Florida Senate - 2021                                    SB 1054
       
       
        
       By Senator Broxson
       
       
       
       
       
       1-00983A-21                                           20211054__
    1                        A bill to be entitled                      
    2         An act relating to brownfield site rehabilitation;
    3         amending s. 373.309, F.S.; requiring the Department of
    4         Environmental Protection to make information relating
    5         to areas of PFAS contamination available to certain
    6         governmental entities; requiring the department to
    7         promote cost-effective remediation of contaminated
    8         potable water supplies; requiring the department to
    9         delineate areas of groundwater contamination upon the
   10         request of certain entities; amending s. 376.301,
   11         F.S.; revising the definition of the term
   12         “institutional controls” with respect to the pollution
   13         of surface water and groundwater; amending s.
   14         376.30701, F.S.; requiring the department to provide
   15         constructive notice to local governmental entities and
   16         to certain property owners and residents when the
   17         department issues a site rehabilitation completion
   18         order that relies on intuitional controls not recorded
   19         in public records; amending s. 376.313, F.S.; revising
   20         the defenses to causes of action for damages to real
   21         or personal property as a result of pollution;
   22         amending s. 376.79, F.S.; revising the definition of
   23         the term “institutional controls” with respect to the
   24         Brownfields Redevelopment Act; creating s. 376.91,
   25         F.S.; defining the term “PFAS”; requiring the
   26         department to adopt rules for statewide cleanup target
   27         levels for PFAS in soils and groundwater; prohibiting
   28         such rules from taking effect until ratified by the
   29         Legislature; authorizing the department to require
   30         site assessments and sampling by potentially
   31         responsible parties to assist in its investigations
   32         before the PFAS rules are adopted and ratified;
   33         providing that a responsible party who cooperates in
   34         good faith with the department is immune from
   35         liability for specified claims; providing that a
   36         responsible party is not subject to administrative or
   37         judicial action under certain circumstances; providing
   38         that a person who executes a PFAS voluntary site
   39         rehabilitation agreement with the department is immune
   40         from and has no liability for certain claims under
   41         certain circumstances; requiring the department to
   42         allow a person to return to compliance within a
   43         specified timeframe before revoking the person’s
   44         immunity; creating the PFAS Assessment and Site
   45         Rehabilitation Program within the department, in
   46         consultation with the Department of Health; providing
   47         requirements for the program; requiring an annual
   48         report to the Governor and the Legislature by a
   49         specified date; providing an effective date.
   50  
   51         WHEREAS, perfluoroalkyl and polyfluoroalkyl substances
   52  (PFAS) are a class of nearly 5,000 manmade chemicals which
   53  includes perfluorooctanoic acid (PFOA), perfluorooctane
   54  sulfonate (PFOS), perfluorobutane sulfonate (PFBS), and GenX,
   55  which are manufactured and used in a variety of industries, and
   56         WHEREAS, PFAS chemicals are commonly found in every
   57  American household and in products as diverse as nonstick
   58  cookware, stain-resistant furniture and carpets, wrinkle-free
   59  and water-repellant clothing, cosmetics, lubricants, paint, food
   60  packaging, and many other everyday products, and
   61         WHEREAS, PFAS chemicals have been legally used throughout
   62  the country for decades and, in some cases, have been mandated
   63  for use in certain products, and
   64         WHEREAS, PFAS chemicals are known as “forever” chemicals
   65  because they are persistent in the environment and the human
   66  body, and
   67         WHEREAS, PFAS chemicals are suspected of causing adverse
   68  health outcomes in humans, and
   69         WHEREAS, in 2016, the United States Environmental
   70  Protection Agency (EPA) established a lifetime exposure health
   71  advisory level of 70 parts per trillion for the combined
   72  concentration of PFOA and PFOS in drinking water, but the EPA
   73  has not adopted maximum contaminant levels for such substances
   74  in drinking water, and
   75         WHEREAS, there are significant technical challenges in
   76  detecting and measuring PFAS in water and other media at the
   77  levels where adverse human health effects may occur, and
