HB 0093B 2003
1	A bill to be entitled
2	An act relating to phosphate mining; amending s. 211.3103,
3	F.S.; revising the tax on phosphate rock; providing for
4	the distribution of tax proceeds; deleting obsolete
5	language; amending s. 378.021, F.S.; directing the
6	Department of Environmental Protection to amend the master
7	reclamation plan; amending s. 378.031, F.S.; providing
8	additional intent concerning reclamation activities;
9	amending s. 378.035, F.S.; amending authorized uses of
10	funds deposited in the Nonmandatory Land Reclamation Trust
11	Fund; removing requirements for a reserve; limiting
12	reclamation expenditures for fiscal year 2003-2004;
13	amending s. 378.036, F.S.; creating a not-for-profit
14	partnership to assist in phosphate reclamation; providing
15	duties of the partnership; providing for the
16	administration of partnership funds; providing an
17	appropriation; amending s. 378.212; providing authority
18	for a variance for certain reclamation activities;
19	amending s. 378.404, F.S.; allowing variances for water
20	supply development; amending s. 403.4154, F.S.; providing
21	criminal penalties for certain violations; prohibiting the
22	distribution of certain company assets under certain
23	circumstances; providing for the declaration of an
24	imminent hazard if certain financial conditions exist;
25	providing limited liability for entities assisting in the
26	abatement of imminent hazards; amending a provision
27	granting certain rebates of phosphate fees; amending s.
28	403.4155, F.S.; directing that rules be developed for
29	financial assurance, interim stack management, and stack
30	closure; requiring the Department of Environmental
31	Protection to conduct a study; providing funds for the
32	study; providing for the transfer of certain funds from
33	the Nonmandatory Land Reclamation Trust Fund to the
34	General Revenue Fund; providing for the funding of a study
35	by the Florida Institute of Phosphate Research; providing
36	for construction of the act in pari materia with laws
37	enacted during the 2003 Regular Session or the 2003
38	Special Session A of the Legislature; providing an
39	effective date.
40
41	Be It Enacted by the Legislature of the State of Florida:
42
43	Section 1. Section 211.3103, Florida Statutes, is amended
44	to read:
45	211.3103 Levy of tax on severance of phosphate rock; rate,
46	basis, and distribution of tax.--
47	(1) There is hereby levied an excise tax upon every person
48	engaging in the business of severing phosphate rock from the
49	soils or waters of this state for commercial use. The tax shall
50	be collected, administered, and enforced by the department.
51	(2) Beginning July 1, 2003, the proceeds of all taxes,
52	interest, and penalties imposed under this section shall be paid
53	into the State Treasury as follows:
54	(a) The first $10 million in revenue collected from the
55	tax during each fiscal year shall be paid to the credit of the
56	Conservation and Recreation Lands Trust Fund.
57	(b) The remaining revenues collected from the tax during
58	that fiscal year, after the required payment under paragraph
59	(a), shall be paid into the State Treasury as follows:
60	1. For payment to counties in proportion to the number of
61	tons of phosphate rock produced from a phosphate rock matrix
62	located within such political boundary, 18.75 percent. The
63	department shall distribute this portion of the proceeds
64	annually based on production information reported by the
65	producers on the annual returns for the taxable year. Any such
66	proceeds received by a county shall be used only for phosphate-
67	related expenses.
68	2. For payment to counties that have been designated a
69	Rural Area of Critical Economic Concern pursuant to s. 288.0656
70	in proportion to the number of tons of phosphate rock produced
71	from a phosphate rock matrix located within such political
72	boundary, 15 percent. The department shall distribute this
73	portion of the proceeds annually based on production information
74	reported by the producers on the annual returns for the taxable
75	year.
76	3. To the credit of the Phosphate Research Trust Fund in
77	the Department of Education, Division of Universities, 11.25
78	percent.
79	4. To the credit of the Minerals Trust Fund, 11.25
80	percent.
81	5. To the credit of the Nonmandatory Land Reclamation
82	Trust Fund, 43.75 percent.
83	(3) Beginning July 1, 2004, the proceeds of all taxes,
84	interest, and penalties imposed under this section shall be paid
85	into the State Treasury as follows:
86	(a) The first $10 million in revenue collected from the
87	tax during each fiscal year shall be paid to the credit of the
88	Conservation and Recreation Lands Trust Fund.
89	(b) The remaining revenues collected from the tax during
90	that fiscal year, after the required payment under paragraph
91	(a), shall be paid into the State Treasury as follows:
92	1. To the credit of the General Revenue Fund of the state,
93	41 percent.
94	2. For payment to counties in proportion to the number of
95	tons of phosphate rock produced from a phosphate rock matrix
96	located within such political boundary, 16.5 percent. The
97	department shall distribute this portion of the proceeds
98	annually based on production information reported by the
99	producers on the annual returns for the taxable year. Any such
100	proceeds received by a county shall be used only for phosphate-
101	related expenses.
102	3. For payment to counties that have been designated a
103	Rural Area of Critical Economic Concern pursuant to s. 288.0656
104	in proportion to the number of tons of phosphate rock produced
105	from a phosphate rock matrix located within such political
106	boundary, 13 percent. The department shall distribute this
107	portion of the proceeds annually based on production information
108	reported by the producers on the annual returns for the taxable
109	year. Payments under this subparagraph shall be made to the
110	counties unless the Legislature by special act creates a local
111	authority to promote and direct the economic development of the
112	county. If such authority exists, payments shall be made to that
113	authority.
114	4. To the credit of the Phosphate Research Trust Fund in
115	the Department of Education, Division of Universities, 9
116	percent.
117	5. To the credit of the Minerals Trust Fund, 9 percent.
