CS for CS for SB 1018 First Engrossed 20171018e1 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.; defining the term “reportable pollution 5 release”; requiring an owner or operator of an 6 installation at which a reportable pollution release 7 occurred to provide certain information to the 8 department within 24 hours after the discovery of the 9 release; authorizing multiple parties to submit one 10 notification under certain circumstances; authorizing 11 the owner or operator to amend notices; requiring the 12 owner or operator to make additional notice upon 13 discovery of the release migrating outside of 14 installation boundaries; requiring the department to 15 publish such information in a specified manner; 16 requiring the department to establish an electronic 17 mailing list; requiring the department to provide a 18 reporting form and e-mail address for such notice; 19 specifying that providing a notice does not constitute 20 an admission of liability or harm; specifying 21 penalties for violations; requiring the department to 22 adopt rules; creating s. 403.078, F.S.; specifying 23 that the act does not alter certain emergency 24 responsibilities pursuant to ch. 252, F.S.; amending 25 s. 403.161, F.S.; specifying penalties; amending s. 26 14.2016, F.S.; creating the State Watch Office within 27 the Division of Emergency Management; specifying the 28 purpose of the office; amending s. 376.3071, F.S.; 29 providing an exception to prompt payment requirements 30 to subcontractors and suppliers; amending s. 31 376.30713, F.S.; revising legislative findings; 32 specifying that applicants for advanced cleanup of 33 certain individual sites are not subject to 34 application period limitations and need not pay a 35 certain cost-sharing commitment; requiring 36 applications by such applicants to be accepted on a 37 first-come, first-served basis; providing that such 38 applications are not subject to certain ranking 39 provisions; specifying application requirements; 40 providing construction; increasing the amount per year 41 that the Department of Environmental Protection may 42 use for advanced cleanup work; specifying expenditure 43 limitations; revising duties of property owners and 44 responsible parties with respect to voluntary cost 45 share agreements; amending s. 376.3078, F.S.; 46 providing a statement of public interest; authorizing 47 site assessments in advance of site priority ranking 48 under certain circumstances; specifying criteria for 49 sites to be eligible for such assessments; specifying 50 what must be demonstrated through such assessments; 51 specifying criteria for the assignment of assessment 52 tasks; specifying funding limitations; specifying the 53 prioritization of requests; requiring the department 54 to evaluate the potential for using a specified trust 55 fund for a specified purpose; requiring the department 56 to issue a request for information regarding the 57 potential for damage to underground petroleum systems 58 and to compile a report; requiring the report to be 59 submitted to the Legislature and the Governor; 60 providing an appropriation; providing an expiration 61 date; providing an effective date. 62 63 Be It Enacted by the Legislature of the State of Florida: 64 65 Section 1. Section 403.076, Florida Statutes, is created to 66 read: 67 403.076 Short title.—Sections 403.076-403.078 may be cited 68 as the “Public Notice of Pollution Act.” 69 Section 2. Section 403.077, Florida Statutes, is created to 70 read: 71 403.077 Public notification of pollution.— 72 (1) DEFINITION.—As used in this section, the term 73 “reportable pollution release” means the release or discharge of 74 a substance from an installation to the air, land, or waters of 75 the state which is discovered by the owner or operator of the 76 installation, which is not authorized by law, and which is 77 reportable to the State Watch Office within the Division of 78 Emergency Management pursuant to any department rule, permit, 79 order, or variance. 80 (2) OWNER AND OPERATOR RESPONSIBILITIES.— 81 (a) In the event of a reportable pollution release, an 82 owner or operator of the installation at which the reportable 83 pollution release occurs must provide to the department 84 information reported to the State Watch Office within the 85 Division of Emergency Management pursuant to any department 86 rule, permit, order, or variance, within 24 hours after the 87 owner’s or operator’s discovery of such reportable pollution 88 release. 89 (b) If multiple parties are subject to the notification 90 requirements based on a single reportable pollution release, a 91 single notification made by one party in accordance with this 92 section constitutes compliance on behalf of all parties subject 93 to the requirement. However, if the notification is not made in 94 accordance with this section, the department may pursue 95 enforcement against all parties subject to the requirement. 96 (c) If, after providing notice pursuant to paragraph (a), 97 the owner or operator of the installation determines that a 98 reportable pollution release did not occur or that an amendment 99 to the notice is warranted, the owner or operator may submit a 100 letter to the department documenting such determination. 