Florida Senate - 2015 (Corrected Copy) CS for CS for SB 314
By the Committees on Appropriations; and Environmental
Preservation and Conservation; and Senator Simpson
576-04245A-15 2015314c2
1 A bill to be entitled
2 An act relating to the Petroleum Restoration Program;
3 amending s. 376.305, F.S.; revising the eligibility
4 requirements of the Abandoned Tank Restoration
5 Program; deleting provisions prohibiting the relief of
6 liability for persons who acquired title after a
7 certain date; amending s. 376.3071, F.S.; renaming the
8 low-scored site initiative the low-risk site
9 initiative; revising the conditions for eligibility
10 and methods for payment of costs for the low-risk site
11 initiative; clarifying that a change in ownership does
12 not preclude a site from entering into the program;
13 revising the eligibility requirements for receiving
14 rehabilitation funding; amending s. 376.30713, F.S.;
15 reducing the number of sites that may be proposed for
16 certain advanced cleanup applications; increasing the
17 total amount for which the department may contract for
18 advanced cleanup work in a fiscal year; authorizing
19 property owners and responsible parties to enter into
20 voluntary cost-share agreements under certain
21 circumstances; providing an effective date.
22
23 Be It Enacted by the Legislature of the State of Florida:
24
25 Section 1. Subsection (6) of section 376.305, Florida
26 Statutes, is amended to read:
27 376.305 Removal of prohibited discharges.—
28 (6) The Legislature created the Abandoned Tank Restoration
29 Program in response to the need to provide financial assistance
30 for cleanup of sites that have abandoned petroleum storage
31 systems. For purposes of this subsection, the term “abandoned
32 petroleum storage system” means a petroleum storage system that
33 has not stored petroleum products for consumption, use, or sale
34 since March 1, 1990. The department shall establish the
35 Abandoned Tank Restoration Program to facilitate the restoration
36 of sites contaminated by abandoned petroleum storage systems.
37 (a) To be included in the program:
38 1. An application must be submitted to the department by
39 June 30, 1996, certifying that the system has not stored
40 petroleum products for consumption, use, or sale at the facility
41 since March 1, 1990.
42 2. The owner or operator of the petroleum storage system
43 when it was in service must have ceased conducting business
44 involving consumption, use, or sale of petroleum products at
45 that facility on or before March 1, 1990.
46 3. The site is not otherwise eligible for the cleanup
47 programs pursuant to s. 376.3071 or s. 376.3072.
48 4. The site is not otherwise eligible for the Petroleum
49 Cleanup Participation Program under s. 376.3071(13) based on any
50 discharge reporting form received by the department before
51 January 1, 1995, or a written report of contamination submitted
52 to the department on or before December 31, 1998.
53 (b) In order to be eligible for the program, petroleum
54 storage systems from which a discharge occurred must be closed
55 pursuant to department rules before an eligibility
56 determination. However, if the department determines that the
57 owner of the facility cannot financially comply with the
58 department’s petroleum storage system closure requirements and
59 all other eligibility requirements are met, the petroleum
60 storage system closure requirements shall be waived. The
61 department shall take into consideration the owner’s net worth
62 and the economic impact on the owner in making the determination
63 of the owner’s financial ability. The June 30, 1996, application
64 deadline shall be waived for owners who cannot financially
65 comply.
66 (c) Sites accepted in the program are eligible for site
67 rehabilitation funding as provided in s. 376.3071.
68 (d) The following sites are excluded from eligibility:
69 1. Sites on property of the Federal Government;
70 2. Sites contaminated by pollutants that are not petroleum
71 products; or
72 3. Sites where the department has been denied site access;
73 or
74 4. Sites which are owned by a person who had knowledge of
75 the polluting condition when title was acquired unless the
76 person acquired title to the site after issuance of a notice of
77 site eligibility by the department.
78 (e) Participating sites are subject to a deductible as
79 determined by rule, not to exceed $10,000.
