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A bill to be entitled

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An act relating to cleanup of sites contaminated by

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petroleum; amending s. 376.3071, F.S.; increasing public

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funding for the restoration of certain sites contaminated by

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petroleum; providing criteria concerning the sites that are

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eligible for additional funds; prohibiting reimbursements

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for expenses incurred outside of the petroleum cleanup

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preapproval program administered by the Department of

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Environmental Protection; amending s. 376.30711, F.S.;

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providing requirements concerning preapproved site

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rehabilitation agreements that govern submittal of invoices

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to the department and payment of subcontractors; providing

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that an exemption from requirements concerning payments to

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subcontractors and suppliers does not apply to payments

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associated with such preapproved agreements; amending s.

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376.3072, F.S., relating to the Florida Petroleum Liability

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and Restoration Insurance Program; increasing the amount of

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funds available under the insurance program for certain

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incidents or discharges; providing criteria concerning the

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sites that are eligible for additional funds; prohibiting

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reimbursements for expenses incurred outside the petroleum

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cleanup preapproval program administered by the Department

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of Environmental Protection; providing an effective date.

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     WHEREAS, ss. 376.3071 and 376.3072, Florida Statutes,

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provide restoration funding assistance for the clean up of

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petroleum discharges at facilities that are regulated by the

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petroleum-storage-tank rules of the Department of Environmental

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Protection, and

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     WHEREAS, ss. 376.3071(13) and 376.3072, Florida Statutes,

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establish caps for restoration funding assistance, with complete

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phase out of assistance for new discharges beginning January 1,

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1995, or January 1, 1999, and

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     WHEREAS, restoration funding assistance established under

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ss. 376.3071(13) and 376.3072, Florida Statutes, has been eroded

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in part by inflation, and

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     WHEREAS, repeated changes in funding levels for restoration

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assistance due to s. 376.30711, Florida Statutes, caused erosion

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in part of restoration funding assistance because of the

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necessity to resample sites where funding was restored, and

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     WHEREAS, the inability to assign restoration funding to

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sites having low priority-ranking scores established under s.

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376.3071(5), Florida Statutes, has allowed contamination at some

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sites to migrate, thereby resulting in more expensive remediation

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of such sites, and

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     WHEREAS, the Legislature intends to increase restoration

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funding assistance caps established under ss. 376.3071(13) and

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376.3072, Florida Statutes, to compensate for the reduction in

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funding due to the erosion of restoration funding assistance,

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NOW, THEREFORE,

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

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     Section 1.  Paragraph (b) of subsection (13) of section

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376.3071, Florida Statutes, is amended to read:

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     376.3071  Inland Protection Trust Fund; creation; purposes;

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funding.--

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     (13)  PETROLEUM CLEANUP PARTICIPATION PROGRAM.--To encourage

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detection, reporting, and cleanup of contamination caused by

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discharges of petroleum or petroleum products, the department

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shall, within the guidelines established in this subsection,

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implement a cost-sharing cleanup program to provide

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rehabilitation funding assistance for all property contaminated

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by discharges of petroleum or petroleum products occurring before

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January 1, 1995, subject to a copayment provided for in a

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preapproved site rehabilitation agreement. Eligibility shall be

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subject to an annual appropriation from the Inland Protection

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Trust Fund. Additionally, funding for eligible sites shall be

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contingent upon annual appropriation in subsequent years. Such

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continued state funding shall not be deemed an entitlement or a

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vested right under this subsection. Eligibility in the program

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shall be notwithstanding any other provision of law, consent

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order, order, judgment, or ordinance to the contrary.

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     (b)  Subject to annual appropriation from the Inland

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Protection Trust Fund, sites meeting the criteria of this

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subsection are eligible for up to $400,000 $300,000 of site

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rehabilitation funding assistance in priority order pursuant to

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subsection (5) and s. 376.30711. Sites meeting the criteria of

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this subsection for which a site rehabilitation completion order

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was issued prior to June 1, 2008, do not qualify for the 2008

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increase in site rehabilitation funding assistance and are bound

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by the pre-June 1, 2008, limits. Sites meeting the criteria of

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this subsection for which a site rehabilitation completion order

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was not issued prior to June 1, 2008, regardless of whether they

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have previously transitioned to nonstate-funded cleanup status,

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may continue state-funded cleanup pursuant to s. 376.30711 until

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a site rehabilitation completion order is issued or the increased

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site rehabilitation funding assistance limit is reached,

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whichever occurs first. At no time shall expenses incurred

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outside the Preapproval Program provisions of s. 376.30711 be

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reimbursable.

