CS for SB 100 First Engrossed (ntc)
2016100e1
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.; revising
8 legislative intent and purpose; deleting an expiration
9 date; revising the criteria for determining what
10 constitutes certain rehabilitation program tasks;
11 revising the conditions for eligibility and methods
12 for payment of costs for the low-scored site
13 initiative; revising the eligibility requirements for
14 receiving rehabilitation funding; specifying that the
15 issuance of a site rehabilitation completion order
16 does not alter eligibility for state-funded
17 remediation under certain circumstances; clarifying
18 that a change in ownership does not preclude a site
19 from entering into the program; providing additional
20 funding for remediation and monitoring under certain
21 circumstances; amending s. 376.30713, F.S.; revising
22 advanced cleanup application requirements; increasing
23 the total amount for which the department may contract
24 for advanced cleanup work in a fiscal year;
25 authorizing property owners and responsible parties to
26 enter into voluntary cost-share agreements under
27 certain circumstances; providing an effective date.
28
29 Be It Enacted by the Legislature of the State of Florida:
30
31 Section 1. Subsection (6) of section 376.305, Florida
32 Statutes, is amended to read:
33 376.305 Removal of prohibited discharges.—
34 (6) The Legislature created the Abandoned Tank Restoration
35 Program in response to the need to provide financial assistance
36 for cleanup of sites that have abandoned petroleum storage
37 systems. For purposes of this subsection, the term “abandoned
38 petroleum storage system” means a petroleum storage system that
39 has not stored petroleum products for consumption, use, or sale
40 since March 1, 1990. The department shall establish the
41 Abandoned Tank Restoration Program to facilitate the restoration
42 of sites contaminated by abandoned petroleum storage systems.
43 (a) To be included in the program:
44 1. An application must be submitted to the department by
45 June 30, 1996, certifying that the system has not stored
46 petroleum products for consumption, use, or sale at the facility
47 since March 1, 1990.
48 2. The owner or operator of the petroleum storage system
49 when it was in service must have ceased conducting business
50 involving consumption, use, or sale of petroleum products at
51 that facility on or before March 1, 1990.
52 3. The site is not otherwise eligible for the cleanup
53 programs pursuant to s. 376.3071 or s. 376.3072.
54 4. The site is not otherwise eligible for the Petroleum
55 Cleanup Participation Program under s. 376.3071(13) based on any
56 discharge reporting form received by the department before
57 January 1, 1995, or a written report of contamination submitted
58 to the department on or before December 31, 1998.
59 (b) In order to be eligible for the program, petroleum
60 storage systems from which a discharge occurred must be closed
61 pursuant to department rules before an eligibility
62 determination. However, if the department determines that the
63 owner of the facility cannot financially comply with the
64 department’s petroleum storage system closure requirements and
65 all other eligibility requirements are met, the petroleum
66 storage system closure requirements shall be waived. The
67 department shall take into consideration the owner’s net worth
68 and the economic impact on the owner in making the determination
69 of the owner’s financial ability. The June 30, 1996, application
70 deadline shall be waived for owners who cannot financially
71 comply.
72 (c) Sites accepted in the program are eligible for site
73 rehabilitation funding as provided in s. 376.3071.
74 (d) The following sites are excluded from eligibility:
75 1. Sites on property of the Federal Government;
76 2. Sites contaminated by pollutants that are not petroleum
77 products; or
78 3. Sites where the department has been denied site access;
79 or
80 4. Sites which are owned by a person who had knowledge of
81 the polluting condition when title was acquired unless the
82 person acquired title to the site after issuance of a notice of
83 site eligibility by the department.
84 (e) Participating sites are subject to a deductible as
85 determined by rule, not to exceed $10,000.
86
87 This subsection does not relieve a person who has acquired title
88 after July 1, 1992, from the duty to establish by a
89 preponderance of the evidence that he or she undertook, at the
90 time of acquisition, all appropriate inquiry into the previous
91 ownership and use of the property consistent with good
92 commercial or customary practice in an effort to minimize
93 liability, as required by s. 376.308(1)(c).
