Florida Senate - 2017 CS for CS for SB 1018 By the Committees on Appropriations; and Environmental Preservation and Conservation; and Senators Grimsley and Galvano 576-04391-17 20171018c2 1 A bill to be entitled 2 An act relating to pollution; creating s. 403.076, 3 F.S.; providing a short title; creating s. 403.077, 4 F.S.; providing goals and legislative findings; 5 specifying the authority of the Department of 6 Environmental Protection; specifying that the act does 7 not alter or affect the emergency management 8 responsibilities of certain other governmental 9 entities; creating s. 403.078, F.S.; defining the term 10 “reportable pollution release”; requiring an owner or 11 operator of an installation at which a reportable 12 pollution release occurred to provide certain 13 information to the department within 24 hours after 14 the discovery of the release; authorizing the owner or 15 operator to amend such notice; specifying compliance 16 and enforcement requirements; requiring owners or 17 operators to provide notice when a reportable 18 pollution release migrates outside the property 19 boundaries of the installation; requiring the 20 department to publish such information in a specified 21 manner; requiring the department to establish an 22 electronic mailing list; requiring the department to 23 provide a reporting form and e-mail address for such 24 notice; specifying that providing a notice does not 25 constitute an admission of liability or harm; 26 specifying penalties for violations; requiring the 27 department to adopt rules; amending s. 403.121, F.S.; 28 specifying penalties for failure to provide the 29 required notice; amending s. 376.3071, F.S.; providing 30 an exception to prompt payment requirements to 31 subcontractors and suppliers; amending s. 376.30713, 32 F.S.; revising legislative findings; specifying that 33 applicants for advanced cleanup of certain individual 34 sites are not subject to application period 35 limitations and need not pay a certain cost-sharing 36 commitment; requiring applications by such applicants 37 to be accepted on a first-come, first-served basis; 38 providing that such applications are not subject to 39 certain ranking provisions; specifying application 40 requirements; providing construction; increasing the 41 amount per year that the Department of Environmental 42 Protection may use for advanced cleanup work; 43 specifying expenditure limitations; revising duties of 44 property owners and responsible parties with respect 45 to voluntary cost-share agreements; amending s. 46 376.3078, F.S.; providing a statement of public 47 interest; authorizing site assessments in advance of 48 site priority ranking under certain circumstances; 49 specifying criteria for sites to be eligible for such 50 assessments; specifying what must be demonstrated 51 through such assessments; specifying criteria for the 52 assignment of assessment tasks; specifying funding 53 limitations; specifying the prioritization of 54 requests; amending s. 220.1845, F.S.; increasing the 55 total amount of an authorization for tax credits; 56 amending s. 376.30781, F.S.; increasing the total 57 amount of tax credits the department is responsible 58 for allocating; providing an effective date. 59 60 Be It Enacted by the Legislature of the State of Florida: 61 62 Section 1. Section 403.076, Florida Statutes, is created to 63 read: 64 403.076 Short title.—Sections 403.076-403.078 may be cited 65 as the “Public Notice of Pollution Act.” 66 Section 2. Section 403.077, Florida Statutes, is created to 67 read: 68 403.077 Public notice of pollution; goals and findings.— 69 (1) It is a goal of the state that the public be timely 70 notified of a discovered, reportable pollution release that may 71 pose an immediate danger to the public health, safety, or 72 welfare. 73 (2) The department has the authority and the duty to 74 control and prohibit pollution of the air, land, and water of 75 this state and has the primary responsibility to ensure that the 76 public is aware of reportable pollution releases. Alerting the 77 department about reportable pollution releases, within the 78 timeframes and in the manner provided by this act, will better 79 inform the department and the public regarding such releases and 80 the need, if any, to take action to protect the public health, 81 safety, and welfare. 82 (3) This act does not alter or affect the emergency 83 management responsibilities of the Governor, the Division of 84 Emergency Management, or the governing body of any political 85 subdivision of the state pursuant to chapter 252. 86 Section 3. Section 403.078, Florida Statutes, is created to 87 read: 88 403.078 Public notification of pollution.— 89 (1) DEFINITION.