118	6. To the credit of the Nonmandatory Land Reclamation
119	Trust Fund, 11.5 percent.
120	(4) Beginning July 1, 2003, and annually thereafter, the
121	Department of Environmental Protection may utilize up to $2
122	million of the funds in the Nonmandatory Land Reclamation Trust
123	Fund to purchase a surety bond or a policy of insurance, the
124	proceeds of which would pay the cost of restoration,
125	reclamation, and cleanup of any phosphogypsum stack system and
126	phosphate mining activities in the event that an operator or
127	permittee thereof has been subject to a final order of
128	bankruptcy and all funds available therefrom are determined to
129	be inadequate to accomplish such restoration, reclamation, and
130	cleanup. Nothing in this section shall be construed to imply
131	that such operator or permittee is thereby relieved of its
132	obligations or relieved of any liabilities pursuant to any other
133	remedies at law, administrative remedies, statutory remedies, or
134	remedies pursuant to bankruptcy law. The department shall adopt
135	rules to implement the provisions of this paragraph, including
136	the purchase and oversight of the bond or policy.
137	(5) Funds distributed pursuant to subparagraphs (2)(b)2.
138	and (3)(b)3. shall be used for the following purposes:
139	1. For planning, preparing, and financing of
140	infrastructure projects for job creation and capital investment,
141	especially those related to industrial and commercial sites.
142	Infrastructure investments may include the following public or
143	public-private partnership facilities: stormwater systems;
144	telecommunications facilities; roads or other remedies to
145	transportation impediments; nature-based tourism facilities; or
146	other physical requirements necessary to facilitate trade and
147	economic development activities.
148	2. For maximizing the use of federal, local, and private
149	resources, including, but not limited to, those available under
150	the Small Cities Community Development Block Grant Program.
151	3. For projects that improve inadequate infrastructure
152	that has resulted in regulatory action that prohibits economic
153	or community growth, provided that such projects are related to
154	specific job creation or job retention opportunities.
155	(6) Beginning January 1, 2004, the tax rate shall be the
156	base rate of $1.62 per ton severed.
157	(7) Beginning January 1, 2005, and annually thereafter,
158	the tax rate shall be the base rate times the base rate
159	adjustment for the tax year as calculated by the department in
160	accordance with subsection (8).
161	(2) The proceeds of all taxes, interest, and penalties
162	imposed under this section shall be paid into the State Treasury
163	through June 30, 1995, as follows:
164	(a) The first $10 million in revenue collected from the
165	tax during each fiscal year shall be paid to the credit of the
166	Conservation and Recreation Lands Trust Fund.
167	(b) The remaining revenues collected from the tax during
168	that fiscal year, after the required payment under paragraph
169	(a), shall be paid into the State Treasury as follows:
170	1. To the credit of the General Revenue Fund of the state,
171	60 percent. However, from this amount the amounts of $7.4
172	million, $8.2 million, and $8.1 million, respectively, shall be
173	transferred to the Nonmandatory Land Reclamation Trust Fund on
174	January 1, 1993, January 1, 1994, and January 1, 1995.
175	2. To the credit of the Nonmandatory Land Reclamation
176	Trust Fund which is established for reclamation and acquisition
177	of unreclaimed lands disturbed by phosphate mining and not
178	subject to mandatory reclamation, 20 percent.
179	3. To the credit of the Phosphate Research Trust Fund in
180	the Department of Education, Division of Universities, to carry
181	out the purposes set forth in s. 378.101, 10 percent.
182	4. For payment to counties in proportion to the number of
183	tons of phosphate rock produced from a phosphate rock matrix
184	located within such political boundary, 10 percent. The
185	department shall distribute this portion of the proceeds
186	annually based on production information reported by producers
187	on the annual returns for the taxable year. Any such proceeds
188	received by a county shall be used only for phosphate-related
189	expenses.
190	(3) Beginning July 1, 1995, the proceeds of all taxes,
191	interest, and penalties imposed under this section shall be paid
192	into the State Treasury as follows:
193	(a) The first $10 million in revenue collected from the
194	tax during each fiscal year shall be paid to the credit of the
195	Conservation and Recreation Lands Trust Fund.
196	(b) The remaining revenues collected from the tax during
197	that fiscal year, after the required payment under paragraph
198	(a), shall be paid into the State Treasury as follows:
199	1. To the credit of the General Revenue Fund of the state,
200	58 percent.
201	2. To the credit of the Nonmandatory Land Reclamation
202	Trust Fund for reclamation and acquisition of unreclaimed lands
203	disturbed by phosphate mining and not subject to mandatory
204	reclamation, 14.5 percent.
205	3. To the credit of the Phosphate Research Trust Fund in
206	the Department of Education, Division of Universities, to carry
207	out the purposes set forth in s. 378.101, 10 percent.
208	4. For payment to counties in proportion to the number of
209	tons of phosphate rock produced from a phosphate rock matrix
210	located within such political boundary, 10 percent. The
211	department shall distribute this portion of the proceeds
212	annually based on production information reported by producers
213	on the annual returns for the taxable year. Any such proceeds
214	received by a county shall be used only for phosphate-related
215	expenses.
216	5. To the credit of the Minerals Trust Fund, 7.5 percent.
217	(4) If the base rate is reduced pursuant to paragraph
218	(5)(c), then the proceeds of the tax shall be paid into the
219	State Treasury as follows:
220	(a) The first $10 million in revenue collected from the
221	tax during each fiscal year shall be paid to the credit of the
222	Conservation and Recreation Lands Trust Fund.
223	(b) The remaining revenues collected from the tax during
224	that fiscal year, after the required payment under paragraph
225	(a), shall be paid into the State Treasury as follows:
226	1. To the credit of the General Revenue Fund of the state,
227	55.15 percent.
228	2. To the credit of the Phosphate Research Trust Fund in
229	the Department of Education, Division of Universities, 12.5
230	percent.
231	3. For payment to counties in proportion to the number of
232	tons of phosphate rock produced from a phosphate rock matrix
233	located within such political boundary, 18 percent. The
234	department shall distribute this portion of the proceeds
235	annually based on production information reported by producers
236	on the annual returns for the taxable year. Any such proceeds
237	received by a county shall be used only for phosphate-related
238	expenses.
