Senate Bill sb1664

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    Florida Senate - 2005                                  SB 1664

    By Senator Peaden





    2-809-05

  1                      A bill to be entitled

  2         An act relating to contaminated drycleaning

  3         facilities; amending s. 376.3078, F.S.;

  4         providing that a drycleaning facility where an

  5         accident caused or exacerbated contamination is

  6         eligible for an exemption from liability;

  7         defining the term "accident"; providing an

  8         effective date.

  9  

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

11  

12         Section 1.  Subsection (3) of section 376.3078, Florida

13  Statutes, is amended to read:

14         376.3078  Drycleaning facility restoration; funds;

15  uses; liability; recovery of expenditures.--

16         (3)  REHABILITATION LIABILITY.--

17         (a)  In accordance with the eligibility provisions of

18  this section, a real property owner, nearby real property

19  owner, or person who owns or operates, or who otherwise could

20  be liable as a result of the operation of, a drycleaning

21  facility or a wholesale supply facility is not liable for or

22  subject to administrative or judicial action brought by or on

23  behalf of any state or local government or agency thereof or

24  by or on behalf of any person to compel rehabilitation or pay

25  for the costs of rehabilitation of environmental contamination

26  resulting from the discharge of drycleaning solvents. Subject

27  to the delays that may occur as a result of the prioritization

28  of sites under this section for any qualified site, costs for

29  activities described in paragraph (2)(b) shall be absorbed at

30  the expense of the drycleaning facility restoration funds,

31  without recourse to reimbursement or recovery from the real

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 1  property owner, nearby real property owner, or owner or

 2  operator of the drycleaning facility or the wholesale supply

 3  facility. Notwithstanding any other provision of this chapter,

 4  this subsection applies to causes of action accruing on or

 5  after the effective date of this act and applies retroactively

 6  to causes of action accruing before the effective date of this

 7  act for which a lawsuit has not been filed before the

 8  effective date of this act.

 9         (b)  With regard to drycleaning facilities or wholesale

10  supply facilities that have operated as drycleaning facilities

11  or wholesale supply facilities on or after October 1, 1994,

12  any such drycleaning facility or wholesale supply facility at

13  which there exists contamination by drycleaning solvents shall

14  be eligible under this subsection regardless of when the

15  drycleaning contamination was discovered, provided that the

16  drycleaning facility or the wholesale supply facility:

17         1.  Has been registered with the department;

18         2.  Is determined by the department to be in compliance

19  with the department's rules regulating drycleaning solvents,

20  drycleaning facilities, or wholesale supply facilities on or

21  after November 19, 1980;

22         3.  Has not been operated in a grossly negligent manner

23  at any time on or after November 19, 1980;

24         4.  Has not been identified to qualify for listing, nor

25  is listed, on the National Priority List pursuant to the

26  Comprehensive Environmental Response, Compensation, and

27  Liability Act of 1980 as amended by the Superfund Amendments

28  and Reauthorization Act of 1986, and as subsequently amended;

29         5.  Is not under an order from the United States

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

31  Resource Conservation and Recovery Act as amended (42 U.S.C.A.

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 1  s. 6928(h)), or has not obtained and is not required to obtain

 2  a permit for the operation of a hazardous waste treatment,

 3  storage, or disposal facility, a postclosure permit, or a

 4  permit pursuant to the federal Hazardous and Solid Waste

 5  Amendments of 1984;

 6  

 7  and provided that the real property owner or the owner or

 8  operator of the drycleaning facility or the wholesale supply

 9  facility has not willfully concealed the discharge of

10  drycleaning solvents and has remitted all taxes due pursuant

11  to ss. 376.70 and 376.75, has provided documented evidence of

12  contamination by drycleaning solvents as required by the rules

13  developed pursuant to this section, has reported the

14  contamination prior to December 31, 1998, and has not denied

15  the department access to the site.

