Senate Bill sb1376er

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  2         An act relating to mining; amending s. 378.035,

  3         F.S.; reserving certain funds in the

  4         Nonmandatory Land Reclamation Trust Fund for

  5         use by the Department of Environmental

  6         Protection for reclaiming lands; authorizing

  7         the department to use funds from the trust fund

  8         for the purpose of closing certain abandoned

  9         phosphogypsum stack systems; limiting the

10         period of operation of the program; requiring

11         the Bureau of Mine Reclamation to review the

12         sufficiency of the trust fund to support

13         certain objectives and make reports; amending

14         s. 378.601, F.S.; deleting provisions exempting

15         certain mining operations from review as

16         developments of regional impact; amending s.

17         403.4154, F.S.; defining the terms

18         "phosphogypsum stack system" and "process

19         wastewater"; authorizing the Department of

20         Environmental Protection to take action to

21         abate or reduce any imminent hazard caused by a

22         phosphogypsum stack system; requiring the

23         department to recover moneys from the owner or

24         operator of the system; providing for

25         attorney's fees and costs; authorizing the

26         department to impose a lien for the recovery of

27         such moneys; imposing certain fees upon an

28         owner or operator who has not demonstrated

29         financial responsibility; providing for the

30         refund of the fee upon closure of the

31         phosphogypsum stack; authorizing the department


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  1         to expend moneys from the Nonmandatory Land

  2         Reclamation Trust Fund to close abandoned

  3         phosphogypsum stack systems; providing for a

  4         lien for the recovery of such moneys; amending

  5         s. 403.4155, F.S.; requiring the department to

  6         review certain rules and determine the adequacy

  7         of the rules; providing an appropriation;

  8         providing an effective date.

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

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12         Section 1.  Subsection (5) of section 378.035, Florida

13  Statutes, is amended, and subsections (8) and (9) are added to

14  that section, to read:

15         378.035  Department responsibilities and duties with

16  respect to Nonmandatory Land Reclamation Trust Fund.--

17         (5)  On July 1, 2001, $50 1997, $30 million of the

18  unencumbered funds within the Nonmandatory Land Reclamation

19  Trust Fund are hereby reserved for use by the department.

20         (a)  These reserved moneys are to be used to reclaim

21  lands disturbed by the severance of phosphate rock on or after

22  July 1, 1975, in the event that a mining company ceases mining

23  and the associated reclamation prior to all lands disturbed by

24  the operation being reclaimed. Moneys expended by the

25  department to accomplish reclamation pursuant to this

26  subsection shall become a lien upon the property enforceable

27  pursuant to chapter 85. The moneys received as a result of a

28  lien foreclosure or as repayment shall be deposited into the

29  trust fund. In the event the money received as a result of

30  lien foreclosure or repayment is less than the amount expended

31  for reclamation, the department shall use all means available


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  1  to recover, for the use of the fund, the difference from the

  2  affected parties. Paragraph (3)(b) shall apply to lands

  3  acquired as a result of a lien foreclosure.

  4         (b)  The department may also expend funds from the $50

  5  million reserve fund for the abatement of an imminent hazard

  6  as provided by s. 403.4154(3) and for the purpose of closing

  7  an abandoned phosphogypsum stack system and carrying out

  8  postclosure care as provided by s. 403.4154(5). Fees deposited

  9  in the Nonmandatory Land Reclamation Trust Fund pursuant to s.

10  403.4154(4) may be used for the purposes authorized in this

11  paragraph. However, such fees may only be used at a stack

12  system if closure or imminent-hazard-abatement activities

13  initially commence on or after July 1, 2002.

14         (8)  The department may not accept any applications for

15  nonmandatory land reclamation programs after November 1, 2008.

16         (9)  The Bureau of Mine Reclamation shall review the

17  sufficiency of the Nonmandatory Land Reclamation Trust Fund to

18  support the stated objectives and report to the secretary

19  annually with recommendations as appropriate. The report

20  submittal for calendar year 2008 shall specifically address

21  the effect of providing a future refund of fees paid pursuant

22  to s. 403.4154(4) following certification of stack closure

23  pursuant to department rules, and the report shall be

24  submitted to the Governor, the President of the Senate, and

25  the Speaker of the House of Representatives on or before March

26  1, 2009.