   78  analytical methodologies are still under development or are not
   79  yet generally available, and
   80         WHEREAS, while science predicts that the entire class of
   81  PFAS chemicals may be associated with adverse health effects and
   82  many such chemicals are in industrial and commercial use, only a
   83  small fraction of these chemicals has been investigated
   84  sufficiently to establish quantitative measures of toxicity, and
   85         WHEREAS, PFAS chemicals are currently required in
   86  firefighting foams used at airports to meet federal performance
   87  standards for extinguishing agents, but the Federal Aviation
   88  Administration is updating its standards to allow for
   89  alternative options for airports, and
   90         WHEREAS, PFAS contamination may be found at and around
   91  military bases, airports, seaports, drycleaners, manufacturing
   92  sites, landfills, and biosolid disposal sites, and in local
   93  water supplies obtained from both surface and groundwater, and
   94         WHEREAS, local governments are responsible for protecting
   95  the health, safety, and welfare of residents, including
   96  providing clean, safe water, and
   97         WHEREAS, while treatment technology for removing PFAS from
   98  water is not well-developed, the more effective methods use
   99  technologies that are not conventionally available in existing
  100  water treatment plants, so removing these PFAS chemicals from
  101  water will require costly investments by local governments and
  102  other water suppliers, which would be passed on to ratepayers,
  103  and
  104         WHEREAS, manufacturers, producers, and heavy users of PFAS
  105  chemicals may be liable for site rehabilitation and face
  106  additional liability, and
  107         WHEREAS, other persons and entities, known as “PFAS
  108  receivers,” merely convey or manage the traces of PFAS chemicals
  109  received from other sources, such as PFAS producers,
  110  manufacturers, users, and everyday consumers, and
  111         WHEREAS, PFAS receivers include drinking water treatment
  112  systems, wastewater treatment facilities, and municipal solid
  113  waste landfills, and
  114         WHEREAS, PFAS receivers may be liable for site
  115  rehabilitation and face additional liability, and
  116         WHEREAS, PFAS contamination not only poses health risks,
  117  but also economic impacts on businesses and communities for
  118  potential remediation and cleanup, and potential contamination
  119  of food sources in the agricultural and fishing industries, NOW,
  120  THEREFORE,
  121  
  122  Be It Enacted by the Legislature of the State of Florida:
  123  
  124         Section 1. Paragraph (e) of subsection (1) of section
  125  373.309, Florida Statutes, is amended, and paragraph (g) is
  126  added to that subsection, to read:
  127         373.309 Authority to adopt rules and procedures.—
  128         (1) The department shall adopt, and may from time to time
  129  amend, rules governing the location, construction, repair, and
  130  abandonment of water wells and shall be responsible for the
  131  administration of this part. With respect thereto, the
  132  department shall:
  133         (e) Encourage prevention of potable water well
  134  contamination and promote cost-effective remediation of
  135  contaminated potable water supplies by use of the Water Quality
  136  Assurance Trust Fund as provided in s. 376.307(1)(e) and
  137  establish by rule:
  138         1. Delineation of areas of groundwater contamination for
  139  implementation of well location and construction, testing,
  140  permitting, and clearance requirements as set forth in
  141  subparagraphs 2., 3., 4., 5., and 6. The department shall make
  142  available to water management districts, regional planning
  143  councils, the Department of Health, and county building and
  144  zoning departments, maps or other information on areas of
  145  contamination, including areas of contamination from ethylene
  146  dibromide and PFAS, as defined in s. 376.91 contamination. Such
  147  maps or other information shall be made available to property
  148  owners, realtors, real estate associations, property appraisers,
  149  and other interested persons upon request and upon payment of
  150  appropriate costs.
  151         2. Requirements for testing for suspected contamination in
  152  areas of known contamination, as a prerequisite for clearance of
  153  a water well for drinking purposes. The department is authorized
  154  to establish criteria for acceptance of water quality testing
  155  results from the Department of Health and laboratories certified
  156  by the Department of Health, and is authorized to establish
  157  requirements for sample collection quality assurance.
  158         3. Requirements for mandatory connection to available
  159  potable water systems in areas of known contamination, wherein
  160  the department may prohibit the permitting and construction of
  161  new potable water wells.
