§ 376.3078 — Drycleaning facility restoration; funds; uses; liability; recovery of expenditures

Florida § 376.3078

• Jurisdiction: Florida
• Title: XXVIII
• Ch. 376: POLLUTANT DISCHARGE PREVENTION AND REMOVAL

Text

(1) FINDINGS. — In addition to the legislative findings set forth in s. 376.30, the Legislature finds and declares that: (a) Significant quantities of drycleaning solvents have been discharged in the past at drycleaning facilities as part of the normal operation of these facilities. (b) Discharges of drycleaning solvents at such drycleaning facilities have occurred and are occurring, and pose a significant threat to the quality of the groundwaters and inland surface waters of this state. (c) Where contamination of the groundwater or surface water has occurred, remedial measures have often been delayed for long periods while determinations as to liability and the extent of liability are made, and such delays result in the continuation and intensification of the threat to the public health, safety, and welfare; in greater damage to the environment; and in significantly higher costs to contain and remove the contamination. (d) Adequate financial resources must be readily available to provide for the expeditious supply of safe and reliable alternative sources of potable water to affected persons and to provide a means for investigation and rehabilitation of contaminated sites without delay. (e) It is the intent of the Legislature to encourage real property owners to undertake the voluntary cleanup of property contaminated with drycleaning solvents and that the immunity provisions of this section and all other available defenses be construed in favor of real property owners. (f) Strong public interests are served by subsections (3) and (11). These include improving the marketability and use of, and the ability to borrow funds as to, property contaminated by drycleaning solvents and encouraging the voluntary remediation of contaminated sites. The extent to which claims or rights are affected by subsections (3) and (11) is offset by the remedies created in this section. The limitations imposed by these subsections on such claims or rights are reasonable when balanced against the public interests served. The claims or rights affected by subsections (3) and (11) are speculative, and these subsections are intended to prevent judicial interpretations allowing windfall awards that thwart the public interest provisions of this section.

(2) FUNDS; USES. — (a) All penalties, judgments, recoveries, reimbursements, loans, and other fees and charges related to the implementation of this section and the tax revenues levied, collected, and credited pursuant to ss. 376.70 and 376.75, and fees collected pursuant to s. 376.303(1)(d), and deductibles collected pursuant to paragraph (3)(d), shall be deposited into the Water Quality Assurance Trust Fund, to be used upon appropriation as provided in this section. Charges against the funds for drycleaning facility or wholesale supply site rehabilitation shall be made in accordance with the provisions of this section. (b) Whenever, in its determination, incidents of contamination by drycleaning solvents related to the operation of drycleaning facilities and wholesale supply facilities may pose a threat to the environment or the public health, safety, or welfare, the department shall obligate moneys available pursuant to this section to provide for: 1. Prompt investigation and assessment of the contaminated drycleaning facility or wholesale supply facility sites. 2. Expeditious treatment, restoration, or replacement of potable water supplies as provided in s. 376.30(3)(c)1. 3. Rehabilitation of contaminated drycleaning facility or wholesale supply facility sites, which shall consist of rehabilitation of affected soil, groundwater, and surface waters, using the most cost-effective alternative that is technologically feasible and reliable and that provides adequate protection of the public health, safety, and welfare and minimizes environmental damage, in accordance with the site selection and rehabilitation criteria established by the department under subsection (4), except that nothing in this subsection shall be construed to authorize the department to obligate drycleaning facility restoration funds for payment of costs that may be associated with, but are not integral to, drycleaning facility or wholesale supply facility site rehabilitation. 4. Maintenance and monitoring of contaminated drycleaning facility or wholesale supply facility sites. 5. Inspection and supervision of activities described in this subsection. 6. Payment of expenses incurred by the department in its efforts to obtain from responsible parties the payment or recovery of reasonable costs resulting from the activities described in this subsection. 7. Payment of any other reasonable costs of administration, including those administrative costs incurred by the Department of Health in providing field and laboratory services, toxicological risk assessment, and other assistance to the department in the investigation of drinking water contamination complaints and costs associated with public information and education activities. 8. Reasonable costs of restoring property as nearly as practicable to the conditions that existed prior to activities associated with contamination assessment or remedial action. The department shall not obligate funds in excess of the annual appropriation. (c) Drycleaning facility restoration funds may not be used to: 1. Restore sites that are contaminated by solvents normally used in drycleaning operations where the contamination at such sites did not result from the operation of a drycleaning facility or wholesale supply facility. 2. Restore sites that are contaminated by drycleaning solvents being transported to or from a drycleaning facility or wholesale supply facility. 3. Fund any costs related to the restoration of any site that has been identified to qualify for listing, or is listed, on the National Priority List pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 as amended by the Superfund Amendments and Reauthorization Act of 1986, or that is under an order from the United States Environmental Protection Agency pursuant to s. 3008(h) of the Resource Conservation and Recovery Act as amended, or has obtained, or is required to obtain a permit for the operation of a hazardous waste treatment, storage, or disposal facility, a postclosure permit, or a permit pursuant to the federal Hazardous and Solid Waste Amendments of 1984. 4. Pay any costs associated with any fine, penalty, or action brought against a drycleaning facility owner or operator or wholesale supply facility or real property owner under local, state, or federal law. 5. Pay any costs related to the restoration of any site that is operated or has at some time in the past operated as a uniform rental or linen supply facility, regardless of whether the site operates as or was previously operated as a drycleaning facility or wholesale supply facility.