94 Section 2. Paragraph (b) of subsection (2), subsection (4),
95 paragraph (b) of subsection (5), paragraph (b) of subsection
96 (12), and subsection (13) of section 376.3071, Florida Statutes,
97 are amended to read:
98 376.3071 Inland Protection Trust Fund; creation; purposes;
99 funding.—
100 (2) INTENT AND PURPOSE.—
101 (b) It is the intent of the Legislature that the department
102 implement rules and procedures to improve the efficiency and
103 productivity of the Petroleum Restoration Program. The
104 department is directed to implement rules and policies to
105 eliminate and reduce duplication of site rehabilitation efforts,
106 paperwork, and documentation, and micromanagement of site
107 rehabilitation tasks. The department shall make efficiency and
108 productivity a priority in the administration of the Petroleum
109 Restoration Program and to this end, when necessary, shall use
110 petroleum program contracted services to improve the efficiency
111 and productivity of the program. Furthermore, when implementing
112 rules and procedures to improve such efficiency and
113 productivity, the department shall recognize and consider the
114 potential value of utilizing contracted inspection and
115 professional resources to efficiently and productively
116 administer the program.
117 (4) USES.—Whenever, in its determination, incidents of
118 inland contamination related to the storage of petroleum or
119 petroleum products may pose a threat to the public health,
120 safety, or welfare, water resources, or the environment, the
121 department shall obligate moneys available in the fund to
122 provide for:
123 (a) Prompt investigation and assessment of contamination
124 sites.
125 (b) Expeditious restoration or replacement of potable water
126 supplies as provided in s. 376.30(3)(c)1.
127 (c) Rehabilitation of contamination sites, which shall
128 consist of cleanup of affected soil, groundwater, and inland
129 surface waters, using the most cost-effective alternative that
130 is technologically feasible and reliable and that provides
131 adequate protection of the public health, safety, and welfare,
132 and water resources, and that minimizes environmental damage,
133 pursuant to the site selection and cleanup criteria established
134 by the department under subsection (5), except that this
135 paragraph does not authorize the department to obligate funds
136 for payment of costs which may be associated with, but are not
137 integral to, site rehabilitation, such as the cost for
138 retrofitting or replacing petroleum storage systems.
139 (d) Maintenance and monitoring of contamination sites.
140 (e) Inspection and supervision of activities described in
141 this subsection.
142 (f) Payment of expenses incurred by the department in its
143 efforts to obtain from responsible parties the payment or
144 recovery of reasonable costs resulting from the activities
145 described in this subsection.
146 (g) Payment of any other reasonable costs of
147 administration, including those administrative costs incurred by
148 the Department of Health in providing field and laboratory
149 services, toxicological risk assessment, and other assistance to
150 the department in the investigation of drinking water
151 contamination complaints and costs associated with public
152 information and education activities.
153 (h) Establishment and implementation of the compliance
154 verification program as authorized in s. 376.303(1)(a),
155 including contracting with local governments or state agencies
156 to provide for the administration of such program through
157 locally administered programs, to minimize the potential for
158 further contamination sites.
159 (i) Funding of the provisions of ss. 376.305(6) and
160 376.3072.
161 (j) Activities related to removal and replacement of
162 petroleum storage systems, exclusive of costs of any tank,
163 piping, dispensing unit, or related hardware, if soil removal is
164 approved as a component of site rehabilitation and requires
165 removal of the tank where remediation is conducted under this
166 section or if such activities were justified in an approved
167 remedial action plan.
168 (k) Reasonable costs of restoring property as nearly as
169 practicable to the conditions which existed before activities
170 associated with contamination assessment or remedial action
171 taken under s. 376.303(4).
172 (l) Repayment of loans to the fund.
173 (m) Expenditure of sums from the fund to cover ineligible
174 sites or costs as set forth in subsection (13), if the
175 department in its discretion deems it necessary to do so. In
176 such cases, the department may seek recovery and reimbursement
177 of costs in the same manner and pursuant to the same procedures
178 established for recovery and reimbursement of sums otherwise
179 owed to or expended from the fund.
180 (n) Payment of amounts payable under any service contract
181 entered into by the department pursuant to s. 376.3075, subject
182 to annual appropriation by the Legislature.
183 (o) Petroleum remediation pursuant to this section
184 throughout a state fiscal year. The department shall establish a
185 process to uniformly encumber appropriated funds throughout a
186 state fiscal year and shall allow for emergencies and imminent
187 threats to public health, safety, and welfare, water resources,
188 and the environment as provided in paragraph (5)(a). This
189 paragraph does not apply to appropriations associated with the
190 free product recovery initiative provided in paragraph (5)(c) or
191 the advanced cleanup program provided in s. 376.30713.
192 (p) Enforcement of this section and ss. 376.30-376.317 by
193 the Fish and Wildlife Conservation Commission. The department
194 shall disburse moneys to the commission for such purpose.
