Senate Bill sb1376

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    Florida Senate - 2001                                  SB 1376

    By Senator Laurent





    17-533-01

  1                      A bill to be entitled

  2         An act relating to phosphogypsum stack

  3         management; amending s. 378.035, F.S.;

  4         authorizing the transfer of funds between trust

  5         funds; authorizing the expenditure of closure

  6         funds for abandoned stack systems from reserve

  7         funds in the Nonmandatory Land Reclamation

  8         Trust Fund; establishing a deadline for filing

  9         applications for funds; amending s. 403.4154,

10         F.S.; defining the terms "phosphogypsum stack

11         system" and "process wastewater"; authorizing

12         the Department of Environmental Protection to

13         abate imminent hazards from a phosphogypsum

14         stack system through the use of funds from the

15         Phosphogypsum Stack System Safety Assurance

16         Trust Fund; providing for registration fees;

17         providing a right of action and lien in favor

18         of the state to seek reimbursement of expended

19         abatement funds; providing for closure of

20         abandoned systems; providing an effective date.

21

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

23

24         Section 1.  Subsections (8), (9), and (10) are added to

25  section 378.035, Florida Statutes, to read:

26         378.035  Department responsibilities and duties with

27  respect to Nonmandatory Land Reclamation Trust Fund.--

28         (8)  The department may transfer up to $10 million from

29  the Nonmandatory Land Reclamation Trust Fund to the

30  Phosphogypsum Stack System Safety Assurance Trust Fund when

31  the fund balance of the Phosphogypsum Stack System Safety

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  1  Assurance Trust Fund is inadequate to meet the obligations of

  2  that fund. Any such transfer from the Nonmandatory Land

  3  Reclamation Trust Fund must be repaid from the Phosphogypsum

  4  Stack System Safety Assurance Trust Fund within 30 days after

  5  funds sufficient to make such payment are available in the

  6  Phosphogypsum Stack System Safety Assurance Trust Fund;

  7  however, any funds up to a total amount of $5 million dollars

  8  transferred before June 30, 2002, are not required to be

  9  repaid.

10         (9)  The department may expend funds from the

11  $30-million reserve fund established by subsection (5) for the

12  purpose of closing an abandoned phosphogypsum stack system and

13  carrying out post-closure care as provided by s. 403.4154(5).

14  The department may impose a lien on the real property on which

15  a closed phosphogypsum stack system and its formerly

16  associated phosphate fertilizer production facilities are

17  located equal in amount to the moneys expended from the

18  Nonmandatory Land Reclamation Trust Fund pursuant to s.

19  403.4154(5) for closure and post-closure care. The owner of

20  any property on which such a lien is imposed is entitled to a

21  release of the lien upon payment to the department of the lien

22  amount and execution of an agreement to carry out post-closure

23  care in accordance with applicable department rules.

24         (10)  The department may not accept any applications

25  for nonmandatory land reclamation programs after November 1,

26  2008.

27         Section 2.  Section 403.4154, Florida Statutes, is

28  amended to read:

29         403.4154  Phosphogypsum management program.--

30         (1)  DEFINITIONS.--As used in this section, the term:

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  1         (a)  "Department" means the Department of Environmental

  2  Protection.

  3         (b)  "Existing stack" means a phosphogypsum stack, as

  4  defined in paragraph (d), that is:

  5         1.  In existence in this state on May 12, 1993; or

  6         2.  Constructed in this state after May 12, 1993, and

  7  for which the department has received a certification of

  8  completion of construction submitted by the owner of the newly

  9  constructed phosphogypsum stack.

10

11  The term "existing stack" does not include a phosphogypsum

12  stack that has been closed pursuant to a department permit or

13  order.

14         (c)  "Phosphogypsum" means calcium sulfate and

15  byproducts produced by the reaction of sulfuric acid with

16  phosphate rock to produce phosphoric acid.

17         (d)  "Phosphogypsum stack" means any defined geographic

18  area associated with a phosphoric acid production facility in

19  which phosphogypsum is disposed of or stored, other than

20  within a fully enclosed building, container, or tank.

21         (e)  "Phosphogypsum stack system" means the

22  phosphogypsum stack (or pile, or landfill), together with all

23  pumps, piping, ditches, drainage conveyances, water control

24  structures, collection pools, cooling ponds, surge ponds, and

25  any other collection or conveyance system associated with the

26  transport of phosphogypsum from the plant to the phosphogypsum

27  stack, its management at the stack, and the process wastewater

28  return to the phosphoric acid production or other process. The

29  term specifically includes toe drain systems and ditches and

30  other leachate collection systems, but does not include

31  conveyances within the confines of the fertilizer production

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  1  plant or existing areas used in an emergency caused by

  2  rainfall events of high volume or duration for the temporary

  3  storage of process wastewater to avoid discharges to surface

  4  waters of the state, which process wastewater must be removed

  5  from the temporary storage area as expeditiously as possible

  6  within 120 days after the emergency.

