The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Environment and Natural Resources
BILL: SB 1210
INTRODUCER: Senator Albritton
SUBJECT: Development of Current or Former Agricultural Land
DATE: February 4, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Collazo Rogers EN Pre-meeting
2. AG
3. AP
I. Summary:
SB 1210 creates s. 376.3065, F.S., addressing the development of current or former agricultural
land. The bill:
Contains definitions for the terms “current or former agricultural land,” “lawful application,”
“pesticide,” “pesticide mixing area,” and “qualified property.”
Finds that regulations prescribe lawful application of pesticides and limit their use in
agricultural activities.
Creates a presumption that the application of pesticides as part of agricultural operations is
lawful and not a recognized environmental condition.
Authorizes pesticide mixing areas to be legally subdivided as separate parcels of land for
environmental evaluation and remediation regardless of state or local restrictions.
Requires the new statute to be used (instead of other state or local regulations) for evaluating
environmental conditions and prescribing remedial activity for a contaminated site that is
current or former agricultural land.
Exempts qualifying current or former agricultural land from Department of Environmental
Protection (DEP) rules for site assessment and remedial activity associated with lawful
applications.
Requires the owner or authorized representative to provide DEP with reasonable assurances
that certain risk management techniques identified in the new statute have been implemented
before redeveloping the current or former agricultural land.
Provides that owners are only responsible for environmental risk management within their
legal boundaries.
Provides that DEP is prohibited from requiring additional environmental management
activities except under specified circumstances.
Provides that notwithstanding any existing local pollution control programs, DEP has
exclusive, non-delegable jurisdiction in evaluating environmental conditions and assessing
potential liability for the presence of contamination on current or former agricultural land. It
REVISED: BILL: SB 1210 Page 2
is also exclusively tasked with investigating claims of pesticide impacts to potable water
systems or potable private wells pursuant to state law.
II. Present Situation:
Agriculture in Florida
Florida’s climate makes it ideal for growing a variety of crops.
1
The state’s signature crop is
citrus. According to the 2017 Census of Agriculture,
2
502,886 acres were in use as orchards
(known as groves in Florida), second only to California. The bulk of Florida’s orchard acreage
includes citrus, with 474,540 total citrus acres, which represents 57 percent of the national total.
3
State agriculture has other significant commodities:
Vegetables. Florida ranked fourth among all states in total vegetable acres harvested (245,375
acres).
4
Floriculture and bedding, nursery, propagative materials, sod, food crops grown under glass
or other protection, and mushroom crops. The 2017 Census of Agriculture showed that
Florida ranked second among all states with value of sales totaling $1 billion, whereas
California had $1.07 billion in comparison. Florida ranked first among all states in sod value
of sales, with sales totaling $184 million.
5
Sugarcane. Florida led the country in sugarcane production in 2017 with 15.8 million tons of
sugarcane for sugar, which was 51 percent of the nation’s total.
6
Livestock. There were 21,469 operations with cattle inventory totaling 1.64 million cattle and
calves with 882,000 beef cows. Florida’s cattle industry is primarily run as a cow/calf
arrangement as weaned calves are shipped north to feed lots. Florida’s goat inventory,
especially meat and other goats, showed a total of 61,159 head compared to 52,052 in the
2012 census, showing that this is an emerging industry in the state.
7
Classification of Agricultural Lands
Section 193.461(1), F.S., requires state property appraisers to classify for assessment purposes
all lands within their counties as agricultural or nonagricultural.
8
Only lands that are used
primarily for bona fide agricultural purposes may be classified agricultural.
9
1
U.S. Dep’t of Agriculture (USDA), Agriculture in the Sunshine State, https://www.usda.gov/media/blog/2019/10/15/
agriculture-sunshine-state (last visited Jan. 7, 2022).
2
The Census of Agriculture is a complete count of U.S. farms and ranches and the people who operate them. It looks at land
use and ownership, operator characteristics, production practices, income and expenditures. It is taken only once every five
years, thus the latest available is from 2017. See USDA, National Agricultural Statistics Service, Census of Agriculture,
https://www.nass.usda.gov/AgCensus/ (last visited Jan. 7, 2022).
3
USDA, Agriculture in the Sunshine State, https://www.usda.gov/media/blog/2019/10/15/agriculture-sunshine-state (last
visited Jan. 7, 2022).
4
Id.
5
Id.
6
Id.
7
Id.
8
Section 193.461(2), F.S.
