HB 961

1
A bill to be entitled
2An act relating to cleanup of sites contaminated by
3petroleum; amending s. 376.3071, F.S.; increasing public
4funding for the restoration of certain sites contaminated
5by petroleum; providing criteria for the sites eligible for
6additional funds; prohibiting reimbursements for expenses
7incurred outside the petroleum cleanup preapproved site
8rehabilitation program administered by the Department of
9Environmental Protection; amending s. 376.30711, F.S.;
10providing requirements concerning preapproved site
11rehabilitation agreements that govern submittal of invoices
12to the department and payment of subcontractors; providing
13that an exemption from requirements concerning payments to
14subcontractors and suppliers does not apply to payments
15associated with such preapproved agreements; amending s.
16376.3072, F.S., relating to the Florida Petroleum Liability
17and Restoration Insurance Program; increasing the amount of
18funds available under the insurance program for certain
19incidents or discharges; providing criteria for the sites
20eligible for additional funds; prohibiting reimbursements
21for expenses incurred outside the petroleum cleanup
22preapproved site rehabilitation program administered by the
23Department of Environmental Protection; providing an
24effective date.
25
26     WHEREAS, ss. 376.3071 and 376.3072, Florida Statutes,
27provide restoration funding assistance for the cleanup of
28petroleum discharges at facilities that are regulated by the
29petroleum storage tank rules of the Department of Environmental
30Protection, and
31     WHEREAS, ss. 376.3071(13) and 376.3072, Florida Statutes,
32establish caps for restoration funding assistance, with complete
33phase out of assistance for new discharges beginning January 1,
341995, or January 1, 1999, and
35     WHEREAS, restoration funding assistance established under
36ss. 376.3071(13) and 376.3072, Florida Statutes, has been eroded
37in part by inflation, and
38     WHEREAS, repeated changes in funding levels for restoration
39assistance due to s. 376.30711, Florida Statutes, caused erosion
40in part of restoration funding assistance because of the
41necessity to resample sites where funding was restored, and
42     WHEREAS, the inability to assign restoration funding to
43sites having low priority-ranking scores established under s.
44376.3071(5), Florida Statutes, has allowed contamination at some
45sites to migrate, thereby resulting in more expensive
46remediation of such sites, and
47     WHEREAS, the Legislature intends to increase restoration
48funding assistance caps established under ss. 376.3071(13) and
49376.3072, Florida Statutes, to compensate for the reduction in
50funding due to the erosion of restoration funding assistance,
51NOW, THEREFORE,
52
53Be It Enacted by the Legislature of the State of Florida:
54
55     Section 1.  Paragraph (b) of subsection (13) of section
56376.3071, Florida Statutes, is amended to read:
57     376.3071  Inland Protection Trust Fund; creation; purposes;
58funding.--
59     (13)  PETROLEUM CLEANUP PARTICIPATION PROGRAM.--To
60encourage detection, reporting, and cleanup of contamination
61caused by discharges of petroleum or petroleum products, the
62department shall, within the guidelines established in this
63subsection, implement a cost-sharing cleanup program to provide
64rehabilitation funding assistance for all property contaminated
65by discharges of petroleum or petroleum products occurring
66before January 1, 1995, subject to a copayment provided for in a
67preapproved site rehabilitation agreement. Eligibility shall be
68subject to an annual appropriation from the Inland Protection
69Trust Fund. Additionally, funding for eligible sites shall be
70contingent upon annual appropriation in subsequent years. Such
71continued state funding shall not be deemed an entitlement or a
72vested right under this subsection. Eligibility in the program
73shall be notwithstanding any other provision of law, consent
74order, order, judgment, or ordinance to the contrary.
75     (b)  Subject to annual appropriation from the Inland
76Protection Trust Fund, sites meeting the criteria of this
77subsection are eligible for up to $400,000 $300,000 of site
78rehabilitation funding assistance in priority order pursuant to
79subsection (5) and s. 376.30711. Sites meeting the criteria of
80this subsection for which a site rehabilitation completion order
81was issued prior to June 1, 2008, do not qualify for the 2008
82increase in site rehabilitation funding assistance and are bound
83by the pre-June 1, 2008, limits. Sites meeting the criteria of
84this subsection for which a site rehabilitation completion order
85was not issued prior to June 1, 2008, regardless of whether or
86not they have previously transitioned to nonstate-funded cleanup
87status, may continue state-funded cleanup pursuant to s.