  7         (f)  "Process wastewater" means any water that, during

  8  manufacturing or processing, comes into direct contact with or

  9  results from the production or use of any raw material,

10  intermediate product, finished product, by-product, or waste

11  product, along with any leachate or runoff from the

12  phosphogypsum stack system. The term does not include

13  contaminated nonprocess wastewater as that term is defined in

14  40 C.F.R. 418.11(c).

15         (2)  REGULATORY PROGRAM.--

16         (a)  It is the intent of the Legislature that the

17  department develop a program for the sound and effective

18  regulation of phosphogypsum stack systems in the state. It is

19  further the intent of the Legislature that such regulatory

20  program include the imposition of an annual registration fee

21  on stacks that have not been closed and that such fees be used

22  for the purpose of paying the costs of the department's review

23  of applications to permit the closure of stack systems or the

24  construction of new or expanded stack systems and of the

25  department's review of requests for deferral of mandatory

26  closure requirements.

27         (b)  The department shall adopt rules that prescribe

28  acceptable construction designs for new or expanded

29  phosphogypsum stack systems and that prescribe permitting

30  criteria for operation, closure criteria, long-term care

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  1  requirements, and closure financial responsibility

  2  requirements for phosphogypsum stack systems.

  3         (3)  ABATEMENT OF IMMINENT HAZARD.--

  4         (a)  The department may provide financial assistance to

  5  abate or substantially reduce any imminent hazard caused by

  6  the physical condition or operation of a phosphogypsum stack

  7  system. The department may use moneys from the Phosphogypsum

  8  Stack System Safety Assurance Trust Fund to finance such

  9  actions subject to the procedures and limitations set forth in

10  this section.

11         (b)  An imminent hazard exists if the physical

12  condition or operation of a phosphogypsum stack system creates

13  an immediate and substantial danger to human health, safety,

14  or welfare, or to the environment. A phosphogypsum stack

15  system is presumed not to cause an imminent hazard if the

16  physical condition and operation of the system are in

17  substantial compliance with all applicable department rules.

18         (c)  If the department determines that the physical

19  condition or operation of a phosphogypsum stack system poses

20  an imminent hazard, the department may issue a notice to the

21  owner of the phosphogypsum stack system, which notice must be

22  in writing and must:

23         1.  Identify the location of the phosphogypsum stack

24  system;

25         2.  State the basis of the determination by the

26  department that an imminent hazard exists;

27         3.  Identify actions determined by the department to be

28  necessary to abate or substantially reduce the imminent

29  hazard; and

30         4.  Provide a reasonable time, taking into account the

31  nature of the imminent hazard, within which the owner must

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  1  provide reasonable assurance to the department that the owner

  2  will initiate and complete the actions described in

  3  subparagraph 3. or alternative actions acceptable to the

  4  department, using the owner's own resources.

  5         (d)  If the owner of the phosphogypsum stack system who

  6  receives a notice issued under paragraph (c) does not provide

  7  reasonable assurance to the department that the owner will

  8  initiate and complete the actions using the owner's own

  9  resources, the department may pay the fees and costs of

10  third-party contractors retained by the owner of the

11  phosphogypsum stack system to perform some or all of the

12  actions necessary to abate or substantially reduce the

13  imminent hazard.

14         (e)  The department shall recover from the owner of the

15  phosphogypsum stack system for the use of the Phosphogypsum

16  Stack System Safety Assurance Trust Fund all moneys expended

17  from the fund to abate an imminent hazard posed by the

18  phosphogypsum stack system plus interest on such funds from

19  the date of payment from the fund at a rate equal to the rate

20  being earned on the fund plus 15 percent. If the department

21  prevails in any action to recover funds under this subsection,

22  it is entitled to recover reasonable attorney's fees and costs

23  incurred. Phosphogypsum may not be deposited on a stack until

24  all moneys expended from the fund in connection with the stack

25  have been repaid, unless the department determines that such

26  placement is necessary to abate or avoid an imminent hazard or

27  unless otherwise authorized by the department.

28         (f)  The department may impose a lien on the real

29  property on which the phosphogypsum stack system that poses an

30  imminent hazard and associated phosphate fertilizer production

31  facilities are located, equal in amount to the moneys expended

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  1  from the Phosphogypsum Stack System Safety Assurance Trust

  2  Fund under paragraph (d) including attorney's fees and court

  3  costs. The owner of any property on which such a lien is

  4  imposed is entitled to a release of the lien upon payment to

  5  the department of the lien amount.

