Senate Bill sb0018Ee1

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    CS for SB 18-E                           First Engrossed (ntc)



  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 provisions;

  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; amending s. 378.212,

21         F.S.; providing authority for a variance for

22         certain reclamation activities; amending s.

23         378.404, F.S.; allowing variances for water

24         supply development; amending s. 403.4154, F.S.;

25         providing criminal penalties for certain

26         violations; prohibiting the distribution of

27         certain company assets under specified

28         circumstances; providing for the declaration of

29         an imminent hazard if certain financial

30         conditions exist; providing limited liability

31         for entities assisting in the abatement of


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    CS for SB 18-E                           First Engrossed (ntc)



 1         imminent hazards; amending a provision granting

 2         certain rebates of phosphate fees; amending s.

 3         403.4155, F.S.; directing that rules be

 4         developed for financial assurance, interim

 5         stack management, and stack closure; requiring

 6         the Department of Environmental Protection to

 7         conduct a study; providing funds for the study;

 8         providing for the transfer of certain funds

 9         from the Nonmandatory Land Reclamation Trust

10         Fund to the General Revenue Fund, the Minerals

11         Trust Fund, and the Nonmandatory Land

12         Reclamation Trust Fund; providing an

13         appropriation for the funding of a study by the

14         Florida Institute of Phosphate Research;

15         providing an effective date.

16  

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

18  

19         Section 1.  Section 211.3103, Florida Statutes, is

20  amended to read:

21         211.3103  Levy of tax on severance of phosphate rock;

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

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

24  person engaging in the business of severing phosphate rock

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

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

27  department.

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

29  interest, and penalties imposed under this section shall be

30  paid into the State Treasury as follows:

31  


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    CS for SB 18-E                           First Engrossed (ntc)



 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, 15 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, 43.75 percent.

31  


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    CS for SB 18-E                           First Engrossed (ntc)



 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, 40.1 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, 13 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. Payments under this subparagraph

29  shall be made to the counties unless the Legislature by

30  special act creates a local authority to promote and direct

31  


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    CS for SB 18-E                           First Engrossed (ntc)



 1  the economic development of the county. If such authority

 2  exists, payments shall be made to that authority.

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

 4  in the Division of Universities of the Department of

 5  Education, 9.3 percent.

 6         5.  To the credit of the Minerals Trust Fund, 10.7

 7  percent.

 8         6.  To the credit of the Nonmandatory Land Reclamation

 9  Trust Fund, 10.4 percent. 

10         (4)  Beginning July 1, 2003, and annually thereafter,

11  the Department of Environmental Protection may use up to $2

12  million of the funds in the Nonmandatory Land Reclamation

13  Trust Fund to purchase a surety bond or a policy of insurance,

14  the proceeds of which would pay the cost of restoration,

15  reclamation, and cleanup of any phosphogypsum stack system and

16  phosphate mining activities in the event that an operator or

17  permittee thereof has been subject to a final order of

18  bankruptcy and all funds available therefrom are determined to

19  be inadequate to accomplish such restoration, reclamation, and

20  cleanup. This section does not imply that such operator or

21  permittee is thereby relieved of its obligations or relieved

22  of any liabilities pursuant to any other remedies at law,

23  administrative remedies, statutory remedies, or remedies

24  pursuant to bankruptcy law. The department shall adopt rules

25  to implement this subsection, including the purchase and

26  oversight of the bond or policy.

27         (5)  Funds distributed pursuant to subparagraphs

28  (2)(b)2. and (3)(b)3. shall be used for:

29         1.  Planning, preparing, and financing of

30  infrastructure projects for job creation and capital

31  investment, especially those related to industrial and


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    CS for SB 18-E                           First Engrossed (ntc)



 1  commercial sites. Infrastructure investments may include the

 2  following public or public-private partnership facilities:

 3  stormwater systems, telecommunications facilities, roads or

 4  other remedies to transportation impediments, nature-based

 5  tourism facilities, or other physical requirements necessary

 6  to facilitate trade and economic development activities.

 7         2.  Maximizing the use of federal, local, and private

 8  resources, including, but not limited to, those available

 9  under the Small Cities Community Development Block Grant

10  Program.

11         3.  Projects that improve inadequate infrastructure

12  that has resulted in regulatory action that prohibits economic

13  or community growth, if such projects are related to specific

14  job creation or job retention opportunities.