—As used in this section, the term 90 “reportable pollution release” means the release or discharge of 91 a substance from an installation to the air, land, or waters of 92 the state which is discovered by the owner or operator of the 93 installation, which is not authorized by law, and which is: 94 (a) Reportable to the State Watch Office within the 95 Division of Emergency Management pursuant to department rules, 96 permit, order, or variance; 97 (b) Reportable to the department or a contracted county 98 pursuant to department rules governing storage tank systems 99 under ss. 376.303, 376.321, and 376.322; 100 (c) Reportable to the department pursuant to department 101 rules requiring notice for noncompliance from underground 102 injection control systems where such noncompliance may endanger 103 public health or the environment and has the potential to 104 contaminate potable water wells outside the property boundaries 105 of the installation; 106 (d) A hazardous substance at or above the quantity 107 established in Table 302.4 of 40 C.F.R. s. 302.4, revised as of 108 July 1, 2016, for such substance, for which notification is 109 required by 40 C.F.R. s. 302.6; or 110 (e) An extremely hazardous substance pursuant to 40 C.F.R. 111 s. 355.61, at or above the quantity established in Appendices A 112 and B of 40 C.F.R. part 355, revised as of July 1, 2016, for 113 such substance, for which notice is required by 40 C.F.R. s. 114 355.33. 115 (2) OWNER AND OPERATOR RESPONSIBILITIES.— 116 (a) In the event of a reportable pollution release, any 117 person who is an owner or operator of the installation at which 118 the reportable pollution release occurred must provide a notice 119 containing the following information, to the extent known at the 120 time of such notice, to the department within 24 hours after its 121 discovery: 122 1. The name and address of the installation where the 123 reportable pollution release occurred. 124 2. The name and title of the reporting person and the 125 nature of his or her relationship to the installation. 126 3. The identification numbers for any active department 127 permits, variances, registrations, or orders that are relevant 128 to the reportable pollution release. 129 4. The name and telephone number of a contact person for 130 further information. 131 5. The substance released. 132 6. The estimated quantity of the substance released and, if 133 applicable, the estimated quantity that has since been 134 recovered. 135 7. The cause of the release. 136 8. The source of the release. 137 9. The location of the release. 138 10. The date, time, and duration of the release. 139 11. The medium into which the substance was released, 140 including, but not limited to, the outdoor air, land, 141 groundwater, aquifer, or specified waters or wetlands. 142 12. Whether the released substance has migrated to land or 143 waters of the state outside the property boundaries of the 144 installation and the location of such migration. 145 13. To the extent available, toxicological information 146 associated with the substance released as specified on a safety 147 data sheet or comparable source published by the Occupational 148 Safety and Health Administration or the Centers for Disease 149 Control and Prevention, or their successor agencies. 150 151 The owner or operator may also include in the notice any other 152 information he or she wishes in order to assist in the 153 protection of the public health, safety, and welfare. 154 (b) If multiple parties are subject to the notification 155 requirements based on a single reportable pollution release, a 156 single notification made by one party in accordance with this 157 section constitutes compliance on behalf of all parties subject 158 to the requirement. However, if the notification is not made in 159 accordance with this section, the department may pursue 160 enforcement against all parties subject to the requirement. 161 (c) If, after providing notice pursuant to paragraph (a), 162 the installation owner or operator determines that a reportable 163 pollution release did not occur or that an amendment to the 164 notice is warranted, the installation owner or operator may 165 submit a letter to the department documenting such 166 determination. 167 (d) If, after providing notice under paragraph (a), the 168 installation owner or operator determines that a release subject 169 to the noticing requirements of this act has migrated outside 170 the property boundaries of the installation, the owner or 171 operator, within 24 hours after such discovery, must provide an 172 additional notice to the department. Such notice must comply 173 with the requirements of paragraph (a) and specify the extent of 174 the migration outside the property boundaries. 175 (3) DEPARTMENTAL RESPONSIBILITIES.— 176 (a) The department shall publish on a website accessible to 177 the public all notices submitted by an owner or operator 178 pursuant to subsection (2) within 24 hours of receipt. 