Senate Bill sb1312c1

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    Florida Senate - 2003                           CS for SB 1312

    By the Committee on Natural Resources; and Senator Alexander





    312-2150-03

  1                      A bill to be entitled

  2         An act relating to phosphate mining; amending

  3         s. 211.3103, F.S.; amending the tax on

  4         phosphate rock; providing for the distribution

  5         of tax proceeds; deleting obsolete language;

  6         providing for a sunset; amending s. 378.021,

  7         F.S.; directing the Department of Environmental

  8         Protection to amend the master reclamation

  9         plan; amending s. 378.031, F.S.; providing

10         additional intent concerning reclamation

11         activities; amending s. 378.035, F.S.; amending

12         authorized uses of funds deposited in the

13         Nonmandatory Land Reclamation Trust Fund;

14         providing for bonding authority; amending s.

15         378.036, F.S.; creating a not-for-profit

16         partnership to assist in phosphate reclamation;

17         providing duties of the partnership; providing

18         for the administration of partnership funds;

19         amending s. 378.212; providing authority for a

20         variance for certain reclamation activities;

21         amending s. 403.4154, F.S.; providing criminal

22         penalties for certain violations; prohibiting

23         the distribution of certain company assets

24         under certain circumstances; providing for the

25         declaration of an imminent hazard if certain

26         financial conditions exist; deleting a

27         provision granting certain rebates of phosphate

28         fees; amending s. 403.4155, F.S.; directing

29         that rules be developed for financial

30         assurance, interim stack management, and stack

31         closure; requiring the Southwest Florida Water

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    Florida Senate - 2003                           CS for SB 1312
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 1         Management District to conduct a study;

 2         providing an effective date.

 3  

 4  Be It Enacted by the Legislature of the State of Florida:

 5  

 6         Section 1.  Section 211.3103, Florida Statutes, is

 7  amended to read:

 8         211.3103  Levy of tax on severance of phosphate rock;

 9  rate, basis, and distribution of tax.--

10         (1)  There is hereby levied an excise tax upon every

11  person engaging in the business of severing phosphate rock

12  from the soils or waters of this state for commercial use. The

13  tax shall be collected, administered, and enforced by the

14  department.

15         (2)  Beginning July 1, 2003, the proceeds of all taxes,

16  interest, and penalties imposed under this section shall be

17  paid into the State Treasury as follows:

18         (a)  The first $10 million in revenue collected from

19  the tax during each fiscal year shall be paid to the credit of

20  the Conservation and Recreation Lands Trust Fund.

21         (b)  The remaining revenues collected from the tax

22  during that fiscal year, after the required payment under

23  paragraph (a), shall be paid into the State Treasury as

24  follows:

25         1.  To the credit of the Nonmandatory Land Reclamation

26  Trust Fund, 58 percent.

27         2.  For payment to counties in proportion to the number

28  of tons of phosphate rock produced from a phosphate rock

29  matrix located within such political boundary, 26 percent. The

30  department shall distribute this portion of the proceeds

31  

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    Florida Senate - 2003                           CS for SB 1312
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 1  annually based on production information reported by the

 2  producers on the annual returns for the taxable year.

 3         3.  To the credit of the Phosphate Research Trust Fund

 4  in the Department of Education, Division of Universities, 8

 5  percent.

 6         4.  To the credit of the Minerals Trust Fund, 8

 7  percent.

 8         (c)  Funds distributed pursuant to subparagraph 2.

 9  shall be used for the following purposes:

10         1.  For planning, preparing, and financing of

11  infrastructure projects for job creation and capital

12  investment, especially those related to industrial and

13  commercial sites. Infrastructure investments may include the

14  following public or public-private partnership facilities:

15  stormwater systems; telecommunications facilities; roads or

16  other remedies to transportation impediments; nature-based

17  tourism facilities; or other physical requirements necessary

18  to facilitate trade and economic development activities.

19         2.  For maximizing the use of federal, local, and

20  private resources, including, but not limited to, those

21  available under the Small Cities Community Development Block

22  Grant Program.

23         3.  For projects that improve inadequate infrastructure

24  that has resulted in regulatory action that prohibits economic

25  or community growth, provided that such projects are related

26  to specific job creation or job retention opportunities.

27         (3)  Beginning July 1, 2003, the tax rate shall be the

28  base rate of $1.62 per ton severed.

