Florida Senate - 2015 SENATOR AMENDMENT
Bill No. CS for HB 733
Ì773672:Î773672
LEGISLATIVE ACTION
Senate . House
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Floor: PD/2R .
04/28/2015 01:13 PM .
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Senator Simpson moved the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Subsection (6) of section 376.305, Florida
6 Statutes, is amended to read:
7 376.305 Removal of prohibited discharges.—
8 (6) The Legislature created the Abandoned Tank Restoration
9 Program in response to the need to provide financial assistance
10 for cleanup of sites that have abandoned petroleum storage
11 systems. For purposes of this subsection, the term “abandoned
12 petroleum storage system” means a petroleum storage system that
13 has not stored petroleum products for consumption, use, or sale
14 since March 1, 1990. The department shall establish the
15 Abandoned Tank Restoration Program to facilitate the restoration
16 of sites contaminated by abandoned petroleum storage systems.
17 (a) To be included in the program:
18 1. An application must be submitted to the department by
19 June 30, 1996, certifying that the system has not stored
20 petroleum products for consumption, use, or sale at the facility
21 since March 1, 1990.
22 2. The owner or operator of the petroleum storage system
23 when it was in service must have ceased conducting business
24 involving consumption, use, or sale of petroleum products at
25 that facility on or before March 1, 1990.
26 3. The site is not otherwise eligible for the cleanup
27 programs pursuant to s. 376.3071 or s. 376.3072.
28 4. The site is not otherwise eligible for the Petroleum
29 Cleanup Participation Program under s. 376.3071(13) based on any
30 discharge reporting form received by the department before
31 January 1, 1995, or a written report of contamination submitted
32 to the department on or before December 31, 1998.
33 (b) In order to be eligible for the program, petroleum
34 storage systems from which a discharge occurred must be closed
35 pursuant to department rules before an eligibility
36 determination. However, if the department determines that the
37 owner of the facility cannot financially comply with the
38 department’s petroleum storage system closure requirements and
39 all other eligibility requirements are met, the petroleum
40 storage system closure requirements shall be waived. The
41 department shall take into consideration the owner’s net worth
42 and the economic impact on the owner in making the determination
43 of the owner’s financial ability. The June 30, 1996, application
44 deadline shall be waived for owners who cannot financially
45 comply.
46 (c) Sites accepted in the program are eligible for site
47 rehabilitation funding as provided in s. 376.3071.
48 (d) The following sites are excluded from eligibility:
49 1. Sites on property of the Federal Government;
50 2. Sites contaminated by pollutants that are not petroleum
51 products; or
52 3. Sites where the department has been denied site access;
53 or
54 4. Sites which are owned by a person who had knowledge of
55 the polluting condition when title was acquired unless the
56 person acquired title to the site after issuance of a notice of
57 site eligibility by the department.
58 (e) Participating sites are subject to a deductible as
59 determined by rule, not to exceed $10,000.
60
61 This subsection does not relieve a person who has acquired title
62 after July 1, 1992, from the duty to establish by a
63 preponderance of the evidence that he or she undertook, at the
64 time of acquisition, all appropriate inquiry into the previous
65 ownership and use of the property consistent with good
66 commercial or customary practice in an effort to minimize
67 liability, as required by s. 376.308(1)(c).
68 Section 2. Paragraph (b) of subsection (12), and subsection
69 (13) of section 376.3071, Florida Statutes, are amended, and
70 paragraph (c) is added to subsection (12) of that section, to
71 read:
72 376.3071 Inland Protection Trust Fund; creation; purposes;
73 funding.—
74 (12) SITE CLEANUP.—
75 (b) Low-risk Low-scored site initiative.—Notwithstanding
76 subsections (5) and (6), a site with a priority ranking score of
77 29 points or less may voluntarily participate in the low-risk
78 low-scored site initiative regardless of whether the site is
79 eligible for state restoration funding.
