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 whom which the
  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 $25 million 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  reserve reserves the 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 three a subsequent open application
  360  periods or 18 months, whichever period is shorter, period during
  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.