(3) REHABILITATION LIABILITY. — (a) In accordance with the eligibility provisions of this section, a real property owner, nearby real property owner, or person who owns or operates, or who otherwise could be liable as a result of the operation of, a drycleaning facility or a wholesale supply facility is not liable for or subject to administrative or judicial action brought by or on behalf of any state or local government or agency thereof or by or on behalf of any person to compel rehabilitation or pay for the costs of rehabilitation of environmental contamination resulting from the discharge of drycleaning solvents. Subject to the delays that may occur as a result of the prioritization of sites under this section for any qualified site, costs for activities described in paragraph (2)(b) shall be absorbed at the expense of the drycleaning facility restoration funds, without recourse to reimbursement or recovery from the real property owner, nearby real property owner, or owner or operator of the drycleaning facility or the wholesale supply facility. Notwithstanding any other provision of this chapter, this subsection applies to causes of action accruing on or after the effective date of this act and applies retroactively to causes of action accruing before the effective date of this act for which a lawsuit has not been filed before the effective date of this act. (b) With regard to drycleaning facilities or wholesale supply facilities that have operated as drycleaning facilities or wholesale supply facilities on or after October 1, 1994, any such drycleaning facility or wholesale supply facility at which there exists contamination by drycleaning solvents shall be eligible under this subsection regardless of when the drycleaning contamination was discovered, provided that the drycleaning facility or the wholesale supply facility: 1. Has been registered with the department; 2. Is determined by the department to be in compliance with the department’s rules regulating drycleaning solvents, drycleaning facilities, or wholesale supply facilities on or after November 19, 1980; 3. Has not been operated in a grossly negligent manner at any time on or after November 19, 1980; 4. Has not been identified to qualify for listing, nor is listed, on the National Priority List pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 as amended by the Superfund Amendments and Reauthorization Act of 1986, and as subsequently amended; 5. Is not under an order from the United States Environmental Protection Agency pursuant to s. 3008(h) of the Resource Conservation and Recovery Act as amended (42 U.S.C.A. s. 6928(h)), or has not obtained and is not required to obtain a permit for the operation of a hazardous waste treatment, storage, or disposal facility, a postclosure permit, or a permit pursuant to the federal Hazardous and Solid Waste Amendments of 1984; and provided that the real property owner or the owner or operator of the drycleaning facility or the wholesale supply facility has not willfully concealed the discharge of drycleaning solvents and has remitted all taxes due pursuant to ss. 376.70 and 376.75, has provided documented evidence of contamination by drycleaning solvents as required by the rules developed pursuant to this section, has reported the contamination prior to December 31, 1998, and has not denied the department access to the site. (c) With regard to drycleaning facilities or wholesale supply facilities that cease to be operated as drycleaning facilities or wholesale supply facilities prior to October 1, 1994, such facilities, at which there exists contamination by drycleaning solvents, shall be eligible under this subsection regardless of when the contamination was discovered, provided that the drycleaning facility or wholesale supply facility: 1. Was not determined by the department, within a reasonable time after the department’s discovery, to have been out of compliance with the department rules regulating drycleaning solvents, drycleaning facilities, or wholesale supply facilities implemented at any time on or after November 19, 1980; 2. Was not operated in a grossly negligent manner at any time on or after November 19, 1980; 3. Has not been identified to qualify for listing, nor is listed, on the National Priority List pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, and as subsequently amended; and 4. Is not under an order from the United States Environmental Protection Agency pursuant to s. 3008(h) of the Resource Conservation and Recovery Act, as amended, or has not obtained and is not required to obtain a permit for the operation of a hazardous waste treatment, storage, or disposal facility, a postclosure permit, or a permit pursuant to the federal Hazardous and Solid Waste Amendments of 1984; and provided that the real property owner or the owner or operator of the drycleaning facility or the wholesale supply facility has not willfully concealed the discharge of drycleaning solvents, has provided documented evidence of contamination by drycleaning solvents as required by the rules developed pursuant to this section, has reported the contamination prior to December 31, 1998, and has not denied the department access to the site. (d) For purposes of determining eligibility, a drycleaning facility or wholesale supply facility was operated in a grossly negligent manner if the department determines that the owner or operator of the drycleaning facility or the wholesale supply facility: 1. Willfully discharged drycleaning solvents onto the soils or into the waters of the state after November 19, 1980, with the knowledge, intent, and purpose that the discharge would result in harm to the environment or to public health or result in a violation of the law; 2. Willfully concealed a discharge of drycleaning solvents with the knowledge, intent, and purpose that the concealment would result in harm to the environment or to public health or result in a violation of the law; or 3. Willfully violated a local, state, or federal law or rule regulating the operation of drycleaning facilities or wholesale supply facilities with the knowledge, intent, and purpose that the act would result in harm to the environment or to public health or result in a violation of the law. (e)1. With respect to eligible drycleaning solvent contamination reported to the department as part of a completed application as required by the rules developed pursuant to this section by June 30, 1997, the costs of activities described in paragraph (2)(b) shall be absorbed at the expense of the drycleaning facility restoration funds, less a $1,000 deductible per incident, which shall be paid by the applicant or current property owner. The deductible shall be paid within 60 days after receipt of billing by the department. 2. For contamination reported to the department as part of a completed application as required by the rules developed under this section, from July 1, 1997, through September 30, 1998, the costs shall be absorbed at the expense of the drycleaning facility restoration funds, less a $5,000 deductible per incident. The deductible shall be paid within 60 days after receipt of billing by the department. 3. For contamination reported to the department as part of a completed application as required by the rules developed pursuant to this section from October 1, 1998, through December 31, 1998, the costs shall be absorbed at the expense of the drycleaning facility restoration funds, less a $10,000 deductible per incident. The deductible shall be paid within 60 days after receipt of billing by the department. 