| 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 $300,000of 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 $300,000of 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 $1million 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 | $1million 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 oneyear 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 $300,000of 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 $150,000of 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. |