179 (b) The department shall create an electronic mailing list 180 for such notices and allow the public, including local 181 governments, health departments, news media, and other 182 interested persons, to subscribe to and receive periodic direct 183 announcement of any notices submitted pursuant to subsection 184 (2). The department shall establish regional electronic mailing 185 lists, such as by county or district boundaries, to allow 186 subscribers to determine the notices they wish to receive by 187 geographic area. 188 (c) The department shall establish an e-mail address and an 189 online form as options for owners and operators to provide the 190 notice specified in paragraphs (2)(a) and (b). 191 (4) ADMISSION OF LIABILITY OR HARM.—Providing notice under 192 subsection (2) does not constitute an admission of liability or 193 harm. 194 (5) VIOLATIONS.—For failure to provide the notification 195 required by paragraph (2)(a) or paragraph (2)(d), the owner or 196 operator shall be subject to the civil penalties specified in s. 197 403.121. 198 (6) ADOPTION OF RULES.—The department shall adopt rules 199 necessary to administer the provisions of this section. 200 Section 4. Present paragraph (f) of subsection (4) of 201 section 403.121, Florida Statutes, is redesignated as paragraph 202 (g), and a new paragraph (f) is added to that subsection, to 203 read: 204 403.121 Enforcement; procedure; remedies.—The department 205 shall have the following judicial and administrative remedies 206 available to it for violations of this chapter, as specified in 207 s. 403.161(1). 208 (4) In an administrative proceeding, in addition to the 209 penalties that may be assessed under subsection (3), the 210 department shall assess administrative penalties according to 211 the following schedule: 212 (f) For failure to provide required notice pursuant to s. 213 403.078, up to $10,000 per day for each day an installation 214 owner or operator is in violation of the section. 215 Section 5. Paragraph (h) of subsection (6) of section 216 376.3071, Florida Statutes, is amended to read: 217 376.3071 Inland Protection Trust Fund; creation; purposes; 218 funding.— 219 (6) CONTRACTING AND CONTRACTOR SELECTION REQUIREMENTS.— 220 (h) The contractor, or the person to whomwhichthe 221 contractor has assigned its right to payment pursuant to 222 paragraph (e), shall make prompt payment to subcontractors and 223 suppliers for their costs associated with an approved contract 224 pursuant to s. 287.0585, except that the contractor, or the 225 person to whom the contractor has assigned its right to payment 226 pursuant to paragraph (e), may remit payments to subcontractors 227 and suppliers within 30 working days after the contractor’s 228 receipt of payment by the department before the penalties 229 required by s. 287.0585(1) are applicable. 230 Section 6. Paragraphs (a) and (c) of subsection (1) and 231 subsections (2) and (4) of section 376.30713, Florida Statutes, 232 are amended to read: 233 376.30713 Advanced cleanup.— 234 (1) In addition to the legislative findings provided in s. 235 376.3071, the Legislature finds and declares: 236 (a) That the inability to conduct site rehabilitation in 237 advance of a site’s priority ranking pursuant to s. 238 376.3071(5)(a) may substantially impede or prohibit property 239 redevelopment, property transactions, or the proper completion 240 of public works projects. 241 (c) It is in the public interest and of substantial 242 economic benefit to the state to provide an opportunity for site 243 rehabilitation to be conducted on a limited basis at 244 contaminated sites, in advance of the site’s priority ranking, 245 to encourage redevelopment and facilitate property transactions 246 or public works projects. 247 (2) The department may approve an application for advanced 248 cleanup at eligible sites, including applications submitted 249 pursuant to paragraph (c), notwithstanding the site’s priority 250 ranking established pursuant to s. 376.3071(5)(a), pursuant to 251 this section. Only the facility owner or operator or the person 252 otherwise responsible for site rehabilitation qualifies as an 253 applicant under this section. 254 (a) Advanced cleanup applications may be submitted between 255 May 1 and June 30 and between November 1 and December 31 of each 256 fiscal year. Applications submitted between May 1 and June 30 257 shall be for the fiscal year beginning July 1. An application 258 must consist of: 259 1. A commitment to pay 25 percent or more of the total 260 cleanup cost deemed recoverable under this section along with 261 proof of the ability to pay the cost share. The department shall 262 determine whether the cost savings demonstration is acceptable. 263 Such determination is not subject to chapter 120. 