1 | A bill to be entitled |
2 | An act relating to cleanup of sites contaminated by |
3 | petroleum; amending s. 376.3071, F.S.; increasing public |
4 | funding for the restoration of certain sites contaminated |
5 | by petroleum; providing criteria for the sites eligible for |
6 | additional funds; prohibiting reimbursements for expenses |
7 | incurred outside the petroleum cleanup preapproved site |
8 | rehabilitation program administered by the Department of |
9 | Environmental Protection; amending s. 376.30711, F.S.; |
10 | providing requirements concerning preapproved site |
11 | rehabilitation agreements that govern submittal of invoices |
12 | to the department and payment of subcontractors; providing |
13 | that an exemption from requirements concerning payments to |
14 | subcontractors and suppliers does not apply to payments |
15 | associated with such preapproved agreements; amending s. |
16 | 376.3072, F.S., relating to the Florida Petroleum Liability |
17 | and Restoration Insurance Program; increasing the amount of |
18 | funds available under the insurance program for certain |
19 | incidents or discharges; providing criteria for the sites |
20 | eligible for additional funds; prohibiting reimbursements |
21 | for expenses incurred outside the petroleum cleanup |
22 | preapproved site rehabilitation program administered by the |
23 | Department of Environmental Protection; providing an |
24 | effective date. |
25 |
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26 | WHEREAS, ss. 376.3071 and 376.3072, Florida Statutes, |
27 | provide restoration funding assistance for the cleanup of |
28 | petroleum discharges at facilities that are regulated by the |
29 | petroleum storage tank rules of the Department of Environmental |
30 | Protection, and |
31 | WHEREAS, ss. 376.3071(13) and 376.3072, Florida Statutes, |
32 | establish caps for restoration funding assistance, with complete |
33 | phase out of assistance for new discharges beginning January 1, |
34 | 1995, or January 1, 1999, and |
35 | WHEREAS, restoration funding assistance established under |
36 | ss. 376.3071(13) and 376.3072, Florida Statutes, has been eroded |
37 | in part by inflation, and |
38 | WHEREAS, repeated changes in funding levels for restoration |
39 | assistance due to s. 376.30711, Florida Statutes, caused erosion |
40 | in part of restoration funding assistance because of the |
41 | necessity to resample sites where funding was restored, and |
42 | WHEREAS, the inability to assign restoration funding to |
43 | sites having low priority-ranking scores established under s. |
44 | 376.3071(5), Florida Statutes, has allowed contamination at some |
45 | sites to migrate, thereby resulting in more expensive |
46 | remediation of such sites, and |
47 | WHEREAS, the Legislature intends to increase restoration |
48 | funding assistance caps established under ss. 376.3071(13) and |
49 | 376.3072, Florida Statutes, to compensate for the reduction in |
50 | funding due to the erosion of restoration funding assistance, |
51 | NOW, THEREFORE, |
52 |
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53 | Be It Enacted by the Legislature of the State of Florida: |
54 |
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55 | Section 1. Paragraph (b) of subsection (13) of section |
56 | 376.3071, Florida Statutes, is amended to read: |
57 | 376.3071 Inland Protection Trust Fund; creation; purposes; |
58 | funding.-- |
59 | (13) PETROLEUM CLEANUP PARTICIPATION PROGRAM.--To |
60 | encourage detection, reporting, and cleanup of contamination |
61 | caused by discharges of petroleum or petroleum products, the |
62 | department shall, within the guidelines established in this |
63 | subsection, implement a cost-sharing cleanup program to provide |
64 | rehabilitation funding assistance for all property contaminated |
65 | by discharges of petroleum or petroleum products occurring |
66 | before January 1, 1995, subject to a copayment provided for in a |
67 | preapproved site rehabilitation agreement. Eligibility shall be |
68 | subject to an annual appropriation from the Inland Protection |
69 | Trust Fund. Additionally, funding for eligible sites shall be |
70 | contingent upon annual appropriation in subsequent years. Such |
71 | continued state funding shall not be deemed an entitlement or a |
72 | vested right under this subsection. Eligibility in the program |
73 | shall be notwithstanding any other provision of law, consent |
74 | order, order, judgment, or ordinance to the contrary. |
75 | (b) Subject to annual appropriation from the Inland |
76 | Protection Trust Fund, sites meeting the criteria of this |
77 | subsection are eligible for up to $400,000 $300,000 of site |
78 | rehabilitation funding assistance in priority order pursuant to |
79 | subsection (5) and s. 376.30711. Sites meeting the criteria of |
80 | this subsection for which a site rehabilitation completion order |
81 | was issued prior to June 1, 2008, do not qualify for the 2008 |
82 | increase in site rehabilitation funding assistance and are bound |
83 | by the pre-June 1, 2008, limits. Sites meeting the criteria of |
84 | this subsection for which a site rehabilitation completion order |
85 | was not issued prior to June 1, 2008, regardless of whether or |
86 | not they have previously transitioned to nonstate-funded cleanup |
87 | status, may continue state-funded cleanup pursuant to s. |
