Senate Bill sb1312e1

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  1                      A bill to be entitled

  2         An act relating to phosphate mining; amending

  3         s. 211.3103, F.S.; amending the tax on

  4         phosphate rock; providing for the distribution

  5         of tax proceeds; deleting obsolete language;

  6         amending s. 378.021, F.S.; directing the

  7         Department of Environmental Protection to amend

  8         the master reclamation plan; amending s.

  9         378.031, F.S.; providing additional intent

10         concerning reclamation activities; amending s.

11         378.035, F.S.; amending authorized uses of

12         funds deposited in the Nonmandatory Land

13         Reclamation Trust Fund; removing requirements

14         for a reserve; limiting reclamation

15         expenditures for fiscal year 2003-2004;

16         amending s. 378.036, F.S.; creating a

17         not-for-profit partnership to assist in

18         phosphate reclamation; providing duties of the

19         partnership; providing for the administration

20         of partnership funds; providing an

21         appropriation; amending s. 378.212; providing

22         authority for a variance for certain

23         reclamation activities; amending s. 378.404,

24         F.S.; allowing variances for water supply

25         development; amending s. 403.4154, F.S.;

26         providing criminal penalties for certain

27         violations; prohibiting the distribution of

28         certain company assets under certain

29         circumstances; providing for the declaration of

30         an imminent hazard if certain financial

31         conditions exist; providing limited liability


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 1         for entities assisting in the abatement of

 2         imminent hazards; amending a provision granting

 3         certain rebates of phosphate fees; amending s.

 4         403.4155, F.S.; directing that rules be

 5         developed for financial assurance, interim

 6         stack management, and stack closure; requiring

 7         the Department of Environmental Protection to

 8         conduct a study; providing funds for the study;

 9         providing for the transfer of certain funds

10         from the Nonmandatory Land Reclamation Trust

11         Fund to the General Revenue Fund; providing for

12         the funding of a study by the Florida Institute

13         of Phosphate Research; providing an effective

14         date.

15  

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

17  

18         Section 1.  Section 211.3103, Florida Statutes, is

19  amended to read:

20         211.3103  Levy of tax on severance of phosphate rock;

21  rate, basis, and distribution of tax.--

22         (1)  There is hereby levied an excise tax upon every

23  person engaging in the business of severing phosphate rock

24  from the soils or waters of this state for commercial use. The

25  tax shall be collected, administered, and enforced by the

26  department.

27         (2)  Beginning July 1, 2003, the proceeds of all taxes,

28  interest, and penalties imposed under this section shall be

29  paid into the State Treasury as follows:

30  

31  


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 1         (a)  The first $10 million in revenue collected from

 2  the tax during each fiscal year shall be paid to the credit of

 3  the Conservation and Recreation Lands Trust Fund.

 4         (b)  The remaining revenues collected from the tax

 5  during that fiscal year, after the required payment under

 6  paragraph (a), shall be paid into the State Treasury as

 7  follows:

 8         1.  For payment to counties in proportion to the number

 9  of tons of phosphate rock produced from a phosphate rock

10  matrix located within such political boundary, 18.75 percent.

11  The department shall distribute this portion of the proceeds

12  annually based on production information reported by the

13  producers on the annual returns for the taxable year. Any such

14  proceeds received by a county shall be used only for phosphate

15  related expenses.

16         2.  For payment to counties that have been designated a

17  Rural Area of Critical Economic Concern pursuant to s.

18  288.0656 in proportion to the number of tons of phosphate rock

19  produced from a phosphate rock matrix located within such

20  political boundary, 18.75 percent. The department shall

21  distribute this portion of the proceeds annually based on

22  production information reported by the producers on the annual

23  returns for the taxable year.

24         3.  To the credit of the Phosphate Research Trust Fund

25  in the Department of Education, Division of Universities,

26  11.25 percent.

27         4.  To the credit of the Minerals Trust Fund, 11.25

28  percent.

29         5.  To the credit of the Nonmandatory Land Reclamation

30  Trust Fund, 40 percent.

31  


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 1         (3)  Beginning July 1, 2004, the proceeds of all taxes,

 2  interest, and penalties imposed under this section shall be

 3  paid into the State Treasury as follows:

 4         (a)  The first $10 million in revenue collected from

 5  the tax during each fiscal year shall be paid to the credit of

 6  the Conservation and Recreation Lands Trust Fund.

 7         (b)  The remaining revenues collected from the tax

 8  during that fiscal year, after the required payment under

 9  paragraph (a), shall be paid into the State Treasury as

10  follows:

11         1.  To the credit of the General Revenue Fund of the

12  state, 41 percent.

13         2.  For payment to counties in proportion to the number

14  of tons of phosphate rock produced from a phosphate rock

15  matrix located within such political boundary, 16.5 percent.

16  The department shall distribute this portion of the proceeds

17  annually based on production information reported by the

18  producers on the annual returns for the taxable year. Any such

19  proceeds received by a county shall be used only for phosphate

20  related expenses.

21         3.  For payment to counties that have been designated a

22  Rural Area of Critical Economic Concern pursuant to s.

23  288.0656 in proportion to the number of tons of phosphate rock

24  produced from a phosphate rock matrix located within such

25  political boundary, 16.5 percent. The department shall

26  distribute this portion of the proceeds annually based on

27  production information reported by the producers on the annual

28  returns for the taxable year.

