Senate Bill 0812

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    Florida Senate - 1998                                   SB 812

    By Senators Dyer, Latvala, Williams, Brown-Waite, Diaz-Balart
    and Forman




    14-666-98

  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         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 U.S. 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 U.S. Environmental

  6  Protection Agency and for duplication and redundancy to be

  7  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 U.S.

24  Environmental Protection Agency to determine whether the plan

25  is complete or whether revisions to the plan are needed, and

26  the reviews may be conducted at the stationary source to

27  confirm that information onsite is consistent with reported

28  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 USC 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 USC s.

  9  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. A stationary source includes transportation

18  containers that are no longer under active shipping papers and

19  transportation containers that are connected to equipment at

20  the stationary source for the purposes of temporary storage,

21  loading, or unloading. The term stationary source does not

22  apply to transportation, including the storage incident to

23  transportation, of any regulated substance or any other

24  extremely hazardous substance under the provisions of this

25  part, if the transportation is regulated under 49 CFR parts

26  192, 193 or 195. Properties may not be considered contiguous

27  solely because of a railroad or gas pipeline right-of-way.

28         (17)  "Trust fund" means the Operating Trust Fund

29  established in the department's Division of Emergency

30  Management.

31         252.937 Department powers and duties.--

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  1         (1)  The department has the power and duty to:

  2         (a)  Seek delegation from the U.S. Environmental

  3  Protection Agency to implement the Accidental Release

  4  Prevention Program under Section 112(r)(7) of the Clean Air

  5  Act and the federal implementing regulations and ensure the

  6  timely submission of Risk Management Plans and any subsequent

  7  revisions of Risk Management Plans.

  8         (b)  Adopt, modify, and repeal rules, with the advice

  9  and consent of the commission, necessary to obtain delegation

10  from the U.S. Environmental Protection Agency and to

11  administer the Section 112(r)(7) Accidental Release Prevention

12  Program in this state.

13         (c)  Make and execute contracts and other agreements

14  necessary or convenient to the implementation of this part.

15         (d)  Coordinate its activities under this part with its

16  other emergency management responsibilities, including its

17  responsibilities and activities under parts I, II, and III of

18  this chapter and with the related activities of other state

19  and local agencies, keeping separate accounts for all

20  activities conducted under this part which are supported or

21  partially supported from the Trust Fund.

22         (e)  Establish, with the advice and consent of the

23  commission, a technical assistance and outreach program on or

24  before January 31, 1999, to assist owners and operators of

25  stationary sources subject to Section 112(r)(7) in complying

26  with the reporting and fee requirements of this part. This

27  program is designed to facilitate and ensure timely submission

28  of proper certifications or compliance schedules and timely

29  submission and registration of Risk Management Plans and

30  revised registrations and Risk Management Plans when required.

31

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  1         (2)  To ensure that this program is self-supporting,

  2  the department shall provide administrative support, including

  3  staff, facilities, materials, and services to implement this

  4  part for stationary sources subject to s. 252.939 and shall

  5  provide necessary funding to local emergency planning

  6  committees and county emergency management agencies for work

  7  performed to implement this part. Each state agency with

  8  regulatory, inspection, or technical assistance programs for

  9  stationary sources subject to this part shall enter into a

10  Memorandum of Understanding with the department which

11  specifically outlines how each agency's staff, facilities,

12  materials, and services will be utilized to support

13  implementation. At a minimum, these agencies and programs

14  include:  the Department of Environmental Protection's

15  Division of Air Resources Management and Division of Water

16  Facilities, the Department of Agriculture and Consumer

17  Services' Bureau of Liquefied Petroleum Gas, and the

18  Department of Labor and Employment Security's Division of

19  Safety. It is the Legislature's intent to implement this part

20  as efficiently and economically as possible, using existing

21  expertise and resources, if available and appropriate.

22         (3)  To prevent the duplication of investigative

23  efforts and resources, the department, on behalf of the

24  commission, shall coordinate with any federal agencies or

25  agents thereof, including the federal Chemical Safety and

26  Hazard Investigation Board, or its successor, which are

27  performing accidental release investigations, and may

28  coordinate with any agencies of the state which are performing

29  accidental release investigations. This accidental release

30  investigation coordination is not intended to limit or take

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  1  the place of any individual agency accidental release

  2  investigation under separate authority.

