Florida Senate - 2020                          SENATOR AMENDMENT
       Bill No. CS for SB 702
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                Floor: 1/AD/3R         .                                
             03/05/2020 04:10 PM       .                                

       Senator Flores moved the following:
    1         Senate Amendment (with title amendment)
    3         Delete lines 20 - 153
    4  and insert:
    5         Section 1. Paragraph (a) of subsection (2) and subsections
    6  (4) and (13) of section 376.3071, Florida Statutes, are amended,
    7  and paragraph (h) is added to subsection (1) and subsection (15)
    8  is 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 Water Act, and that the state enacted the
   15  Renewable Fuels Standard, to establish a renewable fuel standard
   16  requiring the use of ethanol as an oxygenate additive for
   17  gasoline and biodiesel as an additive for ultra-low sulfur
   18  diesel fuel. An unintended consequence of the inclusion of
   19  ethanol in gasoline and biodiesel in diesel fuel has been to
   20  cause, and potentially cause, significant corrosion and other
   21  damage to storage tanks, piping, and storage tank system
   22  components regulated under this chapter. The Legislature further
   23  finds that storage tanks, piping, and storage tank system
   24  components have been found by the department in its equipment
   25  approval process to meet compatibility standards, however, these
   26  standards may have subsequently changed due to the introduction
   27  of ethanol and biodiesel. The state enacted secondary
   28  containment requirements before the mandated introduction of
   29  ethanol into gasoline and biodiesel into ultra-low sulfur diesel
   30  fuel. Therefore, owners and operators of petroleum storage
   31  facilities in the state that complied with the state’s secondary
   32  containment requirements and installed approved equipment that
   33  may not have been evaluated for compatibility with ethanol and
   34  biodiesel, cross-contamination due to the storage of gasoline
   35  and diesel fuel, and the effects of condensation and minimal
   36  amounts of water in storage tanks are at a particular risk for
   37  having to repair or replace equipment or take other preventive
   38  measures in advance of the equipment’s expected useful life in
   39  order to prevent releases or discharges of pollutants.
   40         (2) INTENT AND PURPOSE.—
   41         (a) It is the intent of the Legislature to establish the
   42  Inland Protection Trust Fund to serve as a repository for funds
   43  which will enable the department to respond without delay to
   44  incidents of inland contamination, and damage or potential
   45  damage to storage tank systems caused by ethanol or biodiesel as
   46  described in subsection (15) which may result in such incidents,
   47  related to the storage of petroleum and petroleum products in
   48  order to protect the public health, safety, and welfare and to
   49  minimize environmental damage.
   50         (4) USES.—Whenever, in its determination, incidents of
   51  inland contamination, or potential incidents as provided in
   52  subsection (15), related to the storage of petroleum or
   53  petroleum products may pose a threat to the public health,
   54  safety, or welfare, water resources, or the environment, the
   55  department shall obligate moneys available in the fund to
   56  provide for:
   57         (a) Prompt investigation and assessment of contamination
   58  sites.
   59         (b) Expeditious restoration or replacement of potable water
   60  supplies as provided in s. 376.30(3)(c)1.
   61         (c) Rehabilitation of contamination sites, which shall
   62  consist of cleanup of affected soil, groundwater, and inland
   63  surface waters, using the most cost-effective alternative that
   64  is technologically feasible and reliable and that provides
   65  adequate protection of the public health, safety, and welfare,
   66  and water resources, and that minimizes environmental damage,
   67  pursuant to the site selection and cleanup criteria established
   68  by the department under subsection (5), except that this
   69  paragraph does not authorize the department to obligate funds
   70  for payment of costs which may be associated with, but are not
   71  integral to, site rehabilitation, such as the cost for
   72  retrofitting or replacing petroleum storage systems.
   73         (d) Maintenance and monitoring of contamination sites.
   74         (e) Inspection and supervision of activities described in
   75  this subsection.