29         4.  To the credit of the Phosphate Research Trust Fund

30  in the Department of Education, Division of Universities, 9

31  percent.


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 1         5.  To the credit of the Minerals Trust Fund, 9

 2  percent.

 3         6.  To the credit of the Nonmandatory Land Reclamation

 4  Trust Fund, 8 percent.

 5         (4)  Funds distributed pursuant to subparagraphs

 6  (2)(b)2. and (3)(b)3. shall be used for the following

 7  purposes:

 8         1.  For planning, preparing, and financing of

 9  infrastructure projects for job creation and capital

10  investment, especially those related to industrial and

11  commercial sites. Infrastructure investments may include the

12  following public or public-private partnership facilities:

13  stormwater systems; telecommunications facilities; roads or

14  other remedies to transportation impediments; nature-based

15  tourism facilities; or other physical requirements necessary

16  to facilitate trade and economic development activities.

17         2.  For maximizing the use of federal, local, and

18  private resources, including, but not limited to, those

19  available under the Small Cities Community Development Block

20  Grant Program.

21         3.  For projects that improve inadequate infrastructure

22  that has resulted in regulatory action that prohibits economic

23  or community growth, provided that such projects are related

24  to specific job creation or job retention opportunities.

25         (5)  Beginning January 1, 2004, the tax rate shall be

26  the base rate of $1.62 per ton severed.

27         (6)  Beginning January 1, 2005, and annually

28  thereafter, the tax rate shall be the base rate times the base

29  rate adjustment for the tax year as calculated by the

30  department in accordance with subsection (8).

31  


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 1         (2)  The proceeds of all taxes, interest, and penalties

 2  imposed under this section shall be paid into the State

 3  Treasury through June 30, 1995, as follows:

 4         (a)  The first $10 million in revenue collected from

 5  the tax during each fiscal year shall be paid to the credit of

 6  the Conservation and Recreation Lands Trust Fund.

 7         (b)  The remaining revenues collected from the tax

 8  during that fiscal year, after the required payment under

 9  paragraph (a), shall be paid into the State Treasury as

10  follows:

11         1.  To the credit of the General Revenue Fund of the

12  state, 60 percent. However, from this amount the amounts of

13  $7.4 million, $8.2 million, and $8.1 million, respectively,

14  shall be transferred to the Nonmandatory Land Reclamation

15  Trust Fund on January 1, 1993, January 1, 1994, and January 1,

16  1995.

17         2.  To the credit of the Nonmandatory Land Reclamation

18  Trust Fund which is established for reclamation and

19  acquisition of unreclaimed lands disturbed by phosphate mining

20  and not subject to mandatory reclamation, 20 percent.

21         3.  To the credit of the Phosphate Research Trust Fund

22  in the Department of Education, Division of Universities, to

23  carry out the purposes set forth in s. 378.101, 10 percent.

24         4.  For payment to counties in proportion to the number

25  of tons of phosphate rock produced from a phosphate rock

26  matrix located within such political boundary, 10 percent. The

27  department shall distribute this portion of the proceeds

28  annually based on production information reported by producers

29  on the annual returns for the taxable year. Any such proceeds

30  received by a county shall be used only for phosphate-related

31  expenses.


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 1         (3)  Beginning July 1, 1995, the proceeds of all taxes,

 2  interest, and penalties imposed under this section shall be

 3  paid into the State Treasury as follows:

 4         (a)  The first $10 million in revenue collected from

 5  the tax during each fiscal year shall be paid to the credit of

 6  the Conservation and Recreation Lands Trust Fund.

 7         (b)  The remaining revenues collected from the tax

 8  during that fiscal year, after the required payment under

 9  paragraph (a), shall be paid into the State Treasury as

10  follows:

11         1.  To the credit of the General Revenue Fund of the

12  state, 58 percent.

13         2.  To the credit of the Nonmandatory Land Reclamation

14  Trust Fund for reclamation and acquisition of unreclaimed

15  lands disturbed by phosphate mining and not subject to

16  mandatory reclamation, 14.5 percent.

17         3.  To the credit of the Phosphate Research Trust Fund

18  in the Department of Education, Division of Universities, to

19  carry out the purposes set forth in s. 378.101, 10 percent.

20         4.  For payment to counties in proportion to the number

21  of tons of phosphate rock produced from a phosphate rock

22  matrix located within such political boundary, 10 percent. The

23  department shall distribute this portion of the proceeds

24  annually based on production information reported by producers

25  on the annual returns for the taxable year. Any such proceeds

26  received by a county shall be used only for phosphate-related

27  expenses.

28         5.  To the credit of the Minerals Trust Fund, 7.5

29  percent.

30  

31  


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 1         (4)  If the base rate is reduced pursuant to paragraph

 2  (5)(c), then the proceeds of the tax shall be paid into the

 3  State Treasury as follows:

 4         (a)  The first $10 million in revenue collected from

 5  the tax during each fiscal year shall be paid to the credit of

 6  the Conservation and Recreation Lands Trust Fund.