239	4. To the credit of the Minerals Trust Fund, 14.35
240	percent.
241	(8)(5)The excise tax levied by this section shall apply
242	to the total production of the producer during the taxable year,
243	measured on the basis of bone-dry tons produced at the point of
244	severance., subject to the following rates:
245	(a) Beginning July 1, 1987, to December 31, 1987, the tax
246	rate shall be $1.79 per ton severed.
247	(b) For 1988, the tax rate shall be the base rate of $1.35
248	per ton severed.
249	(c) For 1989 and subsequent years, the tax rate shall be
250	the base rate times the base rate adjustment for the tax year as
251	calculated by the department in accordance with subsection (6).
252	However, for 2000 and subsequent taxable years, the base rate
253	shall be reduced by 20 percent, unless additional funding of the
254	Nonmandatory Land Reclamation Trust Fund is approved by law.
255	(9)(6)(a) On or before March 30, 20041989, and annually
256	thereafter, the department shall calculate the base rate
257	adjustment, if any, for phosphate rock based on the change in
258	the unadjusted annual producer price index for the prior
259	calendar year in relation to the unadjusted annual producer
260	price index for calendar year 19991987.
261	(b) For the purposes of determining the base rate
262	adjustment for any year, the base rate adjustment shall be a
263	fraction, the numerator of which is the unadjusted annual
264	producer price index for the prior calendar year and the
265	denominator of which is the unadjusted annual producer price
266	index for calendar year 19991987.
267	(c) The department shall provide the base rate, the base
268	rate adjustment, and the resulting tax rate to affected
269	producers by written notice on or before April 15 of the current
270	year.
271	(d) If the producer price index for chemical and
272	fertilizer mineral miningphosphate rock primary productsis
273	substantially revised, the department shall make appropriate
274	adjustment in the method used to compute the base rate
275	adjustment under this subsection which will produce results
276	reasonably consistent with the result which would have been
277	obtained if the producer price index for phosphate rock primary
278	products had not been revised. However, the tax rate shall not
279	be less than $1.56 per ton severed.
280	(e) In the event the producer price index for phosphate
281	rock primary products is discontinued, then a comparable index
282	shall be selected by the department and adopted by rule.
283	(10)(7)The excise tax levied on the severance of
284	phosphate rock shall be in addition to any ad valorem taxes
285	levied upon the separately assessed mineral interest in the real
286	property upon which the site of severance is located, or any
287	other tax, permit, or license fee imposed by the state or its
288	political subdivisions.
289	(11)(8)The tax levied by this section shall be collected
290	in the manner prescribed in s. 211.33.
291	Section 2. Section 378.021, Florida Statutes, is amended
292	to read:
293	378.021 Master reclamation plan.--
294	(1) The Department of Environmental ProtectionNatural
295	Resources shall amend theadopt by rule, as expeditiously as
296	possible upon receipt of the report of the Land Use Advisory
297	Committee, a master reclamation plan that providesto provide
298	guidelines for the reclamation of lands mined or disturbed by
299	the severance of phosphate rock prior to July 1, 1975, which
300	lands are not subject to mandatory reclamation under part II of
301	chapter 211. In amending thedeveloping saidmaster reclamation
302	plan, the Department of Environmental ProtectionNatural
303	Resources shall continue toconduct an onsite evaluation of all
304	lands mined or disturbed by the severance of phosphate rock
305	prior to July 1, 1975, which lands are not subject to mandatory
306	reclamation under part II of chapter 211, and shall consider the
307	report and plan prepared by the Land Use Advisory Committee
308	under s. 378.011 and submitted to the former Department of
309	Natural Resources for adoption by rule on or before July 1,
310	1979. The master reclamation plan when amendedadoptedby the
311	Department of Environmental ProtectionNatural Resourcesshall
312	be consistent with local government plans prepared pursuant to
313	the Local Government Comprehensive Planning and Land Development
314	Regulation Act.
315	(2) The amendedmaster reclamation plan shall identify
316	which of the lands mined or disturbed by the severance of
317	phosphate rock prior to July 1, 1975, meet the following
318	criteria:
319	(a) The quality of surface waters leaving the land does
320	not meet applicable water quality standards, if any; or, health
321	and safety hazards exist on the land; or, the soil has not
322	stabilized and revegetated; or, the remaining natural resources
323	associated with the land are not being conserved;
324	(b) The environmental or economic utility or aesthetic
325	value of the land would not naturally return within a reasonable
326	time, and reclamation would substantially promote the
327	environmental or economic utility or the aesthetic value of the
328	land; and
329	(c) The reclamation of the land is in the public interest
330	because the reclamation, when combined with other reclamation
331	under the master plan, would provide a substantial regional
332	benefit; and.
333	(d) The reclamation of the land is in the public interest
334	because the reclamation, when combined with other reclamation
335	under the master plan, will provide significant benefits to
336	surface water bodies supplying water for environmental and
337	public purposes in those areas of the state where phosphate
338	mining has been permitted.
339	(3) Lands evaluated by the department under subsection (1)
340	which meet the criteria set forth in subsection (2) shall be
341	identified with specificity in the master reclamation plan.
342	Lands evaluated by the department under subsection (1) which do
343	not meet the criteria set forth in subsection (2) shall also be
344	identified with specificity in the master reclamation plan as
345	lands which are acceptable in their present form.
346	(4) Upon adoption of the amendments to themaster
347	reclamation plan as a rule, such plan shall provide the
348	guidelines for approval of reclamation programs for lands
349	covered in the plan, recognizing that reclamation of such lands
350	is not mandatory, but that any payment of costs expended for
351	reclamation paid under s. 378.031 shall be contingent upon
352	conformity with the guidelines set forth in the master
353	reclamation plan.