4. For contamination reported after December 31, 1998, no costs will be absorbed at the expense of the drycleaning facility restoration funds. (f) This subsection does not apply to any site where the department has been denied site access to implement the provisions of this section. (g) In order to identify those drycleaning facilities and wholesale supply facilities that have experienced contamination resulting from the discharge of drycleaning solvents and to ensure the most expedient rehabilitation of such sites, the owners and operators of drycleaning facilities and wholesale supply facilities are encouraged to detect and report contamination from drycleaning solvents related to the operation of drycleaning facilities and wholesale supply facilities. The department shall establish reasonable guidelines for the written reporting of drycleaning contamination and shall distribute forms to registrants under s. 376.303(1)(d), and to other interested parties upon request, to be used for such purpose. (h) A report of drycleaning solvent contamination at a drycleaning facility or wholesale supply facility made to the department by any person in accordance with this subsection, or any rules promulgated pursuant hereto, may not be used directly as evidence of liability for such discharge in any civil or criminal trial arising out of the discharge. (i) A drycleaning facility at which contamination by drycleaning solvents exists and which was damaged by accident prior to January 1, 1975, is eligible under this subsection, regardless of whether an application for eligibility was filed on or before December 31, 1998. As used in this paragraph, the term “accident” means an unplanned and unanticipated occurrence beyond the control of the owner or operator of a drycleaning facility which resulted in physical damage to the facility when the actions of responders to such occurrence could reasonably be determined to have caused or exacerbated contamination by drycleaning solvents at such facility. (j) This subsection does not apply to drycleaning facilities owned or operated by the state or Federal Government. (k) Due to the value of Florida’s potable water, it is the intent of the Legislature that the department initiate and facilitate as many cleanups as possible utilizing the resources of the state, local governments, and the private sector. The department is authorized to adopt necessary rules and enter into contracts to carry out the intent of this subsection and to limit or prevent future contamination from the operation of drycleaning facilities and wholesale supply facilities. (l) It is not the intent of the Legislature that the state become the owner or operator of a drycleaning facility or wholesale supply facility by engaging in state-conducted cleanup. (m) The owner, operator, and either the real property owner or agent of the real property owner may apply for the Drycleaning Contamination Cleanup Program by jointly submitting a completed application package to the department pursuant to the rules that shall be adopted by the department. If the application cannot be jointly submitted, then the applicant shall provide notice of the application to other interested parties. After reviewing the completed application package, the department shall notify the applicant in writing as to whether the drycleaning facility or wholesale supply facility is eligible for the program. If the department denies eligibility for a completed application package, the notice of denial shall specify the reasons for the denial, including specific and substantive findings of fact, and shall constitute agency action subject to the provisions of chapter 120. For the purposes of ss. 120.569 and 120.57, the real property owner and the owner and operator of a drycleaning facility or wholesale supply facility which is the subject of a decision by the department with regard to eligibility shall be deemed to be parties whose substantial interests are determined by the department’s decision to approve or deny eligibility. (n) Eligibility under this subsection applies to the drycleaning facility or wholesale supply facility, and attendant site rehabilitation applies to such facilities and to any place where drycleaning-solvent contamination migrating from the eligible facility is found. A determination of eligibility or ineligibility shall not be affected by any conveyance of the ownership of the drycleaning facility, wholesale supply facility, or the real property on which such facility is located. Nothing contained in this chapter shall be construed to allow a drycleaning facility or wholesale supply facility which would not be eligible under this subsection to become eligible as a result of the conveyance of the ownership of the ineligible drycleaning facility or wholesale supply facility to another owner. (o) If funding for the drycleaning contamination rehabilitation program is eliminated, the provisions of this subsection shall not apply. (p)1. The department shall have the authority to cancel the eligibility of any drycleaning facility or wholesale supply facility that submits fraudulent information in the application package or that fails to continuously comply with the conditions of eligibility set forth in this subsection, or has not remitted all fees pursuant to s. 376.303(1)(d), or has not remitted the deductible payments pursuant to paragraph (e). 2. If the program eligibility of a drycleaning facility or wholesale supply facility is subject to cancellation pursuant to this section, then the department shall notify the applicant in writing of its intent to cancel program eligibility and shall state the reason or reasons for cancellation. The applicant shall have 45 days to resolve the reason or reasons for cancellation to the satisfaction of the department. If, after 45 days, the applicant has not resolved the reason or reasons for cancellation to the satisfaction of the department, the order of cancellation shall become final and shall be subject to the provisions of chapter 120. (q) A real property owner shall not be subject to administrative or judicial action brought by or on behalf of any person or local or state government, or agency thereof, for gross negligence or violations of department rules prior to January 1, 1990, which resulted from the operation of a drycleaning facility, provided that the real property owner demonstrates that: 1. The real property owner had ownership in the property at the time of the gross negligence or violation of department rules and did not cause or contribute to contamination on the property; 2. The real property owner was a distinct and separate entity from the owner and operator of the drycleaning facility, and did not have an ownership interest in or share in the profits of the drycleaning facility; 3. The real property owner did not participate in the operation or management of the drycleaning facility; 4. The real property owner complied with all discharge reporting requirements, and did not conceal any contamination; and 5. The department has not been denied access. The defense provided by this paragraph does not apply to any liability under a federally delegated program. (r) A person whose property becomes contaminated due to geophysical or hydrologic reasons from the operation of a nearby drycleaning or wholesale supply facility and whose property has never been occupied by a business that utilized or stored drycleaning solvents or similar constituents is not subject to administrative or judicial action brought by or on behalf of another to compel the rehabilitation of or the payment of the costs for the rehabilitation of sites contaminated by drycleaning solvents, provided that the person: 1. Does not own and has never held an ownership interest in, or shared in the profits of, the drycleaning facility operated at the source location; 2. Did not participate in the operation or management of the drycleaning facility at the source location; and 3. Did not cause, contribute to, or exacerbate the release or threat of release of any hazardous substance through any act or omission. The defense provided by this paragraph does not apply to any liability under a federally delegated program. (s) Nothing in this subsection precludes the department from considering information and documentation provided by private consultants, local government programs, federal agencies, or any individual which is relevant to an eligibility determination if the department provides the applicant with reasonable access to the information and its origin.