101 (d) If, after providing notice pursuant to paragraph (a), 102 the installation owner or operator discovers that a reportable 103 pollution release has migrated outside the property boundaries 104 of the installation, the owner or operator must provide an 105 additional notice to the department that the release has 106 migrated outside the property boundaries within 24 hours after 107 its discovery of the migration outside of the property 108 boundaries. 109 (3) DEPARTMENT RESPONSIBILITIES.— 110 (a) The department shall publish on a website accessible to 111 the public all notices submitted by an owner or operator 112 pursuant to subsection (2) within 24 hours after receipt. 113 (b) The department shall create an electronic mailing list 114 for such notices and allow the public, including local 115 governments, health departments, news media, and other 116 interested persons, to subscribe to and receive periodic direct 117 announcement of any notices submitted pursuant to subsection 118 (2). The department shall establish regional electronic mailing 119 lists, such as by county or district boundaries, to allow 120 subscribers to determine the notices they wish to receive by 121 geographic area. 122 (c) The department shall establish an e-mail address and an 123 online form as options for owners and operators to provide the 124 notice specified in subsection (2). The online form may not 125 require the submission of information in addition to what is 126 required for submission pursuant to paragraph (2)(a). 127 (d) The department shall adopt rules necessary to implement 128 the requirements of this subsection. 129 (4) ADMISSION OF LIABILITY OR HARM.—Providing notice under 130 subsection (2) does not constitute an admission of liability or 131 harm. 132 (5) VIOLATIONS.—Failure to provide the notification 133 required by subsection (2) shall subject the owner or operator 134 to the civil penalties specified in s. 403.121. 135 Section 3. Section 403.078, Florida Statutes, is created to 136 read: 137 403.078 Effect on other law.—The Public Notice of Pollution 138 Act does not alter or affect the emergency management 139 responsibilities of the Governor, the Division of Emergency 140 Management, or the governing body of any political subdivision 141 of the state pursuant to chapter 252. 142 Section 4. Paragraph (e) is added to subsection (1) of 143 section 403.161, Florida Statutes, to read: 144 403.161 Prohibitions, violation, penalty, intent.— 145 (1) It shall be a violation of this chapter, and it shall 146 be prohibited for any person: 147 (e) To fail to provide required notice pursuant to s. 148 403.077. 149 Section 5. Section 14.2016, Florida Statutes, is amended to 150 read: 151 14.2016 Division of Emergency Management.— 152 (1) The Division of Emergency Management is established 153 within the Executive Office of the Governor. The division shall 154 be a separate budget entity, as provided in the General 155 Appropriations Act and shall prepare and submit a budget request 156 in accordance with chapter 216. The division shall be 157 responsible for all professional, technical, and administrative 158 support functions necessary to carry out its responsibilities 159 under part I of chapter 252. The director of the division shall 160 be appointed by and serve at the pleasure of the Governor and 161 shall be the head of the division for all purposes. The division 162 shall administer programs to rapidly apply all available aid to 163 communities stricken by an emergency as defined in s. 252.34 164 and, for this purpose, shall provide liaison with federal 165 agencies and other public and private agencies. 166 (2) The State Watch Office is established within the 167 Division of Emergency Management. 168 (a) The primary purpose of the office is to record, 169 analyze, and share information with federal, state, and county 170 entities for appropriate response to emergencies. 171 (b) The office is not a dispatch center, but a 172 clearinghouse of information to be shared with other 173 governmental entities that can independently act within their 174 own authority and protocols. 175 Section 6. Paragraph (h) of subsection (6) of section 176 376.3071, Florida Statutes, is amended to read: 177 376.3071 Inland Protection Trust Fund; creation; purposes; 178 funding.— 179 (6) CONTRACTING AND CONTRACTOR SELECTION REQUIREMENTS.— 180 (h) The contractor, or the person to whomwhichthe 181 contractor has assigned its right to payment pursuant to 182 paragraph (e), shall make prompt payment to subcontractors and 183 suppliers for their costs associated with an approved contract 184 pursuant to s. 287.0585, except that the contractor, or the 185 person to whom the contractor has assigned its right to payment 186 pursuant to paragraph (e), may remit payments to subcontractors 187 and suppliers within 30 working days after the contractor’s 188 receipt of payment by the department before the penalties 189 required by s. 287.0585(1) are applicable. 190 Section 7. Paragraphs (a) and (c) of subsection (1) and 191 subsections (2) and (4) of section 376.30713, Florida Statutes, 192 are amended to read: 193 376.30713 Advanced cleanup.— 194 (1) In addition to the legislative findings provided in s. 195 376.3071, the Legislature finds and declares: 196 (a) That the inability to conduct site rehabilitation in 197 advance of a site’s priority ranking pursuant to s. 198 376.3071(5)(a) may substantially impede or prohibit property 199 redevelopment, property transactions, or the proper completion 200 of public works projects. 