  6         (g)  The authority granted by this section to pay for

  7  the cost of abatement of an imminent hazard is intended to

  8  supplement and not to limit any other enforcement authority

  9  granted to the department by law.

10         (4)(3)  REGISTRATION FEES.--

11         (a)  The owner of each existing phosphogypsum stack

12  shall pay to the department a registration fee as set forth in

13  this subsection. All registration fees must be deposited in

14  the Phosphogypsum Stack System Safety Assurance Trust Fund.

15         (b)  Except as provided in paragraph (c), the amount of

16  the registration fee for each existing stack is $50,000 for

17  each of the five 12-month periods following the effective date

18  of this section and $5,000 for each subsequent 12 month

19  period.

20         (c)  If the total amount of the Phosphogypsum Stack

21  System Safety Assurance Trust Fund is less than the aggregate

22  total of refunds authorized by paragraph (d) as of July 1 of

23  any year after calendar year 2006, the registration fee for

24  each existing phosphogypsum stack is $50,000 for each

25  subsequent 12-month period until the total amount of the fund

26  is larger than the aggregate total of such refunds as of July

27  1 of any subsequent year.

28         (d)  Within 30 days after an existing phosphogypsum

29  stack has been certified as closed under department rules

30  62-673.620(2) and (3), the department shall refund to the

31  owner of the closed phosphogypsum stack an amount from the

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  1  Phosphogypsum Stack System Safety Assurance Trust Fund equal

  2  to the total amount of registration fee payments made by the

  3  owner to the fund in connection with the closed phosphogypsum

  4  stack. If there is an insufficient amount in the trust fund to

  5  make such payment, the refund must be made within 30 days

  6  after sufficient funds become available.

  7         (a)  The total annual registration fees for all

  8  existing stacks shall be the amount required by the department

  9  to accomplish the following activities:

10         1.  Review and processing of a request by an owner of a

11  phosphogypsum stack system that it be relieved of any

12  mandatory obligation to close the system, or any portion

13  thereof, prior to using the system for its entire remaining

14  useful life.

15         2.  Review and processing of an application to

16  construct a new or expanded phosphogypsum stack system.

17         3.  Review and processing of an application to close a

18  phosphogypsum stack system, or portion thereof.

19         (e)(b)  On or before August 1 of each fiscal year, the

20  department shall provide written notice to each owner of an

21  existing stack of the annual registration fee payable for the

22  12-month period commencing on the immediately preceding July 1

23  that fiscal year. Each owner shall remit the annual

24  registration fee to the department on or before August 31 of

25  each year within 30 days after receipt of the notice. The

26  notice required by this section shall be accompanied by a

27  report prepared by the department presenting the expenditures

28  using annual registration fees required by this section made

29  by the department during the immediately preceding fiscal year

30  and indicating the amount of any unexpended funds.

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  1         (c)  The total annual registration fees for all

  2  existing stacks shall not exceed $500,000. The annual

  3  registration fee for each existing stack shall be the amount

  4  calculated by dividing the maximum total registration fees

  5  collectible in a particular fiscal year by the total number of

  6  existing stacks as of June 30 of the immediately preceding

  7  fiscal year.

  8         (5)  CLOSURE OF ABANDONED SYSTEMS.--

  9         (a)  The department may take all steps necessary to

10  close an abandoned phosphogypsum stack system and to carry out

11  post-closure care in accordance with department rules in

12  effect on the date of commencement of closure activities. The

13  department may accomplish such closure and post-closure care

14  by the use of department personnel and equipment, by the use

15  of other state or federal agency personnel and equipment, by

16  the use of a private contractor, or by a combination of the

17  use of those persons and equipment. Department employees,

18  agents, and contractors may enter all land owned by the owner

19  of an abandoned phosphogypsum stack system for the performance

20  of closure activities.

21         (b)  A phosphogypsum stack system may be considered

22  abandoned for the purpose of this subsection only after the

23  department has exhausted all administrative and judicial

24  remedies available to it to require the owner of the

25  phosphogypsum stack system to close the stack and has

26  determined that closure must be implemented to protect human

27  health or the environment.

28         Section 3.  This act shall take effect July 1, 2001.

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

  2                          SENATE SUMMARY

  3    Authorizes the Department of Environmental Protection to
      abate imminent hazards from phosphogypsum stack systems
  4    through the use of funds from the Nonmandatory Land
      Reclamation Trust Fund and the Phosphogypsum Stack System
  5    Safety Assurance Trust Fund. Provides for registration
      fees. Provides for a right of action and lien to seek
  6    reimbursement of expended funds. Provides for the closure
      of abandoned stack systems.
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