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.
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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.
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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
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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
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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.
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11 LEGISLATIVE SUMMARY
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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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