(4) REHABILITATION CRITERIA. — It is the intent of the Legislature to protect the health of all people under actual circumstances of exposure. The secretary of the department shall establish criteria by rule for the purpose of determining, on a site-specific basis, the rehabilitation program tasks that comprise a site rehabilitation program, including a voluntary site rehabilitation program, and the level at which a rehabilitation program task and a site rehabilitation program may be deemed completed. In establishing the rule, the department shall incorporate, to the maximum extent feasible, risk-based corrective action principles to achieve protection of human health and safety and the environment in a cost-effective manner as provided in this subsection. The rule shall also include protocols for the use of natural attenuation and the issuance of “no further action” letters. The criteria for determining what constitutes a rehabilitation program task or completion of a site rehabilitation program task or site rehabilitation program, including a voluntary site rehabilitation program, must: (a) Consider the current exposure and potential risk of exposure to humans and the environment, including multiple pathways of exposure. The physical, chemical, and biological characteristics of each contaminant must be considered in order to determine the feasibility of risk-based corrective action assessment. (b) Establish the point of compliance at the source of the contamination. However, the department is authorized to temporarily move the point of compliance to the boundary of the property, or to the edge of the plume when the plume is within the property boundary, while cleanup, including cleanup through natural attenuation processes in conjunction with appropriate monitoring, is proceeding. The department also is authorized, pursuant to criteria provided for in this section, to temporarily extend the point of compliance beyond the property boundary with appropriate monitoring, if such extension is needed to facilitate natural attenuation or to address the current conditions of the plume, provided human health, public safety, and the environment are protected. When temporarily extending the point of compliance beyond the property boundary, it cannot be extended further than the lateral extent of the plume at the time of execution of the voluntary cleanup agreement, if known, or the lateral extent of the plume as defined at the time of site assessment. Temporary extension of the point of compliance beyond the property boundary, as provided in this paragraph, must include actual notice by the person responsible for site rehabilitation to local governments and the owners of any property into which the point of compliance is allowed to extend and constructive notice to residents and business tenants of the property into which the point of compliance is allowed to extend. Persons receiving notice pursuant to this paragraph shall have the opportunity to comment within 30 days of receipt of the notice. (c) Ensure that the site-specific cleanup goal is that all sites contaminated with drycleaning solvents ultimately achieve the applicable cleanup target levels provided in this section. In the circumstances provided below, and after constructive notice and opportunity to comment within 30 days from receipt of the notice to local government, to owners of any property into which the point of compliance is allowed to extend, and to residents on any property into which the point of compliance is allowed to extend, the department may allow concentrations of contaminants to temporarily exceed the applicable cleanup target levels while cleanup, including cleanup through natural attenuation processes in conjunction with appropriate monitoring, is proceeding, if human health, public safety, and the environment are protected. (d) Allow the use of institutional or engineering controls at sites contaminated with drycleaning solvents, where appropriate, to eliminate or control the potential exposure to contaminants of humans or the environment. The use of controls must be preapproved by the department and only after constructive notice and opportunity to comment within 30 days from receipt of notice is provided to local governments, to owners of any property into which the point of compliance is allowed to extend, and to residents on any property into which the point of compliance is allowed to extend. When institutional or engineering controls are implemented to control exposure, the removal of the controls must have prior department approval and must be accompanied by the resumption of active cleanup, or other approved controls, unless cleanup target levels under this section have been achieved. (e) Consider the additive effects of contaminants. The synergistic and antagonistic effects shall also be considered when the scientific data become available. (f) Take into consideration individual site characteristics, which shall include, but not be limited to, the current and projected use of the affected groundwater and surface water in the vicinity of the site, current and projected land uses of the area affected by the contamination, the exposed population, the