House Bill 3717
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    Florida House of Representatives - 1998                HB 3717
        By Representatives Edwards, Burroughs, Dockery and Mackey
  1                      A bill to be entitled
  2         An act relating to clean air; creating ss.
  3         252.934, 252.935, 252.936, 252.937, 252.938,
  4         252.939, 252.940, 252.941, 252.942, 252.944,
  5         and 252.945, F.S.; providing for the Florida
  6         Accidental Release Prevention and Risk
  7         Management Planning Act; providing a short
  8         title and purpose; defining terms; directing
  9         the Department of Community Affairs to seek
10         delegation from the United States Environmental
11         Protection Agency to implement the Accidental
12         Release Prevention Program under the federal
13         Clean Air Act; providing for funding and fees;
14         providing enforcement authority; providing
15         penalties; authorizing the department to
16         conduct inspections and audits; providing for
17         tort liability; providing for a start-up loan;
18         providing an effective date.
19
20  Be It Enacted by the Legislature of the State of Florida:
21
22         Section 1.  Part IV of chapter 252, consisting of
23  sections 252.934, 252.935, 252.936, 252.937, 252.938, 252.939,
24  252.940, 252.941, 252.942, 252.944, and 252.945, Florida
25  Statutes, is created to read:
26         252.934 Short title.--This part may be cited as the
27  "Florida Accidental Release Prevention and Risk Management
28  Planning Act."
29         252.935 Purpose.--The purpose of this part is to
30  establish adequate state authorities to implement, fund, and
31  enforce the requirements of the Accidental Release Prevention
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  1  Program of Section 112(r)(7) of the federal Clean Air Act and
  2  federal implementing regulations. To ensure the efficient use
  3  of resources, it is the intent of the Legislature for the
  4  state to seek delegation of the Section 112(r)(7) Accidental
  5  Release Prevention Program from the United States
  6  Environmental Protection Agency and for duplication and
  7  redundancy to be avoided to the maximum extent practicable.
  8         252.936 Definitions.--As used in this part, the term:
  9         (1)  "Accidental release" means an unanticipated
10  emission of a regulated substance into the ambient air from a
11  stationary source.
12         (2)  "Accidental Release Prevention Program" means the
13  program to implement the accidental release prevention,
14  detection, and response provisions of Section 112(r)(7) of the
15  Clean Air Act and federal implementing regulations.
16         (3)  "Audit" means a review of information at a
17  stationary source subject to Section 112(r)(7), or submitted
18  by a stationary source subject to Section 112(r)(7), to
19  determine whether that stationary source is in compliance with
20  the requirements of this part and rules adopted to implement
21  this part. Audits must include a review of the adequacy of the
22  stationary source's risk management plan, may consist of
23  reviews of information submitted to the department or the
24  United States Environmental Protection Agency to determine
25  whether the plan is complete or whether revisions to the plan
26  are needed, and the reviews may be conducted at the stationary
27  source to confirm that information onsite is consistent with
28  reported information.
29         (4)  "Chemical Safety and Hazard Investigation Board"
30  means the federal Chemical Safety and Hazard Investigation
31  Board created under Section 112(r)(6) of the Clean Air Act.
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  1         (5)  "Clean Air Act" means the federal Clean Air Act,
  2  as amended, codified at 42 U.S.C. ss. 7401-7671q.
  3         (6)  "Commission" means the State Emergency Response
  4  Commission for Hazardous Materials created by Executive Order
  5  94-138.
  6         (7)  "Committee" means any local emergency planning
  7  committee established in the state under s. 301 of the federal
  8  Emergency Planning and Community Right To Know Act, 42 U.S.C.
  9  s. 11001, et seq.
10         (8)  "Department" means the Department of Community
11  Affairs.
12         (9)  "Inspection" means a review of information at a
13  stationary source subject to Section 112(r)(7), including
14  documentation and operating practices and access to the source
15  and to any area where an accidental release could occur, to
16  determine whether the stationary source is in compliance with
17  the requirements of this part or rules adopted to implement
18  this part.
19         (10)  "Owner or operator" means any person who owns,
20  leases, operates, controls, or supervises any stationary
21  source subject to Section 112(r)(7) of the Clean Air Act.
