Amendment
Bill No. 1448

Amendment No. 257863

CHAMBER ACTION
Senate		House
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1	Representative Evers offered the following:
2
3	Amendment (with title amendment)
4	On page 21, between lines 6 and 7, insert:
5	Section 6.  Subsection (3) of section 376.3078, Florida
6	Statutes, is amended to read:
7	376.3078  Drycleaning facility restoration; funds; uses;
8	liability; recovery of expenditures.--
9	(3)  REHABILITATION LIABILITY.--
10	(a)  In accordance with the eligibility provisions of this
11	section, a real property owner, nearby real property owner, or
12	person who owns or operates, or who otherwise could be liable as
13	a result of the operation of, a drycleaning facility or a
14	wholesale supply facility is not liable for or subject to
15	administrative or judicial action brought by or on behalf of any
16	state or local government or agency thereof or by or on behalf
17	of any person to compel rehabilitation or pay for the costs of
18	rehabilitation of environmental contamination resulting from the
19	discharge of drycleaning solvents. Subject to the delays that
20	may occur as a result of the prioritization of sites under this
21	section for any qualified site, costs for activities described
22	in paragraph (2)(b) shall be absorbed at the expense of the
23	drycleaning facility restoration funds, without recourse to
24	reimbursement or recovery from the real property owner, nearby
25	real property owner, or owner or operator of the drycleaning
26	facility or the wholesale supply facility. Notwithstanding any
27	other provision of this chapter, this subsection applies to
28	causes of action accruing on or after the effective date of this
29	act and applies retroactively to causes of action accruing
30	before the effective date of this act for which a lawsuit has
31	not been filed before the effective date of this act.
32	(b)  With regard to drycleaning facilities or wholesale
33	supply facilities that have operated as drycleaning facilities
34	or wholesale supply facilities on or after October 1, 1994, any
35	such drycleaning facility or wholesale supply facility at which
36	there exists contamination by drycleaning solvents shall be
37	eligible under this subsection regardless of when the
38	drycleaning contamination was discovered, provided that the
39	drycleaning facility or the wholesale supply facility:
40	1.  Has been registered with the department;
41	2.  Is determined by the department to be in compliance
42	with the department's rules regulating drycleaning solvents,
43	drycleaning facilities, or wholesale supply facilities on or
44	after November 19, 1980;
45	3.  Has not been operated in a grossly negligent manner at
46	any time on or after November 19, 1980;
47	4.  Has not been identified to qualify for listing, nor is
48	listed, on the National Priority List pursuant to the
49	Comprehensive Environmental Response, Compensation, and
50	Liability Act of 1980 as amended by the Superfund Amendments and
51	Reauthorization Act of 1986, and as subsequently amended;
52	5.  Is not under an order from the United States
53	Environmental Protection Agency pursuant to s. 3008(h) of the
54	Resource Conservation and Recovery Act as amended (42 U.S.C.A.
55	s. 6928(h)), or has not obtained and is not required to obtain a
56	permit for the operation of a hazardous waste treatment,
57	storage, or disposal facility, a postclosure permit, or a permit
58	pursuant to the federal Hazardous and Solid Waste Amendments of
59	1984;
60
61	and provided that the real property owner or the owner or
62	operator of the drycleaning facility or the wholesale supply
63	facility has not willfully concealed the discharge of
64	drycleaning solvents and has remitted all taxes due pursuant to
65	ss. 376.70 and 376.75, has provided documented evidence of
66	contamination by drycleaning solvents as required by the rules
67	developed pursuant to this section, has reported the
68	contamination prior to December 31, 1998, and has not denied the
69	department access to the site.