15         (6)  Beginning January 1, 2004, the tax rate shall be

16  the base rate of $1.62 per ton severed.

17         (7)  Beginning January 1, 2005, and annually

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

19  rate adjustment for the tax year as calculated by the

20  department in accordance with subsection (9).

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

22  imposed under this section shall be paid into the State

23  Treasury through June 30, 1995, as follows:

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

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

26  the Conservation and Recreation Lands Trust Fund.

27         (b)  The remaining revenues collected from the tax

28  during that fiscal year, after the required payment under

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

30  follows:

31  


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    CS for SB 18-E                           First Engrossed (ntc)



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

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

 3  $7.4 million, $8.2 million, and $8.1 million, respectively,

 4  shall be transferred to the Nonmandatory Land Reclamation

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

 6  1995.

 7         2.  To the credit of the Nonmandatory Land Reclamation

 8  Trust Fund which is established for reclamation and

 9  acquisition of unreclaimed lands disturbed by phosphate mining

10  and not subject to mandatory reclamation, 20 percent.

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

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

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

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

15  of tons of phosphate rock produced from a phosphate rock

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

17  department shall distribute this portion of the proceeds

18  annually based on production information reported by producers

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

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

21  expenses.

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

23  interest, and penalties imposed under this section shall be

24  paid into the State Treasury as follows:

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

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

27  the Conservation and Recreation Lands Trust Fund.

28         (b)  The remaining revenues collected from the tax

29  during that fiscal year, after the required payment under

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

31  follows:


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    CS for SB 18-E                           First Engrossed (ntc)



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

 2  state, 58 percent.

 3         2.  To the credit of the Nonmandatory Land Reclamation

 4  Trust Fund for reclamation and acquisition of unreclaimed

 5  lands disturbed by phosphate mining and not subject to

 6  mandatory reclamation, 14.5 percent.

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

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

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

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

11  of tons of phosphate rock produced from a phosphate rock

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

13  department shall distribute this portion of the proceeds

14  annually based on production information reported by producers

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

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

17  expenses.

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

19  percent.

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

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

22  State Treasury as follows:

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

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

25  the Conservation and Recreation Lands Trust Fund.

26         (b)  The remaining revenues collected from the tax

27  during that fiscal year, after the required payment under

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

29  follows:

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

31  state, 55.15 percent.


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    CS for SB 18-E                           First Engrossed (ntc)



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

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

 3  percent.

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

 5  of tons of phosphate rock produced from a phosphate rock

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

 7  department shall distribute this portion of the proceeds

 8  annually based on production information reported by producers

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

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

11  expenses.

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

13  percent.

14         (8)(5)  The excise tax levied by this section shall

15  apply to the total production of the producer during the

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

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

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

19  tax rate shall be $1.79 per ton severed.

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

21  $1.35 per ton severed.

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

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

24  year as calculated by the department in accordance with

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

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

27  additional funding of the Nonmandatory Land Reclamation Trust

28  Fund is approved by law.

29         (9)(6)(a)  On or before March 30, 2004 1989, and

30  annually thereafter, the department shall calculate the base

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


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    CS for SB 18-E                           First Engrossed (ntc)



 1  change in the unadjusted annual producer price index for the

 2  prior calendar year in relation to the unadjusted annual

 3  producer price index for calendar year 1999 1987.

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

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

 6  fraction, the numerator of which is the unadjusted annual

 7  producer price index for the prior calendar year and the

 8  denominator of which is the unadjusted annual producer price

 9  index for calendar year 1999 1987.

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

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

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

13  current year.

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

15  fertilizer mineral mining phosphate rock primary products is

16  substantially revised, the department shall make appropriate

17  adjustment in the method used to compute the base rate

18  adjustment under this subsection which will produce results

19  reasonably consistent with the result which would have been

20  obtained if the producer price index for phosphate rock

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

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

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

24  phosphate rock primary products is discontinued, then a

25  comparable index shall be selected by the department and

26  adopted by rule.

27         (10)(7)  The excise tax levied on the severance of

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

29  levied upon the separately assessed mineral interest in the

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

31  


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    CS for SB 18-E                           First Engrossed (ntc)



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

 2  its political subdivisions.

 3         (11)(8)  The tax levied by this section shall be

 4  collected in the manner prescribed in s. 211.33.

