Senate Bill 2536

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    Florida Senate - 1999                                  SB 2536

    By Senator Diaz-Balart





    37-825-99

  1                      A bill to be entitled

  2         An act relating to underground storage tank

  3         systems and the petroleum contamination cleanup

  4         program; amending s. 376.301, F.S.; redefining

  5         the term "facility"; amending s. 376.305, F.S.;

  6         providing a deadline for submittal of an

  7         application under the Abandoned Tank

  8         Restoration Program; amending s. 376.3071,

  9         F.S.; providing for funding; providing

10         exceptions from cost recovery for sites

11         eligible for petroleum contamination cleanup

12         funding; deleting provisions relating to

13         nonreimbursable voluntary cleanup; authorizing

14         the Department of Environmental Protection to

15         recover overpayments of certain reimbursement

16         claims; providing for the termination of

17         negotiations after a specified time; deleting

18         provisions relating to an exclusion from

19         participation in the petroleum contamination

20         participation program for persons who knowingly

21         acquire title to contaminated property;

22         creating s. 376.30714, F.S.; providing

23         authority for the department and owners of

24         existing contaminated property eligible for

25         state-funded site cleanup to enter into a

26         cost-sharing agreement for site rehabilitation

27         when a new discharge occurs; providing an

28         effective date.

29

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

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  1         Section 1.  Subsection (18) of section 376.301, Florida

  2  Statutes, 1998 Supplement, is amended to read:

  3         376.301  Definitions of terms used in ss.

  4  376.30-376.319, 376.70, and 376.75.--When used in ss.

  5  376.30-376.319, 376.70, and 376.75, unless the context clearly

  6  requires otherwise, the term:

  7         (18)  "Facility" means:

  8         (a)  A nonresidential location containing, or which

  9  contained, any underground stationary tank or tanks which

10  contain hazardous substances or pollutants and have individual

11  storage capacities greater than 110 gallons, or any

12  aboveground stationary tank or tanks which contain pollutants

13  which are liquids at standard ambient temperature and pressure

14  and have individual storage capacities greater than 550

15  gallons. This subsection shall not apply to facilities covered

16  by chapter 377, or containers storing solid or gaseous

17  pollutants, and agricultural tanks having storage capacities

18  of less than 550 gallons;.

19         (b)  A residential location containing any underground

20  stationary tank or tanks that contain hazardous substances or

21  pollutants and have individual storage capacities of 1,100

22  gallons or greater; or

23         (c)  A location containing any underground petroleum

24  storage system having individual storage capacities greater

25  than 110 gallons or an aboveground petroleum storage system

26  having individual capacities greater than 550 gallons where

27  the petroleum storage system is used primarily for the

28  generation of emergency electric power during disruption of

29  normal utility services.

30

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  1  This subsection does not apply to facilities covered by

  2  chapter 377, containers storing solid or gaseous pollutants,

  3  or agricultural tanks having storage capacities of less than

  4  550 gallons.

  5         Section 2.  Subsections (1) and (6) of section 376.305,

  6  Florida Statutes, are amended to read:

  7         376.305  Removal of prohibited discharges.--

  8         (1)  Any person discharging a pollutant as prohibited

  9  by ss. 376.30-376.319 shall immediately undertake to contain,

10  remove, and abate the discharge in accordance with the

11  criteria established in s. 376.3071(5)(b) and department rules

12  adopted thereunder to the satisfaction of the department.

13  However, such an undertaking to contain, remove, or abate a

14  discharge shall not be deemed an admission of responsibility

15  for the discharge by the person taking such action.

16  Notwithstanding this requirement, the department may undertake

17  the removal of the discharge and may contract and retain

18  agents who shall operate under the direction of the

19  department.

20         (6)  The Legislature created the Abandoned Tank

21  Restoration Program in response to the need to provide

22  financial assistance for cleanup of sites that have abandoned

23  petroleum storage systems. For purposes of this subsection the

24  term "abandoned petroleum storage system" shall mean any

25  petroleum storage system that has not stored petroleum

26  products for consumption, use, or sale since March 1, 1990.

27  The department shall establish the Abandoned Tank Restoration

28  Program to facilitate the restoration of sites contaminated by

29  abandoned petroleum storage systems.