354	Section 3. Section 378.031, Florida Statutes, is amended
355	to read:
356	378.031 Reclamation or acquisition of nonmandatory lands;
357	legislative intent.--It is the intent of the Legislature to
358	provide an economic incentive to encourage the reclamation of
359	the maximum number of acres of eligible nonmandatory lands in
360	the most timely and efficient manner or the donation or purchase
361	of nonmandatory lands, especially those lands for which
362	reclamation activities will result in significant improvements
363	to surface water bodies of regional importance in those areas of
364	the state where phosphate mining has been permitted. The
365	Legislature recognizes that certain lands mined or disturbed
366	prior to July 1, 1975, have been naturally reclaimed.
367	Section 4. Subsections (5), (6), (7), (8), and (9) of
368	section 378.035, Florida Statutes, are amended to read:
369	378.035 Department responsibilities and duties with
370	respect to Nonmandatory Land Reclamation Trust Fund.--
371	(5) On July 1, 2001, $50 million of the unencumberedFunds
372	within the Nonmandatory Land Reclamation Trust Fund are also
373	authorizedreserved for use by the department for the following
374	purposes:.
375	(a) These reserved moneys are to be usedTo reclaim lands
376	disturbed by the severance of phosphate rock on or after July 1,
377	1975, in the event that a mining company ceases mining and the
378	associated reclamation prior to all lands disturbed by the
379	operation being reclaimed. Moneys expended by the department to
380	accomplish reclamation pursuant to this subsection shall become
381	a lien upon the property enforceable pursuant to chapter 85. The
382	moneys received as a result of a lien foreclosure or as
383	repayment shall be deposited into the trust fund. In the event
384	the money received as a result of lien foreclosure or repayment
385	is less than the amount expended for reclamation, the department
386	shall use all means available to recover, for the use of the
387	fund, the difference from the affected parties. Paragraph (3)(b)
388	shall apply to lands acquired as a result of a lien foreclosure.
389	(b) The department may also expend funds from the $50
390	million reserve fundFor the abatement of an imminent hazard as
391	provided by s. 403.4154(3) and for the purpose of closing an
392	abandoned phosphogypsum stack system and carrying out
393	postclosure care as provided by s. 403.4154(5). Fees deposited
394	in the Nonmandatory Land Reclamation Trust Fund pursuant to s.
395	403.4154(4) may be used for the purposes authorized in this
396	paragraph. However, such fees may only be used at a stack system
397	if closure or imminent-hazard-abatement activities initially
398	commence on or after July 1, 2002.
399	(c)(6)(a) Up to one-half of the interest income accruing
400	to the funds reserved by subsection (5) shall be available to
401	the department annuallyFor the purpose of funding basic
402	management or protection of reclaimed, restored, or preserved
403	phosphate lands:
404	1. Which have wildlife habitat value as determined by the
405	Bureau of Mine Reclamation;
406	2. Which have been transferred by the landowner to a
407	public agency or a private, nonprofit land conservation and
408	management entity in fee simple, or which have been made subject
409	to a conservation easement pursuant to s. 704.06; and
410	3. For which other management funding options are not
411	available.
412
413	These funds may, after the basic management or protection has
414	been assured for all such lands, be combined with other
415	available funds to provide a higher level of management for such
416	lands.
417	(d)(b) Up to one-half of the interest income accruing to
418	the funds reserved by subsection (5) shall be available to the
419	department annuallyFor the sole purpose of funding the
420	department's implementation of:
421	1. The NPDES permitting program authorized by s. 403.0885,
422	as it applies to phosphate mining and beneficiation facilities,
423	phosphate fertilizer production facilities, and phosphate
424	loading and handling facilities;
425	2. The regulation of dams in accordance with department
426	rule 62-672, Florida Administrative Code; and
427	3. The phosphogypsum management program pursuant to s.
428	403.4154 and department rule 62-673, Florida Administrative
429	Code.
430
431	On or before August 1 of each fiscal year, the department shall
432	prepare a report presenting the expenditures using the interest
433	income allocated by this section made by the department during
434	the immediately preceding fiscal year, which report shall be
435	available to the public upon request.
436	(6)(7)Should the nonmandatory land reclamation program
437	encumber all the funds in the Nonmandatory Land Reclamation
438	Trust Fund except those reserved by subsection (5) prior to
439	funding all the reclamation applications for eligible parcels,
440	the funds reserved by subsection (5) shall be available to the
441	program to the extent required to complete the reclamation of
442	all eligible parcels for which the department has received
443	applications.
444	(7)(8)The department may not accept any applications for
445	nonmandatory land reclamation programs after July 1, 2004
446	November 1, 2008.
447	(8)(9)The Bureau of Mine Reclamation shall review the
448	sufficiency of the Nonmandatory Land Reclamation Trust Fund to
449	support the stated objectives and report to the secretary
450	annually with recommendations as appropriate. The report
451	submittal for calendar year 2008 shall specifically address the
452	effect of providing a future refund of fees paid pursuant to s.
453	403.4154(4) following certification of stack closure pursuant to
454	department rules, and the report shall be submitted to the
455	Governor, the President of the Senate, and the Speaker of the
456	House of Representatives on or before March 1, 2009.
457
458	For the 2003-2004 fiscal year the department may not approve or
459	encumber nonmandatory reclamation projects in amounts greater
460	than $15 million.
461	Section 5. Subsection (6) is added to section 378.036,
462	Florida Statutes, to read:
463	378.036 Land acquisitions financed by Nonmandatory Land
464	Reclamation Trust Fund moneys.--
465	(6)(a) By January 1, 2004, or within 6 months from the
466	date funds become available from the Legislature, whichever is
467	later, the Florida Wildlife Federation, Audubon Florida, and
468	Rails-to-Trails Conservancy in partnership with the Florida
469	Phosphate Council are authorized to form a nonprofit corporation
470	pursuant to chapter 617 for the purpose of implementing the
471	provisions of this section by creating plans and assisting in
472	the development of recreational opportunities on lands mined for
473	phosphate in the state. The first plans shall concentrate on
474	recreational activities in Hardee and Hamilton Counties which
475	will assist them in rural economic development.