 7         (b)  The remaining revenues collected from the tax

 8  during that fiscal year, after the required payment under

 9  paragraph (a), shall be paid into the State Treasury as

10  follows:

11         1.  To the credit of the General Revenue Fund of the

12  state, 55.15 percent.

13         2.  To the credit of the Phosphate Research Trust Fund

14  in the Department of Education, Division of Universities, 12.5

15  percent.

16         3.  For payment to counties in proportion to the number

17  of tons of phosphate rock produced from a phosphate rock

18  matrix located within such political boundary, 18 percent. The

19  department shall distribute this portion of the proceeds

20  annually based on production information reported by producers

21  on the annual returns for the taxable year. Any such proceeds

22  received by a county shall be used only for phosphate-related

23  expenses.

24         4.  To the credit of the Minerals Trust Fund, 14.35

25  percent.

26         (7)(5)  The excise tax levied by this section shall

27  apply to the total production of the producer during the

28  taxable year, measured on the basis of bone-dry tons produced

29  at the point of severance., subject to the following rates:

30         (a)  Beginning July 1, 1987, to December 31, 1987, the

31  tax rate shall be $1.79 per ton severed.


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 1         (b)  For 1988, the tax rate shall be the base rate of

 2  $1.35 per ton severed.

 3         (c)  For 1989 and subsequent years, the tax rate shall

 4  be the base rate times the base rate adjustment for the tax

 5  year as calculated by the department in accordance with

 6  subsection (6). However, for 2000 and subsequent taxable

 7  years, the base rate shall be reduced by 20 percent, unless

 8  additional funding of the Nonmandatory Land Reclamation Trust

 9  Fund is approved by law.

10         (8)(6)(a)  On or before March 30, 2004 1989, and

11  annually thereafter, the department shall calculate the base

12  rate adjustment, if any, for phosphate rock based on the

13  change in the unadjusted annual producer price index for the

14  prior calendar year in relation to the unadjusted annual

15  producer price index for calendar year 1999 1987.

16         (b)  For the purposes of determining the base rate

17  adjustment for any year, the base rate adjustment shall be a

18  fraction, the numerator of which is the unadjusted annual

19  producer price index for the prior calendar year and the

20  denominator of which is the unadjusted annual producer price

21  index for calendar year 1999 1987.

22         (c)  The department shall provide the base rate, the

23  base rate adjustment, and the resulting tax rate to affected

24  producers by written notice on or before April 15 of the

25  current year.

26         (d)  If the producer price index for chemical and

27  fertilizer mineral mining phosphate rock primary products is

28  substantially revised, the department shall make appropriate

29  adjustment in the method used to compute the base rate

30  adjustment under this subsection which will produce results

31  reasonably consistent with the result which would have been


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 1  obtained if the producer price index for phosphate rock

 2  primary products had not been revised. However, the tax rate

 3  shall not be less than $1.56 per ton severed.

 4         (e)  In the event the producer price index for

 5  phosphate rock primary products is discontinued, then a

 6  comparable index shall be selected by the department and

 7  adopted by rule.

 8         (9)(7)  The excise tax levied on the severance of

 9  phosphate rock shall be in addition to any ad valorem taxes

10  levied upon the separately assessed mineral interest in the

11  real property upon which the site of severance is located, or

12  any other tax, permit, or license fee imposed by the state or

13  its political subdivisions.

14         (10)(8)  The tax levied by this section shall be

15  collected in the manner prescribed in s. 211.33.

16         Section 2.  Section 378.021, Florida Statutes, is

17  amended to read:

18         378.021  Master reclamation plan.--

19         (1)  The Department of Environmental Protection Natural

20  Resources shall amend the adopt by rule, as expeditiously as

21  possible upon receipt of the report of the Land Use Advisory

22  Committee, a master reclamation plan that provides to provide

23  guidelines for the reclamation of lands mined or disturbed by

24  the severance of phosphate rock prior to July 1, 1975, which

25  lands are not subject to mandatory reclamation under part II

26  of chapter 211.  In amending the developing said master

27  reclamation plan, the Department of Environmental Protection

28  Natural Resources shall continue to conduct an onsite

29  evaluation of all lands mined or disturbed by the severance of

30  phosphate rock prior to July 1, 1975, which lands are not

31  subject to mandatory reclamation under part II of chapter 211,


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 1  and shall consider the report and plan prepared by the Land

 2  Use Advisory Committee under s. 378.011 and submitted to the

 3  former Department of Natural Resources for adoption by rule on

 4  or before July 1, 1979.  The master reclamation plan when

 5  amended adopted by the Department of Environmental Protection

 6  Natural Resources shall be consistent with local government

 7  plans prepared pursuant to the Local Government Comprehensive

 8  Planning and Land Development Regulation Act.

 9         (2)  The amended master reclamation plan shall identify

10  which of the lands mined or disturbed by the severance of

11  phosphate rock prior to July 1, 1975, meet the following

12  criteria:

13         (a)  The quality of surface waters leaving the land

14  does not meet applicable water quality standards, if any; or,

15  health and safety hazards exist on the land; or, the soil has

16  not stabilized and revegetated; or, the remaining natural

17  resources associated with the land are not being conserved;

18         (b)  The environmental or economic utility or aesthetic

19  value of the land would not naturally return within a

20  reasonable time, and reclamation would substantially promote

21  the environmental or economic utility or the aesthetic value

22  of the land; and

23         (c)  The reclamation of the land is in the public

24  interest because the reclamation, when combined with other

25  reclamation under the master plan, would provide a substantial

26  regional benefit; and.

