HB 0041E 2003
1	A bill to be entitled
2	An act relating to phosphate mining; amending s. 211.3103,
3	F.S.; amending the tax on phosphate rock; providing for
4	the distribution of tax proceeds; deleting obsolete
5	provisions; 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; amending s. 378.212,
17	F.S.; providing authority for a variance for certain
18	reclamation activities; amending s. 378.404, F.S.;
19	allowing variances for water supply development; amending
20	s. 403.4154, F.S.; providing criminal penalties for
21	certain violations; prohibiting the distribution of
22	certain company assets under specified circumstances;
23	providing for the declaration of an imminent hazard if
24	certain financial conditions exist; providing limited
25	liability for entities assisting in the abatement of
26	imminent hazards; amending a provision granting certain
27	rebates of phosphate fees; amending s. 403.4155, F.S.;
28	directing that rules be developed for financial assurance,
29	interim stack management, and stack closure; requiring the
30	Department of Environmental Protection to conduct a study;
31	providing funds for the study; providing for the transfer
32	of certain funds from the Nonmandatory Land Reclamation
33	Trust Fund to the General Revenue Fund, the Minerals Trust
34	Fund, and the Phosphate Research Trust Fund; providing an
35	appropriation for the funding of a study by the Florida
36	Institute of Phosphate Research; providing an effective
37	date.
38
39	Be It Enacted by the Legislature of the State of Florida:
40
41	Section 1. Section 211.3103, Florida Statutes, is amended
42	to read:
43	211.3103 Levy of tax on severance of phosphate rock; rate,
44	basis, and distribution of tax.--
45	(1) There is hereby levied an excise tax upon every person
46	engaging in the business of severing phosphate rock from the
47	soils or waters of this state for commercial use. The tax shall
48	be collected, administered, and enforced by the department.
49	(2) Beginning July 1, 2003, the proceeds of all taxes,
50	interest, and penalties imposed under this section shall be paid
51	into the State Treasury as follows:
52	(a) The first $10 million in revenue collected from the
53	tax during each fiscal year shall be paid to the credit of the
54	Conservation and Recreation Lands Trust Fund.
55	(b) The remaining revenues collected from the tax during
56	that fiscal year, after the required payment under paragraph
57	(a), shall be paid into the State Treasury as follows:
58	1. For payment to counties in proportion to the number of
59	tons of phosphate rock produced from a phosphate rock matrix
60	located within such political boundary, 18.75 percent. The
61	department shall distribute this portion of the proceeds
62	annually based on production information reported by the
63	producers on the annual returns for the taxable year. Any such
64	proceeds received by a county shall be used only for phosphate
65	related expenses.
66	2. For payment to counties that have been designated a
67	Rural Area of Critical Economic Concern pursuant to s. 288.0656
68	in proportion to the number of tons of phosphate rock produced
69	from a phosphate rock matrix located within such political
70	boundary, 15 percent. The department shall distribute this
71	portion of the proceeds annually based on production information
72	reported by the producers on the annual returns for the taxable
73	year.
74	3. To the credit of the Phosphate Research Trust Fund in
75	the Department of Education, Division of Universities, 11.25
76	percent.
77	4. To the credit of the Minerals Trust Fund, 11.25
78	percent.
79	5. To the credit of the Nonmandatory Land Reclamation
80	Trust Fund, 43.75 percent.
81	(3) Beginning July 1, 2004, the proceeds of all taxes,
82	interest, and penalties imposed under this section shall be paid
83	into the State Treasury as follows:
84	(a) The first $10 million in revenue collected from the
85	tax during each fiscal year shall be paid to the credit of the
86	Conservation and Recreation Lands Trust Fund.
87	(b) The remaining revenues collected from the tax during
88	that fiscal year, after the required payment under paragraph
89	(a), shall be paid into the State Treasury as follows:
90	1. To the credit of the General Revenue Fund of the state,
91	40.1 percent.
92	2. For payment to counties in proportion to the number of
93	tons of phosphate rock produced from a phosphate rock matrix
94	located within such political boundary, 16.5 percent. The
95	department shall distribute this portion of the proceeds
96	annually based on production information reported by the
97	producers on the annual returns for the taxable year. Any such
98	proceeds received by a county shall be used only for phosphate
99	related expenses.
100	3. For payment to counties that have been designated a
101	rural area of critical economic concern pursuant to s. 288.0656
102	in proportion to the number of tons of phosphate rock produced
103	from a phosphate rock matrix located within such political
104	boundary, 13 percent. The department shall distribute this
105	portion of the proceeds annually based on production information
106	reported by the producers on the annual returns for the taxable
107	year. Payments under this subparagraph shall be made to the
108	counties unless the Legislature by special act creates a local
109	authority to promote and direct the economic development of the
110	county. If such authority exists, payments shall be made to that
111	authority.
112	4. To the credit of the Phosphate Research Trust Fund in
113	the Division of Universities of the Department of Education, 9.3
114	percent.
115	5. To the credit of the Minerals Trust Fund, 10.7 percent.
116	6. To the credit of the Nonmandatory Land Reclamation
117	Trust Fund, 10.4 percent.
118	(4) Beginning July 1, 2003, and annually thereafter, the
119	Department of Environmental Protection may use up to $2 million
120	of the funds in the Nonmandatory Land Reclamation Trust Fund to
121	purchase a surety bond or a policy of insurance, the proceeds of
122	which would pay the cost of restoration, reclamation, and
123	cleanup of any phosphogypsum stack system and phosphate mining
124	activities in the event that an operator or permittee thereof
125	has been subject to a final order of bankruptcy and all funds
126	available therefrom are determined to be inadequate to
127	accomplish such restoration, reclamation, and cleanup. This
128	section does not imply that such operator or permittee is
129	thereby relieved of its obligations or relieved of any
130	liabilities pursuant to any other remedies at law,
131	administrative remedies, statutory remedies, or remedies
132	pursuant to bankruptcy law. The department shall adopt rules to
133	implement this subsection, including the purchase and oversight
134	of the bond or policy.