88 | 376.30711 until a site rehabilitation completion order is issued |
89 | or the increased site rehabilitation funding assistance limit is |
90 | reached, whichever occurs first. At no time shall expenses |
91 | incurred outside the preapproved site rehabilitation program |
92 | under s. 376.30711 be reimbursable. |
93 | Section 2. Subsection (5) of section 376.30711, Florida |
94 | Statutes, is amended to read: |
95 | 376.30711 Preapproved site rehabilitation, effective March |
96 | 29, 1995.-- |
97 | (5)(a) Any person who performs the conditions of a |
98 | preapproved site rehabilitation agreement, pursuant to the |
99 | provisions of this section and s. 376.3071(5), may file invoices |
100 | with the department for payment within the schedule and for the |
101 | services described in the preapproved site rehabilitation |
102 | agreement. Such invoices for payment must be submitted to the |
103 | department on forms provided by the department, together with |
104 | evidence documenting that preapproved activities were conducted |
105 | or completed in accordance with the preapproved authorization. |
106 | Provided there are sufficient unencumbered funds available in |
107 | the Inland Protection Trust Fund which have been appropriated |
108 | for expenditure by the Legislature and provided all of the terms |
109 | of the preapproved site rehabilitation agreement have been met, |
110 | invoices for payment shall be paid consistent with the |
111 | provisions of s. 215.422. After an applicant has submitted its |
112 | invoices to the department and before payment is made, the |
113 | contractor may assign its right to payment to any other person, |
114 | without recourse of the assignee or assignor to the state, and |
115 | in such cases the assignee shall be paid consistent with the |
116 | provisions of s. 215.422. Prior notice of the assignment and |
117 | assignment information shall be made to the department, which |
118 | notice shall be signed and notarized by the assigning party. The |
119 | department shall not have the authority to regulate private |
120 | financial transactions by which an applicant seeks to account |
121 | for working capital or the time value of money, unless charges |
122 | associated with such transactions are added as a separate charge |
123 | in an invoice. |
124 | (b) The contractor shall submit an invoice to the |
125 | department within 30 days after the date of the department's |
126 | written acceptance of each interim deliverable or written |
127 | approval of the final deliverable specified in a preapproved |
128 | site rehabilitation agreement. |
129 | (c)(b) Payments shall be made by the department based on |
130 | the terms of a contract for site rehabilitation work. The |
131 | department may, based on its experience and the past performance |
132 | and concerns regarding a contractor, retain up to 25 percent of |
133 | the contracted amount or use performance bonds to assure |
134 | performance. The amount of retainage or performance bond or |
135 | bonds, as well as the terms and conditions, shall be a part of |
136 | the site-specific performance-based contract. |
137 | (d) Contractors or persons to which the contractor has |
138 | assigned its right to payment pursuant to paragraph (a) shall |
139 | make prompt payment to subcontractors and suppliers for their |
140 | costs associated with a preapproved site rehabilitation |
141 | agreement pursuant to s. 287.0585(1). |
142 | (e) The exemption in s. 287.0585(2) shall not apply to |
143 | payments associated with a preapproved site rehabilitation |
144 | agreement. |
145 | (f)(c) The department shall provide certification within |
146 | 30 days after notification from a contractor that the terms of |
147 | the contract for site rehabilitation work have been completed. |
148 | Failure of the department to do so shall not constitute a |
149 | default certification of completion. The department also may |
150 | withhold payment if the validity or accuracy of the contractor's |
151 | invoices or supporting documents is in question. |
152 | (g)(d) Nothing in this section shall be construed to |
153 | authorize payment to any person for costs of contaminated soil |
154 | treatment or disposal that does not meet the applicable rules of |
155 | this state for such treatment or disposal, including all general |
156 | permitting, state air emission standards, monitoring, sampling, |
157 | and reporting rules more specifically described in department |
158 | rules. |
159 | (h)(e) If any contractor fails to perform, as determined |
160 | by the department, contractual duties for site rehabilitation |
161 | program tasks, the department shall terminate the contractor's |
162 | eligibility for participation in the program. |
163 | (i)(f) The contractor responsible for conducting site |
164 | rehabilitation shall keep and preserve suitable records in |
165 | accordance with the provisions of s. 376.3071(12)(e). |
166 | Section 3. Paragraphs (a), (d), and (e) of subsection (2) |
167 | of section 376.3072, Florida Statutes, are amended to read: |
168 | 376.3072 Florida Petroleum Liability and Restoration |
169 | Insurance Program.-- |
170 | (2)(a) Any owner or operator of a petroleum storage system |
171 | may become an insured in the restoration insurance program at a |
172 | facility provided: |
173 | 1. A site at which an incident has occurred shall be |
