Florida Senate - 2020                             CS for SB 1350
       By the Committee on Environment and Natural Resources; and
       Senator Baxley
       592-03789-20                                          20201350c1
    1                        A bill to be entitled                      
    2         An act relating to contamination; amending s.
    3         376.30781, F.S.; revising the conditions under which
    4         an applicant that has rehabilitated a contaminated
    5         site may submit and claim certain tax credits;
    6         specifying a timeframe within which such tax credit
    7         applications must be submitted; revising the criteria
    8         for determining applicants who are redeveloping
    9         brownfield sites who may be eligible for certain tax
   10         credits; revising the date by which the Department of
   11         Environmental Protection must issue annual site
   12         rehabilitation tax credit certificate awards; amending
   13         s. 376.313, F.S.; revising available damages and
   14         exceptions to specified causes of action concerning
   15         certain discharges or other types of pollution
   16         resulting from certain discharges or pollution;
   17         amending s. 376.78, F.S.; conforming provisions to
   18         changes made by the act; amending s. 376.80, F.S.;
   19         revising the entities that may propose brownfield
   20         designations using specified criteria; removing the
   21         requirement that certain persons be identified before
   22         negotiating a brownfield site rehabilitation
   23         agreement; amending s. 376.82, F.S.; exempting certain
   24         job creation requirements otherwise needed for
   25         eligibility for specified brownfield site
   26         rehabilitation agreements; providing an effective
   27         date.
   29  Be It Enacted by the Legislature of the State of Florida:
   31         Section 1. Paragraphs (c), (d), and (e) of subsection (3)
   32  and subsection (9) of section 376.30781, Florida Statutes, are
   33  amended to read:
   34         376.30781 Tax credits for rehabilitation of drycleaning
   35  solvent-contaminated sites and brownfield sites in designated
   36  brownfield areas; application process; rulemaking authority;
   37  revocation authority.—
   38         (3)
   39         (c) In order to encourage completion of site rehabilitation
   40  at contaminated sites that are being voluntarily cleaned up and
   41  that are eligible for a tax credit under this section, the tax
   42  credit applicant may claim an additional 25 percent of the total
   43  site rehabilitation costs, not to exceed $500,000, if the
   44  Department of Environmental Protection has approved the
   45  applicant’s annual site rehabilitation applications and has
   46  issued in the final year of cleanup as evidenced by the
   47  Department of Environmental Protection issuing a “No Further
   48  Action” order for that site. The tax credit applicant must
   49  submit the claim for the additional 25 percent within 2 years of
   50  receipt of the “No Further Action” order for that site.
   51         (d) In order to encourage the construction of housing that
   52  meets the definition of affordable provided in s. 420.0004, an
   53  applicant for the tax credit may claim an additional 25 percent
   54  of the total site rehabilitation costs that are eligible for tax
   55  credits under this section, not to exceed $500,000. To receive
   56  this additional tax credit, the applicant must provide a
   57  certification letter from the Florida Housing Finance
   58  Corporation, the local housing authority, or other governmental
   59  agency that is a party to the use agreement indicating that the
   60  construction on the brownfield site has received a certificate
   61  of occupancy and the brownfield site has a properly recorded
   62  instrument that limits the use of the property to housing.
   63  Notwithstanding that only one application may be submitted each
   64  year for each site, an application for the additional credit
   65  provided for in this paragraph shall be submitted after all
   66  requirements to obtain the additional tax credit have been met.