9
Section 193.461(3)(b), F.S. BILL: SB 1210 Page 3
The term “bona fide agricultural purposes” means good faith commercial agricultural use of the
land.
10
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 as defined in state law; algaculture; sod farming; and
all forms of farm products as defined in state law; and farm production.
11
In determining whether the use of the 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 for
agricultural assessment;
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.
12
In contrast, nonagricultural lands are lands that have either been diverted from an agricultural to
a nonagricultural use, or are no longer being utilized for agricultural purposes.
13
Pesticides
Use on Agricultural Lands
Pesticides
14
are an important tool in agricultural production, where they are used by farmers to
control weeds and insects.
15
About one-third of agricultural products are produced depending on
the application of pesticides. Overall, without the use of pesticides, there would be a 78% loss of
fruit production, a 54% loss of vegetable production, and a 32% loss of cereal production.
Pesticides play a critical role in reducing diseases and increasing crop yields worldwide.
16
10
Id.
11
Section 193.461(5), F.S.
12
Id.
13
Section 193.461(4), F.S.
14
According to federal law, the term “pesticides” includes: (1) any substance or mixture of substances intended for
preventing, destroying, repelling, or mitigating any pest; (2) any substance or mixture of substances intended for use as a
plant regulator, defoliant, or desiccant; and (3) any nitrogen stabilizer. See 7 U.S.C. s. 136(u) (excepting from the term new
animal drugs, animal feed containing new animal drugs, and liquid chemical sterilant products).
15
Muyesaier Tudi et al., Agriculture Development, Pesticide Application and Its Impact on the Environment, 18 INT. J.
ENVIRON. RES. & PUBLIC HEALTH 1112 (2021), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7908628/
pdf/ijerph-18-01112.pdf (last visited Jan. 7, 2022).
16
Id. BILL: SB 1210 Page 4
However, pesticides and herbicides are also designed to be toxic to plants and animal pests.
17
Because of their intrinsic toxicity, they can be harmful to human health and the environment and
can pose a risk to exposed populations through direct or indirect contact. The historical usage of
these agrichemicals can result in the accumulation of residual amounts of these toxic chemicals
in the environment.
18
The conversion of former agricultural lands into nonagricultural uses can
then expose people to these chemicals.
19
State Regulation
The Florida Pesticide Law (FPL)
20
regulates the distribution, sale, and use of pesticides to protect
people and the environment from their adverse effects.
21
Under the FPL, every pesticide distributed, sold, or offered for sale within the state, or
transported in intrastate commerce must be registered with the Department of Agriculture and
Consumer Services (DACS) and renewed biennially.
22
Before registration is granted, DACS staff
thoroughly evaluate all pesticides to ensure that they meet state safety standards.
23
Among other powers, DACS is authorized and directed to sample, test, inspect, and make
analyses of pesticides sold, offered for sale, distributed, or used within Florida, at a time and
place and to such an extent as it may deem necessary, to determine whether the pesticides or
persons exercising control over the pesticides are in compliance with the FPL, the rules, and the
provisions of the pesticide label or labeling.
24
As a general rule, any product registered as a pesticide with the U.S. Environmental Protection
Agency (EPA) will require registration in Florida.
25
Pesticides not requiring federal approval
must also be registered in Florida to ensure adherence with state law.
26
17
Miami-Dade County Dep’t of Regulatory and Economic Resources, Division of Environmental Resources Management
(DERM), Site Assessment Guidance for Former Agricultural Sites in Miami-Dade County, DERM Guidance 7G, available at
https://www.miamidade.gov/resources/legal-ads/2021-08-interim-guidance-assessment-at-former-agricultural-sites.pdf (last
visited Jan. 7, 2022).
18
Id.
19
Id.
20
Sections 487.011-487.175, F.S.
21
Section 487.012, F.S. The Florida Pesticide Law regulates these activities except as provided in the Mosquito Control Act
and the Structural Pest Control Act. See id.
22
Section 487.041(1)(a), F.S.
23
Dep’t of Agriculture and Consumer Services (DACS), Pesticide Product Registration, https://www.fdacs.gov/Business-
Services/Pesticide-Product-Registration (last visited Jan. 13, 2022).
24
Section 487.071(2), F.S.
25
DACS, Pesticide Product Registration, https://www.fdacs.gov/Business-Services/Pesticide-Product-Registration (last
visited Jan. 13, 2022).