80
81 This subsection does not relieve a person who has acquired title
82 after July 1, 1992, from the duty to establish by a
83 preponderance of the evidence that he or she undertook, at the
84 time of acquisition, all appropriate inquiry into the previous
85 ownership and use of the property consistent with good
86 commercial or customary practice in an effort to minimize
87 liability, as required by s. 376.308(1)(c).
88 Section 2. Paragraph (b) of subsection (12), and subsection
89 (13) of section 376.3071, Florida Statutes, are amended, and
90 paragraph (c) is added to subsection (12) of that section, to
91 read:
92 376.3071 Inland Protection Trust Fund; creation; purposes;
93 funding.—
94 (12) SITE CLEANUP.—
95 (b) Low-risk Low-scored site initiative.—Notwithstanding
96 subsections (5) and (6), a site with a priority ranking score of
97 29 points or less may voluntarily participate in the low-risk
98 low-scored site initiative regardless of whether the site is
99 eligible for state restoration funding.
100 1. To participate in the low-risk low-scored site
101 initiative, the responsible party or property owner, or a
102 responsible party that provides evidence of authorization from
103 the property owner, must submit a “No Further Action” proposal
104 and affirmatively demonstrate that the following conditions
105 under paragraph (c) are met.:
106 a. Upon reassessment pursuant to department rule, the site
107 retains a priority ranking score of 29 points or less.
108 b. Excessively contaminated soil, as defined by department
109 rule, does not exist onsite as a result of a release of
110 petroleum products.
111 c. A minimum of 6 months of groundwater monitoring
112 indicates that the plume is shrinking or stable.
113 d. The release of petroleum products at the site does not
114 adversely affect adjacent surface waters, including their
115 effects on human health and the environment.
116 e. The area of groundwater containing the petroleum
117 products’ chemicals of concern is less than one-quarter acre and
118 is confined to the source property boundaries of the real
119 property on which the discharge originated.
120 f. Soils onsite that are subject to human exposure found
121 between land surface and 2 feet below land surface meet the soil
122 cleanup target levels established by department rule or human
123 exposure is limited by appropriate institutional or engineering
124 controls.
125 2. Upon affirmative demonstration that of the conditions
126 under paragraph (c) are met subparagraph 1., the department
127 shall issue a site rehabilitation completion order incorporating
128 the determination of “No Further Action.” proposal submitted by
129 the property owner or the responsible party that provides
130 evidence of the authorization from the property owner Such
131 determination acknowledges that minimal contamination exists
132 onsite and that such contamination is not a threat to the public
133 health, safety, or welfare, water resources, or the environment.
134 If no contamination is detected, the department may issue a site
135 rehabilitation completion order.
136 3. Sites that are eligible for state restoration funding
137 may receive payment of costs for the low-risk low-scored site
138 initiative as follows:
139 a. A responsible party or property owner, or a responsible
140 party that provides evidence of authorization from the property
141 owner, may submit an assessment and limited remediation plan
142 designed to affirmatively demonstrate that the site meets the
143 conditions under paragraph (c) subparagraph 1. Notwithstanding
144 the priority ranking score of the site, the department may
145 approve the cost of the assessment and limited remediation,
146 including up to 6 months of groundwater monitoring, in one or
147 more task assignments, or modifications thereof, not to exceed
148 the threshold amount provided in s. 287.017 for CATEGORY TWO,
149 $30,000 for each site where the department has determined that
150 the assessment and limited remediation, if applicable, will
151 likely result in a determination of “No Further Action.”. The
152 department may not pay the costs associated with the
153 establishment of institutional or engineering controls, with the
154 exception of the costs associated with a professional land
155 survey or specific purpose survey, if needed, and costs
156 associated with obtaining a title report and recording fees.
157 b. Following approval of initial site assessment results
158 provided pursuant to state funding under sub-subparagraph a.,
159 the department may approve up to an additional amount not to
160 exceed the threshold amount provided in s. 287.017 for CATEGORY
161 TWO, for limited remediation, where needed to achieve a
162 determination of “No Further Action.”