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     Section 2.  Subsection (5) of section 376.30711, Florida

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Statutes, is amended to read:

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     376.30711  Preapproved site rehabilitation, effective March

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29, 1995.--

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     (5)(a)  Any person who performs the conditions of a

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preapproved site rehabilitation agreement, pursuant to the

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provisions of this section and s. 376.3071(5), may file invoices

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with the department for payment within the schedule and for the

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services described in the preapproved site rehabilitation

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agreement. Such invoices for payment must be submitted to the

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department on forms provided by the department, together with

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evidence documenting that preapproved activities were conducted

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or completed in accordance with the preapproved authorization.

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Provided there are sufficient unencumbered funds available in the

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Inland Protection Trust Fund which have been appropriated for

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expenditure by the Legislature and provided all of the terms of

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the preapproved site rehabilitation agreement have been met,

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invoices for payment shall be paid consistent with the provisions

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of s. 215.422. After an applicant has submitted its invoices to

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the department and before payment is made, the contractor may

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assign its right to payment to any other person, without recourse

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of the assignee or assignor to the state, and in such cases the

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assignee shall be paid consistent with the provisions of s.

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215.422. Prior notice of the assignment and assignment

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information shall be made to the department, which notice shall

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be signed and notarized by the assigning party. The department

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shall not have the authority to regulate private financial

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transactions by which an applicant seeks to account for working

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capital or the time value of money, unless charges associated

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with such transactions are added as a separate charge in an

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invoice.

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     (b) The contractor shall submit an invoice to the

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department within 30 days after the date of the department's

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written acceptance of each interim deliverable or written

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approval of the final deliverable specified in a preapproved site

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rehabilitation agreement.

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     (c)(b) Payments shall be made by the department based on

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the terms of a contract for site rehabilitation work. The

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department may, based on its experience and the past performance

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and concerns regarding a contractor, retain up to 25 percent of

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the contracted amount or use performance bonds to assure

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performance. The amount of retainage or performance bond or

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bonds, as well as the terms and conditions, shall be a part of

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the site-specific performance-based contract.

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     (d) Contractors or persons to which the contractor has

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assigned its right to payment pursuant to paragraph (a) shall

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make prompt payment to subcontractors and suppliers for their

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costs associated with a preapproved site rehabilitation agreement

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pursuant to s. 287.0585(1).

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     (e) The exemption in s. 287.0585(2) shall not apply to

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payments associated with a preapproved site rehabilitation

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agreement.

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     (f)(c) The department shall provide certification within 30

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days after notification from a contractor that the terms of the

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contract for site rehabilitation work have been completed.

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Failure of the department to do so shall not constitute a default

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certification of completion. The department also may withhold

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payment if the validity or accuracy of the contractor's invoices

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or supporting documents is in question.

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     (g)(d) Nothing in this section shall be construed to

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authorize payment to any person for costs of contaminated soil

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treatment or disposal that does not meet the applicable rules of

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this state for such treatment or disposal, including all general

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permitting, state air emission standards, monitoring, sampling,

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and reporting rules more specifically described in department

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rules.

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     (h)(e) If any contractor fails to perform, as determined by

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the department, contractual duties for site rehabilitation

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program tasks, the department shall terminate the contractor's

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eligibility for participation in the program.

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     (i)(f) The contractor responsible for conducting site

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rehabilitation shall keep and preserve suitable records in

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accordance with the provisions of s. 376.3071(12)(e).