 5         Section 2.  Section 378.021, Florida Statutes, is

 6  amended to read:

 7         378.021  Master reclamation plan.--

 8         (1)  The Department of Environmental Protection Natural

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

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

11  Committee, a master reclamation plan that provides to provide

12  guidelines for the reclamation of lands mined or disturbed by

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

14  lands are not subject to mandatory reclamation under part II

15  of chapter 211.  In amending the developing said master

16  reclamation plan, the Department of Environmental Protection

17  Natural Resources shall continue to conduct an onsite

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

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

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

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

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

23  former Department of Natural Resources for adoption by rule on

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

25  amended adopted by the Department of Environmental Protection

26  Natural Resources shall be consistent with local government

27  plans prepared pursuant to the Local Government Comprehensive

28  Planning and Land Development Regulation Act.

29         (2)  The amended master reclamation plan shall identify

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

31  


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    CS for SB 18-E                           First Engrossed (ntc)



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

 2  criteria:

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

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

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

 6  not stabilized and revegetated; or, the remaining natural

 7  resources associated with the land are not being conserved;

 8         (b)  The environmental or economic utility or aesthetic

 9  value of the land would not naturally return within a

10  reasonable time, and reclamation would substantially promote

11  the environmental or economic utility or the aesthetic value

12  of the land; and

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

14  interest because the reclamation, when combined with other

15  reclamation under the master plan, would provide a substantial

16  regional benefit; and.

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

18  interest because the reclamation, when combined with other

19  reclamation under the master plan, will provide significant

20  benefits to surface water bodies supplying water for

21  environmental and public purposes in those areas of the state

22  where phosphate mining has been permitted.

23         (3)  Lands evaluated by the department under subsection

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

25  be identified with specificity in the master reclamation plan.

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

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

28  also be identified with specificity in the master reclamation

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

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

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


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    CS for SB 18-E                           First Engrossed (ntc)



 1  guidelines for approval of reclamation programs for lands

 2  covered in the plan, recognizing that reclamation of such

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

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

 5  conformity with the guidelines set forth in the master

 6  reclamation plan.

 7         Section 3.  Section 378.031, Florida Statutes, is

 8  amended to read:

 9         378.031  Reclamation or acquisition of nonmandatory

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

11  Legislature to provide an economic incentive to encourage the

12  reclamation of the maximum number of acres of eligible

13  nonmandatory lands in the most timely and efficient manner or

14  the donation or purchase of nonmandatory lands, especially

15  those lands for which reclamation activities will result in

16  significant improvements to surface water bodies of regional

17  importance in those areas of the state where phosphate mining

18  has been permitted.  The Legislature recognizes that certain

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

20  naturally reclaimed.

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

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

23         378.035  Department responsibilities and duties with

24  respect to Nonmandatory Land Reclamation Trust Fund.--

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

26  Funds within the Nonmandatory Land Reclamation Trust Fund are

27  also authorized reserved for use by the department for the

28  following purposes:.

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

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

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


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    CS for SB 18-E                           First Engrossed (ntc)



 1  and the associated reclamation prior to all lands disturbed by

 2  the operation being reclaimed. Moneys expended by the

 3  department to accomplish reclamation pursuant to this

 4  subsection shall become a lien upon the property enforceable

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

 6  lien foreclosure or as repayment shall be deposited into the

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

 8  lien foreclosure or repayment is less than the amount expended

 9  for reclamation, the department shall use all means available

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

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

12  acquired as a result of a lien foreclosure.

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

14  million reserve fund For the abatement of an imminent hazard

15  as provided by s. 403.4154(4)(3) and for the purpose of

16  closing an abandoned phosphogypsum stack system and carrying

17  out postclosure care as provided by s. 403.4154(6)(5). Fees

18  deposited in the Nonmandatory Land Reclamation Trust Fund

19  pursuant to s. 403.4154(4) may be used for the purposes

20  authorized in this paragraph. However, such fees may only be

21  used at a stack system if closure or imminent-hazard-abatement

22  activities initially commence on or after July 1, 2002.

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

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

25  available to the department annually For the purpose of

26  funding basic management or protection of reclaimed, restored,

27  or preserved phosphate lands:

28         1.  Which have wildlife habitat value as determined by

29  the Bureau of Mine Reclamation;

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

31  public agency or a private, nonprofit land conservation and


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    CS for SB 18-E                           First Engrossed (ntc)



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

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

 3         3.  For which other management funding options are not

 4  available.