  3         252.938 Funding.--

  4         (1)  It is the intent of the Legislature that the state

  5  activities and expenditures under this part be self-sustaining

  6  through fees provided in this part.

  7         (2)  All fees and penalties collected under this part

  8  must be deposited in a separate account in the Operating Trust

  9  Fund for appropriation to fund the state's Accidental Release

10  Prevention Program under this part.

11         252.939 Fees.--

12         (1)(a)  Any owner or operator of a stationary source in

13  the state which must submit a Risk Management Plan to the U.S.

14  Environmental Protection Agency under Section 112(r)(7) shall

15  pay an annual registration fee for each stationary source to

16  the department. The annual registration fee is due to the

17  department upon initial submission of a stationary source's

18  Risk Management Plan to the U.S. Environmental Protection

19  Agency, and every April 1 thereafter.

20         (b)  Prior individual written notice shall be provided

21  by U.S. mail by the department to owners or operators of all

22  stationary sources in the state subject to the requirements

23  under Section 112(r)(7) to submit Risk Management Plans and

24  corresponding state registration fees. This notice must

25  include the requirements of the state fee schedule and must be

26  mailed at least 90 days before the due date for the stationary

27  source's initial registration and Risk Management Plan

28  submission year and at least 30 days before the registration

29  fee due date for subsequent years.

30         (c)  The department shall establish a fee schedule by

31  rule, upon the advice and consent of the commission. The

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  1  annual registration fee must be based on a stationary source's

  2  highest program level, as determined under the federal

  3  implementing regulations for Section 112(r)(7) and may not

  4  exceed the following:

  5              Program 1 Stationary Sources    $  150

  6              Program 2 Stationary Sources    $  200

  7              Program 3 Stationary Sources    $1,000

  8         (d)  Annual registration fees under this section are

  9  not required until after the department receives final

10  delegation approval from the U.S. Enviromental Protection

11  Agency to administer the Section 112(r)(7) Accidental Release

12  Prevention Program.

13         (2)  The department shall establish by rule late fees,

14  not to exceed 100 percent of the annual registration fee owed,

15  for failure to timely submit an annual registration fee. A

16  late fee may not be assessed against a stationary source

17  during the initial registration and submission year if 90 days

18  prior written notice was not provided to that stationary

19  source.

20         (3)  In determining whether an annual registration fee

21  is timely submitted under subsections (1) and (2), if the fee

22  is:

23         (a)  Mailed via U.S. mail, the date of submittal is the

24  date evidenced by the postmark.

25         (b)  Delivered by overnight or other private mail

26  carriers, the date of submittal is the date the package is

27  deposited with the overnight carrier.

28         (c)  Hand-delivered, other than by overnight or private

29  mail carrier, the date of submittal is the date of actual

30  receipt.

31         252.940 Enforcement; procedure; remedies.--

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  1         (1)  The department has the following enforcement

  2  authority and remedies available to it for violations of this

  3  part as specified in s. 252.941:

  4         (a)  To institute a civil action in a court of

  5  competent jurisdiction in order to seek injunctive relief to

  6  immediately restrain or enjoin any person from engaging in any

  7  activity in violation of this part which is presenting an

  8  imminent and substantial endangerment to the public health or

  9  welfare or the environment; and to seek injunctive relief to

10  enforce compliance with this part or any rule, regulation,

11  program requirement, or order implementing this part.

12         (b)  To institute a civil action in a court of

13  competent jurisdiction to impose and to recover a civil

14  penalty for each violation, as specified in s. 252.941(1), in

15  an amount of not more than $10,000 per offense. However, the

16  court may receive evidence in mitigation. Each day during any

17  portion of which such violation occurs constitutes a separate

18  offense.

19         (c)  To seek criminal remedies, including fines, for

20  violations as specified in s. 252.941(2).

21         (d)  Failure to comply with the fee provisions under s.