27         Section 2.  Subsection (5) of section 378.601, Florida

28  Statutes, is amended to read:

29         378.601  Heavy minerals.--

30         (5)  Any heavy mineral mining operation which annually

31  mines less than 500 acres and whose proposed consumption of


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  1  water is 3 million gallons per day or less shall not be

  2  required to undergo development of regional impact review

  3  pursuant to s. 380.06, provided permits and plan approvals

  4  pursuant to either this section and part IV of chapter 373, or

  5  s. 378.901, are issued. This subsection applies only in the

  6  following circumstances:

  7         (a)  Mining is conducted in counties where the operator

  8  has conducted heavy mineral mining activities prior to March

  9  1, 1997; and

10         (b)  The operator of the heavy mineral mining operation

11  has executed a developer agreement pursuant to s. 380.032 or

12  has received a development order under s. 380.06(15) as of

13  March 1, 1997. Lands mined pursuant to this section need not

14  be the subject of the developer agreement or development

15  order.

16         Section 3.  Section 403.4154, Florida Statutes, is

17  amended to read:

18         403.4154  Phosphogypsum management program.--

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

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

21  Protection.

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

23  defined in paragraph (d), that is:

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

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

26  for which the department has received a certification of

27  completion of construction submitted by the owner of the newly

28  constructed phosphogypsum stack.

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

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

  3  order.

  4         (c)  "Phosphogypsum" means calcium sulfate and

  5  byproducts produced by the reaction of sulfuric acid with

  6  phosphate rock to produce phosphoric acid.

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

  8  area associated with a phosphoric acid production facility in

  9  which phosphogypsum is disposed of or stored, other than

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

11         (e)  "Phosphogypsum stack system" means the

12  phosphogypsum stack, pile, or landfill, together with all

13  pumps, piping, ditches, drainage conveyances, water-control

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

15  any other collection or conveyance system associated with the

16  transport of phosphogypsum from the plant to the phosphogypsum

17  stack, its management at the stack, and the process-wastewater

18  return to the phosphoric acid production or other process.

19  This definition specifically includes toe drain systems and

20  ditches and other leachate collection systems but does not

21  include conveyances within the confines of the fertilizer

22  production plant or existing areas used in emergency

23  circumstances caused by rainfall events of high volume or

24  duration for the temporary storage of process wastewater to

25  avoid discharges to surface waters of the state, which process

26  wastewater must be removed from the temporary storage area as

27  expeditiously as possible, but not to exceed 120 days after

28  each emergency.

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

30  manufacturing or processing, comes into direct contact with or

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


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  1  intermediate product, finished product, byproduct, or waste

  2  product, along with any leachate or runoff from the

  3  phosphogypsum stack system. This term does not include

  4  contaminated nonprocess wastewater as that term is defined in

  5  40 C.F.R. part 418.11(c).

  6         (2)  REGULATORY PROGRAM.--

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

  8  department develop a program for the sound and effective

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

10  further the intent of the Legislature that such regulatory

11  program include the imposition of an annual registration fee

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

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

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

15  construction of new or expanded stack systems and of the

16  department's review of requests for deferral of mandatory

17  closure requirements.

18         (b)  The department shall adopt rules that prescribe

19  acceptable construction designs for new or expanded

20  phosphogypsum stack systems and that prescribe permitting

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

22  long-term care requirements, and closure financial

23  responsibility requirements for phosphogypsum stack systems.

24         (3)  ABATEMENT OF IMMINENT HAZARD.--

25         (a)  The department may take action to abate or

26  substantially reduce any imminent hazard caused by the

27  physical condition, maintenance, operation, or closure of a

28  phosphogypsum stack system.

29         (b)  An imminent hazard exists if the physical

30  condition, maintenance, operation, or closure of a

31  phosphogypsum stack system creates an immediate and


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  1  substantial danger to human health, safety, or welfare or to

  2  the environment. A phosphogypsum stack system is presumed not

  3  to cause an imminent hazard if the physical condition and

  4  operation of the system are in compliance with all applicable

  5  department rules.

  6         (c)  If the department determines that the physical

  7  condition, maintenance, operation, or closure of a

  8  phosphogypsum stack system poses an imminent hazard, the

  9  department shall request access to the property on which such

10  stack system is located from the owner or operator of the

11  stack system for the purposes of taking action to abate or

12  substantially reduce the imminent hazard. If the department,

13  after reasonable effort, is unable to timely obtain the

14  necessary access to abate or substantially reduce the imminent

15  hazard, the department may institute action in its own name,

16  using the procedures and remedies of s. 403.121 or s. 403.131,

17  to abate or substantially reduce an imminent hazard. Whenever

18  serious harm to human health, safety, or welfare, to the

19  environment, or to private or public property may occur prior

20  to completion of an administrative hearing or other formal

21  proceeding that might be initiated to abate the risk of

22  serious harm, the department may obtain from the court, ex

23  parte, an injunction without paying filing and service fees

24  prior to the filing and service of process.