   76         (f) Payment of expenses incurred by the department in its
   77  efforts to obtain from responsible parties the payment or
   78  recovery of reasonable costs resulting from the activities
   79  described in this subsection.
   80         (g) Payment of any other reasonable costs of
   81  administration, including those administrative costs incurred by
   82  the Department of Health in providing field and laboratory
   83  services, toxicological risk assessment, and other assistance to
   84  the department in the investigation of drinking water
   85  contamination complaints and costs associated with public
   86  information and education activities.
   87         (h) Establishment and implementation of the compliance
   88  verification program as authorized in s. 376.303(1)(a),
   89  including contracting with local governments or state agencies
   90  to provide for the administration of such program through
   91  locally administered programs, to minimize the potential for
   92  further contamination sites.
   93         (i) Funding of the provisions of ss. 376.305(6) and
   94  376.3072.
   95         (j) Activities related to removal and replacement of
   96  petroleum storage systems, if repair, replacement, or other
   97  preventive measures are authorized under subsection (15), or
   98  exclusive of costs of any tank, piping, dispensing unit, or
   99  related hardware, if soil removal is approved as a component of
  100  site rehabilitation and requires removal of the tank where
  101  remediation is conducted under this section, or if such
  102  activities were justified in an approved remedial action plan.
  103         (k) Reasonable costs of restoring property as nearly as
  104  practicable to the conditions which existed before activities
  105  associated with contamination assessment or remedial action
  106  taken under s. 376.303(4).
  107         (l) Repayment of loans to the fund.
  108         (m) Expenditure of sums from the fund to cover ineligible
  109  sites or costs as set forth in subsection (13), if the
  110  department in its discretion deems it necessary to do so. In
  111  such cases, the department may seek recovery and reimbursement
  112  of costs in the same manner and pursuant to the same procedures
  113  established for recovery and reimbursement of sums otherwise
  114  owed to or expended from the fund.
  115         (n) Payment of amounts payable under any service contract
  116  entered into by the department pursuant to s. 376.3075, subject
  117  to annual appropriation by the Legislature.
  118         (o) Petroleum remediation pursuant to this section
  119  throughout a state fiscal year. The department shall establish a
  120  process to uniformly encumber appropriated funds throughout a
  121  state fiscal year and shall allow for emergencies and imminent
  122  threats to public health, safety, and welfare, water resources,
  123  and the environment as provided in paragraph (5)(a). This
  124  paragraph does not apply to appropriations associated with the
  125  free product recovery initiative provided in paragraph (5)(c) or
  126  the advanced cleanup program provided in s. 376.30713.
  127         (p) Enforcement of this section and ss. 376.30-376.317 by
  128  the Fish and Wildlife Conservation Commission and the Department
  129  of Environmental Protection. The department shall may disburse
  130  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)Payments for the repair or replacement of, or other
  136  preventive measures for, storage tanks, piping, or system
  137  components as provided in subsection (15). Such costs may
  138  include equipment, excavation, electrical work, and site
  139  restoration.
  141  The issuance of a site rehabilitation completion order pursuant
  142  to subsection (5) or paragraph (12)(b) for contamination
  143  eligible for programs funded by this section does not alter the
  144  project’s eligibility for state-funded remediation if the
  145  department determines that site conditions are not protective of
  146  human health under actual or proposed circumstances of exposure
  147  under subsection (5). The Inland Protection Trust Fund may be
  148  used only to fund the activities in ss. 376.30-376.317 except
  149  ss. 376.3078 and 376.3079. Amounts on deposit in the fund in
  150  each fiscal year must first be applied or allocated for the
  151  payment of amounts payable by the department pursuant to
  152  paragraph (n) under a service contract entered into by the
  153  department pursuant to s. 376.3075 and appropriated in each year
  154  by the Legislature before making or providing for other
  155  disbursements from the fund. This subsection does not authorize
  156  the use of the fund for cleanup of contamination caused
  157  primarily by a discharge of solvents as defined in s.