26
Id. BILL: SB 1210 Page 5
Federal Regulation
EPA regulates pesticides under broad authority granted in two major statutes:
27
the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA)
28
and the Federal Food, Drug, and
Cosmetic Act (FFDCA).
29
FIFRA provides for federal regulation of pesticide distribution, sale, and use.
30
All pesticides
distributed or sold in the U.S. must be registered (i.e. licensed) by EPA.
31
Registration is based
on evaluations of scientific data and assessment of risks and benefits of a product’s use.
32
Label directions control how products are used. EPA can also authorize limited use of
unregistered pesticides or pesticides registered for other uses to address emergencies and special
local needs. Training is required for workers in pesticide-treated areas, and both certification and
training are required for applicators of restricted use pesticides.
33
FFDCA authorizes EPA to set tolerances, or maximum residue limits, for pesticide residues on
foods.
34
A tolerance is the maximum permissible level for pesticide residues allowed in or on
human food and animal feed.
35
In the absence of a tolerance for a pesticide residue, a food
containing such a residue is subject to seizure by the government.
36
Once a tolerance is
established, the residue level in the tolerance is the trigger for enforcement actions. That is, if
residues are found above that level, the commodity will be subject to seizure.
37
Discharges
Any discharge of pollutants or hazardous substances “into or upon the surface or ground waters
of the state or lands,” which discharge violates any of DEP’s environmental standards
established pursuant to state law, is a violation of ch. 376, F.S., and is prohibited for any
reason.
38
In this context, discharges include, but are not limited to, “any spilling, leaking,
seeping, pouring, misapplying, emitting, emptying, releasing, or dumping of any pollutant or
hazardous substance which occurs and which affects lands and the surface and ground waters of
27
U.S. Environmental Protection Agency (U.S. EPA), About Pesticide Registration, https://www.epa.gov/pesticide-
registration/about-pesticide-registration (last visited Jan. 13, 2022).
28
7 U.S.C. §136 et seq.
29
21 U.S.C. §301 et seq.
30
U.S. EPA, Summary of the Federal Insecticide, Fungicide, and Rodenticide Act, https://www.epa.gov/laws-
regulations/summary-federal-insecticide-fungicide-and-rodenticide-act (last visited Jan. 13, 2022); U.S. EPA, About
Pesticide Registration, https://www.epa.gov/pesticide-registration/about-pesticide-registration (last visited Jan. 13, 2022).
31
Id.
32
U.S. EPA, About Pesticide Registration, https://www.epa.gov/pesticide-registration/about-pesticide-registration (last
visited Jan. 13, 2022).
33
Id.
34
U.S. EPA, Summary of the Federal Food, Drug, and Cosmetic Act, https://www.epa.gov/laws-regulations/summary-
federal-food-drug-and-cosmetic-act (last visited Jan. 13, 2022); U.S. EPA, About Pesticide Registration,
https://www.epa.gov/pesticide-registration/about-pesticide-registration (last visited Jan. 13, 2022).
35
U.S. EPA, About Pesticide Registration, https://www.epa.gov/pesticide-registration/about-pesticide-registration (last
visited Jan. 13, 2022).
36
U.S. EPA, Summary of the Federal Food, Drug, and Cosmetic Act, https://www.epa.gov/laws-regulations/summary-
federal-food-drug-and-cosmetic-act (last visited Jan. 13, 2022).
37
Id.
38
Section 376.302(1)(a), F.S. BILL: SB 1210 Page 6
the state[.]”
39
Unless promptly reported and removed, any person who discharges pollutants or
hazardous substances in violation of the statute is liable to the state for any damage caused and
for civil penalties of up to $15,000 per offense.
40
State and Federal Legislation Addressing Site Rehabilitation
Brownfield Redevelopment Act
Brownfield sites are defined by the Department of Environmental Protection (DEP) as real
property, the expansion, redevelopment, or reuse of which may be complicated by actual or
perceived environmental contamination.
41
The primary goals of Florida’s Brownfields Redevelopment Act (BRA)
42
are to reduce public
health and environmental hazards on existing commercial and industrial sites that are abandoned
or underused due to these hazards; create financial and regulatory incentives to encourage
voluntary cleanup and redevelopment of sites; derive cleanup target levels (CTLs) and a process
for obtaining a “No Further Action” letter using Risk-Based Corrective Action (RBCA)
principles; and provide the opportunity for environmental equity and justice.
43
After a local municipality in Florida designates an area as a brownfield to encourage
redevelopment and focus upon revitalization, a resolution is passed and property owners within
that designated area optionally may remediate or redevelop their property.