27         (d)  The reclamation of the land is in the public

28  interest because the reclamation, when combined with other

29  reclamation under the master plan, will provide significant

30  benefits to surface water bodies supplying water for

31  


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 1  environmental and public purposes in those areas of the state

 2  where phosphate mining has been permitted.

 3         (3)  Lands evaluated by the department under subsection

 4  (1) which meet the criteria set forth in subsection (2) shall

 5  be identified with specificity in the master reclamation plan.

 6  Lands evaluated by the department under subsection (1) which

 7  do not meet the criteria set forth in subsection (2) shall

 8  also be identified with specificity in the master reclamation

 9  plan as lands which are acceptable in their present form.

10         (4)  Upon adoption of the amendments to the master

11  reclamation plan as a rule, such plan shall provide the

12  guidelines for approval of reclamation programs for lands

13  covered in the plan, recognizing that reclamation of such

14  lands is not mandatory, but that any payment of costs expended

15  for reclamation paid under s. 378.031 shall be contingent upon

16  conformity with the guidelines set forth in the master

17  reclamation plan.

18         Section 3.  Section 378.031, Florida Statutes, is

19  amended to read:

20         378.031  Reclamation or acquisition of nonmandatory

21  lands; legislative intent.--It is the intent of the

22  Legislature to provide an economic incentive to encourage the

23  reclamation of the maximum number of acres of eligible

24  nonmandatory lands in the most timely and efficient manner or

25  the donation or purchase of nonmandatory lands, especially

26  those lands for which reclamation activities will result in

27  significant improvements to surface water bodies of regional

28  importance in those areas of the state where phosphate mining

29  has been permitted.  The Legislature recognizes that certain

30  lands mined or disturbed prior to July 1, 1975, have been

31  naturally reclaimed.


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 1         Section 4.  Subsections (5), (6), (7), (8), and (9) of

 2  section 378.035, Florida Statutes, are amended to read:

 3         378.035  Department responsibilities and duties with

 4  respect to Nonmandatory Land Reclamation Trust Fund.--

 5         (5)  On July 1, 2001, $50 million of the unencumbered

 6  Funds within the Nonmandatory Land Reclamation Trust Fund are

 7  also authorized reserved for use by the department for the

 8  following purposes:.

 9         (a)  These reserved moneys are to be used To reclaim

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

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

12  and the associated reclamation prior to all lands disturbed by

13  the operation being reclaimed. Moneys expended by the

14  department to accomplish reclamation pursuant to this

15  subsection shall become a lien upon the property enforceable

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

17  lien foreclosure or as repayment shall be deposited into the

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

19  lien foreclosure or repayment is less than the amount expended

20  for reclamation, the department shall use all means available

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

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

23  acquired as a result of a lien foreclosure.

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

25  million reserve fund For the abatement of an imminent hazard

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

27  an abandoned phosphogypsum stack system and carrying out

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

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

30  403.4154(4) may be used for the purposes authorized in this

31  paragraph. Fowever, such fees may only be used at a stack


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 1  system if closure or imminent-hazard-abatement activities

 2  initially commence on or after July 1, 2002.

 3         (c)(6)(a)  Up to one-half of the interest income

 4  accruing to the funds reserved by subsection (5) shall be

 5  available to the department annually For the purpose of

 6  funding basic management or protection of reclaimed, restored,

 7  or preserved phosphate lands:

 8         1.  Which have wildlife habitat value as determined by

 9  the Bureau of Mine Reclamation;

10         2.  Which have been transferred by the landowner to a

11  public agency or a private, nonprofit land conservation and

12  management entity in fee simple, or which have been made

13  subject to a conservation easement pursuant to s. 704.06; and

14         3.  For which other management funding options are not

15  available.

16  

17  These funds may, after the basic management or protection has

18  been assured for all such lands, be combined with other

19  available funds to provide a higher level of management for

20  such lands.

21         (d)(b)  Up to one-half of the interest income accruing

22  to the funds reserved by subsection (5) shall be available to

23  the department annually For the sole purpose of funding the

24  department's implementation of:

25         1.  The NPDES permitting program authorized by s.

26  403.0885, as it applies to phosphate mining and beneficiation

27  facilities, phosphate fertilizer production facilities, and

28  phosphate loading and handling facilities;

29         2.  The regulation of dams in accordance with

30  department rule 62-672, Florida Administrative Code; and

31  


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 1         3.  The phosphogypsum management program pursuant to s.

 2  403.4154 and department rule 62-673, Florida Administrative

 3  Code.

 4  

 5  On or before August 1 of each fiscal year, the department

 6  shall prepare a report presenting the expenditures using the

 7  interest income allocated by this section made by the

 8  department during the immediately preceding fiscal year, which

 9  report shall be available to the public upon request.

