Senate Bill 2536c1

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    Florida Senate - 1999                           CS for SB 2536

    By the Committee on Natural Resources and Senator Diaz-Balart





    312-2001-99

  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. 376.3071, F.S.; providing

  5         for funding of source-removal activities;

  6         providing for the termination of negotiations

  7         after a specified time; deleting provisions

  8         relating to an exclusion from participation in

  9         the petroleum contamination participation

10         program for persons who knowingly acquire title

11         to contaminated property; amending s.

12         376.30711, F.S.; providing for an innovative

13         technology pilot program consisting of five

14         sites eligible for state restoration funding

15         which have low priority ranking scores;

16         amending s. 376.30713, F.S.; providing for

17         future legislative review; creating s.

18         376.30714, F.S.; providing authority for the

19         department and owners of existing contaminated

20         property eligible for state-funded site cleanup

21         to enter into a cost-sharing agreement for site

22         rehabilitation when a new discharge occurs;

23         providing for retroactive application;

24         providing an effective date.

25

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

27

28         Section 1.  Paragraph (c) of subsection (5), and

29  paragraphs (c) and (g) of subsection (13) of section 376.3071,

30  Florida Statutes, are amended to read:

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    Florida Senate - 1999                           CS for SB 2536
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  1         376.3071  Inland Protection Trust Fund; creation;

  2  purposes; funding.--

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

  4         (c)  The department shall require source removal, if

  5  warranted and cost-effective, at each site eligible for

  6  restoration funding from the Inland Protection Trust Fund.

  7  Funding for free product recovery may be provided in advance

  8  of in the order established by the priority ranking system

  9  pursuant to paragraph (a) for site cleanup activities.

10  However, a separate prioritization for free product recovery

11  must be established consistent with paragraph (a). No more

12  than $5 million may be encumbered from the Inland Protection

13  Trust Fund in any fiscal year for free product recovery

14  conducted in advance of the priority order established

15  pursuant to paragraph (a) for site cleanup activities. Once

16  free product source removal at a site is complete, the

17  department shall reevaluate the site to determine the degree

18  of active cleanup needed to continue.  Further, the department

19  shall determine if the reevaluated site qualifies for

20  monitoring only or if no further action is required to

21  rehabilitate the site.  If additional site rehabilitation is

22  necessary to reach no further action status, the department is

23  encouraged to utilize natural attenuation and monitoring where

24  site conditions warrant.

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

26  encourage detection, reporting, and cleanup of contamination

27  caused by discharges of petroleum or petroleum products, the

28  department shall, within the guidelines established in this

29  subsection, implement a cost-sharing cleanup program to

30  provide rehabilitation funding assistance for all property

31  contaminated by discharges of petroleum or petroleum products

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    Florida Senate - 1999                           CS for SB 2536
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  1  occurring before January 1, 1995, subject to a copayment

  2  provided for in a preapproved site rehabilitation agreement.

  3  Eligibility shall be subject to an annual appropriation from

  4  the Inland Protection Trust Fund.  Additionally, funding for

  5  eligible sites shall be contingent upon annual appropriation

  6  in subsequent years.  Such continued state funding shall not

  7  be deemed an entitlement or a vested right under this

  8  subsection.  Eligibility in the program shall be

  9  notwithstanding any other provision of law, consent order,

10  order, judgment, or ordinance to the contrary.

11         (c)  Upon notification by the department that

12  rehabilitation funding assistance is available for the site

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

14  operator, or person otherwise responsible for site

15  rehabilitation shall provide the department with a limited

16  contamination assessment report and shall enter into a

17  preapproved site rehabilitation agreement with the department

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

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

20  owner, operator, or person otherwise responsible for

21  conducting site rehabilitation.  The owner, operator, or

22  person otherwise responsible for conducting site

23  rehabilitation shall adequately demonstrate the ability to

24  meet the copayment obligation.  The limited contamination

25  assessment report and the copayment costs may be reduced or

26  eliminated if the owner and all operators responsible for

27  restoration under s. 376.308 demonstrate that they are

28  financially unable to comply with the copayment and limited

29  contamination assessment report requirements.  The department

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

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

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  1  department and the owner, operator, or person otherwise

  2  responsible for site rehabilitation are unable to complete

  3  negotiations of the cost-sharing agreement within 120 days

  4  after commencing negotiations, the department shall terminate

  5  negotiations and the site shall be deemed ineligible for state

  6  funding under this subsection; and all liability protections

  7  provided under this subsection are revoked.

