Senate Bill sb0486c1

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    Florida Senate - 2005                            CS for SB 486

    By the Committee on Environmental Preservation; and Senator
    Dockery




    592-1922-05

  1                      A bill to be entitled

  2         An act relating to phosphate mine reclamation;

  3         amending s. 378.034, F.S.; deleting an obsolete

  4         provision relating to the use of reclamation

  5         funds; amending s. 378.035, F.S.; deleting an

  6         obsolete provision authorizing the Department

  7         of Environmental Protection to expend certain

  8         funds; amending s. 373.414, F.S.; requiring

  9         financial responsibility for wetlands

10         mitigation; specifying the financial

11         responsibility demonstration for permitted

12         activities occurring over a period of 3 years

13         or more of mining activities; providing an

14         effective date.

15  

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

17  

18         Section 1.  Section 378.034, Florida Statutes, is

19  amended to read:

20         378.034  Submission of a reclamation program request;

21  procedures.--

22         (1)  The department shall establish by rule procedures

23  for a nonbinding preapplication review to assist a landowner

24  in submitting a reclamation program request.

25         (2)  Landowners shall reclaim all nonmandatory lands

26  which were put into use as clay settling areas after July 1,

27  1975, and on or before July 1, 1984, under the nonmandatory

28  land reclamation program, pursuant to the provisions of this

29  act. A landowner shall submit a reclamation program

30  application within 180 days after the land ceases to be used

31  as a clay settling area. The requirements of this subsection

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 1  are expressly contingent upon the availability of sufficient

 2  funds in the Nonmandatory Land Reclamation Trust Fund

 3  established pursuant to s. 211.3103.

 4         (3)(a)  Landowners shall submit reclamation program

 5  applications to the department by November 1 of each year for

 6  funding consideration during the following year.

 7         (b)  Each reclamation program application shall include

 8  a timetable for completion of the program and a completion

 9  date.

10         (4)  The department staff shall review each reclamation

11  program application to determine whether it complies with the

12  standards and criteria for a reclamation program or for land

13  acquisition and to determine its consistency with the master

14  reclamation plan.

15         (5)(a)  The department staff shall, by February 1 of

16  each year, present to the committee for its consideration

17  those reclamation program applications received by the

18  preceding November 1.

19         (b)  The department staff shall recommend an order of

20  priority for the reclamation program applications that is

21  consistent with subsection (6).

22         (c)  The recommendation of the department staff shall

23  include an estimate of the cost of each reclamation program or

24  land acquisition.

25         (6)  The committee shall recommend approval,

26  modification, or denial of the reclamation program

27  applications, associated cost estimates, and the department

28  staff's recommended prioritized list. Recommendations on the

29  order of priority shall be based, among other criteria, on the

30  following criteria; however, the committee may give greater

31  

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    Florida Senate - 2005                            CS for SB 486
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 1  weight to one or more of the criteria depending on the overall

 2  needs of the nonmandatory land reclamation program:

 3         (a)  Whether health and safety hazards exist; and, if

 4  so, such hazards shall be given the greatest weight;

 5         (b)  Whether the economic or environmental utility or

 6  the aesthetic value of the land will return naturally within a

 7  reasonable period of time;

 8         (c)  Whether there is a reasonable geographic and

 9  applicant diversity in light of previously awarded reclamation

10  contracts, reclamation program applications before the

11  committee, and the remaining eligible lands;

12         (d)  Whether reclamation is in the public interest;

13         (e)  Whether the land has been naturally reclaimed or

14  is eligible for acquisition by the state for hunting, fishing,

15  or other outdoor recreation purposes or for wildlife

16  preservation;

17         (f)  Whether the land is to be reclaimed for

18  agricultural use and the applicant has agreed to maintain the

19  land in agricultural use for at least 5 years after the

20  completion of the reclamation;

21         (g)  Whether the program, alone or in conjunction with

22  other reclamation programs, will provide a substantial

23  regional benefit;

24         (h)  Whether the program, alone or in conjunction with

25  other reclamation programs, will benefit regional drainage

26  patterns;

27         (i)  Whether the land is publicly owned and will be

28  reclaimed for public purposes;

29         (j)  Whether the program includes a donation or

30  agreement to sell a portion of the program application area to

31  

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    Florida Senate - 2005                            CS for SB 486
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 1  the state for outdoor recreational or wildlife habitat

 2  protection purposes;

 3         (k)  Whether the program is cost-effective in achieving

 4  the goals of the nonmandatory land reclamation program; and

 5         (l)  Whether the program will reclaim lands described

 6  in subsection (2).

 7         (7)  Until 1995, the funds available for approved

 8  reclamation contracts and acquisitions of nonmandatory lands

 9  shall not exceed 20 percent of the uncommitted fund balance of

10  the trust fund at the beginning of each year. The prioritized

11  list approved by the committee may contain more reclamation

12  program applications than there are funds available during the

13  year.