  158  206.9925(6), or polychlorinated biphenyls when their presence
  159  causes them to be hazardous wastes, except solvent contamination
  160  which is the result of chemical or physical breakdown of
  161  petroleum products and is otherwise eligible. Facilities used
  162  primarily for the storage of motor or diesel fuels as defined in
  163  ss. 206.01 and 206.86 are not excluded from eligibility pursuant
  164  to this section.
  166  detection, reporting, and cleanup of contamination caused by
  167  discharges of petroleum or petroleum products, the department
  168  shall, within the guidelines established in this subsection,
  169  implement a cost-sharing cleanup program to provide
  170  rehabilitation funding assistance for all property contaminated
  171  by discharges of petroleum or petroleum products from a
  172  petroleum storage system occurring before January 1, 1995,
  173  subject to a copayment provided for in a Petroleum Cleanup
  174  Participation Program site rehabilitation agreement. Eligibility
  175  is subject to an annual appropriation from the fund.
  176  Additionally, funding for eligible sites is contingent upon
  177  annual appropriation in subsequent years. Such continued state
  178  funding is not an entitlement or a vested right under this
  179  subsection. Eligibility shall be determined in the program,
  180  notwithstanding any other provision of law, consent order,
  181  order, judgment, or ordinance to the contrary.
  182         (a)1. The department shall accept any discharge reporting
  183  form received before January 1, 1995, as an application for this
  184  program, and the facility owner or operator need not reapply.
  185         2. Regardless of whether ownership has changed, owners or
  186  operators of property that is contaminated by petroleum or
  187  petroleum products from a petroleum storage system may apply for
  188  such program by filing a written report of the contamination
  189  incident, including evidence that such incident occurred before
  190  January 1, 1995, with the department. Incidents of petroleum
  191  contamination discovered after December 31, 1994, at sites which
  192  have not stored petroleum or petroleum products for consumption,
  193  use, or sale after such date shall be presumed to have occurred
  194  before January 1, 1995. An operator’s filed report shall be an
  195  application of the owner for all purposes.
  196         (b) Subject to annual appropriation from the fund, sites
  197  meeting the criteria of this subsection are eligible for up to
  198  $400,000 of site rehabilitation funding assistance in priority
  199  order pursuant to subsections (5) and (6). Sites meeting the
  200  criteria of this subsection for which a site rehabilitation
  201  completion order was issued before June 1, 2008, do not qualify
  202  for the 2008 increase in site rehabilitation funding assistance
  203  and are bound by the pre-June 1, 2008, limits. Sites meeting the
  204  criteria of this subsection for which a site rehabilitation
  205  completion order was not issued before June 1, 2008, regardless
  206  of whether they have previously transitioned to nonstate-funded
  207  cleanup status, may continue state-funded cleanup pursuant to
  208  this section until a site rehabilitation completion order is
  209  issued or the increased site rehabilitation funding assistance
  210  limit is reached, whichever occurs first. The department may not
  211  pay expenses incurred beyond the scope of an approved contract.
  212         (c) The department may also approve supplemental funding of
  213  up to $100,000 for additional remediation and monitoring if such
  214  remediation and monitoring is necessary to achieve a
  215  determination of “No Further Action.”
  216         (d) Upon notification by the department that rehabilitation
  217  funding assistance is available for the site pursuant to
  218  subsections (5) and (6), the property owner, operator, or person
  219  otherwise responsible for site rehabilitation shall provide the
  220  department with a limited contamination assessment report and
  221  shall enter into a Petroleum Cleanup Participation Program site
  222  rehabilitation agreement with the department. The limited
  223  contamination assessment report must be sufficient to support
  224  the proposed course of action and to estimate the cost of the
  225  proposed course of action. The agreement must provide for a 25
  226  percent cost savings to the department, a copayment by the
  227  owner, operator, or person otherwise responsible for conducting
  228  site rehabilitation, or a combination of cost savings and a
  229  copayment. Cost savings to the department may be demonstrated in
  230  the form of reduced rates by the proposed agency term contractor
  231  or the difference in cost associated with a Risk Management
  232  Options Level I closure versus a Risk Management Options Level
  233  II closure. For the purpose of this paragraph, the term:
  234         1. Risk Management Options Level I means a No Further
  235  Action closure without institutional controls or without
  236  institutional and engineering controls. This closure option
  237  applies subject to conditions in department rules and
  238  agreements.
