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: CS/SB 1054
INTRODUCER: Environment and Natural Resources Committee and Senator Broxson
SUBJECT: Brownfield Site Rehabilitation
DATE: March 23, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Schreiber Rogers EN Fav/CS
2. AEG
3. AP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1054 does the following:
Requires the Department of Environmental Protection (DEP) to adopt by rule statewide
cleanup target levels for perfluoroalkyl and polyfluoroalkyl substances (PFAS) in soils and
groundwater, which do not take effect until ratified by the Legislature.
Provides a limitation of liability, until DEP’s rules have been ratified for a particular PFAS
constituent, from actions brought by local or state government entities to compel or enjoin
site rehabilitation, require payment of site rehabilitation costs, or require payment of fines or
penalties regarding rehabilitation based on the presence of that particular PFAS constituent.
Tolls any statute of limitations that would bar a state or local government entity from
pursuing relief under its existing authority, from the effective date of the act until site
rehabilitation is complete or the Legislature ratifies the cleanup target levels.
Requires the Office of Program Policy Analysis and Government Accountability to conduct
an analysis of programs in other states for the assessment and cleanup of soils and
groundwater contamination, and submit a report of its findings and recommendations to the
Governor and Legislature by January 1, 2022.
BILL: CS/SB 1054 Page 2
II. Present Situation:
Cleanup Target Levels
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.1 DEP establishes by rule CTLs for specific contaminants.2 These
CTLs apply to requirements for site rehabilitation across numerous programs.
Risk-Based Corrective Action
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.3 In Florida, prior to 2003, RBCA was only
used under specific DEP programs such as the brownfields or petroleum programs, and
contamination at a site was typically remediated to the default CTLs contained in ch. 62-777 of
the Florida Administrative Code.4 This meant there was little flexibility for site-specific
remediation strategies.5
In 2003, the Legislature created s. 376.30701, F.S., to establish a “global RBCA” process. The
original goal was a flexible site-specific cleanup process reflecting the intended use of the
property following cleanup, while maintaining adequate protection of human health, safety, and
the environment through the evaluation of contamination toxicity and exposure pathways.6
Section 376.30701, F.S., applies to all contaminated sites resulting from a discharge of pollutants
or hazardous substances where legal responsibility for site rehabilitation exists, except for those
contaminated sites subjected to the risk-based corrective action cleanup criteria established for
the petroleum, brownfields, and drycleaning programs pursuant to ss. 376.3071, 376.81, and
376.3078, F.S., respectively.7
The statute requires DEP to establish by rule criteria for determining on a site-specific basis the
tasks comprising a site rehabilitation program and the level at which a task and a program may
be deemed completed.8 Section 376.30701, F.S., contains requirements for determining or
establishing appropriate CTLs for groundwater and soil using RBCA principles.9
1
Section 376.301(8), F.S.
2
Fla. Admin. Code Ch. 62-777.
3
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 Mar. 18,
2021).
4
DeMeo et al., Risk-Based Corrective Action in Florida: How is it Working? (2015), https://www.floridabar.org/the-florida-
bar-journal/risk-based-corrective-action-in-florida-how-is-it-working/ (last visited Mar. 18, 2021).
5
Id.
6
Id.
7
Section 376.30701(1), F.S.
8
Section 376.30701(2), F.S.
9
Id.
BILL: CS/SB 1054 Page 3
Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS)
Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) are a group of thousands of man-made
compounds developed to provide oil and water repellency, chemical and thermal stability, and
friction reduction.10 Perfluorooctane sulfonic acid (PFOS) and perfluorooctanoic acid (PFOA)
are the most common and the best-studied of these compounds.11 PFAS were widely used since
the 1950’s, with applications in many industries, including the aerospace, semiconductor,
medical, automotive, construction, electronics, and aviation industries, as well as in consumer
products (e.g., carpets, clothing, furniture, outdoor equipment, food packaging) and firefighting
applications.12 While U.S. manufacturers have voluntarily phased out use of the chemicals,13
they persist in the environment, particularly at fire colleges, airports, and military installations.14
Although PFOA and PFOS are no longer manufactured in the United States, they are still
produced internationally and can be imported into the United States in consumer goods such as
carpet, leather and apparel, textiles, paper and packaging, coatings, rubber, and plastics.15
PFAS chemicals do not break down in the environment, can move through soil and water, and
can accumulate in fish and wildlife.16 Because of the widespread use and ease of transport, they
can be found virtually everywhere. The Centers for Disease Control and Prevention has detected
PFAS in nearly all persons it has tested, indicating widespread exposure in the U.S. population.17
Based on recent studies, health effects from PFAS potentially include increased risk of certain
cancers, increased cholesterol levels, impacts on hormones and the immune system, and fetal and
infant developmental effects.18
While the health effects from low-level concentrations of PFAS are not yet fully understood,
litigation and public interest is increasing nation-wide.19 In Florida, generally, issues exist
regarding liability for cleanup and third-party liability.20
The Environmental Protection Agency (EPA) prioritizes research and data collection for new
chemicals that are being discovered in water that previously had not been detected or are being
10
Interstate Technology Regulatory Council, History and Use of PFAS, 1 (2020), available at https://pfas-1.itrcweb.org/wp-
content/uploads/2020/10/history_and_use_508_2020Aug_Final.pdf (last visited Mar. 18, 2021).