14         (8)  Each year, 15 percent of the funds available for

15  approved reclamation contracts, as set forth in subsection

16  (7), shall be reserved for reclamation programs which are

17  submitted by applicants other than corporations primarily

18  engaged in the mining or processing of phosphate ores to

19  create lands to be actively used for agricultural activities.

20  In the event that, in any given year, there are insufficient

21  applicants that meet the department criteria for approval to

22  use the funds reserved under this subsection, the remaining

23  moneys may be made available to other applicants.

24         (9)  The committee recommendations shall be submitted

25  to the secretary by April 1 of each year for final agency

26  action by June 1 of that year. The secretary shall approve, in

27  whole or in part, the list of reclamation program applications

28  in the order of priority in which the applications are

29  presented.

30         (10)  Any approved reclamation program application that

31  was not funded shall, at the request of the applicant, be

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 1  considered by the committee at its next meeting called for

 2  that purpose, together with other reclamation program

 3  applications received by November 1 of the next year.

 4         (11)(a)  After receiving the approval of the secretary,

 5  the department shall offer a reclamation contract to an

 6  applicant within 30 days after the applicant's reclamation

 7  program has been approved. The contracts shall be offered to

 8  the applicants in their approved order on the priority list to

 9  the extent funds are available. Each applicant shall have 30

10  days in which to execute a reclamation contract. If the

11  contract is not executed within 30 days, the application shall

12  be dropped from the approved list for the current year.

13         (b)  Reclamation contracts may not be signed and

14  available funds may not be committed after June 30 of the year

15  in which a reclamation program application is approved by the

16  secretary.

17         (c)  The amount of reimbursement for reclamation

18  activities allowed in the contract shall be a grant of money

19  equal to the estimated cost of the program as approved by the

20  secretary. In no event, however, shall the grant amount exceed

21  the maximum amounts specified in s. 378.037(1)(b).

22         (d)  After receiving the approval of the Governor and

23  Cabinet, each reclamation program application for the

24  acquisition of land shall be transferred to the Division of

25  State Lands, which shall acquire the lands in compliance with

26  the acquisition procedures of s. 253.025.

27         (12)  The department shall require by rule that owners

28  of eligible properties who intend to seek approval of a

29  reclamation program submit, not later than December 31, 1993,

30  a notice of intent to file an application for approval,

31  indicating the date upon which the application will be filed.

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    Florida Senate - 2005                            CS for SB 486
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 1         Section 2.  Section 378.035, Florida Statutes, is

 2  amended to read:

 3         378.035  Department responsibilities and duties with

 4  respect to Nonmandatory Land Reclamation Trust Fund.--

 5         (1)  The department shall administer the Nonmandatory

 6  Land Reclamation Trust Fund.

 7         (2)(a)  The department shall verify that reclamation

 8  activities or portions thereof have been accomplished in

 9  accordance with the reclamation contract and shall certify the

10  cost of such reclamation activities to the Chief Financial

11  Officer for reimbursement.

12         (b)  Beginning in 1985, the department shall determine

13  the maximum dollar amount a landowner may be reimbursed per

14  reclaimed acre under an approved reclamation program.

15         (c)  Nothing in this act precludes a landowner from

16  performing the reclamation pursuant to the approved

17  reclamation program, provided the landowner complies with the

18  provisions of this act.

19         (3)  If an applicant who has signed a reclamation

20  contract abandons the reclamation program prior to substantial

21  completion of the program, the department may spend the

22  remaining balance of funds not expended under the contract to

23  complete the program.

24         (a)  The contract amount and any amounts spent by the

25  department in excess of the remaining balance of the funds

26  under the contract become a lien upon the property,

27  enforceable pursuant to chapter 85.  The moneys received as a

28  result of a lien foreclosure or as repayment shall be

29  deposited into the trust fund.

30         (b)  If the land acquired pursuant to the lien

31  foreclosure has recreational or wildlife value, the department

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    Florida Senate - 2005                            CS for SB 486
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 1  may retain ownership as with other property acquired pursuant

 2  to s. 378.036. If the department sells the property, the

 3  department shall deposit the proceeds of the sale into the

 4  trust fund.

 5         (4)  Interest on moneys deposited in the Nonmandatory

 6  Land Reclamation Trust Fund shall accrue to that fund.

 7         (5)  Funds within the Nonmandatory Land Reclamation

 8  Trust Fund are also authorized for use by the department for

 9  the following purposes:

10         (a)  To reclaim lands disturbed by the severance of

11  phosphate rock on or after July 1, 1975, in the event that a

12  mining company ceases mining and the associated reclamation

13  prior to all lands disturbed by the operation being reclaimed.

14  Moneys expended by the department to accomplish reclamation

15  pursuant to this subsection shall become a lien upon the

16  property enforceable pursuant to chapter 85. The moneys

17  received as a result of a lien foreclosure or as repayment

18  shall be deposited into the trust fund. In the event the money

19  received as a result of lien foreclosure or repayment is less

20  than the amount expended for reclamation, the department shall

21  use all means available to recover, for the use of the fund,

22  the difference from the affected parties. Paragraph (3)(b)

23  shall apply to lands acquired as a result of a lien

24  foreclosure.

