The Department proposes to amend Chapter 62-788, F.A.C., to incorporate statutory changes to Sections 199.1055, 220.1845, and 376.30781, F.S. The statutory provisions clarified the Voluntary Cleanup Tax Credit (VCTC) application process and allowed ...

DEPARTMENT OF ENVIRONMENTAL PROTECTION

Rule No.: RULE TITLE
62-788.100: Applicability and Limitations
62-788.150: Referenced Guidelines
62-788.200: Definitions
62-788.300: Application Process
62-788.310: Affordable Housing VCTC Application Process
62-788.320: Solid Waste VCTC Application Process
62-788.330: Solid Waste Removal Voluntary Cleanup Tax Credit Application Process
62-788.400: Eligibility Determination
62-788.900: Forms
PURPOSE AND EFFECT: The Department proposes to amend Chapter 62-788, F.A.C., to incorporate statutory changes to Sections 199.1055, 220.1845, and 376.30781, F.S. The statutory provisions clarified the Voluntary Cleanup Tax Credit (VCTC) application process and allowed an increase in the available tax credit types, percentages and amounts. The statutes also clarified provisions governing VCTC certificates and repealed the use of VCTC credits towards Intangible Personal Property Tax.
SUMMARY: The Voluntary Cleanup Tax Credit Program has been expanded and clarified by statute, and the department proposes to clarify some existing requirements based on experience in implementing the program since the rule was initially adopted. The changes to Chapter 62-788, F.A.C., will incorporate or introduce the following at eligible sites: an increase in the per-site tax credit award amount and percentage for site rehabilitation; the requirements for issuance of a one-time tax credit award for affordable housing, for a health care facility or health care provider, and for solid waste removal; the tax credit application submittal and review requirements, and the corresponding deadlines; the tax credit application supporting documentation and payment requirements and the process for correcting a completeness deficiency; new definitions; updates to terminology and to existing definitions; and clarification about the useful life of issued tax credit certificates.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: A SERC has been prepared. Most of the amendments are clarifications or updates to the existing rule. The changes to the rule are not expected to cause any impact on small businesses. The Voluntary Cleanup Tax Credit Program is voluntary and no one is required to participate. Those who do participate could include brownfield and drycleaning sites, developers, real estate or property management companies, and municipalities. A reasonable estimate of the number of individuals and entities that are likely to participate annually in the VCTC program is about 20-30 applicants. The revisions to the rule do not create any significant additional costs for DEP or other state or local government entities implementing the rule. There may be an increase in local revenues. State revenues are not expected to be impacted because there is no increase to the $2 million annual authorization. There are no new or increased costs or fees, equipment, operating costs, procedures, or monitoring and reporting associated with the proposed revisions. The Department has insufficient data to know with certainty what the impact on small business would be, but applicants should benefit from a reduced tax payment by use of the credit.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 376.30781, 403.707 FS.
LAW IMPLEMENTED: 376.30781, 403.707, 403.703 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Teresa Booeshaghi at [phone] or [e-mail]

THE FULL TEXT OF THE PROPOSED RULE IS:

62-788.100 Applicability and Limitations.

(1) This chapter applies to any tax credit applicant, as defined in Rule 62-788.200, F.A.C. taxpayer seeking a tax credit toward either corporate income tax or intangible personal property tax pursuant to Sections 199.1055 or 220.1845, F.S., and Section 376.30781, F.S. A tax credit applicant shall claim tax credits for the costs of voluntary cleanup activity using the percentages and the amounts in Table 1 by completing Florida Department of Environmental Protection (Department) Form 62-788.900(1), Voluntary Cleanup Tax Credit Application, effective date_______, hereby adopted and incorporated by reference. Copies of this form are available from the Department’s Voluntary Cleanup Tax Credit Program, Mail Station 4505, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400. Voluntary cleanup tax credit applications may be submitted for one or both of the following:, in the amount of 35 percent of the costs of voluntary

(a) Voluntary cleanup activity that is integral to site rehabilitation at the following sites:

1.(a) A drycleaning-solvent-contaminated site eligible for state-funded site rehabilitation pursuant to under Section 376.3078(3), F.S.;

2.(b) A drycleaning-solvent-contaminated site at which site rehabilitation cleanup is undertaken by the real property owner pursuant to Section 376.3078(11)(10), F.S., if the real property owner is not also, and has never been, the owner or operator of the drycleaning facility where the contamination exists; or

3.(c) A brownfield site in a designated brownfield area pursuant to under Section 376.80, F.S.;

(b) Solid waste removal from within the property boundary of a brownfield site, as identified and described in the Brownfield Site Rehabilitation Agreement (BSRA), provided that the brownfield site was never operated as a permitted solid waste disposal area or was never operated for monetary compensation.

(2) Pursuant to Section 376.30781, F.S., tax credits for voluntary cleanup that is integral to site rehabilitation are limited to the percentage and the amount for the “Site Rehabilitation” Tax Credit Type in Table 1, per contaminated site per year. These tax credits are available only for site rehabilitation conducted during the calendar year for which the tax credit application is submitted. Costs from a previous calendar year shall not be included in a subsequent calendar year’s annual site rehabilitation application. However, tax credit applicants that complete site rehabilitation at a contaminated site and receive a “No Further Action” order [i.e. Site Rehabilitation Completion Order (SRCO)]; or that limit the use of the property to housing that meets the definition of affordable provided in Section 420.0004, F.S.; or that construct or operate a new health care facility as defined in Section 408.032 or 408.07, F.S., or a health care provider as defined in Sections 408.07 or 408.7056, F.S., are eligible to receive an additional tax credit. Tax credit applicants may receive one or more of these bonus credits, as applicable, but at no time shall the total tax credit award for site rehabilitation exceed 100 percent of the site rehabilitation costs incurred and paid by the applicant. The SRCO, affordable housing, and health care bonus tax credits shall be claimed after all the applicable criteria are met for the type of tax credit claimed. The calculation for the SRCO, affordable housing, and health care bonus tax credits shall be based upon the total site rehabilitation costs that were determined eligible by the Department, in accordance with the following, as applicable:

(a) In the year an applicant completes cleanup of a contaminated site and receives an SRCO at an eligible site pursuant to paragraph 62-788.100(1)(a), F.A.C., the tax credit applicant may additionally claim the percentage and the amount for the “SRCO Bonus” Tax Credit Type in Table 1.