30         (a)  To be included in the program:

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  1         1.  An application must be submitted to the department

  2  by June 30, 1996, certifying that the system has not stored

  3  petroleum products for consumption, use, or sale at the

  4  facility since March 1, 1990.

  5         2.  The owner or operator of the petroleum storage

  6  system when it was in service must have ceased conducting

  7  business involving consumption, use, or sale of petroleum

  8  products at that facility on or before March 1, 1990.

  9         3.  The site is not otherwise eligible for the cleanup

10  programs pursuant to s. 376.3071 or s. 376.3072.

11         (b)  In order to be eligible for the program, petroleum

12  storage systems from which a discharge occurred must be closed

13  in accordance with department rules prior to an eligibility

14  determination. However, if the department determines that the

15  owner of the facility is financially unable to comply with the

16  department's petroleum storage system closure requirements and

17  all other eligibility requirements are met, the petroleum

18  storage system closure requirements shall be waived.  The

19  department shall take into consideration the owner's net worth

20  and the economic impact on the owner in making the

21  determination of the owner's financial ability.  Applications

22  The June 30, 1996, application deadline shall be waived for

23  Abandoned-Tank-Restoration-Program owners who are financially

24  unable to comply must be received by the department by

25  December 31, 1999. The department may not accept any

26  application received after December 31, 1999.

27         (c)  Sites accepted in the program will be eligible for

28  site rehabilitation funding as provided in s. 376.3071(12) or

29  s. 376.30711, as appropriate.

30         (d)  The following sites are excluded from eligibility:

31         1.  Sites on property of the Federal Government;

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  1         2.  Sites contaminated by pollutants that are not

  2  petroleum products;

  3         3.  Sites where the department has been denied site

  4  access; or

  5         4.  Sites which are owned by any person who had

  6  knowledge of the polluting condition when title was acquired

  7  unless that person acquired title to the site after issuance

  8  of a notice of site eligibility by the department.

  9         (e)  Participating sites are subject to a deductible as

10  determined by rule, not to exceed $10,000.

11

12  The provisions of this subsection do not relieve any person

13  who has acquired title subsequent to July 1, 1992, from the

14  duty to establish by a preponderance of the evidence that he

15  or she undertook, at the time of acquisition, all appropriate

16  inquiry into the previous ownership and use of the property

17  consistent with good commercial or customary practice in an

18  effort to minimize liability, as required by s. 376.308(1)(c).

19         Section 3.  Paragraph (c) of subsection (5), paragraphs

20  (a) and (b) of subsection (7), subsection (11), paragraph (k)

21  of subsection (12), and paragraphs (c) and (g) of subsection

22  (13) of section 376.3071, Florida Statutes, are amended to

23  read:

24         376.3071  Inland Protection Trust Fund; creation;

25  purposes; funding.--

26         (5)  SITE SELECTION AND CLEANUP CRITERIA.--

27         (c)  The department may provide funding for shall

28  require source removal activities, if warranted and

29  cost-effective pursuant to paragraph (b), at each site

30  eligible for restoration funding from the Inland Protection

31  Trust Fund. Funding for source removal activities may be

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  1  provided in advance of in the order established by the

  2  priority ranking system pursuant to paragraph (a) for site

  3  cleanup activities, however, a separate prioritization for

  4  source removal must be established consistent with paragraph

  5  (a). No more than $5 million may be encumbered from the Inland

  6  Protection Trust Fund in any fiscal year for source removal

  7  activities conducted in advance of the priority order

  8  established for site cleanup activities under paragraph (a).

  9  Once source removal at a site is complete, the department

10  shall reevaluate the site to determine the degree of active

11  cleanup needed to continue.  Further, the department shall

12  determine if the reevaluated site qualifies for monitoring

13  only or if no further action is required to rehabilitate the

14  site.  If additional site rehabilitation is necessary to reach

15  no further action status, the department is encouraged to

16  utilize natural attenuation and monitoring where site

17  conditions warrant.