135	(5) Funds distributed pursuant to subparagraphs (2)(b)2.
136	and (3)(b)3. shall be used for:
137	1. Planning, preparing, and financing of infrastructure
138	projects for job creation and capital investment, especially
139	those related to industrial and commercial sites. Infrastructure
140	investments may include the following public or public-private
141	partnership facilities: stormwater systems, telecommunications
142	facilities, roads or other remedies to transportation
143	impediments, nature-based tourism facilities, or other physical
144	requirements necessary to facilitate trade and economic
145	development activities.
146	2. Maximizing the use of federal, local, and private
147	resources, including, but not limited to, those available under
148	the Small Cities Community Development Block Grant Program.
149	3. Projects that improve inadequate infrastructure that
150	has resulted in regulatory action that prohibits economic or
151	community growth, if such projects are related to specific job
152	creation or job retention opportunities.
153	(6) Beginning January 1, 2004, the tax rate shall be the
154	base rate of $1.62 per ton severed.
155	(7) Beginning January 1, 2005, and annually thereafter,
156	the tax rate shall be the base rate times the base rate
157	adjustment for the tax year as calculated by the department in
158	accordance with subsection (9).
159	(2) The proceeds of all taxes, interest, and penalties
160	imposed under this section shall be paid into the State Treasury
161	through June 30, 1995, as follows:
162	(a) The first $10 million in revenue collected from the
163	tax during each fiscal year shall be paid to the credit of the
164	Conservation and Recreation Lands Trust Fund.
165	(b) The remaining revenues collected from the tax during
166	that fiscal year, after the required payment under paragraph
167	(a), shall be paid into the State Treasury as follows:
168	1. To the credit of the General Revenue Fund of the state,
169	60 percent. However, from this amount the amounts of $7.4
170	million, $8.2 million, and $8.1 million, respectively, shall be
171	transferred to the Nonmandatory Land Reclamation Trust Fund on
172	January 1, 1993, January 1, 1994, and January 1, 1995.
173	2. To the credit of the Nonmandatory Land Reclamation
174	Trust Fund which is established for reclamation and acquisition
175	of unreclaimed lands disturbed by phosphate mining and not
176	subject to mandatory reclamation, 20 percent.
177	3. To the credit of the Phosphate Research Trust Fund in
178	the Department of Education, Division of Universities, to carry
179	out the purposes set forth in s. 378.101, 10 percent.
180	4. For payment to counties in proportion to the number of
181	tons of phosphate rock produced from a phosphate rock matrix
182	located within such political boundary, 10 percent. The
183	department shall distribute this portion of the proceeds
184	annually based on production information reported by producers
185	on the annual returns for the taxable year. Any such proceeds
186	received by a county shall be used only for phosphate-related
187	expenses.
188	(3) Beginning July 1, 1995, the proceeds of all taxes,
189	interest, and penalties imposed under this section shall be paid
190	into the State Treasury as follows:
191	(a) The first $10 million in revenue collected from the
192	tax during each fiscal year shall be paid to the credit of the
193	Conservation and Recreation Lands Trust Fund.
194	(b) The remaining revenues collected from the tax during
195	that fiscal year, after the required payment under paragraph
196	(a), shall be paid into the State Treasury as follows:
197	1. To the credit of the General Revenue Fund of the state,
198	58 percent.
199	2. To the credit of the Nonmandatory Land Reclamation
200	Trust Fund for reclamation and acquisition of unreclaimed lands
201	disturbed by phosphate mining and not subject to mandatory
202	reclamation, 14.5 percent.
203	3. To the credit of the Phosphate Research Trust Fund in
204	the Department of Education, Division of Universities, to carry
205	out the purposes set forth in s. 378.101, 10 percent.
206	4. For payment to counties in proportion to the number of
207	tons of phosphate rock produced from a phosphate rock matrix
208	located within such political boundary, 10 percent. The
209	department shall distribute this portion of the proceeds
210	annually based on production information reported by producers
211	on the annual returns for the taxable year. Any such proceeds
212	received by a county shall be used only for phosphate-related
213	expenses.
214	5. To the credit of the Minerals Trust Fund, 7.5 percent.
215	(4) If the base rate is reduced pursuant to paragraph
216	(5)(c), then the proceeds of the tax shall be paid into the
217	State Treasury as follows:
218	(a) The first $10 million in revenue collected from the
219	tax during each fiscal year shall be paid to the credit of the
220	Conservation and Recreation Lands Trust Fund.
221	(b) The remaining revenues collected from the tax during
222	that fiscal year, after the required payment under paragraph
223	(a), shall be paid into the State Treasury as follows:
224	1. To the credit of the General Revenue Fund of the state,
225	55.15 percent.
226	2. To the credit of the Phosphate Research Trust Fund in
227	the Department of Education, Division of Universities, 12.5
228	percent.
229	3. For payment to counties in proportion to the number of
230	tons of phosphate rock produced from a phosphate rock matrix
231	located within such political boundary, 18 percent. The
232	department shall distribute this portion of the proceeds
233	annually based on production information reported by producers
234	on the annual returns for the taxable year. Any such proceeds
235	received by a county shall be used only for phosphate-related
236	expenses.
237	4. To the credit of the Minerals Trust Fund, 14.35
238	percent.