22         (11)  "Person" means an individual, corporation,
23  partnership, association, state or any agency or institution
24  thereof, municipality, political subdivision of the state, and
25  any agency, department, or instrumentality of the United
26  States, and any officer, agent, or employee thereof, and, for
27  the purposes of s. 252.941, any responsible corporate officer.
28         (12)  "Regulated substance" means any regulated
29  substance defined or listed under Section 112(r)(3) of the
30  Clean Air Act and federal implementing regulations. Consistent
31  with Section 112(r)(7) federal implementing regulations,
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  1  ammonia used as an agricultural nutrient, when held by
  2  farmers, is exempt from this part.
  3         (13)  "Risk management plan" means the risk management
  4  plan required under Section 112(r)(7) of the Clean Air Act and
  5  federal implementing regulations.
  6         (14)  "Section 112(r)" means the provisions of Section
  7  112(r) of the Clean Air Act.
  8         (15)  "Section 112(r)(7)" means the accidental release
  9  prevention, detection, and response provisions in Section
10  112(r)(7) of the Clean Air Act.
11         (16)  "Stationary source" means any buildings,
12  structures, equipment, installations, or regulated substance
13  emitting stationary activities which belong to the same
14  industrial group, which are located on one or more contiguous
15  properties, which are under the control of the same person, or
16  persons under common control, and from which an accidental
17  release may occur. The term stationary source does not apply
18  to transportation, including storage incident to
19  transportation, of any regulated substance under the
20  provisions of this part. A stationary source includes
21  transportation containers used for storage not incident to
22  transportation and transportation containers connected to
23  equipment at the stationary source for loading or unloading.
24  Transportation includes, but is not limited to, transportation
25  subject to oversight or regulation under 49 C.F.R. part 192,
26  part 193, or part 195, or a state natural gas or hazardous
27  liquid program for which the state has in effect a
28  certification to the United States Department of
29  Transportation under 40 U.S.C. s. 60105. A stationary source
30  does not include naturally occurring hydrocarbon reservoirs.
31
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  1  Properties shall not be considered contiguous solely because
  2  of a railroad or gas pipeline right-of-way.
  3         (17)  "Trust fund" means the Operating Trust Fund
  4  established in the department's Division of Emergency
  5  Management.
  6         252.937 Department powers and duties.--
  7         (1)  The department has the power and duty to:
  8         (a)  Seek delegation from the United States
  9  Environmental Protection Agency to implement the Accidental
10  Release Prevention Program under Section 112(r)(7) of the
11  Clean Air Act and the federal implementing regulations and
12  ensure the timely submission of risk management plans and any
13  subsequent revisions of risk management plans.
14         (b)  Adopt, modify, and repeal rules, with the advice
15  and consent of the commission, necessary to obtain delegation
16  from the United States Environmental Protection Agency and to
17  administer the Section 112(r)(7) Accidental Release Prevention
18  Program in this state.
19         (c)  Make and execute contracts and other agreements
20  necessary or convenient to the implementation of this part.
21         (d)  Coordinate its activities under this part with its
22  other emergency management responsibilities, including its
23  responsibilities and activities under parts I, II, and III and
24  with the related activities of other state and local agencies,
25  keeping separate accounts for all activities conducted under
26  this part which are supported or partially supported from the
27  trust fund.
28         (e)  Establish, with the advice and consent of the
29  commission, a technical assistance and outreach program on or
30  before January 31, 1999, to assist owners and operators of
31  stationary sources subject to Section 112(r)(7) in complying
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  1  with the reporting and fee requirements of this part. This
  2  program is designed to facilitate and ensure timely submission
  3  of proper certifications or compliance schedules and timely
  4  submission and registration of risk management plans and
  5  revised registrations and risk management plans when required.
  6         (2)  To ensure that this program is self-supporting,
  7  the department shall provide administrative support, including
  8  staff, facilities, materials, and services to implement this
  9  part for stationary sources subject to s. 252.939 and shall
10  provide necessary funding to local emergency planning
11  committees and county emergency management agencies for work
12  performed to implement this part. Each state agency with
13  regulatory, inspection, or technical assistance programs for
14  stationary sources subject to this part shall enter into a
15  memorandum of understanding with the department which
16  specifically outlines how each agency's staff, facilities,
17  materials, and services will be utilized to support
18  implementation. At a minimum, these agencies and programs
19  include:  the Division of Air Resources Management and
20  Division of Water Facilities of the Department of
21  Environmental Protection, the Bureau of Liquefied Petroleum
22  Gas of the Department of Agriculture and Consumer Services,
23  and the Division of Safety of the Department of Labor and
24  Employment Security. It is the Legislature's intent to
25  implement this part as efficiently and economically as
26  possible, using existing expertise and resources, if available
27  and appropriate.