29         (4)  Beginning July 1, 2004, and annually thereafter,

30  the tax rate shall be the base rate times the base rate

31  

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    Florida Senate - 2003                           CS for SB 1312
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 1  adjustment for the tax year as calculated by the department in

 2  accordance with subsection (6).

 3         (2)  The proceeds of all taxes, interest, and penalties

 4  imposed under this section shall be paid into the State

 5  Treasury through June 30, 1995, as follows:

 6         (a)  The first $10 million in revenue collected from

 7  the tax during each fiscal year shall be paid to the credit of

 8  the Conservation and Recreation Lands Trust Fund.

 9         (b)  The remaining revenues collected from the tax

10  during that fiscal year, after the required payment under

11  paragraph (a), shall be paid into the State Treasury as

12  follows:

13         1.  To the credit of the General Revenue Fund of the

14  state, 60 percent. However, from this amount the amounts of

15  $7.4 million, $8.2 million, and $8.1 million, respectively,

16  shall be transferred to the Nonmandatory Land Reclamation

17  Trust Fund on January 1, 1993, January 1, 1994, and January 1,

18  1995.

19         2.  To the credit of the Nonmandatory Land Reclamation

20  Trust Fund which is established for reclamation and

21  acquisition of unreclaimed lands disturbed by phosphate mining

22  and not subject to mandatory reclamation, 20 percent.

23         3.  To the credit of the Phosphate Research Trust Fund

24  in the Department of Education, Division of Universities, to

25  carry out the purposes set forth in s. 378.101, 10 percent.

26         4.  For payment to counties in proportion to the number

27  of tons of phosphate rock produced from a phosphate rock

28  matrix located within such political boundary, 10 percent. The

29  department shall distribute this portion of the proceeds

30  annually based on production information reported by producers

31  on the annual returns for the taxable year. Any such proceeds

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    Florida Senate - 2003                           CS for SB 1312
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 1  received by a county shall be used only for phosphate-related

 2  expenses.

 3         (3)  Beginning July 1, 1995, the proceeds of all taxes,

 4  interest, and penalties imposed under this section shall be

 5  paid into the State Treasury as follows:

 6         (a)  The first $10 million in revenue collected from

 7  the tax during each fiscal year shall be paid to the credit of

 8  the Conservation and Recreation Lands Trust Fund.

 9         (b)  The remaining revenues collected from the tax

10  during that fiscal year, after the required payment under

11  paragraph (a), shall be paid into the State Treasury as

12  follows:

13         1.  To the credit of the General Revenue Fund of the

14  state, 58 percent.

15         2.  To the credit of the Nonmandatory Land Reclamation

16  Trust Fund for reclamation and acquisition of unreclaimed

17  lands disturbed by phosphate mining and not subject to

18  mandatory reclamation, 14.5 percent.

19         3.  To the credit of the Phosphate Research Trust Fund

20  in the Department of Education, Division of Universities, to

21  carry out the purposes set forth in s. 378.101, 10 percent.

22         4.  For payment to counties in proportion to the number

23  of tons of phosphate rock produced from a phosphate rock

24  matrix located within such political boundary, 10 percent. The

25  department shall distribute this portion of the proceeds

26  annually based on production information reported by producers

27  on the annual returns for the taxable year. Any such proceeds

28  received by a county shall be used only for phosphate-related

29  expenses.

30         5.  To the credit of the Minerals Trust Fund, 7.5

31  percent.

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    Florida Senate - 2003                           CS for SB 1312
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 1         (4)  If the base rate is reduced pursuant to paragraph

 2  (5)(c), then the proceeds of the tax shall be paid into the

 3  State Treasury as follows:

 4         (a)  The first $10 million in revenue collected from

 5  the tax during each fiscal year shall be paid to the credit of

 6  the Conservation and Recreation Lands Trust Fund.

 7         (b)  The remaining revenues collected from the tax

 8  during that fiscal year, after the required payment under

 9  paragraph (a), shall be paid into the State Treasury as

10  follows:

11         1.  To the credit of the General Revenue Fund of the

12  state, 55.15 percent.

13         2.  To the credit of the Phosphate Research Trust Fund

14  in the Department of Education, Division of Universities, 12.5

15  percent.

16         3.  For payment to counties in proportion to the number

17  of tons of phosphate rock produced from a phosphate rock

18  matrix located within such political boundary, 18 percent. The

19  department shall distribute this portion of the proceeds

20  annually based on production information reported by producers

21  on the annual returns for the taxable year. Any such proceeds

22  received by a county shall be used only for phosphate-related

23  expenses.