25         (b)  For the abatement of an imminent hazard as

26  provided by s. 403.4154(4) and for the purpose of closing an

27  abandoned phosphogypsum stack system and carrying out

28  postclosure care as provided by s. 403.4154(6).

29         (c)  For the purpose of funding basic management or

30  protection of reclaimed, restored, or preserved phosphate

31  lands:

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 1         1.  Which have wildlife habitat value as determined by

 2  the Bureau of Mine Reclamation;

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

 4  public agency or a private, nonprofit land conservation and

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

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

 7         3.  For which other management funding options are not

 8  available.

 9  

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

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

12  available funds to provide a higher level of management for

13  such lands.

14         (d)  For the sole purpose of funding the department's

15  implementation of:

16         1.  The NPDES permitting program authorized by s.

17  403.0885, as it applies to phosphate mining and beneficiation

18  facilities, phosphate fertilizer production facilities, and

19  phosphate loading and handling facilities;

20         2.  The regulation of dams in accordance with

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

22         3.  The phosphogypsum management program pursuant to s.

23  403.4154 and department rule 62-673, Florida Administrative

24  Code.

25         (6)  Should the nonmandatory land reclamation program

26  encumber all the funds in the Nonmandatory Land Reclamation

27  Trust Fund except those reserved by subsection (5) prior to

28  funding all the reclamation applications for eligible parcels,

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

30  program to the extent required to complete the reclamation of

31  

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 1  all eligible parcels for which the department has received

 2  applications.

 3         (7)  The department may not accept any applications for

 4  nonmandatory land reclamation programs after January 1, 2005.

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

 6  sufficiency of the Nonmandatory Land Reclamation Trust Fund to

 7  support the stated objectives and report to the secretary

 8  annually with recommendations as appropriate.

 9         (9)  For the 2003-2004 fiscal year only,

10  notwithstanding the provisions of subsections (5) and (6), the

11  department is authorized to expend the moneys appropriated in

12  the General Appropriations Act for the abatement of imminent

13  hazards caused by, and for the closure of, abandoned

14  phosphogypsum stack systems as provided in subsections (3) and

15  (5) of s. 403.4154, respectively. This subsection expires July

16  1, 2004.

17  

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

19  or encumber nonmandatory reclamation projects in amounts

20  greater than $15 million.

21         Section 3.  Subsection (19) is added to section

22  373.414, Florida Statutes, to read:

23         373.414  Additional criteria for activities in surface

24  waters and wetlands.--

25         (19)(a)  Financial responsibility for wetlands

26  mitigation required by a permit issued pursuant to part IV for

27  phosphate mining operations shall be provided and must be

28  approved by the department prior to the initiation of mining

29  operations under the permit occurring. For permitted

30  activities occurring over a period of three years or more of

31  mining operations, the financial responsibility demonstration

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    Florida Senate - 2005                            CS for SB 486
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 1  shall be in an amount equal to 110 percent of the estimated

 2  mitigation costs for wetlands affected in the first year of

 3  operation under the permit, and shall be updated annually to

 4  provide an amount equal to 110 percent of the estimated

 5  mitigation costs for the next year of operations under the

 6  permit.

 7         (b)  The mechanisms for providing financial

 8  responsibility pursuant to the permit shall, at the discretion

 9  of the applicant, include the following:

10         1.  Cash or cash equivalent deposited in an escrow

11  account.

12         2.  Irrevocable letter of credit.

13         3.  Performance bond.

14         4.  Trust fund agreement.

15         5.  Guarantee bond.

16         6.  Insurance certificate.

17         7.  A demonstration that the applicant meets the

18  financial test and corporate guarantee requirements set forth

19  in 40 C.F.R. s. 264.143(f).

20         8.  A demonstration that the applicant meets the self

21  bonding provision set forth in 30 C.F.R. s. 800.23.

22  

23  The financial responsibility mechanism for the permit must be

24  approved by the department during the permitting process.

25         (c)  Financial responsibility amounts shall be adjusted

26  annually to include estimated mitigation costs for wetlands

27  areas to be disturbed in the following year under the permit

28  and to release portions of the financial responsibility

29  mechanism in accordance with applicable rules.

30         (d)  The provisions of this subsection shall not apply

31  to any wetlands mitigation that is required pursuant to a

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 1  permit or permits issued by the department or district prior

 2  to January 1, 2005.

 3         (e)  Nothing provided herein supersedes or modifies the

 4  financial responsibility requirements of s. 378.209.

 5         Section 4.  This act shall take effect July 1, 2005.

 6  

 7          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 8                         Senate Bill 486

 9                                 

10  The committee substitute provides that financial
    responsibility must be provided for permitted phosphate mining
11  activities that affect wetlands. In cases where the permitted
    activities cover a period of 3 years or more, the financial
12  responsibility must equal 110 percent of the estimated
    mitigation costs for the first year of wetlands impacts. The
13  financial responsibility costs are to be updated annually to
    include the following year of impacts.
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