195 (q) Payments for program deductibles, copayments, and
196 limited contamination assessment reports that otherwise would be
197 paid by another state agency for state-funded petroleum
198 contamination site rehabilitation. This paragraph expires July
199 1, 2016.
200
201 The issuance of a site rehabilitation completion order pursuant
202 to subsection (5) or paragraph (12)(b) for contamination
203 eligible for programs funded by this section does not alter the
204 project’s eligibility for state-funded remediation if the
205 department determines that site conditions are not protective of
206 human health under actual or proposed circumstances of exposure
207 under subsection (5). The Inland Protection Trust Fund may only
208 be used only to fund the activities in ss. 376.30-376.317 except
209 ss. 376.3078 and 376.3079. Amounts on deposit in the fund in
210 each fiscal year must shall first be applied or allocated for
211 the payment of amounts payable by the department pursuant to
212 paragraph (n) under a service contract entered into by the
213 department pursuant to s. 376.3075 and appropriated in each year
214 by the Legislature before making or providing for other
215 disbursements from the fund. This subsection does not authorize
216 the use of the fund for cleanup of contamination caused
217 primarily by a discharge of solvents as defined in s.
218 206.9925(6), or polychlorinated biphenyls when their presence
219 causes them to be hazardous wastes, except solvent contamination
220 which is the result of chemical or physical breakdown of
221 petroleum products and is otherwise eligible. Facilities used
222 primarily for the storage of motor or diesel fuels as defined in
223 ss. 206.01 and 206.86 are not excluded from eligibility pursuant
224 to this section.
225 (5) SITE SELECTION AND CLEANUP CRITERIA.—
226 (b) It is the intent of the Legislature to protect the
227 health of all people under actual circumstances of exposure. The
228 secretary shall establish criteria by rule for the purpose of
229 determining, on a site-specific basis, the rehabilitation
230 program tasks that comprise a site rehabilitation program and
231 the level at which a rehabilitation program task and a site
232 rehabilitation program are completed. In establishing the rule,
233 the department shall incorporate, to the maximum extent
234 feasible, risk-based corrective action principles to achieve
235 protection of the public health, safety, and welfare, water
236 resources, and the environment in a cost-effective manner as
237 provided in this subsection. Criteria for determining what
238 constitutes a rehabilitation program task or completion of site
239 rehabilitation program tasks and site rehabilitation programs
240 shall be based upon the factors set forth in paragraph (a) and
241 the following additional factors:
242 1. The current exposure and potential risk of exposure to
243 humans and the environment including multiple pathways of
244 exposure.
245 2. The appropriate point of compliance with cleanup target
246 levels for petroleum products’ chemicals of concern. The point
247 of compliance shall be at the source of the petroleum
248 contamination. However, the department may temporarily move the
249 point of compliance to the boundary of the property, or to the
250 edge of the plume when the plume is within the property
251 boundary, while cleanup, including cleanup through natural
252 attenuation processes in conjunction with appropriate
253 monitoring, is proceeding. The department may also, pursuant to
254 criteria provided for in this paragraph, temporarily extend the
255 point of compliance beyond the property boundary with
256 appropriate monitoring, if such extension is needed to
257 facilitate natural attenuation or to address the current
258 conditions of the plume, if the public health, safety, and
259 welfare, water resources, and the environment are adequately
260 protected. Temporary extension of the point of compliance beyond
261 the property boundary, as provided in this subparagraph, must
262 include notice to local governments and owners of any property
263 into which the point of compliance is allowed to extend.
264 3. The appropriate site-specific cleanup goal. The site
265 specific cleanup goal shall be that all petroleum contamination
266 sites ultimately achieve the applicable cleanup target levels
267 provided in this paragraph. However, the department may allow
268 concentrations of the petroleum products’ chemicals of concern
269 to temporarily exceed the applicable cleanup target levels while
270 cleanup, including cleanup through natural attenuation processes
271 in conjunction with appropriate monitoring, is proceeding, if
272 the public health, safety, and welfare, water resources, and the
273 environment are adequately protected.
274 4. The appropriateness of using institutional or
275 engineering controls. Site rehabilitation programs may include
276 the use of institutional or engineering controls to eliminate
277 the potential exposure to petroleum products’ chemicals of
278 concern to humans or the environment. Use of such controls must
279 have prior department approval, and institutional controls may
280 not be acquired with moneys from the fund other than the costs
281 associated with a professional land survey or a specific purpose
282 survey, if such is needed, and costs associated with obtaining a
283 title report and recording fees. When institutional or
284 engineering controls are implemented to control exposure, the
285 removal of such controls must have prior department approval and
286 must be accompanied immediately by the resumption of active
287 cleanup or other approved controls unless cleanup target levels
288 pursuant to this paragraph have been achieved.