476	(b) The board of directors of the corporation shall be
477	composed of three members, one designated by the Florida
478	Phosphate Council, one as the designee of the Florida Wildlife
479	Federation, Audubon Florida, and Rails-to-Trails Conservancy,
480	and the third chosen by the other two designees.
481	(c) The business of the corporation shall be conducted by
482	the board of directors or a chief executive officer as the board
483	shall see fit in accordance with the provisions of its articles
484	of incorporation and applicable law. The activities of the
485	corporation shall be coordinated with all landowners who have
486	voluntarily agreed to participate in the process as well as any
487	local government where such lands are recorded.
488	(d) An annual report of the activities of the corporation,
489	including a certified audit, shall be presented to the Secretary
490	of Environmental Protection or his or her designee by October 31
491	of each year following incorporation.
492	(e) The corporation shall dissolve on January 1, 2009,
493	unless dissolved previously by action of its board of directors
494	or extended by the Legislature. Upon dissolution, any moneys
495	remaining in the accounts of the corporation that are
496	unobligated shall be returned to the funds from which they were
497	appropriated in proportion to the amount contributed. All
498	tangible assets of the corporation at dissolution which were
499	acquired using state funding shall become the property of the
500	Department of Environmental Protection.
501	(f) For fiscal year 2003-2004, the sum of $200,000 shall
502	be appropriated from the Nonmandatory Land Reclamation Trust
503	Fund to the non-profit corporation specified hereinabove for the
504	purpose of creating plans and assisting in the development of
505	recreational opportunities on lands mined for phosphate in the
506	state.
507	Section 6. Subsection (1) of section 378.212, Florida
508	Statutes, is amended to read:
509	378.212 Variances.--
510	(1) Upon application, the secretary may grant a variance
511	from the provisions of this part or the rules adopted pursuant
512	thereto. Variances and renewals thereof may be granted for any
513	one of the following reasons:
514	(a) There is no practicable means known or available to
515	comply with the provisions of this part or the rules adopted
516	pursuant thereto.
517	(b) Compliance with a particular requirement or
518	requirements from which a variance is sought will necessitate
519	the taking of measures which must be spread over a considerable
520	period of time. A variance granted for this reason shall
521	prescribe a timetable for the taking of the measures required.
522	(c) To relieve or prevent hardship, including economic
523	hardship, of a kind other than those provided for in paragraphs
524	(a) and (b).
525	(d) To accommodate specific phosphate mining, processing
526	or chemical plant uses that otherwise would be inconsistent with
527	the requirements of this part.
528	(e) To provide for an experimental technique that would
529	advance the knowledge of reclamation and restoration methods.
530	(f) To accommodate projects, including those proposing
531	offsite mitigation, that provide a significant regional benefit
532	for wildlife and the environment.
533	(g) To accommodate reclamation that provides water supply
534	development or water resource development not inconsistent with
535	the applicable regional water supply plan approved pursuant to
536	s. 373.0361, provided adverse impacts are not caused to the
537	water resources in the basin. A variance may also be granted
538	from the requirements of part IV of chapter 373, or the rules
539	adopted thereunder, when a project provides an improvement in
540	water availability in the basin and does not cause adverse
541	impacts to water resources in the basin.
542	Section 7. Subsection (9) is added to section 378.404,
543	Florida Statutes, to read:
544	378.404 Department of Environmental Protection; powers and
545	duties.--The department shall have the following powers and
546	duties:
547	(9) To grant variances from the provisions of this part to
548	accommodate reclamation that provides for water supply
549	development or water resource development not inconsistent with
550	the applicable regional water supply plan approved pursuant to
551	s. 373.0361, appropriate stormwater management, improved
552	wildlife habitat, recreation, or a mixture thereof, provided
553	adverse impacts are not caused to the water resources in the
554	basin and public health and safety are not adversely affected.
555	Section 8. Subsections (2), (3), and (4) of section
556	403.4154, Florida Statutes, are amended to read:
557	403.4154 Phosphogypsum management program.--
558	(2) REGULATORY PROGRAM.--
559	(a) It is the intent of the Legislature that the
560	department develop a program for the sound and effective
561	regulation of phosphogypsum stack systems in the state.
562	(b) The department shall adopt rules that prescribe
563	acceptable construction designs for new or expanded
564	phosphogypsum stack systems and that prescribe permitting
565	criteria for operation, closure criteria,long-term-care
566	requirements, and closure financial responsibility requirements
567	for phosphogypsum stack systems.
568	(c) Whoever willfully, knowingly, or with reckless
569	indifference or gross carelessness misstates or misrepresents
570	the financial condition or closure costs of an entity engaged in
571	managing, owning, or operating a phosphogypsum stack or stack
572	system commits a felony of the third degree, punishable as
573	provided in s. 775.082 or s. 775.083 by a fine of not more than
574	$50,000 and by imprisonment for 5 years for each offense.
575	(d) In the event that an owner or operator of a
576	phosphogypsum stack or stack system fails to comply with
577	department rules requiring demonstration of closure financial
578	responsibility, no distribution may be made that would be
579	prohibited under s. 607.06401(3), until the noncompliance is
580	corrected. Whoever willfully, knowingly, or with reckless
581	indifference or gross carelessness violates this prohibition
582	commits a felony of the third degree, punishable as provided in
583	s. 775.082 or s. 775.083 by a fine of not more than $50,000 or
584	by imprisonment for 5 years for each offense.
585	(3) ABATEMENT OF IMMINENT HAZARD.--
586	(a) The department may take action to abate or
587	substantially reduce any imminent hazard caused by the physical
588	condition, maintenance, operation, or closure of a phosphogypsum
589	stack system.
