Florida Senate - 2020 CS for SB 702
By the Committee on Environment and Natural Resources; and
1 A bill to be entitled
2 An act relating to petroleum cleanup; amending s.
3 376.3071, F.S.; revising requirements for a limited
4 contamination assessment report required to be
5 provided by a property owner, operator, or person
6 otherwise responsible for site rehabilitation to the
7 Department of Environmental Protection under the
8 Petroleum Cleanup Participation Program; amending s.
9 376.30713, F.S.; revising the contents of an advanced
10 cleanup application to include a specified property
11 owner or responsible party agreement; requiring an
12 applicant to submit a scope of work after the
13 department has accepted the applicant’s advanced
14 cleanup application; requiring the department to issue
15 a purchase order for a certain contamination
16 assessment; providing an effective date.
18 Be It Enacted by the Legislature of the State of Florida:
20 Section 1. Subsection (13) of section 376.3071, Florida
21 Statutes, is amended to read:
22 376.3071 Inland Protection Trust Fund; creation; purposes;
24 (13) PETROLEUM CLEANUP PARTICIPATION PROGRAM.—To encourage
25 detection, reporting, and cleanup of contamination caused by
26 discharges of petroleum or petroleum products, the department
27 shall, within the guidelines established in this subsection,
28 implement a
cost-sharing cleanup program to provide
29 rehabilitation funding assistance for all property contaminated
30 by discharges of petroleum or petroleum products from a
31 petroleum storage system occurring before January 1, 1995 ,
32 subject to a copayment provided for in a Petroleum Cleanup
33 Participation Program site rehabilitation agreement. Eligibility
34 is subject to an annual appropriation from the fund.
35 Additionally, funding for eligible sites is contingent upon
36 annual appropriation in subsequent years. Such continued state
37 funding is not an entitlement or a vested right under this
38 subsection. Eligibility shall be determined in the program,
39 notwithstanding any other provision of law, consent order,
40 order, judgment, or ordinance to the contrary.
41 (a)1. The department shall accept any discharge reporting
42 form received before January 1, 1995, as an application for this
43 program, and the facility owner or operator need not reapply.
44 2. Regardless of whether ownership has changed, owners or
45 operators of property that is contaminated by petroleum or
46 petroleum products from a petroleum storage system may apply for
47 such program by filing a written report of the contamination
48 incident, including evidence that such incident occurred before
49 January 1, 1995, with the department. Incidents of petroleum
50 contamination discovered after December 31, 1994, at sites which
51 have not stored petroleum or petroleum products for consumption,
52 use, or sale after such date shall be presumed to have occurred
53 before January 1, 1995. An operator’s filed report shall be an
54 application of the owner for all purposes.
55 (b) Subject to annual appropriation from the fund, sites
56 meeting the criteria of this subsection are eligible for up to
57 $400,000 of site rehabilitation funding assistance in priority
58 order pursuant to subsections (5) and (6). Sites meeting the
59 criteria of this subsection for which a site rehabilitation
60 completion order was issued before June 1, 2008, do not qualify
61 for the 2008 increase in site rehabilitation funding assistance
62 and are bound by the pre-June 1, 2008, limits. Sites meeting the
63 criteria of this subsection for which a site rehabilitation
64 completion order was not issued before June 1, 2008, regardless
65 of whether they have previously transitioned to nonstate-funded
66 cleanup status, may continue state-funded cleanup pursuant to
67 this section until a site rehabilitation completion order is
68 issued or the increased site rehabilitation funding assistance
69 limit is reached, whichever occurs first. The department may not
70 pay expenses incurred beyond the scope of an approved contract.
71 (c) The department may also approve supplemental funding of
72 up to $100,000 for additional remediation and monitoring if such
73 remediation and monitoring is necessary to achieve a
74 determination of “No Further Action.”
75 (d) Upon notification by the department that rehabilitation
76 funding assistance is available for the site pursuant to
77 subsections (5) and (6), the property owner, operator, or person
78 otherwise responsible for site rehabilitation shall provide the
79 department with a limited contamination assessment report and
80 shall enter into a Petroleum Cleanup Participation Program site
81 rehabilitation agreement with the department. The limited
82 contamination assessment report must be sufficient to support
83 the proposed course of action and to estimate the cost of the
84 proposed course of action. The agreement must provide for a 25
85 percent cost savings to the department, a copayment by the
86 owner, operator, or person otherwise responsible for conducting
87 site rehabilitation, or a combination of cost savings and a
88 copayment. Cost savings to the department may be demonstrated in
89 the form of reduced rates by the proposed agency term contractor
90 or the difference in cost associated with a Risk Management
91 Options Level I closure versus a Risk Management Options Level
92 II closure. For the purpose of this paragraph, the term:
93 1. “Risk Management Options Level I” means a “No Further
94 Action” closure without institutional controls or without
95 institutional and engineering controls. This closure option
96 applies subject to conditions in department rules and
98 2. “Risk Management Options Level II” means a “No Further
99 Action” closure where institutional controls and, if
100 appropriate, engineering controls apply if the controls are
101 protective of human health, public safety, and the environment.