44
Executed
Brownfield Site Rehabilitation Agreements (Site Agreements) are voluntary cleanup agreements
between a responsible party and DEP or a delegated local pollution control program.
45
Site
Agreements provide DEP and the public assurance that site rehabilitation will be conducted in
accordance with (among other things) the cleanup criteria in the statute,
46
and provide liability
protection for the responsible person.
47
The agreement contains various commitments by the responsible person, including milestones
for completion of site rehabilitation tasks and submittal of technical reports and plans as agreed
39
Section 376.301(13), F.S. This definition of discharge is applicable to surface and ground waters of the state that are not
regulated by the Pollutant Discharge Prevention and Control Act (PDPCA), ss. 376.011-.21, F.S., which applies to coastal
waters, estuaries, tidal flats, beaches, and lands adjoining the seacoast. See id.; see also ss. 376.021(1)-(3) (explaining that the
intent of the PDPCA is to address potential discharges associated with the transfer of pollutants between vessels, onshore
facilities and vessels, offshore facilities and vessels, and between terminal facilities) and 376.041 (identifying regulated
waters).
40
Section 376.302(2), F.S.
41
Section 376.79(4), F.S.
42
Ch. 97-277, Laws of Fla, codified at ss. 376.77-.85, F.S.
43
See s. 376.78, F.S. (providing legislative intent); see also s. 376.81, F.S. (providing cleanup criteria, including CTLs and
the conditions pursuant to which DEP may issue a “no further action” letter); see also Dep’t of Environmental Protection
(DEP), Brownfields Redevelopment Act, https://floridadep.gov/waste/waste-cleanup/content/brownfields-program (last
visited Jan. 7, 2022).
44
See s. 376.80(1)-(2), F.S.
45
See s. 376.80(2)(c)-(d), F.S.
46
See s. 376.80(5), F.S.; see also s. 376.81, F.S. (containing statutory cleanup criteria).
47
Section 376.82(2), F.S. BILL: SB 1210 Page 7
to by the responsible person and DEP.
48
It also contains a commitment by the DEP to review
technical reports according to an agreed upon schedule.
49
Risk-based corrective action (RBCA) is a decision-making process that combines site
assessments and responses to chemical releases with human health and environmental risk
assessments to determine the need for remedial action and tailor corrective actions to site-
specific conditions and risks, which can vary greatly.
50
A cleanup target level (CTL) is 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.
51
DEP
establishes by rule CTLs for specific contaminants.
52
These CTLs apply to requirements for site
rehabilitation across numerous programs, including the BRA.
53
Comprehensive Environmental Response, Compensation, and Liability Act
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
54
is
a law that was passed by Congress on December 11, 1980 to form what is commonly known as
Superfund.
55
Thousands of contaminated sites exist nationally due to hazardous waste being
dumped, left out in the open, or otherwise improperly managed.
56
These sites include
manufacturing facilities, processing plants, landfills, and mining sites.
57
CERCLA created a tax on the chemical and petroleum industries and required that the money
collected be used to clean up hazardous waste sites throughout the country.
58
Superfund allows
the U.S. Environmental Protection Agency (EPA) to clean up contaminated sites.
59
It also forces
the parties responsible for the contamination to either perform cleanups or reimburse the
government for EPA-led cleanup work.
60
When there is no viable responsible party, Superfund
gives EPA the funds and authority to clean up contaminated sites.
61
48
See s. 376.80(5)(a), F.S.
49
See s. 376.80(5)(e), F.S.
50
DEP, Contaminated Soils Forum -- Policy Group, Waste Cleanup Focus Group, Issues paper-- “Universal” Applicability
of Risk-Based Correction Action at Florida Waste Cleanup Sites, 2 (1998), available at https://floridadep.gov/sites/default/
files/Universal-applicability-of-risk-based-corrective-action.pdf (last visited Jan. 7, 2022).
51
Section 376.301(8), F.S.
52
Fla. Admin. Code Ch. 62-777.
53
See s. 376.81(g), (i), F.S.; see also Fla. Admin. Code Rules 62-777.150(1) and 62-780.150(1) (applying these rules to site
rehabilitation at sites governed by the terms of a brownfield site rehabilitation agreement).
54
42 U.S.C. ss. 9601 et seq.
55
EPA, What is CERCLA?, https://usepa.servicenowservices.com/ecss?id=kb_article_view&sys_kb_id=12ec93221bb99c
1013bdb913cc4bcb32 (last visited Nov. 17, 2021).