(b) In the year a brownfield site as identified in a BSRA, eligible pursuant to subparagraph 62-788.100(1)(a)3., F.A.C., meets all the affordable housing criteria pursuant to Rule 62-788.310, F.A.C., the tax credit applicant may additionally claim the percentage and the amount for the “Affordable Housing Bonus” Tax Credit Type in Table 1. Affordable housing bonus tax credits may be claimed only once per brownfield site and may not be claimed for site rehabilitation activities that occurred prior to July 1, 2006.

(c) In the year a brownfield site as identified in a BSRA, eligible pursuant to subparagraph 62-788.100(1)(a)3., F.A.C., meets all the health care facility or health care provider criteria pursuant to Rule 62-788.320, F.A.C., the tax credit applicant may additionally claim the percentage and the amount for the “Health Care Bonus” Tax Credit Type in Table 1. Health care bonus tax credits may only be claimed once per brownfield site and may not be claimed for site rehabilitation activities that occurred prior to January 1, 2008.

(3) Pursuant to Section 376.30781, F.S., tax credits for solid waste removal are limited to the percentage and the amount for the “Solid Waste Removal” Tax Credit Type in Table 1, per brownfield site as identified and described in the BSRA. Applications for solid waste removal are not subject to the annual calendar-year limitation and shall instead be submitted in a one-time application. The calculation for the solid waste removal tax credit shall be based upon the costs determined eligible by the Department in the one-time application. Only costs incurred and paid during the calendar year(s) the executed BSRA is in place will be considered, per the requirements of Rule 62-788.330, F.A.C. Solid waste removal tax credits may only be claimed once per brownfield site and may not be claimed for solid waste removal that occurred prior to July 1, 2006.

 

Table 1: Tax Credit Percentages and Amounts for Eligible Sites Pursuant to Subsection 62-788.100(1), F.A.C.
	Tax Credit Type1
	Site Rehabilitation2	Site Rehabilitation Completion Order (SRCO) Bonus3	Affordable Housing Bonus4	Health Care Bonus5	Solid Waste Removal6
Application Frequency	Annually	Once	Once	Once	Once
Percentage and Maximum Credit for Costs Incurred and Paid from 07/01/1998 to 06/30/2006	35% $250,000	10%; $50,000	N/A	N/A	N/A
Percentage and Maximum Credit for Costs Incurred and Paid after 06/30/2006	50%; $500,000	25%; $500,000	25%; $500,000	N/A	50%; $500,000
Percentage and Maximum Credit for Costs Incurred and Paid after 12/31/2007	50%; $500,000	25%; $500,000	25%; $500,000	25%; $500,000	50%; $500,000

 

1More than one Tax Credit Type listed in Table 1 may be claimed in a single VCTC application, if applicable. The $250 application review fee required by Rules 62-788.300, .310, .320, and .330, F.A.C., is per VCTC application, even if the application includes multiple applicants or claims multiple types of tax credits.

2The maximum site rehabilitation tax credit issued per contaminated site shall not exceed $500,000 annually.

3The maximum SRCO bonus tax credit issued per contaminated site shall not exceed $500,000.

4The maximum Affordable Housing bonus tax credit issued per brownfield site, as identified and described in the BSRA, shall not exceed $500,000.

5The maximum Health Care bonus tax credit issued per brownfield site, as identified and described in the BSRA, shall not exceed $500,000.

6The maximum Solid Waste Removal tax credit issued per brownfield site, as identified and described in the BSRA, shall not exceed $500,000.

(4) Subject to the limitations in Table 1, tax credits allowed pursuant to Sections 220.1845 and 376.30781, F.S., are available for eligible costs for site rehabilitation or solid waste removal conducted during the calendar year in which the Voluntary Cleanup Agreement (VCA) or BSRA, as applicable, is executed, even if the site rehabilitation or solid waste removal is conducted prior to the execution of that agreement or to the designation of the brownfield area. A single brownfield site may receive both site rehabilitation and solid waste removal tax credits in accordance with the limitations and requirements of this chapter, provided the costs for any given activity are not claimed for both site rehabilitation and solid waste removal such that the same costs are claimed twice.

(5)(2) This chapter does not apply to the tax return filing process regulated by the Florida Department of Revenue (DOR). A tax credit An applicant seeking a tax credit pursuant to Section 376.30781, F.S., shall apply to the Department of Environmental Protection (DEP) using the application process and form adopted pursuant to this chapter. If deemed eligible for a tax credit, the Department DEP will issue a tax credit certificate to the tax credit applicant.

(6)(3) The tax credit applicant may use these tax credits by attaching the original certificate to its annual tax return filed with the Department of Revenue DOR pursuant to rules promulgated by that department, or the tax credit applicant may transfer the credits pursuant to Sections 199.1055(1)(g) or Section 220.1845(2)(g)(h), F.S., and subsection Rule 62-788.400(9)(6), F.A.C.

(7)(4) The Department DEP will not disburse any funds in connection with this voluntary cleanup tax credit program. Credits will not result in the payment of refunds by the Department of Revenue DOR if total credits exceed the amount of tax owed owned. If the credit is not fully used in any one year because of insufficient tax liability on the part of the tax credit applicant, the unused amount may be carried forward for up to five years. Five years after the date a credit is issued by the Department, that credit expires and may not be used. However, if during the five-year period, the tax credit applicant has used none of the credit and transfers it pursuant to subsection 62-788.400(9), F.A.C., then each transferee has five years after the date of transfer to use its credit.

(5) Pursuant to Section 376.30781, F.S., tax credits are limited to $250,000 per site per year; however, a tax credit applicant may claim an additional 10 percent of the total cleanup costs, not to exceed $50,000, in the final year of cleanup as evidenced by the DEP issuing a “No Further Action” order or a Site Rehabilitation Completion Order for that site.

(8)(6) The Department DEP shall be responsible for allocating the tax credits not to exceed the amount authorized a total of $2 million annually pursuant to Section 376.30781, F.S. If an eligible tax credit applicant does not receive a tax credit allocation due to an exhaustion of the $2-million annual tax credit authorization for that year, its application will remain in the first-come, first-served order in the next year's annual tax credit allocation, if any, based on the date and time of filing the complete original application.