28         (3)  To prevent the duplication of investigative
29  efforts and resources, the department, on behalf of the
30  commission, shall coordinate with any federal agencies or
31  agents thereof, including the federal Chemical Safety and
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  1  Hazard Investigation Board, or its successor, which are
  2  performing accidental release investigations, and may
  3  coordinate with any agencies of the state which are performing
  4  accidental release investigations. This accidental release
  5  investigation coordination is not intended to limit or take
  6  the place of any individual agency accidental release
  7  investigation under separate authority.
  8         252.938 Funding.--
  9         (1)  It is the intent of the Legislature that the state
10  activities and expenditures under this part be self-sustaining
11  through fees provided in this part.
12         (2)  All fees and penalties collected under this part
13  must be deposited in a separate account in the Operating Trust
14  Fund for appropriation to fund the state's Accidental Release
15  Prevention Program under this part.
16         252.939 Fees.--
17         (1)(a)  Any owner or operator of a stationary source in
18  the state which must submit a risk management plan to the
19  United States Environmental Protection Agency under Section
20  112(r)(7) shall pay an annual registration fee for each
21  stationary source to the department. The annual registration
22  fee is due to the department upon initial submission of a
23  stationary source's risk management plan to the United States
24  Environmental Protection Agency, and every April 1 thereafter.
25         (b)  Prior individual written notice shall be provided
26  by United States mail by the department to owners or operators
27  of all stationary sources in the state subject to the
28  requirements under Section 112(r)(7) to submit risk management
29  plans and corresponding state registration fees. This notice
30  must include the requirements of the state fee schedule and
31  must be mailed at least 90 days before the due date for the
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  1  stationary source's initial registration and risk management
  2  plan submission year and at least 30 days before the
  3  registration fee due date for subsequent years.
  4         (c)  The department shall establish a fee schedule by
  5  rule, upon the advice and consent of the commission. The
  6  annual registration fee must be based on a stationary source's
  7  highest program level, as determined under the federal
  8  implementing regulations for Section 112(r)(7) and may not
  9  exceed the following:
10         1.  Program 1 Stationary Sources.................$  150
11         2.  Program 2 Stationary Sources.................$  200
12         3.  Program 3 Stationary Sources.................$1,000
13         (d)  Annual registration fees under this section are
14  not required until after the department receives final
15  delegation approval from the United States Enviromental
16  Protection Agency to administer the Section 112(r)(7)
17  Accidental Release Prevention Program.
18         (2)  The department shall establish by rule late fees,
19  not to exceed 100 percent of the annual registration fee owed,
20  for failure to timely submit an annual registration fee. A
21  late fee may not be assessed against a stationary source
22  during the initial registration and submission year if 90 days
23  prior written notice was not provided to that stationary
24  source.
25         (3)  In determining whether an annual registration fee
26  is timely submitted under subsections (1) and (2), if the fee
27  is:
28         (a)  Mailed via United States mail, the date of
29  submittal is the date evidenced by the postmark.
30
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  1         (b)  Delivered by overnight or other private mail
  2  carriers, the date of submittal is the date the package is
  3  deposited with the overnight carrier.
  4         (c)  Hand-delivered, other than by overnight or private
  5  mail carrier, the date of submittal is the date of actual
  6  receipt.
  7         252.940 Enforcement; procedure; remedies.--
  8         (1)  The department has the following enforcement
  9  authority and remedies available to it for violations of this
10  part as specified in s. 252.941:
11         (a)  To institute a civil action in a court of
12  competent jurisdiction in order to seek injunctive relief to
13  immediately restrain or enjoin any person from engaging in any
14  activity in violation of this part which is presenting an
15  imminent and substantial endangerment to the public health or
16  welfare or the environment; and to seek injunctive relief to
17  enforce compliance with this part or any rule, regulation,
18  program requirement, or order implementing this part.