  162         4. Location and construction standards for public and all
  163  other potable water wells permitted in areas of contamination.
  164  Such standards shall be designed to minimize the effects of such
  165  contamination.
  166         5. A procedure for permitting all potable water wells in
  167  areas of known contamination. Any new water well that is to be
  168  used for drinking water purposes and that does not meet
  169  construction standards pursuant to subparagraph 4. must be
  170  abandoned and plugged by the owner. Water management districts
  171  shall implement, through delegation from the department, the
  172  permitting and enforcement responsibilities of this
  173  subparagraph.
  174         6. A procedure for clearing for use all potable water
  175  wells, except wells that serve a public water supply system, in
  176  areas of known contamination. If contaminants are found upon
  177  testing pursuant to subparagraph 2., a well may not be cleared
  178  for use without a filter or other means of preventing the users
  179  of the well from being exposed to deleterious amounts of
  180  contaminants. The Department of Health shall implement the
  181  responsibilities of this subparagraph.
  182         7. Fees to be paid for well construction permits and
  183  clearance for use. The fees shall be based on the actual costs
  184  incurred by the water management districts, the Department of
  185  Health, or other political subdivisions in carrying out the
  186  responsibilities related to potable water well permitting and
  187  clearance for use. The fees shall provide revenue to cover all
  188  such costs and shall be set according to the following schedule:
  189         a. The well construction permit fee may not exceed $500.
  190         b. The clearance fee may not exceed $50.
  191         8. Procedures for implementing well-location, construction,
  192  testing, permitting, and clearance requirements as set forth in
  193  subparagraphs 2.-6. within areas that research or monitoring
  194  data indicate are vulnerable to contamination with nitrate, or
  195  areas in which the department provides a subsidy for restoration
  196  or replacement of contaminated drinking water supplies through
  197  extending existing water lines or developing new water supply
  198  systems pursuant to s. 376.307(1)(e). The department shall
  199  consult with the Florida Ground Water Association in the process
  200  of developing rules pursuant to this subparagraph.
  201  
  202  All fees and funds collected by each delegated entity pursuant
  203  to this part shall be deposited in the appropriate operating
  204  account of that entity.
  205         (g)In order to facilitate the prompt and efficient
  206  prevention of potable water well contamination, promote cost
  207  effective remediation of contaminated potable water supplies to
  208  protect human health and the environment. Upon the request of a
  209  local governmental entity or a person otherwise responsible for
  210  site rehabilitation, the department shall delineate areas of
  211  groundwater contamination without further action by the
  212  Environmental Regulation Commission.
  213         Section 2. Subsection (21) of section 376.301, Florida
  214  Statutes, is amended to read:
  215         376.301 Definitions of terms used in ss. 376.30-376.317,
  216  376.70, and 376.75.—When used in ss. 376.30-376.317, 376.70, and
  217  376.75, unless the context clearly requires otherwise, the term:
  218         (21) “Institutional controls” means the restriction on use
  219  of or access to a site to eliminate or minimize exposure to
  220  petroleum products’ chemicals of concern; PFAS, as defined in s.
  221  376.91;, drycleaning solvents;, or other contaminants. Such
  222  restrictions may include, but are not limited to, any of the
  223  following:
  224         (a) Deed restrictions.,
  225         (b) Restrictive covenants., or
  226         (c) Conservation easements.
  227         (d)Local governmental requirements to:
  228         1.Require mandatory connection to available potable or
  229  reuse water systems;
  230         2.Describe an area of groundwater contamination in a
  231  shared electronic record system between the department and a
  232  water management district or delegated permitting authority
  233  documenting the location and extent of groundwater contamination
  234  for use in processing well construction permit applications; or
  235         3.Delineate an area of groundwater contamination pursuant
  236  to s. 373.309.