70	(c)  With regard to drycleaning facilities or wholesale
71	supply facilities that cease to be operated as drycleaning
72	facilities or wholesale supply facilities prior to October 1,
73	1994, such facilities, at which there exists contamination by
74	drycleaning solvents, shall be eligible under this subsection
75	regardless of when the contamination was discovered, provided
76	that the drycleaning facility or wholesale supply facility:
77	1.  Was not determined by the department, within a
78	reasonable time after the department's discovery, to have been
79	out of compliance with the department rules regulating
80	drycleaning solvents, drycleaning facilities, or wholesale
81	supply facilities implemented at any time on or after November
82	19, 1980;
83	2.  Was not operated in a grossly negligent manner at any
84	time on or after November 19, 1980;
85	3.  Has not been identified to qualify for listing, nor is
86	listed, on the National Priority List pursuant to the
87	Comprehensive Environmental Response, Compensation, and
88	Liability Act of 1980, as amended by the Superfund Amendments
89	and Reauthorization Act of 1986, and as subsequently amended;
90	and
91	4.  Is not under an order from the United States
92	Environmental Protection Agency pursuant to s. 3008(h) of the
93	Resource Conservation and Recovery Act, as amended, or has not
94	obtained and is not required to obtain a permit for the
95	operation of a hazardous waste treatment, storage, or disposal
96	facility, a postclosure permit, or a permit pursuant to the
97	federal Hazardous and Solid Waste Amendments of 1984;
98
99	and provided that the real property owner or the owner or
100	operator of the drycleaning facility or the wholesale supply
101	facility has not willfully concealed the discharge of
102	drycleaning solvents, has provided documented evidence of
103	contamination by drycleaning solvents as required by the rules
104	developed pursuant to this section, has reported the
105	contamination prior to December 31, 1998, and has not denied the
106	department access to the site.
107	(d)  For purposes of determining eligibility, a drycleaning
108	facility or wholesale supply facility was operated in a grossly
109	negligent manner if the department determines that the owner or
110	operator of the drycleaning facility or the wholesale supply
111	facility:
112	1.  Willfully discharged drycleaning solvents onto the
113	soils or into the waters of the state after November 19, 1980,
114	with the knowledge, intent, and purpose that the discharge would
115	result in harm to the environment or to public health or result
116	in a violation of the law;
117	2.  Willfully concealed a discharge of drycleaning solvents
118	with the knowledge, intent, and purpose that the concealment
119	would result in harm to the environment or to public health or
120	result in a violation of the law; or
121	3.  Willfully violated a local, state, or federal law or
122	rule regulating the operation of drycleaning facilities or
123	wholesale supply facilities with the knowledge, intent, and
124	purpose that the act would result in harm to the environment or
125	to public health or result in a violation of the law.
126	(e)1.  With respect to eligible drycleaning solvent
127	contamination reported to the department as part of a completed
128	application as required by the rules developed pursuant to this
129	section by June 30, 1997, the costs of activities described in
130	paragraph (2)(b) shall be absorbed at the expense of the
131	drycleaning facility restoration funds, less a $1,000 deductible
132	per incident, which shall be paid by the applicant or current
133	property owner. The deductible shall be paid within 60 days
134	after receipt of billing by the department.
135	2.  For contamination reported to the department as part of
136	a completed application as required by the rules developed under
137	this section, from July 1, 1997, through September 30, 1998, the
138	costs shall be absorbed at the expense of the drycleaning
139	facility restoration funds, less a $5,000 deductible per
140	incident. The deductible shall be paid within 60 days after
141	receipt of billing by the department.
142	3.  For contamination reported to the department as part of
143	a completed application as required by the rules developed
144	pursuant to this section from October 1, 1998, through December
145	31, 1998, the costs shall be absorbed at the expense of the
146	drycleaning facility restoration funds, less a $10,000
147	deductible per incident. The deductible shall be paid within 60
148	days after receipt of billing by the department.
149	4.  For contamination reported after December 31, 1998, no
150	costs will be absorbed at the expense of the drycleaning
151	facility restoration funds.