289 5. The additive effects of the petroleum products’
290 chemicals of concern. The synergistic effects of petroleum
291 products’ chemicals of concern must also be considered when the
292 scientific data becomes available.
293 6. Individual site characteristics which must include, but
294 not be limited to, the current and projected use of the affected
295 groundwater in the vicinity of the site, current and projected
296 land uses of the area affected by the contamination, the exposed
297 population, the degree and extent of contamination, the rate of
298 contaminant migration, the apparent or potential rate of
299 contaminant degradation through natural attenuation processes,
300 the location of the plume, and the potential for further
301 migration in relation to site property boundaries.
302 7. Applicable state water quality standards.
303 a. Cleanup target levels for petroleum products’ chemicals
304 of concern found in groundwater shall be the applicable state
305 water quality standards. Where such standards do not exist, the
306 cleanup target levels for groundwater shall be based on the
307 minimum criteria specified in department rule. The department
308 shall consider the following, as appropriate, in establishing
309 the applicable minimum criteria: calculations using a lifetime
310 cancer risk level of 1.0E-6; a hazard index of 1 or less; the
311 best achievable detection limit; the naturally occurring
312 background concentration; or nuisance, organoleptic, and
313 aesthetic considerations.
314 b. Where surface waters are exposed to petroleum
315 contaminated groundwater, the cleanup target levels for the
316 petroleum products’ chemicals of concern shall be based on the
317 surface water standards as established by department rule. The
318 point of measuring compliance with the surface water standards
319 shall be in the groundwater immediately adjacent to the surface
320 water body.
321 8. Whether deviation from state water quality standards or
322 from established criteria is appropriate. The department may
323 issue a “No Further Action Order” based upon the degree to which
324 the desired cleanup target level is achievable and can be
325 reasonably and cost-effectively implemented within available
326 technologies or engineering and institutional control
327 strategies. Where a state water quality standard is applicable,
328 a deviation may not result in the application of cleanup target
329 levels more stringent than the standard. In determining whether
330 it is appropriate to establish alternate cleanup target levels
331 at a site, the department may consider the effectiveness of
332 source removal that has been completed at the site and the
333 practical likelihood of the use of low yield or poor quality
334 groundwater; the use of groundwater near marine surface water
335 bodies; the current and projected use of the affected
336 groundwater in the vicinity of the site; or the use of
337 groundwater in the immediate vicinity of the storage tank area,
338 where it has been demonstrated that the groundwater
339 contamination is not migrating away from such localized source,
340 if the public health, safety, and welfare, water resources, and
341 the environment are adequately protected.
342 9. Appropriate cleanup target levels for soils.
343 a. In establishing soil cleanup target levels for human
344 exposure to petroleum products’ chemicals of concern found in
345 soils from the land surface to 2 feet below land surface, the
346 department shall consider the following, as appropriate:
347 calculations using a lifetime cancer risk level of 1.0E-6; a
348 hazard index of 1 or less; the best achievable detection limit;
349 or the naturally occurring background concentration.
350 b. Leachability-based soil target levels shall be based on
351 protection of the groundwater cleanup target levels or the
352 alternate cleanup target levels for groundwater established
353 pursuant to this paragraph, as appropriate. Source removal and
354 other cost-effective alternatives that are technologically
355 feasible shall be considered in achieving the leachability soil
356 target levels established by the department. The leachability
357 goals do not apply if the department determines, based upon
358 individual site characteristics, that petroleum products’
359 chemicals of concern will not leach into the groundwater at
360 levels which pose a threat to public health, safety, and
361 welfare, water resources, or the environment.
362
363 This paragraph does not restrict the department from temporarily
364 postponing completion of any site rehabilitation program for
365 which funds are being expended whenever such postponement is
366 necessary in order to make funds available for rehabilitation of
367 a contamination site with a higher priority status.
368 (12) SITE CLEANUP.—
369 (b) Low-scored site initiative.—Notwithstanding subsections
370 (5) and (6), a site with a priority ranking score of 29 points
371 or less may voluntarily participate in the low-scored site
372 initiative regardless of whether the site is eligible for state
373 restoration funding.
374 1. To participate in the low-scored site initiative, the
375 responsible party or property owner, or a responsible party who
376 provides evidence of authorization from the property owner, must
377 submit a “No Further Action” proposal and affirmatively
378 demonstrate that the following conditions imposed under
379 subparagraph 4. are met.:
380 a. Upon reassessment pursuant to department rule, the site
381 retains a priority ranking score of 29 points or less.
