Florida Senate - 2017                        COMMITTEE AMENDMENT
       Bill No. SB 1278
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/19/2017           .                                

       The Committee on Environmental Preservation and Conservation
       (Grimsley) recommended the following:
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraph (h) is added to subsection (1) of
    6  section 376.3071, Florida Statutes, paragraph (a) of subsection
    7  (2) and subsection (4) of that section are amended, and
    8  subsections (15) and (16) are added to that section, to read:
    9         376.3071 Inland Protection Trust Fund; creation; purposes;
   10  funding.—
   11         (1) FINDINGS.—In addition to the legislative findings set
   12  forth in s. 376.30, the Legislature finds and declares:
   13         (h)That Congress enacted the Energy Policy Act of 2005,
   14  amending the Clean Air Act, to establish a Renewable Fuel
   15  Standard requiring the use of ethanol as an oxygenate additive
   16  for gasoline and biodiesel as an additive for ultra-low sulfur
   17  diesel fuel. An unintended consequence of the inclusion of
   18  ethanol in gasoline and biodiesel in diesel fuel has been to
   19  cause, and potentially cause, significant corrosion and other
   20  damage to petroleum storage system components regulated under
   21  this chapter. The Legislature further finds that petroleum
   22  storage system components have been found by the department in
   23  its equipment approval process to meet compatibility standards;
   24  however, these standards may have subsequently changed due to
   25  the introduction of ethanol and biodiesel. This state enacted
   26  secondary containment requirements before Congress’ mandated
   27  introduction of ethanol into gasoline and biodiesel into ultra
   28  low sulfur diesel fuel. Therefore, owners and operators of
   29  petroleum storage facilities in Florida who complied with this
   30  state’s secondary containment requirements and installed
   31  approved equipment that may not have been evaluated for
   32  compatibility with ethanol and biodiesel, cross-contamination
   33  due to the storage of gasoline and diesel fuel, and the effects
   34  of condensation and minimal amounts of water in storage tanks
   35  are at a particular risk for having to repair or replace
   36  equipment or take other preventive measures in advance of the
   37  end of the equipment’s expected useful life in order to prevent
   38  releases or discharges of pollutants.
   39         (2) INTENT AND PURPOSE.—
   40         (a) It is the intent of the Legislature to establish the
   41  Inland Protection Trust Fund to serve as a repository for funds
   42  which will enable the department to respond without delay to
   43  incidents of inland contamination, and damage or potential
   44  damage to storage tank systems caused by ethanol or biodiesel as
   45  described in subsection (15) which may result in such incidents,
   46  related to the storage of petroleum and petroleum products in
   47  order to protect the public health, safety, and welfare and to
   48  minimize environmental damage.
   49         (4) USES.—Whenever, in its determination, incidents of
   50  inland contamination, or potential incidents as provided in
   51  subsection (15), related to the storage of petroleum or
   52  petroleum products may pose a threat to the public health,
   53  safety, or welfare, water resources, or the environment, the
   54  department shall obligate moneys available in the fund to
   55  provide for:
   56         (a) Prompt investigation and assessment of contamination
   57  sites.
   58         (b) Expeditious restoration or replacement of potable water
   59  supplies as provided in s. 376.30(3)(c)1.
   60         (c) Rehabilitation of contamination sites, which shall
   61  consist of cleanup of affected soil, groundwater, and inland
   62  surface waters, using the most cost-effective alternative that
   63  is technologically feasible and reliable and that provides
   64  adequate protection of the public health, safety, and welfare,
   65  and water resources, and that minimizes environmental damage,
   66  pursuant to the site selection and cleanup criteria established
   67  by the department under subsection (5)., except that This
   68  paragraph does not authorize the department to obligate funds
   69  for payment of costs which may be associated with, but are not
   70  integral to, site rehabilitation, such as the cost for
   71  retrofitting or replacing petroleum storage systems, unless
   72  repair, replacement, or other preventive measures are authorized
   73  pursuant to subsection (15).
   74         (d) Maintenance and monitoring of contamination sites.
   75         (e) Inspection and supervision of activities described in
   76  this subsection.
   77         (f) Payment of expenses incurred by the department in its
   78  efforts to obtain from responsible parties the payment or
   79  recovery of reasonable costs resulting from the activities
   80  described in this subsection.
   81         (g) Payment of any other reasonable costs of
   82  administration, including those administrative costs incurred by
   83  the Department of Health in providing field and laboratory
   84  services, toxicological risk assessment, and other assistance to
   85  the department in the investigation of drinking water
   86  contamination complaints and costs associated with public
   87  information and education activities.
