnings accrued and collected upon theinvestment of the
89	balance of funds maintained in the Nonmandatory Land Reclamation
90	Trust Fund. The investment must be limited as follows:
91	(a) Not more than $5 million of the investment earnings
92	earned on the investment of the minimumbalance of the
93	Nonmandatory Land Reclamation Trust Fund in a fiscal year may be
94	at risk at any time on loan guarantees or as loan loss reserves.
95	Of that amount, 15 percent shall be reserved for investment
96	agreements involving predominantly minority-owned businesses
97	which meet the requirements of subsection (4).
98	(b) Such funds at risk at any time The investment earnings
99	may not be used to guarantee any loan guaranty or loan loss
100	reserve agreement for a period longer than 5 years.
101	(8) The council shall provide an annual report to the
102	Legislature by February 1 of each year describing its activities
103	and agreements approved relating to redevelopment of brownfield
104	areas. By January 1, 2007, the Legislature shall review the
105	provisions of this section which pledge portions of the
106	Nonmandatory Land Reclamation Trust Fund as a contingency on
107	loan guarantees made pursuant to this section in order to
108	determine the ability of the trust fund to continue serving as a
109	contingency fund on loan guarantees. New loan guarantees may
110	not be approved in calendar year 2007 until the review by the
111	Legislature has been completed and a determination made as to an
112	appropriate trust fund to serve as a contingency fund on loan
113	guarantees.This section shall be reviewed by the Legislature
114	by January 1, 2007 October 1, 2003, and a determination made
115	related to the need to continue or modify this section. New loan
116	guarantees may not be approved in calendar year 2007 2003until
117	the review by the Legislature has been completed and a
118	determination has been made as to the feasibility of continuing
119	the use of the Nonmandatory Land Reclamation Trust Fund to
120	guarantee portions of loans under this section.
121	Section 2. Paragraphs (a) and (b) of subsection (2) and
122	subsections (3), (4), (7), and (9) of section 376.30781, Florida
123	Statutes, are amended to read:
124	376.30781 Partial tax credits for rehabilitation of
125	drycleaning-solvent-contaminated sites and brownfield sites in
126	designated brownfield areas; application process; rulemaking
127	authority; revocation authority.--
128	(2)(a) A credit in the amount of 40 35percent of the
129	costs of voluntary cleanup activity that is integral to site
130	rehabilitation at the following sites is allowed pursuant to ss.
131	199.1055 and 220.1845:
132	1. A drycleaning-solvent-contaminated site eligible for
133	state-funded site rehabilitation under s. 376.3078(3);
134	2. A drycleaning-solvent-contaminated site at which
135	cleanup is undertaken by the real property owner pursuant to s.
136	376.3078(11), if the real property owner is not also, and has
137	never been, the owner or operator of the drycleaning facility
138	where the contamination exists; or
139	3. A brownfield site in a designated brownfield area under
140	s. 376.80.
141	(b) A tax credit applicant, or multiple tax credit
142	applicants working jointly to clean up a single site, may not be
143	granted more than $400,000 $250,000per year in tax credits for
144	each site voluntarily rehabilitated. Multiple tax credit
145	applicants shall be granted tax credits in the same proportion
146	as their contribution to payment of cleanup costs. Tax credits
147	are available only for site rehabilitation conducted during the
148	calendar year for which the tax credit application is submitted.
149	(3) The Department of Environmental Protection shall be
150	responsible for allocating the tax credits provided for in ss.
151	199.1055 and 220.1845, not to exceed a total of $5 $2million in
152	tax credits annually.