18         (7)  DEPARTMENTAL DUTY TO SEEK RECOVERY AND

19  REIMBURSEMENT.--

20         (a)  Except as provided in ss. 376.305(6) and 376.3072

21  and subsections subsection (9) and (13) and as otherwise

22  provided by law, the department shall recover to the use of

23  the fund from a person or persons at any time causing or

24  having caused the discharge or from the Federal Government,

25  jointly and severally, all sums owed or expended from the

26  fund, pursuant to s. 376.308, except that the department may

27  decline to pursue such recovery if it finds the amount

28  involved too small or the likelihood of recovery too

29  uncertain.  Sums recovered as a result of damage due to a

30  discharge related to the storage of petroleum or petroleum

31  products or other similar disaster shall be apportioned

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  1  between the fund and the General Revenue Fund so as to repay

  2  the full costs to the General Revenue Fund of any sums

  3  disbursed therefrom as a result of such disaster.  Any request

  4  for reimbursement to the fund for such costs, if not paid

  5  within 30 days of demand, shall be turned over to the

  6  department for collection.

  7         (b)  Except as provided in ss. 376.305(6) and 376.3072

  8  and subsections subsection (9) and (13) and as otherwise

  9  provided by law, it is the duty of the department in

10  administering the fund diligently to pursue the reimbursement

11  to the fund of any sum expended from the fund for cleanup and

12  abatement in accordance with the provisions of this section or

13  s. 376.3073, unless the department finds the amount involved

14  too small or the likelihood of recovery too uncertain.  For

15  the purposes of s. 95.11, the limitation period within which

16  to institute an action to recover such sums shall commence on

17  the last date on which any such sums were expended, and not

18  the date that the discharge occurred.

19         (11)(a)  Voluntary cleanup.--Nothing in this section

20  shall be deemed to prohibit a person from conducting site

21  rehabilitation either through his or her own personnel or

22  through responsible response action contractors or

23  subcontractors when such person is not seeking site

24  rehabilitation funding from the fund.  Such voluntary cleanups

25  must meet all applicable environmental standards.

26         (b)  Nonreimbursable voluntary cleanup.--For sites with

27  releases reported prior to January 1, 1995, the department

28  shall issue a determination of "No Further Action" at sites

29  ranked with a total priority score of 10 or less, which meet

30  the following conditions:

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  1         1.  No free product exists in wells, boreholes,

  2  subsurface utility conduits, or vaults or buildings and no

  3  other fire or explosion hazard exists as a result of a release

  4  of petroleum products.

  5         2.  No excessively contaminated soil, as defined by

  6  department rule, exists onsite as a result of a release of

  7  petroleum products.

  8         3.  Public supply wells for consumptive use of water

  9  expected to be affected by the site shall not be located

10  within a  1/2 -mile radius of the site; private supply wells

11  for consumptive use of water expected to be affected by the

12  site shall not be located within a  1/4 -mile radius of the

13  site; and there must be no current or projected consumptive

14  use of the water affected by the site for at least the

15  following 3 years.  Where appropriate, institutional controls

16  meeting the requirements of subparagraph (5)(b)4. may be

17  required by the department to meet these criteria.

18         4.  The release of petroleum products at the site shall

19  not adversely affect adjacent surface waters, including their

20  effects on human health and the environment.

21         5.  The area of groundwater containing the petroleum

22  products' chemicals of concern in concentrations greater than

23  the boundary values defined in subparagraph 7. is less than

24  one-quarter acre.

25         6.  Soils onsite that are subject to human exposure

26  found between land surface and 2 feet below land surface shall

27  meet the criteria established pursuant to sub-subparagraph

28  (5)(b)9.a.  Where appropriate, institutional or engineering

29  controls meeting the requirements of subparagraph (5)(b)4. may

30  be required by the department to meet these criteria.

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  1         7.  Concentrations of the petroleum products' chemicals

  2  of concern in groundwater at the property boundary of the real

  3  property on which the petroleum contamination originates shall

  4  not exceed the criteria established pursuant to

  5  sub-subparagraph (5)(b)7.a.  Where appropriate, institutional

  6  or engineering controls meeting the requirements of

  7  subparagraph (5)(b)4. may be required by the department to

  8  meet these criteria.

  9         8.  The department is authorized to establish alternate

10  cleanup target levels for onsite nonboundary wells pursuant to

11  the criteria in subparagraph (5)(b)8.