163 c.b. The assessment and limited remediation work shall be
164 completed no later than 9 6 months after the department
165 authorizes the start of a state-funded low-risk site initiative
166 task issues its approval. If groundwater monitoring is required
167 after the assessment and limited remediation in order to satisfy
168 the conditions under paragraph (c), the department may authorize
169 an additional 6 months to complete the monitoring.
170 d.c. No more than $15 $10 million for the low-risk low
171 scored site initiative may be encumbered from the fund in any
172 fiscal year. Funds shall be made available on a first-come,
173 first-served basis and shall be limited to 10 sites in each
174 fiscal year for each responsible party or property owner or each
175 responsible party that provides evidence of authorization from
176 the property owner.
177 e.d. Program deductibles, copayments, and the limited
178 contamination assessment report requirements under paragraph
179 (13)(c) do not apply to expenditures under this paragraph.
180 (c) The department shall issue a site rehabilitation
181 completion order incorporating the “No Further Action” proposal
182 submitted by a property owner or a responsible party that
183 provides evidence of authorization from the property owner upon
184 affirmative demonstration that all of the following conditions
185 are met:
186 1. Soil saturated with petroleum or petroleum products, or
187 soil that causes a total corrected hydrocarbon measurement of
188 500 parts per million or higher for Gasoline Analytical Group or
189 50 parts per million or higher for Kerosene Analytical Group, as
190 defined by department rule, does not exist onsite as a result of
191 a release of petroleum products.
192 2. A minimum of 6 months of groundwater monitoring
193 indicates that the plume is shrinking or stable.
194 3. The release of petroleum products at the site does not
195 adversely affect adjacent surface waters, including their
196 effects on human health and the environment.
197 4. The area of groundwater containing the petroleum
198 products’ chemicals of concern is confined to the source
199 property boundaries of the real property on which the discharge
200 originated, or has migrated from the source property only to a
201 transportation facility of the Department of Transportation.
202 5. The groundwater contamination containing the petroleum
203 products chemicals of concern is not a threat to any permitted
204 potable water supply well.
205 6. Soils onsite which are subject to human exposure found
206 between land surface and 2 feet below land surface meet the soil
207 cleanup target levels established pursuant to subparagraph
208 (5)(b)9., or human exposure is limited by appropriate
209 institutional or engineering controls.
210
211 Issuance of a site rehabilitation completion order under this
212 paragraph acknowledges that minimal contamination exists onsite
213 and that such contamination is not a threat to the public
214 health, safety, or welfare, water resources, or the environment.
215 If the department determines that a discharge for which a site
216 rehabilitation completion order was issued pursuant to this
217 subsection may pose a threat to the public health, safety, or
218 welfare, water resources, or the environment, the issuance of
219 the site rehabilitation completion order, with or without
220 conditions, does not alter eligibility for state-funded
221 rehabilitation that would otherwise be applicable under this
222 section.
223 (13) PETROLEUM CLEANUP PARTICIPATION PROGRAM.—To encourage
224 detection, reporting, and cleanup of contamination caused by
225 discharges of petroleum or petroleum products, the department
226 shall, within the guidelines established in this subsection,
227 implement a cost-sharing cleanup program to provide
228 rehabilitation funding assistance for all property contaminated
229 by discharges of petroleum or petroleum products from a
230 petroleum storage system occurring before January 1, 1995,
231 subject to a copayment provided for in a Petroleum Cleanup
232 Participation Program site rehabilitation agreement. Eligibility
233 is subject to an annual appropriation from the fund.
234 Additionally, funding for eligible sites is contingent upon
235 annual appropriation in subsequent years. Such continued state
236 funding is not an entitlement or a vested right under this
237 subsection. Eligibility shall be determined in the program,
238 notwithstanding any other provision of law, consent order,
239 order, judgment, or ordinance to the contrary.
240 (a)1. The department shall accept any discharge reporting
241 form received before January 1, 1995, as an application for this
242 program, and the facility owner or operator need not reapply.