590	(b) An imminent hazard exists if the physical condition,
591	maintenance, operation, or closure of a phosphogypsum stack
592	system creates an immediate and substantial danger to human
593	health, safety, or welfare or to the environment. A
594	phosphogypsum stack system is presumed not to cause an imminent
595	hazard if the physical condition and operation of the system are
596	in compliance with all applicable department rules.
597	(c) The failure of an owner or operator of a phosphogypsum
598	stack system to comply with department rules requiring
599	demonstration of closure financial responsibility may be
600	considered by the department as evidence that a phosphogypsum
601	stack poses an imminent hazard for purposes of initiating
602	actions authorized by paragraph (d).
603	(d)(c) If the department determines that the failure of an
604	owner or operator to comply with department rules requiring
605	demonstration of financial responsibility orthat the physical
606	condition, maintenance, operation, or closure of a phosphogypsum
607	stack system poses an imminent hazard, the department shall
608	request access to the property on which such stack system is
609	located from the owner or operator of the stack system for the
610	purposes of taking action to abate or substantially reduce the
611	imminent hazard. If the department, after reasonable effort, is
612	unable to timely obtain the necessary access to abate or
613	substantially reduce the imminent hazard, the department may
614	institute action in its own name, using the procedures and
615	remedies of s. 403.121 or s. 403.131, to abate or substantially
616	reduce an imminent hazard. Whenever serious harm to human
617	health, safety, or welfare, to the environment, or to private or
618	public property may occur prior to completion of an
619	administrative hearing or other formal proceeding that might be
620	initiated to abate the risk of serious harm, the department may
621	obtain from the court, ex parte, an injunction without paying
622	filing and service fees prior to the filing and service of
623	process.
624	(e)(d)To abate or substantially reduce an imminent
625	hazard, the department may take any appropriate action,
626	including, but not limited to, using employees of the department
627	or contracting with other state or federal agencies, with
628	private third-party contractors, or with the owner or operator
629	of the stack system, or financing, compensating, or funding a
630	receiver, trustee, or owner of the stack system, to perform all
631	or part of the work.
632	(f)(e)The department shall recover from the owner or
633	operator of the phosphogypsum stack system to the use of the
634	Nonmandatory Land Reclamation Trust Fund all moneys expended
635	from the fund, including funds expended prior to the effective
636	date of this section, to abate an imminent hazard posed by the
637	phosphogypsum stack system plus a penalty equal to an amount
638	calculated at 30 percent of such funds expended. This penalty
639	shall be imposed annually, and prorated from the date of payment
640	from the fund until the expended funds and the penalty are
641	repaid. If the department prevails in any action to recover
642	funds pursuant to this subsection, it may recover reasonable
643	attorney's fees and costs incurred. Phosphogypsum may not be
644	deposited on a stack until all moneys expended from the fund in
645	connection with the stack have been repaid, unless the
646	department determines that such placement is necessary to abate
647	or avoid an imminent hazard or unless otherwise authorized by
648	the department.
649	(g)(f)The department may impose a lien on the real
650	property on which the phosphogypsum stack system that poses an
651	imminent hazard is located and on the real property underlying
652	and other assets located at associated phosphate fertilizer
653	production facilities equal in amount to the moneys expended
654	from the Nonmandatory Land Reclamation Trust Fund pursuant to
655	paragraph (d), including attorney's fees and court costs. The
656	owner of any property on which such a lien is imposed is
657	entitled to a release of the lien upon payment to the department
658	of the lien amount. The lien imposed by this section does not
659	take priority over any other prior perfected lien on the real
660	property, personal property, or other assets referenced in this
661	paragraph, including, but not limited to, the associated
662	phosphate rock mine and reserves.
663	(h) Upon a declaration by the Governor of an environmental
664	emergency concerning the abatement of a imminent hazard
665	involving a phosphogypsum stack or stack system, the state and
666	any agent under contract with the state for the provision of
667	services directly related to the abatement of such hazard shall
668	not become liable under state laws for environmental protection
669	for any costs, damages, or penalties associated with the
670	abatement of the imminent hazard. The Legislature finds that
671	provision of this limited immunity is in the public interest and
672	necessary for the abatement of the imminent hazard.
673	(4) REGISTRATION FEES.--
674	(a)1. The owner or operator of each existing phosphogypsum
675	stack who has not provided a performance bond, letter of credit,
676	trust fund agreement, or closure insurance to demonstrate
677	financial responsibility for closure and long-term care shall
678	pay to the department a fee as set forth in this paragraph. All
679	fees shall be deposited in the Nonmandatory Land Reclamation
680	Trust Fund.
681	2. The amount of the fee for each existing stack shall be
682	$75,000 for each of the five 12-month periods following July 1,
683	2001.
684	3. The amount of the fee for any new stack for which the
685	owner or operator has not provided a performance bond, letter of
686	credit, trust fund agreement, or closure insurance to
687	demonstrate financial responsibility for closure and long-term
688	care shall be $75,000 for each of the five 12-month periods
689	following the issuance by the department of a construction
690	permit for that stack.
691	4. Within 30 days after a phosphogypsum stack has been
692	certified as closed pursuant to rule 62-673.620(2) and (3),
693	Florida Administrative Code, the department shall refund to the
694	owner of the closed phosphogypsum stack an amount from the
695	Nonmandatory Land Reclamation Trust Fund equal to the total
696	amount of fee payments made by the owner or operator to the fund
697	in connection with the closed phosphogypsum stack. However, no
698	refund shall be paid until such time as the Mulberry and Piney
699	Point phosphogypsum stack systems have been closed and a
700	satisfactory reserve has been established in the Nonmandatory
701	Reclamation Lands Trust Fund, except that any refund becoming
702	payable prior to July 1, 2009, shall be paid to the owner on or
703	after that date.
704	(b) On or before August 1 of each year, the department
705	shall provide written notice to each owner of an existing stack
706	of any fee payable for the 12-month period commencing on the
707	immediately preceding July 1. Each owner shall remit the fee to
708	the department on or before August 31 of each year.