  239         2. Risk Management Options Level II means a No Further
  240  Action closure where institutional controls and, if
  241  appropriate, engineering controls apply if the controls are
  242  protective of human health, public safety, and the environment.
  243  This closure option applies subject to conditions in department
  244  rules and agreements The owner, operator, or person otherwise
  245  responsible for conducting site rehabilitation shall adequately
  246  demonstrate the ability to meet the copayment obligation. The
  247  limited contamination assessment report and the copayment costs
  248  may be reduced or eliminated if the owner and all operators
  249  responsible for restoration under s. 376.308 demonstrate that
  250  they cannot financially comply with the copayment and limited
  251  contamination assessment report requirements. The department
  252  shall take into consideration the owner’s and operator’s net
  253  worth in making the determination of financial ability. In the
  254  event the department and the owner, operator, or person
  255  otherwise responsible for site rehabilitation cannot complete
  256  negotiation of the cost-sharing agreement within 120 days after
  257  beginning negotiations, the department shall terminate
  258  negotiations and the site shall be ineligible for state funding
  259  under this subsection and all liability protections provided for
  260  in this subsection shall be revoked.
  261         (e) A report of a discharge made to the department by a
  262  person pursuant to this subsection or any rules adopted pursuant
  263  to this subsection may not be used directly as evidence of
  264  liability for such discharge in any civil or criminal trial
  265  arising out of the discharge.
  266         (f) This subsection does not preclude the department from
  267  pursuing penalties under s. 403.141 for violations of any law or
  268  any rule, order, permit, registration, or certification adopted
  269  or issued by the department pursuant to its lawful authority.
  270         (g) Upon the filing of a discharge reporting form under
  271  paragraph (a), the department or local government may not pursue
  272  any judicial or enforcement action to compel rehabilitation of
  273  the discharge. This paragraph does not prevent any such action
  274  with respect to discharges determined ineligible under this
  275  subsection or to sites for which rehabilitation funding
  276  assistance is available pursuant to subsections (5) and (6).
  277         (h) The following are excluded from participation in the
  278  program:
  279         1. Sites at which the department has been denied reasonable
  280  site access to implement this section.
  281         2. Sites that were active facilities when owned or operated
  282  by the Federal Government.
  283         3. Sites that are identified by the United States
  284  Environmental Protection Agency to be on, or which qualify for
  285  listing on, the National Priorities List under Superfund. This
  286  exception does not apply to those sites for which eligibility
  287  has been requested or granted as of the effective date of this
  288  act under the Early Detection Incentive Program established
  289  pursuant to s. 15, chapter 86-159, Laws of Florida.
  290         4. Sites for which contamination is covered under the Early
  291  Detection Incentive Program, the Abandoned Tank Restoration
  292  Program, or the Petroleum Liability and Restoration Insurance
  293  Program, in which case site rehabilitation funding assistance
  294  shall continue under the respective program.
  296  department shall pay, pursuant to this subsection, up to $10
  297  million each fiscal year from the fund for the costs of labor
  298  and equipment to repair or replace petroleum storage systems
  299  that may have been damaged due to the storage of fuels blended
  300  with ethanol or biodiesel, or for preventive measures to reduce
  301  the potential for such damage.