  8         (g)  The following shall be excluded from participation

  9  in the program:

10         1.  Sites at which the department has been denied

11  reasonable site access to implement the provisions of this

12  section.

13         2.  Sites that were active facilities when owned or

14  operated by the Federal Government.

15         3.  Sites that are identified by the United States

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

17  listing on, the National Priorities List under Superfund.

18  This exception does not apply to those sites for which

19  eligibility has been requested or granted as of the effective

20  date of this act under the Early Detection Incentive Program

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

22  Florida.

23         4.  The contamination is covered under the Early

24  Detection Incentive Program, the Abandoned Tank Restoration

25  Program or the Petroleum Liability and Restoration Insurance

26  Program, in which case site rehabilitation funding assistance

27  shall continue under the respective program.

28         5.  Any person who knowingly acquires title to

29  contaminated property shall not be eligible for restoration

30  funding pursuant to this subsection. The provisions of this

31  subsection do not relieve any person who has acquired title

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    Florida Senate - 1999                           CS for SB 2536
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  1  subsequent to July 1, 1992, from the duty to establish by a

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

  3  time of acquisition, all appropriate inquiry into the previous

  4  ownership and use of the property consistent with good

  5  commercial or customary practice in an effort to minimize

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

  7  this subparagraph do not apply to any person who acquires

  8  title by succession or devise.

  9         Section 2.  Subsection (8) is added to section

10  376.30711, Florida Statutes, to read:

11         376.30711  Preapproved site rehabilitation, effective

12  March 29, 1995.--

13         (8)  The department shall select five sites eligible

14  for state restoration funding assistance under this section,

15  each having a low priority ranking score pursuant to s.

16  376.3071(5), for an innovative technology pilot program. Such

17  sites shall be representative of varying geographic,

18  geophysical, and petroleum-contaminated conditions. Utilizing

19  the department's list of mechanical, chemical, and biological

20  products and processes that have already been deemed

21  acceptable from an environmental, regulatory, and safety

22  standpoint, the department shall select innovative products

23  and processes, based upon competitive-bid procedures

24  stipulated in subsection (2), to be utilized on pilot project

25  sites.

26         Section 3.  Subsection (7) of section 376.30713,

27  Florida Statutes, is amended to read:

28         376.30713  Preapproved advanced cleanup.--

29         (7)  This section is repealed effective October 1,

30  1999, and shall be subject to legislative review prior to

31  March 1, 2001 that date.

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    Florida Senate - 1999                           CS for SB 2536
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  1         Section 4.  Section 376.30714, Florida Statutes, is

  2  created to read:

  3         376.30714  Site rehabilitation agreements.--

  4         (1)  In addition to the legislative findings provided

  5  in s. 367.3071, the Legislature finds and declares that:

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

  7  376.30711 have delayed cleanup of low-priority sites

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

  9  376.3071, and 376.3072.

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

11  pertaining to storage tank systems is expected to

12  significantly diminish the occurrence and extent of discharges

13  of petroleum products from petroleum storage systems,

14  discharges from these systems and discharges at sites with

15  existing contamination which may have been determined to be

16  eligible for state-funded cleanup may still occur. In some

17  cases, it may be difficult to distinguish between discharges

18  that have been determined to be eligible for state funding and

19  those discharges reported after December 31, 1998, which are

20  ineligible for state funding.

21         (c)  Restoration coverage under s. 376.3072(2)(d) is no

22  longer provided for discharges of petroleum products from

23  petroleum storage systems which are reported to the department

24  after December 31, 1998. This situation may result in

25  discharges that are not eligible for state-funded cleanup

26  occurring on sites with existing contamination determined to

27  be eligible for state-funded cleanup.