56
EPA, What is Superfund?, https://usepa.servicenowservices.com/ecss?id=kb_article_view&sys_kb_id=2e020af01b2154
10a5dced39bc4bcb98 (last visited Nov. 17, 2021).
57
Id.
58
EPA, What is CERCLA?, https://usepa.servicenowservices.com/ecss?id=kb_article_view&sys_kb_id=12ec93221bb99c
1013bdb913cc4bcb32 (last visited Nov. 17, 2021).
59
EPA, What is Superfund?, https://usepa.servicenowservices.com/ecss?id=kb_article_view&sys_kb_id=2e020af01b2154
10a5dced39bc4bcb98 (last visited Nov. 17, 2021).
60
Id.
61
Id. BILL: SB 1210 Page 8
Federal agencies must comply with substantive and procedural CERCLA requirements to the
same extent as private entities.
62
The following sequence of events generally applies to all sites,
both privately and federally-owned or operated: preliminary assessment; site investigation;
listing on the National Priorities List; remedial investigation; feasibility study; record of
decision; remedial design; remedial action; long-term operation; and maintenance.
63
The remedy
selected for cleanup at a federal facility must meet CERCLA’s cleanup standards.
64
Lender Liability
Lending institutions may be exposed to environmental liability for contamination on properties
in which they hold security interests.
65
A lender may, depending on the circumstances, be held
directly responsible for the costs of environmental investigation and cleanup of hazardous
substances located on property used as loan collateral if it takes ownership of the property by
foreclosure or participates extensively in the management of the property.
66
Lending institutions that hold mortgages on property as secured lenders are exempt from
CERCLA liability if certain criteria are met.
67
CERCLA Section 101(20) contains a secured
creditor exemption that eliminates owner or operator liability for lenders who hold ownership in
a CERCLA facility primarily to protect their security interest in that facility, provided they do
not “participate in the management of the facility.”
68
Generally, participation in the management applies if a bank exercises decision-making control
over a property’s environmental compliance, or exercises control at a level similar to a manager
of the facility or property. Participation in management does not include actions such as
conducting property inspections, requiring a response action to address contamination, providing
financial advice or renegotiating or restructuring the terms of the security interest.
69
The secured creditor exemption also provides that foreclosure on a property does not result in
liability for a bank, provided the bank takes “reasonable steps” to divest itself of the property “at
the earliest practicable, commercially reasonable time, on commercially reasonable terms.” A
lending institution can usually maintain business activities and close down operations at a
property as long as the property is listed for sale shortly after the foreclosure date or at the
earliest practicable, commercially reasonable time.
70
62
EPA, Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Federal Facilities,
https://www.epa.gov/enforcement/comprehensive-environmental-response-compensation-and-liability-act-cercla-and-federal
(last visited Nov. 17, 2021).
63
Id.
64
Id.
65
Mark S. Dennison, Lender Liability for Contamination of Property by Hazardous Substances, 49 AM. JUR. 3d Proof of
Facts 173 s. 1 (2021).
66
Id.
67
EPA, Lender Liability and Applicability of All Appropriate Inquiries, available at https://www.epa.gov/sites/default/
files/2017-07/documents/aai_factsheet_lender_liability_epa_560_f_17_192_508.pdf (last visited Jan. 12, 2022).
68
Id.
69
Id.
70
Id. BILL: SB 1210 Page 9
All appropriate inquiries (AAI) is the process of evaluating a property’s environmental
conditions and assessing potential liability for any contamination.
71
AAI requirements apply to
any party who can potentially claim protection from CERCLA liability as an innocent
landowner, contiguous property owner, or bona fide prospective purchasers (BFPPs). However,
the AAI rule primarily applies to borrowers who want to claim protection from CERCLA
liability as innocent landowners, BFPPs or contiguous property owners. The rule does not
change the CERCLA liability exemption for banks that hold mortgages on property as secured
lenders. The secured lender exemption is not conditioned by a bank or lender undertaking AAI
before issuing a mortgage or before the borrower purchases the property.
72
Although lending institutions have protection from CERCLA liability through the secured
creditor exemption, they may choose to further protect themselves from loss (due to decreases in
the value of the property or collateral) by requiring that borrowers qualify for liability
protections. Banks, therefore, may want to encourage their borrowers to comply with the
provisions established for BFPPs and ensure that borrowers properly conduct AAI before
acquiring a property.