80 1. To participate in the low-risk low-scored site
81 initiative, the responsible party or property owner, or a
82 responsible party that provides evidence of authorization from
83 the property owner, must submit a “No Further Action” proposal
84 and affirmatively demonstrate that the following conditions
85 under paragraph (c) are met.:
86 a. Upon reassessment pursuant to department rule, the site
87 retains a priority ranking score of 29 points or less.
88 b. Excessively contaminated soil, as defined by department
89 rule, does not exist onsite as a result of a release of
90 petroleum products.
91 c. A minimum of 6 months of groundwater monitoring
92 indicates that the plume is shrinking or stable.
93 d. The release of petroleum products at the site does not
94 adversely affect adjacent surface waters, including their
95 effects on human health and the environment.
96 e. The area of groundwater containing the petroleum
97 products’ chemicals of concern is less than one-quarter acre and
98 is confined to the source property boundaries of the real
99 property on which the discharge originated.
100 f. Soils onsite that are subject to human exposure found
101 between land surface and 2 feet below land surface meet the soil
102 cleanup target levels established by department rule or human
103 exposure is limited by appropriate institutional or engineering
104 controls.
105 2. Upon affirmative demonstration that of the conditions
106 under paragraph (c) are met subparagraph 1., the department
107 shall issue a site rehabilitation completion order incorporating
108 the determination of “No Further Action.” proposal submitted by
109 the property owner or the responsible party that provides
110 evidence of the authorization from the property owner Such
111 determination acknowledges that minimal contamination exists
112 onsite and that such contamination is not a threat to the public
113 health, safety, or welfare, water resources, or the environment.
114 If no contamination is detected, the department may issue a site
115 rehabilitation completion order.
116 3. Sites that are eligible for state restoration funding
117 may receive payment of costs for the low-risk low-scored site
118 initiative as follows:
119 a. A responsible party or property owner, or a responsible
120 party that provides evidence of authorization from the property
121 owner, may submit an assessment and limited remediation plan
122 designed to affirmatively demonstrate that the site meets the
123 conditions under paragraph (c) subparagraph 1. Notwithstanding
124 the priority ranking score of the site, the department may
125 approve the cost of the assessment and limited remediation,
126 including up to 6 months of groundwater monitoring, in one or
127 more task assignments, or modifications thereof, not to exceed
128 the threshold amount provided in s. 287.017 for CATEGORY TWO,
129 $30,000 for each site where the department has determined that
130 the assessment and limited remediation, if applicable, will
131 likely result in a determination of “No Further Action.”. The
132 department may not pay the costs associated with the
133 establishment of institutional or engineering controls, with the
134 exception of the costs associated with a professional land
135 survey or specific purpose survey, if needed, and costs
136 associated with obtaining a title report and recording fees.
137 b. Following approval of initial site assessment results
138 provided pursuant to state funding under sub-subparagraph a.,
139 the department may approve up to an additional amount not to
140 exceed the threshold amount provided in s. 287.017 for CATEGORY
141 TWO, for limited remediation, where needed to achieve a
142 determination of “No Further Action.”
143 c.b. The assessment and limited remediation work shall be
144 completed no later than 9 6 months after the department
145 authorizes the start of a state-funded low-risk site initiative
146 task issues its approval. If groundwater monitoring is required
147 after the assessment and limited remediation in order to satisfy
148 the conditions under paragraph (c), the department may authorize
149 an additional 6 months to complete the monitoring.
150 d.c. No more than $15 $10 million for the low-risk low
151 scored site initiative may be encumbered from the fund in any
152 fiscal year. Funds shall be made available on a first-come,
153 first-served basis and shall be limited to 10 sites in each
154 fiscal year for each responsible party or property owner or each
155 responsible party that provides evidence of authorization from
156 the property owner.
157 e.d. Program deductibles, copayments, and the limited
158 contamination assessment report requirements under paragraph
159 (13)(c) do not apply to expenditures under this paragraph.