201 (c) It is in the public interest and of substantial 202 economic benefit to the state to provide an opportunity for site 203 rehabilitation to be conducted on a limited basis at 204 contaminated sites, in advance of the site’s priority ranking, 205 to encourage redevelopment and facilitate property transactions 206 or public works projects. 207 (2) The department may approve an application for advanced 208 cleanup at eligible sites, including applications submitted 209 pursuant to paragraph (c), notwithstanding the site’s priority 210 ranking established pursuant to s. 376.3071(5)(a), pursuant to 211 this section. Only the facility owner or operator or the person 212 otherwise responsible for site rehabilitation qualifies as an 213 applicant under this section. 214 (a) Advanced cleanup applications may be submitted between 215 May 1 and June 30 and between November 1 and December 31 of each 216 fiscal year. Applications submitted between May 1 and June 30 217 shall be for the fiscal year beginning July 1. An application 218 must consist of: 219 1. A commitment to pay 25 percent or more of the total 220 cleanup cost deemed recoverable under this section along with 221 proof of the ability to pay the cost share. The department shall 222 determine whether the cost savings demonstration is acceptable. 223 Such determination is not subject to chapter 120. 224 a. Applications for the aggregate cleanup of five or more 225 sites may be submitted in one of two formats to meet the cost 226 share requirement: 227 (I) For an aggregate application proposing that the 228 department enter into a performance-based contract, the 229 applicant may use a commitment to pay, a demonstrated cost 230 savings to the department, or both to meet the requirement. 231 (II) For an aggregate application relying on a demonstrated 232 cost savings to the department, the applicant shall, in 233 conjunction with the proposed agency term contractor, establish 234 and provide in the application the percentage of cost savings in 235 the aggregate that is being provided to the department for 236 cleanup of the sites under the application compared to the cost 237 of cleanup of those same sites using the current rates provided 238 to the department by the proposed agency term contractor. 239 b. Applications for the cleanup of individual sites may be 240 submitted in one of two formats to meet the cost-share 241 requirement: 242 (I) For an individual application proposing that the 243 department enter into a performance-based contract, the 244 applicant may use a commitment to pay, a demonstrated cost 245 savings to the department, or both to meet the requirement. 246 (II) For an individual application relying on a 247 demonstrated cost savings to the department, the applicant 248 shall, in conjunction with the proposed agency term contractor, 249 establish and provide in the application a 25-percent cost 250 savings to the department for cleanup of the site under the 251 application compared to the cost of cleanup of the same site 252 using the current rates provided to the department by the 253 proposed agency term contractor. 254 2. A nonrefundable review fee of $250 to cover the 255 administrative costs associated with the department’s review of 256 the application. 257 3. A limited contamination assessment report. 258 4. A proposed course of action. 259 5. A department site access agreement, or similar 260 agreements approved by the department that do not violate state 261 law, entered into with the property owner or owners, as 262 applicable, and evidence of authorization from such owner or 263 owners for petroleum site rehabilitation program tasks 264 consistent with the proposed course of action where the 265 applicant is not the property owner for any of the sites 266 contained in the application. 267 268 The limited contamination assessment report must be sufficient 269 to support the proposed course of action and to estimate the 270 cost of the proposed course of action. Costs incurred related to 271 conducting the limited contamination assessment report are not 272 refundable from the Inland Protection Trust Fund. Site 273 eligibility under this subsection or any other provision of this 274 section is not an entitlement to advanced cleanup or continued 275 restoration funding. The applicant shall certify to the 276 department that the applicant has the prerequisite authority to 277 enter into an advanced cleanup contract with the department. The 278 certification must be submitted with the application. 279 (b) The department shall rank the applications based on the 280 percentage of cost-sharing commitment proposed by the applicant, 281 with the highest ranking given to the applicant who proposes the 282 highest percentage of cost sharing. If the department receives 283 applications that propose identical cost-sharing commitments and 284 that exceed the funds available to commit to all such proposals 285 during the advanced cleanup application period, the department 286 shall proceed to rerank those applicants. Those applicants 287 submitting identical cost-sharing proposals that exceed funding 288 availability must be so notified by the department and offered 289 the opportunity to raise their individual cost-share 290 commitments, in a period specified in the notice. At the close 291 of the period, the department shall proceed to rerank the 292 applications pursuant to this paragraph. 