73
Local Pollution Control Programs
Section 403.182, F.S., provides that each county and municipality (or any combination thereof)
may establish and administer a local pollution control program, so long as it complies with all
other provisions of the Florida Air and Water Pollution Control Act (FAWPCA).
74
All local
pollution control programs must:
75
Be approved by DEP as adequate to meet the requirements of the FAWPCA and any
applicable rules and regulations pursuant thereto;
Provide by ordinance, regulation, or local law for requirements compatible with, or stricter or
more extensive than those imposed by the FAWPCA and regulations issued thereunder;
Provide for the enforcement of such requirements by appropriate administrative and judicial
process; and
Provide for administrative organization, staff, financial and other resources necessary to
effectively and efficiently carry out its program.
If DEP determines that a local pollution control program is inadequate to prevent and control
pollution, or is being administered in a manner inconsistent with the requirements of the
FAWPCA, it may require necessary corrective measures.
76
If these corrective measures are not
implemented, DEP may reassume implementation of the FAWPCA within the jurisdiction.
77
Each local pollution control program must cooperate with and assist DEP in carrying out its
powers, duties, and functions.
78
71
Id.
72
Id.
73
Id.
74
Section 403.182, F.S.; see also ch. 67-436, s. 2, Laws of Fla. (identifying the short title of the act).
75
Section 403.182(1), F.S.
76
See s. 403.182(4), F.S.
77
See id.
78
Section 403.182(10), F.S. BILL: SB 1210 Page 10
Site Assessment Guidance for Former Agricultural Sites in Miami-Dade County
The Miami-Dade County (County) Division of Environmental Resources Management (DERM)
implements monitoring, education, restoration, regulatory, and land management programs to
protect water quality, drinking water supply, air quality and natural resources that are vital to the
health and well-being of all County residents and visitors and the ecosystem.
79
In August 2021, DERM issued a revised Site Assessment Guidance for Former Agricultural Sites
in Miami-Dade County, DERM Guidance 7G (DERM Guidance).
80
The DERM Guidance
revised earlier interim guidance on the same topic.
81
DERM states that the guidance was
developed in response to requests to provide environmental professionals and practitioners clear
guidance for evaluating potential environmental concerns at sites transitioning from a former
bona fide agriculture land use (e.g. crops and orchards) to a nonagricultural land use, such as
residential use.
82
According to the DERM Guidance, the conversion of former agricultural lands into
nonagricultural uses like residences and schools results in different exposed populations (e.g.
expectant mothers, children, and construction workers), different exposure scenarios (e.g.
increased exposure frequency and duration), and different exposure pathways.
83
Under these new
scenarios, residual agrichemical concentrations in the environment may pose an unacceptable
health risk to exposed populations and have the potential to cause a nuisance, ground pollution,
or water pollution as defined in the Miami-Dade County Code.
84
To address these concerns, the DERM Guidance requires “testing/proper assessment and, if
necessary, risk mitigation to ensure the protection of public health, safety, and welfare.”
85
It
addresses areas historically utilized for growing agricultural crops and provides minimum
requirements to characterize the site’s environmental conditions resulting from agricultural
activities at the site. DERM notes that based upon changes in types of crops grown,
agrichemicals used, irrigation, and pest management strategies, homogenous application of
agrichemicals and distribution of agrichemical residues in soils and groundwater cannot be
assumed. Ancillary use areas such as agrichemical storage, mix-load areas, and fuel shortage
areas may require more targeted assessment and may include additional contaminants of concern
79
DERM, Environment, https://www.miamidade.gov/environment/ (last visited Jan. 7, 2022).
80
DERM, Site Assessment Guidance for Former Agricultural Sites in Miami-Dade County, DERM Guidance 7G, available
at https://www.miamidade.gov/resources/legal-ads/2021-08-interim-guidance-assessment-at-former-agricultural-sites.pdf
(last visited Jan. 7, 2022).
81
DERM, Interim Site Assessment Guidance for Developing at Former Agricultural Sites, https://www.miamidade.gov/
environment/research-reports.asp#0 (last visited Jan. 7, 2022). The Dade County Farm Bureau opposed the interim guidance,
asserting (among other things) that it unfairly targeted agricultural lands, assumed without evidence that they are polluted,
and imposed on them heavy-handed environmental testing protocols. See Landowners Urged to Fight Back against Miami-
Dade County DERM, SOUTH DADE NEWSLEADER, Nov. 13, 2020, http://www.southdadenewsleader.com/news/landowners-
urged-to-fight-back-against-miami-dade-county-derm/article_bac6b9f8-253c-11eb-915f-cf89a59e3111.html (last visited Jan.