(7) Tax credits pursuant to Section 376.30781, F.S., are available only for site rehabilitation conducted during the tax year in which the tax credit application is submitted.

(9)(8) An owner, operator, or real property owner that receives state-funded site rehabilitation pursuant to under Section 376.3078(3), F.S., for rehabilitation of a drycleaning-solvent-contaminated site is ineligible to receive a tax credit pursuant to Section 376.30781, F.S., for costs incurred and paid by the owner, operator, or real property owner taxpayer in conjunction with the rehabilitation of that site during the same time period that state-administered site rehabilitation was tasked and implemented.

(9) An applicant may only claim a tax credit for site rehabilitation costs incurred and paid on or after July 1, 1998, the effective date of Chapter 98-189, Laws of Florida. The provisions of said law cannot be applied retroactively to site rehabilitation conducted prior to July 1, 1998.

Rulemaking Specific Authority 376.30781 FS. Law Implemented 376.30781 FS. History–New 3-31-99, Amended________.

 

62-788.150 Referenced Guidelines.

Specific references to the guidelines listed below are made within this chapter. The guidelines are not standards as defined in Section 403.803, F.S. Use of these guidelines is not mandatory; the guidelines are included for informational purposes only.

(1) A Guideline for Agreed-Upon Procedures for Attestation Service for the Voluntary Cleanup Tax Credit (VCTC) Program, dated October 2010.

(2) Guidance for Disturbance and Use of Old Closed Landfills or Waste Disposal Areas in Florida, dated May 3, 2001.

Rulemaking Authority 376.30781, 403.707 FS. Law Implemented 376.30781, 403.707 FS. History–New________.

 

62-788.200 Definitions.

All words and phrases defined in Sections 376.301 and 376.79, F.S., shall have the same meaning when used in this chapter unless otherwise set forth in this section or unless the context clearly indicates otherwise. The following words and phrases, when used in this chapter shall, unless the context clearly indicates otherwise, have the following meanings:

(1) “Brownfield area” means a contiguous area of one or more brownfield sites, some of which may not be contaminated, and which has been designated by a local government by resolution. Such areas may include all or portions of community redevelopment areas, enterprise zones, empowerment zones, other such designated economically deprived communities and areas, and United States Environmental Protection Agency-designated brownfield pilot projects. “Applicant” means any person or entity that has incurred and paid costs for voluntary cleanup activity that is integral to site rehabilitation at a site that is eligible for a tax credit and that submits a Voluntary Cleanup Tax Credit Application, DEP Form 62-788.900(1). The term “applicant” is used interchangeably with “taxpayer” except when the applicant is a municipal or county government.

(2) “Brownfield sites” means real property, the a site that is generally abandoned, idled, or under-used industrial and commercial property where expansion or, redevelopment, or reuse of which may be is complicated by actual or perceived environmental contamination.

(3) “Brownfield area” means a contiguous area of one or more brownfield sites, some of which may not be contaminated, and which has been designated by a local government by resolution. Such areas may include all or portions of community redevelopment areas, enterprise zones, empowerment zones, other such designated economically deprived communities and areas, and United States Environmental Protection Agency-designated brownfield pilot projects.

(3)(4) “Brownfield Site Rehabilitation Agreement” (BSRA) means an agreement entered into between the person responsible for brownfield site rehabilitation and the Department DEP or a delegated local program. The BSRA shall at a minimum establish the timeframes, schedules, and milestones for completion of site rehabilitation tasks and submission of technical reports, and other commitments or provisions pursuant to Section 376.80(5), F.S., and Chapter 62-785, F.A.C., the Brownfields Cleanup Criteria Rule.

(4) “Complete” means Form 62-788.900(1), contains all required information and appropriate signatures and the application package includes documentation addressing each of the categories of submittals listed in subsections 62-788.300(3), 62-788.310(3), 62-788.320(3), and 62-788.330(3), F.A.C., as applicable.

(5) through (6) No change.

(7) “Department DEP” means the Florida Department of Environmental Protection.

(8) through (9) No change.

(10) “Integral to site rehabilitation” means work that is necessary to implement the requirements of Chapter 62-782 or 62-785, F.A.C.

(11) “Monetary compensation” means the fees that were charged or the assessments that were levied for the disposal of solid waste at a solid waste disposal area.

(12)(10) “Real Property Owner” means the individual or entity that is vested with ownership, dominion, or legal or rightful title to the real property, or which has a ground lease interest in the real property, or which has a ground lease interest in the real property, on which the contaminated site exists.

(13) “Recovered materials” means metal, paper, glass, plastic, textile, or rubber materials that have known recycling potential, can be feasibly recycled, and have been diverted and source separated or have been removed from the solid waste stream for sale, use, or reuse as raw materials, whether or not the materials require subsequent processing or separation from each other, but the term does not include materials destined for any use that constitutes disposal. Recovered materials as described in this subsection are not solid waste.

(14)(11) No change.

(15)(12) “Site rehabilitation” means the assessment of site contamination and the remediation activities that reduce the levels of contaminants at a site through accepted treatment methods to meet the cleanup target levels established for that site. For purposes of sites subject to the Resource Conservation and Recovery Act, as amended, the term includes removal, decontamination, and corrective action of releases of hazardous substances.

(13) “Taxpayer” means the person or entity that has tax liability for corporate income tax or intangible personal property tax and seeks to obtain a voluntary cleanup tax credit pursuant to this chapter as an “applicant” after incurring costs for voluntary cleanup activity that is integral to site rehabilitation at a site that is eligible for a tax credit.

(16) “Solid waste” means sludge unregulated under the federal Clean Water Act or Clean Air Act, sludge from a waste treatment works, water supply treatment plant, or air pollution control facility, or garbage, rubbish, refuse, special waste, or other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations. Recovered materials as defined in Rule 62-788.200, F.A.C., are not solid waste.

(17) “Solid waste disposal area” means a landfill, dump, or other area where solid waste has been disposed.

(18) “Solid waste removal” means removal of solid waste from the land surface or excavation of solid waste from below the land surface and removal of the solid waste from the brownfield site. The term also includes:

(a) Transportation of solid waste to a licensed or exempt solid waste management facility or to a temporary storage area.

