CODING: Words stricken are deletions; words underlined are additions.
HOUSE AMENDMENT
Bill No. CS for CS for SB 1306 & others, 1st Eng.
Amendment No. 7s (for drafter's use only)
CHAMBER ACTION
Senate House
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5 ORIGINAL STAMP BELOW
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11 Representative(s) Constantine offered the following:
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13 Amendment
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16 remove from the bill: all of said lines
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18 and insert in lieu thereof:
19 Section 10. The introductory paragraph and paragraph
20 (k) of subsection (12) and paragraph (g) of subsection (13) of
21 section 376.3071, Florida Statutes, 1996 Supplement, are
22 amended to read:
23 376.3071 Inland Protection Trust Fund; creation;
24 purposes; funding.--
25 (12) REIMBURSEMENT FOR CLEANUP EXPENSES.--Except as
26 provided in s. 2(3), chapter 95-2, Laws of Florida, this
27 subsection shall not apply to any site rehabilitation program
28 task initiated after March 29, 1995. Effective August 1, 1996,
29 no further site rehabilitation work on sites eligible for
30 state-funded cleanup from the Inland Protection Trust Fund
31 shall be eligible for reimbursement pursuant to this
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HOUSE AMENDMENT
Bill No. CS for CS for SB 1306 & others, 1st Eng.
Amendment No. 7s (for drafter's use only)
1 subsection. The person responsible for conducting site
2 rehabilitation may seek reimbursement for site rehabilitation
3 program task work conducted after March 28, 1995, in
4 accordance with s. 2(2) and (3), chapter 95-2, Laws of
5 Florida, regardless of whether the site rehabilitation program
6 task is completed. A site rehabilitation program task shall
7 be considered to be initiated when actual onsite work or
8 engineering design, pursuant to chapter 62-770, Florida
9 Administrative Code, which is integral to performing a site
10 rehabilitation program task has begun and shall not include
11 contract negotiation and execution, site research, or project
12 planning. All reimbursement applications pursuant to this
13 subsection must be submitted to the department by January 3,
14 1997 December 31, 1996. The department shall not accept any
15 applications for reimbursement or pay any claims on
16 applications for reimbursement received after that date;
17 provided, however if an application filed on or prior to
18 January 3, 1997 was returned by the department on the grounds
19 of untimely filing, it shall be refiled within 30 days after
20 the effective date of this act in order to be processed.
21 (k) Audits.--
22 1. The department is authorized to perform financial
23 and technical audits in order to certify site restoration
24 costs and ensure compliance with this chapter. The department
25 shall seek recovery of any overpayments based on the findings
26 of these audits. The department must commence any audit within
27 5 years after the date of reimbursement, except in cases where
28 the department alleges specific facts indicating fraud.
29 2. Upon determination by the department that any
30 portion of costs which have been reimbursed are disallowed,
31 the department shall give written notice to the applicant
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HOUSE AMENDMENT
Bill No. CS for CS for SB 1306 & others, 1st Eng.
Amendment No. 7s (for drafter's use only)
1 setting forth with specificity the allegations of fact which
2 justify the department's proposed action and ordering
3 repayment of disallowed costs within 60 days of notification
4 of the applicant.
5 3. In the event the applicant does not make payment to
6 the department within 60 days of receipt of such notice, the
7 department shall seek recovery in a court of competent
8 jurisdiction to recover reimbursement overpayments made to the
9 person responsible for conducting site rehabilitation, unless
10 the department finds the amount involved too small or the
11 likelihood of recovery too uncertain.
12 4. In addition to the amount of any overpayment, the
13 applicant shall be liable to the department for interest of 1
14 percent per month or the prime rate, whichever is less, on the
15 amount of overpayment, from the date of overpayment by the
16 department until the applicant satisfies the department's
17 request for repayment pursuant to this paragraph. The
18 calculation of interest shall be tolled during the pendency of
19 any litigation.
20 5. Financial and technical audits frequently are
21 conducted under this section many years after the site
22 rehabilitation activities were performed and the costs
23 examined in the course of the audit were incurred by the
24 person responsible for site rehabilitation. During the
25 intervening span of years, the department's rule requirements
26 and its related guidance and other nonrule policy directives
27 may have changed significantly. The Legislature finds that it
28 may be appropriate for the department to provide relief to
29 persons subject to such requirements in financial and
30 technical audits conducted pursuant to this section.
31 a. The department is authorized to grant variances and
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HOUSE AMENDMENT
Bill No. CS for CS for SB 1306 & others, 1st Eng.
Amendment No. 7s (for drafter's use only)
1 waivers from the documentation requirements of subparagraph
2 (e)2. and from the requirements of rules applicable in
3 technical and financial audits conducted under this section.