160 (c) The department shall issue a site rehabilitation
161 completion order incorporating the “No Further Action” proposal
162 submitted by a property owner or a responsible party that
163 provides evidence of authorization from the property owner upon
164 affirmative demonstration that all of the following conditions
165 are met:
166 1. Soil saturated with petroleum or petroleum products, or
167 soil that causes a total corrected hydrocarbon measurement of
168 500 parts per million or higher for Gasoline Analytical Group or
169 50 parts per million or higher for Kerosene Analytical Group, as
170 defined by department rule, does not exist onsite as a result of
171 a release of petroleum products.
172 2. A minimum of 6 months of groundwater monitoring
173 indicates that the plume is shrinking or stable.
174 3. The release of petroleum products at the site does not
175 adversely affect adjacent surface waters, including their
176 effects on human health and the environment.
177 4. The area of groundwater containing the petroleum
178 products’ chemicals of concern is confined to the source
179 property boundaries of the real property on which the discharge
180 originated, or has migrated from the source property only to a
181 transportation facility of the Department of Transportation.
182 5. The groundwater contamination containing the petroleum
183 products chemicals of concern is not a threat to any permitted
184 potable water supply well.
185 6. Soils onsite which are subject to human exposure found
186 between land surface and 2 feet below land surface meet the soil
187 cleanup target levels established pursuant to subparagraph
188 (5)(b)9., or human exposure is limited by appropriate
189 institutional or engineering controls.
190
191 Issuance of a site rehabilitation completion order under this
192 paragraph acknowledges that minimal contamination exists onsite
193 and that such contamination is not a threat to the public
194 health, safety, or welfare, water resources, or the environment.
195 If the department determines that a discharge for which a site
196 rehabilitation completion order was issued pursuant to this
197 subsection may pose a threat to the public health, safety, or
198 welfare, water resources, or the environment, the issuance of
199 the site rehabilitation completion order, with or without
200 conditions, does not alter eligibility for state-funded
201 rehabilitation that would otherwise be applicable under this
202 section.
203 (13) PETROLEUM CLEANUP PARTICIPATION PROGRAM.—To encourage
204 detection, reporting, and cleanup of contamination caused by
205 discharges of petroleum or petroleum products, the department
206 shall, within the guidelines established in this subsection,
207 implement a cost-sharing cleanup program to provide
208 rehabilitation funding assistance for all property contaminated
209 by discharges of petroleum or petroleum products from a
210 petroleum storage system occurring before January 1, 1995,
211 subject to a copayment provided for in a Petroleum Cleanup
212 Participation Program site rehabilitation agreement. Eligibility
213 is subject to an annual appropriation from the fund.
214 Additionally, funding for eligible sites is contingent upon
215 annual appropriation in subsequent years. Such continued state
216 funding is not an entitlement or a vested right under this
217 subsection. Eligibility shall be determined in the program,
218 notwithstanding any other provision of law, consent order,
219 order, judgment, or ordinance to the contrary.
220 (a)1. The department shall accept any discharge reporting
221 form received before January 1, 1995, as an application for this
222 program, and the facility owner or operator need not reapply.
223 2. Owners or operators of property, regardless of whether
224 ownership has changed, which is contaminated by petroleum or
225 petroleum products from a petroleum storage system may apply for
226 such program by filing a written report of the contamination
227 incident, including evidence that such incident occurred before
228 January 1, 1995, with the department. Incidents of petroleum
229 contamination discovered after December 31, 1994, at sites which
230 have not stored petroleum or petroleum products for consumption,
231 use, or sale after such date shall be presumed to have occurred
232 before January 1, 1995. An operator’s filed report shall be an
233 application of the owner for all purposes. Sites reported to the
234 department after December 31, 1998, are not eligible for the
235 program.
