Florida Senate - 2020                        COMMITTEE AMENDMENT
       Bill No. SB 1350
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/17/2020           .                                

       The Committee on Environment and Natural Resources (Baxley)
       recommended the following:
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraphs (c), (d), and (e) of subsection (3)
    6  and subsection (9) of section 376.30781, Florida Statutes, are
    7  amended to read:
    8         376.30781 Tax credits for rehabilitation of drycleaning
    9  solvent-contaminated sites and brownfield sites in designated
   10  brownfield areas; application process; rulemaking authority;
   11  revocation authority.—
   12         (3)
   13         (c) In order to encourage completion of site rehabilitation
   14  at contaminated sites that are being voluntarily cleaned up and
   15  that are eligible for a tax credit under this section, the tax
   16  credit applicant may claim an additional 25 percent of the total
   17  site rehabilitation costs, not to exceed $500,000, if the
   18  Department of Environmental Protection has approved the
   19  applicant’s annual site rehabilitation applications and has
   20  issued in the final year of cleanup as evidenced by the
   21  Department of Environmental Protection issuing a “No Further
   22  Action” order for that site. The tax credit applicant must
   23  submit the claim for the additional 25 percent within 2 years of
   24  receipt of the “No Further Action” order for that site.
   25         (d) In order to encourage the construction of housing that
   26  meets the definition of affordable provided in s. 420.0004, an
   27  applicant for the tax credit may claim an additional 25 percent
   28  of the total site rehabilitation costs that are eligible for tax
   29  credits under this section, not to exceed $500,000. To receive
   30  this additional tax credit, the applicant must provide a
   31  certification letter from the Florida Housing Finance
   32  Corporation, the local housing authority, or other governmental
   33  agency that is a party to the use agreement indicating that the
   34  construction on the brownfield site has received a certificate
   35  of occupancy and the brownfield site has a properly recorded
   36  instrument that limits the use of the property to housing.
   37  Notwithstanding that only one application may be submitted each
   38  year for each site, an application for the additional credit
   39  provided for in this paragraph shall be submitted after all
   40  requirements to obtain the additional tax credit have been met.
   41         (e) In order to encourage the redevelopment of a brownfield
   42  site, as defined in the brownfield site rehabilitation
   43  agreement, that is hindered by the presence of solid waste, as
   44  defined in s. 403.703, costs related to solid waste removal may
   45  also be claimed under this section. A tax credit applicant, or
   46  multiple tax credit applicants working jointly to clean up a
   47  single brownfield site, may also claim costs to address the
   48  solid waste removal as defined in this paragraph in accordance
   49  with department rules. Multiple tax credit applicants shall be
   50  granted tax credits in the same proportion as each applicant’s
   51  contribution to payment of solid waste removal costs. These
   52  costs are eligible for a tax credit provided the applicant meets
   53  the eligibility requirements of s. 376.82(1) and submits an
   54  affidavit stating that, after consultation with appropriate
   55  local government officials and the department, to the best of
   56  the applicant’s knowledge based upon such consultation and
   57  available historical records, the brownfield site was never
   58  operated as a permitted solid waste disposal area under chapter
   59  62-701, Florida Administrative Code, or the predecessor rules or
   60  was never operated for monetary compensation, and the applicant
   61  submits all other documentation and certifications required by
   62  this section. In this section, where reference is made to “site
   63  rehabilitation,” the department shall instead consider whether
   64  the costs claimed are for solid waste removal. Tax credit
   65  applications claiming costs pursuant to this paragraph shall not
   66  be subject to the calendar-year limitation and January 31 annual
   67  application deadline, and the department shall accept a one-time
   68  application filed subsequent to the completion by the tax credit
   69  applicant of the applicable requirements listed in this
   70  subsection. A tax credit applicant may claim 50 percent of the
   71  costs for solid waste removal, not to exceed $500,000, after the
   72  applicant has determined solid waste removal is completed for
   73  the brownfield site. A solid waste removal tax credit
   74  application may be filed only once per brownfield site. For the
   75  purposes of this section, the term:
   76         1. “Solid waste disposal area” means a landfill, dump, or
   77  other area where solid waste has been disposed.
