HB 1083

CS

CHAMBER ACTION

1	The State Resources Council recommends the following:
2
3	Council/Committee Substitute
4	Remove the entire bill and insert:
5
6	A bill to be entitled
7	An act relating to contaminated drycleaning facilities;
8	amending s. 376.3078, F.S.; providing that a drycleaning
9	facility where an accident caused or exacerbated
10	contamination is eligible for an exemption from liability;
11	defining the term "accident"; providing an effective date.
12
13	Be It Enacted by the Legislature of the State of Florida:
14
15	Section 1.  Subsection (3) of section 376.3078, Florida
16	Statutes, is amended to read:
17	376.3078  Drycleaning facility restoration; funds; uses;
18	liability; recovery of expenditures.--
19	(3)  REHABILITATION LIABILITY.--
20	(a)  In accordance with the eligibility provisions of this
21	section, a real property owner, nearby real property owner, or
22	person who owns or operates, or who otherwise could be liable as
23	a result of the operation of, a drycleaning facility or a
24	wholesale supply facility is not liable for or subject to
25	administrative or judicial action brought by or on behalf of any
26	state or local government or agency thereof or by or on behalf
27	of any person to compel rehabilitation or pay for the costs of
28	rehabilitation of environmental contamination resulting from the
29	discharge of drycleaning solvents. Subject to the delays that
30	may occur as a result of the prioritization of sites under this
31	section for any qualified site, costs for activities described
32	in paragraph (2)(b) shall be absorbed at the expense of the
33	drycleaning facility restoration funds, without recourse to
34	reimbursement or recovery from the real property owner, nearby
35	real property owner, or owner or operator of the drycleaning
36	facility or the wholesale supply facility. Notwithstanding any
37	other provision of this chapter, this subsection applies to
38	causes of action accruing on or after the effective date of this
39	act and applies retroactively to causes of action accruing
40	before the effective date of this act for which a lawsuit has
41	not been filed before the effective date of this act.
42	(b)  With regard to drycleaning facilities or wholesale
43	supply facilities that have operated as drycleaning facilities
44	or wholesale supply facilities on or after October 1, 1994, any
45	such drycleaning facility or wholesale supply facility at which
46	there exists contamination by drycleaning solvents shall be
47	eligible under this subsection regardless of when the
48	drycleaning contamination was discovered, provided that the
49	drycleaning facility or the wholesale supply facility:
50	1.  Has been registered with the department;
51	2.  Is determined by the department to be in compliance
52	with the department's rules regulating drycleaning solvents,
53	drycleaning facilities, or wholesale supply facilities on or
54	after November 19, 1980;
55	3.  Has not been operated in a grossly negligent manner at
56	any time on or after November 19, 1980;
57	4.  Has not been identified to qualify for listing, nor is
58	listed, on the National Priority List pursuant to the
59	Comprehensive Environmental Response, Compensation, and
60	Liability Act of 1980 as amended by the Superfund Amendments and
61	Reauthorization Act of 1986, and as subsequently amended;
62	5.  Is not under an order from the United States
63	Environmental Protection Agency pursuant to s. 3008(h) of the
64	Resource Conservation and Recovery Act as amended (42 U.S.C.A.
65	s. 6928(h)), or has not obtained and is not required to obtain a
66	permit for the operation of a hazardous waste treatment,
67	storage, or disposal facility, a postclosure permit, or a permit
68	pursuant to the federal Hazardous and Solid Waste Amendments of
69	1984;
70
71	and provided that the real property owner or the owner or
72	operator of the drycleaning facility or the wholesale supply
73	facility has not willfully concealed the discharge of
74	drycleaning solvents and has remitted all taxes due pursuant to
75	ss. 376.70 and 376.75, has provided documented evidence of
76	contamination by drycleaning solvents as required by the rules
77	developed pursuant to this section, has reported the
78	contamination prior to December 31, 1998, and has not denied the
79	department access to the site.