236 (b) Subject to annual appropriation from the fund, sites
237 meeting the criteria of this subsection are eligible for up to
238 $400,000 of site rehabilitation funding assistance in priority
239 order pursuant to subsections (5) and (6). Sites meeting the
240 criteria of this subsection for which a site rehabilitation
241 completion order was issued before June 1, 2008, do not qualify
242 for the 2008 increase in site rehabilitation funding assistance
243 and are bound by the pre-June 1, 2008, limits. Sites meeting the
244 criteria of this subsection for which a site rehabilitation
245 completion order was not issued before June 1, 2008, regardless
246 of whether they have previously transitioned to nonstate-funded
247 cleanup status, may continue state-funded cleanup pursuant to
248 this section until a site rehabilitation completion order is
249 issued or the increased site rehabilitation funding assistance
250 limit is reached, whichever occurs first. The department may not
251 pay expenses incurred beyond the scope of an approved contract.
252 (c) Upon notification by the department that rehabilitation
253 funding assistance is available for the site pursuant to
254 subsections (5) and (6), the owner, operator, or person
255 otherwise responsible for site rehabilitation shall provide the
256 department with a limited contamination assessment report and
257 shall enter into a Petroleum Cleanup Participation Program site
258 rehabilitation agreement with the department. The agreement must
259 provide for a 25-percent copayment by the owner, operator, or
260 person otherwise responsible for conducting site rehabilitation.
261 The owner, operator, or person otherwise responsible for
262 conducting site rehabilitation shall adequately demonstrate the
263 ability to meet the copayment obligation. The limited
264 contamination assessment report and the copayment costs may be
265 reduced or eliminated if the owner and all operators responsible
266 for restoration under s. 376.308 demonstrate that they cannot
267 financially comply with the copayment and limited contamination
268 assessment report requirements. The department shall take into
269 consideration the owner’s and operator’s net worth in making the
270 determination of financial ability. In the event the department
271 and the owner, operator, or person otherwise responsible for
272 site rehabilitation cannot complete negotiation of the cost
273 sharing agreement within 120 days after beginning negotiations,
274 the department shall terminate negotiations and the site shall
275 be ineligible for state funding under this subsection and all
276 liability protections provided for in this subsection shall be
277 revoked.
278 (d) A report of a discharge made to the department by a
279 person pursuant to this subsection or any rules adopted pursuant
280 to this subsection may not be used directly as evidence of
281 liability for such discharge in any civil or criminal trial
282 arising out of the discharge.
283 (e) This subsection does not preclude the department from
284 pursuing penalties under s. 403.141 for violations of any law or
285 any rule, order, permit, registration, or certification adopted
286 or issued by the department pursuant to its lawful authority.
287 (f) Upon the filing of a discharge reporting form under
288 paragraph (a), the department or local government may not pursue
289 any judicial or enforcement action to compel rehabilitation of
290 the discharge. This paragraph does not prevent any such action
291 with respect to discharges determined ineligible under this
292 subsection or to sites for which rehabilitation funding
293 assistance is available pursuant to subsections (5) and (6).
294 (g) The following are excluded from participation in the
295 program:
296 1. Sites at which the department has been denied reasonable
297 site access to implement this section.
298 2. Sites that were active facilities when owned or operated
299 by the Federal Government.
300 3. Sites that are identified by the United States
301 Environmental Protection Agency to be on, or which qualify for
302 listing on, the National Priorities List under Superfund. This
303 exception does not apply to those sites for which eligibility
304 has been requested or granted as of the effective date of this
305 act under the Early Detection Incentive Program established
306 pursuant to s. 15, chapter 86-159, Laws of Florida.
307 4. Sites for which contamination is covered under the Early
308 Detection Incentive Program, the Abandoned Tank Restoration
309 Program, or the Petroleum Liability and Restoration Insurance
310 Program, in which case site rehabilitation funding assistance
311 shall continue under the respective program.
312 Section 3. Paragraph (a) of subsection (2) and subsection
313 (4) of section 376.30713, Florida Statutes, are amended to read:
314 376.30713 Advanced cleanup.—
315 (2) The department may approve an application for advanced
316 cleanup at eligible sites, before funding based on the site’s
317 priority ranking established pursuant to s. 376.3071(5)(a),
318 pursuant to this section. Only the facility owner or operator or
319 the person otherwise responsible for site rehabilitation
320 qualifies as an applicant under this section.