264 a. Applications for the aggregate cleanup of five or more 265 sites may be submitted in one of two formats to meet the cost 266 share requirement: 267 (I) For an aggregate application proposing that the 268 department enter into a performance-based contract, the 269 applicant may use a commitment to pay, a demonstrated cost 270 savings to the department, or both to meet the requirement. 271 (II) For an aggregate application relying on a demonstrated 272 cost savings to the department, the applicant shall, in 273 conjunction with the proposed agency term contractor, establish 274 and provide in the application the percentage of cost savings in 275 the aggregate that is being provided to the department for 276 cleanup of the sites under the application compared to the cost 277 of cleanup of those same sites using the current rates provided 278 to the department by the proposed agency term contractor. 279 b. Applications for the cleanup of individual sites may be 280 submitted in one of two formats to meet the cost-share 281 requirement: 282 (I) For an individual application proposing that the 283 department enter into a performance-based contract, the 284 applicant may use a commitment to pay, a demonstrated cost 285 savings to the department, or both to meet the requirement. 286 (II) For an individual application relying on a 287 demonstrated cost savings to the department, the applicant 288 shall, in conjunction with the proposed agency term contractor, 289 establish and provide in the application a 25-percent cost 290 savings to the department for cleanup of the site under the 291 application compared to the cost of cleanup of the same site 292 using the current rates provided to the department by the 293 proposed agency term contractor. 294 2. A nonrefundable review fee of $250 to cover the 295 administrative costs associated with the department’s review of 296 the application. 297 3. A limited contamination assessment report. 298 4. A proposed course of action. 299 5. A department site access agreement, or similar 300 agreements approved by the department that do not violate state 301 law, entered into with the property owner or owners, as 302 applicable, and evidence of authorization from such owner or 303 owners for petroleum site rehabilitation program tasks 304 consistent with the proposed course of action where the 305 applicant is not the property owner for any of the sites 306 contained in the application. 307 308 The limited contamination assessment report must be sufficient 309 to support the proposed course of action and to estimate the 310 cost of the proposed course of action. Costs incurred related to 311 conducting the limited contamination assessment report are not 312 refundable from the Inland Protection Trust Fund. Site 313 eligibility under this subsection or any other provision of this 314 section is not an entitlement to advanced cleanup or continued 315 restoration funding. The applicant shall certify to the 316 department that the applicant has the prerequisite authority to 317 enter into an advanced cleanup contract with the department. The 318 certification must be submitted with the application. 319 (b) The department shall rank the applications based on the 320 percentage of cost-sharing commitment proposed by the applicant, 321 with the highest ranking given to the applicant who proposes the 322 highest percentage of cost sharing. If the department receives 323 applications that propose identical cost-sharing commitments and 324 that exceed the funds available to commit to all such proposals 325 during the advanced cleanup application period, the department 326 shall proceed to rerank those applicants. Those applicants 327 submitting identical cost-sharing proposals that exceed funding 328 availability must be so notified by the department and offered 329 the opportunity to raise their individual cost-share 330 commitments, in a period specified in the notice. At the close 331 of the period, the department shall proceed to rerank the 332 applications pursuant to this paragraph. 333 (c) Applications for the advanced cleanup of individual 334 sites scheduled for redevelopment are not subject to the 335 application period limitations or the requirement to pay 25 336 percent of the total cleanup cost specified in paragraph (a) or 337 to the cost-sharing commitment specified in paragraph (1)(d). 338 Applications must be accepted on a first-come, first-served 339 basis and are not subject to the ranking provisions of paragraph 340 (b). Applications for the advanced cleanup of individual sites 341 scheduled for redevelopment must include: 342 1. A nonrefundable review fee of $250 to cover the 343 administrative costs associated with the department’s review of 344 the application. 