(b) Sorting or screening of solid waste prior to removal from the site.

(c) Deposition of solid waste at a permitted or exempt solid waste management facility, whether the solid waste removed is disposed of or recycled.

(19) “SRCO” means a Site Rehabilitation Completion Order that approves a No Further Action Proposal pursuant to Chapter 62-782 or 62-785, F.A.C. For purposes of this Chapter, the terms “SRCO” and “No Further Action” order have the same meaning.

(20) “Tax Credit Applicant” means any person or entity that submits a Voluntary Cleanup Tax Credit Application, Department Form 62-788.900(1); has entered into a VCA or a BSRA, as applicable; and has incurred and paid costs for:

(a) Voluntary cleanup activity that is integral to site rehabilitation at a site that is eligible for a tax credit pursuant to paragraph 62-788.100(1)(a), or subsection 62-788.100(2), F.A.C.; or

(b) Solid waste removal from the brownfield site that is identified in the BSRA, that is eligible for a tax credit pursuant to paragraph 62-788.100(1)(b), F.A.C.

(21) “VCTC” means Voluntary Cleanup Tax Credit.

(22)(14) “Voluntary Cleanup Agreement” (VCA) means an agreement entered into between the person responsible for drycleaning solvent site rehabilitation and the Department DEP. The VCA shall at a minimum establish the timeframes, schedules, and milestones for completion of site rehabilitation tasks and submission of technical reports, and other commitments or provisions pursuant to Chapter 62-782, F.A.C., the Drycleaning Solvent Cleanup Criteria Rule.

(23)(15) No change.

Rulemaking Specific Authority 376.30781 FS. Law Implemented 376.30781, 403.703 FS. History–New 3-31-99, Amended__________.

 

62-788.300 Site Rehabilitation Voluntary Cleanup Tax Credit Application Process.

(1) A tax credit applicant taxpayer, or multiple tax credit applicants taxpayers working jointly to conduct site rehabilitation at clean up a single contaminated site, may file one tax credit application per contaminated site per year, claiming the percentage and the amount for the “Site Rehabilitation” Tax Credit Type in Table 1, for up to 35 percent of the costs of voluntary cleanup activity that is integral to site rehabilitation, not to exceed $250,000. If multiple tax credit applicants taxpayers are submitting an application, then they must indicate on the application form each tax credit applicant’s taxpayer’s percentage contribution toward to payment of site rehabilitation cleanup costs.

(2) Tax credit applicants that complete site rehabilitation at a contaminated site and receive an SRCO are eligible to receive an additional tax credit, which shall be calculated using the percentage and the amount for the “SRCO Bonus” Tax Credit Type in Table 1, based upon the total site rehabilitation costs that the Department has determined eligible for the VCTC. To receive the SRCO bonus tax credit, the tax credit applicant shall submit a copy of the SRCO with its application form, but should not include previously submitted annual site rehabilitation cost documentation. The tax credit applicant shall claim the SRCO bonus tax credit only after the SRCO is issued. However, in accordance with Section 376.30781, F.S., site rehabilitation tax credit applications shall only be submitted once per site per year. Therefore, in order for the tax credit applicant to claim the SRCO bonus tax credit in the same year as the final year’s annual site rehabilitation costs, the tax credit applicant must submit its claim for both the final year’s site rehabilitation costs and the SRCO bonus tax credit in the same application. If multiple tax credit applicants are submitting an application, then they must indicate on the application form each tax credit applicant’s percentage contribution toward payment of total site rehabilitation costs. The complete application must be received by the Department of Environmental Protection’s Division of Waste Management in Tallahassee by 5.00 p.m. (Eastern Standard Time) on December 31. If December 31 falls on a weekend or federal holiday (i.e., no mail service), then the deadline moves forward to the next business day.

(3) Complete applications for the annual site rehabilitation tax credit must be received by the Department’s Division of Waste Management in Tallahassee by 5:00 p.m. (Eastern Standard Time) on January 31 of the year following the calendar year for which a tax credit applicant is claiming site rehabilitation costs. If January 31 falls on a weekend (i.e., no mail service), then the deadline moves forward to the next business day. All site rehabilitation costs claimed must have been for work conducted between January 1 and December 31 of the year for which the application is being submitted. All payment requests must have been received and all costs must have been paid prior to submittal of the tax credit application, but no later than January 31 of the year after the calendar year for which site rehabilitation costs are being claimed. A tax credit An applicant shall submit an application using Form 62-788.900(1), and must include the following:

(a) A completed and signed affidavit [Section VII. of Department Form 62-788.900(1)] (included as part of the application form) from each tax credit applicant (multiple tax credit applicants submitting a joint application taxpayers must each sign a separate affidavit) certifying that all information contained in the application, including all records of costs incurred and paid and claimed in the tax credit application, are true and correct;

(b) If the application is submitted by the real property owner pursuant to subparagraph Rule 62-788.100(1)(a)2.(b), F.A.C., then the Real Property Owner Affidavit section of the application form [Section II.D. of Department Form 62-788.900(1)] must also be completed and signed by the real property owner stating that it is not, and has never been, the owner or operator of the drycleaning facility where the contamination exists;

(c) Proof that the tax credit applicant has entered into a Voluntary Cleanup Agreement (VCA) with the DEP for a drycleaning-solvent-contaminated site or a Brownfield Site Rehabilitation Agreement (BSRA), as applicable. A copy of the cover page and the signature page of the VCA or BSRA, as applicable, will suffice as proof;

(d) Proof of payment of all applicable deductibles pursuant to Section 376.3078(3)(e)(d), F.S., for eligible drycleaning solvent cleanup program sites. If deductibles were paid prior to submitting a tax credit application, then the tax credit applicant shall include a copy of the canceled check or a receipt for a cashier’s check or money order as proof of payment. If deductibles have not been paid, the tax credit applicant shall fill out the deductible information in Section II.C. Section I of the application form and enclose a cashier’s check or money order for the appropriate amount;

(e) A nonrefundable review fee of $250 per VCTC application, even if the application includes multiple applicants or claims multiple tax credit types. The nonrefundable review fee must be in the form of a cashier’s check or money order made payable to the Water Quality Assurance Trust Fund;

