Amendment
Bill No. 1855

Amendment No. 244565

CHAMBER ACTION
Senate		House
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1	Representative Evers offered the following:
2
3	Amendment (with title amendment)
4	Between lines 344 and 345, insert:
5	Section 2.  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; and provided that the real property owner or the owner or
60	operator of the drycleaning facility or the wholesale supply
61	facility has not willfully concealed the discharge of
62	drycleaning solvents and has remitted all taxes due pursuant to
63	ss. 376.70 and 376.75, has provided documented evidence of
64	contamination by drycleaning solvents as required by the rules
65	developed pursuant to this section, has reported the
66	contamination prior to December 31, 1998, and has not denied the
67	department access to the site.
68	(c)  With regard to drycleaning facilities or wholesale
69	supply facilities that cease to be operated as drycleaning
70	facilities or wholesale supply facilities prior to October 1,
71	1994, such facilities, at which there exists contamination by
72	drycleaning solvents, shall be eligible under this subsection
73	regardless of when the contamination was discovered, provided
74	that the drycleaning facility or wholesale supply facility:
75	1.  Was not determined by the department, within a
76	reasonable time after the department's discovery, to have been
77	out of compliance with the department rules regulating
78	drycleaning solvents, drycleaning facilities, or wholesale
79	supply facilities implemented at any time on or after November
80	19, 1980;
81	2.  Was not operated in a grossly negligent manner at any
82	time on or after November 19, 1980;
83	3.  Has not been identified to qualify for listing, nor is
84	listed, on the National Priority List pursuant to the
85	Comprehensive Environmental Response, Compensation, and
86	Liability Act of 1980, as amended by the Superfund Amendments
87	and Reauthorization Act of 1986, and as subsequently amended;
88	and
89	4.  Is not under an order from the United States
90	Environmental Protection Agency pursuant to s. 3008(h) of the
91	Resource Conservation and Recovery Act, as amended, or has not
92	obtained and is not required to obtain a permit for the
93	operation of a hazardous waste treatment, storage, or disposal
94	facility, a postclosure permit, or a permit pursuant to the
95	federal Hazardous and Solid Waste Amendments of 1984; and
96	provided that the real property owner or the owner or operator
97	of the drycleaning facility or the wholesale supply facility has
98	not willfully concealed the discharge of drycleaning solvents,
99	has provided documented evidence of contamination by drycleaning
100	solvents as required by the rules developed pursuant to this
101	section, has reported the contamination prior to December 31,
102	1998, and has not denied the department access to the site.
103	(d)  For purposes of determining eligibility, a drycleaning
104	facility or wholesale supply facility was operated in a grossly
105	negligent manner if the department determines that the owner or
106	operator of the drycleaning facility or the wholesale supply
107	facility:
108	1.  Willfully discharged drycleaning solvents onto the
109	soils or into the waters of the state after November 19, 1980,
110	with the knowledge, intent, and purpose that the discharge would
111	result in harm to the environment or to public health or result
112	in a violation of the law;
113	2.  Willfully concealed a discharge of drycleaning solvents
114	with the knowledge, intent, and purpose that the concealment
115	would result in harm to the environment or to public health or
116	result in a violation of the law; or
117	3.  Willfully violated a local, state, or federal law or
118	rule regulating the operation of drycleaning facilities or
119	wholesale supply facilities with the knowledge, intent, and
120	purpose that the act would result in harm to the environment or
121	to public health or result in a violation of the law.
122	(e)1.  With respect to eligible drycleaning solvent
123	contamination reported to the department as part of a completed
124	application as required by the rules developed pursuant to this
125	section by June 30, 1997, the costs of activities described in
126	paragraph (2)(b) shall be absorbed at the expense of the
127	drycleaning facility restoration funds, less a $1,000 deductible
128	per incident, which shall be paid by the applicant or current
129	property owner. The deductible shall be paid within 60 days
130	after receipt of billing by the department.
131	2.  For contamination reported to the department as part of
132	a completed application as required by the rules developed under
133	this section, from July 1, 1997, through September 30, 1998, the
134	costs shall be absorbed at the expense of the drycleaning
135	facility restoration funds, less a $5,000 deductible per
136	incident. The deductible shall be paid within 60 days after
137	receipt of billing by the department.