153	(4) To claim the credit for site rehabilitation conducted
154	during the current calendar year, each tax credit applicant must
155	apply to the Department of Environmental Protection for an
156	allocation of the $5 $2million annual credit by January 15 of
157	the following year on a form developed by the Department of
158	Environmental Protection in cooperation with the Department of
159	Revenue. The form shall include an affidavit from each tax
160	credit applicant certifying that all information contained in
161	the application, including all records of costs incurred and
162	claimed in the tax credit application, are true and correct. If
163	the application is submitted pursuant to subparagraph (2)(a)2.,
164	the form must include an affidavit signed by the real property
165	owner stating that it is not, and has never been, the owner or
166	operator of the drycleaning facility where the contamination
167	exists. Approval of partial tax credits must be accomplished on
168	a first-come, first-served basis based upon the date complete
169	applications are received by the Division of Waste Management. A
170	tax credit applicant shall submit only one complete application
171	per site for each calendar year's site rehabilitation costs.
172	Incomplete placeholder applications shall not be accepted and
173	will not secure a place in the first-come, first-served
174	application line. To be eligible for a tax credit, the tax
175	credit applicant must:
176	(a) Have entered into a voluntary cleanup agreement with
177	the Department of Environmental Protection for a drycleaning-
178	solvent-contaminated site or a Brownfield Site Rehabilitation
179	Agreement, as applicable; and
180	(b) Have paid all deductibles pursuant to s.
181	376.3078(3)(e) for eligible drycleaning-solvent-cleanup program
182	sites.
183	(7) The Department of Environmental Protection shall
184	review the tax credit application and any supplemental
185	documentation that the tax credit applicant may submit prior to
186	the annual application deadline in order to have the application
187	considered complete, for the purpose of verifying that the tax
188	credit applicant has met the qualifying criteria in subsections
189	(2) and (4) and has submitted all required documentation listed
190	in subsection (5). Upon verification that the tax credit
191	applicant has met these requirements, the department shall issue
192	a written decision granting eligibility for partial tax credits
193	(a tax credit certificate) in the amount of 40 35percent of the
194	total costs claimed, subject to the $400,000 $250,000
195	limitation, for the calendar year for which the tax credit
196	application is submitted based on the report of the certified
197	public accountant and the certifications from the appropriate
198	registered technical professionals.
199	(9) If a tax credit applicant does not receive a tax
200	credit allocation due to an exhaustion of the $5 $2million
201	annual tax credit authorization, such application will then be
202	included in the same first-come, first-served order in the next
203	year's annual tax credit allocation, if any, based on the prior
204	year application.
205	Section 3. Paragraphs (a), (b), and (f) of subsection (1)
206	of section 199.1055, Florida Statutes, are amended to read:
207	199.1055 Contaminated site rehabilitation tax credit.--
208	(1) AUTHORIZATION FOR TAX CREDIT; LIMITATIONS.--
209	(a) A credit in the amount of 40 35percent of the costs
210	of voluntary cleanup activity that is integral to site
211	rehabilitation at the following sites is available against any
212	tax due for a taxable year under s. 199.032, less any credit
213	allowed by former s. 220.68 for that year:
214	1. A drycleaning-solvent-contaminated site eligible for
215	state-funded site rehabilitation under s. 376.3078(3);
216	2. A drycleaning-solvent-contaminated site at which
217	cleanup is undertaken by the real property owner pursuant to s.
218	376.3078(11), if the real property owner is not also, and has
219	never been, the owner or operator of the drycleaning facility
220	where the contamination exists; or
221	3. A brownfield site in a designated brownfield area under
222	s. 376.80.
223	(b) A tax credit applicant, or multiple tax credit
224	applicants working jointly to clean up a single site, may not be
225	granted more than $400,000 $250,000per year in tax credits for
226	each site voluntarily rehabilitated. Multiple tax credit
227	applicants shall be granted tax credits in the same proportion
228	as their contribution to payment of cleanup costs. Subject to
229	the same conditions and limitations as provided in this section,
230	a municipality, county, or other tax credit applicant which
231	voluntarily rehabilitates a site may receive not more than
232	$400,000 $250,000per year in tax credits which it can
233	subsequently transfer subject to the provisions in paragraph
234	(g).
235	(f) The total amount of the tax credits which may be
236	granted under this section and s. 220.1845 is $5 $2million
237	annually.