   67         (e) In order to encourage the redevelopment of a brownfield
   68  site, as defined in the brownfield site rehabilitation
   69  agreement, that is hindered by the presence of solid waste, as
   70  defined in s. 403.703, costs related to solid waste removal may
   71  also be claimed under this section. A tax credit applicant, or
   72  multiple tax credit applicants working jointly to clean up a
   73  single brownfield site, may also claim costs to address the
   74  solid waste removal as defined in this paragraph in accordance
   75  with department rules. Multiple tax credit applicants shall be
   76  granted tax credits in the same proportion as each applicant’s
   77  contribution to payment of solid waste removal costs. These
   78  costs are eligible for a tax credit provided the applicant meets
   79  the eligibility requirements of s. 376.82(1) and submits an
   80  affidavit stating that, after consultation with appropriate
   81  local government officials and the department, to the best of
   82  the applicant’s knowledge based upon such consultation and
   83  available historical records, the brownfield site was never
   84  operated as a permitted solid waste disposal area under chapter
   85  62-701, Florida Administrative Code, or the predecessor rules or
   86  was never operated for monetary compensation, and the applicant
   87  submits all other documentation and certifications required by
   88  this section. In this section, where reference is made to “site
   89  rehabilitation,” the department shall instead consider whether
   90  the costs claimed are for solid waste removal. Tax credit
   91  applications claiming costs pursuant to this paragraph shall not
   92  be subject to the calendar-year limitation and January 31 annual
   93  application deadline, and the department shall accept a one-time
   94  application filed subsequent to the completion by the tax credit
   95  applicant of the applicable requirements listed in this
   96  subsection. A tax credit applicant may claim 50 percent of the
   97  costs for solid waste removal, not to exceed $500,000, after the
   98  applicant has determined solid waste removal is completed for
   99  the brownfield site. A solid waste removal tax credit
  100  application may be filed only once per brownfield site. For the
  101  purposes of this section, the term:
  102         1. “Solid waste disposal area” means a landfill, dump, or
  103  other area where solid waste has been disposed.
  104         2. “Monetary compensation” means the fees that were charged
  105  or the assessments that were levied for the disposal of solid
  106  waste at a solid waste disposal area.
  107         3. “Solid waste removal” means removal of solid waste from
  108  the land surface or excavation of solid waste from below the
  109  land surface and removal of the solid waste from the brownfield
  110  site. The term also includes:
  111         a. Transportation of solid waste to a licensed or exempt
  112  solid waste management facility or to a temporary storage area.
  113         b. Sorting or screening of solid waste prior to removal
  114  from the site.
  115         c. Deposition of solid waste at a permitted or exempt solid
  116  waste management facility, whether the solid waste is disposed
  117  of or recycled.
  118         (9) On or before June May 1, the Department of
  119  Environmental Protection shall inform each tax credit applicant
  120  that is subject to the January 31 annual application deadline of
  121  the applicant’s eligibility status and the amount of any tax
  122  credit due. The department shall provide each eligible tax
  123  credit applicant with a tax credit certificate that must be
  124  submitted with its tax return to the Department of Revenue to
  125  claim the tax credit or be transferred pursuant to s.
  126  220.1845(2)(g). The June May 1 deadline for annual site
  127  rehabilitation tax credit certificate awards shall not apply to
  128  any tax credit application for which the department has issued a
  129  notice of deficiency pursuant to subsection (8). The department
  130  shall respond within 90 days after receiving a response from the
  131  tax credit applicant to such a notice of deficiency. Credits may
  132  not result in the payment of refunds if total credits exceed the
  133  amount of tax owed.
  134         Section 2. Subsection (3) of section 376.313, Florida
  135  Statutes, is amended to read:
  136         376.313 Nonexclusiveness of remedies and individual cause
  137  of action for damages under ss. 376.30-376.317.—
  138         (3) Except as provided in s. 376.3078(3) and (11), nothing
  139  contained in ss. 376.30-376.317 prohibits any person from
  140  bringing a cause of action in a court of competent jurisdiction
  141  for all damages to real or personal property directly resulting
  142  from a discharge or other condition of pollution covered by ss.
  143  376.30-376.317 and which was not authorized by any government
  144  approval or permit pursuant to chapter 403. Nothing in this
  145  chapter shall prohibit or diminish a party’s right to
  146  contribution from other parties jointly or severally liable for
  147  a prohibited discharge of pollutants or hazardous substances or
  148  other pollution conditions. Except as otherwise provided in
  149  subsection (4) or subsection (5), in any such suit, it is not
  150  necessary for such person to plead or prove negligence in any
  151  form or manner. Such person need only plead and prove the fact
  152  of the prohibited discharge or other pollutive condition and
  153  that it has occurred. The only strict-liability exceptions
  154  defenses to such cause of action shall be those specified in s.