239	(8)(5)The excise tax levied by this section shall apply
240	to the total production of the producer during the taxable year,
241	measured on the basis of bone-dry tons produced at the point of
242	severance., subject to the following rates:
243	(a) Beginning July 1, 1987, to December 31, 1987, the tax
244	rate shall be $1.79 per ton severed.
245	(b) For 1988, the tax rate shall be the base rate of $1.35
246	per ton severed.
247	(c) For 1989 and subsequent years, the tax rate shall be
248	the base rate times the base rate adjustment for the tax year as
249	calculated by the department in accordance with subsection (6).
250	However, for 2000 and subsequent taxable years, the base rate
251	shall be reduced by 20 percent, unless additional funding of the
252	Nonmandatory Land Reclamation Trust Fund is approved by law.
253	(9)(6)(a) On or before March 30, 2004 1989, and annually
254	thereafter, the department shall calculate the base rate
255	adjustment, if any, for phosphate rock based on the change in
256	the unadjusted annual producer price index for the prior
257	calendar year in relation to the unadjusted annual producer
258	price index for calendar year 1999 1987.
259	(b) For the purposes of determining the base rate
260	adjustment for any year, the base rate adjustment shall be a
261	fraction, the numerator of which is the unadjusted annual
262	producer price index for the prior calendar year and the
263	denominator of which is the unadjusted annual producer price
264	index for calendar year 1999 1987.
265	(c) The department shall provide the base rate, the base
266	rate adjustment, and the resulting tax rate to affected
267	producers by written notice on or before April 15 of the current
268	year.
269	(d) If the producer price index for chemical and
270	fertilizer mineral mining phosphate rock primary productsis
271	substantially revised, the department shall make appropriate
272	adjustment in the method used to compute the base rate
273	adjustment under this subsection which will produce results
274	reasonably consistent with the result which would have been
275	obtained if the producer price index for phosphate rock primary
276	products had not been revised. However, the tax rate shall not
277	be less than $1.56 per ton severed.
278	(e) In the event the producer price index for phosphate
279	rock primary products is discontinued, then a comparable index
280	shall be selected by the department and adopted by rule.
281	(10)(7)The excise tax levied on the severance of
282	phosphate rock shall be in addition to any ad valorem taxes
283	levied upon the separately assessed mineral interest in the real
284	property upon which the site of severance is located, or any
285	other tax, permit, or license fee imposed by the state or its
286	political subdivisions.
287	(11)(8)The tax levied by this section shall be collected
288	in the manner prescribed in s. 211.33.
289	Section 2. Section 378.021, Florida Statutes, is amended
290	to read:
291	378.021 Master reclamation plan.--
292	(1) The Department of Environmental Protection Natural
293	Resources shall amend the adopt by rule, as expeditiously as
294	possible upon receipt of the report of the Land Use Advisory
295	Committee, a master reclamation plan that provides to provide
296	guidelines for the reclamation of lands mined or disturbed by
297	the severance of phosphate rock prior to July 1, 1975, which
298	lands are not subject to mandatory reclamation under part II of
299	chapter 211. In amending the developing saidmaster reclamation
300	plan, the Department of Environmental Protection Natural
301	Resources shall continue toconduct an onsite evaluation of all
302	lands mined or disturbed by the severance of phosphate rock
303	prior to July 1, 1975, which lands are not subject to mandatory
304	reclamation under part II of chapter 211, and shall consider the
305	report and plan prepared by the Land Use Advisory Committee
306	under s. 378.011 and submitted to the former Department of
307	Natural Resources for adoption by rule on or before July 1,
308	1979. The master reclamation plan when amended adoptedby the
309	Department of Environmental Protection Natural Resourcesshall
310	be consistent with local government plans prepared pursuant to
311	the Local Government Comprehensive Planning and Land Development
312	Regulation Act.
313	(2) The amendedmaster reclamation plan shall identify
314	which of the lands mined or disturbed by the severance of
315	phosphate rock prior to July 1, 1975, meet the following
316	criteria:
317	(a) The quality of surface waters leaving the land does
318	not meet applicable water quality standards, if any; or, health
319	and safety hazards exist on the land; or, the soil has not
320	stabilized and revegetated; or, the remaining natural resources
321	associated with the land are not being conserved;
322	(b) The environmental or economic utility or aesthetic
323	value of the land would not naturally return within a reasonable
324	time, and reclamation would substantially promote the
325	environmental or economic utility or the aesthetic value of the
326	land; and
327	(c) The reclamation of the land is in the public interest
328	because the reclamation, when combined with other reclamation
329	under the master plan, would provide a substantial regional
330	benefit; and.
331	(d) The reclamation of the land is in the public interest
332	because the reclamation, when combined with other reclamation
333	under the master plan, will provide significant benefits to
334	surface water bodies supplying water for environmental and
335	public purposes in those areas of the state where phosphate
336	mining has been permitted.
337	(3) Lands evaluated by the department under subsection (1)
338	which meet the criteria set forth in subsection (2) shall be
339	identified with specificity in the master reclamation plan.
340	Lands evaluated by the department under subsection (1) which do
341	not meet the criteria set forth in subsection (2) shall also be
342	identified with specificity in the master reclamation plan as
343	lands which are acceptable in their present form.
344	(4) Upon adoption of the amendments to themaster
345	reclamation plan as a rule, such plan shall provide the
346	guidelines for approval of reclamation programs for lands
347	covered in the plan, recognizing that reclamation of such lands
348	is not mandatory, but that any payment of costs expended for
349	reclamation paid under s. 378.031 shall be contingent upon
350	conformity with the guidelines set forth in the master
351	reclamation plan.