19         (b)  To institute a civil action in a court of
20  competent jurisdiction to impose and to recover a civil
21  penalty for each violation, as specified in s. 252.941(1), in
22  an amount of not more than $10,000 per offense. However, the
23  court may receive evidence in mitigation. Each day during any
24  portion of which such violation occurs constitutes a separate
25  offense.
26         (c)  To seek criminal remedies, including fines, for
27  violations as specified in s. 252.941(2).
28         (d)  Failure to comply with the fee provisions under s.
29  252.939 is not a violation under s. 252.941. Section
30  252.939(2) is the sole remedy for fee provisions in s.
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  1  252.939, except that the department may enforce a final order
  2  entered under that section pursuant to s. 120.69.
  3         (2)  An action may not be commenced or continued under
  4  this section if the Administrator of the United States
  5  Environmental Protection Agency has commenced and is
  6  diligently pursuing an administrative order or civil or
  7  criminal action to enforce a specific requirement or to impose
  8  a civil or criminal penalty under Section 112(r) with respect
  9  to the specific violation. If the United States Environmental
10  Protection Agency initiates any action after the state has
11  initiated an action based on the same cause, the state suit
12  shall be dismissed without prejudice and may be refiled only
13  in the event that the United States Environmental Protection
14  Agency discontinues the enforcement action prior to settlement
15  or final judgment.
16         (3)  For the purposes of this section, the department
17  may offer and accept the use of supplemental environmental
18  projects, consistent with the guidelines established by the
19  United States Environmental Protection Agency.
20         (4)  The authorities and remedies provided under this
21  section shall not take effect until after such time as the
22  department has received final delegation approval from the
23  United States Environmental Protection Agency to administer
24  the Section 112(r)(7) Accidental Release Prevention Program.
25         252.941 Prohibitions, violations, penalties, intent.--
26         (1)  It is a violation of this part, and it is
27  prohibited for any person to:
28         (a)  Fail to make any submittal required by this part
29  or by rule implementing this part, or to violate or fail to
30  comply with any rule, order, plan, or certification adopted or
31
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  1  issued by the department pursuant to its lawful authority
  2  under this part, other than fees under s. 252.939.
  3         (b)  Knowingly make any false statement,
  4  representation, or certification in any application, record,
  5  report, plan, or other document filed or required to be
  6  maintained under this part, or to falsify, tamper with, or
  7  knowingly render inaccurate any monitoring device or method
  8  required to be maintained under this part or by any program,
  9  rule, or order issued under this part.
10         (c)  Fail to report to the appropriate representative
11  of the department, as established by department rule, within 1
12  working day of discovery of an accidental release of a
13  regulated substance from the stationary source, if the owner
14  or operator is required to report the release to the United
15  States Environmental Protection Agency under Section
16  112(r)(6).
17         (2)  Any person who willfully commits a violation
18  specified in subsection (1) is guilty of a misdemeanor of the
19  first degree, punishable as provided in s. 775.083(1)(g) by a
20  fine of not more than $10,000 for each offense. Each day
21  during any portion of which such violation occurs constitutes
22  a separate offense.
23         (3)  It is the legislative intent that the civil
24  penalties and criminal fines imposed by the court be of such
25  amount as to ensure immediate and continued compliance with
26  this section.
27         (4)  The prohibitions and violations provided under
28  this section shall take effect after such time as the
29  department has received final delegation approval from the
30  United States Environmental Protection Agency to administer
31  the Section 112(r)(7) Accidental Release Prevention Program.
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  1         252.942 Inspections and audits.--
  2         (1)(a)  Any duly authorized representative of the
  3  department may at any reasonable time enter to inspect and
  4  audit, in order to ascertain compliance with this part or
  5  rules adopted to implement this part, any stationary source
  6  subject to the requirements of Section 112(r)(7), except a
  7  building that is used exclusively for a private residence.
  8         (b)  Any duly authorized representative may at any
  9  reasonable time have access to any stationary source subject
10  to Section 112(r)(7) for inspection and copying any supporting
11  documentation required under this part.
12         (c)  A person may not refuse reasonable entry or access
13  to any authorized representative of the department who
14  requests entry for purposes of inspection and who presents
15  appropriate credentials; nor shall any person obstruct,
16  hamper, or interfere with such inspection.