degree and extent of contamination, the rate of contaminant migration, the apparent or potential rate of contaminant degradation through natural attenuation processes, the location of the plume, and the potential for further migration in relation to site property boundaries. (g) Apply state water quality standards as follows: 1. Cleanup target levels for each contaminant found in groundwater shall be the applicable state water quality standards. Where such standards do not exist, the cleanup target levels for groundwater shall be based on the minimum criteria specified in department rule. The department shall consider the following, as appropriate, in establishing the applicable minimum criteria: calculations using a lifetime cancer risk level of 1.0E-6; a hazard index of 1 or less; the best achievable detection limit; the naturally occurring background concentration; or nuisance, organoleptic, and aesthetic considerations. 2. Where surface waters are exposed to contaminated groundwater, the cleanup target levels for the contaminants shall be based on the lower of the groundwater or surface water standards as established by department rule. The point of measuring compliance with the surface water standards shall be in the groundwater immediately adjacent to the surface water body. 3. The department may set alternative cleanup target levels based upon the person responsible for site rehabilitation demonstrating, using site-specific modeling and risk assessment studies, that human health, public safety, and the environment are protected to the same degree as provided in subparagraphs 1. and 2. Where a state water quality standard is applicable, a deviation may not result in the application of cleanup target levels more stringent than the standard. In determining whether it is appropriate to establish alternative cleanup target levels at a site, the department must consider the effectiveness of source removal that has been completed at the site and the practical likelihood of the use of low yield or poor quality groundwater, the use of groundwater near marine surface water bodies, the current and projected use of the affected groundwater in the vicinity of the site, or the use of groundwater in the immediate vicinity of the contaminated area, where it has been demonstrated that the groundwater contamination is not migrating away from such localized source, provided human health, public safety, and the environment are protected. (h) Provide for the department to issue a “no further action order,” with conditions where appropriate, when alternative cleanup target levels established pursuant to subparagraph (g)3. have been achieved, or when the person responsible for site rehabilitation can demonstrate that the cleanup target level is unachievable within available technologies. Prior to issuing such an order, the department shall consider the feasibility of an alternative site rehabilitation technology in the area. (i) Establish appropriate cleanup target levels for soils. 1. In establishing soil cleanup target levels for human exposure to each contaminant found in soils from the land surface to 2 feet below land surface, the department shall consider the following, as appropriate: calculations using a lifetime cancer risk level of 1.0E-6; a hazard index of 1 or less; the best achievable detection limit; or the naturally occurring background concentration. Institutional controls or other methods shall be used to prevent human exposure to contaminated soils more than 2 feet below the land surface. Any removal of such institutional controls shall require such contaminated soils to be remediated. 2. Leachability-based soil target levels shall be based on protection of the groundwater cleanup target levels or the alternate cleanup target levels for groundwater established pursuant to this paragraph, as appropriate. Source removal and other cost-effective alternatives that are technologically feasible shall be considered in achieving the leachability soil target levels established by the department. The leachability goals shall not be applicable if the department determines, based upon individual site characteristics, that contaminants will not leach into the groundwater at levels which pose a threat to human health, public safety, and the environment. 3. Using risk-based corrective action principles, the department shall approve alternative cleanup target levels based upon the person responsible for site rehabilitation demonstrating, using site-specific modeling and risk assessment studies, that human health, public safety, and the environment are protected. The department shall require source removal, as a risk reduction measure, if warranted and cost-effective. Once source removal at a site is complete, the department shall reevaluate the site to determine the degree of active cleanup needed to continue. Further, the department shall determine if the reevaluated site qualifies for monitoring only or if no further action is required to rehabilitate the site. If additional site rehabilitation is necessary to reach “no further action” status, the department is encouraged to utilize natural attenuation and monitoring where site conditions warrant.