243 2. Owners or operators of property, regardless of whether
244 ownership has changed, which is contaminated by petroleum or
245 petroleum products from a petroleum storage system may apply for
246 such program by filing a written report of the contamination
247 incident, including evidence that such incident occurred before
248 January 1, 1995, with the department. Incidents of petroleum
249 contamination discovered after December 31, 1994, at sites which
250 have not stored petroleum or petroleum products for consumption,
251 use, or sale after such date shall be presumed to have occurred
252 before January 1, 1995. An operator’s filed report shall be an
253 application of the owner for all purposes. Sites reported to the
254 department after December 31, 1998, are not eligible for the
255 program.
256 (b) Subject to annual appropriation from the fund, sites
257 meeting the criteria of this subsection are eligible for up to
258 $400,000 of site rehabilitation funding assistance in priority
259 order pursuant to subsections (5) and (6). Sites meeting the
260 criteria of this subsection for which a site rehabilitation
261 completion order was issued before June 1, 2008, do not qualify
262 for the 2008 increase in site rehabilitation funding assistance
263 and are bound by the pre-June 1, 2008, limits. Sites meeting the
264 criteria of this subsection for which a site rehabilitation
265 completion order was not issued before June 1, 2008, regardless
266 of whether they have previously transitioned to nonstate-funded
267 cleanup status, may continue state-funded cleanup pursuant to
268 this section until a site rehabilitation completion order is
269 issued or the increased site rehabilitation funding assistance
270 limit is reached, whichever occurs first. The department may not
271 pay expenses incurred beyond the scope of an approved contract.
272 (c) Upon notification by the department that rehabilitation
273 funding assistance is available for the site pursuant to
274 subsections (5) and (6), the owner, operator, or person
275 otherwise responsible for site rehabilitation shall provide the
276 department with a limited contamination assessment report and
277 shall enter into a Petroleum Cleanup Participation Program site
278 rehabilitation agreement with the department. The agreement must
279 provide for a 25-percent copayment by the owner, operator, or
280 person otherwise responsible for conducting site rehabilitation.
281 The owner, operator, or person otherwise responsible for
282 conducting site rehabilitation shall adequately demonstrate the
283 ability to meet the copayment obligation. The limited
284 contamination assessment report and the copayment costs may be
285 reduced or eliminated if the owner and all operators responsible
286 for restoration under s. 376.308 demonstrate that they cannot
287 financially comply with the copayment and limited contamination
288 assessment report requirements. The department shall take into
289 consideration the owner’s and operator’s net worth in making the
290 determination of financial ability. In the event the department
291 and the owner, operator, or person otherwise responsible for
292 site rehabilitation cannot complete negotiation of the cost
293 sharing agreement within 120 days after beginning negotiations,
294 the department shall terminate negotiations and the site shall
295 be ineligible for state funding under this subsection and all
296 liability protections provided for in this subsection shall be
297 revoked.
298 (d) A report of a discharge made to the department by a
299 person pursuant to this subsection or any rules adopted pursuant
300 to this subsection may not be used directly as evidence of
301 liability for such discharge in any civil or criminal trial
302 arising out of the discharge.
303 (e) This subsection does not preclude the department from
304 pursuing penalties under s. 403.141 for violations of any law or
305 any rule, order, permit, registration, or certification adopted
306 or issued by the department pursuant to its lawful authority.
307 (f) Upon the filing of a discharge reporting form under
308 paragraph (a), the department or local government may not pursue
309 any judicial or enforcement action to compel rehabilitation of
310 the discharge. This paragraph does not prevent any such action
311 with respect to discharges determined ineligible under this
312 subsection or to sites for which rehabilitation funding
313 assistance is available pursuant to subsections (5) and (6).
314 (g) The following are excluded from participation in the
315 program:
316 1. Sites at which the department has been denied reasonable
317 site access to implement this section.
318 2. Sites that were active facilities when owned or operated
319 by the Federal Government.