24         4.  To the credit of the Minerals Trust Fund, 14.35

25  percent.

26         (5)  The excise tax levied by this section shall apply

27  to the total production of the producer during the taxable

28  year, measured on the basis of bone-dry tons produced at the

29  point of severance., subject to the following rates:

30         (a)  Beginning July 1, 1987, to December 31, 1987, the

31  tax rate shall be $1.79 per ton severed.

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    Florida Senate - 2003                           CS for SB 1312
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 1         (b)  For 1988, the tax rate shall be the base rate of

 2  $1.35 per ton severed.

 3         (c)  For 1989 and subsequent years, the tax rate shall

 4  be the base rate times the base rate adjustment for the tax

 5  year as calculated by the department in accordance with

 6  subsection (6). However, for 2000 and subsequent taxable

 7  years, the base rate shall be reduced by 20 percent, unless

 8  additional funding of the Nonmandatory Land Reclamation Trust

 9  Fund is approved by law.

10         (6)(a)  On or before March 30, 2004 1989, and annually

11  thereafter, the department shall calculate the base rate

12  adjustment, if any, for phosphate rock based on the change in

13  the unadjusted annual producer price index for the prior

14  calendar year in relation to the unadjusted annual producer

15  price index for calendar year 1999 1987.

16         (b)  For the purposes of determining the base rate

17  adjustment for any year, the base rate adjustment shall be a

18  fraction, the numerator of which is the unadjusted annual

19  producer price index for the prior calendar year and the

20  denominator of which is the unadjusted annual producer price

21  index for calendar year 1999 1987.

22         (c)  The department shall provide the base rate, the

23  base rate adjustment, and the resulting tax rate to affected

24  producers by written notice on or before April 15 of the

25  current year.

26         (d)  If the producer price index for phosphate rock

27  primary products is substantially revised, the department

28  shall make appropriate adjustment in the method used to

29  compute the base rate adjustment under this subsection which

30  will produce results reasonably consistent with the result

31  which would have been obtained if the producer price index for

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    Florida Senate - 2003                           CS for SB 1312
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 1  phosphate rock primary products had not been revised. However,

 2  the tax rate shall not be less than $1.56 per ton severed.

 3         (e)  In the event the producer price index for

 4  phosphate rock primary products is discontinued, then a

 5  comparable index shall be selected by the department and

 6  adopted by rule.

 7         (7)  The excise tax levied on the severance of

 8  phosphate rock shall be in addition to any ad valorem taxes

 9  levied upon the separately assessed mineral interest in the

10  real property upon which the site of severance is located, or

11  any other tax, permit, or license fee imposed by the state or

12  its political subdivisions.

13         (8)  The tax levied by this section shall be collected

14  in the manner prescribed in s. 211.33.

15         (9)  The provisions of subsection (2) shall expire July

16  1, 2006.

17         Section 2.  Section 378.021, Florida Statutes, is

18  amended to read:

19         378.021  Master reclamation plan.--

20         (1)  The Department of Environmental Protection Natural

21  Resources shall amend the adopt by rule, as expeditiously as

22  possible upon receipt of the report of the Land Use Advisory

23  Committee, a master reclamation plan that provides to provide

24  guidelines for the reclamation of lands mined or disturbed by

25  the severance of phosphate rock prior to July 1, 1975, which

26  lands are not subject to mandatory reclamation under part II

27  of chapter 211.  In amending the developing said master

28  reclamation plan, the Department of Environmental Protection

29  Natural Resources shall continue to conduct an onsite

30  evaluation of all lands mined or disturbed by the severance of

31  phosphate rock prior to July 1, 1975, which lands are not

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    Florida Senate - 2003                           CS for SB 1312
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 1  subject to mandatory reclamation under part II of chapter 211,

 2  and shall consider the report and plan prepared by the Land

 3  Use Advisory Committee under s. 378.011 and submitted to the

 4  former Department of Natural Resources for adoption by rule on

 5  or before July 1, 1979.  The master reclamation plan when

 6  amended adopted by the Department of Environmental Protection

 7  Natural Resources shall be consistent with local government

 8  plans prepared pursuant to the Local Government Comprehensive

 9  Planning and Land Development Regulation Act.

10         (2)  The amended master reclamation plan shall identify

11  which of the lands mined or disturbed by the severance of

12  phosphate rock prior to July 1, 1975, meet the following

13  criteria:

14         (a)  The quality of surface waters leaving the land

15  does not meet applicable water quality standards, if any; or,

16  health and safety hazards exist on the land; or, the soil has

17  not stabilized and revegetated; or, the remaining natural

18  resources associated with the land are not being conserved;

19         (b)  The environmental or economic utility or aesthetic

20  value of the land would not naturally return within a

21  reasonable time, and reclamation would substantially promote

22  the environmental or economic utility or the aesthetic value

23  of the land; and

24         (c)  The reclamation of the land is in the public

25  interest because the reclamation, when combined with other

26  reclamation under the master plan, would provide a substantial

27  regional benefit; and.

28         (d)  The reclamation of the land is in the public

29  interest because the reclamation, when combined with other

30  reclamation under the master plan, will provide significant

31  benefits to surface water bodies supplying water for

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    Florida Senate - 2003                           CS for SB 1312
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 1  environmental and public purposes in those areas of the state

 2  where phosphate mining has been permitted.

 3         (3)  Lands evaluated by the department under subsection

 4  (1) which meet the criteria set forth in subsection (2) shall

 5  be identified with specificity in the master reclamation plan.

 6  Lands evaluated by the department under subsection (1) which

 7  do not meet the criteria set forth in subsection (2) shall

 8  also be identified with specificity in the master reclamation

 9  plan as lands which are acceptable in their present form.

10         (4)  Upon adoption of the amendments to the master

11  reclamation plan as a rule, such plan shall provide the

12  guidelines for approval of reclamation programs for lands

13  covered in the plan, recognizing that reclamation of such

14  lands is not mandatory, but that any payment of costs expended

15  for reclamation paid under s. 378.031 shall be contingent upon

16  conformity with the guidelines set forth in the master

17  reclamation plan.

18         Section 3.  Section 378.031, Florida Statutes, is

19  amended to read:

20         378.031  Reclamation or acquisition of nonmandatory

21  lands; legislative intent.--It is the intent of the

22  Legislature to provide an economic incentive to encourage the

23  reclamation of the maximum number of acres of eligible

24  nonmandatory lands in the most timely and efficient manner or

25  the donation or purchase of nonmandatory lands, especially

26  those lands for which reclamation activities will result in

27  significant improvements to surface water bodies of regional

28  importance in those areas of the state where phosphate mining

29  has been permitted.  The Legislature recognizes that certain

30  lands mined or disturbed prior to July 1, 1975, have been

31  naturally reclaimed.

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 1         Section 4.  Subsections (5), (8), and (9) of section

 2  378.035, Florida Statutes, are amended, and subsection (10) is

 3  added to that section, to read:

 4         378.035  Department responsibilities and duties with

 5  respect to Nonmandatory Land Reclamation Trust Fund.--

 6         (5)  On July 1, 2001, $50 million of the unencumbered

 7  Funds within the Nonmandatory Land Reclamation Trust Fund are

 8  also authorized reserved for use by the department for the

 9  following purposes:.

10         (a)  These reserved moneys are to be used To reclaim

11  lands disturbed by the severance of phosphate rock on or after

12  July 1, 1975, in the event that a mining company ceases mining

13  and the associated reclamation prior to all lands disturbed by

14  the operation being reclaimed. Moneys expended by the

15  department to accomplish reclamation pursuant to this

16  subsection shall become a lien upon the property enforceable

17  pursuant to chapter 85. The moneys received as a result of a

18  lien foreclosure or as repayment shall be deposited into the

19  trust fund. In the event the money received as a result of

20  lien foreclosure or repayment is less than the amount expended

21  for reclamation, the department shall use all means available

22  to recover, for the use of the fund, the difference from the

23  affected parties. Paragraph (3)(b) shall apply to lands

24  acquired as a result of a lien foreclosure.

25         (b)  The department may also expend funds from the $50

26  million reserve fund For the abatement of an imminent hazard

27  as provided by s. 403.4154(4)(3) and for the purpose of

28  closing an abandoned phosphogypsum stack system and carrying

29  out postclosure care as provided by s. 403.4154(6)(5). Fees

30  deposited in the Nonmandatory Land Reclamation Trust Fund

31  pursuant to s. 403.4154(4) may be used for the purposes

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 1  authorized in this paragraph. However, such fees may only be

 2  used at a stack system if closure or imminent-hazard-abatement

 3  activities initially commence on or after July 1, 2002.