152	(f)  The provisions of This subsection does shall not apply
153	to any site where the department has been denied site access to
154	implement the provisions of this section.
155	(g)  In order to identify those drycleaning facilities and
156	wholesale supply facilities that have experienced contamination
157	resulting from the discharge of drycleaning solvents and to
158	ensure the most expedient rehabilitation of such sites, the
159	owners and operators of drycleaning facilities and wholesale
160	supply facilities are encouraged to detect and report
161	contamination from drycleaning solvents related to the operation
162	of drycleaning facilities and wholesale supply facilities. The
163	department shall establish reasonable guidelines for the written
164	reporting of drycleaning contamination and shall distribute
165	forms to registrants under s. 376.303(1)(d), and to other
166	interested parties upon request, to be used for such purpose.
167	(h)  A report of drycleaning solvent contamination at a
168	drycleaning facility or wholesale supply facility made to the
169	department by any person in accordance with this subsection, or
170	any rules promulgated pursuant hereto, may not be used directly
171	as evidence of liability for such discharge in any civil or
172	criminal trial arising out of the discharge.
173	(i)  A drycleaning facility at which contamination by
174	drycleaning solvents exists and which was damaged by accident
175	prior to January 1, 1975, is eligible under this subsection,
176	regardless of whether an application for eligibility was filed
177	on or before December 31, 1998. As used in this paragraph, the
178	term "accident" means an unplanned and unanticipated occurrence
179	beyond the control of the owner or operator of a drycleaning
180	facility which resulted in physical damage to the facility when
181	the actions of responders to such occurrence could reasonably be
182	determined to have caused or exacerbated contamination by
183	drycleaning solvents at such facility.
184	(j)(i)  The provisions of This subsection does shall not
185	apply to drycleaning facilities owned or operated by the state
186	or Federal Government.
187	(k)(j)  Due to the value of Florida's potable water, it is
188	the intent of the Legislature that the department initiate and
189	facilitate as many cleanups as possible utilizing the resources
190	of the state, local governments, and the private sector. The
191	department is authorized to adopt necessary rules and enter into
192	contracts to carry out the intent of this subsection and to
193	limit or prevent future contamination from the operation of
194	drycleaning facilities and wholesale supply facilities.
195	(l)(k)  It is not the intent of the Legislature that the
196	state become the owner or operator of a drycleaning facility or
197	wholesale supply facility by engaging in state-conducted
198	cleanup.
199	(m)(l)  The owner, operator, and either the real property
200	owner or agent of the real property owner may apply for the
201	Drycleaning Contamination Cleanup Program by jointly submitting
202	a completed application package to the department pursuant to
203	the rules that shall be adopted by the department. If the
204	application cannot be jointly submitted, then the applicant
205	shall provide notice of the application to other interested
206	parties. After reviewing the completed application package, the
207	department shall notify the applicant in writing as to whether
208	the drycleaning facility or wholesale supply facility is
209	eligible for the program. If the department denies eligibility
210	for a completed application package, the notice of denial shall
211	specify the reasons for the denial, including specific and
212	substantive findings of fact, and shall constitute agency action
213	subject to the provisions of chapter 120. For the purposes of
214	ss. 120.569 and 120.57, the real property owner and the owner
215	and operator of a drycleaning facility or wholesale supply
216	facility which is the subject of a decision by the department
217	with regard to eligibility shall be deemed to be parties whose
218	substantial interests are determined by the department's
219	decision to approve or deny eligibility.
220	(n)(m)  Eligibility under this subsection applies to the
221	drycleaning facility or wholesale supply facility, and attendant
222	site rehabilitation applies to such facilities and to any place
223	where drycleaning-solvent contamination migrating from the
224	eligible facility is found. A determination of eligibility or
225	ineligibility shall not be affected by any conveyance of the
226	ownership of the drycleaning facility, wholesale supply
227	facility, or the real property on which such facility is
228	located. Nothing contained in this chapter shall be construed to
229	allow a drycleaning facility or wholesale supply facility which
230	would not be eligible under this subsection to become eligible
231	as a result of the conveyance of the ownership of the ineligible
232	drycleaning facility or wholesale supply facility to another
233	owner.