238	Section 4. Paragraphs (a), (b), and (g) of subsection (1)
239	of section 220.1845, Florida Statutes, are amended to read:
240	220.1845 Contaminated site rehabilitation tax credit.--
241	(1) AUTHORIZATION FOR TAX CREDIT; LIMITATIONS.--
242	(a) A credit in the amount of 40 35percent of the costs
243	of voluntary cleanup activity that is integral to site
244	rehabilitation at the following sites is available against any
245	tax due for a taxable year under this chapter:
246	1. A drycleaning-solvent-contaminated site eligible for
247	state-funded site rehabilitation under s. 376.3078(3);
248	2. A drycleaning-solvent-contaminated site at which
249	cleanup is undertaken by the real property owner pursuant to s.
250	376.3078(11), if the real property owner is not also, and has
251	never been, the owner or operator of the drycleaning facility
252	where the contamination exists; or
253	3. A brownfield site in a designated brownfield area under
254	s. 376.80.
255	(b) A tax credit applicant, or multiple tax credit
256	applicants working jointly to clean up a single site, may not be
257	granted more than $400,000 $250,000per year in tax credits for
258	each site voluntarily rehabilitated. Multiple tax credit
259	applicants shall be granted tax credits in the same proportion
260	as their contribution to payment of cleanup costs. Subject to
261	the same conditions and limitations as provided in this section,
262	a municipality, county, or other tax credit applicant which
263	voluntarily rehabilitates a site may receive not more than
264	$400,000 $250,000per year in tax credits which it can
265	subsequently transfer subject to the provisions in paragraph
266	(h).
267	(g) The total amount of the tax credits which may be
268	granted under this section and s. 199.1055 is $5 $2million
269	annually.
270	Section 5. Paragraph (e) of subsection (1) and paragraph
271	(b) of subsection (3) of section 288.107, Florida Statutes, are
272	amended to read:
273	288.107 Brownfield redevelopment bonus refunds.--
274	(1) DEFINITIONS.--As used in this section:
275	(e) "Eligible business" means:
276	1. A qualified target industry business as defined in s.
277	288.106(1)(o); or
278	2. A business that can demonstrate a fixed capital
279	investment of at least $2 million in mixed-use business
280	activities, including multiunit housing, commercial, retail, and
281	industrial in brownfield areas and which provides benefits to
282	its employees, unless the fixed capital investment requirement
283	is waived pursuant to paragraph (3)(b).
284	(3) CRITERIA.--The minimum criteria for participation in
285	the brownfield redevelopment bonus refund are:
286	(b) The completion of a fixed capital investment of at
287	least $2 million in mixed-use business activities, including
288	multiunit housing, commercial, retail, and industrial in
289	brownfield areas, by an eligible business applying for a refund
290	under paragraph (2)(b) which provides benefits to its employees.
291	The office may waive the fixed capital investment requirement at
292	the request of the local governing body recommending the project
293	and Enterprise Florida, Inc. The fixed capital investment
294	requirement may only be waived for a project located in a rural
295	city or county, community redevelopment area, enterprise zone,
296	or empowerment zone, and only when the merits of the individual
297	project or the specific circumstances in the community in
298	relationship to the project warrant such action. If the local
299	governing body and Enterprise Florida, Inc., make such a
300	recommendation, it must be transmitted in writing and the
301	specific justification for the waiver recommendation must be
302	explained. If the director elects to waive the fixed capital
303	investment requirement, the waiver must be stated in writing and
304	the reasons for granting the waiver must be explained.
305	Section 6. Subsection (3) of section 376.79, Florida
306	Statutes, is amended to read:
307	376.79 Definitions relating to Brownfields Redevelopment
308	Act.--As used in ss. 376.77-376.85, the term:
309	(3) "Brownfield sites" means real property, the expansion,
310	redevelopment, or reuse of which may be sites that are generally
311	abandoned, idled, or underused industrial and commercial
312	properties where expansion or redevelopment iscomplicated by
313	actual or perceived environmental contamination.