10         (6)(7)  Should the nonmandatory land reclamation

11  program encumber all the funds in the Nonmandatory Land

12  Reclamation Trust Fund except those reserved by subsection (5)

13  prior to funding all the reclamation applications for eligible

14  parcels, the funds reserved by subsection (5) shall be

15  available to the program to the extent required to complete

16  the reclamation of all eligible parcels for which the

17  department has received applications.

18         (7)(8)  The department may not accept any applications

19  for nonmandatory land reclamation programs after July 1, 2004

20  November 1, 2008.

21         (8)(9)  The Bureau of Mine Reclamation shall review the

22  sufficiency of the Nonmandatory Land Reclamation Trust Fund to

23  support the stated objectives and report to the secretary

24  annually with recommendations as appropriate. The report

25  submittal for calendar year 2008 shall specifically address

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

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

28  pursuant to department rules, and the report shall be

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

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

31  1, 2009.


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 1  

 2  For the 2003-2004 fiscal year the department may not approve

 3  or encumber nonmandatory reclamation projects in amounts

 4  greater than $15 million.

 5         Section 5.  Subsection (6) is added to section 378.036,

 6  Florida Statutes, to read:

 7         378.036  Land acquisitions financed by Nonmandatory

 8  Land Reclamation Trust Fund moneys.--

 9         (6)(a)  By January 1, 2004, or within 6 months from the

10  date funds become available from the Legislature, whichever is

11  later, the Florida Wildlife Federation, Audubon Florida, and

12  Rails-to-Trails Conservancy in partnership with the Florida

13  Phosphate Council are authorized to form a nonprofit

14  corporation pursuant to chapter 617 for the purpose of

15  implementing the provisions of this section by creating plans

16  and assisting in the development of recreational opportunities

17  on lands mined for phosphate in the state. The first plans

18  shall concentrate on recreational activities in Hardee and

19  Hamilton Counties which will assist them in rural economic

20  development.

21         (b)  The board of directors of the corporation shall be

22  composed of three members, one designated by the Florida

23  Phosphate Council, one as the designee of the Florida Wildlife

24  Federation, Audubon Florida, and Rails-to-Trails Conservancy,

25  and the third chosen by the other two designees.

26         (c)  The business of the corporation shall be conducted

27  by the board of directors or a chief executive officer as the

28  board shall see fit in accordance with the provisions of its

29  articles of incorporation and applicable law. The activities

30  of the corporation shall be coordinated with all landowners

31  


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 1  who have voluntarily agreed to participate in the process as

 2  well as any local government where such lands are recorded.

 3         (d)  An annual report of the activities of the

 4  corporation, including a certified audit, shall be presented

 5  to the Secretary of Environmental Protection or his or her

 6  designee by October 31 of each year following incorporation.

 7         (e)  The corporation shall dissolve on January 1, 2009,

 8  unless dissolved previously by action of its board of

 9  directors or extended by the Legislature. Upon dissolution,

10  any moneys remaining in the accounts of the corporation that

11  are unobligated shall be returned to the funds from which they

12  were appropriated in proportion to the amount contributed. All

13  tangible assets of the corporation at dissolution which were

14  acquired using state funding shall become the property of the

15  Department of Environmental Protection.

16         (f)  For fiscal year 2003-2004, the sum of $200,000

17  shall be appropriated from the Nonmandatory Land Reclamation

18  Trust Fund to the non-profit corporation specified hereinabove

19  for the purpose of creating plans and assisting in the

20  development of recreational opportunities on lands mined for

21  phosphate in the state.

22         Section 6.  Subsection (1) of section 378.212, Florida

23  Statutes, is amended to read:

24         378.212  Variances.--

25         (1)  Upon application, the secretary may grant a

26  variance from the provisions of this part or the rules adopted

27  pursuant thereto. Variances and renewals thereof may be

28  granted for any one of the following reasons:

29         (a)  There is no practicable means known or available

30  to comply with the provisions of this part or the rules

31  adopted pursuant thereto.


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    CS for CS for SB 1312                          First Engrossed



 1         (b)  Compliance with a particular requirement or

 2  requirements from which a variance is sought will necessitate

 3  the taking of measures which must be spread over a

 4  considerable period of time. A variance granted for this

 5  reason shall prescribe a timetable for the taking of the

 6  measures required.

 7         (c)  To relieve or prevent hardship, including economic

 8  hardship, of a kind other than those provided for in

 9  paragraphs (a) and (b).

10         (d)  To accommodate specific phosphate mining,

11  processing or chemical plant uses that otherwise would be

12  inconsistent with the requirements of this part.

13         (e)  To provide for an experimental technique that

14  would advance the knowledge of reclamation and restoration

15  methods.

16         (f)  To accommodate projects, including those proposing

17  offsite mitigation, that provide a significant regional

18  benefit for wildlife and the environment.

19         (g)  To accommodate reclamation that provides water

20  supply development or water resource development not

21  inconsistent with the applicable regional water supply plan

22  approved pursuant to s. 373.0361, provided adverse impacts are

23  not caused to the water resources in the basin. A variance may

24  also be granted from the requirements of part IV of chapter

25  373, or the rules adopted thereunder, when a project provides

26  an improvement in water availability in the basin and does not

27  cause adverse impacts to water resources in the basin.