12         9.  A scientific evaluation that demonstrates that the

13  boundary criteria in subparagraph 7. will not be exceeded and

14  a 1-year site-specific groundwater monitoring plan approved in

15  advance by the department validates the scientific evaluation.

16  If the boundary criteria in subparagraph 7. are exceeded at

17  any time, the department may order an extension of the

18  monitoring period for up to 12 additional months from the time

19  of the excess reading. The department shall determine the

20  adequacy of the groundwater monitoring system at a site.  All

21  wells required by the department pursuant to this paragraph

22  shall be installed before the monitoring period begins.

23         10.  Costs associated with activities performed

24  pursuant to this paragraph for sites which qualify for a

25  determination of "No Further Action" under this paragraph

26  shall not be reimbursable from the Inland Protection Trust

27  Fund.

28         (12)  REIMBURSEMENT FOR CLEANUP EXPENSES.--Except as

29  provided in s. 2(3), chapter 95-2, Laws of Florida, this

30  subsection shall not apply to any site rehabilitation program

31  task initiated after March 29, 1995. Effective August 1, 1996,

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  1  no further site rehabilitation work on sites eligible for

  2  state-funded cleanup from the Inland Protection Trust Fund

  3  shall be eligible for reimbursement pursuant to this

  4  subsection.  The person responsible for conducting site

  5  rehabilitation may seek reimbursement for site rehabilitation

  6  program task work conducted after March 28, 1995, in

  7  accordance with s. 2(2) and (3), chapter 95-2, Laws of

  8  Florida, regardless of whether the site rehabilitation program

  9  task is completed.  A site rehabilitation program task shall

10  be considered to be initiated when actual onsite work or

11  engineering design, pursuant to chapter 62-770, Florida

12  Administrative Code, which is integral to performing a site

13  rehabilitation program task has begun and shall not include

14  contract negotiation and execution, site research, or project

15  planning.  All reimbursement applications pursuant to this

16  subsection must be submitted to the department by January 3,

17  1997.  The department shall not accept any applications for

18  reimbursement or pay any claims on applications for

19  reimbursement received after that date; provided, however if

20  an application filed on or prior to January 3, 1997, was

21  returned by the department on the grounds of untimely filing,

22  it shall be refiled within 30 days after the effective date of

23  this act in order to be processed.

24         (k)  Audits.--

25         1.  The department is authorized to perform financial

26  and technical audits in order to certify site restoration

27  costs and ensure compliance with this chapter.  The department

28  shall seek recovery of any overpayments based on the findings

29  of these audits or audits conducted by the Auditor General.

30  The department must commence any audit within 5 years after

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  1  the date of reimbursement, except in cases where the

  2  department alleges specific facts indicating fraud.

  3         2.  Upon determination by the department that any

  4  portion of costs which have been reimbursed are disallowed,

  5  the department shall give written notice to the applicant

  6  setting forth with specificity the allegations of fact which

  7  justify the department's proposed action and ordering

  8  repayment of disallowed costs within 60 days of notification

  9  of the applicant.

10         3.  In the event the applicant does not make payment to

11  the department within 60 days of receipt of such notice, the

12  department shall seek recovery in a court of competent

13  jurisdiction to recover reimbursement overpayments made to the

14  person responsible for conducting site rehabilitation, unless

15  the department finds the amount involved too small or the

16  likelihood of recovery too uncertain.

17         4.  In addition to the amount of any overpayment, the

18  applicant shall be liable to the department for interest of 1

19  percent per month or the prime rate, whichever is less, on the

20  amount of overpayment, from the date of overpayment by the

21  department until the applicant satisfies the department's

22  request for repayment pursuant to this paragraph.  The

23  calculation of interest shall be tolled during the pendency of

24  any litigation.

25         5.  Financial and technical audits frequently are

26  conducted under this section many years after the site

27  rehabilitation activities were performed and the costs

28  examined in the course of the audit were incurred by the

29  person responsible for site rehabilitation.  During the

30  intervening span of years, the department's rule requirements

31  and its related guidance and other nonrule policy directives

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  1  may have changed significantly.  The Legislature finds that it

  2  may be appropriate for the department to provide relief to

  3  persons subject to such requirements in financial and

  4  technical audits conducted pursuant to this section.