102 This closure option applies subject to conditions in department
103 rules and agreements. The owner, operator, or person otherwise
104 responsible for conducting site rehabilitation shall adequately
105 demonstrate the ability to meet the copayment obligation. The
106 limited contamination assessment report and the copayment costs
107 may be reduced or eliminated if the owner and all operators
108 responsible for restoration under s. 376.308 demonstrate that
109 they cannot financially comply with the copayment and limited
110 contamination assessment report requirements. The department
111 shall take into consideration the owner’s and operator’s net
112 worth in making the determination of financial ability. In the
113 event the department and the owner, operator, or person
114 otherwise responsible for site rehabilitation cannot complete
115 negotiation of the cost-sharing agreement within 120 days after
116 beginning negotiations, the department shall terminate
117 negotiations and the site shall be ineligible for state funding
118 under this subsection and all liability protections provided for
119 in this subsection shall be revoked.
120 (e) A report of a discharge made to the department by a
121 person pursuant to this subsection or any rules adopted pursuant
122 to this subsection may not be used directly as evidence of
123 liability for such discharge in any civil or criminal trial
124 arising out of the discharge.
125 (f) This subsection does not preclude the department from
126 pursuing penalties under s. 403.141 for violations of any law or
127 any rule, order, permit, registration, or certification adopted
128 or issued by the department pursuant to its lawful authority.
129 (g) Upon the filing of a discharge reporting form under
130 paragraph (a), the department or local government may not pursue
131 any judicial or enforcement action to compel rehabilitation of
132 the discharge. This paragraph does not prevent any such action
133 with respect to discharges determined ineligible under this
134 subsection or to sites for which rehabilitation funding
135 assistance is available pursuant to subsections (5) and (6).
136 (h) The following are excluded from participation in the
138 1. Sites at which the department has been denied reasonable
139 site access to implement this section.
140 2. Sites that were active facilities when owned or operated
141 by the Federal Government.
142 3. Sites that are identified by the United States
143 Environmental Protection Agency to be on, or which qualify for
144 listing on, the National Priorities List under Superfund. This
145 exception does not apply to those sites for which eligibility
146 has been requested or granted as of the effective date of this
147 act under the Early Detection Incentive Program established
148 pursuant to s. 15, chapter 86-159, Laws of Florida.
149 4. Sites for which contamination is covered under the Early
150 Detection Incentive Program, the Abandoned Tank Restoration
151 Program, or the Petroleum Liability and Restoration Insurance
152 Program, in which case site rehabilitation funding assistance
153 shall continue under the respective program.
154 Section 2. Subsection (2) of section 376.30713, Florida
155 Statutes, is amended to read:
156 376.30713 Advanced cleanup.—
157 (2) The department may approve an application for advanced
158 cleanup at eligible sites, including applications submitted
159 pursuant to paragraph (c), notwithstanding the site’s priority
160 ranking established pursuant to s. 376.3071(5)(a), pursuant to
161 this section. Only the facility owner or operator or the person
162 otherwise responsible for site rehabilitation qualifies as an
163 applicant under this section.
164 (a) Advanced cleanup applications may be submitted between
165 May 1 and June 30 and between November 1 and December 31 of each
166 fiscal year. Applications submitted between May 1 and June 30
167 shall be for the fiscal year beginning July 1. An application
168 must consist of:
169 1. A commitment to pay 25 percent or more of the total
170 cleanup cost deemed recoverable under this section along with
171 proof of the ability to pay the cost share. The department shall
172 determine whether the cost savings demonstration is acceptable.
173 Such determination is not subject to chapter 120.
174 a. Applications for the aggregate cleanup of five or more
175 sites may be submitted in one of two formats to meet the cost
176 share requirement:
177 (I) For an aggregate application proposing that the
178 department enter into a performance-based contract, the
179 applicant may use a commitment to pay, a demonstrated cost
180 savings to the department, or both to meet the requirement.
181 (II) For an aggregate application relying on a demonstrated
182 cost savings to the department, the applicant shall, in
183 conjunction with the proposed agency term contractor, establish
184 and provide in the application the percentage of cost savings in
185 the aggregate that is being provided to the department for
186 cleanup of the sites under the application compared to the cost
187 of cleanup of those same sites using the current rates provided
188 to the department by the proposed agency term contractor.
189 b. Applications for the cleanup of individual sites may be
190 submitted in one of two formats to meet the cost-share
192 (I) For an individual application proposing that the
193 department enter into a performance-based contract, the
194 applicant may use a commitment to pay, a demonstrated cost
195 savings to the department, or both to meet the requirement.