 5  

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

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

 8  available funds to provide a higher level of management for

 9  such lands.

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

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

12  the department annually For the sole purpose of funding the

13  department's implementation of:

14         1.  The NPDES permitting program authorized by s.

15  403.0885, as it applies to phosphate mining and beneficiation

16  facilities, phosphate fertilizer production facilities, and

17  phosphate loading and handling facilities;

18         2.  The regulation of dams in accordance with

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

20         3.  The phosphogypsum management program pursuant to s.

21  403.4154 and department rule 62-673, Florida Administrative

22  Code.

23  

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

25  shall prepare a report presenting the expenditures using the

26  interest income allocated by this section made by the

27  department during the immediately preceding fiscal year, which

28  report shall be available to the public upon request.

29         (6)(7)  Should the nonmandatory land reclamation

30  program encumber all the funds in the Nonmandatory Land

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


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    CS for SB 18-E                           First Engrossed (ntc)



 1  prior to funding all the reclamation applications for eligible

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

 3  available to the program to the extent required to complete

 4  the reclamation of all eligible parcels for which the

 5  department has received applications.

 6         (7)(8)  The department may not accept any applications

 7  for nonmandatory land reclamation programs after January 1,

 8  2005 November 1, 2008.

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

10  sufficiency of the Nonmandatory Land Reclamation Trust Fund to

11  support the stated objectives and report to the secretary

12  annually with recommendations as appropriate. The report

13  submittal for calendar year 2008 shall specifically address

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

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

16  pursuant to department rules, and the report shall be

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

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

19  1, 2009.

20  

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

22  or encumber nonmandatory reclamation projects in amounts

23  greater than $15 million.

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

25  Florida Statutes, to read:

26         378.036  Land acquisitions financed by Nonmandatory

27  Land Reclamation Trust Fund moneys.--

28         (6)(a)  By January 1, 2004, or within 6 months

29  following the date funds become available from the

30  Legislature, whichever is later, the Florida Wildlife

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


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    CS for SB 18-E                           First Engrossed (ntc)



 1  in partnership with the Florida Phosphate Council are

 2  authorized to form a nonprofit corporation pursuant to chapter

 3  617 for the purpose of implementing this section by creating

 4  plans and assisting in the development of recreational

 5  opportunities on lands mined for phosphate in the state. The

 6  first plans must concentrate on recreational activities in

 7  Hardee and Hamilton Counties which will assist them in rural

 8  economic development.

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

10  composed of three members, one designated by the Florida

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

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

13  and the third chosen by the other two designees.

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

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

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

17  articles of incorporation and applicable law. The activities

18  of the corporation shall be coordinated with all landowners

19  who have voluntarily agreed to participate in the process as

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

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

22  corporation, including a certified audit, shall be presented

23  to the Secretary of Environmental Protection or his or her

24  designee by October 31 of each year following incorporation.

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

26  unless dissolved previously by action of its board of

27  directors or extended by the Legislature. Upon dissolution,

28  any moneys remaining in the accounts of the corporation that

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

30  were appropriated in proportion to the amount contributed. All

31  tangible assets of the corporation at dissolution which were


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    CS for SB 18-E                           First Engrossed (ntc)



 1  acquired using state funding shall become the property of the

 2  Department of Environmental Protection.

 3         Section 6.  Paragraph (g) is added to subsection (1) of

 4  section 378.212, Florida Statutes, to read:

 5         378.212  Variances.--

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

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

 8  pursuant thereto. Variances and renewals thereof may be

 9  granted for any one of the following reasons:

10         (g)  To accommodate reclamation that provides water

11  supply development or water resource development not

12  inconsistent with the applicable regional water supply plan

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

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

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

16  373, or the rules adopted thereunder, when a project provides

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

18  cause adverse impacts to water resources in the basin.

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

20  Florida Statutes, to read:

21         378.404  Department of Environmental Protection; powers

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

23  and duties:

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

25  part to accommodate reclamation that provides for water supply

26  development or water resource development not inconsistent

27  with the applicable regional water supply plan approved

28  pursuant to s. 373.0361, appropriate stormwater management,

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

30  provided adverse impacts are not caused to the water resources

31  


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    CS for SB 18-E                           First Engrossed (ntc)



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

 2  affected.