11
DOH, PFAS Chemical Awareness, http://www.floridahealth.gov/environmental-health/hazardous-waste-sites/contaminant-
facts/_documents/doh-pfas-poster.pdf (last visited Mar. 18, 2021).
12
Interstate Technology Regulatory Council, History and Use of PFAS, 1, 8 (2020).
13
DEP, PFAS Update, Presentation to the Florida Senate Committee on Environment and Natural Resources, 18:00 (Dec. 9,
2019)[hereinafter DEP PFAS Update], available at https://thefloridachannel.org/videos/12-9-19-senate-committee-on-
environment-and-natural-resources/. In the U.S., PFOS was phased out of production around 2002, and PFOA was phased
out around 2015.
14
EPA, Basic Information on PFAS, https://www.epa.gov/pfas/basic-information-pfas (last visited Feb. 18, 2021).
15
Id.
16
Centers for Disease Control and Prevention, Per- and Polyfluorinated Substances (PFAS) Factsheet,
https://www.cdc.gov/biomonitoring/PFAS_FactSheet.html (last visited Mar. 18, 2021).
17
Id.
18
DOH, PFAS Chemical Awareness, 2, http://www.floridahealth.gov/environmental-health/hazardous-waste-
sites/contaminant-facts/_documents/doh-pfas-poster.pdf (last visited Mar. 18, 2021).
19
Ralph A. DeMeo and Jorge Caspary, PFApocalypse Now: The PFAS Firestorm and Implications for Florida, FLORIDA
BAR JOURNAL, Vol. 94, No. 3, pg. 46 (2020), https://www.floridabar.org/the-florida-bar-journal/pfapocalypse-now-the-pfas-
firestorm-and-implications-for-florida/#u7068 (last visited Mar. 19, 2021).
20
Id.
BILL: CS/SB 1054 Page 4
detected at levels that may be different than expected.21 These are called “contaminants of
emerging concern” (CEC). While CECs do not have regulatory limits, there may be a long-term
potential risk to human health or the environment associated with them. As part of EPA’s data
collection on CECs, all large and selected smaller public water systems across the U.S. are
required to monitor for CECs.22 Once EPA’s study and evaluation is complete, if EPA decides
not to regulate a CEC, then it may decide to develop a health advisory level (HAL) for the
detected contaminants. While HALs are non-enforceable federal limits, they serve as technical
guidance for federal, state, and local officials.23 For drinking water, the EPA has established a
HAL of 70 parts per trillion for PFOA and PFOS.24 DOH has adopted the same HAL for those
compounds.25
DEP has established provisional CTLs for PFAS to enable site cleanup under DEP’s
contaminated site cleanup criteria.26 DEP has created numerical provisional CTLs and screening
levels for PFOS and PFOA in the following categories: Provisional Groundwater CTLs,
Provisional Soil CTLs, Provisional Irrigation Water Screening Levels, and Surface Water
Screening Levels.27 These provisional standards are designed to protect human health, and the
provisional groundwater CTLs are the same as the EPA’s HAL for drinking water.
PFAS is common in firefighting foams that have been stored and used for fire suppression, fire
training, and flammable vapor suppression.28 These firefighting agents include Class B fluorine-
containing firefighting foams, such as aqueous film-forming foam (AFFF).29 PFAS are so
prevalent in firefighting agents that at least nine states have passed legislation to restrict or
prohibit the use of PFAS in firefighting agents or activities.30 In Florida, DEP has already
assessed each fire training facility in the state to ensure that PFAS-containing firefighting agents
are disposed of and that only firefighting agents that do not have PFAS are being used. 31 Of the
25 active facilities in the state with known or suspected use of AFFF, investigations indicate that
22 of the 25 had analytical results for PFOA and PFOS above the provisional groundwater
21
DEP, Regulated Drinking Water Contaminants and Contaminants of Emerging Concern,
https://floridadep.gov/comm/press-office/content/regulated-drinking-water-contaminants-and-contaminants-emerging-
concern (last visited Jan. 19, 2020).
22
Id.