174 | eligible for restoration if the insured is a participant in the |
175 | third-party liability insurance program or otherwise meets |
176 | applicable financial responsibility requirements. After July 1, |
177 | 1993, the insured must also provide the required excess |
178 | insurance coverage or self-insurance for restoration to achieve |
179 | the financial responsibility requirements of 40 C.F.R. s. |
180 | 280.97, subpart H, not covered by paragraph (d). |
181 | 2. A site which had a discharge reported prior to January |
182 | 1, 1989, for which notice was given pursuant to s. 376.3071(9) |
183 | or (12), and which is ineligible for the third-party liability |
184 | insurance program solely due to that discharge shall be eligible |
185 | for participation in the restoration program for any incident |
186 | occurring on or after January 1, 1989, in accordance with |
187 | subsection (3). Restoration funding for an eligible contaminated |
188 | site will be provided without participation in the third-party |
189 | liability insurance program until the site is restored as |
190 | required by the department or until the department determines |
191 | that the site does not require restoration. |
192 | 3. Notwithstanding paragraph (b), a site where an |
193 | application is filed with the department prior to January 1, |
194 | 1995, where the owner is a small business under s. 288.703(1), a |
195 | state community college with less than 2,500 FTE, a religious |
196 | institution as defined by s. 212.08(7)(m), a charitable |
197 | institution as defined by s. 212.08(7)(p), or a county or |
198 | municipality with a population of less than 50,000, shall be |
199 | eligible for up to $400,000 $300,000 of eligible restoration |
200 | costs, less a deductible of $10,000 for small businesses, |
201 | eligible community colleges, and religious or charitable |
202 | institutions, and $30,000 for eligible counties and |
203 | municipalities, provided that: |
204 | a. Except as provided in sub-subparagraph e., the facility |
205 | was in compliance with department rules at the time of the |
206 | discharge. |
207 | b. The owner or operator has, upon discovery of a |
208 | discharge, promptly reported the discharge to the department, |
209 | and drained and removed the system from service, if necessary. |
210 | c. The owner or operator has not intentionally caused or |
211 | concealed a discharge or disabled leak detection equipment. |
212 | d. The owner or operator proceeds to complete initial |
213 | remedial action as defined by department rules. |
214 | e. The owner or operator, if required and if it has not |
215 | already done so, applies for third-party liability coverage for |
216 | the facility within 30 days of receipt of an eligibility order |
217 | issued by the department pursuant to this provision. |
218 |
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219 | However, the department may consider in-kind services from |
220 | eligible counties and municipalities in lieu of the $30,000 |
221 | deductible. The cost of conducting initial remedial action as |
222 | defined by department rules shall be an eligible restoration |
223 | cost pursuant to this provision. |
224 | 4.a. By January 1, 1997, facilities at sites with existing |
225 | contamination shall be required to have methods of release |
226 | detection to be eligible for restoration insurance coverage for |
227 | new discharges subject to department rules for secondary |
228 | containment. Annual storage system testing, in conjunction with |
229 | inventory control, shall be considered to be a method of release |
230 | detection until the later of December 22, 1998, or 10 years |
231 | after the date of installation or the last upgrade. Other |
232 | methods of release detection for storage tanks which meet such |
233 | requirement are: |
234 | (I) Interstitial monitoring of tank and integral piping |
235 | secondary containment systems; |
236 | (II) Automatic tank gauging systems; or |
237 | (III) A statistical inventory reconciliation system with a |
238 | tank test every 3 years. |
239 | b. For pressurized integral piping systems, the owner or |
240 | operator must use: |
241 | (I) An automatic in-line leak detector with flow |
242 | restriction meeting the requirements of department rules used in |
243 | conjunction with an annual tightness or pressure test; or |
244 | (II) An automatic in-line leak detector with electronic |
245 | flow shut-off meeting the requirements of department rules. |
246 | c. For suction integral piping systems, the owner or |
247 | operator must use: |
248 | (I) A single check valve installed directly below the |
249 | suction pump, provided there are no other valves between the |
250 | dispenser and the tank; or |
251 | (II) An annual tightness test or other approved test. |
252 | d. Owners of facilities with existing contamination that |
253 | install internal release detection systems in accordance with |
254 | sub-subparagraph a. shall permanently close their external |
255 | groundwater and vapor monitoring wells in accordance with |
256 | department rules by December 31, 1998. Upon installation of the |
257 | internal release detection system, these wells shall be secured |
258 | and taken out of service until permanent closure. |
259 | e. Facilities with vapor levels of contamination meeting |