28         Section 7.  Subsection (9) is added to section 378.404,

29  Florida Statutes, to read:

30  

31  


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    CS for CS for SB 1312                          First Engrossed



 1         378.404  Department of Environmental Protection; powers

 2  and duties.--The department shall have the following powers

 3  and duties:

 4         (9)  To grant variances from the provisions of this

 5  part to accommodate reclamation that provides for water supply

 6  development or water resource development not inconsistent

 7  with the applicable regional water supply plan approved

 8  pursuant to s. 373.0361, appropriate stormwater management,

 9  improved wildlife habitat, recreation, or a mixture thereof,

10  provided adverse impacts are not caused to the water resources

11  in the basin and public health and safety are not adversely

12  affected.

13         Section 8.  Subsections (2), (3), and (4) of section

14  403.4154, Florida Statutes, are amended to read:

15         403.4154  Phosphogypsum management program.--

16         (2)  REGULATORY PROGRAM.--

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

18  department develop a program for the sound and effective

19  regulation of phosphogypsum stack systems in the state.

20         (b)  The department shall adopt rules that prescribe

21  acceptable construction designs for new or expanded

22  phosphogypsum stack systems and that prescribe permitting

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

24  requirements, and closure financial responsibility

25  requirements for phosphogypsum stack systems.

26         (c)  Whoever willfully, knowingly, or with reckless

27  indifference or gross carelessness misstates or misrepresents

28  the financial condition or closure costs of an entity engaged

29  in managing, owning, or operating a phosphogypsum stack or

30  stack system commits a felony of the third degree, punishable

31  


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    CS for CS for SB 1312                          First Engrossed



 1  as provided in s. 775.082 or s. 775.083 by a fine of not more

 2  than $50,000 and by imprisonment for 5 years for each offense.

 3         (d)  In the event that an owner or operator of a

 4  phosphogypsum stack or stack system fails to comply with

 5  department rules requiring demonstration of closure financial

 6  responsibility, no distribution may be made that would be

 7  prohibited under s. 607.06401(3), until the noncompliance is

 8  corrected. Whoever willfully, knowingly, or with reckless

 9  indifference or gross carelessness violates this prohibition

10  commits a felony of the third degree, punishable as provided

11  in s. 775.082 or s. 775.083 by a fine of not more than $50,000

12  or by imprisonment for 5 years for each offense.

13         (3)  ABATEMENT OF IMMINENT HAZARD.--

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

15  substantially reduce any imminent hazard caused by the

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

17  phosphogypsum stack system.

18         (b)  An imminent hazard exists if the physical

19  condition, maintenance, operation, or closure of a

20  phosphogypsum stack system creates an immediate and

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

22  the environment. A phosphogypsum stack system is presumed not

23  to cause an imminent hazard if the physical condition and

24  operation of the system are in compliance with all applicable

25  department rules.

26         (c)  The failure of an owner or operator of a

27  phosphogypsum stack system to comply with department rules

28  requiring demonstration of closure financial responsibility

29  may be considered by the department as evidence that a

30  phosphogypsum stack poses an imminent hazard for purposes of

31  initiating actions authorized by paragraph (d).


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    CS for CS for SB 1312                          First Engrossed



 1         (d)(c)  If the department determines that the failure

 2  of an owner or operator to comply with department rules

 3  requiring demonstration of financial responsibility or that

 4  the physical condition, maintenance, operation, or closure of

 5  a phosphogypsum stack system poses an imminent hazard, the

 6  department shall request access to the property on which such

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

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

 9  substantially reduce the imminent hazard. If the department,

10  after reasonable effort, is unable to timely obtain the

11  necessary access to abate or substantially reduce the imminent

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

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

14  to abate or substantially reduce an imminent hazard. Whenever

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

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

17  to completion of an administrative hearing or other formal

18  proceeding that might be initiated to abate the risk of

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

20  parte, an injunction without paying filing and service fees

21  prior to the filing and service of process.

22         (e)(d)  To abate or substantially reduce an imminent

23  hazard, the department may take any appropriate action,

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

25  department or contracting with other state or federal

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

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

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

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

30         (f)(e)  The department shall recover from the owner or

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


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    CS for CS for SB 1312                          First Engrossed



 1  Nonmandatory Land Reclamation Trust Fund all moneys expended

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

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

 4  phosphogypsum stack system plus a penalty equal to an amount

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

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

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

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

 9  recover funds pursuant to this subsection, it may recover

10  reasonable attorney's fees and costs incurred. Phosphogypsum

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

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

13  the department determines that such placement is necessary to

14  abate or avoid an imminent hazard or unless otherwise

15  authorized by the department.

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

17  property on which the phosphogypsum stack system that poses an

18  imminent hazard is located and on the real property underlying

19  and other assets located at associated phosphate fertilizer

20  production facilities equal in amount to the moneys expended

21  from the Nonmandatory Land Reclamation Trust Fund pursuant to

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

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

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

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

26  section does not take priority over any other prior perfected

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

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

29  the associated phosphate rock mine and reserves.

30         (h)  Upon a declaration by the Governor of an

31  environmental emergency concerning the abatement of a imminent


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    CS for CS for SB 1312                          First Engrossed



 1  hazard involving a phosphogypsum stack or stack system, the

 2  state and any agent under contract with the state for the

 3  provision of services directly related to the abatement of

 4  such hazard shall not become liable under state laws for

 5  environmental protection for any costs, damages, or penalties

 6  associated with the abatement of the imminent hazard. The

 7  Legislature finds that provision of this limited immunity is

 8  in the public interest and necessary for the abatement of the

 9  imminent hazard.