  5         a.  The department is authorized to grant variances and

  6  waivers from the documentation requirements of subparagraph

  7  (e)2. and from the requirements of rules applicable in

  8  technical and financial audits conducted under this section.

  9  Variances and waivers shall be granted when the person

10  responsible for site rehabilitation demonstrates to the

11  department that application of a financial or technical

12  auditing requirement would create a substantial hardship or

13  would violate principles of fairness.  For purposes of this

14  subsection, "substantial hardship" means a demonstrated

15  economic, technological, legal, or other type of hardship to

16  the person requesting the variance or waiver.  For purposes of

17  this subsection, "principles of fairness" are violated when

18  the application of a requirement affects a particular person

19  in a manner significantly different from the way it affects

20  other similarly situated persons who are affected by the

21  requirement or when the requirement is being applied

22  retroactively without due notice to the affected parties.

23         b.  A person whose reimbursed costs are subject to a

24  financial and technical audit under this section may file a

25  written request to the department for grant of a variance or

26  waiver.  The request shall specify:

27         (I)  The requirement from which a variance or waiver is

28  requested.

29         (II)  The type of action requested.

30         (III)  The specific facts which would justify a waiver

31  or variance.

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  1         (IV)  The reason or reasons why the requested variance

  2  or waiver would serve the purposes of this section.

  3         c.  Within 90 days after receipt of a written request

  4  for variance or waiver under this subsection, the department

  5  shall grant or deny the request. If the request is not granted

  6  or denied within 90 days of receipt, the request shall be

  7  deemed approved.  An order granting or denying the request

  8  shall be in writing and shall contain a statement of the

  9  relevant facts and reasons supporting the department's action.

10  The department's decision to grant or deny the petition shall

11  be supported by competent substantial evidence and is subject

12  to ss. 120.569 and 120.57.  Once adopted, model rules

13  promulgated by the Administration Commission under s. 120.542

14  shall govern the processing of requests under this provision;

15  however, the department may process requests prior to the

16  adoption of those model rules.

17         6.  The Comptroller may audit the records of persons

18  who receive or who have received payments pursuant to this

19  chapter in order to verify site restoration costs, ensure

20  compliance with this chapter, and verify the accuracy and

21  completeness of audits performed by the department pursuant to

22  this paragraph.  The Comptroller may contract with entities or

23  persons to perform audits pursuant to this subparagraph.  The

24  Comptroller shall commence any audit within 1 year after the

25  department's completion of an audit conducted pursuant to this

26  paragraph, except in cases where the department or the

27  Comptroller alleges specific facts indicating fraud.

28         (13)  PETROLEUM CLEANUP PARTICIPATION PROGRAM.--To

29  encourage detection, reporting, and cleanup of contamination

30  caused by discharges of petroleum or petroleum products, the

31  department shall, within the guidelines established in this

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  1  subsection, implement a cost-sharing cleanup program to

  2  provide rehabilitation funding assistance for all property

  3  contaminated by discharges of petroleum or petroleum products

  4  occurring before January 1, 1995, subject to a copayment

  5  provided for in a preapproved site rehabilitation agreement.

  6  Eligibility shall be subject to an annual appropriation from

  7  the Inland Protection Trust Fund.  Additionally, funding for

  8  eligible sites shall be contingent upon annual appropriation

  9  in subsequent years.  Such continued state funding shall not

10  be deemed an entitlement or a vested right under this

11  subsection.  Eligibility in the program shall be

12  notwithstanding any other provision of law, consent order,

13  order, judgment, or ordinance to the contrary.

14         (c)  Upon notification by the department that

15  rehabilitation funding assistance is available for the site

16  pursuant to subsection (5) and s. 376.30711, the owner,

17  operator, or person otherwise responsible for site

18  rehabilitation shall provide the department with a limited

19  contamination assessment report and shall enter into a

20  preapproved site rehabilitation agreement with the department

21  and a contractor qualified under s. 376.30711(2)(b).  The

22  agreement shall provide for a 25-percent copayment by the

23  owner, operator, or person otherwise responsible for

24  conducting site rehabilitation.  The owner, operator, or

25  person otherwise responsible for conducting site

26  rehabilitation shall adequately demonstrate the ability to

27  meet the copayment obligation.  The limited contamination

28  assessment report and the copayment costs may be reduced or

29  eliminated if the owner and all operators responsible for

30  restoration under s. 376.308 demonstrate that they are

31  financially unable to comply with the copayment and limited

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  1  contamination assessment report requirements.  The department

