| 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 |
|
| 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 |
|
| 53 | Be It Enacted by the Legislature of the State of Florida: |
| 54 |
|
| 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 |
|
| 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 |
|
| 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. |