80	(c)  With regard to drycleaning facilities or wholesale
81	supply facilities that cease to be operated as drycleaning
82	facilities or wholesale supply facilities prior to October 1,
83	1994, such facilities, at which there exists contamination by
84	drycleaning solvents, shall be eligible under this subsection
85	regardless of when the contamination was discovered, provided
86	that the drycleaning facility or wholesale supply facility:
87	1.  Was not determined by the department, within a
88	reasonable time after the department's discovery, to have been
89	out of compliance with the department rules regulating
90	drycleaning solvents, drycleaning facilities, or wholesale
91	supply facilities implemented at any time on or after November
92	19, 1980;
93	2.  Was not operated in a grossly negligent manner at any
94	time on or after November 19, 1980;
95	3.  Has not been identified to qualify for listing, nor is
96	listed, on the National Priority List pursuant to the
97	Comprehensive Environmental Response, Compensation, and
98	Liability Act of 1980, as amended by the Superfund Amendments
99	and Reauthorization Act of 1986, and as subsequently amended;
100	and
101	4.  Is not under an order from the United States
102	Environmental Protection Agency pursuant to s. 3008(h) of the
103	Resource Conservation and Recovery Act, as amended, or has not
104	obtained and is not required to obtain a permit for the
105	operation of a hazardous waste treatment, storage, or disposal
106	facility, a postclosure permit, or a permit pursuant to the
107	federal Hazardous and Solid Waste Amendments of 1984;
108
109	and provided that the real property owner or the owner or
110	operator of the drycleaning facility or the wholesale supply
111	facility has not willfully concealed the discharge of
112	drycleaning solvents, has provided documented evidence of
113	contamination by drycleaning solvents as required by the rules
114	developed pursuant to this section, has reported the
115	contamination prior to December 31, 1998, and has not denied the
116	department access to the site.
117	(d)  For purposes of determining eligibility, a drycleaning
118	facility or wholesale supply facility was operated in a grossly
119	negligent manner if the department determines that the owner or
120	operator of the drycleaning facility or the wholesale supply
121	facility:
122	1.  Willfully discharged drycleaning solvents onto the
123	soils or into the waters of the state after November 19, 1980,
124	with the knowledge, intent, and purpose that the discharge would
125	result in harm to the environment or to public health or result
126	in a violation of the law;
127	2.  Willfully concealed a discharge of drycleaning solvents
128	with the knowledge, intent, and purpose that the concealment
129	would result in harm to the environment or to public health or
130	result in a violation of the law; or
131	3.  Willfully violated a local, state, or federal law or
132	rule regulating the operation of drycleaning facilities or
133	wholesale supply facilities with the knowledge, intent, and
134	purpose that the act would result in harm to the environment or
135	to public health or result in a violation of the law.
136	(e)1.  With respect to eligible drycleaning solvent
137	contamination reported to the department as part of a completed
138	application as required by the rules developed pursuant to this
139	section by June 30, 1997, the costs of activities described in
140	paragraph (2)(b) shall be absorbed at the expense of the
141	drycleaning facility restoration funds, less a $1,000 deductible
142	per incident, which shall be paid by the applicant or current
143	property owner. The deductible shall be paid within 60 days
144	after receipt of billing by the department.
145	2.  For contamination reported to the department as part of
146	a completed application as required by the rules developed under
147	this section, from July 1, 1997, through September 30, 1998, the
148	costs shall be absorbed at the expense of the drycleaning
149	facility restoration funds, less a $5,000 deductible per
150	incident. The deductible shall be paid within 60 days after
151	receipt of billing by the department.
152	3.  For contamination reported to the department as part of
153	a completed application as required by the rules developed
154	pursuant to this section from October 1, 1998, through December
155	31, 1998, the costs shall be absorbed at the expense of the
156	drycleaning facility restoration funds, less a $10,000
157	deductible per incident. The deductible shall be paid within 60
158	days after receipt of billing by the department.