352	Section 3. Section 378.031, Florida Statutes, is amended
353	to read:
354	378.031 Reclamation or acquisition of nonmandatory lands;
355	legislative intent.--It is the intent of the Legislature to
356	provide an economic incentive to encourage the reclamation of
357	the maximum number of acres of eligible nonmandatory lands in
358	the most timely and efficient manner or the donation or purchase
359	of nonmandatory lands, especially those lands for which
360	reclamation activities will result in significant improvements
361	to surface water bodies of regional importance in those areas of
362	the state where phosphate mining has been permitted. The
363	Legislature recognizes that certain lands mined or disturbed
364	prior to July 1, 1975, have been naturally reclaimed.
365	Section 4. Subsections (5), (6), (7), (8), and (9) of
366	section 378.035, Florida Statutes, are amended to read:
367	378.035 Department responsibilities and duties with
368	respect to Nonmandatory Land Reclamation Trust Fund.--
369	(5) On July 1, 2001, $50 million of the unencumberedFunds
370	within the Nonmandatory Land Reclamation Trust Fund are also
371	authorized reserved for use by the department for the following
372	purposes:.
373	(a) These reserved moneys are to be usedTo reclaim lands
374	disturbed by the severance of phosphate rock on or after July 1,
375	1975, in the event that a mining company ceases mining and the
376	associated reclamation prior to all lands disturbed by the
377	operation being reclaimed. Moneys expended by the department to
378	accomplish reclamation pursuant to this subsection shall become
379	a lien upon the property enforceable pursuant to chapter 85. The
380	moneys received as a result of a lien foreclosure or as
381	repayment shall be deposited into the trust fund. In the event
382	the money received as a result of lien foreclosure or repayment
383	is less than the amount expended for reclamation, the department
384	shall use all means available to recover, for the use of the
385	fund, the difference from the affected parties. Paragraph (3)(b)
386	shall apply to lands acquired as a result of a lien foreclosure.
387	(b) The department may also expend funds from the $50
388	million reserve fundFor the abatement of an imminent hazard as
389	provided by s. 403.4154(4)(3)and for the purpose of closing an
390	abandoned phosphogypsum stack system and carrying out
391	postclosure care as provided by s. 403.4154(6)(5). Fees
392	deposited in the Nonmandatory Land Reclamation Trust Fund
393	pursuant to s. 403.4154(4) may be used for the purposes
394	authorized in this paragraph. However, such fees may only be
395	used at a stack system if closure or imminent-hazard-abatement
396	activities initially commence on or after July 1, 2002.
397	(c)(6)(a) Up to one-half of the interest income accruing
398	to the funds reserved by subsection (5) shall be available to
399	the department annuallyFor the purpose of funding basic
400	management or protection of reclaimed, restored, or preserved
401	phosphate lands:
402	1. Which have wildlife habitat value as determined by the
403	Bureau of Mine Reclamation;
404	2. Which have been transferred by the landowner to a
405	public agency or a private, nonprofit land conservation and
406	management entity in fee simple, or which have been made subject
407	to a conservation easement pursuant to s. 704.06; and
408	3. For which other management funding options are not
409	available.
410
411	These funds may, after the basic management or protection has
412	been assured for all such lands, be combined with other
413	available funds to provide a higher level of management for such
414	lands.
415	(d)(b) Up to one-half of the interest income accruing to
416	the funds reserved by subsection (5) shall be available to the
417	department annuallyFor the sole purpose of funding the
418	department's implementation of:
419	1. The NPDES permitting program authorized by s. 403.0885,
420	as it applies to phosphate mining and beneficiation facilities,
421	phosphate fertilizer production facilities, and phosphate
422	loading and handling facilities;
423	2. The regulation of dams in accordance with department
424	rule 62-672, Florida Administrative Code; and
425	3. The phosphogypsum management program pursuant to s.
426	403.4154 and department rule 62-673, Florida Administrative
427	Code.
428
429	On or before August 1 of each fiscal year, the department shall
430	prepare a report presenting the expenditures using the interest
431	income allocated by this section made by the department during
432	the immediately preceding fiscal year, which report shall be
433	available to the public upon request.
434	(6)(7)Should the nonmandatory land reclamation program
435	encumber all the funds in the Nonmandatory Land Reclamation
436	Trust Fund except those reserved by subsection (5) prior to
437	funding all the reclamation applications for eligible parcels,
438	the funds reserved by subsection (5) shall be available to the
439	program to the extent required to complete the reclamation of
440	all eligible parcels for which the department has received
441	applications.
442	(7)(8)The department may not accept any applications for
443	nonmandatory land reclamation programs after January 1, 2005
444	November 1, 2008.
445	(8)(9)The Bureau of Mine Reclamation shall review the
446	sufficiency of the Nonmandatory Land Reclamation Trust Fund to
447	support the stated objectives and report to the secretary
448	annually with recommendations as appropriate. The report
449	submittal for calendar year 2008 shall specifically address the
450	effect of providing a future refund of fees paid pursuant to s.
451	403.4154(4) following certification of stack closure pursuant to
452	department rules, and the report shall be submitted to the
453	Governor, the President of the Senate, and the Speaker of the
454	House of Representatives on or before March 1, 2009.
455
456	For the 2003-2004 fiscal year the department may not approve or
457	encumber nonmandatory reclamation projects in amounts greater
458	than $15 million.
459	Section 5. Subsection (6) is added to section 378.036,
460	Florida Statutes, to read:
461	378.036 Land acquisitions financed by Nonmandatory Land
462	Reclamation Trust Fund moneys.--
463	(6)(a) By January 1, 2004, or within 6 months following
464	the date funds become available from the Legislature, whichever
465	is later, the Florida Wildlife Federation, Audubon Florida, and
466	Rails-to-Trails Conservancy in partnership with the Florida
467	Phosphate Council are authorized to form a nonprofit corporation
468	pursuant to chapter 617 for the purpose of implementing this
469	section by creating plans and assisting in the development of
470	recreational opportunities on lands mined for phosphate in the
471	state. The first plans must concentrate on recreational
472	activities in Hardee and Hamilton Counties which will assist
473	them in rural economic development.