321 (a) Advanced cleanup applications may be submitted between
322 May 1 and June 30 and between November 1 and December 31 of each
323 fiscal year. Applications submitted between May 1 and June 30
324 shall be for the fiscal year beginning July 1. An application
325 must consist of:
326 1. A commitment to pay 25 percent or more of the total
327 cleanup cost deemed recoverable under this section along with
328 proof of the ability to pay the cost share. An application
329 proposing that the department enter into a performance-based
330 contract for the cleanup of 10 20 or more sites may use a
331 commitment to pay, a demonstrated cost savings to the
332 department, or both to meet the cost-share requirement. For an
333 application relying on a demonstrated cost savings to the
334 department, the applicant shall, in conjunction with the
335 proposed agency term contractor, establish and provide in the
336 application the percentage of cost savings in the aggregate that
337 is being provided to the department for cleanup of the sites
338 under the application compared to the cost of cleanup of those
339 same sites using the current rates provided to the department by
340 the proposed agency term contractor. The department shall
341 determine whether the cost savings demonstration is acceptable.
342 Such determination is not subject to chapter 120.
343 2. A nonrefundable review fee of $250 to cover the
344 administrative costs associated with the department’s review of
345 the application.
346 3. A limited contamination assessment report.
347 4. A proposed course of action.
348
349 The limited contamination assessment report must be sufficient
350 to support the proposed course of action and to estimate the
351 cost of the proposed course of action. Costs incurred related to
352 conducting the limited contamination assessment report are not
353 refundable from the Inland Protection Trust Fund. Site
354 eligibility under this subsection or any other provision of this
355 section is not an entitlement to advanced cleanup or continued
356 restoration funding. The applicant shall certify to the
357 department that the applicant has the prerequisite authority to
358 enter into an advanced cleanup contract with the department. The
359 certification must be submitted with the application.
360 (4) The department may enter into contracts for a total of
361 up to $25 $15 million of advanced cleanup work in each fiscal
362 year. However, a facility or an applicant who bundles multiple
363 sites as specified in subparagraph (2)(a)1. may not be approved
364 for more than $5 million of cleanup activity in each fiscal
365 year. A property owner or responsible party may enter into a
366 voluntary cost-share agreement in which the property owner or
367 responsible party commits to bundle multiple sites and lists the
368 facilities that will be included in those future bundles. The
369 facilities listed are not subject to agency term contractor
370 assignment pursuant to department rule. The department reserves
371 the right to terminate the voluntary cost-share agreement if the
372 property owner or responsible party fails to submit an
373 application to bundle multiple sites within an open application
374 period in which it is eligible to participate. For the purposes
375 of this section, the term “facility” includes, but is not
376 limited to, multiple site facilities such as airports, port
377 facilities, and terminal facilities even though such enterprises
378 may be treated as separate facilities for other purposes under
379 this chapter.
380 Section 4. This act shall take effect July 1, 2015.
381
382 ================= T I T L E A M E N D M E N T ================
383 And the title is amended as follows:
384 Delete everything before the enacting clause
385 and insert:
386 A bill to be entitled
387 An act relating to the Petroleum Restoration Program;
388 amending s. 376.305, F.S.; revising the eligibility
389 requirements of the Abandoned Tank Restoration
390 Program; deleting provisions prohibiting the relief of
391 liability for persons who acquired title after a
392 certain date; amending s. 376.3071, F.S.; renaming the
393 low-scored site initiative the low-risk site
394 initiative; revising the conditions for eligibility
395 and methods for payment of costs for the low-risk site
396 initiative; clarifying that a change in ownership does
397 not preclude a site from entering into the program;
398 revising the eligibility requirements for receiving
399 rehabilitation funding; amending s. 376.30713, F.S.;
400 reducing the number of sites that may be proposed for
401 certain advanced cleanup applications; increasing the
402 total amount for which the department may contract for
403 advanced cleanup work in a fiscal year; authorizing
404 property owners and responsible parties to enter into
405 voluntary cost-share agreements under certain
406 circumstances; providing an effective date.