   78         2. “Monetary compensation” means the fees that were charged
   79  or the assessments that were levied for the disposal of solid
   80  waste at a solid waste disposal area.
   81         3. “Solid waste removal” means removal of solid waste from
   82  the land surface or excavation of solid waste from below the
   83  land surface and removal of the solid waste from the brownfield
   84  site. The term also includes:
   85         a. Transportation of solid waste to a licensed or exempt
   86  solid waste management facility or to a temporary storage area.
   87         b. Sorting or screening of solid waste prior to removal
   88  from the site.
   89         c. Deposition of solid waste at a permitted or exempt solid
   90  waste management facility, whether the solid waste is disposed
   91  of or recycled.
   92         (9) On or before June May 1, the Department of
   93  Environmental Protection shall inform each tax credit applicant
   94  that is subject to the January 31 annual application deadline of
   95  the applicant’s eligibility status and the amount of any tax
   96  credit due. The department shall provide each eligible tax
   97  credit applicant with a tax credit certificate that must be
   98  submitted with its tax return to the Department of Revenue to
   99  claim the tax credit or be transferred pursuant to s.
  100  220.1845(2)(g). The June May 1 deadline for annual site
  101  rehabilitation tax credit certificate awards shall not apply to
  102  any tax credit application for which the department has issued a
  103  notice of deficiency pursuant to subsection (8). The department
  104  shall respond within 90 days after receiving a response from the
  105  tax credit applicant to such a notice of deficiency. Credits may
  106  not result in the payment of refunds if total credits exceed the
  107  amount of tax owed.
  108         Section 2. Subsection (3) of section 376.313, Florida
  109  Statutes, is amended to read:
  110         376.313 Nonexclusiveness of remedies and individual cause
  111  of action for damages under ss. 376.30-376.317.—
  112         (3) Except as provided in s. 376.3078(3) and (11), nothing
  113  contained in ss. 376.30-376.317 prohibits any person from
  114  bringing a cause of action in a court of competent jurisdiction
  115  for all damages to real or personal property directly resulting
  116  from a discharge or other condition of pollution covered by ss.
  117  376.30-376.317 and which was not authorized by any government
  118  approval or permit pursuant to chapter 403. Nothing in this
  119  chapter shall prohibit or diminish a party’s right to
  120  contribution from other parties jointly or severally liable for
  121  a prohibited discharge of pollutants or hazardous substances or
  122  other pollution conditions. Except as otherwise provided in
  123  subsection (4) or subsection (5), in any such suit, it is not
  124  necessary for such person to plead or prove negligence in any
  125  form or manner. Such person need only plead and prove the fact
  126  of the prohibited discharge or other pollutive condition and
  127  that it has occurred. The only strict-liability exceptions
  128  defenses to such cause of action shall be those specified in s.
  129  376.308 or s. 376.82.
  130         Section 3. Subsection (1) of section 376.78, Florida
  131  Statutes, is amended to read:
  132         376.78 Legislative intent.—The Legislature finds and
  133  declares the following:
  134         (1) The reduction of public health and environmental
  135  hazards on existing commercial and industrial sites is vital to
  136  their use and reuse as sources of employment, housing,
  137  recreation, and open space areas. The reuse of industrial land
  138  is an important component of sound land use policy for
  139  productive urban purposes which will help prevent the premature
  140  development of farmland, open space areas, and natural areas,
  141  and reduce public costs for installing new water, sewer, and
  142  highway infrastructure.
  143         Section 4. Subsections (1) and (2) of section 376.80,
  144  Florida Statutes, are amended to read:
  145         376.80 Brownfield program administration process.—
  146         (1) The following general procedures apply to brownfield
  147  designations:
  148         (a) The local government with jurisdiction over a proposed
  149  brownfield area shall designate such area pursuant to this
  150  section.
  151         (b) For a brownfield area designation proposed by:
  152         1. The jurisdictional local government, the designation
  153  criteria under paragraph (2)(a) apply, except if the local
  154  government proposes to designate as a brownfield area a
  155  specified redevelopment area as provided in paragraph (2)(b).