314	Section 7. Paragraph (b) of subsection (2), paragraph (c)
315	of subsection (5), paragraph (b) of subsection (6), and
316	subsection (7) of section 376.80, Florida Statutes, are amended
317	to read:
318	376.80 Brownfield program administration process.--
319	(2)
320	(b) A local government shall designate a brownfield area
321	under the provisions of this act provided that:
322	1. A person who owns or controls a potential brownfield
323	site is requesting the designation and has agreed to
324	rehabilitate and redevelop the brownfield site;
325	2. The rehabilitation and redevelopment of the proposed
326	brownfield site will result in economic productivity of the
327	area, along with the creation of at least 10 new permanent jobs
328	at the brownfield site, whether full-time or part-time, which
329	are not associated with the implementation of the brownfield
330	site rehabilitation agreement and are not associated with
331	redevelopment project demolition or construction activities
332	pursuant to the redevelopment agreement required under paragraph
333	(5)(i) or an agreement, between the person responsible for site
334	rehabilitation and the local government with jurisdiction, which
335	contains terms for the redevelopment of the brownfield site or
336	brownfield area;
337	3. The redevelopment of the proposed brownfield site is
338	consistent with the local comprehensive plan and is a
339	permittable use under the applicable local land development
340	regulations;
341	4. Notice of the proposed rehabilitation of the brownfield
342	area has been provided to neighbors and nearby residents of the
343	proposed area to be designated, and the person proposing the
344	area for designation has afforded to those receiving notice the
345	opportunity for comments and suggestions about rehabilitation.
346	Notice pursuant to this subsection must be made in a newspaper
347	of general circulation in the area, at least 16 square inches in
348	size, and the notice must be posted in the affected area; and
349	5. The person proposing the area for designation has
350	provided reasonable assurance that he or she has sufficient
351	financial resources to implement and complete the rehabilitation
352	agreement and redevelopment plan.
353	(5) The person responsible for brownfield site
354	rehabilitation must enter into a brownfield site rehabilitation
355	agreement with the department or an approved local pollution
356	control program if actual contamination exists at the brownfield
357	site. The brownfield site rehabilitation agreement must include:
358	(c) A commitment to conduct site rehabilitation in
359	accordance with department quality assurance rules an approved
360	comprehensive quality assurance plan under department rules;
361	(6) Any contractor performing site rehabilitation program
362	tasks must demonstrate to the department that the contractor:
363	(b) Has obtained the necessary approvals for conducting
364	sample collection and analyses pursuant to approval for the
365	comprehensive quality-assurance plan prepared underdepartment
366	rules.
367	(7) The contractor who is performing the majority of the
368	site rehabilitation program tasks pursuant to a brownfield site
369	rehabilitation agreement or supervising the performance of such
370	tasks by licensed subcontractors in accordance with the
371	provisions of s. 489.113(9)must certify to the department that
372	the contractor:
373	(a) Complies with applicable OSHA regulations.
374	(b) Maintains workers' compensation insurance for all
375	employees as required by the Florida Workers' Compensation Law.
376	(c) Maintains comprehensive general liability coverage
377	with limits of not less than $1 million per occurrence and $2
378	million general aggregate for bodily injury and property damage
379	and comprehensive automobile liability coverage insurance with
380	minimum limits of not less than at least $2 $1 million combined
381	single limit. The contractor shall also maintain pollution
382	liability coverage with limits of not less than $3 million
383	aggregate for personal injury or death, $1 million per
384	occurrence for personal injury or death, and $1 million per
385	occurrence for property damage. The contractor's certificate of
386	insurance shall name per claim and $1 million annual aggregate,
387	sufficient to protect it from claims for damage for personal
388	injury, including accidental death, as well as claims for
389	property damage which may arise from performance of work under
390	the program, designatingthe state as an additional insured
391	party.
392	(d) Maintains professional liability insurance of at least
393	$1 million per claim occurrenceand $1 million annual aggregate.