320 3. Sites that are identified by the United States
321 Environmental Protection Agency to be on, or which qualify for
322 listing on, the National Priorities List under Superfund. This
323 exception does not apply to those sites for which eligibility
324 has been requested or granted as of the effective date of this
325 act under the Early Detection Incentive Program established
326 pursuant to s. 15, chapter 86-159, Laws of Florida.
327 4. Sites for which contamination is covered under the Early
328 Detection Incentive Program, the Abandoned Tank Restoration
329 Program, or the Petroleum Liability and Restoration Insurance
330 Program, in which case site rehabilitation funding assistance
331 shall continue under the respective program.
332 Section 3. Paragraph (a) of subsection (2) and subsection
333 (4) of section 376.30713, Florida Statutes, are amended to read:
334 376.30713 Advanced cleanup.—
335 (2) The department may approve an application for advanced
336 cleanup at eligible sites, before funding based on the site’s
337 priority ranking established pursuant to s. 376.3071(5)(a),
338 pursuant to this section. Only the facility owner or operator or
339 the person otherwise responsible for site rehabilitation
340 qualifies as an applicant under this section.
341 (a) Advanced cleanup applications may be submitted between
342 May 1 and June 30 and between November 1 and December 31 of each
343 fiscal year. Applications submitted between May 1 and June 30
344 shall be for the fiscal year beginning July 1. An application
345 must consist of:
346 1. A commitment to pay 25 percent or more of the total
347 cleanup cost deemed recoverable under this section along with
348 proof of the ability to pay the cost share. An application
349 proposing that the department enter into a performance-based
350 contract for the cleanup of 10 20 or more sites may use a
351 commitment to pay, a demonstrated cost savings to the
352 department, or both to meet the cost-share requirement. For an
353 application relying on a demonstrated cost savings to the
354 department, the applicant shall, in conjunction with the
355 proposed agency term contractor, establish and provide in the
356 application the percentage of cost savings in the aggregate that
357 is being provided to the department for cleanup of the sites
358 under the application compared to the cost of cleanup of those
359 same sites using the current rates provided to the department by
360 the proposed agency term contractor. The department shall
361 determine whether the cost savings demonstration is acceptable.
362 Such determination is not subject to chapter 120.
363 2. A nonrefundable review fee of $250 to cover the
364 administrative costs associated with the department’s review of
365 the application.
366 3. A limited contamination assessment report.
367 4. A proposed course of action.
368
369 The limited contamination assessment report must be sufficient
370 to support the proposed course of action and to estimate the
371 cost of the proposed course of action. Costs incurred related to
372 conducting the limited contamination assessment report are not
373 refundable from the Inland Protection Trust Fund. Site
374 eligibility under this subsection or any other provision of this
375 section is not an entitlement to advanced cleanup or continued
376 restoration funding. The applicant shall certify to the
377 department that the applicant has the prerequisite authority to
378 enter into an advanced cleanup contract with the department. The
379 certification must be submitted with the application.
380 (4) The department may enter into contracts for a total of
381 up to $25 $15 million of advanced cleanup work in each fiscal
382 year. However, a facility or an applicant who bundles multiple
383 sites as specified in subparagraph (2)(a)1. may not be approved
384 for more than $5 million of cleanup activity in each fiscal
385 year. A property owner or responsible party may enter into a
386 voluntary cost-share agreement in which the property owner or
387 responsible party commits to bundle multiple sites and lists the
388 facilities that will be included in those future bundles. The
389 facilities listed are not subject to agency term contractor
390 assignment pursuant to department rule. The department reserves
391 the right to terminate the voluntary cost-share agreement if the
392 property owner or responsible party fails to submit an
393 application to bundle multiple sites within an open application
394 period in which it is eligible to participate. For the purposes
395 of this section, the term “facility” includes, but is not
396 limited to, multiple site facilities such as airports, port
397 facilities, and terminal facilities even though such enterprises
398 may be treated as separate facilities for other purposes under
399 this chapter.
400 Section 4. This act shall take effect July 1, 2015.