(5) DISPOSAL OR REUSE. — The cleanup criteria established pursuant to subsection (4) do not constitute disposal or reuse criteria. Offsite disposal or relocation must be in accordance with all applicable federal, state, and local regulations.

(6) INTENT; APPLICATION. — (a) It is recognized that restoration of groundwater resources contaminated with certain drycleaning solvents, such as perchloroethylene, may not be achievable using currently available technology. In situations where the use of available technology is not anticipated to achieve water quality standards, the department, at its discretion, may use innovative technology that has been field-tested and that has engineering and cost data available. (b) Nothing in this subsection shall be construed to restrict the department from temporarily postponing completion of any site rehabilitation program for which drycleaning facility restoration funds are being expended whenever such postponement is deemed necessary in order to make funds available for rehabilitation of a drycleaning facility or wholesale supply facility contamination site with a higher priority status. (c) The department shall provide the rehabilitation of eligible drycleaning facilities and wholesale supply facilities consistent with this subsection. Nothing in this chapter shall subject the department to liability for any action that may be required of the owner, operator, or real property owner by any private party or any local, state, or federal government entity.

(7) SCORING SYSTEM. — The department shall use the following scoring system to rank and prioritize sites for rehabilitation that have been determined to be eligible for the program pursuant to subsection (3). If the application package documents that a site has one of the following characteristics, then the site shall be allocated the corresponding number of points. (a) Any site having a condition that exhibits a fire or explosion hazard shall be of highest priority. (b) Threat to drinking water supply wells. 1. Capacity: a. A site shall be awarded points based on the permitted capacity of the largest uncontaminated public water supply well or the capacity of the largest uncontaminated private drinking water well constructed prior to the date of contamination discovery that is located within 1 mile of the site. If multiple uncontaminated wells of the same capacity are present within 1 mile, then select the uncontaminated well closest to the site. Points shall be awarded as follows: For uncontaminated wells (only one shall apply): Capacity (gallons per day) Points greater than 1,000,000 90 100,000 to 1,000,000 60 less than 100,000 30 b. If no points were awarded from sub-subparagraph a., and contaminated wells are present, then the site shall be awarded points based on the permitted capacity of the largest contaminated public water supply well or the capacity of the largest contaminated private drinking water well constructed prior to the date of contamination discovery that is located within 1 mile of the site. If multiple contaminated wells of the same capacity are present within 1 mile, then select the contaminated well closest to the site. Points shall be awarded as follows: For contaminated wells (only one shall apply): Capacity (gallons per day) Points greater than 1,000,000 25 100,000 to 1,000,000 15 less than 100,000 5 2. A site shall be awarded points based on the proximity of the public water supply well or private well selected in subparagraph 1. as follows. If the well selected is an uncontaminated well, then select only one from sub-subparagraph a. below. If the well selected is a contaminated well, then select only one from sub-subparagraph b. below: a. For uncontaminated wells: Distance Points within 500 feet 40 within 1 / 4 mile 30 within 1 / 2 mile 20 within 1 mile 10 b. For contaminated wells: Distance Points within 500 feet 15 within 1 / 4 mile 10 within 1 / 2 mile 8 within 1 mile 5 (c) A site shall be awarded points based on groundwater vulnerability to contamination using the department’s current DRASTIC Index (only one shall apply): DRASTIC Index Points 79 and below 3 80 to 99 6 100 to 119 9 120 to 139 12 140 to 159 15 160 to 179 18 180 to 199 21 200 to 266 24 (d) Aquifer Classification (select all that apply): 1. A site located in a G-I or F-I aquifer area shall be awarded 3 points. 2. A site located in a G-II aquifer area shall be awarded 2 points. 3. A site located in a United States Environmental Protection Agency designated sole source aquifer area shall be awarded 1 point. (e) Conditions favoring a continual source (only one shall apply): 1. If a site has chlorinated drycleaning solvents in the soil at concentrations greater than or equal to 1 milligram per kilogram or in the groundwater at concentrations greater than or equal to 1,500 micrograms per liter, then the site shall be awarded 7 points. 2. If the site has chlorinated drycleaning solvents in the soil at concentrations less than 1 milligram per kilogram or in the groundwater at concentrations less than 1,500 micrograms per liter, then the site shall be awarded 2 points. (f) Environmental Setting (select all that apply): 1. A site located within 1 / 2 mile of an uncontaminated surface water body used as a permitted public water system shall be awarded 10 points. 2. A site located within 1 / 2 mile of an Outstanding Florida Water body shall be awarded 2 points. 3. A site located within 1 / 4 mile of a surface water body shall be awarded 1 point. 4. A site located within 1 / 4 mile of an area of critical state concern as defined in chapter 380 shall be awarded 2 points.

(8) SCORING SYSTEM APPLICATION. — (a) If the department determines that a site is eligible for the program, pursuant to this section, then the department shall develop a score for the site in accordance with provisions of subsection (7). (b) A priority list of eligible sites shall be developed, by the department, based on an ordering of scored sites such that the highest-scored sites shall be of highest priority for rehabilitation. (c) Scored sites shall be incorporated into the priority list on a quarterly basis with the ranking of all sites previously on the list being adjusted accordingly. (d) Assignments for program tasks to be conducted by state contractors shall be made according to the current priority list and shall be based on the department determination of contractor logistics, geographical considerations, and other criteria the department determines are necessary to achieve cost-effective site rehabilitation. (e) Assignments for the program tasks shall be made beginning with the highest-ranked sites on the priority list at the effective date the assignment is made and proceed through lower-ranked sites. (f) All scored sites will be added to the priority list on a quarterly basis until all the sites have been assigned. (g) Once an assignment is made, a subsequent quarterly adjustment to the priority list shall not alter that assignment unless a more cost-effective approach can be achieved by reassignment, a compelling public health condition or an environmental condition warrants a reassignment, or the reassignment is otherwise in the public interest. (h) Regardless of the score of a site, the department may initiate emergency action for those sites that, in the judgment of the department, are a threat to human health and safety, or where failure to prevent migration of drycleaning solvents would cause irreversible damage to the environment.