 4         (8)  The department may not accept any applications for

 5  nonmandatory land reclamation programs after July 1, 2004

 6  November 1, 2008.

 7         (9)  The Bureau of Mine Reclamation shall review the

 8  sufficiency of the Nonmandatory Land Reclamation Trust Fund to

 9  support the stated objectives and report to the secretary

10  annually with recommendations as appropriate. The report

11  submittal for calendar year 2008 shall specifically address

12  the effect of providing a future refund of fees paid pursuant

13  to s. 403.4154(4) following certification of stack closure

14  pursuant to department rules, and the report shall be

15  submitted to the Governor, the President of the Senate, and

16  the Speaker of the House of Representatives on or before March

17  1, 2009.

18         (10)  The department may, upon its determination,

19  petition the State Board of Administration for the issuance of

20  bonds to carry out its responsibilities pursuant to paragraph

21  (5)(b). The total amount of bonds issued pursuant to this

22  authority may not exceed $25 million. Revenues credited to the

23  Nonmandatory Land Reclamation Trust Fund shall be used to fund

24  any issuance or debt obligations.

25         Section 5.  Subsection (6) is added to section 378.036,

26  Florida Statutes, to read:

27         378.036  Land acquisitions financed by Nonmandatory

28  Land Reclamation Trust Fund moneys.--

29         (6)  By January 1, 2004, or within 6 months from the

30  date funds become available from the Legislature, whichever is

31  later, the Florida Wildlife Federation, Audubon Florida, and

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 1  Rails-to-Trails Conservancy in partnership with the Florida

 2  Phosphate Council are authorized to form a nonprofit

 3  corporation pursuant to chapter 617 for the purpose of

 4  implementing the provisions of this section by creating plans

 5  and assisting in the development of recreational opportunities

 6  on lands mined for phosphate in the state. The first plans

 7  shall concentrate on recreational activities in Hardee and

 8  Hamilton Counties that will assist them in rural economic

 9  development. The board of directors of the corporation shall

10  be composed of three members, one designated by the Florida

11  Phosphate Council, one as the designee of the Florida Wildlife

12  Federation, Audubon Florida, and Rails-to-Trails Conservancy,

13  and the third chosen by the other two designees. The business

14  of the corporation shall be conducted by the board of

15  directors or a chief executive officer as the board shall see

16  fit in accordance with the provisions of its articles of

17  incorporation and applicable law. The activities of the

18  corporation shall be coordinated with all landowners who have

19  voluntarily agreed to participate in the process as well as

20  any local government where such lands are recorded. An annual

21  report of the activities of the corporation, including a

22  certified audit, shall be presented to the Secretary of

23  Environmental Protection or his or her designee by October 31

24  of each year following incorporation.  The corporation shall

25  dissolve on January 1, 2009, unless dissolved previously by

26  action of its board of directors or extended by the

27  Legislature. Upon dissolution, any moneys remaining in the

28  accounts of the corporation that are unobligated shall be

29  returned to the funds from which they were appropriated in

30  proportion to the amount contributed. All tangible assets of

31  the corporation at dissolution which were acquired using state

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 1  funding shall become the property of the Department of

 2  Environmental Protection.

 3         Section 6.  Paragraph (g) is added to subsection (1) of

 4  section 378.212, Florida Statutes, to read:

 5         378.212  Variances.--

 6         (1)  Upon application, the secretary may grant a

 7  variance from the provisions of this part or the rules adopted

 8  pursuant thereto. Variances and renewals thereof may be

 9  granted for any one of the following reasons:

10         (g)  To accommodate reclamation that provides for

11  stormwater management, water supply development, water

12  resource development, wildlife habitat, or recreation

13  consistent with the applicable regional water supply plan

14  approved pursuant to s. 373.0361, provided that regional water

15  resources are not adversely affected.

16         Section 7.  Subsections (2), (3), and (4) of section

17  403.4154, Florida Statutes, are amended to read:

18         403.4154  Phosphogypsum management program.--

19         (2)  REGULATORY PROGRAM.--

20         (a)  It is the intent of the Legislature that the

21  department develop a program for the sound and effective

22  regulation of phosphogypsum stack systems in the state.

23         (b)  The department shall adopt rules that prescribe

24  acceptable construction designs for new or expanded

25  phosphogypsum stack systems and that prescribe permitting

26  criteria for operation, closure criteria, long-term-care

27  requirements, and closure financial responsibility

28  requirements for phosphogypsum stack systems.