10         (4)  REGISTRATION FEES.--

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

12  phosphogypsum stack who has not provided a performance bond,

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

14  to demonstrate financial responsibility for closure and

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

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

17  Nonmandatory Land Reclamation Trust Fund.

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

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

20  July 1, 2001.

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

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

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

24  to demonstrate financial responsibility for closure and

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

26  periods following the issuance by the department of a

27  construction permit for that stack.

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

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

30  Florida Administrative Code, the department shall refund to

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


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    CS for CS for SB 1312                          First Engrossed



 1  Nonmandatory Land Reclamation Trust Fund equal to the total

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

 3  fund in connection with the closed phosphogypsum stack.

 4  However, no refund shall be paid until such time as the

 5  Mulberry and Piney Point phosphogypsum stack systems have been

 6  closed and a satisfactory reserve has been established in the

 7  Nonmandatory Reclamation Lands Trust Fund, except that any

 8  refund becoming payable prior to July 1, 2009, shall be paid

 9  to the owner on or after that date.

10         (b)  On or before August 1 of each year, the department

11  shall provide written notice to each owner of an existing

12  stack of any fee payable for the 12-month period commencing on

13  the immediately preceding July 1. Each owner shall remit the

14  fee to the department on or before August 31 of each year.

15         Section 9.  Section 403.4155, Florida Statutes, is

16  amended to read:

17         403.4155  Phosphogypsum management; rulemaking

18  authority.--

19         (1)  The Department of Environmental Protection shall

20  adopt rules to amend existing chapter 62-672, Florida

21  Administrative Code, to ensure that impoundment structures and

22  water conveyance piping systems used in phosphogypsum

23  management are designed and maintained to meet critical safety

24  standards. The rules must require that any impoundment

25  structure used in a phosphogypsum stack system, together with

26  all pumps, piping, ditches, drainage conveyances, water

27  control structures, collection pools, cooling ponds, surge

28  ponds, and any other collection or conveyance system

29  associated with phosphogypsum transport, cooling water, or the

30  return of process wastewater, is constructed using sound

31  engineering practices and is operated to avoid spills or


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    CS for CS for SB 1312                          First Engrossed



 1  discharges of materials which adversely affect surface or

 2  ground waters. The rules must require that a phosphogypsum

 3  stack system owner maintain a log detailing the owner's

 4  operating inspection schedule, results, and any corrective

 5  action taken based on the inspection results. The rules must

 6  require phosphogypsum stack owners to maintain an emergency

 7  contingency plan and demonstrate the ability to mobilize

 8  equipment and manpower to respond to emergency situations at

 9  phosphogypsum stack systems. The rules must establish a

10  reasonable time period not to exceed 12 months for facilities

11  to meet the provisions of the rules adopted pursuant to this

12  section.

13         (2)  The department shall revise chapter 62-673,

14  Florida Administrative Code, to require the owner or operator

15  of a phosphogypsum stack system to demonstrate financial

16  responsibility for the costs of terminal closure of the

17  phosphogypsum stack system in a manner that protects the

18  environment and the public health and safety. At a minimum,

19  such rules shall include or address the following:

20         (a)  Requirements that the cost of closure and

21  long-term care be re-estimated by a professional engineer and

22  adjusted for inflation on an annual basis and, at a minimum,

23  such cost data shall include the cost of treatment and

24  appropriate disposal of all process wastewater, both ponded

25  and pore, in the system; all construction work necessary to

26  properly close the system in accordance with department rules;

27  and all costs associated with long-term care of the closed

28  system, including maintenance and monitoring, in accordance

29  with department rules.

30  

31  


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    CS for CS for SB 1312                          First Engrossed



 1         (b)  Financial statements and financial data be

 2  prepared according to United States generally accepted

 3  accounting principles and submitted quarterly.

 4         (c)  That audited financial statements be provided

 5  annually, along with the statement of financial assurance.

 6         (d)  A requirement that any owner or operator report

 7  immediately if it is in default on any of its obligations.

 8         (e)  Include an option for the owner or operator to

 9  satisfy the financial responsibility requirements with a

10  corporate guarantee for an amount that would assure adequate

11  coverage of the closure and postclosure costs.

12         (3)  By October 1, 2003, the department shall initiate

13  rulemaking to require that phosphogypsum stack system

14  operation plans required by department rule be amended by

15  adding an interim stack system management (ISSM) plan that

16  provides written instructions for the operation of the system

17  assuming that no phosphoric acid would be produced at the

18  facility for a 2-year period. The initial ISSM plan shall be

19  completed as of the first July 1 following the adoption of the

20  rule required by this section. The ISSM plan shall include:

21         (a)  A detailed description of process water management

22  procedures that will be implemented to ensure that the stack

23  system operates in accordance with all applicable department

24  permit conditions and rules. The procedures shall address the

25  actual process water levels present at the facility 30 days

26  prior to the completion of the plan and shall assume that the

27  facility will receive annual average rainfall during the

28  2-year planning period.