(9) REQUIREMENT FOR DRYCLEANING FACILITIES. — It is the intent of the Legislature that the following drycleaning solvent containment shall be required of the owners or operators of drycleaning facilities, as follows: (a) Owners or operators of drycleaning facilities shall by January 1, 1997, install dikes or other containment structures around each machine or item of equipment in which drycleaning solvents are used and around any area in which solvents or waste-containing solvents are stored. Such dikes or containment structures shall be capable of containing 110 percent of the capacity of each such machine and each such storage area. To the extent practicable, each owner or operator of a drycleaning facility shall seal or otherwise render impervious those portions of all dikes’ floor surfaces upon which any drycleaning solvents may leak, spill, or otherwise be released. A drycleaning facility that commenced operating before January 1, 1996, and applied to the program by December 30, 1997, is considered to have had secondary containment timely installed for the purpose of determining eligibility for state-funded site rehabilitation under this section if the drycleaning facility meets the following criteria: 1. Reported in the completed application that the facility was not in compliance with paragraph (a) of this subsection, and entered into a consent order with the department to install secondary containment and installed the required containment by April 15, 1999; or 2. Reported in the completed application that the facility had installed secondary containment but stated in the application that the date the facility installed secondary containment was not known, and was requested by the department subsequent to April 30, 1997, to apply for program eligibility and did so apply within 90 days of the request, and installed secondary containment by February 28, 1998. The department shall reconsider the applications of facilities that meet the criteria set forth in this paragraph and that were previously determined to be ineligible due to failure to comply with secondary containment requirements. The facilities must meet all other eligibility requirements. (b) For drycleaning facilities that commence operating subsequent to January 1, 1996, the owners or operators of such facilities shall, prior to the commencement of operations, install beneath each machine or item of equipment in which drycleaning solvents are used a rigid and impermeable containment vessel capable of containing 110 percent of the total tank capacity of each machine. (c) Notwithstanding the provisions of subsection (3), the owner or operator of a drycleaning facility or wholesale supply facility at which there is a spill of more than 1 quart of drycleaning solvent outside of a containment structure, on or after July 1, 1995, shall report the spill to the state through the State Warning Point pursuant to s. 403.161(1)(d) immediately upon the discovery of such spill, and immediately initiate and complete actions to abate the source of the spill, remove product from all indoor and outdoor surface areas, remove product and dissolved product from any septic tank or catch basin in which the solvent has accumulated, and remove affected soils, if any. (d) Failure to comply with the requirements of this subsection shall constitute gross negligence with regard to determining site eligibility in subsection (3).

(10) INSURANCE REQUIREMENTS. — The owner or operator of an operating drycleaning facility or wholesale supply facility shall have purchased third-party liability insurance for $1 million of coverage for each operating facility. The owner or operator shall maintain such insurance while operating as a drycleaning facility or wholesale supply facility and provide proof of such insurance to the department upon registration renewal each year thereafter. Such requirement applies only if such insurance becomes available to the owner or operator at a reasonable rate and covers liability for contamination subsequent to the effective date of the policy and prior to the effective date, retroactive to the commencement of operations at the drycleaning facility or wholesale supply facility. Such insurance may be offered in group coverage policies with a minimum coverage of $1 million for each member of the group per year. For the purposes of this subsection, reasonable rate means the rate developed based on exposure to loss and underwriting and administrative costs as determined by the Office of Insurance Regulation of the Financial Services Commission, in consultation with representatives of the drycleaning industry.

(11) VOLUNTARY CLEANUP. — A real property owner is authorized to conduct site rehabilitation activities at any time pursuant to department rules, either through agents of the real property owner or through responsible response action contractors or subcontractors, whether or not the facility has been determined by the department to be eligible for the drycleaning solvent cleanup program. A real property owner or any other person who conducts site rehabilitation may not seek cost recovery from the department or the Water Quality Assurance Trust Fund for any such rehabilitation activities. A real property owner who voluntarily initiates such site rehabilitation, whether commenced before or on or after October 1, 1995, shall upon initiation of such site rehabilitation be immune from and have no liability for claims of any person, for property damages of any kind, including, but not limited to, diminished value of real property or improvements; lost or delayed rent, sale, or use of real property or improvements; or stigma to real property or improvements caused by drycleaning-solvent contamination or be subject to any administrative or judicial action brought by or on behalf of any person, state or local government, or agency thereof to compel or enjoin site rehabilitation or pay for the cost of rehabilitation of environmental contamination, and to pay any fines or penalties regarding rehabilitation, as soon as the real property owner: (a) Conducts contamination assessment and site rehabilitation consistent with state and federal laws and rules; (b) Conducts such site rehabilitation in a timely manner according to a rehabilitation schedule approved by the department; and (c) Does not deny the department access to the site. Upon completion of such site rehabilitation activities in accordance with the requirements of this subsection, the department shall render a site rehabilitation completion order. The immunity set forth in this subsection also applies to any nearby real property owner. This immunity shall continue to apply to any real property owner who transfers, conveys, leases, or sells property on which a drycleaning facility is located so long as the voluntary cleanup activities continue. Notwithstanding any other provision of this chapter, this subsection applies to causes of action accruing on or after the effective date of this act and applies retroactively to causes of action accruing before the effective date of this act for which a lawsuit has not been filed before the effective date of this act.

(12) REOPENERS. — Upon completion of site rehabilitation in compliance with subsection (11), additional site rehabilitation is not required unless it is demonstrated: (a) That fraud was committed in demonstrating site conditions or completion of site rehabilitation; (b) That new information confirms the existence of an area of previously unknown contamination which exceeds the site-specific rehabilitation levels established in accordance with subsection (4), or which otherwise poses the threat of real and substantial harm to public health, safety, or the environment; (c) That the remediation efforts failed to achieve the site rehabilitation criteria established under this section; (d) That the level of risk is increased beyond the acceptable risk established under subsection (4) due to substantial changes in exposure conditions, such as a change in land use from nonresidential to residential use. Any person who changes the land use of the site, thus causing the level of risk to increase beyond the acceptable risk level, may be required by the department to undertake additional remediation measures to assure that human health, public safety, and the environment are protected consistent with this section; or (e) That a new discharge occurs at the drycleaning site subsequent to a determination of eligibility for participation in the drycleaning program established under this section.

