HB 1083

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

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