474	(b) The board of directors of the corporation shall be
475	composed of three members, one designated by the Florida
476	Phosphate Council, one as the designee of the Florida Wildlife
477	Federation, Audubon Florida, and Rails-to-Trails Conservancy,
478	and the third chosen by the other two designees.
479	(c) The business of the corporation shall be conducted by
480	the board of directors or a chief executive officer as the board
481	shall see fit in accordance with the provisions of its articles
482	of incorporation and applicable law. The activities of the
483	corporation shall be coordinated with all landowners who have
484	voluntarily agreed to participate in the process as well as any
485	local government where such lands are recorded.
486	(d) An annual report of the activities of the corporation,
487	including a certified audit, shall be presented to the Secretary
488	of Environmental Protection or his or her designee by October 31
489	of each year following incorporation.
490	(e) The corporation shall dissolve on January 1, 2009,
491	unless dissolved previously by action of its board of directors
492	or extended by the Legislature. Upon dissolution, any moneys
493	remaining in the accounts of the corporation that are
494	unobligated shall be returned to the funds from which they were
495	appropriated in proportion to the amount contributed. All
496	tangible assets of the corporation at dissolution which were
497	acquired using state funding shall become the property of the
498	Department of Environmental Protection.
499	Section 6. Paragraph (g) is added to subsection (1) of
500	section 378.212, Florida Statutes, to read:
501	378.212 Variances.--
502	(1) Upon application, the secretary may grant a variance
503	from the provisions of this part or the rules adopted pursuant
504	thereto. Variances and renewals thereof may be granted for any
505	one of the following reasons:
506	(g) To accommodate reclamation that provides water supply
507	development or water resource development not inconsistent with
508	the applicable regional water supply plan approved pursuant to
509	s. 373.0361, provided adverse impacts are not caused to the
510	water resources in the basin. A variance may also be granted
511	from the requirements of part IV of chapter 373, or the rules
512	adopted thereunder, when a project provides an improvement in
513	water availability in the basin and does not cause adverse
514	impacts to water resources in the basin.
515	Section 7. Subsection (9) is added to section 378.404,
516	Florida Statutes, to read:
517	378.404 Department of Environmental Protection; powers and
518	duties.--The department shall have the following powers and
519	duties:
520	(9) To grant variances from the provisions of this part to
521	accommodate reclamation that provides for water supply
522	development or water resource development not inconsistent with
523	the applicable regional water supply plan approved pursuant to
524	s. 373.0361, appropriate stormwater management, improved
525	wildlife habitat, recreation, or a mixture thereof, provided
526	adverse impacts are not caused to the water resources in the
527	basin and public health and safety are not adversely affected.
528	Section 8. Subsections (2), (3), and (4) of section
529	403.4154, Florida Statutes, are amended to read:
530	403.4154 Phosphogypsum management program.--
531	(2) REGULATORY PROGRAM.--
532	(a) It is the intent of the Legislature that the
533	department develop a program for the sound and effective
534	regulation of phosphogypsum stack systems in the state.
535	(b) The department shall adopt rules that prescribe
536	acceptable construction designs for new or expanded
537	phosphogypsum stack systems and that prescribe permitting
538	criteria for operation, closure criteria,long-term-care
539	requirements, and closure financial responsibility requirements
540	for phosphogypsum stack systems.
541	(c) Whoever willfully, knowingly, or with reckless
542	indifference or gross carelessness misstates or misrepresents
543	the financial condition or closure costs of an entity engaged in
544	managing, owning, or operating a phosphogypsum stack or stack
545	system commits a felony of the third degree, punishable as
546	provided in s. 775.082 or s. 775.083 by a fine of not more than
547	$50,000 and by imprisonment for 5 years for each offense.
548	(d) If an owner or operator of a phosphogypsum stack or
549	stack system fails to comply with department rules requiring
550	demonstration of closure financial responsibility, no
551	distribution may be made which would be prohibited under s.
552	607.06401(3) until the noncompliance is corrected. Whoever
553	willfully, knowingly, or with reckless indifference or gross
554	carelessness violates this prohibition commits a felony of the
555	third degree, punishable as provided in s. 775.082 or s. 775.083
556	by a fine of not more than $50,000 or by imprisonment for 5
557	years for each offense.
558	(3) ABATEMENT OF IMMINENT HAZARD.--
559	(a) The department may take action to abate or
560	substantially reduce any imminent hazard caused by the physical
561	condition, maintenance, operation, or closure of a phosphogypsum
562	stack system.
563	(b) An imminent hazard exists if the physical condition,
564	maintenance, operation, or closure of a phosphogypsum stack
565	system creates an immediate and substantial danger to human
566	health, safety, or welfare or to the environment. A
567	phosphogypsum stack system is presumed not to cause an imminent
568	hazard if the physical condition and operation of the system are
569	in compliance with all applicable department rules.
570	(c) The failure of an owner or operator of a phosphogypsum
571	stack system to comply with department rules requiring
572	demonstration of closure financial responsibility may be
573	considered by the department as evidence that a phosphogypsum
574	stack poses an imminent hazard for purposes of initiating
575	actions authorized by paragraph (d).