  302         (a)A petroleum storage system owner or operator may
  303  request payment from the department for the repair or
  304  replacement of petroleum storage tanks, integral piping, or
  305  ancillary equipment that may have been damaged, or is subject to
  306  damage, by the storage of fuels blended with ethanol or
  307  biodiesel or for other preventive measures to ensure
  308  compatibility with ethanol or biodiesel in accordance with the
  309  following procedures:
  310         1.The petroleum storage system owner or operator may
  311  submit a request for payment to the department along with the
  312  following information:
  313         a.An affidavit from a petroleum storage system specialty
  314  contractor attesting to an opinion that the petroleum storage
  315  system may have been damaged as a result of the storage of fuel
  316  blended with ethanol or biodiesel or may not be compatible with
  317  fuels containing ethanol or biodiesel, or a combination of both.
  318  The affidavit must also include a proposal from the specialty
  319  contractor for repair or replacement of the equipment, or for
  320  the implementation other preventive measures to reduce the
  321  probability of damage. If the specialty contractor proposes
  322  replacement of any equipment, the affidavit must include the
  323  reasons that repair or other preventive measures are not
  324  technically or economically feasible or practical.
  325         b.Copies of any inspection reports, including photographs,
  326  prepared by the specialty contractor or department or local
  327  program inspectors documenting the damage or potential for
  328  damage to the petroleum storage system.
  329         c.A proposal from the specialty contractor showing the
  330  proposed scope of the repair, replacement, or other preventive
  331  measures, including a detailed list of labor, equipment, and
  332  other associated costs. In the case of replacement or repair,
  333  the proposal must also include provisions for any preventive
  334  measures needed to prevent a recurrence of the damage, such as
  335  the use of corrosion inhibitors, the application of coatings
  336  compatible with ethanol or biodiesel, as appropriate, and the
  337  adoption of a maintenance plan.
  338         d.For proposals to replace storage tanks or piping, a
  339  statement from a certified public accountant indicating the
  340  depreciated value of the tanks or piping proposed for
  341  replacement. Applications for such proposals must also include
  342  documentation of the age of the storage tank or piping.
  343  Historical tank registration records may be used to determine
  344  the age of the storage tank and piping. The depreciated value
  345  shall be the maximum allowable replacement cost for the storage
  346  tank and piping, exclusive of labor costs. For the purposes of
  347  this paragraph, tanks that are 20 years old or older are deemed
  348  to be fully depreciated and have no replacement value.
  349         2.The department shall review applications for
  350  completeness, accuracy, and the reasonableness of costs and
  351  scope of work. Within 30 days after receipt of an application,
  352  the department must approve or deny the application, propose
  353  modification to the application, or request additional
  354  information.
  355         (b)If an application is approved, the department shall
  356  issue a purchase order to the petroleum storage system owner or
  357  operator. The purchase order shall:
  358         1.Reflect a payment due to the owner for the cost of the
  359  scope of work approved by the department, less a deductible of
  360  25 percent.
  361         2.State that a payment is not due to the owner pursuant to
  362  the purchase order until the scope of work authorized by the
  363  department has been completed in substantial conformity with the
  364  purchase order.
  365         3.Except for preventive maintenance contracts, specify
  366  that the work authorized in the purchase order must be
  367  substantially completed and paid for by the petroleum storage
  368  system owner or operator within 180 days after the date of the
  369  purchase order. After such time, the purchase order is void.
  370         4.For preventive maintenance contracts, the department
  371  shall develop a maintenance completion and payment schedule for
  372  approved applicants. The failure of an owner or operator to meet
  373  scheduled payments shall invalidate the purchase order for all
  374  future payments due pursuant to the order.
  375         (c)1.Except for maintenance contracts, the applicant may
  376  request that the department make payment following completion of
  377  the work authorized by the department, in accordance with the
  378  terms of the purchase order. The request must include a
  379  sufficient demonstration that the work has been completed in
  380  substantial compliance with the purchase order and that the
  381  costs have been fully paid. Upon such a showing, the department
  382  must issue the payment pursuant to the terms of the purchase
  383  order.
  384         2.For maintenance contracts, the department must make
  385  periodic payments pursuant to the schedule specified in the
  386  purchase order upon satisfactory showing that maintenance work
  387  has been completed and costs have been paid by the owner or
  388  operator as specified in the purchase order.