260 | the requirements of or below the concentrations specified in the |
261 | performance standards for release detection methods specified in |
262 | department rules may continue to use vapor monitoring wells for |
263 | release detection. |
264 | f. The department may approve other methods of release |
265 | detection for storage tanks and integral piping which have at |
266 | least the same capability to detect a new release as the methods |
267 | specified in this subparagraph. |
268 | (d)1. With respect to eligible incidents reported to the |
269 | department prior to July 1, 1992, the restoration insurance |
270 | program shall provide up to $1.2 $1 million of restoration for |
271 | each incident and shall have an annual aggregate limit of $2 |
272 | million of restoration per facility. |
273 | 2. For any site at which a discharge is reported on or |
274 | after July 1, 1992, and for which restoration coverage is |
275 | requested, the department shall pay for restoration in |
276 | accordance with the following schedule: |
277 | a. For discharges reported to the department from July 1, |
278 | 1992, to June 30, 1993, the department shall pay up to $1.2 $1 |
279 | million of eligible restoration costs, less a $1,000 deductible |
280 | per incident. |
281 | b. For discharges reported to the department from July 1, |
282 | 1993, to December 31, 1993, the department shall pay up to $1.2 |
283 | $1 million of eligible restoration costs, less a $5,000 |
284 | deductible per incident. However, if, prior to the date the |
285 | discharge is reported and by September 1, 1993, the owner or |
286 | operator can demonstrate financial responsibility in effect in |
287 | accordance with 40 C.F.R. s. 280.97, subpart H, for coverage |
288 | under sub-subparagraph c., the deductible will be $500. The $500 |
289 | deductible shall apply for a period of 1 one year from the |
290 | effective date of a policy or other form of financial |
291 | responsibility obtained and in effect by September 1, 1993. |
292 | c. For discharges reported to the department from January |
293 | 1, 1994, to December 31, 1996, the department shall pay up to |
294 | $400,000 $300,000 of eligible restoration costs, less a |
295 | deductible of $10,000. |
296 | d. For discharges reported to the department from January |
297 | 1, 1997, to December 31, 1998, the department shall pay up to |
298 | $300,000 $150,000 of eligible restoration costs, less a |
299 | deductible of $10,000. |
300 | e. Beginning January 1, 1999, no restoration coverage |
301 | shall be provided. |
302 | f. In addition, a supplemental deductible shall be added |
303 | as follows: |
304 | (I) A supplemental deductible of $5,000 if the owner or |
305 | operator fails to report a suspected release within 1 working |
306 | day after discovery. |
307 | (II) A supplemental deductible of $10,000 if the owner or |
308 | operator, within 3 days after discovery of an actual new |
309 | discharge, fails to take steps to test or empty the storage |
310 | system and complete such activity within 7 days. |
311 | (III) A supplemental deductible of $25,000 if the owner or |
312 | operator, after testing or emptying the storage system, fails to |
313 | proceed within 24 hours thereafter to abate the known source of |
314 | the discharge or to begin free product removal relating to an |
315 | actual new discharge and fails to complete abatement within 72 |
316 | hours, although free product recovery may be ongoing. |
317 | (e) The following are not eligible to participate in the |
318 | Petroleum Liability and Restoration Insurance Program: |
319 | 1. Sites owned or operated by the Federal Government |
320 | during the time the facility was in operation. |
321 | 2. Sites where the owner or operator has denied the |
322 | department reasonable site access. |
323 | 3. Any third-party claims relating to damages caused by |
324 | discharges discovered prior to January 1, 1989. |
325 | 4. Any incidents discovered prior to January 1, 1989, are |
326 | not eligible to participate in the restoration insurance |
327 | program. However, this exclusion shall not be construed to |
328 | prevent a new incident at the same location from participation |
329 | in the restoration insurance program if the owner or operator is |
330 | otherwise eligible. This exclusion shall not affect eligibility |
331 | for participation in the EDI program. |
332 |
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333 | Sites meeting the criteria of this subsection for which a site |
334 | rehabilitation completion order was issued prior to June 1, |
335 | 2008, do not qualify for the 2008 increase in site |
336 | rehabilitation funding assistance and are bound by the pre-June |
337 | 1, 2008, limits. Sites meeting the criteria of this subsection |
338 | for which a site rehabilitation completion order was not issued |
339 | prior to June 1, 2008, regardless of whether or not they have |
340 | previously transitioned to nonstate-funded cleanup status, may |
341 | continue state-funded cleanup pursuant to s. 376.30711 until a |
342 | site rehabilitation completion order is issued or the increased |
343 | site rehabilitation funding assistance limit is reached, |
344 | whichever occurs first. At no time shall expenses incurred |
345 | outside the preapproved site rehabilitation program under s. |
346 | 376.30711 be reimbursable. |
347 | Section 4. The act shall take effect July 1, 2008. |