4 Variances and waivers shall be granted when the person
5 responsible for site rehabilitation demonstrates to the
6 department that application of a financial or technical
7 auditing requirement would create a substantial hardship or
8 would violate principles of fairness. For purposes of this
9 subsection, "substantial hardship" means a demonstrated
10 economic, technological, legal, or other type of hardship to
11 the person requesting the variance or waiver. For purposes of
12 this subsection, "principles of fairness" are violated when
13 the application of a requirement affects a particular person
14 in a manner significantly different from the way it affects
15 other similarly situated persons who are affected by the
16 requirement or when the requirement is being applied
17 retroactively without due notice to the affected parties.
18 b. A person whose reimbursed costs are subject to a
19 financial and technical audit under this section may file a
20 written request to the department for grant of a variance or
21 waiver. The request shall specify:
22 (I) The requirement from which a variance or waiver is
23 requested.
24 (II) The type of action requested.
25 (III) The specific facts which would justify a waiver
26 or variance.
27 (IV) The reason or reasons why the requested variance
28 or waiver would serve the purposes of this section.
29 c. Within 90 days after receipt of a written request
30 for variance or waiver under this subsection, the department
31 shall grant or deny the request. If the request is not granted
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HOUSE AMENDMENT
Bill No. CS for CS for SB 1306 & others, 1st Eng.
Amendment No. 7s (for drafter's use only)
1 or denied within 90 days of receipt, the request shall be
2 deemed approved. An order granting or denying the request
3 shall be in writing and shall contain a statement of the
4 relevant facts and reasons supporting the department's action.
5 The department's decision to grant or deny the petition shall
6 be supported by competent substantial evidence and is subject
7 to ss. 120.569 and 120.57. Once adopted, model rules
8 promulgated by the Administration Commission under s. 120.542
9 shall govern the processing of requests under this provision;
10 however, the department may process requests prior to the
11 adoption of those model rules.
12 6. The Comptroller may audit the records of persons
13 who receive or who have received payments pursuant to this
14 chapter in order to verify site restoration costs, ensure
15 compliance with this chapter, and verify the accuracy and
16 completeness of audits performed by the department pursuant to
17 this paragraph. The Comptroller may contract with entities or
18 persons to perform audits pursuant to this subparagraph. The
19 Comptroller shall commence any audit within 1 year after the
20 department's completion of an audit conducted pursuant to this
21 paragraph, except in cases where the department or the
22 Comptroller alleges specific facts indicating fraud.
23 (13) PETROLEUM CLEANUP PARTICIPATION PROGRAM.--To
24 encourage detection, reporting, and cleanup of contamination
25 caused by discharges of petroleum or petroleum products, the
26 department shall, within the guidelines established in this
27 subsection, implement a cost-sharing cleanup program to
28 provide rehabilitation funding assistance for all property
29 contaminated by discharges of petroleum or petroleum products
30 occurring before January 1, 1995, subject to a copayment
31 provided for in a preapproved site rehabilitation agreement.
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HOUSE AMENDMENT
Bill No. CS for CS for SB 1306 & others, 1st Eng.
Amendment No. 7s (for drafter's use only)
1 Eligibility shall be subject to an annual appropriation from
2 the Inland Protection Trust Fund. Additionally, funding for
3 eligible sites shall be contingent upon annual appropriation
4 in subsequent years. Such continued state funding shall not
5 be deemed an entitlement or a vested right under this
6 subsection. Eligibility in the program shall be
7 notwithstanding any other provision of law, consent order,
8 order, judgment, or ordinance to the contrary.
9 (g) The following shall be excluded from participation
10 in the program:
11 1. Sites at which the department has been denied
12 reasonable site access to implement the provisions of this
13 section.
14 2. Sites that were active facilities when owned or
15 operated by the Federal Government.
16 3. Sites that are identified by the United States
17 Environmental Protection Agency to be on, or which qualify for
18 listing on, the National Priorities List under Superfund.
19 This exception does not apply to those sites for which
20 eligibility has been requested or granted as of the effective
21 date of this act under the Early Detection Incentive Program
22 established pursuant to s. 15, chapter 86-159, Laws of
23 Florida.
24 4. The contamination is covered under the Early
25 Detection Incentive Program, the Abandoned Tank Restoration
26 Program or the Petroleum Liability and Restoration Insurance
27 Program, in which case site rehabilitation funding assistance
28 shall continue under the respective program.
29 5. Any person who knowingly acquires title to
30 contaminated property shall not be eligible for restoration
31 funding pursuant to this subsection. The provisions of this
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HOUSE AMENDMENT
Bill No. CS for CS for SB 1306 & others, 1st Eng.