293 (c) Applications for the advanced cleanup of individual 294 sites scheduled for redevelopment are not subject to the 295 application period limitations or the requirement to pay 25 296 percent of the total cleanup cost specified in paragraph (a) or 297 to the cost-sharing commitment specified in paragraph (1)(d). 298 Applications must be accepted on a first-come, first-served 299 basis and are not subject to the ranking provisions of paragraph 300 (b). Applications for the advanced cleanup of individual sites 301 scheduled for redevelopment must include: 302 1. A nonrefundable review fee of $250 to cover the 303 administrative costs associated with the department’s review of 304 the application. 305 2. A limited contamination assessment report. The report 306 must be sufficient to support the proposed course of action and 307 to estimate the cost of the proposed course of action. Costs 308 incurred related to conducting and preparing the report are not 309 refundable from the Inland Protection Trust Fund. 310 3. A proposed course of action for cleanup of the site. 311 4. If the applicant is not the property owner for any of 312 the sites contained in the application, a department site access 313 agreement, or a similar agreement approved by the department and 314 not in violation of state law, entered into with the property 315 owner or owners, as applicable, and evidence of authorization 316 from such owner or owners for petroleum site rehabilitation 317 program tasks consistent with the proposed course of action. 318 5. A certification to the department stating that the 319 applicant has the prerequisite authority to enter into an 320 advanced cleanup contract with the department. The advanced 321 cleanup contract must include redevelopment and site 322 rehabilitation milestones. 323 6. Documentation, in the form of a letter from the local 324 government having jurisdiction over the area where the site is 325 located, which states that the local government is in agreement 326 with or approves the proposed redevelopment and that the 327 proposed redevelopment complies with applicable law and 328 requirements for such redevelopment. 329 7. A demonstrated reasonable assurance that the applicant 330 has sufficient financial resources to implement and complete the 331 redevelopment project. 332 333 Site eligibility under this section is not an entitlement to 334 advanced cleanup funding or continued restoration funding. 335 (4) The department may enter into contracts for a total of 336 up to $30$25million of advanced cleanup work in each fiscal 337 year. Up to $5 million of these funds may be designated by the 338 department for advanced cleanup of individual sites scheduled 339 for redevelopment under paragraph (2)(c). 340 (a)However,A facility or an applicant who bundles 341 multiple sites as specified in subparagraph (2)(a)1. may not be 342 approved for more than $5 million of cleanup activity in each 343 fiscal year. 344 (b) A facility or an applicant applying for advanced 345 cleanup of individual sites scheduled for redevelopment pursuant 346 to paragraph (2)(c) may not be approved for more than $1 million 347 of cleanup activity in any one fiscal year. 348 (c) A property owner or responsible party may enter into a 349 voluntary cost-share agreement in which the property owner or 350 responsible party commits to bundle multiple sites and lists the 351 facilities that will be included in those future bundles. The 352 facilities listed are not subject to agency term contractor 353 assignment pursuant to department rule. The department must 354 reservereservesthe right to terminate or amend the voluntary 355 cost-share agreement for any identified site under the voluntary 356 cost-share agreement if the property owner or responsible party 357 fails to submit an application to bundle any site, not already 358 covered by an advance cleanup contract, under such voluntary 359 cost-share agreement within threeasubsequent open application 360 periods or 18 months, whichever period is shorter,periodduring 361 which it is eligible to participate. The property owner or 362 responsible party must agree to conduct limited site assessments 363 on the identified sites within 12 months after the execution of 364 the voluntary cost-share agreement. For the purposes of this 365 section, the term “facility” includes, but is not limited to, 366 multiple site facilities such as airports, port facilities, and 367 terminal facilities even though such enterprises may be treated 368 as separate facilities for other purposes under this chapter. 369 Section 8. Subsection (14) is added to section 376.3078, 370 Florida Statutes, to read: 371 376.3078 Drycleaning facility restoration; funds; uses; 372 liability; recovery of expenditures.— 373 (14) ADVANCED SITE ASSESSMENT.—It is in the public 374 interest, and of substantial environmental and economic benefit 375 to the state, to provide an opportunity to conduct site 376 assessment on a limited basis at contaminated sites in advance 377 of the ranking of the sites on the priority list as specified in 378 subsection (8). 