   88         (h) Establishment and implementation of the compliance
   89  verification program as authorized in s. 376.303(1)(a),
   90  including contracting with local governments or state agencies
   91  to provide for the administration of such program through
   92  locally administered programs, to minimize the potential for
   93  further contamination sites.
   94         (i) Funding of the provisions of ss. 376.305(6) and
   95  376.3072.
   96         (j) Activities related to removal and replacement of
   97  petroleum storage systems, if repair, replacement, or other
   98  preventive measures are authorized pursuant to subsection (15),
   99  or exclusive of costs of any tank, piping, dispensing unit, or
  100  related hardware, if soil removal is approved as a component of
  101  site rehabilitation and requires removal of the tank where
  102  remediation is conducted under this section, or if such
  103  activities were justified in an approved remedial action plan.
  104         (k) Reasonable costs of restoring property as nearly as
  105  practicable to the conditions which existed before activities
  106  associated with contamination assessment or remedial action
  107  taken under s. 376.303(4).
  108         (l) Repayment of loans to the fund.
  109         (m) Expenditure of sums from the fund to cover ineligible
  110  sites or costs as set forth in subsection (13), if the
  111  department in its discretion deems it necessary to do so. In
  112  such cases, the department may seek recovery and reimbursement
  113  of costs in the same manner and pursuant to the same procedures
  114  established for recovery and reimbursement of sums otherwise
  115  owed to or expended from the fund.
  116         (n) Payment of amounts payable under any service contract
  117  entered into by the department pursuant to s. 376.3075, subject
  118  to annual appropriation by the Legislature.
  119         (o) Petroleum remediation pursuant to this section
  120  throughout a state fiscal year. The department shall establish a
  121  process to uniformly encumber appropriated funds throughout a
  122  state fiscal year and shall allow for emergencies and imminent
  123  threats to public health, safety, and welfare, water resources,
  124  and the environment as provided in paragraph (5)(a). This
  125  paragraph does not apply to appropriations associated with the
  126  free product recovery initiative provided in paragraph (5)(c) or
  127  the advanced cleanup program provided in s. 376.30713.
  128         (p) Enforcement of this section and ss. 376.30-376.317 by
  129  the Fish and Wildlife Conservation Commission. The department
  130  shall disburse moneys to the commission for such purpose.
  131         (q) Payments for program deductibles, copayments, and
  132  limited contamination assessment reports that otherwise would be
  133  paid by another state agency for state-funded petroleum
  134  contamination site rehabilitation.
  135         (r)Repair of, replacement of, or other preventive measures
  136  for storage tanks, piping, or related hardware as provided in
  137  subsection (15). Such costs may include equipment, excavation,
  138  electrical work, and site restoration.
  140  The issuance of a site rehabilitation completion order pursuant
  141  to subsection (5) or paragraph (12)(b) for contamination
  142  eligible for programs funded by this section does not alter the
  143  project’s eligibility for state-funded remediation if the
  144  department determines that site conditions are not protective of
  145  human health under actual or proposed circumstances of exposure
  146  under subsection (5). The Inland Protection Trust Fund may be
  147  used only to fund the activities in ss. 376.30-376.317 except
  148  ss. 376.3078 and 376.3079. Amounts on deposit in the fund in
  149  each fiscal year must first be applied or allocated for the
  150  payment of amounts payable by the department pursuant to
  151  paragraph (n) under a service contract entered into by the
  152  department pursuant to s. 376.3075 and appropriated in each year
  153  by the Legislature before making or providing for other
  154  disbursements from the fund. This subsection does not authorize
  155  the use of the fund for cleanup of contamination caused
  156  primarily by a discharge of solvents as defined in s.
  157  206.9925(6), or polychlorinated biphenyls when their presence
  158  causes them to be hazardous wastes, except solvent contamination
  159  which is the result of chemical or physical breakdown of
  160  petroleum products and is otherwise eligible. Facilities used
  161  primarily for the storage of motor or diesel fuels as defined in
  162  ss. 206.01 and 206.86 are not excluded from eligibility pursuant
  163  to this section.
  166  MEASURES.—The department shall pay, in accordance with this
  167  subsection, up to $10 million each fiscal year from the fund for
  168  the costs of labor and equipment to repair or replace petroleum
  169  storage systems that have likely been damaged due to the storage
  170  of fuels blended with ethanol or biodiesel, or for preventive
  171  measures to reduce the potential for such damage.