576	(d)(c) If the department determines that the failure of an
577	owner or operator to comply with department rules requiring
578	demonstration of financial responsibility orthat the physical
579	condition, maintenance, operation, or closure of a phosphogypsum
580	stack system poses an imminent hazard, the department shall
581	request access to the property on which such stack system is
582	located from the owner or operator of the stack system for the
583	purposes of taking action to abate or substantially reduce the
584	imminent hazard. If the department, after reasonable effort, is
585	unable to timely obtain the necessary access to abate or
586	substantially reduce the imminent hazard, the department may
587	institute action in its own name, using the procedures and
588	remedies of s. 403.121 or s. 403.131, to abate or substantially
589	reduce an imminent hazard. Whenever serious harm to human
590	health, safety, or welfare, to the environment, or to private or
591	public property may occur prior to completion of an
592	administrative hearing or other formal proceeding that might be
593	initiated to abate the risk of serious harm, the department may
594	obtain from the court, ex parte, an injunction without paying
595	filing and service fees prior to the filing and service of
596	process.
597	(e)(d)To abate or substantially reduce an imminent
598	hazard, the department may take any appropriate action,
599	including, but not limited to, using employees of the department
600	or contracting with other state or federal agencies, with
601	private third-party contractors, or with the owner or operator
602	of the stack system, or financing, compensating, or funding a
603	receiver, trustee, or owner of the stack system, to perform all
604	or part of the work.
605	(f)(e)The department shall recover from the owner or
606	operator of the phosphogypsum stack system to the use of the
607	Nonmandatory Land Reclamation Trust Fund all moneys expended
608	from the fund, including funds expended prior to the effective
609	date of this section, to abate an imminent hazard posed by the
610	phosphogypsum stack system plus a penalty equal to an amount
611	calculated at 30 percent of such funds expended. This penalty
612	shall be imposed annually, and prorated from the date of payment
613	from the fund until the expended funds and the penalty are
614	repaid. If the department prevails in any action to recover
615	funds pursuant to this subsection, it may recover reasonable
616	attorney's fees and costs incurred. Phosphogypsum may not be
617	deposited on a stack until all moneys expended from the fund in
618	connection with the stack have been repaid, unless the
619	department determines that such placement is necessary to abate
620	or avoid an imminent hazard or unless otherwise authorized by
621	the department.
622	(g)(f)The department may impose a lien on the real
623	property on which the phosphogypsum stack system that poses an
624	imminent hazard is located and on the real property underlying
625	and other assets located at associated phosphate fertilizer
626	production facilities equal in amount to the moneys expended
627	from the Nonmandatory Land Reclamation Trust Fund pursuant to
628	paragraph (d), including attorney's fees and court costs. The
629	owner of any property on which such a lien is imposed is
630	entitled to a release of the lien upon payment to the department
631	of the lien amount. The lien imposed by this section does not
632	take priority over any other prior perfected lien on the real
633	property, personal property, or other assets referenced in this
634	paragraph, including, but not limited to, the associated
635	phosphate rock mine and reserves.
636	(h) Upon a declaration by the Governor of an environmental
637	emergency concerning the abatement of a imminent hazard
638	involving a phosphogypsum stack or stack system, the state and
639	any agent under contract with the state for the provision of
640	services directly related to the abatement of such hazard shall
641	not become liable under state laws for environmental protection
642	for any costs, damages, or penalties associated with the
643	abatement of the imminent hazard. The Legislature finds that
644	provision of this limited immunity is in the public interest and
645	necessary for the abatement of the imminent hazard.
646	(4) REGISTRATION FEES.--
647	(a)1. The owner or operator of each existing phosphogypsum
648	stack who has not provided a performance bond, letter of credit,
649	trust fund agreement, or closure insurance to demonstrate
650	financial responsibility for closure and long-term care shall
651	pay to the department a fee as set forth in this paragraph. All
652	fees shall be deposited in the Nonmandatory Land Reclamation
653	Trust Fund.
654	2. The amount of the fee for each existing stack shall be
655	$75,000 for each of the five 12-month periods following July 1,
656	2001.
657	3. The amount of the fee for any new stack for which the
658	owner or operator has not provided a performance bond, letter of
659	credit, trust fund agreement, or closure insurance to
660	demonstrate financial responsibility for closure and long-term
661	care shall be $75,000 for each of the five 12-month periods
662	following the issuance by the department of a construction
663	permit for that stack.
664	4. Within 30 days after a phosphogypsum stack has been
665	certified as closed pursuant to rule 62-673.620(2) and (3),
666	Florida Administrative Code, the department shall refund to the
667	owner of the closed phosphogypsum stack an amount from the
668	Nonmandatory Land Reclamation Trust Fund equal to the total
669	amount of fee payments made by the owner or operator to the fund
670	in connection with the closed phosphogypsum stack. However, a
671	refund may not be paid until the Mulberry and Piney Point
672	phosphogypsum stack systems have been closed and a satisfactory
673	reserve has been established in the Nonmandatory Reclamation
674	Lands Trust Fund, except that any refund becoming payable prior
675	to July 1, 2009, shall be paid to the owner on or after that
676	date.
677	(b) On or before August 1 of each year, the department
678	shall provide written notice to each owner of an existing stack
679	of any fee payable for the 12-month period commencing on the
680	immediately preceding July 1. Each owner shall remit the fee to
681	the department on or before August 31 of each year.