159	4.  For contamination reported after December 31, 1998, no
160	costs will be absorbed at the expense of the drycleaning
161	facility restoration funds.
162	(f)  The provisions of This subsection does shall not apply
163	to any site where the department has been denied site access to
164	implement the provisions of this section.
165	(g)  In order to identify those drycleaning facilities and
166	wholesale supply facilities that have experienced contamination
167	resulting from the discharge of drycleaning solvents and to
168	ensure the most expedient rehabilitation of such sites, the
169	owners and operators of drycleaning facilities and wholesale
170	supply facilities are encouraged to detect and report
171	contamination from drycleaning solvents related to the operation
172	of drycleaning facilities and wholesale supply facilities.  The
173	department shall establish reasonable guidelines for the written
174	reporting of drycleaning contamination and shall distribute
175	forms to registrants under s. 376.303(1)(d), and to other
176	interested parties upon request, to be used for such purpose.
177	(h)  A report of drycleaning solvent contamination at a
178	drycleaning facility or wholesale supply facility made to the
179	department by any person in accordance with this subsection, or
180	any rules promulgated pursuant hereto, may not be used directly
181	as evidence of liability for such discharge in any civil or
182	criminal trial arising out of the discharge.
183	(i)  A drycleaning facility at which contamination by
184	drycleaning solvents exists and which was damaged by accident
185	prior to January 1, 1975, is eligible under this subsection,
186	regardless of whether an application for eligibility was filed
187	on or before December 31, 1998. As used in this paragraph, the
188	term "accident" means an unplanned and unanticipated occurrence
189	beyond the control of the owner or operator of a drycleaning
190	facility which resulted in physical damage to the facility when
191	the actions of responders to such occurrence could reasonably be
192	determined to have caused or exacerbated contamination by
193	drycleaning solvents at such facility.
194	(j)(i)  The provisions of This subsection does shall not
195	apply to drycleaning facilities owned or operated by the state
196	or Federal Government.
197	(k)(j)  Due to the value of Florida's potable water, it is
198	the intent of the Legislature that the department initiate and
199	facilitate as many cleanups as possible utilizing the resources
200	of the state, local governments, and the private sector. The
201	department is authorized to adopt necessary rules and enter into
202	contracts to carry out the intent of this subsection and to
203	limit or prevent future contamination from the operation of
204	drycleaning facilities and wholesale supply facilities.
205	(l)(k)  It is not the intent of the Legislature that the
206	state become the owner or operator of a drycleaning facility or
207	wholesale supply facility by engaging in state-conducted
208	cleanup.
209	(m)(l)  The owner, operator, and either the real property
210	owner or agent of the real property owner may apply for the
211	Drycleaning Contamination Cleanup Program by jointly submitting
212	a completed application package to the department pursuant to
213	the rules that shall be adopted by the department. If the
214	application cannot be jointly submitted, then the applicant
215	shall provide notice of the application to other interested
216	parties. After reviewing the completed application package, the
217	department shall notify the applicant in writing as to whether
218	the drycleaning facility or wholesale supply facility is
219	eligible for the program. If the department denies eligibility
220	for a completed application package, the notice of denial shall
221	specify the reasons for the denial, including specific and
222	substantive findings of fact, and shall constitute agency action
223	subject to the provisions of chapter 120. For the purposes of
224	ss. 120.569 and 120.57, the real property owner and the owner
225	and operator of a drycleaning facility or wholesale supply
226	facility which is the subject of a decision by the department
227	with regard to eligibility shall be deemed to be parties whose
228	substantial interests are determined by the department's
229	decision to approve or deny eligibility.