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

 4  403.4154, Florida Statutes, are amended to read:

 5         403.4154  Phosphogypsum management program.--

 6         (2)  REGULATORY PROGRAM.--

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

 8  department develop a program for the sound and effective

 9  regulation of phosphogypsum stack systems in the state.

10         (b)  The department shall adopt rules that prescribe

11  acceptable construction designs for new or expanded

12  phosphogypsum stack systems and that prescribe permitting

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

14  requirements, and closure financial responsibility

15  requirements for phosphogypsum stack systems.

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

17  indifference or gross carelessness misstates or misrepresents

18  the financial condition or closure costs of an entity engaged

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

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

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

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

23         (d)  If an owner or operator of a phosphogypsum stack

24  or stack system fails to comply with department rules

25  requiring demonstration of closure financial responsibility,

26  no distribution may be made which would be prohibited under s.

27  607.06401(3) until the noncompliance is corrected. Whoever

28  willfully, knowingly, or with reckless indifference or gross

29  carelessness violates this prohibition commits a felony of the

30  third degree, punishable as provided in s. 775.082 or s.

31  


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    CS for SB 18-E                           First Engrossed (ntc)



 1  775.083 by a fine of not more than $50,000 or by imprisonment

 2  for 5 years for each offense.

 3         (3)  ABATEMENT OF IMMINENT HAZARD.--

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

 5  substantially reduce any imminent hazard caused by the

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

 7  phosphogypsum stack system.

 8         (b)  An imminent hazard exists if the physical

 9  condition, maintenance, operation, or closure of a

10  phosphogypsum stack system creates an immediate and

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

12  the environment. A phosphogypsum stack system is presumed not

13  to cause an imminent hazard if the physical condition and

14  operation of the system are in compliance with all applicable

15  department rules.

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

17  phosphogypsum stack system to comply with department rules

18  requiring demonstration of closure financial responsibility

19  may be considered by the department as evidence that a

20  phosphogypsum stack poses an imminent hazard for purposes of

21  initiating actions authorized by paragraph (d).

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

23  of an owner or operator to comply with department rules

24  requiring demonstration of financial responsibility or that

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

26  a phosphogypsum stack system poses an imminent hazard, the

27  department shall request access to the property on which such

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

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

30  substantially reduce the imminent hazard. If the department,

31  after reasonable effort, is unable to timely obtain the


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    CS for SB 18-E                           First Engrossed (ntc)



 1  necessary access to abate or substantially reduce the imminent

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

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

 4  to abate or substantially reduce an imminent hazard. Whenever

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

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

 7  to completion of an administrative hearing or other formal

 8  proceeding that might be initiated to abate the risk of

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

10  parte, an injunction without paying filing and service fees

11  prior to the filing and service of process.

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

13  hazard, the department may take any appropriate action,

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

15  department or contracting with other state or federal

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

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

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

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

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

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

22  Nonmandatory Land Reclamation Trust Fund all moneys expended

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

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

25  phosphogypsum stack system plus a penalty equal to an amount

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

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

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

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

30  recover funds pursuant to this subsection, it may recover

31  reasonable attorney's fees and costs incurred. Phosphogypsum


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    CS for SB 18-E                           First Engrossed (ntc)



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

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

 3  the department determines that such placement is necessary to

 4  abate or avoid an imminent hazard or unless otherwise

 5  authorized by the department.

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

 7  property on which the phosphogypsum stack system that poses an

 8  imminent hazard is located and on the real property underlying

 9  and other assets located at associated phosphate fertilizer

10  production facilities equal in amount to the moneys expended

11  from the Nonmandatory Land Reclamation Trust Fund pursuant to

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

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

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

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

16  section does not take priority over any other prior perfected

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

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

19  the associated phosphate rock mine and reserves.

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

21  environmental emergency concerning the abatement of a imminent

22  hazard involving a phosphogypsum stack or stack system, the

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

24  provision of services directly related to the abatement of

25  such hazard shall not become liable under state laws for

26  environmental protection for any costs, damages, or penalties

27  associated with the abatement of the imminent hazard. The

28  Legislature finds that provision of this limited immunity is

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

30  imminent hazard.