379 (a) A real property owner who is eligible for site 380 rehabilitation at a facility that has been determined eligible 381 for the drycleaning solvent cleanup program under this section 382 may request an advanced site assessment, and the department may 383 authorize the performance of a site assessment in advance of the 384 ranking of the site on the priority list as specified in 385 subsection (8), if the following criteria are met: 386 1. The site assessment information would provide new 387 information that would be sufficient for the department to 388 better evaluate the actual risk of the contamination, thereby 389 reducing the risk to public health and the environment; 390 2. The property owner agrees: 391 a. To implement the appropriate institutional controls 392 allowed by department rules adopted pursuant to subsection (4) 393 at the time the property owner requests the advanced site 394 assessment; and 395 b. To implement and maintain, upon completion of the 396 cleanup, the required institutional controls, or a combination 397 of institutional and engineering controls, when the site meets 398 the site rehabilitation criteria for closure with controls in 399 accordance with department rules adopted pursuant to subsection 400 (4); 401 3. Current conditions at the site allow the site assessment 402 to be conducted in a manner that will result in cost savings to 403 the Water Quality Assurance Trust Fund; 404 4. There is sufficient money in the annual Water Quality 405 Assurance Trust Fund appropriation for the drycleaning solvent 406 cleanup program to pay for the site assessment; and 407 5. In accordance with subsection (3), access to the site is 408 provided and the deductible is paid. 409 (b) A site may be assessed out of priority ranking order 410 when, at the department’s discretion, the site assessment will 411 provide a cost savings to the program. 412 (c) An advanced site assessment must incorporate risk-based 413 corrective action principles to achieve protection of human 414 health and safety and the environment in a cost-effective 415 manner, in accordance with subsection (4). The site assessment 416 must also be sufficient to estimate the cost and determine the 417 proposed course of action toward site cleanup. Advanced site 418 assessment activities performed under this subsection shall be 419 designed to affirmatively demonstrate that the site meets one of 420 the following findings based on the following specified 421 criteria: 422 1. Recommend remedial action to mitigate risks that, in the 423 judgment of the department, are a threat to human health or 424 where failure to prevent migration of drycleaning solvents would 425 cause irreversible damage to the environment; 426 2. Recommend additional groundwater monitoring to support 427 natural attenuation monitoring or long-term groundwater 428 monitoring; or 429 3. Recommend “no further action,” with or without 430 institutional controls or institutional and engineering 431 controls, for those sites that meet the “no further action” 432 criteria department rules adopted pursuant to subsection (4). 433 434 If the site does not meet one of the findings specified in 435 subparagraphs 1.-3., the department shall notify the property 436 owner in writing of this decision, and the site shall be 437 returned to its priority ranking order in accordance with its 438 score. 439 (d) Advanced site assessment program tasks shall be 440 assigned by the drycleaning solvent cleanup program. In addition 441 to the provisions in paragraph (a), the assignment of site 442 assessment tasks shall be based on the department’s 443 determination of contractor logistics, geographical 444 considerations, and other criteria that the department 445 determines are necessary to achieve the most cost-effective 446 approach. 447 (e) Available funding for advanced site assessments may not 448 exceed 10 percent of the annual Water Quality Assurance Trust 449 Fund appropriation for the drycleaning solvent cleanup program. 450 (f) The total funds committed to any one site may not 451 exceed $70,000. 452 (g) The department shall prioritize the requests for 453 advanced site assessment, based on the date of receipt and the 454 environmental and economic value to the state, until 10 percent 455 of the annual Water Quality Assurance Trust Fund appropriation, 456 as provided in paragraph (e), has been obligated. 457 Section 9. (1) The Department of Environmental Protection 458 shall evaluate the potential for using the Inland Protection 459 Trust Fund to respond to the damage or potential damage to 460 underground storage tank systems caused by ethanol or biodiesel. 461 The department shall issue a request for information regarding 462 the potential for damage to underground petroleum systems by 463 ethanol or biodiesel and the potential costs of implementing and 464 maintaining a program to address such damage. The department 465 shall compile this information into a report, which shall be 466 submitted to the President of the Senate, the Speaker of the 467 House of Representatives, and the Governor by December 15, 2017. 468 (2) For the 2017-2018 fiscal year, the sum of $25,000 in 469 nonrecurring funds from the Inland Protection Trust Fund is 470 provided to fund the program provided in subsection (1). 471 (3) This section expires December 30, 2017. 472 Section 10. This act shall take effect July 1, 2017.