  155  376.308 or s. 376.82.
  156         Section 3. Subsection (1) of section 376.78, Florida
  157  Statutes, is amended to read:
  158         376.78 Legislative intent.—The Legislature finds and
  159  declares the following:
  160         (1) The reduction of public health and environmental
  161  hazards on existing commercial and industrial sites is vital to
  162  their use and reuse as sources of employment, housing,
  163  recreation, and open space areas. The reuse of industrial land
  164  is an important component of sound land use policy for
  165  productive urban purposes which will help prevent the premature
  166  development of farmland, open space areas, and natural areas,
  167  and reduce public costs for installing new water, sewer, and
  168  highway infrastructure.
  169         Section 4. Subsections (1) and (2) of section 376.80,
  170  Florida Statutes, are amended to read:
  171         376.80 Brownfield program administration process.—
  172         (1) The following general procedures apply to brownfield
  173  designations:
  174         (a) The local government with jurisdiction over a proposed
  175  brownfield area shall designate such area pursuant to this
  176  section.
  177         (b) For a brownfield area designation proposed by:
  178         1. The jurisdictional local government, the designation
  179  criteria under paragraph (2)(a) apply, except if the local
  180  government proposes to designate as a brownfield area a
  181  specified redevelopment area as provided in paragraph (2)(b).
  182         2. Any person, other than a governmental entity, including,
  183  but not limited to, individuals, corporations, partnerships,
  184  trusts, limited liability companies, community-based
  185  organizations, or not-for-profit corporations, the designation
  186  criteria under paragraph (2)(c) apply.
  187         (c) Except as otherwise provided, the following provisions
  188  apply to all proposed brownfield area designations:
  189         1. Notification to department following adoption.—A local
  190  government with jurisdiction over the brownfield area must
  191  notify the department, and, if applicable, the local pollution
  192  control program under s. 403.182, of its decision to designate a
  193  brownfield area for rehabilitation for the purposes of ss.
  194  376.77-376.86. The notification must include a resolution
  195  adopted by the local government body. The local government shall
  196  notify the department, and, if applicable, the local pollution
  197  control program under s. 403.182, of the designation within 30
  198  days after adoption of the resolution.
  199         2. Resolution adoption.—The brownfield area designation
  200  must be carried out by a resolution adopted by the
  201  jurisdictional local government, which includes a map adequate
  202  to clearly delineate exactly which parcels are to be included in
  203  the brownfield area or alternatively a less-detailed map
  204  accompanied by a detailed legal description of the brownfield
  205  area. For municipalities, the governing body shall adopt the
  206  resolution in accordance with the procedures outlined in s.
  207  166.041, except that the notices procedures for the public
  208  hearings on the proposed resolution must be in the form
  209  established in s. 166.041(3)(c)2. For counties, the governing
  210  body shall adopt the resolution in accordance with the
  211  procedures outlined in s. 125.66, except that the notices
  212  procedures for the public hearings on the proposed resolution
  213  shall be in the form established in s. 125.66(4)(b).
  214         3. Right to be removed from proposed brownfield area.—If a
  215  property owner within the area proposed for designation by the
  216  local government requests in writing to have his or her property
  217  removed from the proposed designation, the local government
  218  shall grant the request.
  219         4. Notice and public hearing requirements for designation
  220  of a proposed brownfield area outside a redevelopment area or by
  221  a nongovernmental entity. Compliance with the following
  222  provisions is required before designation of a proposed
  223  brownfield area under paragraph (2)(a) or paragraph (2)(c):
  224         a. At least one of the required public hearings shall be
  225  conducted as closely as is reasonably practicable to the area to
  226  be designated to provide an opportunity for public input on the
  227  size of the area, the objectives for rehabilitation, job
  228  opportunities and economic developments anticipated,
  229  neighborhood residents’ considerations, and other relevant local
  230  concerns.
  231         b. Notice of a public hearing must be made in a newspaper
  232  of general circulation in the area, must be made in ethnic
  233  newspapers or local community bulletins, must be posted in the
  234  affected area, and must be announced at a scheduled meeting of
  235  the local governing body before the actual public hearing.
