This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0909z1.EAF.docx
DATE: 5/23/2022
HOUSE OF REPRESENTATIVES STAFF FINAL BILL ANALYSIS
BILL #: CS/HB 909 Pollution Control Standards and Liability
SPONSOR(S): Environment, Agriculture & Flooding Subcommittee; Payne and others
TIED BILLS: IDEN./SIM. BILLS: CS/SB 1210
FINAL HOUSE FLOOR ACTION: 98 Y’s
16 N’s GOVERNOR’S ACTION: Approved
SUMMARY ANALYSIS
CS/HB 909 passed the House on February 24, 2022, and subsequently passed the Senate on March 2, 2022.
Risk-based corrective action (RBCA) (pronounced “Rebecca”) is a decision-making process used to assess
and respond to incidents of contamination. 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. The Department of Environmental Protection
enforces RBCA principles when addressing contaminated sites in Florida with the goal of meeting cleanup
target levels for contaminants.
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 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, but it does not preempt the enforcement authority of a local
government through a local pollution control program.
The bill does not appear to have a fiscal impact on the state or local governments.
The bill was approved by the Governor on May 18, 2022, ch. 2022-127, L.O.F., and will become effective on
July 1, 2022.
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I. SUBSTANTIVE INFORMATION
A. EFFECT OF 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 United States 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 must 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
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.
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Consider the additive effects of contaminants.
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
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.
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DATE: 5/23/2022
The bill specifies that the Secretary of Environmental Protection 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, but provides that the bill
does not preempt the enforcement authority of a 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 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.
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.