(f) Copies of documents that clearly describe the goods or services and associated costs that are being claimed in the application. Documents that include costs for goods or services that are not being claimed in the application shall be clearly annotated or shall otherwise clearly identify such goods or services and unclaimed costs. Copies of documents for goods or services that are being claimed shall be sufficient to demonstrate a link between the contractual records, the payment requests associated with the contractual records, and the payment records for the claimed portions of the payment requests, as required by each of the following three subparagraphs:

1. Contractual records that are sufficient to describe the scope of work performed that was integral to site rehabilitation during the time period covered by the application. These contractual records shall correlate the costs claimed with both the payment requests and the payment records provided in accordance with subparagraphs 62-788.300(3)(f)2. and 3., F.A.C. If the applicant did not procure the services listed on the contractual records included in the application, then the applicant must explain its relationship to the entity that procured those services. Examples of such contractual records include contracts, documentation of contract negotiations, proposals, work orders, task orders, and change orders; and

2. Payment requests that describe the goods or services provided that were integral to site rehabilitation during the time period covered by the application. These payment requests shall correlate the costs claimed with both the contractual records and payment records provided in accordance with subparagraphs 62-788.300(3)(f)1. and 3., F.A.C. The payment requests should include the name of the payee, a description of the goods or services provided, the period of service during which the goods or services were provided, the date upon which the payment request was issued, and the total amount being requested. Examples of such payment requests are invoices, sales tickets and account statements. Payment requests that include costs for goods or services that are not being claimed in the VCTC application must clearly identify which costs are being claimed; and

3. Payment records involving actual costs incurred that were integral to site rehabilitation during the time period covered by the application, and paid prior to submittal of the tax credit application. These payment records shall correlate the costs claimed with both the contractual records and the payment requests provided in accordance with subparagraphs 62-788.300(3)(f)1. and 2., F.A.C. The payment records shall also demonstrate that the tax credit applicant, which must be the signatory to the VCA or BSRA, paid the costs of site rehabilitation. Examples of such payment records are cancelled checks, bank statements, or affidavits from the payee attesting to the payment received from the applicant Copies of contracts and documentation of contract negotiations, accounts, invoices, sales tickets, or other payment records from purchases, sales, leases, or other transactions involving actual costs incurred and paid for that tax year that were integral to site rehabilitation;

(g) No change.

(h) Proof that the documentation submitted pursuant to paragraph (f) has been reviewed and verified by an independent Certified Public Accountant (CPA) in accordance with standards established by the American Institute of Certified Public Accountants. Specifically, the CPA must attest to the accuracy and validity of the costs incurred and paid by conducting an independent review of the cost information presented by the tax credit applicant. Accuracy and validity of costs incurred and paid shall be determined once the level of effort expended for site rehabilitation activities is certified by an appropriate registered technical professional in each contributing technical discipline pursuant to paragraph (g). The CPA’s report shall also clearly state the total amount claimed in the application and the total amount approved by the CPA. The CPA report shall attest that the costs included in the application form are not duplicated within the application, that all payment requests were received and all costs were paid prior to submittal of the tax credit application, and, for site rehabilitation tax credits, that all costs claimed are for work conducted between January 1 and December 31 of the year for which the application is being submitted. A copy of the CPA’s report shall be submitted with the tax credit application [refer to A Guideline for Agreed-Upon Procedures for Attestation Service for the Voluntary Cleanup Tax Credit (VCTC) Program, dated October 2010, referenced in subsection 62-788.150(1), F.A.C.].

(4) No change.

(5) For purposes of Rule 62-788.300, F.A.C., eligible costs are those the applicant(s) incurred and paid in the applicable timeframe that were “integral to site rehabilitation,” as defined in Rule 62-788.200, F.A.C. Examples of costs that are not considered integral to site rehabilitation include brownfield area designation costs and tax credit application preparation and submittal costs.

Rulemaking Specific Authority 376.30781 FS. Law Implemented 376.30781 FS. History–New 3-31-99, Amended________.

 

62-788.310 Affordable Housing Bonus Voluntary Cleanup Tax Credit Application Process.

(1) A tax credit applicant, or multiple tax credit applicants, claiming the affordable housing bonus tax credit pursuant to paragraph 62-788.100(2)(b), F.A.C., may file a one-time application for this additional credit using Form 62-788.900(1). The affordable housing bonus tax credit amount per brownfield site, as identified and described in the BSRA, shall be calculated using the percentage and the amount for the “Affordable Housing Bonus” Tax Credit Type in Table 1, based upon the total site rehabilitation costs that the Department has determined eligible for the VCTC since July 1, 2006. If multiple tax credit applicants are submitting an application, then they must indicate on the application form each tax credit applicant’s percentage contribution toward payment of total site rehabilitation costs since July 1, 2006.

(2) To receive the affordable housing bonus tax credit, the tax credit applicant must submit with its application form a certification letter from the Florida Housing Finance Corporation, the local housing authority, or other governmental agency that is a party to the use agreement, indicating that the construction of the affordable housing project on the brownfield site has received a certificate of occupancy and that the brownfield site has a properly recorded instrument that limits the use of the property to housing that meets the definition of affordable provided in Section 420.0004, F.S. Applicants shall claim the affordable housing bonus tax credit only after the requirements listed in this subsection are met, and are not required to include site rehabilitation documentation previously submitted.

(3) Complete applications for the affordable housing bonus tax credit must be submitted to the Department’s Division of Waste Management in Tallahassee. A tax credit applicant shall submit an application using Form 62-788.900(1), and must include the following:

(a) A completed and signed affidavit [Section VII. of Department Form 62-788.900(1)] from each tax credit applicant (multiple tax credit applicants submitting a joint application must each sign a separate affidavit) certifying that all information contained in the application is true and correct; and

(b) A certification letter pursuant to subsection 62-788.310(2), F.A.C.; and

(c) A nonrefundable review fee of $250 per VCTC application, even if the application includes multiple applicants or claims multiple tax credit types. The nonrefundable review fee must be in the form of a cashier’s check or money order made payable to the Water Quality Assurance Trust Fund.

Rulemaking Authority 376.30781 FS. Law Implemented 376.30781 FS. History–New________.