  172         (a)A petroleum storage system owner or operator may
  173  request payment from the department for the repair or
  174  replacement of petroleum storage systems, including tanks,
  175  integral piping, or related hardware, that have likely been
  176  damaged, or are subject to damage, by the storage of fuels
  177  blended with ethanol or biodiesel or for other preventive
  178  measures to ensure compatibility with ethanol or biodiesel in
  179  accordance with the following procedures:
  180         1.The petroleum storage system owner or operator may
  181  submit a request for payment to the department along with the
  182  following information:
  183         a.An affidavit from a petroleum storage system specialty
  184  contractor attesting to an opinion that the petroleum storage
  185  system has likely been damaged as a result of the storage of
  186  fuel blended with ethanol or biodiesel or is not compatible with
  187  fuels containing ethanol or biodiesel, or a combination of both.
  188  The affidavit must also include a proposal from the specialty
  189  contractor for repair or replacement of the equipment, or for
  190  the implementation of other preventive measures to reduce the
  191  probability of damage. If the specialty contractor proposes
  192  replacement of any equipment, the specialty contractor must
  193  state the reasons that repair or other preventive measures are
  194  not technically or economically feasible or practical.
  195         b.Copies of any inspection reports, including photographs,
  196  prepared by the specialty contractor or department or local
  197  program inspectors documenting the damage or potential for
  198  damage to the petroleum storage system.
  199         c.A proposal from the specialty contractor showing the
  200  proposed scope of the repair, replacement, or other preventive
  201  measures, including a detailed list of labor, equipment, and
  202  other associated costs. Funding for preventative measures is
  203  only available for petroleum storage systems that have not
  204  received funding under this subsection. For eligible
  205  preventative measures, an owner or operator may only receive
  206  funding for up to 5 years or when the petroleum storage system
  207  is replaced, whichever comes first. The petroleum storage system
  208  specialty contractor who prepared the affidavit and proposed
  209  scope of work may not also perform the repair, replacement, or
  210  preventive measures.
  211         d.For proposals to replace storage tanks or piping, a
  212  statement from a certified public accountant indicating the
  213  depreciated value of the tanks or piping proposed for
  214  replacement. Applications for such proposals must also include
  215  documentation of the age of the storage tank or piping.
  216  Historical tank registration records may be used to determine
  217  the age of the storage tank and piping. The depreciated value
  218  shall be the maximum allowable replacement cost for the storage
  219  tank and piping, including prorated labor costs. For the
  220  purposes of this paragraph, tanks that are 20 years old or older
  221  are deemed to be fully depreciated and have no replacement value
  222  and are not eligible for funding under this subsection.
  223         2.The department shall review applications for
  224  completeness, accuracy, and the reasonableness of costs and
  225  scope of work. The department must, within 30 days after receipt
  226  of an application, approve it, deny it, propose modification to
  227  it, or request additional information.
  228         (b)If an application is approved, the department shall
  229  issue a purchase order to the petroleum storage system owner or
  230  operator. The purchase order shall:
  231         1.Reflect a payment due to the owner or operator for the
  232  cost of the scope of work approved by the department, less a
  233  deductible of 25 percent.
  234         2.State that moneys are not due to the owner or operator
  235  pursuant to the purchase order until the scope of work
  236  authorized by the department has been completed in substantial
  237  conformity with the purchase order.
  238         3.Specify that the work authorized in the purchase order
  239  must be substantially completed and paid for by the petroleum
  240  storage system owner or operator within 180 days after the date
  241  of the purchase order. After such time, the purchase order is
  242  void. This requirement does not apply to preventive measure
  243  purchase orders.
  244         4.Develop a maintenance completion and payment deadline
  245  schedule for approved applicants for preventive measure purchase
  246  orders. The failure of an owner or operator to meet these
  247  scheduled deadlines shall invalidate the purchase order for all
  248  future payments due pursuant to the order. An approved
  249  maintenance plan for preventive measures may not exceed 5 years.
  250  An owner or operator may not receive funding for preventive
  251  measures for a petroleum storage system after receiving funds
  252  under this subsection for the replacement of that petroleum
  253  storage system.
  254         (c)1.Except for preventive measure purchase orders, the
  255  applicant may request that the department make payment following
  256  completion of the work authorized by the department, in
  257  accordance with the terms of the purchase order. The request
  258  must include a sufficient demonstration that the work has been
  259  completed in substantial conformance with the purchase order and
  260  that the costs have been fully paid. Upon such a showing, the
  261  department must issue the payment in accordance with the terms
  262  of the purchase order.
  263         2.For preventive measures purchase orders, the department
  264  must make periodic payments in accordance with the schedule
  265  specified in the purchase order upon satisfactory showing that
  266  maintenance work has been completed and costs have been paid by
  267  the owner or operator as specified in the purchase order.