31         (4)  REGISTRATION FEES.--


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    CS for SB 18-E                           First Engrossed (ntc)



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

 2  phosphogypsum stack who has not provided a performance bond,

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

 4  to demonstrate financial responsibility for closure and

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

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

 7  Nonmandatory Land Reclamation Trust Fund.

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

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

10  July 1, 2001.

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

12  the owner or operator 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 be $75,000 for each of the five 12-month

16  periods following the issuance by the department of a

17  construction permit for that stack.

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

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

20  Florida Administrative Code, the department shall refund to

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

22  Nonmandatory Land Reclamation Trust Fund equal to the total

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

24  fund in connection with the closed phosphogypsum stack.

25  However, a refund may not be paid until the Mulberry and Piney

26  Point phosphogypsum stack systems have been closed and a

27  satisfactory reserve has been established in the Nonmandatory

28  Reclamation Lands Trust Fund, except that any refund becoming

29  payable prior to July 1, 2009, shall be paid to the owner on

30  or after that date.

31  


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    CS for SB 18-E                           First Engrossed (ntc)



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

 2  shall provide written notice to each owner of an existing

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

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

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

 6         Section 9.  Section 403.4155, Florida Statutes, is

 7  amended to read:

 8         403.4155  Phosphogypsum management; rulemaking

 9  authority.--

10         (1)  The Department of Environmental Protection shall

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

12  Administrative Code, to ensure that impoundment structures and

13  water conveyance piping systems used in phosphogypsum

14  management are designed and maintained to meet critical safety

15  standards. The rules must require that any impoundment

16  structure used in a phosphogypsum stack system, together with

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

18  control structures, collection pools, cooling ponds, surge

19  ponds, and any other collection or conveyance system

20  associated with phosphogypsum transport, cooling water, or the

21  return of process wastewater, is constructed using sound

22  engineering practices and is operated to avoid spills or

23  discharges of materials which adversely affect surface or

24  ground waters. The rules must require that a phosphogypsum

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

26  operating inspection schedule, results, and any corrective

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

28  require phosphogypsum stack owners to maintain an emergency

29  contingency plan and demonstrate the ability to mobilize

30  equipment and manpower to respond to emergency situations at

31  phosphogypsum stack systems. The rules must establish a


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    CS for SB 18-E                           First Engrossed (ntc)



 1  reasonable time period not to exceed 12 months for facilities

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

 3  section.

 4         (2)(a)  By October 1, 2004, the department shall

 5  initiate rulemaking to require that phosphogypsum stack system

 6  operation plans required by department rule be amended by

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

 8  provides written instructions for the operation of the system,

 9  assuming that no phosphoric acid would be produced at the

10  facility for a 2-year period. The initial ISSM plan must be

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

12  rule required by this section. The ISSM plan must include:

13         1.  A detailed description of process water management

14  procedures that will be implemented to ensure that the stack

15  system operates in accordance with all applicable department

16  permit conditions and rules.  The procedures must address the

17  actual process water levels present at the facility 30 days

18  prior to the completion of the plan and must assume that the

19  facility will receive annual average rainfall during the

20  2-year planning period.

21         2.  A detailed description of the procedures to be

22  followed for the daily operation and routine maintenance of

23  the stack system, including required environmental sampling

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

25  recommended following annual inspections of the system.

26         3.  Identification of all machinery, equipment, and

27  materials necessary to implement the plan.

28         4.  Identification of the sources of power or fuel

29  necessary to implement the plan.

30         5.  Identification of the personnel necessary to

31  implement the plan.


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    CS for SB 18-E                           First Engrossed (ntc)



 1         (b)  The ISSM plan shall be updated annually, taking

 2  into account process water levels as of June 1 of each year

 3  and the existing stack system configuration.

 4         (c)  The requirements listed in paragraphs (a) and (b)

 5  are applicable to all phosphogypsum stack systems except those

 6  that have been closed, that are undergoing closure, or for

 7  which an application for a closure permit has been submitted

 8  pursuant to department rule.

 9         (3)(a)  By October 1, 2004, the department shall

10  initiate rulemaking to require that general plans and

11  schedules for the closure of phosphogypsum stack systems

12  include:

13         1.  A description of the physical configuration of the

14  phosphogypsum stack system anticipated at the time of closure

15  at the end of useful life of the system.