  237         Section 3. Paragraph (d) of subsection (2) of section
  238  376.30701, Florida Statutes, is amended to read:
  239         376.30701 Application of risk-based corrective action
  240  principles to contaminated sites; applicability; legislative
  241  intent; rulemaking authority; contamination cleanup criteria;
  242  limitations; reopeners.—
  243         (2) INTENT; RULEMAKING AUTHORITY; CLEANUP CRITERIA.—It is
  244  the intent of the Legislature to protect the health of all
  245  people under actual circumstances of exposure. By July 1, 2004,
  246  the secretary of the department shall establish criteria by rule
  247  for the purpose of determining, on a site-specific basis, the
  248  rehabilitation program tasks that comprise a site rehabilitation
  249  program, including a voluntary site rehabilitation program, and
  250  the level at which a rehabilitation program task and a site
  251  rehabilitation program may be deemed completed. In establishing
  252  these rules, the department shall apply, to the maximum extent
  253  feasible, a risk-based corrective action process to achieve
  254  protection of human health and safety and the environment in a
  255  cost-effective manner based on the principles set forth in this
  256  subsection. These rules shall prescribe a phased risk-based
  257  corrective action process that is iterative and that tailors
  258  site rehabilitation tasks to site-specific conditions and risks.
  259  The department and the person responsible for site
  260  rehabilitation are encouraged to establish decision points at
  261  which risk management decisions will be made. The department
  262  shall provide an early decision, when requested, regarding
  263  applicable exposure factors and a risk management approach based
  264  on the current and future land use at the site. These rules must
  265  include protocols for the use of natural attenuation, including
  266  long-term natural attenuation where site conditions warrant, the
  267  use of institutional and engineering controls, and the issuance
  268  of “No Further Action” orders. The criteria for determining what
  269  constitutes a rehabilitation program task or completion of a
  270  site rehabilitation program task or site rehabilitation program,
  271  including a voluntary site rehabilitation program, must:
  272         (d) Allow the use of institutional or engineering controls
  273  at contaminated sites being cleaned up pursuant to this section,
  274  where appropriate, to eliminate or control the potential
  275  exposure to contaminants of humans or the environment. The use
  276  of controls must be preapproved by the department and only after
  277  constructive notice and opportunity to comment within 30 days
  278  after receipt of notice is provided to local governments, owners
  279  of any property into which the point of compliance is allowed to
  280  extend, and residents on any property into which the point of
  281  compliance is allowed to extend. When institutional or
  282  engineering controls are implemented to control exposure, the
  283  removal of the controls must have prior department approval and
  284  must be accompanied by the resumption of active cleanup, or
  285  other approved controls, unless cleanup target levels under this
  286  section have been achieved. Without limiting the generality of
  287  the foregoing, when the department issues a site rehabilitation
  288  completion order that relies upon an institutional control that
  289  is not recorded in public records, the department must provide
  290  constructive notice to local governmental entities, to owners of
  291  any property into which the point of compliance is allowed to
  292  extend, and to residents on any property into which the point of
  293  compliance is allowed to extend.
  294  
  295  The department shall require source removal as a risk reduction
  296  measure if warranted and cost-effective. Once source removal at
  297  a site is complete, the department shall reevaluate the site to
  298  determine the degree of active cleanup needed to continue.
  299  Further, the department shall determine if the reevaluated site
  300  qualifies for monitoring only or if no further action is
  301  required to rehabilitate the site. If additional site
  302  rehabilitation is necessary to reach “No Further Action” status,
  303  the department is encouraged to utilize natural attenuation
  304  monitoring, including long-term natural attenuation monitoring,
  305  where site conditions warrant.
  306         Section 4. Subsection (3) of section 376.313, Florida
  307  Statutes, is amended to read:
  308         376.313 Nonexclusiveness of remedies and individual cause
  309  of action for damages under ss. 376.30-376.317.—
  310         (3) Except as provided in s. 376.3078(3) and (11), nothing
  311  contained in ss. 376.30-376.317 prohibits any person from
  312  bringing a cause of action in a court of competent jurisdiction
  313  for all damages to real or personal property directly resulting
  314  from the use of a contaminant or a discharge or other condition
  315  of pollution covered by ss. 376.30-376.317 and which was not
  316  authorized by any federal, state, or local government approval,
  317  requirement, or permit pursuant to chapter 403. Nothing in This
  318  chapter does not shall prohibit or diminish a party’s right to
  319  contribution from other parties jointly or severally liable for
  320  a prohibited discharge of pollutants or hazardous substances or
  321  other pollution conditions. Except as otherwise provided in
  322  subsection (4) or subsection (5), in any such suit, it is not
  323  necessary for such person to plead or prove negligence in any
  324  form or manner. Such person need only plead and prove the fact
  325  of the prohibited discharge or other pollutive condition and
  326  that it has occurred. The only defenses to such cause of action
  327  shall be those specified in s. 376.308 or s. 376.82.