(13) DEPARTMENTAL DUTY TO SEEK RECOVERY AND REIMBURSEMENT. — (a) Except as provided in subsection (3) and as otherwise provided by law, the department shall recover from any person causing or having caused the discharge of drycleaning solvents in relation to the operation of a drycleaning facility or wholesale supply facility, jointly and severally, all sums owed or expended from drycleaning facility restoration funds, pursuant to s. 376.308, except that the department may decline to pursue such recovery if it finds the amount involved to be too small or the likelihood of recovery too uncertain. (b) Except as provided in subsection (3) and as otherwise provided by law, it is the duty of the department in administering the drycleaning facility restoration funds to diligently pursue the reimbursement to the Water Quality Assurance Trust Fund of any sum expended from the fund for rehabilitation in accordance with the provisions of this section, unless the department finds the amount involved to be too small or the likelihood of recovery too uncertain. For the purposes of s. 95.11, the limitation period within which to institute an action to recover such sums shall commence on the last date on which any such sums were expended, and not the date that the discharge occurred. (c) The Legislature recognizes its limitations in addressing cleanup liability under federal pollution control programs. In an effort to secure federal liability protection for persons willing to undertake remediation responsibility at a drycleaning site, the department shall attempt to negotiate a memorandum of agreement or similar document with the United States Environmental Protection Agency, whereby the United States Environmental Protection Agency agrees to forego enforcement of federal corrective action authority at drycleaning sites that have received a site rehabilitation completion or “no further action” determination from the department or that are in the process of implementing a voluntary cleanup agreement in accordance with this section.

(14) ADVANCED SITE ASSESSMENT. — It is in the public interest, and of substantial environmental and economic benefit to the state, to provide an opportunity to conduct site assessment on a limited basis at contaminated sites in advance of the ranking of the sites on the priority list as specified in subsection (8). (a) A real property owner who is eligible for site rehabilitation at a facility that has been determined eligible for the drycleaning solvent cleanup program under this section may request an advanced site assessment, and the department may authorize the performance of a site assessment in advance of the ranking of the site on the priority list as specified in subsection (8), if the following criteria are met: 1. The site assessment information would provide new information that would be sufficient for the department to better evaluate the actual risk of the contamination, thereby reducing the risk to public health and the environment; 2. The property owner agrees: a. To implement the appropriate institutional controls allowed by department rules adopted pursuant to subsection (4) at the time the property owner requests the advanced site assessment; and b. To implement and maintain, upon completion of the cleanup, the required institutional controls, or a combination of institutional and engineering controls, when the site meets the site rehabilitation criteria for closure with controls in accordance with department rules adopted pursuant to subsection (4); 3. Current conditions at the site allow the site assessment to be conducted in a manner that will result in cost savings to the Water Quality Assurance Trust Fund; 4. There is sufficient money in the annual Water Quality Assurance Trust Fund appropriation for the drycleaning solvent cleanup program to pay for the site assessment; and 5. In accordance with subsection (3), access to the site is provided and the deductible is paid. (b) A site may be assessed out of priority ranking order when, at the department’s discretion, the site assessment will provide a cost savings to the program. (c) An advanced site assessment must incorporate risk-based corrective action principles to achieve protection of human health and safety and the environment in a cost-effective manner, in accordance with subsection (4). The site assessment must also be sufficient to estimate the cost and determine the proposed course of action toward site cleanup. Advanced site assessment activities performed under this subsection shall be designed to affirmatively demonstrate that the site meets one of the following findings based on the following specified criteria: 1. Recommend remedial action to mitigate risks that, in the judgment of the department, are a threat to human health or where failure to prevent migration of drycleaning solvents would cause irreversible damage to the environment; 2. Recommend additional groundwater monitoring to support natural attenuation monitoring or long-term groundwater monitoring; or 3. Recommend “no further action,” with or without institutional controls or institutional and engineering controls, for those sites that meet the “no further action” criteria department rules adopted pursuant to subsection (4). If the site does not meet one of the findings specified in subparagraphs 1.-3., the department shall notify the property owner in writing of this decision, and the site shall be returned to its priority ranking order in accordance with its score. (d) Advanced site assessment program tasks shall be assigned by the drycleaning solvent cleanup program. In addition to the provisions in paragraph (a), the assignment of site assessment tasks shall be based on the department’s determination of contractor logistics, geographical considerations, and other criteria that the department determines are necessary to achieve the most cost-effective approach. (e) Available funding for advanced site assessments may not exceed 10 percent of the annual Water Quality Assurance Trust Fund appropriation for the drycleaning solvent cleanup program. (f) The total funds committed to any one site may not exceed $70,000. (g) The department shall prioritize the requests for advanced site assessment, based on the date of receipt and the environmental and economic value to the state, until 10 percent of the annual Water Quality Assurance Trust Fund appropriation, as provided in paragraph (e), has been obligated.

Legislative History

s. 6, ch. 94-355; s. 3, ch. 95-239; s. 49, ch. 96-321; s. 107, ch. 96-410; s. 10, ch. 98-189; s. 180, ch. 99-13; s. 9, ch. 2000-317; s. 395, ch. 2003-261; s. 2, ch. 2003-276; s. 1, ch. 2006-148; s. 80, ch. 2014-17; s. 8, ch. 2017-95.