16         2.  A site-specific water management plan describing

17  the procedures to be employed at the end of the useful life of

18  the system to manage the anticipated volume of process water

19  in an environmentally sound manner.

20         3.  An estimate of the cost of management of the

21  anticipated volume of process water in accordance with the

22  site-specific water management plan.

23         4.  A description of all construction work necessary to

24  properly close the system in accordance with department rules.

25         5.  An estimate of all costs associated with long-term

26  care of the closed system, including maintenance and

27  monitoring, in accordance with department rules.

28         (b)  The department shall revise chapter 62-673,

29  Florida Administrative Code, to require the owner or operator

30  of a phosphogypsum stack management system to demonstrate

31  financial responsibility for the costs of terminal closure of


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    CS for SB 18-E                           First Engrossed (ntc)



 1  the phosphogypsum stack system in a manner that protects the

 2  public health and safety, and must include criteria to

 3  evaluate the adequacy of the demonstration of financial

 4  responsibility.

 5         1.  The costs of terminal closure shall be estimated

 6  based on the stack system configuration as of the end of its

 7  useful life as determined by the owner or operator. These

 8  costs shall be verified by an independent third party.

 9         2.  The owner or operator may demonstrate financial

10  responsibility by use of one or more of the following methods:

11         a.  Bond.

12         b.  Letter of credit.

13         c.  Cash deposit arrangement.

14         d.  Closure insurance.

15         e.  Financial tests.

16         f.  Corporate guarantee.

17  

18  For the purposes of this section, the term "cash deposit

19  arrangement" means a trust fund, business or statutory trust,

20  escrow account, or similar cash deposit entity whereby a

21  fiduciary holds and invests funds deposited by the owner or

22  operator, which funds shall be expended only for the purpose

23  of directly implementing all or some portion of phosphogypsum

24  stack system closure requirements of that particular owner or

25  operator.

26         3.  A trustee, escrow agent, or other fiduciary of a

27  cash deposit arrangement authorized by this section has no

28  liability for any damage or loss of any kind arising out of or

29  caused by performance of duties imposed by the terms of the

30  applicable agreement unless such damage or loss is directly

31  caused by the gross negligence or criminal act of the trustee,


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    CS for SB 18-E                           First Engrossed (ntc)



 1  escrow agent, or other fiduciary. In performing its duties

 2  pursuant to the applicable agreement, a trustee, escrow agent,

 3  or other fiduciary is entitled to rely upon information and

 4  direction received from the grantor or the department without

 5  independent verification unless such information and direction

 6  are manifestly in error.

 7         4.  To the extent that a cash deposit arrangement is

 8  used to provide proof of financial responsibility for all or a

 9  portion of closure costs, the trust, escrow, or cash

10  arrangement deposit entity is considered to have assumed all

11  liability for such closure costs up to the amount of the cash

12  deposit, less any fees or costs of the trustee, escrow agent,

13  or other fiduciary.

14         5.  Any funds maintained in a cash deposit arrangement

15  authorized by this section are not subject to claims of

16  creditors of the owner or operator and are otherwise exempt

17  from setoff, execution, levy, garnishment, and similar writs

18  and proceedings.

19         6.  Any funds remaining in a trust, escrow account, or

20  other cash deposit arrangement after the purpose of such cash

21  deposit arrangement under this section has been accomplished

22  shall be returned to the grantor.

23         (4)  The department shall revise chapter 62-673,

24  Florida Administrative Code, to require the owner or operator

25  of a phosphogypsum stack system to demonstrate financial

26  responsibility for the costs of terminal closure of the

27  phosphogypsum stack system in a manner that protects the

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

29  such rules must include or address the following requirements:

30         (a)  That the cost of closure and long-term care be

31  re-estimated by a professional engineer and adjusted for


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    CS for SB 18-E                           First Engrossed (ntc)



 1  inflation on an annual basis. At a minimum, such cost data

 2  must include:

 3         1.  The cost of treatment and appropriate disposal of

 4  all process wastewater, both ponded and pore, in the system.

 5         2.  All construction work necessary to properly close

 6  the system in accordance with department rules.

 7         3.  All costs associated with long-term care of the

 8  closed system, including maintenance and monitoring, in

 9  accordance with department rules.