394	(e) Has the capacity to perform or directly supervise the
395	majority of the work at a site in accordance with s. 489.113(9).
396	Section 8. Subsection (1) of section 376.82, Florida
397	Statutes, is amended to read:
398	376.82 Eligibility criteria and liability protection.--
399	(1) ELIGIBILITY.--Any person who has not caused or
400	contributed to the contamination of a brownfield site on or
401	after July 1, 1997, is eligible to participate in the brownfield
402	rehabilitationprogram established in ss. 376.77-376.85, subject
403	to the following:
404	(a) Potential brownfield sites that are subject to an
405	ongoing formal judicial or administrative enforcement action or
406	corrective action pursuant to federal authority, including, but
407	not limited to, the Comprehensive Environmental Response
408	Compensation and Liability Act, 42 U.S.C. ss. 9601 et seq., as
409	amended; the Safe Drinking Water Act, 42 U.S.C. ss. 300f-300i,
410	as amended; the Clean Water Act, 33 U.S.C. ss. 1251-1387, as
411	amended; or under an order from the United States Environmental
412	Protection Agency pursuant to s. 3008(h) of the Resource
413	Conservation and Recovery Act, as amended (42 U.S.C.A. s.
414	6928(h)); or that have obtained or are required to obtain a
415	permit for the operation of a hazardous waste treatment,
416	storage, or disposal facility; a postclosure permit; or a permit
417	pursuant to the federal Hazardous and Solid Waste Amendments of
418	1984, are not eligible for participation unless specific
419	exemptions are secured by a memorandum of agreement with the
420	United States Environmental Protection Agency pursuant to
421	paragraph (2)(g). A brownfield site within an eligible
422	brownfield area that subsequently becomes subject to formal
423	judicial or administrative enforcement action or corrective
424	action under such federal authority shall have its eligibility
425	revoked unless specific exemptions are secured by a memorandum
426	of agreement with the United States Environmental Protection
427	Agency pursuant to paragraph (2)(g).
428	(b) Persons who have not caused or contributed to the
429	contamination of a brownfield site on or after July 1, 1997, and
430	who, prior to the department's approval of a brownfield site
431	rehabilitation agreement, are subject to ongoing corrective
432	action or enforcement under state authority established in this
433	chapter or chapter 403, including those persons subject to a
434	pending consent order with the state, are eligible for
435	participation in a brownfield site rehabilitation agreement
436	corrective actionif:
437	1. The proposed brownfield site is currently idle or
438	underutilized as a result of the contamination, and
439	participation in the brownfield program will immediately, after
440	cleanup or sooner, result in increased economic productivity at
441	the site, including at a minimum the creation of 10 new
442	permanent jobs, whether full-time or part-time, which are not
443	associated with implementation of the brownfield site
444	rehabilitation agreement corrective action plan; and
445	2. The person is complying in good faith with the terms of
446	an existing consent order or department-approved corrective
447	action plan, or responding in good faith to an enforcement
448	action, as evidenced by a determination issued by the department
449	or an approved local pollution control program.
450	(c) Potential brownfield sites owned by the state or a
451	local government which contain contamination for which a
452	governmental entity is potentially responsible and which are
453	already designated as federal brownfield pilot projects or have
454	filed an application for designation to the United States
455	Environmental Protection Agency are eligible for participation
456	in a brownfield site rehabilitation agreement corrective action.
457	(d) After July 1, 1997, petroleum and drycleaning
458	contamination sites shall not receive both restoration funding
459	assistance available for the discharge under this chapter and
460	any state assistance available under s. 288.107. Nothing in this
461	act shall affect the cleanup criteria, priority ranking, and
462	other rights and obligations inherent in petroleum contamination
463	and drycleaning contamination site rehabilitation under ss.
464	376.30-376.319, or the availability of economic incentives
465	otherwise provided for by law.
466	Section 9. This act shall take effect July 1, 2004.