16         (c)  With regard to drycleaning facilities or wholesale

17  supply facilities that cease to be operated as drycleaning

18  facilities or wholesale supply facilities prior to October 1,

19  1994, such facilities, at which there exists contamination by

20  drycleaning solvents, shall be eligible under this subsection

21  regardless of when the contamination was discovered, provided

22  that the drycleaning facility or wholesale supply facility:

23         1.  Was not determined by the department, within a

24  reasonable time after the department's discovery, to have been

25  out of compliance with the department rules regulating

26  drycleaning solvents, drycleaning facilities, or wholesale

27  supply facilities implemented at any time on or after November

28  19, 1980;

29         2.  Was not operated in a grossly negligent manner at

30  any time on or after November 19, 1980;

31  

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 1         3.  Has not been identified to qualify for listing, nor

 2  is listed, on the National Priority List pursuant to the

 3  Comprehensive Environmental Response, Compensation, and

 4  Liability Act of 1980, as amended by the Superfund Amendments

 5  and Reauthorization Act of 1986, and as subsequently amended;

 6  and

 7         4.  Is not under an order from the United States

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

 9  Resource Conservation and Recovery Act, as amended, or has not

10  obtained and is not required to obtain a permit for the

11  operation of a hazardous waste treatment, storage, or disposal

12  facility, a postclosure permit, or a permit pursuant to the

13  federal Hazardous and Solid Waste Amendments of 1984;

14  

15  and provided that the real property owner or the owner or

16  operator of the drycleaning facility or the wholesale supply

17  facility has not willfully concealed the discharge of

18  drycleaning solvents, has provided documented evidence of

19  contamination by drycleaning solvents as required by the rules

20  developed pursuant to this section, has reported the

21  contamination prior to December 31, 1998, and has not denied

22  the department access to the site.

23         (d)  For purposes of determining eligibility, a

24  drycleaning facility or wholesale supply facility was operated

25  in a grossly negligent manner if the department determines

26  that the owner or operator of the drycleaning facility or the

27  wholesale supply facility:

28         1.  Willfully discharged drycleaning solvents onto the

29  soils or into the waters of the state after November 19, 1980,

30  with the knowledge, intent, and purpose that the discharge

31  

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 1  would result in harm to the environment or to public health or

 2  result in a violation of the law;

 3         2.  Willfully concealed a discharge of drycleaning

 4  solvents with the knowledge, intent, and purpose that the

 5  concealment would result in harm to the environment or to

 6  public health or result in a violation of the law; or

 7         3.  Willfully violated a local, state, or federal law

 8  or rule regulating the operation of drycleaning facilities or

 9  wholesale supply facilities with the knowledge, intent, and

10  purpose that the act would result in harm to the environment

11  or to public health or result in a violation of the law.

12         (e)1.  With respect to eligible drycleaning solvent

13  contamination reported to the department as part of a

14  completed application as required by the rules developed

15  pursuant to this section by June 30, 1997, the costs of

16  activities described in paragraph (2)(b) shall be absorbed at

17  the expense of the drycleaning facility restoration funds,

18  less a $1,000 deductible per incident, which shall be paid by

19  the applicant or current property owner. The deductible shall

20  be paid within 60 days after receipt of billing by the

21  department.

22         2.  For contamination reported to the department as

23  part of a completed application as required by the rules

24  developed under this section, from July 1, 1997, through

25  September 30, 1998, the costs shall be absorbed at the expense

26  of the drycleaning facility restoration funds, less a $5,000

27  deductible per incident. The deductible shall be paid within

28  60 days after receipt of billing by the department.

29         3.  For contamination reported to the department as

30  part of a completed application as required by the rules

31  developed pursuant to this section from October 1, 1998,

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 1  through December 31, 1998, the costs shall be absorbed at the

 2  expense of the drycleaning facility restoration funds, less a

 3  $10,000 deductible per incident. The deductible shall be paid

 4  within 60 days after receipt of billing by the department.

 5         4.  For contamination reported after December 31, 1998,

 6  no costs will be absorbed at the expense of the drycleaning

 7  facility restoration funds.