382 b. Excessively contaminated soil, as defined by department
383 rule, does not exist onsite as a result of a release of
384 petroleum products.
385 c. A minimum of 6 months of groundwater monitoring
386 indicates that the plume is shrinking or stable.
387 d. The release of petroleum products at the site does not
388 adversely affect adjacent surface waters, including their
389 effects on human health and the environment.
390 e. The area of groundwater containing the petroleum
391 products’ chemicals of concern is less than one-quarter acre and
392 is confined to the source property boundaries of the real
393 property on which the discharge originated.
394 f. Soils onsite that are subject to human exposure found
395 between land surface and 2 feet below land surface meet the soil
396 cleanup target levels established by department rule or human
397 exposure is limited by appropriate institutional or engineering
398 controls.
399 2. Upon affirmative demonstration that of the conditions
400 imposed under subparagraph 4. are met subparagraph 1., the
401 department shall issue a site rehabilitation completion order
402 incorporating the determination of “No Further Action.” proposal
403 submitted by the property owner or the responsible party, who
404 must provide evidence of authorization from the property owner
405 Such determination acknowledges that minimal contamination
406 exists onsite and that such contamination is not a threat to the
407 public health, safety, or welfare, water resources, or the
408 environment. If no contamination is detected, the department may
409 issue a site rehabilitation completion order.
410 3. Sites that are eligible for state restoration funding
411 may receive payment of costs for the low-scored site initiative
412 as follows:
413 a. A responsible party or property owner, or a responsible
414 party who provides evidence of authorization from the property
415 owner, may submit an assessment and limited remediation plan
416 designed to affirmatively demonstrate that the site meets the
417 conditions imposed under subparagraph 4 subparagraph 1.
418 Notwithstanding the priority ranking score of the site, the
419 department may approve the cost of the assessment and limited
420 remediation, including up to 12 6 months of groundwater
421 monitoring and 12 months of limited remediation activities in
422 one or more task assignments or modifications thereof, not to
423 exceed the threshold amount provided in s. 287.017 for CATEGORY
424 TWO, $30,000 for each site where the department has determined
425 that the assessment and limited remediation, if applicable, will
426 likely result in a determination of “No Further Action.”. The
427 department may not pay the costs associated with the
428 establishment of institutional or engineering controls other
429 than the costs associated with a professional land survey or a
430 specific purpose survey, if such is needed, and the costs
431 associated with obtaining a title report and paying recording
432 fees.
433 b. After the approval of initial site assessment results
434 provided pursuant to state funding under sub-subparagraph a.,
435 the department may approve an additional amount not to exceed
436 the threshold amount provided in s. 287.017 for CATEGORY TWO for
437 limited remediation needed to achieve a determination of “No
438 Further Action.”
439 c.b. The assessment and limited remediation work shall be
440 completed no later than 15 6 months after the department
441 authorizes the start of a state-funded, low-score site
442 initiative task. If groundwater monitoring is required after the
443 assessment and limited remediation in order to satisfy the
444 conditions under subparagraph 4., the department may authorize
445 an additional 12 months to complete the monitoring issues its
446 approval.
447 d.c. No more than $15 $10 million for the low-scored site
448 initiative may be encumbered from the fund in any fiscal year.
449 Funds shall be made available on a first-come, first-served
450 basis and shall be limited to 10 sites in each fiscal year for
451 each responsible party or property owner or each responsible
452 party who provides evidence of authorization from the property
453 owner.
454 e.d. Program deductibles, copayments, and the limited
455 contamination assessment report requirements under paragraph
456 (13)(d) (13)(c) do not apply to expenditures under this
457 paragraph.
458 4. The department shall issue an order incorporating the
459 “No Further Action” proposal submitted by a property owner or a
460 responsible party who provides evidence of authorization from
461 the property owner upon affirmative demonstration that all of
462 the following conditions are met:
463 a. Soil saturated with petroleum or petroleum products, or
464 soil that causes a total corrected hydrocarbon measurement of
465 500 parts per million or higher for the Gasoline Analytical
466 Group or 50 parts per million or higher for the Kerosene
467 Analytical Group, as defined by department rule, does not exist
468 onsite as a result of a release of petroleum products.
469 b. A minimum of 12 months of groundwater monitoring
470 indicates that the plume is shrinking or stable.