23
EPA, How EPA Regulates Drinking Water Contaminants, https://www.epa.gov/dwregdev/how-epa-regulates-drinking-
water-contaminants (last visited Mar. 18, 2021).
24
EPA, Drinking Water Health Advisories for PFOA and PFOS, https://www.epa.gov/ground-water-and-drinking-
water/drinking-water-health-advisories-pfoa-and-pfos (last visited Mar. 18, 2021).
25
DOH, Maximum Contaminant Levels and Health Advisory Levels, 5 (2016) available at
http://www.floridahealth.gov/environmental-health/drinking-water/_documents/hal-list.pdf.
26
DEP PFAS Update, at 25:00, available at https://thefloridachannel.org/videos/12-9-19-senate-committee-on-environment-
and-natural-resources/; see Fla. Admin. Code Ch. 62-780.
27
DEP, Per-and Polyfluoroalkyl Substances (PFAS) Dynamic Plan, 9-10 (Feb. 2021)[hereinafter DEP Dynamic Plan],
available at https://floridadep.gov/sites/default/files/Dynamic_Plan_Revised_Feb2021.pdf (last visited Mar. 18, 2021).
28
Interstate Technology Regulatory Council, PFAS, https://pfas-1.itrcweb.org/3-firefighting-foams/ (last visited Mar. 18,
2021).
29
Id.
30
National Law Review, Expert Focus: US States Outpace EPA on PFAS Firefighting Foam Laws,
https://www.natlawreview.com/article/expert-focus-us-states-outpace-epa-pfas-firefighting-foam-laws (last visited Jan. 29,
2020); The New York State Senate, Senate Bill S439A, https://www.nysenate.gov/legislation/bills/2019/S439 (last visited
Jan. 29, 2020).
31
DEP PFAS Update, at 36:00.
BILL: CS/SB 1054 Page 5
CTL.32 Where contamination is identified, DEP will help the facility develop a cleanup plan to
remove or contain the contamination to prevent future environmental impact and human
exposure.33
In February of 2021, DEP published the current version of its PFAS Dynamic Plan.34 The
Dynamic Plan establishes a comprehensive path forward with the understanding that it may be
necessary to change the approach as the science associated with these emerging contaminants
continues to develop.35 The plan describes the current screening and provisional CTLs, and
summarizes data and lessons learned from prior and ongoing investigations. The plan states that
future investigations will be based on potential risk and will include a continued coordinated
response with DOH to quickly evaluate and address any impacts to drinking water resources. 36
III. Effect of Proposed Changes:
Section 1 creates s. 376.91, F.S., entitled “Statewide cleanup of PFAS.”
The bill contains a definitions section, defining two terms as they are used in s. 376.91, F.S.:
“Department” is defined as “the Department of Environmental Protection.”
“PFAS” is defined as “perfluoroalkyl and polyfluoroalkyl substances, including
perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS).”
The bill requires the Department of Environmental Protection (DEP) to adopt by rule statewide
cleanup target levels for PFAS in soils and groundwater. These cleanup target levels must be
developed using the criteria set forth in s. 376.30701, F.S., which establishes a process for risk-
based correction action, and priority must be given to PFOA and PFOS. The bill prohibits these
cleanup target levels from taking effect until ratified by the Legislature.
The bill provides that, until DEP’s rule for a particular PFAS constituent has been ratified by the
Legislature, a person may not be subject to any administrative or judicial action brought by or on
behalf of any state or local governmental entity to compel or enjoin site rehabilitation, to require
payment for the costs of rehabilitation of environmental contamination, or to require payment of
any fines or penalties regarding rehabilitation based on the presence of that particular PFAS
constituent. The bill tolls any statute of limitations that would bar a state or local government
entity from pursuing relief in accordance with its existing authority, from the effective date of the
bill until site rehabilitation is completed or cleanup target levels are ratified by the Legislature.
The bill states that it does not affect the ability or authority to seek contribution from any person
who may have liability with respect to a contaminated site and who did not receive the liability
protection provided by the bill.
Section 2 requires the Office of Program Policy Analysis and Government Accountability
(OPPAGA) to conduct an analysis of programs in other states for the assessment and cleanup of
32
DEP Dynamic Plan, at 12.
33
DEP, Fire Training Facility Preliminary Site Assessments, https://floridadep.gov/waste/waste-cleanup/content/fire-
training-facility-preliminary-site-assessments (last visited Mar. 18, 2021).
34
See DEP Dynamic Plan.
35
Id. at 3.
36
Id.
BILL: CS/SB 1054 Page 6
soil and groundwater contamination. The assessment must include programs for brownfields,
petroleum, drycleaning solvents, and other chemical contamination. Based on this analysis,
OPPAGA must recommend any changes to Florida’s c