7, 2021).
82
Id.
83
DERM, Site Assessment Guidance for Former Agricultural Sites in Miami-Dade County, DERM Guidance 7G, available
at https://www.miamidade.gov/resources/legal-ads/2021-08-interim-guidance-assessment-at-former-agricultural-sites.pdf
(last visited Jan. 7, 2022).
84
Id. at 1.
85
Id. BILL: SB 1210 Page 11
(COCs). And additional assessment may be necessary on a case-by-case basis for properties at
which a nonagricultural land use predated the bona fide agricultural use (such as landfills and
military installations) or where the land use history indicates a period during which bona fide
agricultural use was interrupted by a nonagricultural use.
86
The DERM Guidance provides guidance on soil assessment issues like sampling methodologies
(including discrete sampling, composite sampling, and Incremental Sampling Methodology
(ISM) sampling); sampling intervals; COCs; Synthetic Precipitation Leaching Procedure (SPLP)
analysis; acute toxicity considerations; assessment of bioavailability from soil; and background
concentrations.
87
It also provides guidance on groundwater assessment issues like sampling
frequency and COCs, the substance of technical reports that property owners submit to DERM,
and notifications.
88
III. Effect of Proposed Changes:
Section 1 of the bill creates s. 376.3065, F.S., providing for the development of current or former
agricultural land.
The bill provides the following definitions:
“Current or former agricultural land” means land that is or was classified as agricultural land
for property appraiser purposes.
“Lawful application” means the application of pesticides that have been properly mixed and
applied in accordance with the manufacturer specifications and U.S. Environmental
Protection Agency approvals on the labels of properly registered products.
“Pesticide” has the same meaning as in federal law.
“Pesticide mixing area” means the area on the property where pesticide storage, mixing, or
equipment maintenance facilities are located.
“Qualified property” means a parcel of land that is part of a broader, regional, or multi
property area impacted by pesticides.
In connection with the lawful application of pesticides in agricultural operations, the bill:
Includes a Legislative finding that state and federal regulations prescribe lawful application
of pesticides and limit their use in the operation of bona fide agricultural activities.
Provides that the application of pesticides as part of agricultural operations is presumed to be
a lawful application, unless a discharge as defined in state law exists, and is presumed not to
be a recognized environmental condition pursuant to federal law.
Provides that notwithstanding any other state or local law or regulation to the contrary,
pesticide mixing areas may be legally subdivided as separate parcels of land for
environmental evaluation and remediation.
Requires that, upon receiving a report of a discovery of verifiable pesticide impacts to
potable water systems or potable private wells caused by a property, the Department of
Environmental Protection (DEP) must investigate the claim and provide any appropriate
remedies pursuant to existing law.
86
Id.
87
Id. at 2-6.
88
Id. at 6-8. BILL: SB 1210 Page 12
In connection with site assessments and remedial activities for current or former agricultural
land, the bill provides that:
Notwithstanding any existing state or local law or regulation for site assessment and remedial
activity applicable to current or former agricultural land, the new statute must be used for
evaluating environmental conditions and prescribing remedial activity for a contaminated site
for such current or former agricultural land.
The new statute does not apply to former agricultural land that has obtained local
government-approved permits to initiate redevelopment or has completed redevelopment as
of July 1, 2022.
Current or former agricultural land that meets the requirements of the new statute is exempt
from regulation by DEP rules for site assessment and remedial activity associated with lawful
applications.
A property owner may voluntarily apply for brownfield site rehabilitation activities in
accordance with the Brownfields Redevelopment Act.
Lenders may rely on the new statute if:
o The lender is serving as a trustee, a personal representative, or another type of fiduciary;
o The lender holds indicia of ownership in the site primarily to protect a security interest;
or
o The lender held a security interest in the site and has foreclosed or otherwise acted to
acquire title primarily to protect its security interest; seeks to sell, transfer, or otherwise
divest the assets for subsequent sale at the earliest possible time, taking all relevant facts
and circumstances into account; and has not undertaken management activities beyond
those necessary to protect its financial interest, to effectuate compliance with
environmental statutes and rules.