471 c. The release of petroleum products at the site does not
472 adversely affect adjacent surface waters, including their
473 effects on human health and the environment.
474 d. The area containing the petroleum products’ chemicals of
475 concern:
476 (I) Is confined to the source property boundaries of the
477 real property on which the discharge originated, unless the
478 property owner has requested or authorized a more limited area
479 in the “No Further Action” proposal submitted under this
480 subsection; or
481 (II) Has migrated from the source property onto or beneath
482 a transportation facility as defined s. 334.03(30) for which the
483 department has approved, and governmental entity owning the
484 transportation facility has agreed to institutional controls as
485 defined in s. 376.301(21). This sub-sub-subparagraph does not,
486 however, impose any legal liability on the transportation
487 facility owner, obligate such owner to engage in remediation, or
488 waive such owner’s right to recover costs for damages.
489 e. The groundwater contamination containing the petroleum
490 products’ chemicals of concern is not a threat to any permitted
491 potable water supply well.
492 f. Soils onsite found between land surface and 2 feet below
493 land surface which are subject to human exposure meet the soil
494 cleanup target levels established in subparagraph (5)(b)9., or
495 human exposure is limited by appropriate institutional or
496 engineering controls.
497
498 Issuance of a site rehabilitation completion order under this
499 paragraph acknowledges that minimal contamination exists onsite
500 and that such contamination is not a threat to the public
501 health, safety, or welfare; water resources; or the environment.
502 Pursuant to subsection (4), the issuance of the site
503 rehabilitation completion order, with or without conditions,
504 does not alter eligibility for state-funded rehabilitation that
505 would otherwise be applicable under this section.
506 (13) PETROLEUM CLEANUP PARTICIPATION PROGRAM.—To encourage
507 detection, reporting, and cleanup of contamination caused by
508 discharges of petroleum or petroleum products, the department
509 shall, within the guidelines established in this subsection,
510 implement a cost-sharing cleanup program to provide
511 rehabilitation funding assistance for all property contaminated
512 by discharges of petroleum or petroleum products from a
513 petroleum storage system occurring before January 1, 1995,
514 subject to a copayment provided for in a Petroleum Cleanup
515 Participation Program site rehabilitation agreement. Eligibility
516 is subject to an annual appropriation from the fund.
517 Additionally, funding for eligible sites is contingent upon
518 annual appropriation in subsequent years. Such continued state
519 funding is not an entitlement or a vested right under this
520 subsection. Eligibility shall be determined in the program,
521 notwithstanding any other provision of law, consent order,
522 order, judgment, or ordinance to the contrary.
523 (a)1. The department shall accept any discharge reporting
524 form received before January 1, 1995, as an application for this
525 program, and the facility owner or operator need not reapply.
526 2. Regardless of whether ownership has changed, owners or
527 operators of property that is contaminated by petroleum or
528 petroleum products from a petroleum storage system may apply for
529 such program by filing a written report of the contamination
530 incident, including evidence that such incident occurred before
531 January 1, 1995, with the department. Incidents of petroleum
532 contamination discovered after December 31, 1994, at sites which
533 have not stored petroleum or petroleum products for consumption,
534 use, or sale after such date shall be presumed to have occurred
535 before January 1, 1995. An operator’s filed report shall be an
536 application of the owner for all purposes. Sites reported to the
537 department after December 31, 1998, are not eligible for the
538 program.
539 (b) Subject to annual appropriation from the fund, sites
540 meeting the criteria of this subsection are eligible for up to
541 $400,000 of site rehabilitation funding assistance in priority
542 order pursuant to subsections (5) and (6). Sites meeting the
543 criteria of this subsection for which a site rehabilitation
544 completion order was issued before June 1, 2008, do not qualify
545 for the 2008 increase in site rehabilitation funding assistance
546 and are bound by the pre-June 1, 2008, limits. Sites meeting the
547 criteria of this subsection for which a site rehabilitation
548 completion order was not issued before June 1, 2008, regardless
549 of whether they have previously transitioned to nonstate-funded
550 cleanup status, may continue state-funded cleanup pursuant to
551 this section until a site rehabilitation completion order is
552 issued or the increased site rehabilitation funding assistance
553 limit is reached, whichever occurs first. The department may not
554 pay expenses incurred beyond the scope of an approved contract.
555 (c) The department may also approve supplemental funding of
556 up to $100,000 for additional remediation and monitoring if such
557 remediation and monitoring is necessary to achieve a
558 determination of “No Further Action.”