22  252.939 is not a violation under s. 252.941. Section

23  252.939(2) is the sole remedy for fee provisions in s.

24  252.939, except that the department may enforce a final order

25  entered under that section pursuant to s. 120.69.

26         (2)  An action may not be commenced or continued under

27  this section if the Administrator of the U.S. Environmental

28  Protection Agency has commenced and is diligently pursuing an

29  administrative order or civil or criminal action to enforce a

30  specific requirement or to impose a civil or criminal penalty

31  under Section 112(r) with respect to the specific violation.

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  1  If the U.S. Environmental Protection Agency initiates any

  2  action after the state has initiated an action based on the

  3  same cause, the state suit shall be dismissed without

  4  prejudice and may be refiled only in the event that the U.S.

  5  Environmental Protection Agency discontinues the enforcement

  6  action prior to settlement or final judgment.

  7         (3)  For the purposes of this section, the department

  8  may offer and accept the use of Supplemental Environmental

  9  Projects, consistent with the guidelines established by the

10  U.S. Environmental Protection Agency.

11         (4)  The authorities and remedies provided under this

12  section shall not take effect until after such time as the

13  department has received final delegation approval from the

14  U.S. Environmental Protection Agency to administer the Section

15  112(r)(7) Accidental Release Prevention Program.

16         252.941 Prohibitions, violations, penalties, intent.--

17         (1)  It is a violation of this part, and it is

18  prohibited for any person to:

19         (a)  Fail to make any submittal required by this part

20  or by rule or regulation implementing this part, or to violate

21  or fail to comply with any rule, regulation, order, plan, or

22  certification adopted or issued by the department pursuant to

23  its lawful authority under this part, other than fees under s.

24  252.939.

25         (b)  Knowingly make any false statement,

26  representation, or certification in any application, record,

27  report, plan, or other document filed or required to be

28  maintained under this part, or to falsify, tamper with, or

29  knowingly render inaccurate any monitoring device or method

30  required to be maintained under this part or by any program,

31  rule, regulation, or order issued under this part.

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  1         (c)  Fail to report to the appropriate representative

  2  of the department, as established by department rule, within 1

  3  working day of discovery of an accidental release of a

  4  regulated substance from the stationary source, if the owner

  5  or operator is required to report the release to the U.S.

  6  Environmental Protection Agency under Section 112(r)(6).

  7         (2)  Any person who willfully commits a violation

  8  specified in subsection (1) is guilty of a misdemeanor of the

  9  first degree punishable as provided in s. 775.083(1)(g) by a

10  fine of not more than $10,000 for each offense. Each day

11  during any portion of which such violation occurs constitutes

12  a separate offense.

13         (3)  It is the legislative intent that the civil

14  penalties and criminal fines imposed by the court be of such

15  amount as to ensure immediate and continued compliance with

16  this section.

17         (4)  The prohibitions and violations provided under

18  this section shall take effect after such time as the

19  department has received final delegation approval from the

20  U.S. Environmental Protection Agency to administer the Section

21  112(r)(7) Accidental Release Prevention Program.

22         252.942 Inspections and audits.--

23         (1)(a)  Any duly authorized representative of the

24  department may at any reasonable time enter to inspect and

25  audit, in order to ascertain compliance with this part or

26  rules adopted to implement this part, any stationary source

27  subject to the requirements of Section 112(r)(7), except a

28  building that is used exclusively for a private residence.

29         (b)  Any duly authorized representative may at any

30  reasonable time have access to any stationary source subject

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  1  to Section 112(r)(7) for inspection and copying any supporting

  2  documentation required under this part.

  3         (c)  A person may not refuse reasonable entry or access

  4  to any authorized representative of the department who

  5  requests entry for purposes of inspection and who presents

  6  appropriate credentials; nor shall any person obstruct,

  7  hamper, or interfere with such inspection.

  8         (2)  An inspection or audit under subsection (1) may be

  9  conducted only after:

10         (a)  Consent for the inspection is received from the

11  owner, operator, or person in charge; or

12         (b)  The appropriate inspection warrant as provided in

13  this section is obtained.