 

62-788.320 Health Care Bonus Voluntary Cleanup Tax Credit Application Process.

(1) A tax credit applicant, or multiple tax credit applicants, claiming the health care bonus tax credit pursuant to paragraph 62-788.100(2)(c), F.A.C., may file a one-time application for this additional credit using Form 62-788.900(1). The health care bonus tax credit amount per brownfield site, as identified and described in the BSRA, shall be calculated using the percentage and the amount for the “Health Care Bonus” Tax Credit Type in Table 1, based upon the total site rehabilitation costs that the Department has determined eligible for the VCTC since January 1, 2008. If multiple tax credit applicants are submitting an application, then they must indicate on the application form each tax credit applicant’s percentage contribution toward payment of total site rehabilitation costs since January 1, 2008.

(2) To receive the health care bonus tax credit, the tax credit applicant must complete the applicable portions of the VCTC application form and must provide backup documentation that includes, at a minimum, a legible copy of the license or certificate issued pursuant to Section 408.032, 408.07 or 408.7056, F.S., as applicable, or a certificate of occupancy for the operation of the health care facility or health care provider on the brownfield site. If the minimum backup documentation does not clearly demonstrate how the health care facility or health care provider qualifies for this tax credit, the tax credit applicant should also provide a letter of explanation. Applicants shall claim the health care tax credit only after the requirements listed in this subsection are met, and are not required to include site rehabilitation documentation previously submitted.

(3) Complete applications for the health care bonus tax credit must be submitted to the Department’s Division of Waste Management in Tallahassee. A tax credit applicant shall submit an application using Form 62-788.900(1), and must include the following:

(a) A completed and signed affidavit [Section VII. of Department Form 62-788.900(1)] from each tax credit applicant (multiple tax credit applicants submitting a joint application must each sign a separate affidavit) certifying that all information contained in the application is true and correct; and

(b) The documentation required by subsection 62-788.320(2), F.A.C.; and

(c) A nonrefundable review fee of $250 per VCTC application, even if the application includes multiple applicants or claims multiple tax credit types. The nonrefundable review fee must be in the form of a cashier’s check or money order made payable to the Water Quality Assurance Trust Fund.

Rulemaking Authority 376.30781 FS. Law Implemented 376.30781 FS. History–New________.

 

62-788.330 Solid Waste Removal Voluntary Cleanup Tax Credit Application Process.

(1) A tax credit applicant, or multiple tax credit applicants jointly conducting solid waste removal from a brownfield site, as identified and described in the BSRA, and claiming the solid waste removal tax credit pursuant to paragraph 62-788.100(1)(b), F.A.C., may file a one-time application for this tax credit using Form 62-788.900(1). The solid waste removal tax credit shall be calculated using the percentage and the amount for the “Solid Waste Removal” Tax Credit Type in Table 1, based upon the costs for solid waste removal from the brownfield site, as identified and described in the BSRA, that have been incurred and paid since July 1, 2006. If multiple tax credit applicants are submitting an application, then they must indicate on the application form each tax credit applicant’s percentage contribution toward payment of solid waste removal costs since July 1, 2006. Claims for the solid waste removal tax credit are not subject to a calendar-year limitation or annual filing deadline. Instead, the applicant shall submit the one-time solid waste removal VCTC claim after the applicant determines that the solid waste removal is complete.

(2) To receive the solid waste removal tax credit, the tax credit applicant must submit an affidavit with its application form that states that the applicant has consulted with the appropriate local government official and the appropriate Department District Solid Waste Supervisor and reviewed the available historical records, and to the best of the tax credit applicant’s knowledge, the brownfield site identified and described in the BSRA was never operated as a permitted solid waste disposal area, as defined in Rule 62-788.200, F.A.C., or was never operated for monetary compensation, as defined in Rule 62-788.200, F.A.C. When consulting with the local government official and the Department District Solid Waste Supervisor, the applicant shall inquire whether the landfill or dump site operations involved any type of monetary compensation including private or government fees or assessments.

(3) Complete applications for the solid waste removal tax credit must be submitted to the Department’s Division of Waste Management in Tallahassee. A tax credit applicant shall submit an application using Form 62-788.900(1), and must include the following:

(a) A completed and signed affidavit [Section VII. of Department Form 62-788.900(1).] from each tax credit applicant (multiple tax credit applicants submitting a joint application must each sign a separate affidavit) certifying that all information contained in the application, including all records of costs incurred and paid and claimed in the tax credit application, are true and correct;

(b) Proof that the tax credit applicant has entered into a BSRA. A copy of the cover page and the signature page of the BSRA will suffice as proof;

(c) A nonrefundable review fee of $250 per VCTC application, even if the application includes multiple applicants or claims multiple tax credit types. The nonrefundable review fee must be in the form of a cashier’s check or money order made payable to the Water Quality Assurance Trust Fund;

(d) Copies of documents that clearly describe the goods or services and associated costs that are being claimed in the application. Documents that include costs for goods or services that are not being claimed in the application shall be clearly annotated or shall otherwise clearly identify such goods or services and unclaimed costs. Copies of documents for goods or services that are being claimed shall be sufficient to demonstrate a link between the contractual records, the payment requests associated with the contractual records, and the payment records for the claimed portions of the payment requests, as required by each of the following three subparagraphs:

1. Contractual records that are sufficient to describe the scope of work performed that was related to solid waste removal during the time period covered by the application. These contractual records shall correlate the costs claimed with both the payment requests and the payment records provided in accordance with subparagraphs 62-788.330(3)(d)2. and 3., F.A.C. If the applicant did not procure the services listed on the contractual records included in the application, then the applicant must explain its relationship to the entity that procured those services. Examples of such contractual records include contracts, documentation of contract negotiations, proposals, work orders, task orders, and change orders; and

2. Payment requests that describe the goods or services provided for solid waste removal during the time period covered by the application. These payment requests shall correlate the costs claimed with both the contractual records and payment records provided in accordance with subparagraphs 62-788.330(3)(d)1. and 3., F.A.C. The payment requests should include the name of the payee, a description of the goods or services provided, the period of service during which the goods or services were provided, the date upon which the payment request was issued, and the total amount being requested. Examples of such payment requests are invoices, sales tickets and account statements. Payment requests that include costs for goods or services that are not being claimed in the VCTC application must clearly identify which costs are being claimed; and