196 (II) For an individual application relying on a
197 demonstrated cost savings to the department, the applicant
198 shall, in conjunction with the proposed agency term contractor,
199 establish and provide in the application a 25-percent cost
200 savings to the department for cleanup of the site under the
201 application compared to the cost of cleanup of the same site
202 using the current rates provided to the department by the
203 proposed agency term contractor.
204 2. A nonrefundable review fee of $250 to cover the
205 administrative costs associated with the department’s review of
206 the application.
207 3. A property owner or responsible party agreement in which
208 the property owner or responsible party commits to continue to
209 participate in the advanced cleanup program upon completion of
210 the limited contamination assessment and finalization of the
211 proposed course of action limited contamination assessment
213 4. A conceptual proposed course of action.
214 5. A department site access agreement, or similar
215 agreements approved by the department that do not violate state
216 law, entered into with the property owner or owners, as
217 applicable, and evidence of authorization from such owner or
218 owners for petroleum site rehabilitation program tasks
219 consistent with the proposed course of action where the
220 applicant is not the property owner for any of the sites
221 contained in the application.
223 The limited contamination assessment report must be sufficient
224 to support the proposed course of action and to estimate the
225 cost of the proposed course of action. Costs incurred related to
226 conducting the limited contamination assessment report are not
227 refundable from the Inland Protection Trust Fund. Site
228 eligibility under this subsection or any other provision of this
229 section is not an entitlement to advanced cleanup or continued
230 restoration funding.
231 6. A certification The applicant shall certify to the
232 department that the applicant has the prerequisite authority to
233 enter into an advanced cleanup contract with the department. The
234 certification must be submitted with the application.
235 (b) The department shall rank the applications based on the
236 percentage of cost-sharing commitment proposed by the applicant,
237 with the highest ranking given to the applicant who proposes the
238 highest percentage of cost sharing. If the department receives
239 applications that propose identical cost-sharing commitments and
240 that exceed the funds available to commit to all such proposals
241 during the advanced cleanup application period, the department
242 shall proceed to rerank those applicants. Those applicants
243 submitting identical cost-sharing proposals that exceed funding
244 availability must be so notified by the department and offered
245 the opportunity to raise their individual cost-share
246 commitments, in a period specified in the notice. At the close
247 of the period, the department shall proceed to rerank the
248 applications pursuant to this paragraph.
249 (c) Applications for the advanced cleanup of individual
250 sites scheduled for redevelopment are not subject to the
251 application period limitations or the requirement to pay 25
252 percent of the total cleanup cost specified in paragraph (a) or
253 to the cost-sharing commitment specified in paragraph (1)(d).
254 Applications must be accepted on a first-come, first-served
255 basis and are not subject to the ranking provisions of paragraph
256 (b). Applications for the advanced cleanup of individual sites
257 scheduled for redevelopment must include:
258 1. A nonrefundable review fee of $250 to cover the
259 administrative costs associated with the department’s review of
260 the application.
261 2. A limited contamination assessment report. The report
262 must be sufficient to support the proposed course of action and
263 to estimate the cost of the proposed course of action. Costs
264 incurred related to conducting and preparing the report are not
265 refundable from the Inland Protection Trust Fund.
266 3. A proposed course of action for cleanup of the site.
267 4. If the applicant is not the property owner for any of
268 the sites contained in the application, a department site access
269 agreement, or a similar agreement approved by the department and
270 not in violation of state law, entered into with the property
271 owner or owners, as applicable, and evidence of authorization
272 from such owner or owners for petroleum site rehabilitation
273 program tasks consistent with the proposed course of action.
274 5. A certification to the department stating that the
275 applicant has the prerequisite authority to enter into an
276 advanced cleanup contract with the department. The advanced
277 cleanup contract must include redevelopment and site
278 rehabilitation milestones.
279 6. Documentation, in the form of a letter from the local
280 government having jurisdiction over the area where the site is
281 located, which states that the local government is in agreement
282 with or approves the proposed redevelopment and that the
283 proposed redevelopment complies with applicable law and
284 requirements for such redevelopment.
285 7. A demonstrated reasonable assurance that the applicant
286 has sufficient financial resources to implement and complete the
287 redevelopment project.
288 (d) Upon acceptance of an advanced cleanup application, the
289 applicant’s selected agency term contractor shall submit to the
290 department a scope of work for a limited contamination
291 assessment. When the scope of work is negotiated and agreed
292 upon, the department shall issue one or more purchase orders of
293 up to $35,000 each for the limited contamination assessment. The
294 limited contamination assessment report must be sufficient to
295 support the proposed course of action and to estimate the cost
296 of the proposed course of action.
297 (e) Site eligibility under this section is not an
298 entitlement to advanced cleanup funding or continued restoration
300 Section 3. This act shall take effect July 1, 2020.