HB 1155

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

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