 8         (f)  The provisions of This subsection does shall not

 9  apply to any site where the department has been denied site

10  access to implement the provisions of this section.

11         (g)  In order to identify those drycleaning facilities

12  and wholesale supply facilities that have experienced

13  contamination resulting from the discharge of drycleaning

14  solvents and to ensure the most expedient rehabilitation of

15  such sites, the owners and operators of drycleaning facilities

16  and wholesale supply facilities are encouraged to detect and

17  report contamination from drycleaning solvents related to the

18  operation of drycleaning facilities and wholesale supply

19  facilities.  The department shall establish reasonable

20  guidelines for the written reporting of drycleaning

21  contamination and shall distribute forms to registrants under

22  s. 376.303(1)(d), and to other interested parties upon

23  request, to be used for such purpose.

24         (h)  A report of drycleaning solvent contamination at a

25  drycleaning facility or wholesale supply facility made to the

26  department by any person in accordance with this subsection,

27  or any rules promulgated pursuant hereto, may not be used

28  directly as evidence of liability for such discharge in any

29  civil or criminal trial arising out of the discharge.

30         (i)  A drycleaning facility at which contamination by

31  drycleaning solvents exists and which was damaged by accident

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 1  at any time is eligible under this subsection, regardless of

 2  whether an application for eligibility was filed on or before

 3  December 31, 1998. As used in this paragraph, the term

 4  "accident" means an unplanned and unanticipated occurrence

 5  beyond the control of the owner or operator of a drycleaning

 6  facility which resulted in physical damage to the facility

 7  when the actions of responders to such occurrence could

 8  reasonably be determined to have caused or exacerbated

 9  contamination by drycleaning solvents at such facility.

10         (j)(i)  The provisions of This subsection does shall

11  not apply to drycleaning facilities owned or operated by the

12  state or Federal Government.

13         (k)(j)  Due to the value of Florida's potable water, it

14  is the intent of the Legislature that the department initiate

15  and facilitate as many cleanups as possible utilizing the

16  resources of the state, local governments, and the private

17  sector. The department is authorized to adopt necessary rules

18  and enter into contracts to carry out the intent of this

19  subsection and to limit or prevent future contamination from

20  the operation of drycleaning facilities and wholesale supply

21  facilities.

22         (l)(k)  It is not the intent of the Legislature that

23  the state become the owner or operator of a drycleaning

24  facility or wholesale supply facility by engaging in

25  state-conducted cleanup.

26         (m)(l)  The owner, operator, and either the real

27  property owner or agent of the real property owner may apply

28  for the Drycleaning Contamination Cleanup Program by jointly

29  submitting a completed application package to the department

30  pursuant to the rules that shall be adopted by the department.

31  If the application cannot be jointly submitted, then the

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 1  applicant shall provide notice of the application to other

 2  interested parties. After reviewing the completed application

 3  package, the department shall notify the applicant in writing

 4  as to whether the drycleaning facility or wholesale supply

 5  facility is eligible for the program. If the department denies

 6  eligibility for a completed application package, the notice of

 7  denial shall specify the reasons for the denial, including

 8  specific and substantive findings of fact, and shall

 9  constitute agency action subject to the provisions of chapter

10  120. For the purposes of ss. 120.569 and 120.57, the real

11  property owner and the owner and operator of a drycleaning

12  facility or wholesale supply facility which is the subject of

13  a decision by the department with regard to eligibility shall

14  be deemed to be parties whose substantial interests are

15  determined by the department's decision to approve or deny

16  eligibility.

17         (n)(m)  Eligibility under this subsection applies to

18  the drycleaning facility or wholesale supply facility, and

19  attendant site rehabilitation applies to such facilities and

20  to any place where drycleaning-solvent contamination migrating

21  from the eligible facility is found.  A determination of

22  eligibility or ineligibility shall not be affected by any

23  conveyance of the ownership of the drycleaning facility,

24  wholesale supply facility, or the real property on which such

25  facility is located.  Nothing contained in this chapter shall

26  be construed to allow a drycleaning facility or wholesale

27  supply facility which would not be eligible under this

28  subsection to become eligible as a result of the conveyance of

29  the ownership of the ineligible drycleaning facility or

30  wholesale supply facility to another owner.