  389         (d)The department may develop forms to be used for
  390  application and payment procedures. Until such forms are
  391  developed, an applicant may submit the required information in
  392  any format, as long as the documentation is complete.
  393         (e)The department may request the assistance of the
  394  Department of Management Services or a third-party administrator
  395  to assist in the administration of the application and payment
  396  process. Any costs associated with this administration shall be
  397  paid from the funds identified in this section.
  398         (f)This subsection does not affect the obligations of
  399  facility owners or operators or petroleum storage system owners
  400  or operators to timely comply with department rules regarding
  401  the maintenance, replacement, and repair of petroleum storage
  402  systems in order to prevent a release or discharge of
  403  pollutants.
  404         (g)Payments may not be made for the following:
  405         1.Proposal costs or costs related to preparation of the
  406  application and required documentation;
  407         2.Certified public accountant costs;
  408         3.Except as provided in subsection (k), any costs in
  409  excess of the amount approved by the department under paragraph
  410  (b) or which are not in substantial compliance with the purchase
  411  order;
  412         4.Costs associated with storage tanks, piping, or
  413  ancillary equipment that has previously been repaired or
  414  replaced for which costs have been paid under this section;
  415         5.Facilities that are not in compliance with department
  416  storage tank rules, until the noncompliance issues have been
  417  resolved; or
  418         6.Costs associated with damage to petroleum storage
  419  systems caused in whole or in part by causes other than the
  420  storage of fuels blended with ethanol or biodiesel.
  421         (h)Applications may be submitted on a first-come, first
  422  served basis. However, the department may not issue purchase
  423  orders unless funds remain for the current fiscal year.
  424         (i)A petroleum storage system owner or operator may not
  425  receive more than $200,000 annually for equipment replacement,
  426  repair, or preventive measures at any single facility, or
  427  $500,000 annually in aggregate for all facilities owned or
  428  operated by the owner or operator it owns or operates.
  429         (j)Owners or operators that have incurred costs for
  430  repair, replacement, or other preventive measures as described
  431  in this subsection during the period of July 1, 2015, through
  432  June 30, 2019, may apply to request payment for such costs from
  433  the department using the procedure in paragraphs (b), (c), and
  434  (d). The department may not disburse payment for approved
  435  applications for such work until all purchase orders for
  436  previously approved applications have been paid and unless funds
  437  remain available for the fiscal year. Such payment is subject to
  438  a deductible of 25 percent of the cost of the scope of work
  439  approved by the department under this paragraph.
  440         (k)For new petroleum requirement registrations after July
  441  1, 2019, the department shall only register equipment that meets
  442  applicable standards for compatibility for ethanol blends,
  443  biodiesel blends, and other alternative fuels that are likely to
  444  be stored in such systems.
  446  ================= T I T L E  A M E N D M E N T ================
  447  And the title is amended as follows:
  448         Delete lines 3 - 8
  449  and insert:
  450         376.3071, F.S.; providing legislative findings,
  451         declarations, and intent; authorizing the Department
  452         of Environmental Protection to use funds from the
  453         Inland Protection Trust Fund to pay for specified
  454         activities related to removal and replacement of
  455         petroleum storage systems; providing for petroleum
  456         storage system repair or replacement due to damage
  457         caused by ethanol or biodiesel and for preventive
  458         measures to reduce the potential for such damage;
  459         revising requirements for a limited contamination
  460         assessment report required to be provided by a
  461         property owner, an operator, or a person otherwise
  462         responsible for site rehabilitation to the Department
  463         of Environmental Protection under the Petroleum
  464         Cleanup Participation Program; providing requirements
  465         for requesting and receiving payments for such repair,
  466         replacement, and measures; providing construction;
  467         prohibiting payments for certain costs; limiting the
  468         payment amount a petroleum storage system owner or
  469         operator is eligible to receive annually; requiring
  470         the department, after a specified date, to only
  471         register storage system equipment that meets certain
  472         fuel standards; amending s.