559 (d) Upon notification by the department that rehabilitation
560 funding assistance is available for the site pursuant to
561 subsections (5) and (6), the property owner, operator, or person
562 otherwise responsible for site rehabilitation shall provide the
563 department with a limited contamination assessment report and
564 shall enter into a Petroleum Cleanup Participation Program site
565 rehabilitation agreement with the department. The agreement must
566 provide for a 25-percent copayment by the owner, operator, or
567 person otherwise responsible for conducting site rehabilitation.
568 The owner, operator, or person otherwise responsible for
569 conducting site rehabilitation shall adequately demonstrate the
570 ability to meet the copayment obligation. The limited
571 contamination assessment report and the copayment costs may be
572 reduced or eliminated if the owner and all operators responsible
573 for restoration under s. 376.308 demonstrate that they cannot
574 financially comply with the copayment and limited contamination
575 assessment report requirements. The department shall take into
576 consideration the owner’s and operator’s net worth in making the
577 determination of financial ability. In the event the department
578 and the owner, operator, or person otherwise responsible for
579 site rehabilitation cannot complete negotiation of the cost
580 sharing agreement within 120 days after beginning negotiations,
581 the department shall terminate negotiations and the site shall
582 be ineligible for state funding under this subsection and all
583 liability protections provided for in this subsection shall be
584 revoked.
585 (e)(d) A report of a discharge made to the department by a
586 person pursuant to this subsection or any rules adopted pursuant
587 to this subsection may not be used directly as evidence of
588 liability for such discharge in any civil or criminal trial
589 arising out of the discharge.
590 (f)(e) This subsection does not preclude the department
591 from pursuing penalties under s. 403.141 for violations of any
592 law or any rule, order, permit, registration, or certification
593 adopted or issued by the department pursuant to its lawful
594 authority.
595 (g)(f) Upon the filing of a discharge reporting form under
596 paragraph (a), the department or local government may not pursue
597 any judicial or enforcement action to compel rehabilitation of
598 the discharge. This paragraph does not prevent any such action
599 with respect to discharges determined ineligible under this
600 subsection or to sites for which rehabilitation funding
601 assistance is available pursuant to subsections (5) and (6).
602 (h)(g) The following are excluded from participation in the
603 program:
604 1. Sites at which the department has been denied reasonable
605 site access to implement this section.
606 2. Sites that were active facilities when owned or operated
607 by the Federal Government.
608 3. Sites that are identified by the United States
609 Environmental Protection Agency to be on, or which qualify for
610 listing on, the National Priorities List under Superfund. This
611 exception does not apply to those sites for which eligibility
612 has been requested or granted as of the effective date of this
613 act under the Early Detection Incentive Program established
614 pursuant to s. 15, chapter 86-159, Laws of Florida.
615 4. Sites for which contamination is covered under the Early
616 Detection Incentive Program, the Abandoned Tank Restoration
617 Program, or the Petroleum Liability and Restoration Insurance
618 Program, in which case site rehabilitation funding assistance
619 shall continue under the respective program.
620 Section 3. Paragraph (d) of subsection (1), paragraph (a)
621 of subsection (2), and subsection (4) of section 376.30713,
622 Florida Statutes, are amended to read:
623 376.30713 Advanced cleanup.—
624 (1) In addition to the legislative findings provided in s.
625 376.3071, the Legislature finds and declares:
626 (d) It is appropriate for a person who is responsible for
627 site rehabilitation to share the costs associated with managing
628 and conducting advanced cleanup, to facilitate the opportunity
629 for advanced cleanup, and to mitigate the additional costs that
630 will be incurred by the state in conducting site rehabilitation
631 in advance of the site’s priority ranking. Such cost sharing
632 will result in more contaminated sites being cleaned up and
633 greater environmental benefits to the state. This section is
634 only available for sites eligible for restoration funding under
635 EDI, ATRP, or PLRIP. This section is available for discharges
636 eligible for restoration funding under the petroleum cleanup
637 participation program for the state’s cost share of site
638 rehabilitation. Applications must include a cost-sharing
639 commitment for this section in addition to the 25-percent
640 copayment requirement of the petroleum cleanup participation
641 program. This section is not available for any discharge under a
642 petroleum cleanup participation program where the 25-percent
643 copayment requirement of the petroleum cleanup participation
644 program has been reduced or eliminated pursuant to s.
645 376.3071(13)(d) s. 376.3071(13)(c).
646 (2) The department may approve an application for advanced
647 cleanup at eligible sites, notwithstanding before funding based
648 on the site’s priority ranking established pursuant to s.