29         (c)  Whoever willfully, knowingly, or with reckless

30  indifference or gross carelessness misstates or misrepresents

31  the financial condition or closure costs of an entity engaged

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 1  in managing, owning, or operating a phosphogypsum stack or

 2  stack system commits a felony of the third degree, punishable

 3  as provided in s. 775.082 or s. 775.083 by a fine of not more

 4  than $50,000 and by imprisonment for 5 years for each offense.

 5         (d)  Corporate officers, owners, and operators of a

 6  phosphogypsum stack or stack system are prohibited from

 7  issuing dividends or making other distributions from retained

 8  earnings in the event of a failure of the owner or operator to

 9  meet the financial responsibility tests for phosphogypsum

10  stack operations. Whoever willfully, knowingly, or with

11  reckless indifference or gross carelessness, violates this

12  prohibition commits a felony of the third degree, punishable

13  as provided in s. 775.082 or s. 775.083 by a fine of not more

14  than $50,000 and by imprisonment for 5 years for each offense.

15         (3)  ABATEMENT OF IMMINENT HAZARD.--

16         (a)  The department may take action to abate or

17  substantially reduce any imminent hazard caused by the

18  physical condition, maintenance, operation, or closure of a

19  phosphogypsum stack system.

20         (b)  An imminent hazard exists if the physical

21  condition, maintenance, operation, or closure of a

22  phosphogypsum stack system creates an immediate and

23  substantial danger to human health, safety, or welfare or to

24  the environment. A phosphogypsum stack system is presumed not

25  to cause an imminent hazard if the physical condition and

26  operation of the system are in compliance with all applicable

27  department rules.

28         (c)  The failure of an owner or operator of a

29  phosphogypsum stack system to comply with department rules

30  requiring demonstration of closure financial responsibility

31  may be considered by the department as evidence that a

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 1  phosphogypsum stack poses an imminent hazard for purposes of

 2  initiating actions authorized by paragraph (d).

 3         (d)(c)  If the department determines that the failure

 4  of an owner or operator to comply with department rules

 5  requiring demonstration of financial responsibility or that

 6  the physical condition, maintenance, operation, or closure of

 7  a phosphogypsum stack system poses an imminent hazard, the

 8  department shall request access to the property on which such

 9  stack system is located from the owner or operator of the

10  stack system for the purposes of taking action to abate or

11  substantially reduce the imminent hazard. If the department,

12  after reasonable effort, is unable to timely obtain the

13  necessary access to abate or substantially reduce the imminent

14  hazard, the department may institute action in its own name,

15  using the procedures and remedies of s. 403.121 or s. 403.131,

16  to abate or substantially reduce an imminent hazard. Whenever

17  serious harm to human health, safety, or welfare, to the

18  environment, or to private or public property may occur prior

19  to completion of an administrative hearing or other formal

20  proceeding that might be initiated to abate the risk of

21  serious harm, the department may obtain from the court, ex

22  parte, an injunction without paying filing and service fees

23  prior to the filing and service of process.

24         (e)(d)  To abate or substantially reduce an imminent

25  hazard, the department may take any appropriate action,

26  including, but not limited to, using employees of the

27  department or contracting with other state or federal

28  agencies, with private third-party contractors, or with the

29  owner or operator of the stack system, or financing,

30  compensating, or funding a receiver, trustee, or owner of the

31  stack system, to perform all or part of the work.

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 1         (f)(e)  The department shall recover from the owner or

 2  operator of the phosphogypsum stack system to the use of the

 3  Nonmandatory Land Reclamation Trust Fund all moneys expended

 4  from the fund, including funds expended prior to the effective

 5  date of this section, to abate an imminent hazard posed by the

 6  phosphogypsum stack system plus a penalty equal to an amount

 7  calculated at 30 percent of such funds expended. This penalty

 8  shall be imposed annually, and prorated from the date of

 9  payment from the fund until the expended funds and the penalty

10  are repaid. If the department prevails in any action to

11  recover funds pursuant to this subsection, it may recover

12  reasonable attorney's fees and costs incurred. Phosphogypsum

13  may not be deposited on a stack until all moneys expended from

14  the fund in connection with the stack have been repaid, unless

15  the department determines that such placement is necessary to

16  abate or avoid an imminent hazard or unless otherwise

17  authorized by the department.