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     Section 3.  Paragraphs (a), (d), and (e) of subsection (2)

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of section 376.3072, Florida Statutes, are amended to read:

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     376.3072  Florida Petroleum Liability and Restoration

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Insurance Program.--

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     (2)(a)  Any owner or operator of a petroleum storage system

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may become an insured in the restoration insurance program at a

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facility provided:

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     1.  A site at which an incident has occurred shall be

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eligible for restoration if the insured is a participant in the

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third-party liability insurance program or otherwise meets

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applicable financial responsibility requirements. After July 1,

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1993, the insured must also provide the required excess insurance

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coverage or self-insurance for restoration to achieve the

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financial responsibility requirements of 40 C.F.R. s. 280.97,

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subpart H, not covered by paragraph (d).

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     2.  A site which had a discharge reported prior to January

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1, 1989, for which notice was given pursuant to s. 376.3071(9) or

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(12), and which is ineligible for the third-party liability

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insurance program solely due to that discharge shall be eligible

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for participation in the restoration program for any incident

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occurring on or after January 1, 1989, in accordance with

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subsection (3). Restoration funding for an eligible contaminated

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site will be provided without participation in the third-party

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liability insurance program until the site is restored as

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required by the department or until the department determines

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that the site does not require restoration.

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     3.  Notwithstanding paragraph (b), a site where an

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application is filed with the department prior to January 1,

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1995, where the owner is a small business under s. 288.703(1), a

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state community college with less than 2,500 FTE, a religious

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institution as defined by s. 212.08(7)(m), a charitable

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institution as defined by s. 212.08(7)(p), or a county or

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municipality with a population of less than 50,000, shall be

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eligible for up to $400,000 $300,000 of eligible restoration

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costs, less a deductible of $10,000 for small businesses,

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eligible community colleges, and religious or charitable

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institutions, and $30,000 for eligible counties and

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municipalities, provided that:

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     a.  Except as provided in sub-subparagraph e., the facility

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was in compliance with department rules at the time of the

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discharge.

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     b.  The owner or operator has, upon discovery of a

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discharge, promptly reported the discharge to the department, and

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drained and removed the system from service, if necessary.

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     c.  The owner or operator has not intentionally caused or

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concealed a discharge or disabled leak detection equipment.

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     d.  The owner or operator proceeds to complete initial

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remedial action as defined by department rules.

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     e.  The owner or operator, if required and if it has not

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already done so, applies for third-party liability coverage for

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the facility within 30 days of receipt of an eligibility order

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issued by the department pursuant to this provision.

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However, the department may consider in-kind services from

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eligible counties and municipalities in lieu of the $30,000

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deductible. The cost of conducting initial remedial action as

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defined by department rules shall be an eligible restoration cost

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pursuant to this provision.

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     4.a.  By January 1, 1997, facilities at sites with existing

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contamination shall be required to have methods of release

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detection to be eligible for restoration insurance coverage for

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new discharges subject to department rules for secondary

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containment. Annual storage system testing, in conjunction with

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inventory control, shall be considered to be a method of release

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detection until the later of December 22, 1998, or 10 years after

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the date of installation or the last upgrade. Other methods of

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release detection for storage tanks which meet such requirement

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are:

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     (I)  Interstitial monitoring of tank and integral piping

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secondary containment systems;

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     (II)  Automatic tank gauging systems; or

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     (III)  A statistical inventory reconciliation system with a

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tank test every 3 years.

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     b.  For pressurized integral piping systems, the owner or

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operator must use:

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     (I)  An automatic in-line leak detector with flow

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restriction meeting the requirements of department rules used in

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conjunction with an annual tightness or pressure test; or

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     (II)  An automatic in-line leak detector with electronic

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flow shut-off meeting the requirements of department rules.

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     c.  For suction integral piping systems, the owner or

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operator must use:

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     (I)  A single check valve installed directly below the

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suction pump, provided there are no other valves between the

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dispenser and the tank; or

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     (II)  An annual tightness test or other approved test.

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     d.  Owners of facilities with existing contamination that

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install internal release detection systems in accordance with

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sub-subparagraph a. shall permanently close their external

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groundwater and vapor monitoring wells in accordance with

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department rules by December 31, 1998. Upon installation of the

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internal release detection system, these wells shall be secured

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and taken out of service until permanent closure.

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     e.  Facilities with vapor levels of contamination meeting

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the requirements of or below the concentrations specified in the

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performance standards for release detection methods specified in

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department rules may continue to use vapor monitoring wells for

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release detection.