234	(o)(n)  If funding for the drycleaning contamination
235	rehabilitation program is eliminated, the provisions of this
236	subsection shall not apply.
237	(p)(o)1.  The department shall have the authority to cancel
238	the eligibility of any drycleaning facility or wholesale supply
239	facility that submits fraudulent information in the application
240	package or that fails to continuously comply with the conditions
241	of eligibility set forth in this subsection, or has not remitted
242	all fees pursuant to s. 376.303(1)(d), or has not remitted the
243	deductible payments pursuant to paragraph (e).
244	2.  If the program eligibility of a drycleaning facility or
245	wholesale supply facility is subject to cancellation pursuant to
246	this section, then the department shall notify the applicant in
247	writing of its intent to cancel program eligibility and shall
248	state the reason or reasons for cancellation. The applicant
249	shall have 45 days to resolve the reason or reasons for
250	cancellation to the satisfaction of the department. If, after 45
251	days, the applicant has not resolved the reason or reasons for
252	cancellation to the satisfaction of the department, the order of
253	cancellation shall become final and shall be subject to the
254	provisions of chapter 120.
255	(q)(p)  A real property owner shall not be subject to
256	administrative or judicial action brought by or on behalf of any
257	person or local or state government, or agency thereof, for
258	gross negligence or violations of department rules prior to
259	January 1, 1990, which resulted from the operation of a
260	drycleaning facility, provided that the real property owner
261	demonstrates that:
262	1.  The real property owner had ownership in the property
263	at the time of the gross negligence or violation of department
264	rules and did not cause or contribute to contamination on the
265	property;
266	2.  The real property owner was a distinct and separate
267	entity from the owner and operator of the drycleaning facility,
268	and did not have an ownership interest in or share in the
269	profits of the drycleaning facility;
270	3.  The real property owner did not participate in the
271	operation or management of the drycleaning facility;
272	4.  The real property owner complied with all discharge
273	reporting requirements, and did not conceal any contamination;
274	and
275	5.  The department has not been denied access.
276
277	The defense provided by this paragraph does not apply to any
278	liability under a federally delegated program.
279	(r)(q)  A person whose property becomes contaminated due to
280	geophysical or hydrologic reasons from the operation of a nearby
281	drycleaning or wholesale supply facility and whose property has
282	never been occupied by a business that utilized or stored
283	drycleaning solvents or similar constituents is not subject to
284	administrative or judicial action brought by or on behalf of
285	another to compel the rehabilitation of or the payment of the
286	costs for the rehabilitation of sites contaminated by
287	drycleaning solvents, provided that the person:
288	1.  Does not own and has never held an ownership interest
289	in, or shared in the profits of, the drycleaning facility
290	operated at the source location;
291	2.  Did not participate in the operation or management of
292	the drycleaning facility at the source location; and
293	3.  Did not cause, contribute to, or exacerbate the release
294	or threat of release of any hazardous substance through any act
295	or omission.
296
297	The defense provided by this paragraph does not apply to any
298	liability under a federally delegated program.
299	(s)(r)  Nothing in this subsection precludes the department
300	from considering information and documentation provided by
301	private consultants, local government programs, federal
302	agencies, or any individual which is relevant to an eligibility
303	determination if the department provides the applicant with
304	reasonable access to the information and its origin.
305
306	================= T I T L E  A M E N D M E N T =================
307	On page 1, remove line 17, and insert:
308	brownfield areas; amending s. 376.3078, F.S.; providing
309	that a drycleaning facility where an accident caused or
310	exacerbated contamination is eligible for an exemption
311	from liability; defining the term "accident"; repealing
312	ss. 376.87 and

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