345 2. A limited contamination assessment report. The report 346 must be sufficient to support the proposed course of action and 347 to estimate the cost of the proposed course of action. Costs 348 incurred related to conducting and preparing the report are not 349 refundable from the Inland Protection Trust Fund. 350 3. A proposed course of action for cleanup of the site. 351 4. If the applicant is not the property owner for any of 352 the sites contained in the application, a department site access 353 agreement, or a similar agreement approved by the department and 354 not in violation of state law, entered into with the property 355 owner or owners, as applicable, and evidence of authorization 356 from such owner or owners for petroleum site rehabilitation 357 program tasks consistent with the proposed course of action. 358 5. A certification to the department stating that the 359 applicant has the prerequisite authority to enter into an 360 advanced cleanup contract with the department. The advanced 361 cleanup contract must include redevelopment and site 362 rehabilitation milestones. 363 6. Documentation, in the form of a letter from the local 364 government having jurisdiction over the area where the site is 365 located, which states that the local government is in agreement 366 with or approves the proposed redevelopment and that the 367 proposed redevelopment complies with applicable law and 368 requirements for such redevelopment. 369 7. A demonstrated reasonable assurance that the applicant 370 has sufficient financial resources to implement and complete the 371 redevelopment project. 372 373 Site eligibility under this section is not an entitlement to 374 advanced cleanup funding or continued restoration funding. 375 (4) The department may enter into contracts for a total of 376 up to $30$25million of advanced cleanup work in each fiscal 377 year. Up to $5 million of these funds may be designated by the 378 department for advanced cleanup of individual sites scheduled 379 for redevelopment under paragraph (2)(c). 380 (a)However,A facility or an applicant who bundles 381 multiple sites as specified in subparagraph (2)(a)1. may not be 382 approved for more than $5 million of cleanup activity in each 383 fiscal year. 384 (b) A facility or an applicant applying for advanced 385 cleanup of individual sites scheduled for redevelopment pursuant 386 to paragraph (2)(c) may not be approved for more than $1 million 387 of cleanup activity in any one fiscal year. 388 (c) A property owner or responsible party may enter into a 389 voluntary cost-share agreement in which the property owner or 390 responsible party commits to bundle multiple sites and lists the 391 facilities that will be included in those future bundles. The 392 facilities listed are not subject to agency term contractor 393 assignment pursuant to department rule. The department must 394 reservereservesthe right to terminate or amend the voluntary 395 cost-share agreement for any identified site under the voluntary 396 cost-share agreement if the property owner or responsible party 397 fails to submit an application to bundle any site, not already 398 covered by an advance cleanup contract, under such voluntary 399 cost-share agreement within threeasubsequent open application 400 periods or 18 months, whichever period is shorter,periodduring 401 which it is eligible to participate. The property owner or 402 responsible party must agree to conduct limited site assessments 403 on the identified sites within 12 months after the execution of 404 the voluntary cost-share agreement. For the purposes of this 405 section, the term “facility” includes, but is not limited to, 406 multiple site facilities such as airports, port facilities, and 407 terminal facilities even though such enterprises may be treated 408 as separate facilities for other purposes under this chapter. 409 Section 7. Subsection (14) is added to section 376.3078, 410 Florida Statutes, to read: 411 376.3078 Drycleaning facility restoration; funds; uses; 412 liability; recovery of expenditures.— 413 (14) ADVANCED SITE ASSESSMENT.—It is in the public 414 interest, and of substantial environmental and economic benefit 415 to the state, to provide an opportunity to conduct site 416 assessment on a limited basis at contaminated sites in advance 417 of the ranking of the sites on the priority list as specified in 418 subsection (8). 