138	3.  For contamination reported to the department as part of
139	a completed application as required by the rules developed
140	pursuant to this section from October 1, 1998, through December
141	31, 1998, the costs shall be absorbed at the expense of the
142	drycleaning facility restoration funds, less a $10,000
143	deductible per incident. The deductible shall be paid within 60
144	days after receipt of billing by the department.
145	4.  For contamination reported after December 31, 1998, no
146	costs will be absorbed at the expense of the drycleaning
147	facility restoration funds.
148	(f)  The provisions of This subsection does shall not apply
149	to any site where the department has been denied site access to
150	implement the provisions of this section.
151	(g)  In order to identify those drycleaning facilities and
152	wholesale supply facilities that have experienced contamination
153	resulting from the discharge of drycleaning solvents and to
154	ensure the most expedient rehabilitation of such sites, the
155	owners and operators of drycleaning facilities and wholesale
156	supply facilities are encouraged to detect and report
157	contamination from drycleaning solvents related to the operation
158	of drycleaning facilities and wholesale supply facilities.  The
159	department shall establish reasonable guidelines for the written
160	reporting of drycleaning contamination and shall distribute
161	forms to registrants under s. 376.303(1)(d), and to other
162	interested parties upon request, to be used for such purpose.
163	(h)  A report of drycleaning solvent contamination at a
164	drycleaning facility or wholesale supply facility made to the
165	department by any person in accordance with this subsection, or
166	any rules promulgated pursuant hereto, may not be used directly
167	as evidence of liability for such discharge in any civil or
168	criminal trial arising out of the discharge.
169	(i)  A drycleaning facility at which contamination by
170	drycleaning solvents exists and which was damaged by accident
171	prior to January 1, 1975, is eligible under this subsection,
172	regardless of whether an application for eligibility was filed
173	on or before December 31, 1998. As used in this paragraph, the
174	term "accident" means an unplanned and unanticipated occurrence
175	beyond the control of the owner or operator of a drycleaning
176	facility which resulted in physical damage to the facility when
177	the actions of responders to such occurrence could reasonably be
178	determined to have caused or exacerbated contamination by
179	drycleaning solvents at such facility.
180	(j)(i)  The provisions of This subsection does shall not
181	apply to drycleaning facilities owned or operated by the state
182	or Federal Government.
183	(k)(j)  Due to the value of Florida's potable water, it is
184	the intent of the Legislature that the department initiate and
185	facilitate as many cleanups as possible utilizing the resources
186	of the state, local governments, and the private sector. The
187	department is authorized to adopt necessary rules and enter into
188	contracts to carry out the intent of this subsection and to
189	limit or prevent future contamination from the operation of
190	drycleaning facilities and wholesale supply facilities.
191	(l)(k)  It is not the intent of the Legislature that the
192	state become the owner or operator of a drycleaning facility or
193	wholesale supply facility by engaging in state-conducted
194	cleanup.
195	(m)(l)  The owner, operator, and either the real property
196	owner or agent of the real property owner may apply for the
197	Drycleaning Contamination Cleanup Program by jointly submitting
198	a completed application package to the department pursuant to
199	the rules that shall be adopted by the department. If the
200	application cannot be jointly submitted, then the applicant
201	shall provide notice of the application to other interested
202	parties. After reviewing the completed application package, the
203	department shall notify the applicant in writing as to whether
204	the drycleaning facility or wholesale supply facility is
205	eligible for the program. If the department denies eligibility
206	for a completed application package, the notice of denial shall
207	specify the reasons for the denial, including specific and
208	substantive findings of fact, and shall constitute agency action
209	subject to the provisions of chapter 120. For the purposes of
210	ss. 120.569 and 120.57, the real property owner and the owner
211	and operator of a drycleaning facility or wholesale supply
212	facility which is the subject of a decision by the department
213	with regard to eligibility shall be deemed to be parties whose
214	substantial interests are determined by the department's
215	decision to approve or deny eligibility.