649 376.3071(5)(a), pursuant to this section. Only the facility
650 owner or operator or the person otherwise responsible for site
651 rehabilitation qualifies as an applicant under this section.
652 (a) Advanced cleanup applications may be submitted between
653 May 1 and June 30 and between November 1 and December 31 of each
654 fiscal year. Applications submitted between May 1 and June 30
655 shall be for the fiscal year beginning July 1. An application
656 must consist of:
657 1. A commitment to pay 25 percent or more of the total
658 cleanup cost deemed recoverable under this section along with
659 proof of the ability to pay the cost share. The department shall
660 determine whether the cost savings demonstration is acceptable.
661 Such determination is not subject to chapter 120.
662 a. Applications for the aggregate cleanup of 5 or more
663 sites may be submitted in one of two formats to meet the cost
664 share requirement:
665 (I) For an aggregate application proposing that the
666 department enter into a performance-based contract for the
667 cleanup of 20 or more sites may use a commitment to pay, a
668 demonstrated cost savings to the department, or both to meet the
669 cost-share requirement.
670 (II) For an aggregate application relying on a demonstrated
671 cost savings to the department, the applicant shall, in
672 conjunction with the proposed agency term contractor, establish
673 and provide in the application the percentage of cost savings in
674 the aggregate that is being provided to the department for
675 cleanup of the sites under the application compared to the cost
676 of cleanup of those same sites using the current rates provided
677 to the department by the proposed agency term contractor. The
678 department shall determine whether the cost savings
679 demonstration is acceptable. Such determination is not subject
680 to chapter 120.
681 b. Applications for the cleanup of individual sites may be
682 submitted in one of two formats to meet the cost-share
683 requirement:
684 (I) For an individual application proposing that the
685 department enter into a performance-based contract may use a
686 commitment to pay, a demonstrated cost savings to the
687 department, or both to meet the requirement.
688 (II) For an individual application relying on a
689 demonstrated cost savings to the department, the applicant
690 shall, in conjunction with the proposed agency term contractor,
691 establish and provide in the application a 25-percent cost
692 savings to the department for cleanup of the site under the
693 application compared to the cost of cleanup of the same site
694 using the current rates provided to the department by the
695 proposed agency term contractor.
696 2. A nonrefundable review fee of $250 to cover the
697 administrative costs associated with the department’s review of
698 the application.
699 3. A limited contamination assessment report.
700 4. A proposed course of action.
701 5. A department site access agreement, or similar
702 agreements approved by the department that do not violate state
703 law, entered into with the property owner or owners, as
704 applicable, and evidence of authorization from such owner or
705 owners for petroleum site rehabilitation program tasks
706 consistent with the proposed course of action where the
707 applicant is not the property owner for any of the sites
708 contained in the application.
709
710 The limited contamination assessment report must be sufficient
711 to support the proposed course of action and to estimate the
712 cost of the proposed course of action. Costs incurred related to
713 conducting the limited contamination assessment report are not
714 refundable from the Inland Protection Trust Fund. Site
715 eligibility under this subsection or any other provision of this
716 section is not an entitlement to advanced cleanup or continued
717 restoration funding. The applicant shall certify to the
718 department that the applicant has the prerequisite authority to
719 enter into an advanced cleanup contract with the department. The
720 certification must be submitted with the application.
721 (4) The department may enter into contracts for a total of
722 up to $25 $15 million of advanced cleanup work in each fiscal
723 year. However, a facility or an applicant who bundles multiple
724 sites as specified in subparagraph (2)(a)1. may not be approved
725 for more than $5 million of cleanup activity in each fiscal
726 year. A property owner or responsible party may enter into a
727 voluntary cost-share agreement in which the property owner or
728 responsible party commits to bundle multiple sites and lists the
729 facilities that will be included in those future bundles. The
730 facilities listed are not subject to agency term contractor
731 assignment pursuant to department rule. The department reserves
732 the right to terminate or amend the voluntary cost-share
733 agreement for any identified site under the voluntary cost-share
734 agreement if the property owner or responsible party fails to
735 submit an application to bundle any site, not already covered by
736 an advance cleanup contract, under such voluntary cost-share
737 agreement within a subsequent open application period during
738 which it is eligible to participate. For the purposes of this
739 section, the term “facility” includes, but is not limited to,
740 multiple site facilities such as airports, port facilities, and
741 terminal facilities even though such enterprises may be treated
742 as separate facilities for other purposes under this chapter.
743 Section 4. This act shall take effect July 1, 2016.