419 (a) A real property owner who is eligible for site 420 rehabilitation at a facility that has been determined eligible 421 for the drycleaning solvent cleanup program under this section 422 may request an advanced site assessment, and the department may 423 authorize the performance of a site assessment in advance of the 424 ranking of the site on the priority list as specified in 425 subsection (8), if the following criteria are met: 426 1. The site assessment information would provide new 427 information that would be sufficient for the department to 428 better evaluate the actual risk of the contamination, thereby 429 reducing the risk to public health and the environment; 430 2. The property owner agrees: 431 a. To implement the appropriate institutional controls 432 allowed by department rules adopted pursuant to subsection (4) 433 at the time the property owner requests the advanced site 434 assessment; and 435 b. To implement and maintain, upon completion of the 436 cleanup, the required institutional controls, or a combination 437 of institutional and engineering controls, when the site meets 438 the site rehabilitation criteria for closure with controls in 439 accordance with department rules adopted pursuant to subsection 440 (4); 441 3. Current conditions at the site allow the site assessment 442 to be conducted in a manner that will result in cost savings to 443 the Water Quality Assurance Trust Fund; 444 4. There is sufficient money in the annual Water Quality 445 Assurance Trust Fund appropriation for the drycleaning solvent 446 cleanup program to pay for the site assessment; and 447 5. In accordance with subsection (3), access to the site is 448 provided and the deductible is paid. 449 (b) A site may be assessed out of priority ranking order 450 when, at the department’s discretion, the site assessment will 451 provide a cost savings to the program. 452 (c) An advanced site assessment must incorporate risk-based 453 corrective action principles to achieve protection of human 454 health and safety and the environment in a cost-effective 455 manner, in accordance with subsection (4). The site assessment 456 must also be sufficient to estimate the cost and determine the 457 proposed course of action toward site cleanup. Advanced site 458 assessment activities performed under this subsection shall be 459 designed to affirmatively demonstrate that the site meets one of 460 the following findings based on the following specified 461 criteria: 462 1. Recommend remedial action to mitigate risks that, in the 463 judgment of the department, are a threat to human health or 464 where failure to prevent migration of drycleaning solvents would 465 cause irreversible damage to the environment; 466 2. Recommend additional groundwater monitoring to support 467 natural attenuation monitoring or long-term groundwater 468 monitoring; or 469 3. Recommend “no further action,” with or without 470 institutional controls or institutional and engineering 471 controls, for those sites that meet the “no further action” 472 criteria department rules adopted pursuant to subsection (4). 473 474 If the site does not meet one of the findings specified in 475 subparagraphs 1.-3., the department shall notify the property 476 owner in writing of this decision, and the site shall be 477 returned to its priority ranking order in accordance with its 478 score. 479 (d) Advanced site assessment program tasks shall be 480 assigned by the drycleaning solvent cleanup program. In addition 481 to the provisions in paragraph (a), the assignment of site 482 assessment tasks shall be based on the department’s 483 determination of contractor logistics, geographical 484 considerations, and other criteria that the department 485 determines are necessary to achieve the most cost-effective 486 approach. 487 (e) Available funding for advanced site assessments may not 488 exceed 10 percent of the annual Water Quality Assurance Trust 489 Fund appropriation for the drycleaning solvent cleanup program. 490 (f) The total funds committed to any one site may not 491 exceed $70,000. 492 (g) The department shall prioritize the requests for 493 advanced site assessment, based on the date of receipt and the 494 environmental and economic value to the state, until 10 percent 495 of the annual Water Quality Assurance Trust Fund appropriation, 496 as provided in paragraph (e), has been obligated. 497 Section 8. Paragraph (f) of subsection (2) of section 498 220.1845, Florida Statutes, is amended to read: 499 220.1845 Contaminated site rehabilitation tax credit.— 500 (2) AUTHORIZATION FOR TAX CREDIT; LIMITATIONS.— 501 (f) The total amount of the tax credits which may be 502 granted under this section is $21.6 million in the 2015-2016 503 fiscal year,and$5 million in the 2016-2017 fiscal year, and 504 $10 million annually thereafter. 505 Section 9. Subsection 4 of section 376.30781, Florida 506 Statutes, is amended to read: 507 376.30781 Tax credits for rehabilitation of drycleaning 508 solvent-contaminated sites and brownfield sites in designated 509 brownfield areas; application process; rulemaking authority; 510 revocation authority.— 511 (4) The Department of Environmental Protection is 512 responsible for allocating the tax credits provided for in s. 513 220.1845, which may not exceed a total of $21.6 million in tax 514 credits in the 2015-2016 fiscal year,and$5 million in tax 515 credits in the 2016-2017 fiscal year, and $10 million in tax 516 credits annually thereafter. 517 Section 10. This act shall take effect July 1, 2017.