709	Section 9. Section 403.4155, Florida Statutes, is amended
710	to read:
711	403.4155 Phosphogypsum management; rulemaking authority.--
712	(1) The Department of Environmental Protection shall adopt
713	rules to amend existing chapter 62-672, Florida Administrative
714	Code, to ensure that impoundment structures and water conveyance
715	piping systems used in phosphogypsum management are designed and
716	maintained to meet critical safety standards. The rules must
717	require that any impoundment structure used in a phosphogypsum
718	stack system, together with all pumps, piping, ditches, drainage
719	conveyances, water control structures, collection pools, cooling
720	ponds, surge ponds, and any other collection or conveyance
721	system associated with phosphogypsum transport, cooling water,
722	or the return of process wastewater, is constructed using sound
723	engineering practices and is operated to avoid spills or
724	discharges of materials which adversely affect surface or ground
725	waters. The rules must require that a phosphogypsum stack system
726	owner maintain a log detailing the owner's operating inspection
727	schedule, results, and any corrective action taken based on the
728	inspection results. The rules must require phosphogypsum stack
729	owners to maintain an emergency contingency plan and demonstrate
730	the ability to mobilize equipment and manpower to respond to
731	emergency situations at phosphogypsum stack systems. The rules
732	must establish a reasonable time period not to exceed 12 months
733	for facilities to meet the provisions of the rules adopted
734	pursuant to this section.
735	(2)(a) By October 1, 2003, the department shall initiate
736	rulemaking to require that phosphogypsum stack system operation
737	plans required by department rule be amended by adding an
738	interim stack system management (ISSM) plan that provides
739	written instructions for the operation of the system assuming
740	that no phosphoric acid would be produced at the facility for a
741	2-year period. The initial ISSM plan shall be completed as of
742	the first July 1 following the adoption of the rule required by
743	this section. The ISSM plan shall include:
744	1. A detailed description of process water management
745	procedures that will be implemented to ensure that the stack
746	system operates in accordance with all applicable department
747	permit conditions and rules. The procedures shall address the
748	actual process water levels present at the facility 30 days
749	prior to the completion of the plan and shall assume that the
750	facility will receive annual average rainfall during the 2-year
751	planning period.
752	2. A detailed description of the procedures to be followed
753	for the daily operation and routine maintenance of the stack
754	system, including required environmental sampling and analyses,
755	as well as for any maintenance or repairs recommended following
756	annual inspections of the system.
757	3. Identification of all machinery, equipment, and
758	materials necessary to implement the plan.
759	4. Identification of the sources of power or fuel
760	necessary to implement the plan.
761	5. Identification of the personnel necessary to implement
762	the plan.
763	(b) The ISSM plan shall be updated annually, taking into
764	account process water levels as of June 1 of each year and the
765	existing stack system configuration.
766	(c) The requirements listed in paragraphs (a) and (b) are
767	applicable to all phosphogypsum stack systems except those which
768	have been closed, which are undergoing closure, or for which an
769	application for a closure permit has been submitted pursuant to
770	department rule.
771	(3)(a) By October 1, 2003, the department shall initiate
772	rulemaking to require that general plans and schedules for the
773	closure of phosphogypsum stack systems include:
774	1. A description of the physical configuration of the
775	phosphogypsum stack system anticipated at the time of closure at
776	the end of useful life of the system.
777	2. A site-specific water management plan describing the
778	procedures to be employed at the end of the useful life of the
779	system to manage the anticipated volume of process water in an
780	environmentally sound manner.
781	3. An estimate of the cost of management of the
782	anticipated volume of process water in accordance with the site-
783	specific water management plan.
784	4. A description of all construction work necessary to
785	properly close the system in accordance with department rules.
786	5. An estimate of all costs associated with long-term care
787	of the closed system, including maintenance and monitoring, in
788	accordance with department rules.
789	(b) The department shall revise chapter 62-673, Florida
790	Administrative Code, to require the owner or operator of a
791	phosphogypsum stack management system to demonstrate financial
792	responsibility for the costs of terminal closure of the
793	phosphogypsum stack system in a manner that protects the public
794	health and safety.
795	1. The costs of terminal closure shall be estimated based
796	on the stack system configuration as of the end of its useful
797	life as determined by the owner or operator.
798	2. The owner or operator may demonstrate financial
799	responsibility by use of one or more of the following methods:
800	a. Bond.
801	b. Letter of credit.
802	c. Cash deposit arrangement.
803	d. Closure insurance.
804	e. Financial tests.
805	f. Corporate guarantee.
806
807	For the purposes of this section, a "cash deposit arrangement"
808	refers to a trust fund, business or statutory trust, escrow
809	account, or similar cash deposit entity whereby a fiduciary
810	holds and invests funds deposited by the owner or operator,
811	which funds shall be expended only for the purpose of directly
812	implementing all or some portion of phosphogypsum stack system
813	closure requirements of that particular owner or operator.
814	3. A trustee, escrow agent, or other fiduciary of a cash
815	deposit arrangement authorized by this section shall have no
816	liability for any damage or loss of any kind arising out of or
817	caused by performance of duties imposed by the terms of the
818	applicable agreement except where such damage or loss is
819	directly caused by the gross negligence or criminal act of the
820	trustee, escrow agent, or other fiduciary. In performing its
821	duties pursuant to the applicable agreement, a trustee, escrow
822	agent, or other fiduciary shall be entitled to rely upon
823	information and direction received from the grantor or the
824	department without independent verification unless such
825	information and direction are manifestly in error:
826	4. To the extent that a cash deposit arrangement is used
827	to provide proof of financial responsibility for all or a
828	portion of closure costs, the trust, escrow, or cash arrangement
829	deposit entity shall be deemed to have assumed all liability for
830	such closure costs up to the amount of the cash deposit, less
831	any fees or costs of the trustee, escrow agent, or other
832	fiduciary.