The new statute applies regardless of when a contaminant was discovered if the real property
owner of the current or former agricultural land:
o Completes environmental management activities pursuant to the environmental
management provision in the new statute as part of the property’s redevelopment. The
incentives of this subsection do not apply to formerly cultivated land that has obtained
local government-approved permits to initiate redevelopment or has completed
redevelopment as of July 1, 2022, and such redeveloped properties are not required to
complete the risk management activities pursuant to the environmental management
provision in the new statute;
o Has not been proved to have operated in a grossly negligent manner. Discharges as
defined in state law do not exist on the current or former agricultural land;
o Has not willfully concealed a discharge as defined in state law; and
o Provides reasonable assurances that the property does not include:
A pesticide mixing area; or
An area, including surface or groundwater, designated as a contaminated site whose
classification as a contaminated site was the result of its proximity to a pesticide
mixing area.
Current or former bona fide agricultural operations are presumed to have lawfully applied
pesticides in this state, unless evidence of a point source of impacts or a discharge as defined
in state law exists.
BILL: SB 1210 Page 13
In connection with environmental management on current or former agricultural land, the bill
provides that:
Before redevelopment of current or former agricultural land that qualifies as a contaminated
site, the property owner or authorized representative must provide DEP with reasonable
assurances that all of the following applicable risk management techniques have been
implemented:
o A soil management plan that includes, at a minimum, exposed soils on site that are
subject to human exposure, that are found between land surface and 2 feet below land
surface, and that meet or exceed soil cleanup target levels (CTLs) established by DEP.
The soils must be managed using appropriate institutional or engineering controls
consistent with the proposed land reuse, which may be accomplished using non-
contaminated fill material or by mixing or blending the soil during construction. Soil
reuse or relocation must be conducted in accordance with all applicable federal, state, and
local regulations. A soil management plan must follow guidance developed by DEP.
o If surface water or groundwater sampling for the current or former agricultural land
indicates the presence of contaminants at concentrations exceeding CTLs established by
DEP, a water management plan for the property that incorporates institutional controls as
defined in state law. Stormwater conveyance construction and dewatering requirements
must be completed pursuant to applicable DEP permits. Proposed or existing
improvements to a property with human occupancy which is served by a municipal
drinking water supply system or which accesses drinking water must meet water
management district well permitting rules.
The property owner must notify DEP upon completion of the risk management techniques,
with an affirmative demonstration that the owner has met the requirements of the new statute.
Qualified properties are not required to meet any off-property sampling requirements under
state law governing pollutant discharge prevention and removal, and a property owner of
such a property is only responsible for environmental risk management within the qualified
property’s legal boundaries.
The bill also provides that, upon completion of environmental management activities in
compliance with the new statute, the property may not be required to complete additional
environmental management activities on the property unless:
DEP determines that fraud was committed in demonstrating land or real property conditions
or in completing environmental management activities;
New information confirms the existence of a contaminant that exceeds the environmental
management criteria established in accordance with the environmental management
provisions in the new statute or that otherwise poses the threat of real and substantial harm to
public health, safety, and the environment;
Environmental management efforts failed to achieve the criteria established under the new
statute; or
Substantial changes in exposure conditions have increased the level of risk beyond the
acceptable risk established under the environmental management provisions in the new
statute. DEP may require a person who changes the land use of the property which causes the
level of risk to increase beyond the acceptable risk level to undertake additional
environmental management measures to assure the protection of human health and the
environment. BILL: SB 1210 Page 14
Section 2 amends s. 408.182, F.S., regarding local pollution control programs, to provide that
notwithstanding that statute or any existing local pollution control programs, the Secretary of
DEP has exclusive jurisdiction in all matters related to evaluating environmental conditions and
assessing potential liability for the presence of contaminants on land that is or was classified as
agricultural land pursuant to existing law, including defining what constitutes all appropriate
inquiries. The bill also provides that the Secretary may not delegate the authority to a county, a
municipality, or another unit of local government through a local pollution control program
under that statute.
Section 3 provides that the bill takes effect July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The bill facilitates the redevelopment of current or former agricultural land by divesting
local governments of the legal authority to impose more stringent requirements than what
is required by state regulators. BILL: SB 1210 Page 15
C. Government Sector Impact:
The bill will increase costs to DEP because it is assuming exclusive jurisdiction in all
matters related to evaluating environmental conditions and assessing potential liability for
the presence of contaminants on land that is or was classified as agricultural land
pursuant to state law. In contrast, local governments may experience a decrease in
application fees and costs associated with reviewing the proposed redevelopment of such
land.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially creates section 376.3065 and amends 403.182 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.