  236         (2)(a) Local government-proposed brownfield area
  237  designation outside specified redevelopment areas.—If a local
  238  government proposes to designate a brownfield area that is
  239  outside a community redevelopment area, enterprise zone,
  240  empowerment zone, closed military base, or designated brownfield
  241  pilot project area, the local government shall provide notice,
  242  adopt the resolution, and conduct public hearings pursuant to
  243  paragraph (1)(c). At a public hearing to designate the proposed
  244  area as a brownfield area, as defined in s. 376.79, the local
  245  government must consider:
  246         1. Whether the brownfield area warrants economic
  247  development and has a reasonable potential for such activities;
  248         2. Whether the proposed area to be designated represents a
  249  reasonably focused approach and is not overly large in
  250  geographic coverage;
  251         3. Whether the area has potential to interest the private
  252  sector in participating in rehabilitation; and
  253         4. Whether the area contains sites or parts of sites
  254  suitable for limited recreational open space, cultural, or
  255  historical preservation purposes.
  256         (b) Local government-proposed brownfield area designation
  257  within specified redevelopment areas.—Paragraph (a) does not
  258  apply to a proposed brownfield area if the local government
  259  proposes to designate the brownfield area inside a community
  260  redevelopment area, enterprise zone, empowerment zone, closed
  261  military base, or designated brownfield pilot project area and
  262  the local government complies with paragraph (1)(c).
  263         (c) Brownfield area designation proposed by specified
  264  persons other than a governmental entity.—For designation of a
  265  brownfield area that is proposed by a person under this
  266  subsection other than the local government, the local government
  267  with jurisdiction over the proposed brownfield area shall
  268  provide notice and adopt a resolution to designate the
  269  brownfield area pursuant to paragraph (1)(c) if, at the public
  270  hearing to adopt the resolution, the person establishes all of
  271  the following with respect to the proposed brownfield area:
  272         1. A person who owns or controls a potential brownfield
  273  site is requesting the designation and has agreed to
  274  rehabilitate and redevelop the brownfield site.
  275         2. The rehabilitation and redevelopment of the proposed
  276  brownfield site will result in economic productivity of the
  277  area, along with the creation of at least 5 new permanent jobs
  278  at the brownfield site that are full-time equivalent positions
  279  not associated with the implementation of the brownfield site
  280  rehabilitation agreement and that are not associated with
  281  redevelopment project demolition or construction activities
  282  pursuant to the redevelopment of the proposed brownfield site or
  283  area. However, the job creation requirement does not apply to
  284  the rehabilitation and redevelopment of a brownfield site that
  285  will provide affordable housing as defined in s. 420.0004 or the
  286  creation of recreational areas, conservation areas, or parks.
  287         3. The redevelopment of the proposed brownfield site is
  288  consistent with the local comprehensive plan and is a
  289  permittable use under the applicable local land development
  290  regulations.
  291         4. Notice of the proposed rehabilitation of the brownfield
  292  area has been provided to neighbors and nearby residents of the
  293  proposed area to be designated pursuant to paragraph (1)(c), and
  294  the person proposing the area for designation has afforded to
  295  those receiving notice the opportunity for comments and
  296  suggestions about rehabilitation. Notice pursuant to this
  297  subparagraph must be posted in the affected area.
  298         5. The person proposing the area for designation has
  299  provided reasonable assurance that he or she has sufficient
  300  financial resources to implement and complete the rehabilitation
  301  agreement and redevelopment of the brownfield site.
  302         (d) Negotiation of brownfield site rehabilitation
  303  agreement.—The designation of a brownfield area and the
  304  identification of a person responsible for brownfield site
  305  rehabilitation simply entitles a the identified person to
  306  negotiate a brownfield site rehabilitation agreement with the
  307  department or approved local pollution control program.