833	5. Any funds maintained in a cash deposit arrangement
834	authorized by this section shall not be subject to claims of
835	creditors of the owner or operator and shall otherwise be exempt
836	from setoff, execution, levy, garnishment, and similar writs and
837	proceedings.
838	6. Any funds remaining in a trust, escrow account, or
839	other cash deposit arrangement after the purpose of such cash
840	deposit arrangement under this section has been accomplished
841	shall be returned to the grantor.
842	(4) The department shall revise chapter 62-673, Florida
843	Administrative Code, to require the owner or operator of a
844	phosphogypsum stack system to demonstrate financial
845	responsibility for the costs of terminal closure of the
846	phosphogypsum stack system in a manner that protects the
847	environment and the public health and safety. At a minimum, such
848	rules shall include or address the following requirements:
849	(a) That the cost of closure and long-term care be re-
850	estimated by a professional engineer and adjusted for inflation
851	on an annual basis. At a minimum, such cost data shall include:
852	1. The cost of treatment and appropriate disposal of all
853	process wastewater, both ponded and pore, in the system.
854	2. All construction work necessary to properly close the
855	system in accordance with department rules.
856	3. All costs associated with long-term care of the closed
857	system, including maintenance and monitoring, in accordance with
858	department rules.
859	(b) That financial statements and financial data be
860	prepared according to generally accepted accounting principles
861	within the United States and submitted quarterly.
862	(c) That audited financial statements be provided annually
863	along with the statement of financial assurance.
864	(d) That any owner or operator in default on any of its
865	obligations report such default immediately.
866	(2) By January 31, 2002, the department shall review
867	chapter 62-673, Florida Administrative Code, to determine the
868	adequacy of the financial responsibility provisions contained in
869	the rules and shall take any measures necessary to ensure that
870	the rules provide sound and effective provisions to minimize
871	risk to the environment and to public health and safety from the
872	business failure of a phosphogypsum stack system.
873	Section 10. (1) The Department of Environmental
874	Protection, in consultation with the Southwest Florida Water
875	Management District, shall study cumulative impacts of changes
876	in landform and hydrology in the Peace River Basin. The study
877	shall evaluate cumulative impacts of activities conducted in the
878	Peace River Basin prior to state regulation, or pursuant to an
879	exemption, a permit, or a reclamation plan on water resources of
880	the basin, including surface waters, groundwaters, fisheries,
881	aquatic and estuarine habitat, and water supplies. The study
882	shall also include an evaluation of the effectiveness of
883	existing regulatory programs in avoiding, minimizing,
884	mitigating, or compensating for cumulative impacts on water
885	resources of the basin. In addition the study shall evaluate the
886	environmental benefits, legal issues, and economic impacts of
887	limiting activities, including mining activities, on waters and
888	environmentally sensitive areas around waterbodies, by
889	establishing a buffer within the 100-year floodplain of major
890	perennial streams within the Peace River Basin, including the
891	Peace River, Horse Creek, and the Myakka River. The study shall
892	also recommend ways in which any buffer areas recommended as
893	prohibited areas can be considered as mitigation under
894	applicable permitting programs.
895	(2) Upon completion of the study, the department shall
896	prepare and adopt a resource management plan for the Peace River
897	Basin to minimize any identified existing and future adverse
898	cumulative impacts to water resources of the basin, including
899	surface waters, groundwaters, wetlands, fisheries, aquatic and
900	estuarine habitat, and water supplies. The plan shall identify
901	regulatory and nonregulatory actions necessary to minimize
902	existing and future adverse cumulative impacts identified in the
903	study and where appropriate, shall also recommend statutory
904	changes to improve regulatory programs to minimize identified
905	cumulative impacts to water resources of the basin.
906	(3) Rulemaking authority is granted to the Department of
907	Environmental Protection and the Southwest Florida Water
908	Management District to implement the regulatory recommendations
909	identified in the study or the resource management plan.
910	(4) The resource management plan shall be submitted to the
911	Governor, the Speaker of the House of Representatives and the
912	President of the Senate no later than January 1, 2005.
913	(5) The department may use up to $750,000 from the
914	Nonmandatory Land Reclamation Trust Fund to prepare the study
915	and plan required in this section.
916	(6) The department may establish a technical advisory
917	committee to assist the department in developing a plan of
918	study, reviewing interim findings, and reviewing final
919	recommendations. The technical advisory committee may include
920	representatives from the following interests in the Peace River
921	Basin: industrial, mining, agriculture, development,
922	environmental, fishing, regional water supply, and local
923	government.
924	Section 11. For fiscal year 2003-2004, the sum of $12.5
925	million is hereby transferred from the Nonmandatory Land
926	Reclamation Trust Fund to the General Revenue Fund.
927	Section 12. For fiscal year 2003-2004, the sum of $800,000
928	is appropriated to the Phosphate Research Trust Fund from the
929	proceeds of the phosphate severance tax deposited into the
930	Nonmandatory Land Reclamation Trust Fund. Such funds shall be
931	used by the Florida Institute of Phosphate Research to conduct a
932	bench and pilot scale study of the FIPR/DIPR process for the
933	purpose of determining its technical and economic feasibility.
934	The study shall evaluate the availability, technical
935	feasibility, and cost of using various types of fiber,
936	including, but not limited to, paper and sewage sludge. The
937	study shall evaluate the technical feasibility and practicality
938	of various methods of using and disposing of the clay/fiber
939	product produced, including admixing the material with soil.
940	Section 13. If any law amended by this act was also
941	amended by a law enacted at the 2003 Regular Session of the
942	Legislature or the 2003 Special Session A of the Legislature,
943	such laws shall be construed as if they had been enacted at the
944	same session of the Legislature, and full effect shall be given
945	to each if possible.
946	Section 14. This act shall take effect upon becoming a
947	law.