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

29  desirable for the department, to address the cleanup of

30  discharges of petroleum products reported to the department

31  after December 31, 1998, including discharges that occur at

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    Florida Senate - 1999                           CS for SB 2536
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  1  sites with existing contamination determined to be eligible

  2  under ss. 376.305, 376.3071, and 376.3072.

  3         (e)  It is appropriate for persons assuming

  4  responsibility for cleanup of such discharges occurring after

  5  December 31, 1998, at sites with existing contamination

  6  determined to be eligible for state-funded cleanup to share

  7  the costs associated with managing and conducting cleanup of

  8  those discharges, upon application to the department and in

  9  accordance with a priority established for such cleanup in a

10  negotiated site-rehabilitation agreement.

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

12         (a)  "Applicant" means a facility owner, operator,

13  discharger, or entity who accepts responsibility for cleanup

14  of a new discharge on a qualified site and who applies for and

15  enters into a site-rehabilitation agreement with the

16  department. Application for or execution of the

17  site-rehabilitation agreement does not constitute an admission

18  of liability for the new discharge by the applicant.

19         (b)  "Existing contamination" means contamination that

20  has been determined by the department to be eligible for

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

22  376.3072 before the new discharge.

23         (c)  "New discharge" means a discharge of petroleum

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

25  having existing contamination.

26         (d)  "Qualified site" means a site at which there is

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

28  site-rehabilitation agreement with the department.

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

30  be removed to the extent practicable and in accordance with

31  department rules adopted pursuant to s. 376.3071(5) at the

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    Florida Senate - 1999                           CS for SB 2536
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  1  expense of the owner, operator, or other responsible party.

  2  Free product attributable to existing contamination must be

  3  removed in accordance with s. 376.3071(5) or s.

  4  376.30711(1)(b) and with department rules.

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

  6  negotiate and enter into site-rehabilitation agreements with

  7  applicants at sites with eligible existing contamination at

  8  which a new discharge occurs. The site-rehabilitation

  9  agreement must include, but need not be limited to, allocation

10  of the funding responsibilities of the department and the

11  applicant for cleanup of the qualified site, establishment of

12  a mechanism to guarantee the applicant's commitment to pay its

13  agreed-upon amount of site rehabilitation as set forth in the

14  agreement, and establishment of the priority in which cleanup

15  of the qualified site will occur. Under any negotiated

16  site-rehabilitation agreement, the applicant will be

17  responsible for no more than the cleanup costs at the

18  qualified site which are attributable to the new discharge.

19  However, the payment of any applicable deductibles,

20  copayments, or other program eligibility requirements under

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

22  existing contamination and must be accounted for in the

23  negotiated site-rehabilitation agreement. The department may

24  preapprove or conduct additional assessment activities at the

25  site.

26         (5)(a)  Applications for site-rehabilitation agreements

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

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

29  accordance with instructions provided by the department, and

30  must include, but need not be limited to:

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    Florida Senate - 1999                           CS for SB 2536
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  1         1.  A limited contamination-assessment report that is

  2  sufficient to demonstrate the extent of the new discharge and

  3  that may include any other evidence relevant to establish the

  4  extent or volume of the new discharge, or the impact of the

  5  new discharge relative to the existing contamination, in order

  6  to allocate the appropriate funding responsibilities of the

  7  applicant and the department. The limited

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

  9  establishing the respective site-rehabilitation funding

10  responsibilities of the applicant and the department for the

11  new discharge and the existing contamination and for

12  establishing the priority in which cleanup of the new

13  discharge and the existing contamination will occur, based on

14  s. 376.3071(5)(a) and taking into consideration the

15  cost-effectiveness associated with the timing of

16  site-rehabilitation activities.

17         2.  Certification by the applicant that the applicant

18  has the prerequisite authority to enter into the

19  site-rehabilitation agreement.

20         (b)  Any costs incurred by the applicant in complying

21  with this subsection are not refundable from the Inland

22  Protection Trust Fund.

23         (c)  Only one application may be submitted for any new

24  discharge under this section.