  2  shall take into consideration the owner's and operator's net

  3  worth in making the determination of financial ability. If the

  4  department and the owner, operator, or person otherwise

  5  responsible for site rehabilitation are unable to complete

  6  negotiations of the cost-sharing agreement within 120 days

  7  after commencing negotiations, the department shall terminate

  8  the negotiation; the site becomes ineligible for state funding

  9  under this subsection; and all liability protections provided

10  under this subsection are revoked.

11         (g)  The following shall be excluded from participation

12  in the program:

13         1.  Sites at which the department has been denied

14  reasonable site access to implement the provisions of this

15  section.

16         2.  Sites that were active facilities when owned or

17  operated by the Federal Government.

18         3.  Sites that are identified by the United States

19  Environmental Protection Agency to be on, or which qualify for

20  listing on, the National Priorities List under Superfund.

21  This exception does not apply to those sites for which

22  eligibility has been requested or granted as of the effective

23  date of this act under the Early Detection Incentive Program

24  established pursuant to s. 15, chapter 86-159, Laws of

25  Florida.

26         4.  The contamination is covered under the Early

27  Detection Incentive Program, the Abandoned Tank Restoration

28  Program or the Petroleum Liability and Restoration Insurance

29  Program, in which case site rehabilitation funding assistance

30  shall continue under the respective program.

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  1         5.  Any person who knowingly acquires title to

  2  contaminated property shall not be eligible for restoration

  3  funding pursuant to this subsection. The provisions of this

  4  subsection do not relieve any person who has acquired title

  5  subsequent to July 1, 1992, from the duty to establish by a

  6  preponderance of the evidence that he or she undertook, at the

  7  time of acquisition, all appropriate inquiry into the previous

  8  ownership and use of the property consistent with good

  9  commercial or customary practice in an effort to minimize

10  liability, as required by s. 376.308(1)(c). The provisions of

11  this subparagraph do not apply to any person who acquires

12  title by succession or devise.

13         Section 4.  Section 376.30714, Florida Statutes, is

14  created to read:

15         376.30714  Site rehabilitation agreements.--

16         (1)  In addition to the legislative findings provided

17  in s. 367.3071, the Legislature finds that:

18         (a)  The provisions of s. 376.3071(5)(a) and s.

19  376.30711 have delayed cleanup of low-priority sites

20  determined to be eligible for state funding under ss. 376.305,

21  376.3071 and 376.3072.

22         (b)  While compliance with the department's rules

23  pertaining to storage tank systems is expected to

24  significantly diminish the occurrence and extent of discharges

25  of petroleum products from petroleum storage systems,

26  discharges from these systems and discharges at sites with

27  existing contamination may still occur. In some cases, it may

28  be difficult to distinguish between discharges that have been

29  determined to be eligible for state funding from those

30  discharges reported after December 31, 1998, which are

31  ineligible for state funding.

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  1         (c)  Beginning January 1, 1999, restoration coverage

  2  under s. 376.3072(2)(d) is not provided for discharges of

  3  petroleum products from petroleum storage systems that are

  4  reported to the department after December 31, 1998. This will

  5  result in discharges that are ineligible for state-funded

  6  cleanup on sites with existing contamination.

  7         (d)  It is necessary for the discharger and may be

  8  desirable for the department to address the requirements for

  9  cleanup of discharges of petroleum products reported to the

10  department after December 31, 1998, which occur at sites with

11  existing contamination.

12         (e)  It is appropriate for persons assuming

13  responsibility for cleanup of such discharges occurring after

14  December 31, 1998, at sites with existing contamination to

15  share the costs associated with managing and conducting

16  cleanup of those discharges, upon application to the

17  department and in accordance with a priority established for

18  such cleanup in a negotiated site-rehabilitation agreement.

19         (2)  For the purposes of this section only, the term:

20         (a)  "New discharge" means a discharge of petroleum

21  products reported after December 31, 1998, occurring at a site

22  having existing contamination.