230	(n)(m)  Eligibility under this subsection applies to the
231	drycleaning facility or wholesale supply facility, and attendant
232	site rehabilitation applies to such facilities and to any place
233	where drycleaning-solvent contamination migrating from the
234	eligible facility is found.  A determination of eligibility or
235	ineligibility shall not be affected by any conveyance of the
236	ownership of the drycleaning facility, wholesale supply
237	facility, or the real property on which such facility is
238	located.  Nothing contained in this chapter shall be construed
239	to allow a drycleaning facility or wholesale supply facility
240	which would not be eligible under this subsection to become
241	eligible as a result of the conveyance of the ownership of the
242	ineligible drycleaning facility or wholesale supply facility to
243	another owner.
244	(o)(n)  If funding for the drycleaning contamination
245	rehabilitation program is eliminated, the provisions of this
246	subsection shall not apply.
247	(p)(o)1.  The department shall have the authority to cancel
248	the eligibility of any drycleaning facility or wholesale supply
249	facility that submits fraudulent information in the application
250	package or that fails to continuously comply with the conditions
251	of eligibility set forth in this subsection, or has not remitted
252	all fees pursuant to s. 376.303(1)(d), or has not remitted the
253	deductible payments pursuant to paragraph (e).
254	2.  If the program eligibility of a drycleaning facility or
255	wholesale supply facility is subject to cancellation pursuant to
256	this section, then the department shall notify the applicant in
257	writing of its intent to cancel program eligibility and shall
258	state the reason or reasons for cancellation. The applicant
259	shall have 45 days to resolve the reason or reasons for
260	cancellation to the satisfaction of the department. If, after 45
261	days, the applicant has not resolved the reason or reasons for
262	cancellation to the satisfaction of the department, the order of
263	cancellation shall become final and shall be subject to the
264	provisions of chapter 120.
265	(q)(p)  A real property owner shall not be subject to
266	administrative or judicial action brought by or on behalf of any
267	person or local or state government, or agency thereof, for
268	gross negligence or violations of department rules prior to
269	January 1, 1990, which resulted from the operation of a
270	drycleaning facility, provided that the real property owner
271	demonstrates that:
272	1.  The real property owner had ownership in the property
273	at the time of the gross negligence or violation of department
274	rules and did not cause or contribute to contamination on the
275	property;
276	2.  The real property owner was a distinct and separate
277	entity from the owner and operator of the drycleaning facility,
278	and did not have an ownership interest in or share in the
279	profits of the drycleaning facility;
280	3.  The real property owner did not participate in the
281	operation or management of the drycleaning facility;
282	4.  The real property owner complied with all discharge
283	reporting requirements, and did not conceal any contamination;
284	and
285	5.  The department has not been denied access.
286
287	The defense provided by this paragraph does not apply to any
288	liability under a federally delegated program.
289	(r)(q)  A person whose property becomes contaminated due to
290	geophysical or hydrologic reasons from the operation of a nearby
291	drycleaning or wholesale supply facility and whose property has
292	never been occupied by a business that utilized or stored
293	drycleaning solvents or similar constituents is not subject to
294	administrative or judicial action brought by or on behalf of
295	another to compel the rehabilitation of or the payment of the
296	costs for the rehabilitation of sites contaminated by
297	drycleaning solvents, provided that the person:
298	1.  Does not own and has never held an ownership interest
299	in, or shared in the profits of, the drycleaning facility
300	operated at the source location;
301	2.  Did not participate in the operation or management of
302	the drycleaning facility at the source location; and
303	3.  Did not cause, contribute to, or exacerbate the release
304	or threat of release of any hazardous substance through any act
305	or omission.
306
307	The defense provided by this paragraph does not apply to any
308	liability under a federally delegated program.
309	(s)(r)  Nothing in this subsection precludes the department
310	from considering information and documentation provided by
311	private consultants, local government programs, federal
312	agencies, or any individual which is relevant to an eligibility
313	determination if the department provides the applicant with
314	reasonable access to the information and its origin.
315	Section 2.  This act shall take effect upon becoming a law.

CODING: Words stricken are deletions; words underlined are additions.