  308         Section 5. Paragraph (b) of subsection (1) and paragraphs
  309  (a), (c), and (d) of subsection (2) of section 376.82, Florida
  310  Statutes, are amended to read:
  311         376.82 Eligibility criteria and liability protection.—
  312         (1) ELIGIBILITY.—Any person who has not caused or
  313  contributed to the contamination of a brownfield site on or
  314  after July 1, 1997, is eligible to participate in the brownfield
  315  program established in ss. 376.77-376.85, subject to the
  316  following:
  317         (b) Persons who have not caused or contributed to the
  318  contamination of a brownfield site on or after July 1, 1997, and
  319  who, prior to the department’s approval of a brownfield site
  320  rehabilitation agreement, are subject to ongoing corrective
  321  action or enforcement under state authority established in this
  322  chapter or chapter 403, including those persons subject to a
  323  pending consent order with the state, are eligible for
  324  participation in a brownfield site rehabilitation agreement if:
  325         1. The proposed brownfield site is currently idle or
  326  underutilized as a result of the contamination, and
  327  participation in the brownfield program will immediately, after
  328  cleanup or sooner, result in increased economic productivity at
  329  the site, including at a minimum the creation of 10 new
  330  permanent jobs, whether full-time or part-time, which are not
  331  associated with implementation of the brownfield site
  332  rehabilitation agreement. However, the job creation requirement
  333  does not apply to the rehabilitation and redevelopment of a
  334  brownfield site that will provide affordable housing as defined
  335  in s. 420.0004 or create recreational areas, conservation areas,
  336  or parks, or be maintained for cultural or historical
  337  preservation purposes; and
  338         2. The person is complying in good faith with the terms of
  339  an existing consent order or department-approved corrective
  340  action plan, or responding in good faith to an enforcement
  341  action, as evidenced by a determination issued by the department
  342  or an approved local pollution control program.
  343         (2) LIABILITY PROTECTION.—
  344         (a) Any person, including his or her successors and
  345  assigns, who executes and implements to successful completion a
  346  brownfield site rehabilitation agreement, his or her successors
  347  and assigns, and any subsequent property owner of the brownfield
  348  site, is relieved of:
  349         1. Further liability for remediation of the contaminated
  350  site or sites to the state and to third parties.
  351         2. Liability in contribution to any other party who has or
  352  may incur cleanup liability for the contaminated site or sites.
  353         3. Liability for claims of property damages, including, but
  354  not limited to, diminished value of real property or
  355  improvements; lost or delayed rent, sale, or use of real
  356  property or improvements; or stigma to real property or
  357  improvements caused by contamination addressed by a brownfield
  358  site rehabilitation agreement. Notwithstanding any other
  359  provision of this chapter, this subparagraph applies to causes
  360  of action accruing on or after July 1, 2014. This subparagraph
  361  does not apply to a person who discharges contaminants on
  362  property subject to a brownfield site rehabilitation agreement,
  363  who commits fraud in demonstrating site conditions or completing
  364  site rehabilitation of a property subject to a brownfield site
  365  rehabilitation agreement, or who exacerbates contamination of a
  366  property subject to a brownfield site rehabilitation agreement
  367  in violation of applicable laws which causes property damages.
  368         4.Statutory causes of action arising under s. 376.313(3).
  369         (c) This section does shall not affect the ability or
  370  authority to seek contribution from any person who may have
  371  liability with respect to the contaminated site and who did not
  372  receive cleanup liability protection under this act.
  373         (d) The liability protection provided under this section
  374  shall become effective upon execution of a brownfield site
  375  rehabilitation agreement and shall remain effective as to any
  376  person responsible for brownfield site rehabilitation, provided
  377  each the person responsible for brownfield site rehabilitation
  378  complies with the terms of the site rehabilitation agreement,
  379  and as to any subsequent property owner of the brownfield site,
  380  such owner maintains compliance, as applicable, with any
  381  institutional controls or engineering controls required for site
  382  rehabilitation. Any statute of limitations that would bar the
  383  department from pursuing relief in accordance with its existing
  384  authority is tolled from the time the agreement is executed
  385  until site rehabilitation is completed or immunity is revoked
  386  pursuant to s. 376.80(8).
  387         Section 6. This act shall take effect July 1, 2020.