23         (b)  "Existing contamination" means contamination that

24  has been determined by the department to be eligible for

25  state-funded cleanup under s. 376.305, s. 376.3071, or s.

26  376.3072 before the new discharge.

27         (c)  "Qualified site" means a site at which there is

28  new discharge and for which the applicant has entered into a

29  site-rehabilitation agreement with the department.

30         (d)  "Applicant" means a facility owner, operator,

31  discharger, or entity accepting responsibility for cleanup of

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  1  a new discharge on a qualified site who has entered into a

  2  site-rehabilitation agreement with the department. Execution

  3  of the site-rehabilitation agreement does not constitute an

  4  admission of liability for the new discharge by the applicant.

  5         (3)  Free product attributable to a new discharge must

  6  be removed to the extent practicable and in accordance with

  7  department rules at the expense of the owner, operator, or

  8  other responsible party. Free product removal attributable to

  9  existing contamination must be performed in accordance with s.

10  376.3071(5)(c) or s. 376.30711(1)(b) and with department

11  rules.

12         (4)  Beginning January 1, 1999, the department may

13  negotiate and enter into site-rehabilitation agreements with

14  applicants at sites at which there is existing contamination

15  and at which a new discharge occurs. The site-rehabilitation

16  agreement must include, but need not be limited to, provisions

17  establishing the funding responsibilities of the department

18  and the applicant for cleanup of the qualified site,

19  establishing procedures to guarantee the applicant's

20  commitment to pay its agreed-upon amount of site

21  rehabilitation as set forth in the agreement, and establishing

22  the priority in which cleanup of the qualified site will

23  occur. Under any negotiated site-rehabilitation agreement, the

24  applicant will be responsible for no more than the cleanup

25  costs at the qualified site which are attributable to the new

26  discharge; however, the payment of any applicable deductibles,

27  copayments, or other program eligibility requirements under

28  ss. 376.305, 376.3071, and 376.3072 continue to apply to the

29  existing contamination and must be accounted for in the

30  negotiated site-rehabilitation agreement. The department may

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  1  preapprove or conduct additional assessment activities at the

  2  site.

  3         (5)  Applications for site-rehabilitation agreements

  4  may be submitted to the department not later than 120 days

  5  after discovery of the new discharge, on forms and in

  6  accordance with instructions provided by the department, and

  7  must include, but need not be limited to:

  8         (a)  A limited contamination-assessment report that is

  9  sufficient to demonstrate the extent of the new discharge and

10  that may include any other evidence relevant to establish the

11  extent or volume of the new discharge or the impact of the new

12  discharge relative to the existing contamination in order to

13  determine the appropriate funding responsibilities of the

14  applicant and the department. The limited

15  contamination-assessment report shall be used as a basis for

16  establishing the site-rehabilitation funding responsibilities

17  between the applicant and the department for the new discharge

18  and the existing contamination and for establishing the

19  priority in which cleanup of the new discharge and the

20  existing contamination will occur, based on s. 376.3071(5)(b)

21  and taking into consideration the cost effectiveness

22  associated with the timing of site-rehabilitation activities.

23         (b)  Certification by the applicant that the applicant

24  has the prerequisite authority to enter into the

25  site-rehabilitation agreement.

26         (6)  Any costs incurred by the applicant in complying

27  with subsection (5) are not refundable from the Inland

28  Protection Trust Fund.

29         (7)  Only one application may be submitted for any new

30  discharge under this section.

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  1         (8)  If the department and the applicant are unable to

  2  agree on the apportionment of the funding responsibilities for

  3  a site otherwise qualified under this section, the provisions

  4  of chapter 120 apply. The administrative law judge shall, in

  5  making any determinations or recommendations regarding the

  6  apportionment of the funding responsibilities of the

  7  department and the applicant for the new discharge and the

  8  existing contamination, consider any admissible evidence

  9  relating to apportionment of the discharges.

10         (9)  The following are not covered by this section:

11         (a)  New discharges from storage systems owned or

12  operated by the Federal Government when the new discharge

13  occurred.

14         (b)  New discharges at facilities that failed to

15  correct a violation cited in a previous compliance inspection

16  when that failure contributed to or was the cause of the new

17  discharge.