14         (3)(a)  An inspection warrant as authorized by this

15  chapter may be issued by a judge of any county court or

16  circuit court of this state which has jurisdiction over the

17  place or thing to be searched.

18         (b)  When a proper affidavit is made, the judge may

19  issue an inspection warrant if:

20         1.  It appears that the properties to be inspected may

21  be connected with or contain evidence of the violation of any

22  of the provisions of this Part or any rule properly

23  promulgated thereunder; or

24         2.  The inspection sought is an integral part of a

25  larger scheme of systematic routine inspections that are

26  necessary to, and consistent with, the continuing efforts of

27  the department to ensure compliance with the provisions of

28  this part and any rules adopted thereunder.

29         (c)  The judge shall, before issuing the warrant, have

30  the application for the warrant duly sworn to and subscribed

31  by a representative of the department; and he or she may

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  1  receive further testimony from witnesses, supporting

  2  affidavits, or depositions in writing to support the

  3  application. The affidavit and further proof must set forth

  4  the facts tending to establish the grounds specified in

  5  paragraph (b) or the reasons for believing that such grounds

  6  exist.

  7         (d)  Upon examination of the application and proofs

  8  submitted and if satisfied that cause exists for issuing the

  9  inspection warrant, the judge shall issue a warrant, signed by

10  him or her with the name of his or her office, to any

11  department representative, which warrant will authorize the

12  representative to inspect the property described in the

13  warrant.

14         (4)  The department shall periodically audit Risk

15  Management Plans submitted by owners or operators of

16  stationary sources subject to Section 112(r)(7) and require

17  revisions of such plans when necessary to ensure compliance

18  with this part. The audit and revision requirements must

19  substantially comply with federal regulations implementing

20  Section 112(r)(7). The department shall develop, with the

21  advice and consent of the commission, an annual audit work

22  plan which identifies stationary sources or audits based on

23  the program resources available. Stationary sources will be

24  priortized for audits based on factors which include, but are

25  not limited to, stationary source location and proximity to

26  population centers, chemical characteristics and inventories,

27  stationary source accident history, process accident history,

28  compliance or inspection by allied agency programs, and the

29  results of stationary sources' self-audits.

30

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  1         (5)  Upon request, owners or operators of stationary

  2  sources subject to Section 112(r)(7) shall receive an oral

  3  exit interview at the conclusion of an inspection or audit.

  4         (6)  Following an audit or inspection, the department

  5  shall issue the owner or operator a written preliminary

  6  determination of any necessary revisions to the stationary

  7  source Risk Management Plan to ensure that the plan meets the

  8  requirements of this part and rules adopted to implement this

  9  part. The preliminary determination must include an

10  explanation of the basis for the revisions, reflecting

11  industry standards and guidelines to the extent that such

12  standards and guidelines are applicable, and must include a

13  timetable for their implementation.

14         (7)  The department shall provide reasonable notice of

15  its intent to conduct an onsite inspection or audit of a

16  stationary source. Inspections or audits may be conducted

17  without notice in response to an accidental release or to

18  protect the public health, safety, and welfare.

19         252.944 Tort liability.--The commission and the

20  committees are state agencies, and the members of the

21  commission and committees are officers, employees, or agents

22  of the state for the purpose of s. 768.28.

23         252.945 Start up loan.--The department may advance a

24  start up loan in the amount of $500,000 from the hazardous

25  materials account in the Operating Trust Fund to support

26  initial implementation of this part. This loan must be repaid

27  in equal annual installments by 2006, beginning October 1,

28  2001.

29         Section 2.  This act shall take effect upon becoming a

30  law.

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  1            *****************************************

  2                          SENATE SUMMARY

  3    Creates the Florida Accidental Release Prevention and
      Risk Management Planning Act. Directs the Department of
  4    Community Affairs to seek delegation from the U.S.
      Environmental Protection Agency to implement the
  5    Accidental Release Prevention Program under the federal
      Clean Air Act. Provides funding, fees, enforcement
  6    authority, and penalties. Authorizes the department to
      conduct inspections and audits. Provides for tort
  7    liability. Provides for a start-up loan from the
      department's operating trust fund.
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