25         (d)  To abate or substantially reduce an imminent

26  hazard, the department may take any appropriate action,

27  including, but not limited to, using employees of the

28  department or contracting with other state or federal

29  agencies, with private third-party contractors, or with the

30  owner or operator of the stack system, or financing,

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  1  compensating, or funding a receiver, trustee or owner of the

  2  stack system, to perform all or part of the work.

  3         (e)  The department shall recover from the owner or

  4  operator of the phosphogypsum stack system to the use of the

  5  Nonmandatory Land Reclamation Trust Fund all moneys expended

  6  from the fund, including funds expended prior to the effective

  7  date of this section, to abate an imminent hazard posed by the

  8  phosphogypsum stack system plus a penalty equal to an amount

  9  calculated at 30 percent of such funds expended. This penalty

10  shall be imposed annually, and prorated from the date of

11  payment from the fund until the expended funds and the penalty

12  are repaid. If the department prevails in any action to

13  recover funds pursuant to this subsection, it may recover

14  reasonable attorney's fees and costs incurred. Phosphogypsum

15  may not be deposited on a stack until all moneys expended from

16  the fund in connection with the stack have been repaid, unless

17  the department determines that such placement is necessary to

18  abate or avoid an imminent hazard or unless otherwise

19  authorized by the department.

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

21  property on which the phosphogypsum stack system that poses an

22  imminent hazard is located and on the real property underlying

23  and other assets located at associated phosphate fertilizer

24  production facilities equal in amount to the moneys expended

25  from the Nonmandatory Land Reclamation Trust Fund pursuant to

26  paragraph (d), including attorney's fees and court costs. The

27  owner of any property on which such a lien is imposed is

28  entitled to a release of the lien upon payment to the

29  department of the lien amount. The lien imposed by this

30  section does not take priority over any other prior perfected

31  lien on the real property, personal property, or other assets


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  1  referenced in this paragraph, including, but not limited to,

  2  the associated phosphate rock mine and reserves.

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

  4         (a)1.  The owner or operator of each existing

  5  phosphogypsum stack who has not provided a performance bond,

  6  letter of credit, trust fund agreement, or closure insurance

  7  to demonstrate financial responsibility for closure and

  8  long-term care shall pay to the department a fee as set forth

  9  in this paragraph. All fees shall be deposited in the

10  Nonmandatory Land Reclamation Trust Fund.

11         2.  The amount of the fee for each existing stack shall

12  be $75,000 for each of the five 12-month periods following

13  July 1, 2001.

14         3.  The amount of the fee for any new stack for which

15  the owner or operator has not provided a performance bond,

16  letter of credit, trust fund agreement, or closure insurance

17  to demonstrate financial responsibility for closure and

18  long-term care shall be $75,000 for each of the five 12-month

19  periods following the issuing by the department of a

20  construction permit for that stack.

21         4.  Within 30 days after a phosphogypsum stack has been

22  certified as closed pursuant to rule 62-673.620(2) and (3),

23  Florida Administrative Code, the department shall refund to

24  the owner of the closed phosphogypsum stack an amount from the

25  Nonmandatory Land Reclamation Trust Fund equal to the total

26  amount of fee payments made by the owner or operator to the

27  fund in connection with the closed phosphogypsum stack, except

28  that any refund becoming payable prior to July 1, 2009, shall

29  be paid to the owner on or after that date.

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  1         (a)  The total annual registration fees for all

  2  existing stacks shall be the amount required by the department

  3  to accomplish the following activities:

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

  5  phosphogypsum stack system that it be relieved of any

  6  mandatory obligation to close the system, or any portion

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

  8  useful life.

  9         2.  Review and processing of an application to

10  construct a new or expanded phosphogypsum stack system.

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

12  phosphogypsum stack system, or portion thereof.

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

14  department shall provide written notice to each owner of an

15  existing stack of any the annual registration fee payable for

16  the 12-month period commencing on the immediately preceding

17  July 1 that fiscal year. Each owner shall remit the annual

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

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

20  notice required by this section shall be accompanied by a

21  report prepared by the department presenting the expenditures

22  using annual registration fees required by this section made

23  by the department during the immediately preceding fiscal year

24  and indicating the amount of any unexpended funds.