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     f.  The department may approve other methods of release

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detection for storage tanks and integral piping which have at

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least the same capability to detect a new release as the methods

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specified in this subparagraph.

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     (d)1.  With respect to eligible incidents reported to the

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department prior to July 1, 1992, the restoration insurance

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program shall provide up to $1.2 $1 million of restoration for

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each incident and shall have an annual aggregate limit of $2

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million of restoration per facility.

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     2.  For any site at which a discharge is reported on or

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after July 1, 1992, and for which restoration coverage is

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requested, the department shall pay for restoration in accordance

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with the following schedule:

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     a.  For discharges reported to the department from July 1,

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1992, to June 30, 1993, the department shall pay up to $1.2 $1

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million of eligible restoration costs, less a $1,000 deductible

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per incident.

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     b.  For discharges reported to the department from July 1,

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1993, to December 31, 1993, the department shall pay up to $1.2

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$1 million of eligible restoration costs, less a $5,000

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deductible per incident. However, if, prior to the date the

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discharge is reported and by September 1, 1993, the owner or

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operator can demonstrate financial responsibility in effect in

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accordance with 40 C.F.R. s. 280.97, subpart H, for coverage

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under sub-subparagraph c., the deductible will be $500. The $500

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deductible shall apply for a period of 1 one year from the

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effective date of a policy or other form of financial

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responsibility obtained and in effect by September 1, 1993.

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     c.  For discharges reported to the department from January

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1, 1994, to December 31, 1996, the department shall pay up to

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$400,000 $300,000 of eligible restoration costs, less a

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deductible of $10,000.

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     d.  For discharges reported to the department from January

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1, 1997, to December 31, 1998, the department shall pay up to

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$300,000 $150,000 of eligible restoration costs, less a

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deductible of $10,000.

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     e.  Beginning January 1, 1999, no restoration coverage shall

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be provided.

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     f.  In addition, a supplemental deductible shall be added as

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follows:

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     (I)  A supplemental deductible of $5,000 if the owner or

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operator fails to report a suspected release within 1 working day

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after discovery.

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     (II)  A supplemental deductible of $10,000 if the owner or

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operator, within 3 days after discovery of an actual new

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discharge, fails to take steps to test or empty the storage

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system and complete such activity within 7 days.

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     (III)  A supplemental deductible of $25,000 if the owner or

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operator, after testing or emptying the storage system, fails to

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proceed within 24 hours thereafter to abate the known source of

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the discharge or to begin free product removal relating to an

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actual new discharge and fails to complete abatement within 72

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hours, although free product recovery may be ongoing.

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     (e)  The following are not eligible to participate in the

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Petroleum Liability and Restoration Insurance Program:

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     1.  Sites owned or operated by the Federal Government during

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the time the facility was in operation.

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     2.  Sites where the owner or operator has denied the

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department reasonable site access.

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     3.  Any third-party claims relating to damages caused by

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discharges discovered prior to January 1, 1989.

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     4.  Any incidents discovered prior to January 1, 1989, are

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not eligible to participate in the restoration insurance program.

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However, this exclusion shall not be construed to prevent a new

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incident at the same location from participation in the

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restoration insurance program if the owner or operator is

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otherwise eligible. This exclusion shall not affect eligibility

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for participation in the EDI program.

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Sites meeting the criteria of this subsection for which a site

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rehabilitation completion order was issued prior to June 1, 2008,

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do not qualify for the 2008 increase in site rehabilitation

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funding assistance and are bound by the pre-June 1, 2008, limits.

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Sites meeting the criteria of this subsection for which a site

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rehabilitation completion order was not issued prior to June 1,

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2008, regardless of whether or not they have previously

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transitioned to nonstate-funded cleanup status, may continue

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state-funded cleanup pursuant to s. 376.30711 until a site

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rehabilitation completion order is issued or the increased site

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rehabilitation funding assistance limit is reached, whichever

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occurs first. At no time shall expenses incurred outside the

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Preapproval Program provisions of s. 376.30711, be reimbursable.

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     Section 4.  The act shall take effect July 1, 2008.