  328         Section 5. Subsection (11) of section 376.79, Florida
  329  Statutes, is amended to read:
  330         376.79 Definitions relating to Brownfields Redevelopment
  331  Act.—As used in ss. 376.77-376.85, the term:
  332         (11) “Institutional controls” means the restriction on use
  333  of or access to a site to eliminate or minimize exposure to
  334  chemicals of concern from petroleum products; PFAS, as defined
  335  in s. 376.91;, drycleaning solvents;, or other contaminants.
  336  Such restrictions may include, but are not limited to, any of
  337  the following:
  338         (a) Deed restrictions.,
  339         (b) Restrictive covenants., or
  340         (c) Conservation easements.
  341         (d)Local government requirements to:
  342         1.Require mandatory connection to available potable or
  343  reuse water systems;
  344         2.Describe an area of groundwater contamination described
  345  in a shared electronic record system between the department and
  346  a water management district or delegated permitting authority
  347  documenting the location and extent of groundwater contamination
  348  for use in processing well construction permit applications; or
  349         3.Delineate an area of groundwater contamination pursuant
  350  to s. 373.309.
  351         Section 6. Section 376.91, Florida Statutes, is created to
  352  read:
  353         376.91 Statewide cleanup of PFAS.—
  354         (1)DEFINITION.—As used in this section, the term “PFAS”
  355  means perfluoroalkyl and polyfluoroalkyl substances, including
  356  perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate
  357  (PFOS).
  358         (2)CLEANUP TARGET LEVELS.—
  359         (a)The department shall adopt rules for statewide cleanup
  360  target levels for PFAS in soils and groundwater, with priority
  361  given to PFOA and PFOS. Rules adopted by the department pursuant
  362  to this section may not take effect until ratified by the
  363  Legislature.
  364         (b)The department may require site assessments and
  365  sampling by potentially responsible parties to assist in its
  366  investigation of PFAS contamination that occurs in this state
  367  before rules are adopted under this section and ratified. A
  368  responsible party who is cooperating in good faith with the
  369  department’s investigations by conducting or assisting with the
  370  site assessment, providing site access, sampling, or taking
  371  other cooperative action is immune from and has no liability for
  372  claims of any person, for damages of any kind, including, but
  373  not limited to, diminished value of real property or
  374  improvements; lost or delayed rent, sale, or use of real
  375  property or improvements; statutory causes of action arising
  376  under s. 376.313(3); or stigma to real property or improvements
  377  caused by PFAS contamination. Such a party is not subject to any
  378  administrative or judicial action brought by or on behalf of any
  379  person, state or local government, or agency to compel or enjoin
  380  site rehabilitation or pay for the cost of rehabilitation of
  381  environmental contamination or to pay any fines or penalties
  382  regarding rehabilitation based on the presence of a particular
  383  PFAS constituent until the department’s rule for that
  384  constituent has been ratified by the Legislature.
  385         (3)VOLUNTARY SITE REHABILITATION AGREEMENTS.—
  386         (a)A person who executes a PFAS voluntary site
  387  rehabilitation agreement with the department, upon initiation of
  388  such site rehabilitation, is immune from and has no liability
  389  for claims of any person for damages of any kind, including, but
  390  not limited to, diminished value of real property or
  391  improvements; lost or delayed rent, sale, or use of real
  392  property or improvements; statutory causes of action arising
  393  under s. 376.313(3); or stigma to real property or improvements
  394  caused by PFAS contamination; nor is the person subject to any
  395  administrative or judicial action brought by or on behalf of any
  396  person, state, or local government, or agency thereof, to compel
  397  or enjoin site rehabilitation or pay for the cost of
  398  rehabilitation of environmental contamination, or to pay any
  399  fines or penalties regarding rehabilitation.