Amendment No. 7s (for drafter's use only)
1 subsection do not relieve any person who has acquired title
2 subsequent to July 1, 1992, from the duty to establish by a
3 preponderance of the evidence that he or she undertook, at the
4 time of acquisition, all appropriate inquiry into the previous
5 ownership and use of the property consistent with good
6 commercial or customary practice in an effort to minimize
7 liability, as required by s. 376.308(1)(c). The provisions of
8 this subparagraph do not apply to any person who acquires
9 title by succession or devise.
10 Section 11. Subsections (2) and (7) of section
11 376.30711, Florida Statutes, 1996 Supplement, are amended to
12 read:
13 376.30711 Preapproved site rehabilitation, effective
14 March 29, 1995.--
15 (2)(a) Competitive bidding pursuant to this section
16 shall not be subject to the requirements of s. 287.055. The
17 department is authorized to use competitive bid procedures or
18 negotiated contracts for preapproving all costs and
19 rehabilitation procedures for site-specific rehabilitation
20 projects through performance-based contracts. Site
21 rehabilitation shall be conducted according to the priority
22 ranking order established pursuant to s. 376.3071(5).
23 (7) The department shall conduct a pilot project to
24 determine the effectiveness and feasibility of utilizing
25 competitive bid procedures for procuring the services
26 necessary to perform site rehabilitation. During fiscal year
27 1997-98, the department is directed to use competitive bid
28 procedures to procure site rehabilitation services on a
29 minimum of 25 priority sites within availability of funding,
30 where the department has requested that the property owner
31 designate a qualified contractor and a qualified contractor
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HOUSE AMENDMENT
Bill No. CS for CS for SB 1306 & others, 1st Eng.
Amendment No. 7s (for drafter's use only)
1 has not been designated or assigned to a state cleanup site
2 prior to July 1, 1997. The provisions of this subsection do
3 not apply to those sites managed by a contracted local program
4 pursuant to s. 376.3073. The department is directed to select
5 a representative sample of sites such that the results of the
6 project can be compared to other procurement methods. The
7 department shall submit a report, by March 1, 1998, to the
8 Governor, the President of the Senate, and the Speaker of the
9 House of Representatives. Such report shall contain, at a
10 minimum: the cost-effectiveness of utilizing competitive bid
11 procedures; a feasibility review on the department's
12 experience with competitive bidding; a cost comparison of
13 competitive bidding and negotiated contracts for site
14 rehabilitation tasks; and recommendations concerning the use
15 of competitive bidding.
16 Section 12. Subsection (3) of section 376.3072,
17 Florida Statutes, 1996 Supplement, is amended to read:
18 376.3072 Florida Petroleum Liability and Restoration
19 Insurance Program.--
20 (3) Sites that were certified as insured facilities
21 and that were denied coverage for a discharge under the
22 Petroleum Liability and Restoration Insurance Program may
23 request a reevaluation under the criteria in subsection (2).
24 Such request shall be made by December 31, 1996. If the
25 contamination is redetermined to be eligible, the deductible
26 and coverage limit in effect at the time the discharge was
27 reported shall be applicable. The redetermination shall not
28 affect the department's authority for assessing supplemental
29 deductibles or civil penalties. The department shall not
30 assess a supplemental deductible or civil penalty for alleged
31 failure to report or abate a discharge when the owner or
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HOUSE AMENDMENT
Bill No. CS for CS for SB 1306 & others, 1st Eng.
Amendment No. 7s (for drafter's use only)
1 operator can establish no discharge occurred. Notwithstanding
2 any department order to the contrary, the supplemental
3 deductibles in subparagraph (2)(d)2.f. shall not be applied
4 cumulatively but, rather, the highest applicable supplemental
5 deductible shall be applied.
6 Section 13. Subsection (1) of section 403.767, Florida
7 Statutes, is amended to read:
8 403.767 Certification of used oil transporters.--
9 (1) Any person who transports over public highways
10 after January 1, 1990, more than 500 gallons annually of used
11 oil must be a certified transporter. This subsection does not
12 apply to:
13 (a) Local governments or private solid waste haulers
14 under contract to a local government that transport used oil
15 collected from households to a public used oil collection
16 center.
17 (b) Persons who transport less than 55 gallons of used
18 oil at one time that is stored in tightly closed containers
19 which are secured in a totally enclosed section of the
20 transport vehicle.
21 (c) Persons who transport their own used oil, which is
22 generated at their own noncontiguous facilities, to their own
23 central collection facility for storage, processing, or engery
24 recovery. However, such persons shall provide the same proof
25 of liability insurance or other means of financial
26 responsibility for liability which may be incurred in the
27 transport of used oil as provided by certified transporters
28 under subsection (3).
29 Renumber subsequent sections
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