  156         2. Any person, other than a governmental entity, including,
  157  but not limited to, individuals, corporations, partnerships,
  158  trusts, limited liability companies, community-based
  159  organizations, or not-for-profit corporations, the designation
  160  criteria under paragraph (2)(c) apply.
  161         (c) Except as otherwise provided, the following provisions
  162  apply to all proposed brownfield area designations:
  163         1. Notification to department following adoption.—A local
  164  government with jurisdiction over the brownfield area must
  165  notify the department, and, if applicable, the local pollution
  166  control program under s. 403.182, of its decision to designate a
  167  brownfield area for rehabilitation for the purposes of ss.
  168  376.77-376.86. The notification must include a resolution
  169  adopted by the local government body. The local government shall
  170  notify the department, and, if applicable, the local pollution
  171  control program under s. 403.182, of the designation within 30
  172  days after adoption of the resolution.
  173         2. Resolution adoption.—The brownfield area designation
  174  must be carried out by a resolution adopted by the
  175  jurisdictional local government, which includes a map adequate
  176  to clearly delineate exactly which parcels are to be included in
  177  the brownfield area or alternatively a less-detailed map
  178  accompanied by a detailed legal description of the brownfield
  179  area. For municipalities, the governing body shall adopt the
  180  resolution in accordance with the procedures outlined in s.
  181  166.041, except that the notices procedures for the public
  182  hearings on the proposed resolution must be in the form
  183  established in s. 166.041(3)(c)2. For counties, the governing
  184  body shall adopt the resolution in accordance with the
  185  procedures outlined in s. 125.66, except that the notices
  186  procedures for the public hearings on the proposed resolution
  187  shall be in the form established in s. 125.66(4)(b).
  188         3. Right to be removed from proposed brownfield area.—If a
  189  property owner within the area proposed for designation by the
  190  local government requests in writing to have his or her property
  191  removed from the proposed designation, the local government
  192  shall grant the request.
  193         4. Notice and public hearing requirements for designation
  194  of a proposed brownfield area outside a redevelopment area or by
  195  a nongovernmental entity. Compliance with the following
  196  provisions is required before designation of a proposed
  197  brownfield area under paragraph (2)(a) or paragraph (2)(c):
  198         a. At least one of the required public hearings shall be
  199  conducted as closely as is reasonably practicable to the area to
  200  be designated to provide an opportunity for public input on the
  201  size of the area, the objectives for rehabilitation, job
  202  opportunities and economic developments anticipated,
  203  neighborhood residents’ considerations, and other relevant local
  204  concerns.
  205         b. Notice of a public hearing must be made in a newspaper
  206  of general circulation in the area, must be made in ethnic
  207  newspapers or local community bulletins, must be posted in the
  208  affected area, and must be announced at a scheduled meeting of
  209  the local governing body before the actual public hearing.
  210         (2)(a) Local government-proposed brownfield area
  211  designation outside specified redevelopment areas.—If a local
  212  government proposes to designate a brownfield area that is
  213  outside a community redevelopment area, enterprise zone,
  214  empowerment zone, closed military base, or designated brownfield
  215  pilot project area, the local government shall provide notice,
  216  adopt the resolution, and conduct public hearings pursuant to
  217  paragraph (1)(c). At a public hearing to designate the proposed
  218  area as a brownfield area, as defined in s. 376.79, the local
  219  government must consider:
  220         1. Whether the brownfield area warrants economic
  221  development and has a reasonable potential for such activities;
  222         2. Whether the proposed area to be designated represents a
  223  reasonably focused approach and is not overly large in
  224  geographic coverage;
  225         3. Whether the area has potential to interest the private
  226  sector in participating in rehabilitation; and
  227         4. Whether the area contains sites or parts of sites
  228  suitable for limited recreational open space, cultural, or
  229  historical preservation purposes.
  230         (b) Local government-proposed brownfield area designation
  231  within specified redevelopment areas.—Paragraph (a) does not
  232  apply to a proposed brownfield area if the local government
  233  proposes to designate the brownfield area inside a community
  234  redevelopment area, enterprise zone, empowerment zone, closed
  235  military base, or designated brownfield pilot project area and
  236  the local government complies with paragraph (1)(c).