31  

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 1         (o)(n)  If funding for the drycleaning contamination

 2  rehabilitation program is eliminated, the provisions of this

 3  subsection shall not apply.

 4         (p)(o)1.  The department shall have the authority to

 5  cancel the eligibility of any drycleaning facility or

 6  wholesale supply facility that submits fraudulent information

 7  in the application package or that fails to continuously

 8  comply with the conditions of eligibility set forth in this

 9  subsection, or has not remitted all fees pursuant to s.

10  376.303(1)(d), or has not remitted the deductible payments

11  pursuant to paragraph (e).

12         2.  If the program eligibility of a drycleaning

13  facility or wholesale supply facility is subject to

14  cancellation pursuant to this section, then the department

15  shall notify the applicant in writing of its intent to cancel

16  program eligibility and shall state the reason or reasons for

17  cancellation. The applicant shall have 45 days to resolve the

18  reason or reasons for cancellation to the satisfaction of the

19  department. If, after 45 days, the applicant has not resolved

20  the reason or reasons for cancellation to the satisfaction of

21  the department, the order of cancellation shall become final

22  and shall be subject to the provisions of chapter 120.

23         (q)(p)  A real property owner shall not be subject to

24  administrative or judicial action brought by or on behalf of

25  any person or local or state government, or agency thereof,

26  for gross negligence or violations of department rules prior

27  to January 1, 1990, which resulted from the operation of a

28  drycleaning facility, provided that the real property owner

29  demonstrates that:

30         1.  The real property owner had ownership in the

31  property at the time of the gross negligence or violation of

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 1  department rules and did not cause or contribute to

 2  contamination on the property;

 3         2.  The real property owner was a distinct and separate

 4  entity from the owner and operator of the drycleaning

 5  facility, and did not have an ownership interest in or share

 6  in the profits of the drycleaning facility;

 7         3.  The real property owner did not participate in the

 8  operation or management of the drycleaning facility;

 9         4.  The real property owner complied with all discharge

10  reporting requirements, and did not conceal any contamination;

11  and

12         5.  The department has not been denied access.

13  

14  The defense provided by this paragraph does not apply to any

15  liability under a federally delegated program.

16         (r)(q)  A person whose property becomes contaminated

17  due to geophysical or hydrologic reasons from the operation of

18  a nearby drycleaning or wholesale supply facility and whose

19  property has never been occupied by a business that utilized

20  or stored drycleaning solvents or similar constituents is not

21  subject to administrative or judicial action brought by or on

22  behalf of another to compel the rehabilitation of or the

23  payment of the costs for the rehabilitation of sites

24  contaminated by drycleaning solvents, provided that the

25  person:

26         1.  Does not own and has never held an ownership

27  interest in, or shared in the profits of, the drycleaning

28  facility operated at the source location;

29         2.  Did not participate in the operation or management

30  of the drycleaning facility at the source location; and

31  

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 1         3.  Did not cause, contribute to, or exacerbate the

 2  release or threat of release of any hazardous substance

 3  through any act or omission.

 4  

 5  The defense provided by this paragraph does not apply to any

 6  liability under a federally delegated program.

 7         (s)(r)  Nothing in this subsection precludes the

 8  department from considering information and documentation

 9  provided by private consultants, local government programs,

10  federal agencies, or any individual which is relevant to an

11  eligibility determination if the department provides the

12  applicant with reasonable access to the information and its

13  origin.

14         Section 2.  This act shall take effect upon becoming a

15  law.

16  

17            *****************************************

18                          SENATE SUMMARY

19    Grants a contaminated drycleaning facility an exemption
      from liability for restoration where an accident caused
20    or exacerbated contamination. Defines the term
      "accident".
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