25         (d)  The application forms and instructions, and the

26  terms and conditions of the site-rehabilitation agreement,

27  except as set forth in subsection (6), shall not be subject to

28  the provisions of chapter 120.

29         (6)  If the department and the applicant are unable to

30  agree on the apportionment of the funding responsibilities and

31  on the establishment of priority of clean up for a site

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  1  otherwise qualified under this section, the provisions of ss.

  2  120.569 and 120.57 apply. The administrative law judge shall,

  3  in making any determinations or recommendations about the

  4  apportionment of the funding responsibilities of the

  5  department and the applicant for the new discharge and the

  6  existing contamination, consider any admissible evidence

  7  relating to apportionment of the discharges.

  8         (7)  The following shall be excluded from participation

  9  under this section:

10         (a)  New discharges from storage systems owned or

11  operated by the Federal Government when the new discharge

12  occurred.

13         (b)  New discharges at facilities that failed to

14  correct a violation cited in a previous compliance inspection

15  and at which the failure to correct the violation contributed

16  to or caused the new discharge.

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

18  operator, responsible party, or applicant.

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

20  access.

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

22  United States Environmental Protection Agency to be on or that

23  qualify for listing on the National Priorities List under

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

25  which eligibility has been requested or granted as of the

26  effective date of this section under the Early Detection

27  Incentive Program.

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

29  required to report the new discharge upon its discovery as

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

31  required to initiate free product recovery upon discovery, as

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  1  required by department rule adopted pursuant to ss. 376.303

  2  and 376.3071(5), failed to do so.

  3         (8)  If the department at its discretion, determines

  4  that it is not able to complete negotiations of the agreement

  5  within 90 days after commencing negotiations, except as set

  6  forth in subsection (6), the department shall terminate

  7  negotiations with the applicant and the site shall receive no

  8  further consideration under this section. However, if the

  9  parties are negotiating in good faith and need additional time

10  in which to continue negotiations, the parties may mutually

11  agree to continue negotiations.

12         (9)  Site rehabilitation conducted at qualified sites

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

14  the terms of the agreement are not fulfilled by the applicant,

15  the applicant forfeits any right to continued funding for any

16  site rehabilitation work under the agreement and is subject to

17  enforcement action by the department or local government to

18  compel cleanup of the new discharge.

19         (10)  New discharges otherwise meeting the criteria of

20  this section or any site-rehabilitation agreement made under

21  this section do not constitute an independent entitlement to

22  continued restoration funding or to cleanup of the existing

23  contamination in advance of its previous priority order.

24         (11)  Upon execution of the site-rehabilitation

25  agreement, retroactive to the date of discovery of the new

26  discharge, the provisions of s. 376.308(5) shall extend to

27  contamination covered by a site-rehabilitation agreement as

28  long as the applicant remains in compliance with the terms and

29  conditions of the agreement. However, if state funding of any

30  agreement entered into under this section is discontinued, the

31  provisions of this subsection no longer apply to the new

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  1  discharge. For purposes of chapter 95, a cause of action to

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

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

  4  that the site-rehabilitation agreement is in effect.

  5         (12)  This section does not preclude the department

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

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

  8  permit, registration, or certification adopted or issued by

  9  the department under its lawful authority.

10         (13)  The provisions of this section shall be

11  retroactive to January 1, 1999, except as provided by

12  subsection (11).

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

14  law.

15

16          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
17                             SB 2536

18

19  The committee substitute deletes the amendment to s. 376.301,
    F.S., which redefined the term "facility." Deletes the
20  amendment to s. 376.305, F.S., which would have provided a
    deadline for submittal of an application under the Abandoned
21  Tank Restoration Program. The provisions in current law
    relating to nonreimbursable voluntary cleanups are left
22  unamended. Deletes the provision in the original bill that
    would have allowed the Department of Environmental Protection
23  to recover overpayments as a result of an Auditor General
    audit. Provides for an innovative technology pilot program.
24  Provides for retroactive application of the cost-sharing
    provisions relating to new discharges occurring on a site
25  eligible for state funding assistance.

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