  237         (c) Brownfield area designation proposed by specified
  238  persons other than a governmental entity.—For designation of a
  239  brownfield area that is proposed by a person under this
  240  subsection other than the local government, the local government
  241  with jurisdiction over the proposed brownfield area shall
  242  provide notice and adopt a resolution to designate the
  243  brownfield area pursuant to paragraph (1)(c) if, at the public
  244  hearing to adopt the resolution, the person establishes all of
  245  the following with respect to the proposed brownfield area:
  246         1. A person who owns or controls a potential brownfield
  247  site is requesting the designation and has agreed to
  248  rehabilitate and redevelop the brownfield site.
  249         2. The rehabilitation and redevelopment of the proposed
  250  brownfield site will result in economic productivity of the
  251  area, along with the creation of at least 5 new permanent jobs
  252  at the brownfield site that are full-time equivalent positions
  253  not associated with the implementation of the brownfield site
  254  rehabilitation agreement and that are not associated with
  255  redevelopment project demolition or construction activities
  256  pursuant to the redevelopment of the proposed brownfield site or
  257  area. However, the job creation requirement does not apply to
  258  the rehabilitation and redevelopment of a brownfield site that
  259  will provide affordable housing as defined in s. 420.0004 or the
  260  creation of recreational areas, conservation areas, or parks.
  261         3. The redevelopment of the proposed brownfield site is
  262  consistent with the local comprehensive plan and is a
  263  permittable use under the applicable local land development
  264  regulations.
  265         4. Notice of the proposed rehabilitation of the brownfield
  266  area has been provided to neighbors and nearby residents of the
  267  proposed area to be designated pursuant to paragraph (1)(c), and
  268  the person proposing the area for designation has afforded to
  269  those receiving notice the opportunity for comments and
  270  suggestions about rehabilitation. Notice pursuant to this
  271  subparagraph must be posted in the affected area.
  272         5. The person proposing the area for designation has
  273  provided reasonable assurance that he or she has sufficient
  274  financial resources to implement and complete the rehabilitation
  275  agreement and redevelopment of the brownfield site.
  276         (d) Negotiation of brownfield site rehabilitation
  277  agreement.—The designation of a brownfield area and the
  278  identification of a person responsible for brownfield site
  279  rehabilitation simply entitles a the identified person to
  280  negotiate a brownfield site rehabilitation agreement with the
  281  department or approved local pollution control program.
  282         Section 5. Paragraph (b) of subsection (1) and paragraphs
  283  (a), (c), and (d) of subsection (2) of section 376.82, Florida
  284  Statutes, are amended to read:
  285         376.82 Eligibility criteria and liability protection.—
  286         (1) ELIGIBILITY.—Any person who has not caused or
  287  contributed to the contamination of a brownfield site on or
  288  after July 1, 1997, is eligible to participate in the brownfield
  289  program established in ss. 376.77-376.85, subject to the
  290  following:
  291         (b) Persons who have not caused or contributed to the
  292  contamination of a brownfield site on or after July 1, 1997, and
  293  who, prior to the department’s approval of a brownfield site
  294  rehabilitation agreement, are subject to ongoing corrective
  295  action or enforcement under state authority established in this
  296  chapter or chapter 403, including those persons subject to a
  297  pending consent order with the state, are eligible for
  298  participation in a brownfield site rehabilitation agreement if:
  299         1. The proposed brownfield site is currently idle or
  300  underutilized as a result of the contamination, and
  301  participation in the brownfield program will immediately, after
  302  cleanup or sooner, result in increased economic productivity at
  303  the site, including at a minimum the creation of 10 new
  304  permanent jobs, whether full-time or part-time, which are not
  305  associated with implementation of the brownfield site
  306  rehabilitation agreement. However, the job creation requirement
  307  does not apply to the rehabilitation and redevelopment of a
  308  brownfield site that will provide affordable housing as defined
  309  in s. 420.0004 or create recreational areas, conservation areas,
  310  or parks, or be maintained for cultural or historical
  311  preservation purposes; and
  312         2. The person is complying in good faith with the terms of
  313  an existing consent order or department-approved corrective
  314  action plan, or responding in good faith to an enforcement
  315  action, as evidenced by a determination issued by the department
  316  or an approved local pollution control program.