29         (b)  A detailed description of the procedures to be

30  followed for the daily operation and routine maintenance of

31  the stack system, including required environmental sampling


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    CS for CS for SB 1312                          First Engrossed



 1  and analyses, as well as for any maintenance or repairs

 2  recommended following annual inspections of the system.

 3         (c)  Identification of all machinery, equipment, and

 4  materials necessary to implement the plan.

 5         (d)  Identification of the sources of power or fuel

 6  necessary to implement the plan.

 7         (e)  Identification of the personnel necessary to

 8  implement the plan.

 9         (4)  The ISSM plan shall be updated annually taking

10  into account process water levels as of June 1 and the

11  then-existing stack system configuration.

12         (5)  The foregoing requirement for the preparation and

13  updating of the ISSM plan is applicable to all phosphogypsum

14  stack systems except those which have been closed, which are

15  undergoing closure, or for which an application for a closure

16  permit has been submitted pursuant to department rule.

17         (6)  By October 1, 2003, the department shall initiate

18  rulemaking to require that general plans and schedules for the

19  closure of phosphogypsum stack systems include:

20         (a)  A description of the physical configuration of the

21  phosphogypsum stack system anticipated at the time of closure

22  at the end of useful life of the system.

23         (b)  A site-specific water management plan describing

24  the procedure to be employed at the end of the useful life of

25  the system to manage the anticipated volume of process water

26  in an environmentally sound manner.

27         (c)  An estimate of the cost of management of the

28  anticipated volume of process water in accordance with the

29  site-specific water management plan.

30  

31  


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    CS for CS for SB 1312                          First Engrossed



 1         (d)  A description of all construction work necessary

 2  to properly close the system in accordance with department

 3  rules.

 4         (e)  An estimate of all costs associated with long-term

 5  care of the closed system, including maintenance and

 6  monitoring, in accordance with department rules.

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

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

 9  adequacy of the financial responsibility provisions contained

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

11  that the rules provide sound and effective provisions to

12  minimize risk to the environment and to public health and

13  safety from the business failure of a phosphogypsum stack

14  system.

15         Section 10.  (1)  The Department of Environmental

16  Protection, in consultation with the Southwest Florida Water

17  Management District, shall study cumulative impacts of changes

18  in landform and hydrology in the Peace River Basin. The study

19  shall evaluate cumulative impacts of activities conducted in

20  the Peace River Basin prior to state regulation, or pursuant

21  to an exemption, a permit, or a reclamation plan on water

22  resources of the basin, including surface waters,

23  groundwaters, fisheries, aquatic and estuarine habitat, and

24  water supplies. The study shall also include an evaluation of

25  the effectiveness of existing regulatory programs in avoiding,

26  minimizing, mitigating, or compensating for cumulative impacts

27  on water resources of the basin.

28         (2)  Upon completion of the study, the department shall

29  prepare and adopt a resource management plan for the Peace

30  River Basin to minimize any identified existing and future

31  adverse cumulative impacts to water resources of the basin,


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    CS for CS for SB 1312                          First Engrossed



 1  including surface waters, groundwaters, wetlands, fisheries,

 2  aquatic and estuarine habitat, and water supplies. The plan

 3  shall identify regulatory and nonregulatory actions necessary

 4  to minimize existing and future adverse cumulative impacts

 5  identified in the study and where appropriate, shall also

 6  recommend statutory changes to improve regulatory programs to

 7  minimize identified cumulative impacts to water resources of

 8  the basin.

 9         (3)  The resource management plan shall be submitted to

10  the Governor, the Speaker of the House of Representatives and

11  the President of the Senate no later than January 1, 2005.

12         (4)  The department may use up to $750,000 from the

13  Nonmandatory Land Reclamation Trust Fund to prepare the study

14  and plan required in this section.

15         (5)  The department may establish a technical advisory

16  committee to assist the department in developing a plan of

17  study, reviewing interim findings, and reviewing final

18  recommendations. The technical advisory committee may include

19  representatives from the following interests in the Peace

20  River Basin:  industrial, mining, agriculture, development,

21  environmental, fishing, regional water supply, and local

22  government.

23         Section 11.  For fiscal year 2003-2004, the sum of

24  $12.5 million is hereby transferred from the Nonmandatory Land

25  Reclamation Trust Fund to the General Revenue Fund.

26         Section 12.  For fiscal year 2003-2004, the sum of

27  $800,000 is appropriated to the Phosphate Research Trust Fund

28  from the proceeds of the phosphate severance tax deposited

29  into the Nonmandatory Land Reclamation Trust Fund. Such funds

30  shall be used by the Florida Institute of Phosphate Research

31  to conduct a bench and pilot scale study of the FIPR/DIPR


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    CS for CS for SB 1312                          First Engrossed



 1  process for the purpose of determining its technical and

 2  economic feasibility. The study shall evaluate the

 3  availability, technical feasibility, and cost of using various

 4  types of fiber, including, but not limited to, paper and

 5  sewage sludge.  The study shall evaluate the technical

 6  feasibility and practicality of various methods of using and

 7  disposing of the clay/fiber product produced, including

 8  admixing the material with soil.

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

10  law.

11  

12  

13  

14  

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  


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