3. Payment records involving actual costs incurred and paid for solid waste removal during the time period covered by the application. These payment records shall correlate the costs claimed with both the contractual records and the payment requests provided in accordance with subparagraphs 62-788.330(3)(d)1. and 2., F.A.C. The payment records shall also demonstrate that the tax credit applicant, which must be the signatory to the BSRA, paid the costs for solid waste removal. Examples of such payment records are cancelled checks, bank statements, or affidavits from the payee attesting to the payment received from the applicant;

(e) A certification form stating that the solid waste removal associated with the documentation submitted pursuant to paragraph (d) has been conducted under the observation of, and related technical documents have been signed and sealed by, an appropriate registered technical professional in each contributing technical discipline. The certification form shall be signed and sealed by the appropriate registered technical professional(s) stating that the costs incurred and paid were only for eligible solid waste removal pursuant to subsection 62-788.330(5), F.A.C. However, if the scope of the solid waste removal does not require oversight by a registered technical professional in this state, the registered technical professional certification form is not required as part of the solid waste removal tax credit application; and

(f) Proof that the documentation submitted pursuant to paragraph (d) has been reviewed and verified by an independent Certified Public Accountant (CPA) in accordance with standards established by the American Institute of Certified Public Accountants. Specifically, the CPA must attest to the accuracy and validity of the costs incurred and paid by conducting an independent review of the cost information presented by the tax credit applicant. Accuracy and validity of costs incurred and paid shall be determined once the level of effort expended for solid waste removal, as defined in Rule 62-788.200, F.A.C., and described in subsection 62-788.330(5), F.A.C., is certified by an appropriate registered technical professional in each contributing technical discipline pursuant to paragraph (e), as applicable. The CPA’s report shall also clearly state the total amount claimed in the application and the total amount approved by the CPA, and shall attest that the costs included in the application form are not duplicated within the application. A copy of the CPA’s report shall be submitted with the tax credit application [refer to A Guideline for Agreed-Upon Procedures for Attestation Service for the Voluntary Cleanup Tax Credit (VCTC) Program, dated October 2010, referenced in subsection 62-788.150(1), F.A.C.].

(4) The Certified Public Accountant and appropriate registered technical professional(s) submitting forms as part of a tax credit application shall verify such forms. Verification shall be accomplished as provided in Section 92.525(1)(b), F.S., and subject to the provisions of Section 92.525(3), F.S. This verification requirement is accomplished by completing and signing the appropriate certifications included as part of the application form, Form 62-788.900(1).

(5) For purposes of Rule 62-788.330, F.A.C., eligible costs are those the applicant(s) incurred and paid to perform solid waste removal as defined in Rule 62-788.200, F.A.C. Eligible solid waste removal costs are further described as follows:

(a) Costs for transporting solid waste, even if the solid waste contains recoverable material that could have been, but was not, separated from the solid waste:

1. Off the brownfield site to a licensed or exempt solid waste management facility, or

2. To a temporary storage area meeting the requirements of this subparagraph. The temporary storage area must be approved or exempt as follows:

a. If the temporary storage area is located off the brownfield site, it must operate only in accordance with a permit issued pursuant to Chapter 62-701, F.A.C.;

b. If the temporary storage area is located on the brownfield site, it must operate only in accordance with either a permit issued pursuant to Chapter 62-701, F.A.C., or only in accordance with specific written authorization in the BSRA; or

c. If the temporary storage area is located on the brownfield site and is within the footprint of the solid waste disposal area being removed, it is exempt from the requirement for a solid waste permit in accordance with Section 403.707(1), F.S., provided the Department is notified at least seven days before temporary storage begins and that the temporary storage area meets the following requirements:

(I) The storage area must be operated so that the activity will not cause or contribute to any uncontrolled discharge to the environment of leachate, storm water, or gas;

(II) Any hazardous waste that is generated by this activity must be managed in accordance with Chapter 62-730, F.A.C.; and

(III) If the solid waste being stored includes Class I solid waste as defined in Rule 62-701.200, F.A.C., the storage area must be evaluated as soon as the temporary storage activities cease to ensure that no soil or ground water contamination in excess of applicable standards or criteria remains;

(b) Costs for sorting and screening, provided that such processing occurs on the brownfield site; and

(c) Costs for deposition of the solid waste at a permitted or exempt solid waste management facility, whether the solid waste is disposed of or recycled. However, costs associated with the deposition of recovered materials that were separated from the solid waste stream are not eligible.

(6) The tax credits claimed pursuant to Rule 62-788.330, F.A.C., shall not include costs associated with solid waste that is created at the brownfield site as part of the site’s redevelopment activities, such as land clearing debris or construction and demolition debris, or costs that are not considered necessary to perform solid waste removal, such as brownfield area designation and tax credit application preparation and submittal costs.

(7) Review of the Department’s May 3, 2001 guidance document entitled “Guidance for Disturbance and Use of Old Closed Landfills or Waste Disposal Areas in Florida”, that is referenced in subsection 62-788.150(2), F.A.C., should occur prior to the disturbance of a solid waste disposal area.

(8) If any solid waste that is removed, transported or disposed of pursuant to this section is determined to be a regulated hazardous waste, the waste must be managed in accordance with Chapter 62-730, F.A.C.

Rulemaking Authority 376.30781, 403.707 FS. Law Implemented 376.30781, 403.707 FS. History–New________.

 

62-788.400 Eligibility Determination.

(1) Complete applications, as defined in subsection 62-788.200(4), F.A.C., will secure a position in the first-come, first-served application line for allocation of tax credits and will be reviewed for eligibility, in conjunction with the applicable CPA and technical professional documents, to verify that the work was either integral to site rehabilitation or was for solid waste removal; that the work claimed was performed in the applicable timeframe; and that the costs claimed were properly documented. An application package will be deemed “complete” if Form 62-788.900(1), F.A.C., contains all required information and appropriate signatures and the package includes the list of items in subsections Rule 62-788.300(3), F.A.C. Incomplete applications will not secure a position in the first-come, first-served order for allocation of tax credits, and shall instead be addressed pursuant to subsections (4)-(6) below, as applicable.

