Florida 2022 2022 Regular Session

Florida House Bill H0909 Analysis / Analysis

Filed 02/03/2022

                    This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives. 
STORAGE NAME: h0909.EAF 
DATE: 2/3/2022 
 
HOUSE OF REPRESENTATIVES STAFF ANALYSIS  
 
BILL #: CS/HB 909    Development of Current or Former Agricultural Land 
SPONSOR(S): Environment, Agriculture & Flooding Subcommittee, Payne 
TIED BILLS:   IDEN./SIM. BILLS: SB 1210 
 
REFERENCE 	ACTION ANALYST STAFF DIRECTOR or 
BUDGET/POLICY CHIEF 
1) Environment, Agriculture & Flooding 
Subcommittee 
14 Y, 3 N, As CS Mamontoff Moore 
SUMMARY ANALYSIS 
Risk-based corrective action (RBCA) (pronounced “Rebecca”) is a decision-making process used to assess 
and respond to incidents of contamination. The Department of Environmental Protection (DEP) enforces RBCA 
principles when addressing contaminated sites in Florida with the goal of meeting cleanup target levels for 
contaminants. The purpose of RBCA is to provide for a flexible site-specific cleanup process that reflects the 
intended use of the property following cleanup, while maintaining adequate protection of human health, safety, 
and the environment.  
 
Agricultural lands are lands that are used primarily for bona fide agricultural purposes. There are various 
factors that determine whether land use is bona fide agricultural, such as the length of time the land has been 
used for agricultural purposes and whether said use has been continuous.  
 
The bill specifies that the Secretary of Environmental Protection (Secretary) has exclusive jurisdiction in setting 
standards or procedures for evaluating environmental conditions and assessing potential liability for the 
presence of contaminants on land that is classified as agricultural and is being converted to a nonagricultural 
use. The bill prohibits the Secretary from delegating such authority to a city, a county, or another unit of local 
government through a local pollution control program. 
 
The bill specifies that it does not preempt the enforcement authority of a city, a county, or another unit of local 
government through a local pollution control program.  
 
The bill does not appear to have a fiscal impact on the state or local governments.    STORAGE NAME: h0909.EAF 	PAGE: 2 
DATE: 2/3/2022 
  
FULL ANALYSIS 
I.  SUBSTANTIVE ANALYSIS 
 
A. EFFECT OF PROPOSED CHANGES: 
Background 
 
Risk-based Corrective Action 
Risk-based corrective action (RBCA) (pronounced “Rebecca”) is a decision-making process used to 
assess and respond to incidents of contamination. The American Society of Materials and Testing 
established RBCA in 1994 based on guidance from the U.S. Environmental Protection Agency (EPA), 
which directs states to consider the current and prospective use of groundwater and the relative risk to 
human health and the environment when remediating contaminated sites.
1
 A contaminated site is any 
contiguous land, sediment, surface water, or groundwater areas that contain contaminants that may be 
harmful to human health or the environment.
2
 
 
The RBCA process uses a tiered approach that couples site assessment and response actions with 
human health, public safety, and environmental risk assessment to determine the extent and urgency 
of corrective action used in remediating contaminated sites. Alternative cleanup target levels,
3
 
institutional
4
 and engineering controls,
5
 and remediation by natural attenuation
6
 are RBCA strategies 
used by the Department of Environmental Protection (DEP) on a case-by-case basis that allows the 
use of cost-effective remediation measures in lieu of conventional cleanup technologies. RBCA is 
implemented in all 50 states for the remediation of contaminated sites.
7
 