25         (c)  The total annual registration fees for all

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

27  registration fee for each existing stack shall be the amount

28  calculated by dividing the maximum total registration fees

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

30  existing stacks as of June 30 of the immediately preceding

31  fiscal year.


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  1         (5)  CLOSURE OF ABANDONED SYSTEMS.--

  2         (a)  The department may expend money from the

  3  Nonmandatory Land Reclamation Trust Fund to take all steps

  4  necessary to close a phosphogypsum stack system and to carry

  5  out postclosure care in accordance with department rules in

  6  effect as of the date of commencement of closure activities,

  7  subject to the conditions set forth in this subsection. To

  8  accomplish such closure and postclosure care, the department

  9  may take any appropriate action, including, but not limited

10  to, using employees of the department or by contracting with

11  other state or federal agencies, with private third-party

12  contractors, or with the owner or operator of the stack

13  system, to perform all or part of the work.

14         (b)  The department may close a phosphogypsum stack

15  system through agreement with the owner or by court order. In

16  determining whether closure is appropriate, the court shall

17  consider whether closing the stack will protect human health,

18  safety, or welfare or the environment; the useful life of the

19  stack; the effect of delaying closure on the stability of the

20  fund; the likelihood that the stack will be operated again;

21  and any other relevant factors. If the court finds that

22  closure is appropriate, the court may appoint a receiver to

23  oversee the closure or shall authorize department employees,

24  agents, and contractors to enter all land owned by the owner

25  of the phosphogypsum stack system for the performance of

26  closure and postclosure activities.

27         (c)  The department may impose a lien on the real

28  property on which a closed phosphogypsum stack system is

29  located and on the real property underlying and other assets

30  located at its formerly associated phosphate fertilizer

31  production facilities equal in amount to the moneys expended


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  1  from the Nonmandatory Land Reclamation Trust Fund pursuant to

  2  this subsection for closure and postclosure care. The owner of

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

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

  5  amount and execution of an agreement to carry out postclosure

  6  care in accordance with applicable department rules. The lien

  7  imposed by this section does not take priority over any other

  8  prior perfected lien on the real property, personal property,

  9  or other assets referenced in this paragraph, including, but

10  not limited to, the associated phosphate rock mine and

11  reserves.

12         Section 4.  Section 403.4155, Florida Statutes, is

13  amended to read:

14         403.4155  Phosphogypsum management; rulemaking

15  authority.--

16         (1)  By July 1, 1999, The Department of Environmental

17  Protection shall adopt rules to amend existing chapter 62-672,

18  Florida Administrative Code, to ensure that impoundment

19  structures and water conveyance piping systems used in

20  phosphogypsum management are designed and maintained to meet

21  critical safety standards. The rules must require that any

22  impoundment structure used in a phosphogypsum stack system,

23  together with all pumps, piping, ditches, drainage

24  conveyances, water control structures, collection pools,

25  cooling ponds, surge ponds, and any other collection or

26  conveyance system associated with phosphogypsum transport,

27  cooling water, or the return of process wastewater, is

28  constructed using sound engineering practices and is operated

29  to avoid spills or discharges of materials which adversely

30  affect surface or ground waters. The rules must require that a

31  phosphogypsum stack system owner maintain a log detailing the


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  1  owner's operating inspection schedule, results, and any

  2  corrective action taken based on the inspection results. The

  3  rules must require phosphogypsum stack owners to maintain an

  4  emergency contingency plan and demonstrate the ability to

  5  mobilize equipment and manpower to respond to emergency

  6  situations at phosphogypsum stack systems. The rules must

  7  establish a reasonable time period not to exceed 12 months for

  8  facilities to meet the provisions of the rules adopted

  9  pursuant to this section.

10         (2)  By January 31, 2002, the department shall review

11  chapter 62-673, Florida Administrative Code, to determine the

12  adequacy of the financial-responsibility provisions contained

13  in the rules and shall take any measures necessary to ensure

14  that the rules provide sound and effective provisions to

15  minimize risk to the environment and to public health and

16  safety from the business failure of a phosphogypsum stack

17  system.

18         Section 5.  There is hereby appropriated $16 million

19  from the Nonmandatory Land Reclamation Trust Fund to the

20  Department of Environmental Protection for fiscal year

21  2001-2002 to carry out the purposes authorized in section

22  378.035, Florida Statutes.

23         Section 6.  This act shall take effect July 1, 2001.

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