  317         (2) LIABILITY PROTECTION.—
  318         (a) Any person, including his or her successors and
  319  assigns, who executes and implements to successful completion a
  320  brownfield site rehabilitation agreement, his or her successors
  321  and assigns, and any subsequent property owner of the brownfield
  322  site, is relieved of:
  323         1. Further liability for remediation of the contaminated
  324  site or sites to the state and to third parties.
  325         2. Liability in contribution to any other party who has or
  326  may incur cleanup liability for the contaminated site or sites.
  327         3. Liability for claims of property damages, including, but
  328  not limited to, diminished value of real property or
  329  improvements; lost or delayed rent, sale, or use of real
  330  property or improvements; or stigma to real property or
  331  improvements caused by contamination addressed by a brownfield
  332  site rehabilitation agreement. Notwithstanding any other
  333  provision of this chapter, this subparagraph applies to causes
  334  of action accruing on or after July 1, 2014. This subparagraph
  335  does not apply to a person who discharges contaminants on
  336  property subject to a brownfield site rehabilitation agreement,
  337  who commits fraud in demonstrating site conditions or completing
  338  site rehabilitation of a property subject to a brownfield site
  339  rehabilitation agreement, or who exacerbates contamination of a
  340  property subject to a brownfield site rehabilitation agreement
  341  in violation of applicable laws which causes property damages.
  342         4.Statutory causes of action arising under s. 376.313(3).
  343         (c) This section does shall not affect the ability or
  344  authority to seek contribution from any person who may have
  345  liability with respect to the contaminated site and who did not
  346  receive cleanup liability protection under this act.
  347         (d) The liability protection provided under this section
  348  shall become effective upon execution of a brownfield site
  349  rehabilitation agreement and shall remain effective as to any
  350  person responsible for brownfield site rehabilitation, provided
  351  each the person responsible for brownfield site rehabilitation
  352  complies with the terms of the site rehabilitation agreement,
  353  and as to any subsequent property owner of the brownfield site,
  354  such owner maintains compliance, as applicable, with any
  355  institutional controls or engineering controls required for site
  356  rehabilitation. Any statute of limitations that would bar the
  357  department from pursuing relief in accordance with its existing
  358  authority is tolled from the time the agreement is executed
  359  until site rehabilitation is completed or immunity is revoked
  360  pursuant to s. 376.80(8).
  361         Section 6. This act shall take effect July 1, 2020.
  363  ================= T I T L E  A M E N D M E N T ================
  364  And the title is amended as follows:
  365         Delete everything before the enacting clause
  366  and insert:
  367                        A bill to be entitled                      
  368         An act relating to contamination; amending s.
  369         376.30781, F.S.; revising the conditions under which
  370         an applicant that has rehabilitated a contaminated
  371         site may submit and claim certain tax credits;
  372         specifying a timeframe within which such tax credit
  373         applications must be submitted; revising the criteria
  374         for determining applicants who are redeveloping
  375         brownfield sites who may be eligible for certain tax
  376         credits; revising the date by which the Department of
  377         Environmental Protection must issue annual site
  378         rehabilitation tax credit certificate awards; amending
  379         s. 376.313, F.S.; revising available damages and
  380         exceptions to specified causes of action concerning
  381         certain discharges or other types of pollution
  382         resulting from certain discharges or pollution;
  383         amending s. 376.78, F.S.; conforming provisions to
  384         changes made by the act; amending s. 376.80, F.S.;
  385         revising the entities that may propose brownfield
  386         designations using specified criteria; removing the
  387         requirement that certain persons be identified before
  388         negotiating a brownfield site rehabilitation
  389         agreement; amending s. 376.82, F.S.; exempting certain
  390         job creation requirements otherwise needed for
  391         eligibility for specified brownfield site
  392         rehabilitation agreements; providing an effective
  393         date.