 
Section 376.30701, F.S., was created in 2003 to apply RBCA principles to all contaminated sites 
(referred to as “Global RBCA”) resulting from a discharge of pollutants when site rehabilitation is 
required.
8
 DEP is required to develop a site rehabilitation program by rule that uses RBCA concepts. 
Specifically, the law requires DEP to: 
 Consider current exposure and potential risk of exposure to humans and the environment; 
 Establish the point of compliance at the source of the contamination; 
 Ensure that site-specific cleanup goals are that all contaminated sites being cleaned ultimately 
achieve the applicable cleanup target levels; 
 Allow the use of institutional or engineering controls at contaminated sites; 
 Consider the additive effects of contaminants, including synergistic and antagonistic effects; 
 Provide for the department to issue a “No Further Action” order; 
 Establish appropriate cleanup target levels for soils; 
 Allow for alternative cleanup target levels in conjunction with institutional and engineering 
controls; and 
 Consider the additive effects of contaminants. 
                                                
1
 EPA, Use of Risk-Based Decision-Making in UST Corrective Action Programs, OSWER Directive 9610.17 1 (1995) 
http://www2.epa.gov/risk/human-health-risk-assessment (last visited Jan. 31, 2022). 
2
 Section 376.301(11), F.S.  
3
 Section 376.301(8), F.S., defines “cleanup target level” as “the concentration for each contaminant identified by an 
applicable analytical test method, in the medium of concern, at which a site rehabilitation program is deemed complete.”  
4
 Section 376.301(21), F.S., defines “institutional controls” as “the restriction on use or access to a site to eliminate or 
minimize exposure to petroleum products’ chemicals of concern, dry cleaning solvents, or other contaminants. Such 
restrictions may include, but are not limited to, deed restrictions, restrictive covenants, or conservation easements.” 
5
 Section 376.301(17), F.S., defines “engineering controls” as “modifications to a site to reduce or eliminate the potential 
for exposure to petroleum products’ chemicals of concern, dry cleaning solvents, or other contaminants. Such 
modifications may include, but are not limited to, physical or hydraulic control measures, capping, point of use treatments, 
or slurry walls.” 
6
 Section 376.301(25), F.S., defines “natural attenuation” as a “verifiable approach to site rehabilitation that allows natural 
processes to contain the spread of contamination and reduce the concentrations of contaminants in contaminated 
groundwater and soil. Natural attenuation processes may include the following: sorption, biodegradation, chemical 
reactions with subsurface materials, diffusion, dispersion, and volatilization.”  
7
 EPA, supra note 1, at 2-3. 
8
 Ch. 2003-173, s. 1, Laws of Fla.  STORAGE NAME: h0909.EAF 	PAGE: 3 
DATE: 2/3/2022 
  
 
DEP adopted ch. 62-780, F.A.C., in 2005 to implement these provisions and provide the procedures 
necessary to implement site rehabilitation for all sites using RBCA criteria.
 
RBCA criteria are 
administered in conjunction with ch. 62-777, F.A.C., which provides the default groundwater, surface 
water, and soil cleanup target levels, as well as the natural attenuation default concentrations for 
groundwater, in order to determine the appropriate cleanup target levels for a contaminated site. 
 
Local Pollution Control Programs 
Current law authorizes cities and counties to establish and administer local pollution control programs if 
such programs: 
 Are approved by DEP as adequate to meet pollution control requirements established by statute 
or DEP regulations. 
 Provide by ordinance, regulation, or local law for requirements compatible with, or stricter or 
more extensive than those imposed by current law or DEP regulations. 
 Provide for the enforcement of such requirements by appropriate administrative and judicial 
process. 
 Provide for administrative organization, staff, financial and other resources necessary to 
effectively and efficiently carry out its program.
9
 
 
DEP has the exclusive authority to require and issue permits, except that such authority may be 
delegated to local pollution control organizations if DEP finds it necessary or desirable to do so.
10
 
 
Agricultural Land  
Current law requires a property appraiser to classify for assessment purposes all lands within a county 
as agricultural or nonagricultural.
11
 Unless subject to certain specified restrictions, only lands that are 
used primarily for bona fide agricultural purposes
12
 may be classified as agricultural.  
 