18         (g)(f)  The department may impose a lien on the real

19  property on which the phosphogypsum stack system that poses an

20  imminent hazard is located and on the real property underlying

21  and other assets located at associated phosphate fertilizer

22  production facilities equal in amount to the moneys expended

23  from the Nonmandatory Land Reclamation Trust Fund pursuant to

24  paragraph (d), including attorney's fees and court costs. The

25  owner of any property on which such a lien is imposed is

26  entitled to a release of the lien upon payment to the

27  department of the lien amount. The lien imposed by this

28  section does not take priority over any other prior perfected

29  lien on the real property, personal property, or other assets

30  referenced in this paragraph, including, but not limited to,

31  the associated phosphate rock mine and reserves.

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 1         (4)  REGISTRATION FEES.--

 2         (a)1.  The owner or operator of each existing

 3  phosphogypsum stack who has not provided a performance bond,

 4  letter of credit, trust fund agreement, or closure insurance

 5  to demonstrate financial responsibility for closure and

 6  long-term care shall pay to the department a fee as set forth

 7  in this paragraph. All fees shall be deposited in the

 8  Nonmandatory Land Reclamation Trust Fund.

 9         2.  The amount of the fee for each existing stack shall

10  be $75,000 for each of the five 12-month periods following

11  July 1, 2001.

12         3.  The amount of the fee for any new stack for which

13  the owner or operator has not provided a performance bond,

14  letter of credit, trust fund agreement, or closure insurance

15  to demonstrate financial responsibility for closure and

16  long-term care shall be $75,000 for each of the five 12-month

17  periods following the issuance by the department of a

18  construction permit for that stack.

19         4.  Within 30 days after a phosphogypsum stack has been

20  certified as closed pursuant to rule 62-673.620(2) and (3),

21  Florida Administrative Code, the department shall refund to

22  the owner of the closed phosphogypsum stack an amount from the

23  Nonmandatory Land Reclamation Trust Fund equal to the total

24  amount of fee payments made by the owner or operator to the

25  fund in connection with the closed phosphogypsum stack, except

26  that any refund becoming payable prior to July 1, 2009, shall

27  be paid to the owner on or after that date.

28         (b)  On or before August 1 of each year, the department

29  shall provide written notice to each owner of an existing

30  stack of any fee payable for the 12-month period commencing on

31  

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    Florida Senate - 2003                           CS for SB 1312
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 1  the immediately preceding July 1. Each owner shall remit the

 2  fee to the department on or before August 31 of each year.

 3         Section 8.  Subsection (2) of section 403.4155, Florida

 4  Statutes, is amended, and subsections (3), (4), (5), and (6)

 5  are added to that section, to read:

 6         403.4155  Phosphogypsum management; rulemaking

 7  authority.--

 8         (2)  The department shall revise chapter 62-673,

 9  Florida Administrative Code, to require the owner or operator

10  of a phosphogypsum stack system to demonstrate financial

11  responsibility for the costs of terminal closure of the

12  phosphogypsum stack system in a manner that protects the

13  environment and the public health and safety. At a minimum,

14  such rules shall include or address the following:

15         (a)  Requirements that the cost of closure and

16  long-term care be re-estimated by a professional engineer and

17  adjusted for inflation on an annual basis and, at a minimum,

18  such cost data shall include:  the cost of treatment and

19  appropriate disposal of all process wastewater, both ponded

20  and pore, in the system; all construction work necessary to

21  properly close the system in accordance with department rules;

22  and all costs associated with long-term care of the closed

23  system, including maintenance and monitoring, in accordance

24  with department rules.

25         (b)  Financial statements and financial data be

26  prepared according to United States generally accepted

27  accounting principles and submitted quarterly.

28         (c)  That audited financial statements be provided

29  annually, along with the statement of financial assurance.

30         (d)  A requirement that any owner or operator report

31  immediately if it is in default on any of its obligations.

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 1         (e)  Include an option for the owner or operator to

 2  satisfy the financial responsibility requirements with a

 3  corporate guarantee for an amount that would assure adequate

 4  coverage of the closure and postclosure costs.