18         (c)  New discharges intentionally caused by the owner,

19  operator, responsible party, or applicant.

20         (d)  Sites to which the department has been denied

21  access.

22         (e)  New discharges at sites that are identified by the

23  United States Environmental Protection Agency to be on or that

24  qualify for listing on the National Priorities List under

25  Superfund. This exception does not apply to those sites for

26  which eligibility has been requested or granted as of the

27  effective date of this section under the Early Detection

28  Incentive Program.

29         (f)  New discharges at sites where the person or entity

30  required to report the new discharge upon its discovery as

31  required by department rule, or where the person or entity

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  1  required to initiate free product recovery, as required by

  2  department rule, failed to do so.

  3         (10)  Negotiations for agreements under this section

  4  will commence in the order received, based on the date of the

  5  application. If the department is unable to complete

  6  negotiations of the agreement within 90 days after commencing

  7  negotiations, the department shall terminate negotiations with

  8  the applicant and the site shall receive no further

  9  consideration under this section. However, if the parties are

10  negotiating under this section in good faith and need

11  additional time in which to continue negotiations, the parties

12  may agree to continue negotiations.

13         (11)  Site rehabilitation conducted at qualified sites

14  must be conducted under ss. 376.3071(5)(b) and 376.30711. If

15  the terms of the agreement are not fulfilled by the

16  application, the applicant forfeits any right to continued

17  funding for any site rehabilitation work under the agreement

18  and is subject to enforcement action by the department or

19  local government to compel cleanup of the new discharge.

20         (12)  The department may enter into agreements under

21  this section for a total of up to $5 million in each fiscal

22  year, subject to annual appropriation. However, a qualified

23  site may not be approved for more than $250,000 of cleanup

24  activity in each fiscal year. The funding limitations under

25  ss. 376.305, 376.3071, and 376.3072 continue to apply to the

26  existing contamination.

27         (13)  New discharges otherwise meeting the criteria of

28  this section or any site-rehabilitation agreement made under

29  this section do not create an independent entitlement to

30  continued restoration funding or to cleanup of the existing

31  contamination in advance of its previous priority order.

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  1         (14)  Upon execution of the site-rehabilitation

  2  agreement, neither the department nor any local government may

  3  pursue any judicial or enforcement action to compel

  4  rehabilitation of the new discharge that is the subject of the

  5  agreement so long as the applicant remains in compliance with

  6  the terms and conditions of the agreement. However, if state

  7  funding of any agreement entered into under this section is

  8  discontinued, the provisions of this subsection no longer

  9  apply to the new discharge. For purposes of chapter 95, a

10  cause of action by the department or any local government to

11  compel cleanup of the new discharge or to compel payment of

12  costs of the new discharge does not accrue during the time

13  that the site-rehabilitation agreement is in effect.

14         (15)  This section does not preclude the department

15  from pursuing penalties in accordance with ss. 376.303(1)(k)

16  and 376.311 for violations of any law or any rule, order,

17  permit, registration, or certification adopted or issued by

18  the department under its lawful authority.

19         Section 5.  This act shall take effect upon becoming a

20  law.

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

  2                          SENATE SUMMARY

  3    For purposes of the law relating to underground storage
      tank systems and the petroleum contamination cleanup
  4    program:
           1.  Redefines the term "facility" to include systems
  5  with capacities greater than 1,100 gallons and systems used
    primarily for generation of emergency electric power.
  6         2.  Provides a deadline for the submittal of an
    application under the Abandoned Tank Restoration Program.
  7         3.  Provides for funding of source removal in advance
    of site priority orders.
  8         4.  Deletes nonreimbursable voluntary cleanup
    provisions.
  9         5.  Authorizes the Department of Environmental
    Protection to recover overpayments based on audits by the
10  Auditor General.
           6.  Provides for the termination of negotiations of
11  cost-sharing agreements after 120 days.
           7.  Eliminates exclusion from the petroleum
12  contamination participation program for any person who
    knowingly acquires title to contaminated property.
13         8.  Authorizes the department and owners of existing
    contaminated property eligible for state-funded site cleanup
14  to enter into a cost-sharing agreement for site rehabilitation
    when a new discharge occurs.
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