17         (2)  An inspection or audit under subsection (1) may be
18  conducted only after:
19         (a)  Consent for the inspection is received from the
20  owner, operator, or person in charge; or
21         (b)  The appropriate inspection warrant as provided in
22  this section is obtained.
23         (3)(a)  An inspection warrant as authorized by this
24  section may be issued by a judge of any county court or
25  circuit court of this state which has jurisdiction over the
26  place or thing to be searched.
27         (b)  When a proper affidavit is made, the judge may
28  issue an inspection warrant if:
29         1.  It appears that the properties to be inspected may
30  be connected with or contain evidence of the violation of any
31
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  1  of the provisions of this part or any rule properly adopted
  2  under this part; or
  3         2.  The inspection sought is an integral part of a
  4  larger scheme of systematic routine inspections that are
  5  necessary to, and consistent with, the continuing efforts of
  6  the department to ensure compliance with the provisions of
  7  this part and any rules adopted under this part.
  8         (c)  The judge shall, before issuing the warrant, have
  9  the application for the warrant duly sworn to and subscribed
10  by a representative of the department; and he or she may
11  receive further testimony from witnesses, supporting
12  affidavits, or depositions in writing to support the
13  application. The affidavit and further proof must set forth
14  the facts tending to establish the grounds specified in
15  paragraph (b) or the reasons for believing that such grounds
16  exist.
17         (d)  Upon examination of the application and proofs
18  submitted and if satisfied that cause exists for issuing the
19  inspection warrant, the judge shall issue a warrant, signed by
20  him or her with the name of his or her office, to any
21  department representative, which warrant shall authorize the
22  representative to inspect the property described in the
23  warrant.
24         (4)  The department shall periodically audit risk
25  management plans submitted by owners or operators of
26  stationary sources subject to Section 112(r)(7) and require
27  revisions of such plans when necessary to ensure compliance
28  with this part. The audit and revision requirements must
29  substantially comply with federal regulations implementing
30  Section 112(r)(7). The department shall develop, with the
31  advice and consent of the commission, an annual audit work
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  1  plan which identifies stationary sources or audits based on
  2  the program resources available. Stationary sources shall be
  3  prioritized for audits based on factors which include, but are
  4  not limited to, stationary source location and proximity to
  5  population centers, chemical characteristics and inventories,
  6  stationary source accident history, process accident history,
  7  compliance or inspection by allied agency programs, and the
  8  results of stationary sources' self-audits.
  9         (5)  Upon request, owners or operators of stationary
10  sources subject to Section 112(r)(7) shall receive an oral
11  exit interview at the conclusion of an inspection or audit.
12         (6)  Following an audit or inspection, the department
13  shall issue the owner or operator a written preliminary
14  determination of any necessary revisions to the stationary
15  source risk management plan to ensure that the plan meets the
16  requirements of this part and rules adopted to implement this
17  part. The preliminary determination must include an
18  explanation of the basis for the revisions, reflecting
19  industry standards and guidelines to the extent that such
20  standards and guidelines are applicable, and must include a
21  timetable for their implementation.
22         (7)  The department shall provide reasonable notice of
23  its intent to conduct an onsite inspection or audit of a
24  stationary source. Inspections or audits may be conducted
25  without notice in response to an accidental release or to
26  protect the public health, safety, and welfare.
27         252.944 Tort liability.--The commission and the
28  committees are state agencies, and the members of the
29  commission and committees are officers, employees, or agents
30  of the state, for the purpose of s. 768.28.
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  1         252.945 Start up loan.--The department may advance a
  2  start-up loan in the amount of $500,000 from the hazardous
  3  materials account in the Operating Trust Fund to support
  4  initial implementation of this part. This loan must be repaid
  5  by September 30, 2006, in equal annual installments beginning
  6  October 1, 2001.
  7         Section 2.  This act shall take effect upon becoming a
  8  law.
  9
10            *****************************************
11                       LEGISLATIVE SUMMARY
12
      Creates the Florida Accidental Release Prevention and
13    Risk Management Planning Act. Directs the Department of
      Community Affairs to seek delegation from the U.S.
14    Environmental Protection Agency to implement the
      Accidental Release Prevention Program under the federal
15    Clean Air Act. Provides funding, fees, enforcement
      authority, and penalties. Authorizes the department to
16    conduct inspections and audits. Provides for tort
      liability. Provides for a start-up loan from the
17    department's operating trust fund.
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