(2) Tax credit allocation will be conducted on a first-come, first-served basis based upon the date and time complete applications are received by the Department’s DEP’s Division of Waste Management.

(3) The DEP will review the tax credit application package submitted by each applicant to verify that the applicant has met the qualifying statutory and rule criteria and has submitted all required documentation. Upon verification that the tax credit applicant has met all completeness requirements, the Department DEP shall have 90 days to issue a written decision granting eligibility for tax credits and a tax credit certificate for the eligible costs, in accordance with the percentages and the amounts specified in Table 1 in the amount of 35% of the total costs claimed, subject to the $250,000 limitation, for the tax year in which the tax credit application is submitted based on the report of the Certified Public Accountant and the certifications from the appropriate registered technical professionals. If multiple tax credit applicants are submitting a joint application, each tax credit applicant shall receive a separate tax credit certificate awarding tax credits in the same proportion as their contribution toward payment of site rehabilitation costs or solid waste removal costs, as applicable.

(4) If, after initial submittal of an annual site rehabilitation application, but prior to the January 31 annual application deadline, pursuant to subsection 62-788.300(3), F.A.C., either the Department or the tax credit applicant DEP determines that the application package is incomplete, then the DEP will return it with deficiencies indicated to the applicant by Certified Mail, unless the applicant requests, and is willing to pay for, alternative express mailing. If time permits, the tax credit applicant may correct the deficiencies and re-submit the application by 5:00 p.m. (Eastern Standard Time) on or before the January December 31 annual application deadline. If, after the January 31 annual application deadline, the Department determines that the annual tax credit application is incomplete, the Department shall notify the tax credit applicant in writing via certified mail or by e-mail if an e-mail address is provided and the applicant indicates its preference for e-mail correspondence on the application form. The tax credit applicant shall have 30 days after receiving such notification to correct any deficiencies. Upon timely correction of any deficiencies, as evidenced by the date and time that the now complete tax credit application is received by the Department, the application shall secure a place in the first-come, first-served application line and shall be processed pursuant to subsection (3) above. However, tax credit applicants correcting completeness deficiencies identified by the Department may not otherwise change or supplement their application.

(5) On or before May 1, the Department shall inform each tax credit applicant, subject to the January 31 annual application deadline, of the tax credit applicant’s eligibility status and the amount of any tax credit due. The May 1 deadline for annual site rehabilitation tax credit certificate awards shall not apply to any tax credit application for which the Department has issued a notice of deficiency pursuant to subsection 62-788.400(4), F.A.C. For those eligible, the DEP will issue a tax credit certificate on or before the following March 1. If multiple taxpayers are submitting a joint application, each taxpayer shall receive a separate tax credit certificate awarding tax credits in the same proportion as their contribution to payment of cleanup costs.

(6) Tax credit applicants not subject to the January 31 annual application deadline shall have one opportunity to correct completeness deficiencies identified by the Department in the original submittal. The Department shall notify such tax credit applicants in writing via certified mail or by e-mail if an e-mail address is provided and the applicant indicates its preference for e-mail correspondence on the application form. The tax credit applicant shall have 30 days after receiving such notification to correct any deficiencies. Upon timely correction of any deficiencies, as evidenced by the date and time that the now complete tax credit application is received by the Department, the application shall secure a place in the first-come, first-served application line and shall be processed pursuant to subsection (3) above. However, tax credit applicants correcting completeness deficiencies identified by the Department may not otherwise change or supplement their application.

(7) If the Department notifies a tax credit applicant that any claimed costs are ineligible, those costs shall not be allocated against the annual tax credit authorization, and any disputed costs will not delay the application processing or award for subsequent eligible tax credit applicants in the first-come, first-served application line. However, if the Department subsequently agrees to award tax credits on any amount that was disputed, the Department shall do so based upon the first-come, first-served tax application line determined by the tax credit applicant’s original completeness date and time, provided there is any tax credit authorization available. If a tax credit applicant does not receive an award for the disputed costs due to an exhaustion of the annual tax credit authorization, such subsequent tax credit award shall be included in the same first-come, first-served order in the next year’s annual tax credit allocation, if any, based upon the tax credit applicant’s original completeness date and time.

(8) Original tax credit certificates must either be submitted to the Department of Revenue with the applicant’s tax return to claim the tax credit, or be returned to the Department of Environmental Protection to be transferred pursuant to Section 220.1845(2)(g), F.S., and subsection 62-788.400(9), F.A.C.

(9)(6) Tax credit certificates are transferable pursuant to Section Sections 199.1055(1)(g) or 220.1845(2)(g)(h), F.S. A tax credit certificate holder seeking to transfer the certificate to one or more individuals or entities shall return submit the original certificate to the Department’s DEP’s Division of Waste Management in Tallahassee along with a signed and notarized letter authorizing the transfer. The letter shall state the name, address, telephone number, and FEID or Social Security number, as applicable, of each transferee, and it shall indicate the portion (in whole or in units of no less than 25%) to be transferred. Such transferred credits may not be transferred again although they may succeed to a surviving or acquiring entity after merger or acquisition. A An tax credit applicant cannot transfer its right to apply for a tax credit.; i.e., Tthe application must be filed by the tax credit applicant(s) taxpayer(s) that incurred and paid the site rehabilitation or solid waste removal cleanup costs. Any application filed by a tax credit applicant taxpayer that has not incurred and paid the claimed any cleanup costs, but claims to be a tax credit transferee, will be deemed ineligible rejected.

Rulemaking Specific Authority 376.30781 FS. Law Implemented 376.30781 FS. History–New 3-31-99, Amended__________.

 

62-788.900 Forms.

The following form is adopted and incorporated by reference in this chapter Rule. The form is listed by rule number, which is also the form number, and by the subject title and effective date. Copies of the form may be obtained by writing to the Department of Environmental Protection, Bureau of Waste Cleanup, Mail Station 4505, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400.

(1) Voluntary Cleanup Tax Credit Application, Department DEP Form 62-788.900(1), (effective________ 3-31-99).

Rulemaking Specific Authority 376.30781 FS. Law Implemented 376.30781 FS. History–New 3-31-99, Amended__________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Mary Jean Yon, Director, Division of Waste Management

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Mimi A. Drew, FDEP Secretary

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 10, 2010

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: August 25, 2006