88376.30711 until a site rehabilitation completion order is issued
89or the increased site rehabilitation funding assistance limit is
90reached, whichever occurs first. At no time shall expenses
91incurred outside the preapproved site rehabilitation program
92under s. 376.30711 be reimbursable.
93     Section 2.  Subsection (5) of section 376.30711, Florida
94Statutes, is amended to read:
95     376.30711  Preapproved site rehabilitation, effective March
9629, 1995.--
97     (5)(a)  Any person who performs the conditions of a
98preapproved site rehabilitation agreement, pursuant to the
99provisions of this section and s. 376.3071(5), may file invoices
100with the department for payment within the schedule and for the
101services described in the preapproved site rehabilitation
102agreement. Such invoices for payment must be submitted to the
103department on forms provided by the department, together with
104evidence documenting that preapproved activities were conducted
105or completed in accordance with the preapproved authorization.
106Provided there are sufficient unencumbered funds available in
107the Inland Protection Trust Fund which have been appropriated
108for expenditure by the Legislature and provided all of the terms
109of the preapproved site rehabilitation agreement have been met,
110invoices for payment shall be paid consistent with the
111provisions of s. 215.422. After an applicant has submitted its
112invoices to the department and before payment is made, the
113contractor may assign its right to payment to any other person,
114without recourse of the assignee or assignor to the state, and
115in such cases the assignee shall be paid consistent with the
116provisions of s. 215.422. Prior notice of the assignment and
117assignment information shall be made to the department, which
118notice shall be signed and notarized by the assigning party. The
119department shall not have the authority to regulate private
120financial transactions by which an applicant seeks to account
121for working capital or the time value of money, unless charges
122associated with such transactions are added as a separate charge
123in an invoice.
124     (b)  The contractor shall submit an invoice to the
125department within 30 days after the date of the department's
126written acceptance of each interim deliverable or written
127approval of the final deliverable specified in a preapproved
128site rehabilitation agreement.
129     (c)(b)  Payments shall be made by the department based on
130the terms of a contract for site rehabilitation work. The
131department may, based on its experience and the past performance
132and concerns regarding a contractor, retain up to 25 percent of
133the contracted amount or use performance bonds to assure
134performance. The amount of retainage or performance bond or
135bonds, as well as the terms and conditions, shall be a part of
136the site-specific performance-based contract.
137     (d)  Contractors or persons to which the contractor has
138assigned its right to payment pursuant to paragraph (a) shall
139make prompt payment to subcontractors and suppliers for their
140costs associated with a preapproved site rehabilitation
141agreement pursuant to s. 287.0585(1).
142     (e)  The exemption in s. 287.0585(2) shall not apply to
143payments associated with a preapproved site rehabilitation
144agreement.
145     (f)(c)  The department shall provide certification within
14630 days after notification from a contractor that the terms of
147the contract for site rehabilitation work have been completed.
148Failure of the department to do so shall not constitute a
149default certification of completion. The department also may
150withhold payment if the validity or accuracy of the contractor's
151invoices or supporting documents is in question.
152     (g)(d)  Nothing in this section shall be construed to
153authorize payment to any person for costs of contaminated soil
154treatment or disposal that does not meet the applicable rules of
155this state for such treatment or disposal, including all general
156permitting, state air emission standards, monitoring, sampling,
157and reporting rules more specifically described in department
158rules.
159     (h)(e)  If any contractor fails to perform, as determined
160by the department, contractual duties for site rehabilitation
161program tasks, the department shall terminate the contractor's
162eligibility for participation in the program.
163     (i)(f)  The contractor responsible for conducting site
164rehabilitation shall keep and preserve suitable records in
165accordance with the provisions of s. 376.3071(12)(e).