  400         (b)This subsection does not affect an individual’s ability
  401  or authority to seek contribution from any person who may have
  402  liability with respect to the site and who did not receive
  403  cleanup liability protection under this subsection.
  404         (c)1.The liability protection provided under this
  405  subsection is effective upon execution of a PFAS voluntary site
  406  rehabilitation agreement and remains effective as long as the
  407  following conditions are met:
  408         a.A person is responsible for site rehabilitation,
  409  provided each person responsible for site rehabilitation
  410  complies with the terms of the site rehabilitation agreement.
  411         b.Any subsequent property owner of the site maintains
  412  compliance, as applicable, with any institutional controls or
  413  engineering controls required for site rehabilitation.
  414         2.Any statute of limitations that would bar the department
  415  from pursuing relief in accordance with its existing authority
  416  is tolled from the time the agreement is executed until site
  417  rehabilitation is completed or immunity is revoked pursuant to
  418  paragraph (d).
  419         (d)If the person responsible for site rehabilitation fails
  420  to comply with the site rehabilitation agreement, the department
  421  shall allow 90 days for the person responsible for the site
  422  rehabilitation to return to compliance with the provision at
  423  issue or to negotiate a modification to the site rehabilitation
  424  agreement with the department for good cause shown. If an
  425  imminent hazard exists, the 90-day grace period does not apply.
  426  If the project is not returned to compliance with the site
  427  rehabilitation agreement and a modification is unable to be
  428  negotiated, the immunity provisions of this subsection are
  429  revoked.
  430         (4)PFAS ASSESSMENT AND SITE REHABILITATION PROGRAM; ANNUAL
  431  REPORT.—In consultation with the Department of Health, the
  432  department shall develop and implement a PFAS Assessment and
  433  Site Rehabilitation Program within the department to study the
  434  impacts to human health and the environment from PFAS, develop
  435  strategies to protect human health and the environment from the
  436  harmful effects of PFAS, and develop cost-effective strategies
  437  for remediation of PFAS.
  438         (a)The program must do all of the following:
  439         1.Estimate costs incurred by the state, local governmental
  440  entities, businesses, and individuals in response to human and
  441  ecological exposure to PFAS.
  442         2.Estimate the costs attributable to each source of PFAS
  443  identified in this state.
  444         3.Inventory all ongoing direct and indirect discharges of
  445  PFAS to the air and surface waters, likely instances of PFAS
  446  contamination in soil and groundwater, and the amount of such
  447  discharges and contaminations.
  448         4.Include a risk assessment, based on the best available
  449  scientific information, of the risks to human health from
  450  exposure to PFAS present in this state in various media,
  451  including air, water, and soil.
  452         5.Estimate the ongoing and anticipated future costs of the
  453  aggregate impact of the discharge, emission, and contamination
  454  of PFAS in this state, including the costs of sampling, testing,
  455  cleanup, and decontamination; health care-related costs for
  456  treating individuals who have been exposed to PFAS;
  457  infrastructure improvements; and any other associated costs.
  458         6.Evaluate the impact of PFAS on public health and natural
  459  resources.
  460         7.Identify areas of potential or known contamination.
  461         8.Recommend response strategies that minimize the health
  462  risks of exposure to PFAS and protect this state’s resources in
  463  a cost-effective manner.
  464         9.Recommend risk mitigation and remedial strategies.
  465         10.Recommend public education and outreach strategies to
  466  increase awareness and understanding of PFAS impacts and the
  467  relative risk of exposure to PFAS through various exposure
  468  pathways.
  469         11.Recommend a program for site cleanup, rehabilitation,
  470  mitigation, funding, financial assistance, and liability
  471  protection for responsible persons.
  472         (b)By December 31, 2021, and annually thereafter, the
  473  department, in consultation with the Department of Health, shall
  474  prepare and submit a report to the Governor, the President of
  475  the Senate, and the Speaker of the House of Representatives on
  476  the progress of its findings under the program, including any
  477  recommendations for legislative action.
  478         Section 7. This act shall take effect upon becoming a law.