 5         (3)  By October 1, 2003, the department shall initiate

 6  rulemaking to require that phosphogypsum stack system

 7  operation plans required by department rule be amended by

 8  adding an interim stack system management (ISSM) plan that

 9  provides written instructions for the operation of the system

10  assuming that no phosphoric acid would be produced at the

11  facility for a 2-year period. The initial ISSM plan shall be

12  completed as of the first July 1 following the adoption of the

13  rule required by this section. The ISSM plan shall include:

14         (a)  A detailed description of process water management

15  procedures that will be implemented to ensure that the stack

16  system operates in accordance with all applicable department

17  permit conditions and rules. The procedures shall address the

18  actual process water levels present at the facility 30 days

19  prior to the completion of the plan and shall assume that the

20  facility will receive annual average rainfall during the

21  2-year planning period.

22         (b)  A detailed description of the procedures to be

23  followed for the daily operation and routine maintenance of

24  the stack system, including required environmental sampling

25  and analyses, as well as for any maintenance or repairs

26  recommended following annual inspections of the system.

27         (c)  Identification of all machinery, equipment, and

28  materials necessary to implement the plan.

29         (d)  Identification of the sources of power or fuel

30  necessary to implement the plan.

31  

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    Florida Senate - 2003                           CS for SB 1312
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 1         (e)  Identification of the personnel necessary to

 2  implement the plan.

 3         (4)  The ISSM plan shall be updated annually taking

 4  into account process water levels as of June 1 and the

 5  then-existing stack system configuration.

 6         (5)  The foregoing requirement for the preparation and

 7  updating of the ISSM plan is applicable to all phosphogypsum

 8  stack systems except those which have been closed, which are

 9  undergoing closure, or for which an application for a closure

10  permit has been submitted pursuant to department rule.

11         (6)  By October 1, 2003, the department shall initiate

12  rulemaking to require that general plans and schedules for the

13  closure of phosphogypsum stack systems include:

14         (a)  A description of the physical configuration of the

15  phosphogypsum stack system anticipated at the time of closure

16  at the end of useful life of the system.

17         (b)  A site-specific water management plan describing

18  the procedure to be employed at the end of the useful life of

19  the system to manage the anticipated volume of process water

20  in an environmentally sound manner.

21         (c)  An estimate of the cost of management of the

22  anticipated volume of process water in accordance with the

23  site-specific water management plan.

24         (d)  A description of all construction work necessary

25  to properly close the system in accordance with department

26  rules.

27         (e)  An estimate of all costs associated with long-term

28  care of the closed system, including maintenance and

29  monitoring, in accordance with department rules.

30         (2)  By January 31, 2002, the department shall review

31  chapter 62-673, Florida Administrative Code, to determine the

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    Florida Senate - 2003                           CS for SB 1312
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 1  adequacy of the financial responsibility provisions contained

 2  in the rules and shall take any measures necessary to ensure

 3  that the rules provide sound and effective provisions to

 4  minimize risk to the environment and to public health and

 5  safety from the business failure of a phosphogypsum stack

 6  system.

 7         Section 9.  The Southwest Florida Water Management

 8  District shall perform a study of the cumulative impacts of

 9  land use and land form changes in the Peace River Basin,

10  comparing predevelopment conditions to conditions reasonably

11  expected to exist in 2050. The study shall evaluate surface

12  water and groundwater resource changes. The study shall

13  include an evaluation of the general effectiveness of existing

14  federal, state, and local regulatory programs in mitigating or

15  compensating for the impacts of land use and land form

16  changes, identification of any deficiencies in the information

17  needed for evaluation of cumulative impacts, and

18  recommendations as appropriate for improvements in regulatory

19  programs needed for minimization of overall cumulative

20  impacts. The district is authorized to form a technical

21  advisory committee composed of representatives from the

22  following interests located in the Peace River

23  Basin:  industry, mining, agriculture, development,

24  environmental, and local government. The technical advisory

25  committee shall recommend a plan of study to the district and

26  shall review interim findings and final recommendations.

27         Section 10.  This act shall take effect upon becoming a

28  law.

29  

30  

31  

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    Florida Senate - 2003                           CS for SB 1312
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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 1312

 3                                 

 4  The committee substitute provides for a series of changes to
    laws governing phosphate mining operations. Severance tax
 5  formulas and distributions are changed. Reclamation
    requirements are amended to allow for the granting of certain
 6  variances and the changing of a deadline for application
    submittals. Financial assurance requirements are specified and
 7  criminal penalties provided for those who knowingly violate
    them. Rulemaking authority is clarified as it relates to
 8  interim stack management and stack closure. Finally, a study
    is created to examine certain cumulative impacts in the Peace
 9  River Basin.

10  

11  

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