166     Section 3.  Paragraphs (a), (d), and (e) of subsection (2)
167of section 376.3072, Florida Statutes, are amended to read:
168     376.3072  Florida Petroleum Liability and Restoration
169Insurance Program.--
170     (2)(a)  Any owner or operator of a petroleum storage system
171may become an insured in the restoration insurance program at a
172facility provided:
173     1.  A site at which an incident has occurred shall be
174eligible for restoration if the insured is a participant in the
175third-party liability insurance program or otherwise meets
176applicable financial responsibility requirements. After July 1,
1771993, the insured must also provide the required excess
178insurance coverage or self-insurance for restoration to achieve
179the financial responsibility requirements of 40 C.F.R. s.
180280.97, subpart H, not covered by paragraph (d).
181     2.  A site which had a discharge reported prior to January
1821, 1989, for which notice was given pursuant to s. 376.3071(9)
183or (12), and which is ineligible for the third-party liability
184insurance program solely due to that discharge shall be eligible
185for participation in the restoration program for any incident
186occurring on or after January 1, 1989, in accordance with
187subsection (3). Restoration funding for an eligible contaminated
188site will be provided without participation in the third-party
189liability insurance program until the site is restored as
190required by the department or until the department determines
191that the site does not require restoration.
192     3.  Notwithstanding paragraph (b), a site where an
193application is filed with the department prior to January 1,
1941995, where the owner is a small business under s. 288.703(1), a
195state community college with less than 2,500 FTE, a religious
196institution as defined by s. 212.08(7)(m), a charitable
197institution as defined by s. 212.08(7)(p), or a county or
198municipality with a population of less than 50,000, shall be
199eligible for up to $400,000 $300,000 of eligible restoration
200costs, less a deductible of $10,000 for small businesses,
201eligible community colleges, and religious or charitable
202institutions, and $30,000 for eligible counties and
203municipalities, provided that:
204     a.  Except as provided in sub-subparagraph e., the facility
205was in compliance with department rules at the time of the
206discharge.
207     b.  The owner or operator has, upon discovery of a
208discharge, promptly reported the discharge to the department,
209and drained and removed the system from service, if necessary.
210     c.  The owner or operator has not intentionally caused or
211concealed a discharge or disabled leak detection equipment.
212     d.  The owner or operator proceeds to complete initial
213remedial action as defined by department rules.
214     e.  The owner or operator, if required and if it has not
215already done so, applies for third-party liability coverage for
216the facility within 30 days of receipt of an eligibility order
217issued by the department pursuant to this provision.
218
219However, the department may consider in-kind services from
220eligible counties and municipalities in lieu of the $30,000
221deductible. The cost of conducting initial remedial action as
222defined by department rules shall be an eligible restoration
223cost pursuant to this provision.
224     4.a.  By January 1, 1997, facilities at sites with existing
225contamination shall be required to have methods of release
226detection to be eligible for restoration insurance coverage for
227new discharges subject to department rules for secondary
228containment. Annual storage system testing, in conjunction with
229inventory control, shall be considered to be a method of release
230detection until the later of December 22, 1998, or 10 years
231after the date of installation or the last upgrade. Other
232methods of release detection for storage tanks which meet such
233requirement are:
234     (I)  Interstitial monitoring of tank and integral piping
235secondary containment systems;
236     (II)  Automatic tank gauging systems; or
237     (III)  A statistical inventory reconciliation system with a
238tank test every 3 years.
239     b.  For pressurized integral piping systems, the owner or
240operator must use:
241     (I)  An automatic in-line leak detector with flow
242restriction meeting the requirements of department rules used in
243conjunction with an annual tightness or pressure test; or
244     (II)  An automatic in-line leak detector with electronic
245flow shut-off meeting the requirements of department rules.
246     c.  For suction integral piping systems, the owner or
247operator must use:
248     (I)  A single check valve installed directly below the
249suction pump, provided there are no other valves between the
250dispenser and the tank; or
251     (II)  An annual tightness test or other approved test.
252     d.  Owners of facilities with existing contamination that
253install internal release detection systems in accordance with
254sub-subparagraph a. shall permanently close their external
255groundwater and vapor monitoring wells in accordance with
256department rules by December 31, 1998. Upon installation of the
257internal release detection system, these wells shall be secured
258and taken out of service until permanent closure.
259     e.  Facilities with vapor levels of contamination meeting
260the requirements of or below the concentrations specified in the
261performance standards for release detection methods specified in
262department rules may continue to use vapor monitoring wells for
263release detection.