216	(n)(m)  Eligibility under this subsection applies to the
217	drycleaning facility or wholesale supply facility, and attendant
218	site rehabilitation applies to such facilities and to any place
219	where drycleaning-solvent contamination migrating from the
220	eligible facility is found.  A determination of eligibility or
221	ineligibility shall not be affected by any conveyance of the
222	ownership of the drycleaning facility, wholesale supply
223	facility, or the real property on which such facility is
224	located.  Nothing contained in this chapter shall be construed
225	to allow a drycleaning facility or wholesale supply facility
226	which would not be eligible under this subsection to become
227	eligible as a result of the conveyance of the ownership of the
228	ineligible drycleaning facility or wholesale supply facility to
229	another owner.
230	(o)(n)  If funding for the drycleaning contamination
231	rehabilitation program is eliminated, the provisions of this
232	subsection shall not apply.
233	(p)(o)1.  The department shall have the authority to cancel
234	the eligibility of any drycleaning facility or wholesale supply
235	facility that submits fraudulent information in the application
236	package or that fails to continuously comply with the conditions
237	of eligibility set forth in this subsection, or has not remitted
238	all fees pursuant to s. 376.303(1)(d), or has not remitted the
239	deductible payments pursuant to paragraph (e).
240	2.  If the program eligibility of a drycleaning facility or
241	wholesale supply facility is subject to cancellation pursuant to
242	this section, then the department shall notify the applicant in
243	writing of its intent to cancel program eligibility and shall
244	state the reason or reasons for cancellation. The applicant
245	shall have 45 days to resolve the reason or reasons for
246	cancellation to the satisfaction of the department. If, after 45
247	days, the applicant has not resolved the reason or reasons for
248	cancellation to the satisfaction of the department, the order of
249	cancellation shall become final and shall be subject to the
250	provisions of chapter 120.
251	(q)(p)  A real property owner shall not be subject to
252	administrative or judicial action brought by or on behalf of any
253	person or local or state government, or agency thereof, for
254	gross negligence or violations of department rules prior to
255	January 1, 1990, which resulted from the operation of a
256	drycleaning facility, provided that the real property owner
257	demonstrates that:
258	1.  The real property owner had ownership in the property
259	at the time of the gross negligence or violation of department
260	rules and did not cause or contribute to contamination on the
261	property;
262	2.  The real property owner was a distinct and separate
263	entity from the owner and operator of the drycleaning facility,
264	and did not have an ownership interest in or share in the
265	profits of the drycleaning facility;
266	3.  The real property owner did not participate in the
267	operation or management of the drycleaning facility;
268	4.  The real property owner complied with all discharge
269	reporting requirements, and did not conceal any contamination;
270	and
271	5.  The department has not been denied access.
272
273	The defense provided by this paragraph does not apply to any
274	liability under a federally delegated program.
275	(r)(q)  A person whose property becomes contaminated due to
276	geophysical or hydrologic reasons from the operation of a nearby
277	drycleaning or wholesale supply facility and whose property has
278	never been occupied by a business that utilized or stored
279	drycleaning solvents or similar constituents is not subject to
280	administrative or judicial action brought by or on behalf of
281	another to compel the rehabilitation of or the payment of the
282	costs for the rehabilitation of sites contaminated by
283	drycleaning solvents, provided that the person:
284	1.  Does not own and has never held an ownership interest
285	in, or shared in the profits of, the drycleaning facility
286	operated at the source location;
287	2.  Did not participate in the operation or management of
288	the drycleaning facility at the source location; and
289	3.  Did not cause, contribute to, or exacerbate the release
290	or threat of release of any hazardous substance through any act
291	or omission.
292
293	The defense provided by this paragraph does not apply to any
294	liability under a federally delegated program.
295	(s)(r)  Nothing in this subsection precludes the department
296	from considering information and documentation provided by
297	private consultants, local government programs, federal
298	agencies, or any individual which is relevant to an eligibility
299	determination if the department provides the applicant with
300	reasonable access to the information and its origin.
301
302
303	================ T I T L E  A M E N D M E N T =============
304	Remove line 7 and insert:
305	amending s. 376.3078, F.S.; providing that a drycleaning
306	facility where an accident caused or exacerbated
307	contamination is eligible for an exemption from liability;
308	defining the term "accident"; providing an effective date.

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