682	Section 9. Section 403.4155, Florida Statutes, is amended
683	to read:
684	403.4155 Phosphogypsum management; rulemaking authority.--
685	(1) The Department of Environmental Protection shall adopt
686	rules to amend existing chapter 62-672, Florida Administrative
687	Code, to ensure that impoundment structures and water conveyance
688	piping systems used in phosphogypsum management are designed and
689	maintained to meet critical safety standards. The rules must
690	require that any impoundment structure used in a phosphogypsum
691	stack system, together with all pumps, piping, ditches, drainage
692	conveyances, water control structures, collection pools, cooling
693	ponds, surge ponds, and any other collection or conveyance
694	system associated with phosphogypsum transport, cooling water,
695	or the return of process wastewater, is constructed using sound
696	engineering practices and is operated to avoid spills or
697	discharges of materials which adversely affect surface or ground
698	waters. The rules must require that a phosphogypsum stack system
699	owner maintain a log detailing the owner's operating inspection
700	schedule, results, and any corrective action taken based on the
701	inspection results. The rules must require phosphogypsum stack
702	owners to maintain an emergency contingency plan and demonstrate
703	the ability to mobilize equipment and manpower to respond to
704	emergency situations at phosphogypsum stack systems. The rules
705	must establish a reasonable time period not to exceed 12 months
706	for facilities to meet the provisions of the rules adopted
707	pursuant to this section.
708	(2)(a) By October 1, 2004, the department shall initiate
709	rulemaking to require that phosphogypsum stack system operation
710	plans required by department rule be amended by adding an
711	interim stack system management (ISSM) plan that provides
712	written instructions for the operation of the system, assuming
713	that no phosphoric acid would be produced at the facility for a
714	2-year period. The initial ISSM plan must be completed as of the
715	first July 1 following the adoption of the rule required by this
716	section. The ISSM plan must include:
717	1. A detailed description of process water management
718	procedures that will be implemented to ensure that the stack
719	system operates in accordance with all applicable department
720	permit conditions and rules. The procedures must address the
721	actual process water levels present at the facility 30 days
722	prior to the completion of the plan and must assume that the
723	facility will receive annual average rainfall during the 2-year
724	planning period.
725	2. A detailed description of the procedures to be followed
726	for the daily operation and routine maintenance of the stack
727	system, including required environmental sampling and analyses,
728	as well as for any maintenance or repairs recommended following
729	annual inspections of the system.
730	3. Identification of all machinery, equipment, and
731	materials necessary to implement the plan.
732	4. Identification of the sources of power or fuel
733	necessary to implement the plan.
734	5. Identification of the personnel necessary to implement
735	the plan.
736	(b) The ISSM plan shall be updated annually, taking into
737	account process water levels as of June 1 of each year and the
738	existing stack system configuration.
739	(c) The requirements listed in paragraphs (a) and (b) are
740	applicable to all phosphogypsum stack systems except those that
741	have been closed, that are undergoing closure, or for which an
742	application for a closure permit has been submitted pursuant to
743	department rule.
744	(3)(a) By October 1, 2004, the department shall initiate
745	rulemaking to require that general plans and schedules for the
746	closure of phosphogypsum stack systems include:
747	1. A description of the physical configuration of the
748	phosphogypsum stack system anticipated at the time of closure at
749	the end of useful life of the system.
750	2. A site-specific water management plan describing the
751	procedures to be employed at the end of the useful life of the
752	system to manage the anticipated volume of process water in an
753	environmentally sound manner.
754	3. An estimate of the cost of management of the
755	anticipated volume of process water in accordance with the site-
756	specific water management plan.
757	4. A description of all construction work necessary to
758	properly close the system in accordance with department rules.
759	5. An estimate of all costs associated with long-term care
760	of the closed system, including maintenance and monitoring, in
761	accordance with department rules.
762	(b) The department shall revise chapter 62-673, Florida
763	Administrative Code, to require the owner or operator of a
764	phosphogypsum stack management system to demonstrate financial
765	responsibility for the costs of terminal closure of the
766	phosphogypsum stack system in a manner that protects the public
767	health and safety.
768	1. The costs of terminal closure shall be estimated based
769	on the stack system configuration as of the end of its useful
770	life as determined by the owner or operator.
771	2. The owner or operator may demonstrate financial
772	responsibility by use of one or more of the following methods:
773	a. Bond.
774	b. Letter of credit.
775	c. Cash deposit arrangement.
776	d. Closure insurance.
777	e. Financial tests.
778	f. Corporate guarantee.
779
780	For the purposes of this section, the term "cash deposit
781	arrangement" means a trust fund, business or statutory trust,
782	escrow account, or similar cash deposit entity whereby a
783	fiduciary holds and invests funds deposited by the owner or
784	operator, which funds shall be expended only for the purpose of
785	directly implementing all or some portion of phosphogypsum stack
786	system closure requirements of that particular owner or
787	operator.
788	3. A trustee, escrow agent, or other fiduciary of a cash
789	deposit arrangement authorized by this section has no liability
790	for any damage or loss of any kind arising out of or caused by
791	performance of duties imposed by the terms of the applicable
792	agreement unless such damage or loss is directly caused by the
793	gross negligence or criminal act of the trustee, escrow agent,
794	or other fiduciary. In performing its duties pursuant to the
795	applicable agreement, a trustee, escrow agent, or other
796	fiduciary is entitled to rely upon information and direction
797	received from the grantor or the department without independent
798	verification unless such information and direction are
799	manifestly in error.
800	4. To the extent that a cash deposit arrangement is used
801	to provide proof of financial responsibility for all or a
802	portion of closure costs, the trust, escrow, or cash arrangement
803	deposit entity is considered to have assumed all liability for
804	such closure costs up to the amount of the cash deposit, less
805	any fees or costs of the trustee, escrow agent, or other
806	fiduciary.
807	5. Any funds maintained in a cash deposit arrangement
808	authorized by this section are not subject to claims of
809	creditors of the owner or operator and are otherwise exempt from
810	setoff, execution, levy, garnishment, and similar writs and
811	proceedings.