264     f.  The department may approve other methods of release
265detection for storage tanks and integral piping which have at
266least the same capability to detect a new release as the methods
267specified in this subparagraph.
268     (d)1.  With respect to eligible incidents reported to the
269department prior to July 1, 1992, the restoration insurance
270program shall provide up to $1.2 $1 million of restoration for
271each incident and shall have an annual aggregate limit of $2
272million of restoration per facility.
273     2.  For any site at which a discharge is reported on or
274after July 1, 1992, and for which restoration coverage is
275requested, the department shall pay for restoration in
276accordance with the following schedule:
277     a.  For discharges reported to the department from July 1,
2781992, to June 30, 1993, the department shall pay up to $1.2 $1
279million of eligible restoration costs, less a $1,000 deductible
280per incident.
281     b.  For discharges reported to the department from July 1,
2821993, to December 31, 1993, the department shall pay up to $1.2
283$1 million of eligible restoration costs, less a $5,000
284deductible per incident. However, if, prior to the date the
285discharge is reported and by September 1, 1993, the owner or
286operator can demonstrate financial responsibility in effect in
287accordance with 40 C.F.R. s. 280.97, subpart H, for coverage
288under sub-subparagraph c., the deductible will be $500. The $500
289deductible shall apply for a period of 1 one year from the
290effective date of a policy or other form of financial
291responsibility obtained and in effect by September 1, 1993.
292     c.  For discharges reported to the department from January
2931, 1994, to December 31, 1996, the department shall pay up to
294$400,000 $300,000 of eligible restoration costs, less a
295deductible of $10,000.
296     d.  For discharges reported to the department from January
2971, 1997, to December 31, 1998, the department shall pay up to
298$300,000 $150,000 of eligible restoration costs, less a
299deductible of $10,000.
300     e.  Beginning January 1, 1999, no restoration coverage
301shall be provided.
302     f.  In addition, a supplemental deductible shall be added
303as follows:
304     (I)  A supplemental deductible of $5,000 if the owner or
305operator fails to report a suspected release within 1 working
306day after discovery.
307     (II)  A supplemental deductible of $10,000 if the owner or
308operator, within 3 days after discovery of an actual new
309discharge, fails to take steps to test or empty the storage
310system and complete such activity within 7 days.
311     (III)  A supplemental deductible of $25,000 if the owner or
312operator, after testing or emptying the storage system, fails to
313proceed within 24 hours thereafter to abate the known source of
314the discharge or to begin free product removal relating to an
315actual new discharge and fails to complete abatement within 72
316hours, although free product recovery may be ongoing.
317     (e)  The following are not eligible to participate in the
318Petroleum Liability and Restoration Insurance Program:
319     1.  Sites owned or operated by the Federal Government
320during the time the facility was in operation.
321     2.  Sites where the owner or operator has denied the
322department reasonable site access.
323     3.  Any third-party claims relating to damages caused by
324discharges discovered prior to January 1, 1989.
325     4.  Any incidents discovered prior to January 1, 1989, are
326not eligible to participate in the restoration insurance
327program. However, this exclusion shall not be construed to
328prevent a new incident at the same location from participation
329in the restoration insurance program if the owner or operator is
330otherwise eligible. This exclusion shall not affect eligibility
331for participation in the EDI program.
332
333Sites meeting the criteria of this subsection for which a site
334rehabilitation completion order was issued prior to June 1,
3352008, do not qualify for the 2008 increase in site
336rehabilitation funding assistance and are bound by the pre-June
3371, 2008, limits. Sites meeting the criteria of this subsection
338for which a site rehabilitation completion order was not issued
339prior to June 1, 2008, regardless of whether or not they have
340previously transitioned to nonstate-funded cleanup status, may
341continue state-funded cleanup pursuant to s. 376.30711 until a
342site rehabilitation completion order is issued or the increased
343site rehabilitation funding assistance limit is reached,
344whichever occurs first. At no time shall expenses incurred
345outside the preapproved site rehabilitation program under s.
346376.30711 be reimbursable.
347     Section 4.  The act shall take effect July 1, 2008.


CODING: Words stricken are deletions; words underlined are additions.