10         (b)  That financial statements and financial data be

11  prepared according to generally accepted accounting principles

12  within the United States and submitted quarterly.

13         (c)  That audited financial statements be provided

14  annually along with the statement of financial assurance.

15         (d)  That any owner or operator in default on any of

16  its obligations report such default immediately.

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

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

19  adequacy of the financial responsibility provisions contained

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

21  that the rules provide sound and effective provisions to

22  minimize risk to the environment and to public health and

23  safety from the business failure of a phosphogypsum stack

24  system.

25         Section 10.  (1)  The Department of Environmental

26  Protection, in consultation with the Southwest Florida Water

27  Management District, shall study cumulative impacts of changes

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

29  shall evaluate cumulative impacts of activities conducted in

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

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


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    CS for SB 18-E                           First Engrossed (ntc)



 1  resources of the basin, including surface waters,

 2  groundwaters, fisheries, aquatic and estuarine habitat, and

 3  water supplies. The study must also include an evaluation of

 4  the effectiveness of existing regulatory programs in avoiding,

 5  minimizing, mitigating, or compensating for cumulative impacts

 6  on water resources of the basin. In addition, the study shall

 7  evaluate the environmental benefits, legal issues, and

 8  economic impacts of limiting activities, including mining

 9  activities, on waters and environmentally sensitive areas

10  around waterbodies by establishing a buffer within the

11  100-year floodplain of major perennial streams within the

12  Peace River Basin, including the Peace River, Horse Creek, and

13  the Myakka River. The study shall also recommend ways in which

14  any buffer areas recommended as prohibited areas can be

15  considered as mitigation under applicable permitting programs.

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

17  prepare and adopt a resource management plan for the Peace

18  River Basin to minimize any identified existing and future

19  adverse cumulative impacts to water resources of the basin,

20  including surface waters, groundwaters, wetlands, fisheries,

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

22  must identify regulatory and nonregulatory actions necessary

23  to minimize existing and future adverse cumulative impacts

24  identified in the study and, where appropriate, must also

25  recommend statutory changes to improve regulatory programs to

26  minimize identified cumulative impacts to water resources of

27  the basin.

28         (3)  Rulemaking authority is granted to the Department

29  of Environmental Protection and the Southwest Florida Water

30  Management District to implement the regulatory

31  


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    CS for SB 18-E                           First Engrossed (ntc)



 1  recommendations identified in the study or the resource

 2  management plan.

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

 4  the Governor, the President of the Senate, and the Speaker of

 5  the House of Representatives no later than July 1, 2005.

 6         (5)  The department may use up to $750,000 from the

 7  Nonmandatory Land Reclamation Trust Fund to prepare the study

 8  and plan required in this section.

 9         (6)  The department may establish a technical advisory

10  committee to assist the department in developing a plan of

11  study, reviewing interim findings, and reviewing final

12  recommendations. The technical advisory committee may include

13  representatives from the following interests in the Peace

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

15  environmental, fishing, regional water supply, regional

16  planning council, and local government.

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

18  $11.71 million is transferred from the Nonmandatory Land

19  Reclamation Trust Fund to the General Revenue Fund.

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

21  $800,000 is appropriated to the Phosphate Research Trust Fund

22  from the proceeds of the phosphate severance tax deposited

23  into the Nonmandatory Land Reclamation Trust Fund. Such funds

24  shall be used by the Florida Institute of Phosphate Research

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

26  process for the purpose of determining its technical and

27  economic feasibility. The study must evaluate the

28  availability, technical feasibility, and cost of using various

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

30  sewage sludge.  The study must evaluate the technical

31  feasibility and practicality of various methods of using and


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    CS for SB 18-E                           First Engrossed (ntc)



 1  disposing of the clay/fiber product produced, including

 2  admixing the material with soil.

 3         Section 13.  For the 2003-2004 fiscal year, the sum of

 4  $460,000 is transferred from the Nonmandatory Land Reclamation

 5  Trust Fund to the Minerals Trust Fund in the Department of

 6  Environmental Protection.  For the 2003-2004 fiscal year, the

 7  sum of $60,000 is transferred from the Nonmandatory Land

 8  Reclamation Trust Fund to the Phosphate Research Trust Fund in

 9  the Division of Universities of the Department of Education.

10         Section 14.  This act shall take effect upon becoming a

11  law.

12  

13  

14  

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  


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