812	6. Any funds remaining in a trust, escrow account, or
813	other cash deposit arrangement after the purpose of such cash
814	deposit arrangement under this section has been accomplished
815	shall be returned to the grantor.
816	(4) The department shall revise chapter 62-673, Florida
817	Administrative Code, to require the owner or operator of a
818	phosphogypsum stack system to demonstrate financial
819	responsibility for the costs of terminal closure of the
820	phosphogypsum stack system in a manner that protects the
821	environment and the public health and safety. At a minimum, such
822	rules must include or address the following requirements:
823	(a) That the cost of closure and long-term care be re-
824	estimated by a professional engineer and adjusted for inflation
825	on an annual basis. At a minimum, such cost data must include:
826	1. The cost of treatment and appropriate disposal of all
827	process wastewater, both ponded and pore, in the system.
828	2. All construction work necessary to properly close the
829	system in accordance with department rules.
830	3. All costs associated with long-term care of the closed
831	system, including maintenance and monitoring, in accordance with
832	department rules.
833	(b) That financial statements and financial data be
834	prepared according to generally accepted accounting principles
835	within the United States and submitted quarterly.
836	(c) That audited financial statements be provided annually
837	along with the statement of financial assurance.
838	(d) That any owner or operator in default on any of its
839	obligations report such default immediately.
840	(2) By January 31, 2002, the department shall review
841	chapter 62-673, Florida Administrative Code, to determine the
842	adequacy of the financial responsibility provisions contained in
843	the rules and shall take any measures necessary to ensure that
844	the rules provide sound and effective provisions to minimize
845	risk to the environment and to public health and safety from the
846	business failure of a phosphogypsum stack system.
847	Section 10. (1) The Department of Environmental
848	Protection, in consultation with the Southwest Florida Water
849	Management District, shall study cumulative impacts of changes
850	in landform and hydrology in the Peace River Basin. The study
851	shall evaluate cumulative impacts of activities conducted in the
852	Peace River Basin prior to state regulation, or pursuant to an
853	exemption, a permit, or a reclamation plan, on water resources
854	of the basin, including surface waters, groundwaters, fisheries,
855	aquatic and estuarine habitat, and water supplies. The study
856	must also include an evaluation of the effectiveness of existing
857	regulatory programs in avoiding, minimizing, mitigating, or
858	compensating for cumulative impacts on water resources of the
859	basin. In addition, the study shall evaluate the environmental
860	benefits, legal issues, and economic impacts of limiting
861	activities, including mining activities, on waters and
862	environmentally sensitive areas around waterbodies by
863	establishing a buffer within the 100-year floodplain of major
864	perennial streams within the Peace River Basin, including the
865	Peace River, Horse Creek, and the Myakka River. The study shall
866	also recommend ways in which any buffer areas recommended as
867	prohibited areas can be considered as mitigation under
868	applicable permitting programs.
869	(2) Upon completion of the study, the department shall
870	prepare and adopt a resource management plan for the Peace River
871	Basin to minimize any identified existing and future adverse
872	cumulative impacts to water resources of the basin, including
873	surface waters, groundwaters, wetlands, fisheries, aquatic and
874	estuarine habitat, and water supplies. The plan must identify
875	regulatory and nonregulatory actions necessary to minimize
876	existing and future adverse cumulative impacts identified in the
877	study and, where appropriate, must also recommend statutory
878	changes to improve regulatory programs to minimize identified
879	cumulative impacts to water resources of the basin.
880	(3) Rulemaking authority is granted to the Department of
881	Environmental Protection and the Southwest Florida Water
882	Management District to implement the regulatory recommendations
883	identified in the study or the resource management plan.
884	(4) The resource management plan shall be submitted to the
885	Governor, the President of the Senate, and the Speaker of the
886	House of Representatives no later than July 1, 2005.
887	(5) The department may use up to $750,000 from the
888	Nonmandatory Land Reclamation Trust Fund to prepare the study
889	and plan required in this section.
890	(6) The department may establish a technical advisory
891	committee to assist the department in developing a plan of
892	study, reviewing interim findings, and reviewing final
893	recommendations. The technical advisory committee may include
894	representatives from the following interests in the Peace River
895	Basin: industrial, mining, agriculture, development,
896	environmental, fishing, regional water supply, regional planning
897	council, and local government.
898	Section 11. For fiscal year 2003-2004, the sum of $11.71
899	million is transferred from the Nonmandatory Land Reclamation
900	Trust Fund to the General Revenue Fund.
901	Section 12. For fiscal year 2003-2004, the sum of $800,000
902	is appropriated to the Phosphate Research Trust Fund from the
903	proceeds of the phosphate severance tax deposited into the
904	Nonmandatory Land Reclamation Trust Fund. Such funds shall be
905	used by the Florida Institute of Phosphate Research to conduct a
906	bench and pilot scale study of the FIPR/DIPR process for the
907	purpose of determining its technical and economic feasibility.
908	The study must evaluate the availability, technical feasibility,
909	and cost of using various types of fiber, including, but not
910	limited to, paper and sewage sludge. The study must evaluate
911	the technical feasibility and practicality of various methods of
912	using and disposing of the clay/fiber product produced,
913	including admixing the material with soil.
914	Section 13. For the 2003-2004 fiscal year, the sum of
915	$460,000 is transferred from the Nonmandatory Land Reclamation
916	Trust Fund to the Minerals Trust Fund in the Department of
917	Environmental Protection. For the 2003-2004 fiscal year, the sum
918	of $60,000 is transferred from the Nonmandatory Land Reclamation
919	Trust Fund to the Phosphate Research Trust Fund in the Division
920	of Universities of the Department of Education.
921	Section 14. This act shall take effect upon becoming a
922	law.