  268         (d)The department may develop forms to be used for
  269  application and payment procedures. Until such forms are
  270  developed, an applicant may submit the required information in
  271  any format, as long as the documentation is complete.
  272         (e)The department may request the assistance of the
  273  Department of Management Services or a third-party administrator
  274  to assist in the administration of the application and payment
  275  process. Any costs associated with this administration shall be
  276  paid from the funds identified in this section. Not more than 3
  277  percent of the appropriated funds may be used for
  278  administration.
  279         (f)This subsection may not affect the obligations of a
  280  facility owner or operator or petroleum storage system owner or
  281  operator to timely comply with department rules regarding the
  282  maintenance, replacement, and repair of petroleum storage
  283  systems in order to prevent a release or discharge of
  284  pollutants.
  285         (g)Payments may not be made for the following:
  286         1.Proposal costs or costs related to preparation of the
  287  application and required documentation;
  288         2.Certified public accountant costs;
  289         3.Except as provided in paragraph (j), any costs in excess
  290  of the amount approved by the department pursuant to paragraph
  291  (b) or which are not in substantial conformance with the
  292  purchase order;
  293         4.Costs associated with storage tanks, piping, or related
  294  hardware that has previously been repaired or replaced for which
  295  costs have been paid under this section;
  296         5.Facilities that are not in compliance with department
  297  storage tank rules, until the noncompliance issues have been
  298  resolved; or
  299         6.Costs associated with damage to petroleum storage
  300  systems caused in whole or in part by causes other than the
  301  storage of fuels blended with ethanol or biodiesel.
  302         (h)The department must review and approve applications on
  303  a first-come, first-served basis. However, the department may
  304  not issue purchase orders unless funds remain for the current
  305  fiscal year.
  306         (i)A petroleum storage system owner or operator may not
  307  receive more than $200,000 annually for equipment replacement,
  308  repair, or preventive measures at any single facility, or
  309  $500,000 annually in aggregate for all facilities it owns or
  310  operates. An approved maintenance plan for preventive measures
  311  may not exceed 5 years. An owner or operator may not receive
  312  funding for preventive measures for a petroleum storage system
  313  after receiving funds under this subsection for the replacement
  314  of that petroleum storage system.
  315         (j)An owner or operator who has incurred costs for repair,
  316  replacement, or other preventive measures as described in this
  317  subsection during the period of July 1, 2015, through June 30,
  318  2017, may apply to request payment for such costs from the
  319  department using the procedure in paragraphs (b), (c), and (d).
  320  The department may not disburse payment for approved
  321  applications for such work until all purchase orders for
  322  previously approved applications have been paid and unless funds
  323  remain available for the fiscal year. Such payment is subject to
  324  a deductible of 25 percent of the cost of the scope of work
  325  approved by the department pursuant to the application specified
  326  under this paragraph.
  328  department shall ensure that petroleum storage systems approved
  329  after July 1, 2017, meet applicable standards for compatibility
  330  for ethanol blends, biodiesel blends, and other alternative
  331  fuels that are likely to be stored in such systems.
  332         Section 2. This act shall take effect July 1, 2017.
  334  ================= T I T L E  A M E N D M E N T ================
  335  And the title is amended as follows:
  336         Delete everything before the enacting clause
  337  and insert:
  338                        A bill to be entitled                      
  339         An act relating to fuel storage; amending s. 376.3071,
  340         F.S.; providing legislative findings; revising
  341         legislative intent; specifying that funds in the
  342         Inland Protection Trust Fund may be used for certain
  343         purposes relating to damage or potential damage to
  344         petroleum storage systems caused by ethanol or
  345         biodiesel; specifying the maximum funds that may be
  346         used for such purposes; specifying the process for
  347         petroleum storage system owners or operators to
  348         request approval for work and payment from the
  349         Department of Environmental Protection; authorizing
  350         the department to develop forms for certain procedures
  351         and request administrative assistance from the
  352         Department of Management Services or a third party
  353         administrator; specifying that certain costs are not
  354         eligible for payment; requiring the department to
  355         review and approve applications on a first-come,
  356         first-served basis, with purchase orders subject to
  357         certain remaining funds; limiting the amount a storage
  358         tank owner or operator may receive annually for such
  359         measures; providing applicability of certain purchase
  360         order requirements; specifying that the department may
  361         also pay the cost for certain previously completed
  362         repairs, replacement, or other preventive measures
  363         relating to damage or potential damage to storage tank
  364         systems caused by ethanol or biodiesel; requiring the
  365         department to ensure that petroleum storage systems
  366         approved after a certain date meet certain standards
  367         for ethanol blend, biodiesel blend, and other
  368         alternative fuel compatibility; providing an effective
  369         date.