In determining whether the use of land for agricultural purposes is bona fide, the following factors may 
be taken into consideration: 
 The length of time the land has been so used; 
 Whether the use has been continuous;  
 The purchase price paid; 
 Size, as it relates to specific agricultural use, but a minimum acreage may not be required; 
 Whether an indicated effort has been made to care sufficiently and adequately for the land in 
accordance with accepted commercial agricultural practices, including, without limitation, 
fertilizing, liming, tilling, mowing, reforesting, and other accepted agricultural practices; 
 Whether the land is under lease and, if so, the effective length, terms, and conditions of the 
lease; and 
 Such other factors as may become applicable.  
 
Offering a property for sale does not constitute a primary use of land and may not be the basis for 
denying agricultural classification if the land continues to be used primarily for bona fide agricultural 
purposes while it is being offered for sale.
13
  
 
Effect of the Bill 
 
The bill specifies that the Secretary of Environmental Protection (Secretary) has exclusive jurisdiction in 
setting standards or procedures for evaluating environmental conditions and assessing potential liability 
                                                
9
 Section 403.182(1), F.S. 
10
 Section 403.182(2), F.S. 
11
 Section 193.461, F.S. 
12
 The term “bona fide agricultural purposes” is defined as good faith commercial agricultural use of land. Section 
193.461(3)(b) The term “agricultural purposes” includes, but is not limited to, horticulture; floriculture; viticulture; forestry; 
dairy; livestock; poultry; bee; pisciculture, if the land is used principally for the production of tropical fish; aquaculture; 
algaculture; sod farming; and all forms of farm products and farm production.    
13
 Section 193.461(3)(b)2., F.S.   STORAGE NAME: h0909.EAF 	PAGE: 4 
DATE: 2/3/2022 
  
for the presence of contaminants on land that is classified as agricultural and is being converted to a 
nonagricultural use. The bill prohibits the Secretary from delegating such authority to a city, a county, or 
another unit of local government through a local pollution control program. 
 
The bill specifies that the Secretary’s exclusive jurisdiction includes defining what constitutes all 
appropriate inquiry consistent with federal law and guidance under 40 C.F.R, Part 312.  
 
The bill specifies that it does not preempt the enforcement authority of a city, a county, or another unit 
of local government through a local pollution control program.  
 
The bill specifies that it does not apply to former agricultural land for which a permit has been approved 
by a local government to initiate development or for which development was completed on or before 
July 1, 2022. 
 
B. SECTION DIRECTORY: 
Section 1.  Amends s. 403.182, F.S., relating to local pollution control programs.  
 
 Section 2.  Provides an effective date of July 1, 2022. 
II.  FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT 
 
A. FISCAL IMPACT ON STATE GOVERNMENT: 
 
1. Revenues: 
None. 
 
2. Expenditures: 
None. 
 
B. FISCAL IMPACT ON LOCAL GOVERNMENTS: 
 
1. Revenues: 
None. 
 
2. Expenditures: 
None. 
 
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR: 
None. 
 
D. FISCAL COMMENTS: 
None. 
 
III.  COMMENTS 
 
A. CONSTITUTIONAL ISSUES: 
 
 1. Applicability of Municipality/County Mandates Provision: 
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take 
action requiring the expenditure of funds; reduce the authority that counties or municipalities have to 
raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or 
municipalities. 
  STORAGE NAME: h0909.EAF 	PAGE: 5 
DATE: 2/3/2022 
  
 2. Other: 
None. 
 
B. RULE-MAKING AUTHORITY: 
None. 
 
C. DRAFTING ISSUES OR OTHER COMMENTS: 
None. 
IV.  AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES 
On February 3, 2022, the Environment, Agriculture & Flooding Subcommittee adopted a PCS and reported 
the bill favorably as a committee substitute. The PCS removed provisions from the bill related to cleanup of 
current and former agricultural land and revised the provision related to the DEP Secretary’s exclusive 
authority to specify that such authority is in setting standards or procedures related to environmental 
contamination of agricultural land. 
 
This analysis is drafted to the committee substitute as approved by the Environment, Agriculture & 
Flooding Subcommittee.